Employer Can Roster Hours Without Dividing Ordinary Hours Evenly

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[RESPONDENT] v The [COMPANY] [2018] FCA 899 File number: WAD 362 of 2017

Judge: [NAME] J

Date of judgment: 14 June 2018

Catchwords: INDUSTRIAL LAW – determination of a separate question – construction of clause 21.1 of the [NAME] [NAME] 2010 – payment of ordinary hours and overtime in a [NAME] – where ordinary hours of work must average 35 hours per week – where hours are averaged over the [NAME] – whether the [NAME] requires ordinary hours to be divided evenly among the shifts in a [NAME] – whether proposed construction would give the words meaning they do not bear and effectively read words into the [NAME] – where words are given ordinary meaning – where the textual, historical and legislative context confirms the ordinary meaning – where the employer sets the [NAME] and may arrange ordinary hours of work and overtime in a [NAME] – separate question answered "no"

Legislation: Acts Interpretation Act 1901 ([NAME]) ss 15AA, 15AB, 46(1) Fair Work Act 2009 ([NAME]) ss 62, 63, 64, 134, 138, 139(1), 147, 156, 157(1), 157(3), 158, 160, Pt 2-2 Div 3 and Div 10 [NAME] [NAME] 1996 ([NAME]) (repealed) ss 226, 576A, 576J, 576L, Pt 10A Fair Work Bill 2008 ([NAME]) [NAME] [NAME] 2010 cll 3.1, 10, 15, 16, 17, 17.1, 17.2, 17.3, 17.4, 18, 19, 21, 21.1, 22, 23, 25, 26, 27, Pt 5, [NAME] and [NAME] [NAME] (Engineers) [NAME] 1990 cl 7 and cl 8 [NAME]) [NAME] 1997 [NAME] (Staff) [NAME] 2004 [NAME] 2010 [NAME] 2010 Cases cited: [NAME] v [COMPANY] (1995) 185 CLR 410; [1995] HCA 24 [NAME] v [COMPANY] PR916549, AIRC, 9 April 2002, [NAME] of Australia v [NAME] (2002) 125 FCR 9; [2002] FCAFC 193 [NAME] v CSR Limited [1996] 66 IR 182; [1996] IRCA 141

Date of hearing: 19 December 2017

Registry: Western Australia

Division: Fair Work Division

National Practice Area: Employment & [NAME]: Catchwords

Number of paragraphs: 134

Counsel for the Applicants: [redacted]

[NAME]: [COUNSEL]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

BETWEEN: [RESPONDENT], FOOD, METALS, [NAME], PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE [NAME]) [RESPONDENT]

AND: THE [COMPANY] [PHONE] Respondent

JUDGE: [NAME] J DATE OF ORDER: 14 June 2018

THE COURT ORDERS THAT:

1. The separate question be answered as follows: Question In circumstances where: (a) the [COMPANY] employs maintenance employees; (b) the [NAME] [NAME] 2010 applies to the employment of the maintenance employees; (c) the maintenance employees are rostered to work 14 shifts of 10 hours each over a 3-week [NAME], so that a total of 140 hours are worked in each 3-week [NAME] comprising 105 ordinary hours and 35 hours of overtime; and (d) the 14 shifts are rostered on the basis of 7 shifts of 10 hours followed by 4 days off, then 7 shifts of 10 hours followed by 3 days off, so that in each 3-week [NAME] work is performed on 10 weekdays, 2 Saturdays and 2 Sundays; does the [NAME] require [NAME] to [NAME] the employees' hours of work such that: (i) 7.5 hours per [NAME] on each of the 14 rostered shifts are worked and paid as ordinary hours (a total of 105 ordinary hours); and (ii) 2.5 hours on each of the 14 rostered shifts are worked and paid as overtime? Answer No. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

[NAME] J: 1 The applicants ask the Court to declare that The [COMPANY] [PHONE] is required, by the [NAME] [NAME] 2010, to [NAME] employees' hours of work such that: (1) 7.5 hours per [NAME] on each of the 14 rostered shifts are worked and paid as ordinary hours (a total of 105 ordinary hours); and (2) 2.5 hours on each of the 14 rostered shifts are worked and paid as overtime. 2 The applicants recognise that they will only succeed on this claim if the Court construes the [NAME] in the way they contend for. 3 The question of construction has arisen because [NAME] has chosen to [NAME] employees' hours of work such that: (1) 10 ordinary hours are rostered on each of the 10 weekday shifts; (2) 2.5 ordinary hours and 7.5 overtime hours are rostered on each of the Saturday shifts; and (3) 10 overtime hours are rostered on each of the two Sunday shifts; falling in the three-week [NAME]. 4 On 30 October 2017, Siopis J made orders agreed to by the parties that the following question be heard and determined as a separate question: In circumstances where: (a) the [COMPANY] ([NAME]) employs maintenance employees; (b) the [NAME] [NAME] 2010 ([NAME]) applies to the employment of the maintenance employees; (c) the maintenance employees are rostered to work 14 shifts of 10 hours each over a 3-week [NAME], so that a total of 140 hours are worked in each 3-week [NAME] comprising 105 ordinary hours and 35 hours of overtime; and (d) the 14 shifts are rostered on the basis of 7 shifts of 10 hours followed by 4 days off, then 7 shifts of 10 hours followed by 3 days off, so that in each 3-week [NAME] work is performed on 10 weekdays, 2 Saturdays and 2 Sundays; does the [NAME] require [NAME] to [NAME] the employees' hours of work such that: i. 7.5 hours per [NAME] on each of the 14 rostered shifts are worked and paid as ordinary hours (a total of 105 ordinary hours); and ii 2.5 hours on each of the 14 rostered shifts are worked and paid as overtime. 5 For the reasons which follow, I consider [NAME] is entitled to [NAME] on its chosen basis and the separate question should be answered "no".

