ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Fulton Hogan Industries P/L NSW State Collective Agreement 2015 – Fulton Hogan conducts a road maintenance business – work often needs to be done quickly, at night or on weekends – sometimes necessary for employees to switch from night work to day work, or vice versa, during weekly roster cycle – employees paid eight hours ordinary pay on ‘rest day’ between cessation of night shift and commencement of day shift – dispute concerned payments that must be made to an employee who undertakes a shift change part way through the week and is then directed to work a fifth shift during the week – Fulton Hogan contended that work performed on a ‘fifth shift’ was part of their ordinary hours of work, and employees can be required to work such hours and are entitled to be paid their ordinary rate of pay – AWU contended that work performed on a ‘fifth shift’ was overtime, and employees may refuse to work those hours if they are unreasonable, and if worked must be paid as overtime – AWU posed two questions for arbitration: whether ‘rest day’ considered as time worked; and are ordinary hours concluded (ie reach 38) at the end of the fourth day – proper construction of clause 18.7 of the Agreement considered – Commission held ‘fifth shift’ not additional hours and is to be paid at ordinary rate of pay – answer to two questions no – application dismissed. The Australian Workers’ Union v Fulton Hogan Industries P/L
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