Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services

• Jurisdiction: Australia Federal only
• Judge: COLLIER J
• Judgment Date: 19 December 2019
• Neutral Citation: [2019] FCA 2145
• Court: Federal Court
• Date: 19 December 2019

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services [2019] FCA 2145

File number:	QUD 776 of 2016
Judge:	COLLIER J
Date of judgment:	19 December 2019
Catchwords:	INDUSTRIAL LAW – construction of enterprise agreement – whether overtime hours required by respondent reasonable – where “reasonable overtime” had been defined in the enterprise agreement – whether respondent contravened s 50 of the Fair Work Act 2009 (Cth)
Legislation:	Fair Work Act 2009 (Cth) – ss 50, 62(1), 62(3)
Cases cited:	Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 351 ALR 379 Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 City of Wanneroo v Holmes (1989) 30 IR 362 Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services [2018] FCAFC 182; (2018) 363 ALR 101 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 Construction, Forestry, Mining and Energy Union v Hay Point Services [2018] FCA 417 Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182 Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 Kucks v CSR Limited (1996) 66 IR 182 Metal Trades Employers’ Association v Boilermakers Society of Australia (1963) 4 FLR 333 Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 Shop Distributive and Allied Employees’ Association v Woolworths Ltd [2006] FCA 616; (2006) 151 FCR 513 Short v FW Hercus Pty Ltd (1993) 40 FCR 511; (1993) 46 IR 128 Working Hours Case July 2002 (2002) 114 IR 390 WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 280 IR 191
Date of hearing:	8 March 2019
Date of last submissions:	15 March 2019
Registry:	Queensland
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	75
Counsel for the Applicant:	Mr C W Dowling SC with Mr C Massy
Counsel for the Respondent:	Mr I Neil SC with Ms H Blattman
Solicitor for the Applicant:	Hall Payne Lawyers
Solicitor for the Respondent:	Herbert Smith Freehills

ORDERS

		QUD 776 of 2016
BETWEEN:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Applicant
AND:	HAY POINT SERVICES PTY LTD (ACN 009 836 800) Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	19 december 2019

THE COURT ORDERS THAT:

1. The name of the Applicant be amended to be “Construction, Forestry, Maritime, Mining and Energy Union”.

2. The Respondent contravened section 50 of the Fair Work Act 2009 (Cth) by requiring its employees, who were covered by the Hay Point Services Enterprise Agreement 2013 (the Agreement), to work 455 overtime hours per annum from 16 July 2016 until the Agreement ceased to operate on 5 June 2017, in contravention of clause 34.1 of the Agreement.

3. The matter be listed for further case management at 9.30am on 4 February 2020.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1. The background of this matter was set out in an earlier related judgment delivered on 28 March 2018 where the applicant union, the Construction, Forestry, Maritime, Mining and Energy Union (the union), sought declarations of contravention, together with pecuniary penalties against the respondent, Hay Point Services Pty Ltd (HPS) pursuant to s 50 of the Fair Work Act 2009 (Cth) (the FW Act): see Construction, Forestry, Mining and Energy Union v Hay Point Services [2018] FCA 417.

2. I adopt the brief summary of the background as set out at [8] to [12] in that earlier related decision:

[8] HPS employs persons at its business operating at the Hay Point Coal Terminal (HPCT) in Queensland. Prior to May 2016, HPS’s employees worked a roster described as the “five panel roster”, which involved crews working over five different shifts. Crews were required to work two days, followed by two nights, followed by a six day break.

[9] Under the five panel roster, HPS’s employees were required to work 35 ordinary hours per week.

[10] In May 2016, HPS decided to change its rostering arrangements from a “five panel roster” to a “four panel roster”, referred to as the “New Roster”. The New Roster commenced at HPCT on 16 July 2016. Under the New Roster, crews worked over four shifts and the employees were required to work as follows:

• two consecutive day shifts, followed by two consecutive night shifts, followed by a five-day break; then

• two consecutive night shifts, followed by three consecutive night shifts, followed by a four-day break; then

• three consecutive day shifts followed by two consecutive night shifts, followed by a five-day break.

[11] According to the CFMEU, the New Roster required employees to work 35 ordinary hours per week, with 8.75 hours of rostered overtime per week, meaning the New Roster required employees to work 455 hours of overtime per year.

[12] HPS does not take issue with the CFMEU’s calculation of overtime hours, but noted that employees were also entitled to six weeks’ annual leave. HPS claims that the effect of employees actually taking that annual leave, assuming that they did so, would be that their overtime hours would be 402.5 hours per year.

3. In short, the matter relates to the interpretation of cl 34.1 of the Hay Point Services Pty Ltd Enterprise Agreement 2013 (the 2013 Enterprise Agreement), an enterprise agreement made and approved pursuant to the provisions of Pt 2-4 of the Fair Work Act 2009 (Cth) (the FW Act). Section 50 of the FW Act provides that “[a] person must not contravene a term of an enterprise agreement”. The 2013 Enterprise Agreement is an “enterprise agreement” within the meaning of s 50 of the FW Act.

4. Clause 34.1 of the 2013 Enterprise Agreement provides as follows:

34.1 Reasonable Overtime

HPS may require an employee to work reasonable overtime and the employee shall work such overtime as required.

5. The union alleged that, by implementing a new work roster requiring employees to work 455 hours of overtime per year (or 8.75 hours of overtime per week), HPS was in contravention of cl 34.1 of the 2013 Enterprise Agreement.

6. It is not controversial that the new work roster required employees to work 455 hours of overtime per annum (although HPS submitted that the total overtime hours per annum employees were actually required to work were 402.5 hours, on the basis that employees were entitled to 6 weeks annual leave).

7. It is helpful to set out other relevant clauses of the 2013 Enterprise Agreement, namely:

• Clause 6.1 deals with types of employment and provides that full-time employees “are engaged for a maximum of thirty-five (35) ordinary hours per week averaged over the work cycle of the area concerned”.

• Clause 13.1 deals with ordinary hours of work, relevantly providing:

13.1 Ordinary Hours

(a) Ordinary hours of work for employees subject to this Agreement will be worked in accordance with defined...