Relevant clauses of the [NAME] 6 The following provisions of the [NAME] are relevant. 7 Clause 3.1 provides definitions of a number of terms which apply "unless the contrary intention appears", including: base rate of pay means the rate of pay payable to [NAME] for their ordinary hours of work, but not including any of the following: • loadings; • monetary allowances; • overtime or penalty rates; and • any other separately identifiable amounts … non-working day means any day on which [NAME] by virtue of the [NAME]'s [NAME] is never rostered to attend for rostered hours of work ordinary hours means the hours required to be worked by [NAME] for the payment of their [NAME] classification rate ordinary week's pay means the amount in the total payment column for the [NAME] classification rate in respect of 35 ordinary hours [NAME] means any arrangement of rostered hours worked by [NAME] [NAME] means the period over which a [NAME] repeats and [NAME]'s hours average 35 rostered day off or RDO each mean any day on which [NAME], by virtue of the [NAME]'s [NAME], is not rostered to attend for rostered hours of work and does not include non-working days rostered hours means ordinary hours of work and rostered overtime rostered overtime means reasonable additional hours which are required to be worked by [NAME] as an integral [NAME] of the [NAME]'s [NAME] seven day [NAME] [NAME] means [NAME], other than a six day [NAME] [NAME] who, over the [NAME], may be rostered to work shifts on any of the seven days of the week six day [NAME] [NAME] means [NAME] who, over a [NAME], is rostered to work shifts, the hours of which occur during any six consecutive 24 hour periods in a span of seven consecutive 24 hour periods. The [NAME] must include a non-working period of at least 24 consecutive hours at the same [NAME] each week. standard rate means the minimum weekly wage for a [NAME]––Induction Level 2 in Schedule A––[NAME] 8 Clause 10 of the [NAME] deals with types of employment of employees under the [NAME], as follows:

10. Types of employment 10.1 An employer may employ [NAME] in any classification included in this [NAME] in any of the following types of employment: (a) [NAME]-[NAME]; (b) [NAME]-[NAME]; or (c) in the case of classifications in Schedule B—Staff Employees, [NAME]. 10.2 [NAME]-[NAME] employment A [NAME] is [NAME] whose average ordinary hours of work will be 35 hours per week. 10.3 [NAME]-[NAME] employment (a) A [NAME]-[NAME] [NAME] is [NAME] who: (i) works less than 35 hours per week; (ii) has reasonably predictable hours of work; and (iii) receives, on a pro rata basis, equivalent pay and conditions to those of [NAME]-[NAME] employees who do the same kind of work. (b) At the [NAME] of engagement the employer and the [NAME]-[NAME] [NAME] will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the [NAME] will work and the actual starting and finishing times each day. (c) Any agreed variation to the regular pattern of work will be recorded in writing. (d) [NAME] worked in excess of the hours as mutually arranged will be overtime and paid for at the rates prescribed in clause 17—Overtime. (e) A [NAME]-[NAME] [NAME] will be paid per hour 1/35th of the weekly rate prescribed for the classification, group or level on which the [NAME] is engaged. 9 Clause 10.4 of the [NAME] provides for a [NAME] as being "one engaged and paid as such". The payment of a [NAME] is set out in cl 10.4(b) as "1/35th of the appropriate weekly rate, plus 25% instead of the leave entitlements under this [NAME], with a minimum four hours payment on each engagement". 10 Classifications referred to in cl 10.1 are provided for in cl 15 of the [NAME], which simply says that the classifications in which employees may be employed are set out in "the following schedules". There is then mention of [NAME] and [NAME] employees. 11 Clause 16 of the [NAME] is headed "Minimum wages and allowances". Clause 16.1 states "The wages and allowances which [NAME] is to be paid are specified in the following schedules". Again there is reference to [NAME] and [NAME] employees. 12 Clause 17 of the [NAME], dealing with the payment and calculation of overtime, provides:

17. Overtime 17.1 In calculating overtime, except for clause 17.7, each day is to be treated separately. 17.2 Payment for overtime (a) Subject to the exceptions in clause 17.2(b), all [NAME] worked in excess of or outside the ordinary hours of any [NAME] on the following days will be paid for at the following rates: Day of week Rate of pay Monday to Friday First 3 hours at [NAME] and a half After 3 hours at double [NAME] First 3 hours at [NAME] and a half After 3 hours at double [NAME] [NAME]

(b) [NAME] worked in excess of or outside the ordinary hours of any [NAME] by employees: (i) who are six day [NAME] employees or seven day [NAME] employees; (ii) who work a [NAME] which requires ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays; or (iii) who work a [NAME] which requires ordinary shifts on Saturday and Sunday where the [NAME] of the rostered hours on the Saturday or Sunday shifts fall between midnight Friday and midnight Sunday; will be paid for at the rate of double [NAME]. 17.3 Minimum payment for overtime on [NAME] called on to work overtime on a Saturday or Sunday (that is not continuous with work started on the previous day) will be paid for at least three hours at the appropriate rate. 17.4 Reasonable additional hours Subject to the [NAME], an employer may require [NAME] to work reasonable additional hours in addition to their rostered hours and be paid the applicable overtime rates. 17.5 Averaging overtime payments An employer and [NAME] employed in a classification in Schedule B—Staff Employees may agree to average overtime payments over a length of a defined period. … 13 Clause 17.7 of the [NAME] deals with the call-back of [NAME] to work and payment of overtime to that [NAME]. 14 Clause 17.9 of the [NAME], inserted as at 22 August 2016, permits an employer and [NAME] to agree to the [NAME] taking [NAME] off instead of being paid for overtime. 15 Clause 18 of the [NAME] is headed "Accident pay", and cl 19 "Allowances". Clause 19.1 provides that the allowances are set out in [NAME] and [NAME] to the [NAME]. For [NAME] employees, [NAME] cl A.8.2 provides various allowances. 16 Those paragraphs are then followed by Pt 5 of the [NAME], under the heading "Hours of Work and Related Matters" which then contains cl 21 and cl 22, which are pivotal to the construction issues raised:

21. Ordinary hours of work 21.1 The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the [NAME]. 21.2 All ordinary hours worked by [NAME] on the following days will be paid for at the following rates: Day of week Rate of pay Monday to [NAME] First 4 hours at [NAME] and a half After 4 hours at double [NAME] [NAME]

22. Shiftwork 22.1 Definitions (a) [NAME] means any [NAME], the ordinary hours of which finish after 6.00 pm and at or before midnight. (b) [NAME] [NAME] means any [NAME], the ordinary hours of which finish after midnight and at or before 8.00 am. (c) [NAME] is [NAME] who: (i) works [NAME] [NAME] only; or (ii) stays on [NAME] [NAME] for a longer period than four consecutive weeks; or (iii) works on a [NAME] that does not give at least one-third of the [NAME]'s working [NAME] off [NAME] [NAME] in each [NAME]. 22.2 Shiftwork rates Rates for shiftwork are payable as follows: Type of [NAME] [NAME] rates [NAME] [NAME] and rotating [NAME] shifts [NAME] (a) Ordinary hours (a) 115% of the ordinary [NAME] rate (b) Overtime hours 6 or 7 day [NAME] (b) Overtime penalty rate plus 15% of the ordinary [NAME] rate for [NAME] worked (c) All others (c) Overtime penalty rates [NAME] [NAME] [NAME] (a) Ordinary hours (a) 125% of the ordinary [NAME] rate (b) Overtime hours 6 or 7 day [NAME] (b) Overtime penalty rate plus 15% of the ordinary [NAME] rate for [NAME] worked (c) All others Overtime penalty rate

Type of [NAME] S [NAME] n … 17 Clause 23 deals with rostering in the following terms:

23. Rostering 23.1 Rostering of hours and length of shifts (a) The employer can determine the type of rosters to be worked. (b) The employer can determine the [NAME] length to be worked as long as the ordinary hours do not exceed 10. Shifts of more than 10 ordinary hours can only be implemented by [NAME] between the employer and the [NAME] or, in the case of a dispute, as resolved in accordance with clause 9—Dispute resolution. 23.2 [NAME] starting and finishing times The start and finish times of shifts up to 10 ordinary hours may be determined by the employer. Shifts in excess of 10 ordinary hours will be worked between the starting and finishing times that are agreed between the employer and the [NAME] or, in the case of a dispute, as resolved in accordance with the dispute resolution procedure. 23.3 Number and spread of shifts The number and spread of ordinary shifts may be varied by the employer and, in the case of dispute, the dispute resolution procedure applies. 18 Clause 25 deals with annual leave. Clause 25.2 sets out the entitlements to annual leave. Under cl 25.2(b), [NAME] who is a seven day [NAME] [NAME], amongst other things, is entitled annually to an additional "35 ordinary hours (one week) of annual leave". 19 Clause 25.3 sets out the accrual of annual leave for employees, other than [NAME] employees. It provides a rate for employees, who would be entitled to annual leave of 210 hours (six weeks) of accruing 4.0385 hours of annual leave for each completed week of employment. 20 Clause 25.5 [25.5 renumbered as 25.7 by PR597971 ppc 01Dec17] deals with the deduction of annual leave in the following terms: For each period of annual leave taken the ordinary hours of rostered shifts that would have been worked by [NAME] will be deducted from the [NAME]'s accrued annual leave entitlement. 21 Clause 25.7 [25.7 renumbered as 25.9 by PR597971 ppc 01Dec17] is about the payment of annual leave and provides: [NAME] taking annual leave must be paid either: (a) the [NAME]'s ordinary rate of pay plus a loading of 20% of that rate; or (b) the [NAME]'s rostered earnings for the period of annual leave, which includes all rostered overtime and rostered public holidays (paid at double [NAME]), but does not include [NAME] allowances, other than for seven day [NAME] employees; whichever is the greater. 22 I note here, in passing, that the phrase "ordinary rate of pay" in cl 25.7 is not defined in the [NAME]. 23 Clause 26 of the [NAME] is about personal/carer's leave. Clause 26.2 provides that a [NAME] is entitled to 105 ordinary hours of personal/carer's leave (inclusive of the [NAME]'s [NAME] ([NAME]) entitlement) on commencing employment and on each anniversary of commencement. The clause then states that personal leave not taken by [NAME] "must accumulate without limitation". 24 Clause 26.4 is about the deduction of personal leave. The clause provides that where the absence is for fewer than half of the ordinary hours component of the [NAME], no deduction is made. The clause then says, in all other cases, "the [NAME] ordinary hour's component of the [NAME] will be deducted for each absence". 25 Clause 27 of the [NAME] deals with public holidays. Clause 27.1 confirms that public holiday entitlements are provided for in Div 10 of the [NAME]. Clause 27.4 is as follows: (a) [NAME] who is required to work on a holiday is to be paid at the rate of double [NAME] for work performed during ordinary hours, in addition to the payment prescribed. (b) Work performed in excess of ordinary hours on a holiday is to be paid at the rate of treble [NAME]. 26 Clause 27.6 is about employees who work Monday to Friday shifts of up to 8.5 ordinary hours. The clause specifies that such [NAME] cannot, as an integral [NAME] of their [NAME], be rostered for ordinary hours on public holidays. The clause says that such employees may, however, in exceptional circumstances, be required to work on public holidays to meet operational needs. 27 That is the final clause of the [NAME]. Schedules A - H are then attached to the [NAME]. The only schedules that are presently relevant are [NAME] and [NAME]. 28 Schedule A is entitled "[NAME]". Schedule B is entitled "Staff Employees". 29 Clause A.1.1 of [NAME] states: "The classification structure in this [NAME] determines the minimum weekly wages payable to employees whose employment is subject to this [NAME]". Schedule A then contains definitions of the different classifications of employees and provides for the requirements necessary for "advancement" to the next classification. Clause A.4 is headed "Minimum Rates". At material times, it provided as follows: A.4 Minimum Rates Classification Basic weekly 35 hour rate $ [NAME] 1 762.80 [NAME] 2 777.50 [NAME] 777.50 [NAME] 831.20 [NAME] 871.30 [NAME] 960.90

30 It may be noted in passing that, although the second column is headed "Basic weekly 35 hour rate", what is contained in the column is not a "rate" but is an "amount" payable for working a 35 hour week. This "style" of drafting is not unusual in industrial awards.

Outline of applicants' contructional argument 31 By reference to cl 21.1 of the [NAME], the applicants emphasise the emboldened words: The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the [NAME]. 32 The applicants contend this means that the 35 ordinary hours per week from the 105 ordinary hours of a three panel, three-week [NAME], must be averaged so that a proportion of the ordinary hours is allocated to each one of the 14 shifts in the [NAME], and the rostered hours on each [NAME] will be comprised of both an amount of ordinary hours and rostered overtime. 33 On their approach, the applicants say that the words "will be an average of 35 hours per week" and "will be averaged" mean that [NAME]'s ordinary hours must be divided evenly among each of the shifts in a [NAME] so that where 105 ordinary hours are worked over a three-week [NAME] containing 14 shifts, 7.5 ordinary hours must be worked on each one of the 14 shifts, with the balance of the [NAME] worked on each [NAME] being overtime. 34 In broad terms, the applicants submit that the [NAME] entitles [NAME] to determine the type of [NAME] and set a [NAME] length of up to 10 ordinary hours, as long as it does not exceed 10 ordinary hours. Importantly, however, they say that entitlement is limited because of the requirement to have only 35 ordinary hours over a three-week cycle. This, they say, puts an "implicit brake" on the power of [NAME] to determine shifts, [NAME] lengths and whether the shifts worked are to be comprised of ordinary hours. 35 As a consequence, the applicants also say that the working of 10 hours for each of 14 shifts over 21 days, so that the [NAME] is required to work in excess of the 38 hour week generally prescribed for under the Fair Work Act 2009 ([NAME]) ([NAME]), means that each hour worked per [NAME] that leads to the number of hours exceeding 35, on average, over the [NAME], must be paid as overtime.

Outline of [NAME] constructional argument 36 [NAME] submits that: Clause 23 of the [NAME] expressly allows it to determine the type of rosters to be worked, to [NAME] shifts of up to 10 ordinary hours, to determine start and finish times and to vary the number and spread of ordinary shifts, subject only to the requirement in clause 21.1 that ordinary hours average 35 per week over the [NAME]. The words "will be an average of 35 hours per week" and "will be averaged over the [NAME]" are intended to allow the number of ordinary hours in any week to be more or less than 35, provided the number of ordinary hours per week averaged over the [NAME], is 35, that is, provided the total number of ordinary hours in the [NAME] divided by the number of weeks in the [NAME] is 35. They are not intended and do not require ordinary hours to be divided equally across each of the shifts in a [NAME]. [NAME] contends this appears both from the ordinary meaning of the words and from their textual, historical and legislative context. To the extent the applicants base their construction on cl 21.1 of the [NAME], they are attempting to give the words a meaning which they do not bear and, in effect, to read words into the [NAME]. There is no requirement in the [NAME], implicit or express, for [NAME] to [NAME] employees for only 7.5 ordinary hours on each [NAME] and to [NAME] ordinary hours on each [NAME] in the [NAME]. That is contrary to the express stipulation in the [NAME] that the employer may determine the type of rosters to be worked, may determine [NAME] lengths of up to 10 ordinary hours, may determine start and finish times, and may vary the number and spread of ordinary shifts.

Consideration 37 In my view, the construction of the [NAME] for which [NAME] contends is the correct, or at least the preferable, one. 38 Each of the parties addresses the general principles that should be borne in mind when a court is asked to construe an industrial instrument, such as the [NAME] in this case. 39 The applicants say the [NAME] must not be interpreted in a vacuum, divorced from industrial realities. 40 The applicants also submit that the Court should note that the making of a modern [NAME], such as the [NAME] here and its provisions relating to overtime payments, relevantly occurs in the context of the requirements of the [NAME] concerning overtime. 41 The applicants submit that case law and the terms of the [NAME] recognise that the payment of work done outside of ordinary hours worked, as [NAME] of a work/wages bargain, constitutes "overtime". 42 The applicants say that the [NAME] was made by the then [NAME] Commission (AIRC) sitting as a seven member [NAME], and published on 19 December 2008 with the title "[NAME]", pursuant to Pt 10A of the former [NAME] [NAME] 1996 ([NAME]). 43 The applicants cite [154] and [155] from the [NAME]'s determination. 44 The applicants also note that the first 122 modern awards commenced on 1 January 2010, coinciding with the introduction of the national [NAME] [NAME] system brought into effect under the umbrella of the [NAME]. Modern awards, together with 10 minimum [NAME], under the [NAME], made up the minimum safety net for national system employees. 45 The applicants note that modern awards are provided for by s 134 of the [NAME]. The matters [NAME] by them include that specified in s 134(1)(da), namely: the need to provide additional remuneration for: (i) employees working overtime; or (ii) employees working unsocial, irregular or unpredictable hours; or (iii) employees working on weekends or public holidays; or (iv) employees working shifts; and .... 46 Additionally, the applicants note s 134(1)(f) provides for the object of the "likely impact of any exercise of modern [NAME] powers on business, including on productivity, employment costs and the regulatory burden ...". 47 The applicants also draw attention to s 138: A modern [NAME] may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective. 48 The applicants also note that under s 139(1) a modern [NAME] may include terms about overtime rates. 49 The applicants note that Ch 2 Pt 2 of the [NAME] deals with the [NAME]. Division 3 sets out maximum weekly hours. In s 62, the [NAME] provides that an employer must not request or require [NAME] to work more than 38 hours for a [NAME] "unless the additional hours are reasonable". Section 62(3) sets out criteria for determining whether additional hours are reasonable or unreasonable, and matters which must be taken into account in that assessment. Of the 10 items cited, s 62(3)(d) refers to "whether the [NAME] is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours". Section 62(3)(g) is "the usual patterns of work in the industry, or the [NAME] of an industry for which the [NAME] works". 50 The applicants note that s 63 of the [NAME] states that modern awards and [NAME] agreements can provide for "averaging" of hours of work. Section 63(1) provides that a modern [NAME] may, amongst other things, include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed 38 hours for a [NAME]. However, s 63(2) provides that the terms of a modern [NAME] or [NAME] [NAME] may provide for average weekly hours that exceed the hours referred to in s 63(1) if the excess hours are reasonable for the purposes of s 62(1). Under s 63(2) there is a note which reads as follows: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern [NAME] or [NAME] [NAME] (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)). 51 The applicants also draw attention to s 147 of the [NAME] which provides that: A modern [NAME] must include terms specifying, or providing for the determination of, the ordinary hours of work for each classification of [NAME] covered by the [NAME] and each type of employment permitted by the [NAME]. Note: [NAME]'s ordinary hours of work are significant in determining the [NAME]'s entitlements under the [NAME]. 52 As a matter of history, the applicants note that when the [NAME] first came into operation, maintenance employees' employment at [NAME] was governed by [NAME]-based agreements, not the [NAME]. That situation continued until the decision to terminate the pre-existing 2012 [NAME] came into effect, from 14 August 2016. Until then, the [NAME] was only indirectly relevant to maintenance employees in setting the benchmark for the "better off overall test" to apply to proposed [NAME] bargaining agreements under the [NAME]. 53 The applicants note that prior to the commencement of the [NAME], maintenance employees at [NAME] were covered by the [NAME] (Engineers) [NAME] 1990 (1990 [NAME]). The clauses of the 1990 [NAME] that dealt with hours of work and overtime were cl 7 and cl 8, as follows:

7. HOURS (1) As at the date this [NAME] came into force the hours of work, work rosters and conditions pertaining thereto applying to employees under this [NAME], shall remain in force until varied by [NAME] in accordance with or permitted by the provisions of this [NAME], or by arbitration. (2) Except as otherwise provided under this Clause, the ordinary hours of work under this [NAME] shall be an average of 35 per week to be worked 7 hours per day, Monday to Friday. (3) Notwithstanding the provisions of subclauses (1) and (2) of this clause, and Clause 9. - Shiftwork, and excluding only Christmas Day, Anzac Day and Good Friday by [NAME] between the Employer and the [NAME] ordinary working hours, working days and [NAME] rosters may be negotiated to reflect any mutually acceptable working arrangement. (4) [NAME] not exceeding a half hour to be taken at a [NAME] mutually agreed between the employees and the Manager shall form [NAME] of the ordinary rostered hours of work. Where shifts of 4 hours or less are worked there shall be no entitlement to a crib.

8. OVERTIME (1) [NAME] worked in excess of, or in the case of [NAME] in excess of or outside the ordinary working hours prescribed by this [NAME] shall be paid for at the rate of [NAME] and one-half for the first three hours and double [NAME] thereafter. [NAME] will not refuse unreasonably to work reasonable overtime when required by the employer after being advised of the nature of the overtime. 54 The [NAME] then commenced on 1 January 2010. 55 [NAME], like the applicants, accepts that the principles of construing Awards are mostly settled. It submits, however, that case law about the meaning of "overtime" should not be imported into the [NAME] and is apt to mislead; and primacy should be given to the text, construing it in textual, historical and legislative contexts. 56 [NAME] questions the extent to which assistance may be gained from the perceived objects of the [NAME], the [NAME] and relevant legislation. 57 [NAME] submits that the Acts Interpretation Act 1901 ([NAME]) applies to the interpretation of a modern [NAME], including the [NAME] here, noting that the modern [NAME] is not a legislative instrument or a notifiable instrument: s 46(1)(a) of the Acts Interpretation Act. 58 [NAME] notes s 46(1)(a), (b) and (c) of the Acts Interpretation Act provide: (1) If a provision confers on a person (the authority) the power to make an instrument other than a legislative instrument, notifiable instrument or a rule of court, then: (a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and (b) expressions used in any instrument so made have the same meaning as in the Act or instrument, as in force from [NAME] to [NAME], that authorises the making of the instrument in which the expressions are used; and (c) any instrument so made is to be read and construed subject to the enabling legislation as in force from [NAME] to [NAME], and so as not to exceed the power of the authority. 59 While accepting that s 15AA of the Acts Interpretation Act, which [NAME] submits does apply to the [NAME]'s construction, requires a construction or interpretation of words and phrases that promote the objects of legislation, [NAME] says that the objects of the former [NAME] [NAME] and the [NAME] are intended to strike a balance between competing interests and even the phrase identified by the applicants, "fair minimum safety net", contains competing objectives. Similarly, [NAME] submits, industrial awards also reflect a compromise between competing interests and should not be construed as being wholly for the benefit of one side or the other. In this regard, it refers to [NAME] v [COMPANY] (1995) 185 CLR 410 at 426; [1995] HCA 24 (Brennan CJ, Dawson and Toohey JJ); Commonwealth Bank of Australia v [NAME] (2002) 125 FCR 9 at [30]; [2002] FCAFC 193 ([NAME], [NAME] and [NAME] JJ). 60 While the [NAME] here, [NAME] points out, was not strictly a consent [NAME], the [NAME] of its provisions were agreed by the parties and it was also made having regard to the competing objects of the then [NAME] [NAME], including s 576A. 61 Thus, [NAME] accepts that s 15AA of the Acts Interpretation Act does require an interpretation that would best achieve the purpose or objects of the [NAME] to be preferred, and s 15AB allows consideration to be given to extrinsic material to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, taking into account its context, or to determine the meaning of a provision when the provision is ambiguous or obscure. 62 [NAME] seeks to add the following historical and legislative context in which the [NAME] was made, to that mentioned above and relied upon by the applicants. 63 It notes that s 576A of the [NAME] [NAME] set out the objects of Pt 10A under which modern awards could be made, to the following effect: (1) The object of this [NAME] is to provide for the Commission to make modern awards in accordance with an [NAME] modernisation request. (2) Modern awards: (a) must be simple to understand and easy to apply, and must reduce the regulatory burden on business; and (b) together with any legislated employment standards, must provide a fair minimum safety net of enforceable terms and conditions of employment for employees; and (c) must be economically sustainable and promote flexible modern work practices and the efficient and productive performance of work; and (d) must be in a form that is appropriate for a fair and productive [NAME] [NAME] system that promotes collective [NAME] bargaining but does not provide for statutory individual employment agreements; and (e) must result in a certain, stable and sustainable modern [NAME] system for Australia. 64 [NAME] says that of present relevance is that the objects of modern awards should be "simple to understand and easy to apply", "provide a fair minimum safety net", and "promote flexible modern work practices and the efficient and productive performance of work". 65 It notes that s 576J(1) of the [NAME] [NAME] provided that a modern [NAME] could include terms about, amongst other things: (c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours; (d) overtime rates; 66 [NAME] notes that relevantly s 576J(2) provided: A modern [NAME] may also include terms about any other matter specified in the [NAME] modernisation request to which the [NAME] relates. 67 [NAME] also notes that s 576L provided: A modern [NAME] may include terms about the matters referred to in subsection 576J(1) or (2) or section 576K only to the extent that the terms provide a fair minimum safety net. 68 [NAME] then records the sequence by which the [NAME] came to be made: On 28 March 2008, the [NAME] issued an [NAME] modernisation request. The request began by setting out the objects in s 576A(2) of the [NAME] [NAME]. In its decision to make the [NAME] (and 16 other priority modern awards) on 19 December 2008, the AIRC referred to the terms of the request and s 576A(2), which it said "specifie[d] important characteristics of modern awards". The request said (at [5]) that "modern awards may also include provisions relating to the proposed [NAME] (proposed [NAME])" and (at [26]) that "the proposed [NAME] [would] be finalised prior to 30 June 2008 and provided to the Commission for the purpose of conducting the [NAME] modernisation process". On 16 June 2008, the Minister wrote to the [NAME] of the AIRC issuing a variation to the request (as well as a consolidated version) and providing what was described as a "final version" of the [NAME]. The version of the [NAME] released on 16 June 2008, included the following s 12(6): (6) A modern [NAME] may include provisions for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed: (a) for a [NAME]—38 hours; or (b) for [NAME] other than a [NAME]—the lesser of: (i) 38 hours; and (ii) the [NAME]'s ordinary hours of work in a week. Note: Hours in excess of the hours referred to in paragraph (6)(a) or (b) that are worked in a week in accordance with averaging provisions in a modern [NAME] will be treated as additional hours for the purpose of this section, but the averaging provisions will be relevant in determining whether the additional hours are reasonable (see paragraph (4)(i)). [Emphasis added.] The amended request included new paragraph 33 which stated, among other things:

33. The [NAME] provides that particular types of provisions are able to be included in modern awards even though they might otherwise be inconsistent with the [NAME]. The Commission may include provisions dealing with these issues in a modern [NAME]. The [NAME] allows, but does not require, modern awards to deal with, among other things: … • averaging of hours of work; 69 [NAME] observes that when the [NAME] was ultimately made on 19 December 2008, the [NAME] in [2008] [NAME] said it was appropriate to make modern awards by reference to the "final version" of the [NAME] provided by the Minister. 70 The day before, on 18 December 2008, the Minister signed a further variation to the request. Paragraph 33 was amended to read, relevantly:

33. The [NAME] provides that particular types of provisions are able to be included in modern awards even though they might otherwise be inconsistent with the [NAME]. The Commission may include provisions dealing with these issues in a modern [NAME]. The [NAME] allows, but does not require, modern awards to deal with, among other things include terms that: … • enable the averaging of hours of work over a specified period; [Tracking added by [NAME].] 71 Those provisions of the [NAME] are now found in Pt 2-2 of the [NAME]. They include in Div 3 – Maximum weekly hours, ss 62-64. 72 Section 62(1), which (like the Division) is titled "Maximum weekly hours", provides that an employer must not request or require a [NAME] to work more than 38 hours "in a week" unless the additional hours are reasonable. 73 Section 62(3) sets out factors to be taken into account in determining whether additional hours are reasonable. They include: (i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern [NAME] or [NAME] [NAME] that applies to the [NAME], or with an averaging arrangement agreed to by the employer and [NAME] under section 64; 74 Section 63 states: Modern awards and [NAME] agreements may provide for averaging of hours of work (1) A modern [NAME] or [NAME] [NAME] may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed: (a) for a [NAME] —38 hours; or (b) for [NAME] who is not a [NAME] —the lesser of: (i) 38 hours; and (ii) the [NAME]'s ordinary hours of work in a week. (2) The terms of a modern [NAME] or [NAME] [NAME] may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1). Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern [NAME] or [NAME] [NAME] (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)). 75 [NAME] observes that s 63(1) and the note are in materially the same terms as s 12(6) and the note in the "final version" of the [NAME] issued on 16 June 2008 (save that s 63(1) also provides for averaging terms to be included in [NAME] agreements). 76 Section 64 of the [NAME] states: Averaging of hours of work for [NAME]/[NAME] [NAME] employees (1) An employer and an [NAME] may agree in writing to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks are averaged. The average weekly hours over the specified period must not exceed: (a) for a [NAME] —38 hours; or (b) for [NAME] who is not a [NAME] — the lesser of: (i) 38 hours; and (ii) the [NAME]'s ordinary hours of work in a week. (2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1). Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)). 77 [NAME] submits and I accept that from this legislative history it can be seen that the [NAME] in Div 3 of Pt 2-2 of the [NAME] is concerned with the maximum weekly hours of work and the averaging of weekly hours of work, with the average weekly hours over a specified period not to exceed 38 for a [NAME]. Section 63 does not limit the period over which hours may be averaged under an [NAME]. Section 63(1) requires the [NAME] to specify that period. 78 By contrast, s 64 provides that hours may be averaged over a period of up to 26 weeks. I also accept the [NAME] do not contain provisions specifying, limiting or otherwise regulating daily hours of work. 79 The purpose and effect of s 63 of the [NAME] may also be seen from the Explanatory Memorandum to the Fair Work Bill 2008 ([NAME]) introduced into the House of Representatives on 25 November 2008: 252. Clause 63 permits a modern [NAME] or [NAME] [NAME] to include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed 38 hours (for a [NAME]), or the lesser of 38 hours or the [NAME]'s ordinary hours of work in a week (for [NAME] other than a [NAME]). Hours worked in a week in excess of this number of hours are additional hours and must not be unreasonable. The fact that additional hours are worked in accordance with an averaging arrangement does not necessarily mean that those hours are reasonable. Rather, the averaging arrangement is one factor to be considered in the particular circumstances. 253. The clause does not restrict the period over which the hours can be averaged under a modern [NAME] or [NAME] [NAME]. 80 The Explanatory Memorandum (immediately after [257]) gave the following illustrative example: Averaging arrangements and reasonable additional hours The modern [NAME] regulating [NAME] employment includes averaging arrangements in relation to hours of work so that [NAME]-[NAME] employees would ordinarily work 152 hours over four weeks (an average of 38 hours per week). Over a four week period, [NAME] work pattern was as follows: Week 1 – worked 21 hours Week 2 – worked 60 hours Week 3 – worked 38 hours Week 4 – worked 33 hours The averaging arrangement would be relevant in determining the reasonableness of the additional 22 hours that [NAME] was required to work in week 2. Other factors such as [NAME] "family responsibilities", his health and safety and the notice he was given of having to work those "additional 22 hours" would also be relevant. 81 I consider that cl 21.1 of the [NAME] is an averaging term within the meaning of s 63 of the [NAME] and should be construed accordingly. 82 Further, by reason of s 46(1)(b) of the Acts Interpretation Act, the words "average" and "averaged" in cl 21.1 of the [NAME] should have the same meaning as the word "average" and the cognate word "averaging" in s 63 of the [NAME]. 83 Alternatively, the words "average" and "averaged" in cl 21.1 of the [NAME] should have the same meaning as the word "average" and the cognate word "averaging" in s 12(6) of the version of the [NAME] which the Minister provided to the AIRC on 16 June 2008 (and which is relevantly in the same terms as s 63(1) of the [NAME]) and by reference to which the AIRC made the modern awards. 84 I consider the purpose of the averaging provisions provided for in the [NAME] is to allow more or less than the maximum number of weekly hours to be worked in any given week, provided the average number of weekly hours over a specified period does not exceed the maximum number of weekly hours. 85 [NAME] observes, and I accept, that nowhere in the extrinsic materials pertaining to the [NAME] is there any suggestion that the averaging provisions have any other purpose or are intended to regulate daily hours of work or [NAME] lengths. 86 As [NAME] observes, it may also be noted that the averaging provisions in the [NAME] followed averaging provisions in s 226 of the former [NAME] [NAME]. Under s 226 of the [NAME] [NAME] [NAME] could not be required or requested by an employer to work more than 38 hours per week, or, by [NAME], more than an average of 38 hours per week "to be averaged over a specified averaging period that is no longer than 12 months", and reasonable additional hours. Again, the purpose of the provision was to limit maximum weekly hours of work and to allow for those hours to be averaged over a specified period. 87 This legislative background is relevant to the construction of the relevant provisions of the [NAME]. 88 [NAME] also notes that, for the purposes of construing the [NAME], the [NAME] replaced a number of pre-reform awards and Notional Agreements Preserving State Awards (NAPSAs). In its written submissions, [NAME] sets out how each of those awards and NAPSAs provided for averaging of the ordinary weekly hours of work, albeit in different terms. 89 [NAME] submits that while each of the awards described the ordinary hours of work as an average of 35 hours per work, different or no averaging periods were prescribed. 90 I accept that this regulatory background is also relevant to the construction question and supports the construction I have adopted. 91 So far as the making of the [NAME] here was concerned, [NAME] notes that the major participants to the [NAME] substantially agreed on the terms of the draft [NAME]. On 31 July 2008, the [COMPANY] ([NAME]) submitted its draft [NAME] to the AIRC which, in cl 18.1.1, stated: The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the [NAME] unless another period is agreed between the employer and the individual [NAME]. [Emphasis added.] 92 In written submissions, also filed on 31 July 2008, the [NAME] said (at [4]) that in preparing the employer draft modern [NAME] the employer group had generally used as a basis for the modern [NAME] the [NAME]) [NAME] 1997 (P&E [NAME]) and the [NAME] (Staff) [NAME] 2004 (Staff [NAME]). 93 In relation to what would become cl 21.1 of the [NAME], the [NAME] said (on p 9): Draft clause 18.1 deals with averaging periods for ordinary hours. It adopts and applies the current provisions of the Staff [NAME] (clause 21.1.3) to all employees so that current [NAME] flexibilities are maintained and extended where it is appropriate to do so. No reduction of [NAME] entitlements arises consequent upon the implementation of the employer's proposal. [NAME] 12(6) provides that modern awards may include provisions for averaging of hours over a specified period. 94 The [NAME] submissions included further commentary on the hours, rostering and overtime provisions in the proposed [NAME]. As [NAME] submits, it does not appear that the [NAME] ([NAME]) (as it then was) demurred from these submissions, presumably because the clauses were largely agreed. 95 On 1 August 2008, the [NAME] submitted its draft [NAME]. Clause 17.1.1 of the [NAME] draft stated: The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the [NAME]. 96 [NAME] submits that the only difference between the parties on this clause was the additional words which the [NAME] sought to include and which are emphasised in [91] above. 97 In its written submissions, dated 1 August 2008, the [NAME] said (at pp 3-4): The major industry [NAME] in the [NAME] is The [NAME]) [NAME] 1997 (The P&E [NAME]). The parties have taken the approach that the P&E [NAME] forms the basis of the modern industry [NAME]. 98 The [NAME]'s submissions traced the background of the P&E [NAME] noting that it had been simplified following lengthy contested proceedings commencing in 1999 and finishing in 2001. Copies of the relevant decisions were annexed to the [NAME]'s submissions and included (as Annexure 9) print PR931940, a decision of [NAME] given on 8 October 2003. In that decision [NAME] said: [134] . . . there will only be two types of 'hours' that can be worked. They are 'ordinary' hours and 'overtime' hours. Whilst the [NAME] may provide various penalties payable for work on different days, etc. (eg Saturdays and Sundays) none of that is relevant to the determination of whether hours are 'ordinary' or 'overtime'. [135] The [NAME] hours clause will ultimately require that the ordinary hours of work shall average 35 per week. That is for each week in a [NAME] there must be included in the [NAME] 35 ordinary hours. There is no requirement for each individual week in the [NAME] to contain 35 ordinary hours unless of course the [NAME] is one week. A [NAME] with a two, three, four or seven week cycle must contain somewhere in the [NAME] 70, 105, 140 or 245 'ordinary' hours respectively. Such ordinary hours can fall anywhere in the [NAME] (ie there need not be 35 ordinary hours in each individual week of the [NAME]). It is the Commission's view that the ordinary hours in any [NAME] need to be identified by the employer (or where such rosters are by [NAME] the ordinary hours need to be identified by [NAME]). [Emphasis added.] 99 I accept that it appears from this extract that it was the intention of the AIRC in simplifying the predecessor P&E [NAME], that ordinary hours could fall anywhere in the [NAME] and that, save where rosters were to be determined by [NAME], the employer would identify the ordinary hours in the [NAME]. As stated by the [NAME], the parties used the P&E [NAME] as the basis for the proposed [NAME]. 100 On 8 August 2008, the AIRC (by [NAME] [NAME]) heard oral submissions in relation to the proposed [NAME]. The [NAME] was represented by Ms [NAME], and the [NAME] by Mr [NAME]. On the question of the averaging clause, there was the following exchange: PN465 [NAME]: Yes. Now that takes us to 18 or 18 of the employer, 17 of the union. PN466 [NAME]: Correct. There we think consistent with a modern [NAME] that is facilitative. It ought to be open to [NAME] to agree on an average if that is more than the cycle of that particular [NAME] or indeed other than the cycle of a particular [NAME]. PN467 [NAME]: [NAME] you say they should have to bargain for that? PN468 [NAME]: Well we're saying that the [NAME] might be 12 weeks in length Your Honour and we're saying that that's sufficient [NAME] for an averaging of ordinary hours to ensure that there's no disadvantage to [NAME]. PN469 [NAME]: That takes us to - - - PN470 [NAME]: Also to say Your Honour that to see that it may be also a back doorway in to annualised salary arrangements you could average the ordinary hours over 12 months for example and - - - PN471 [NAME]: The next one is our 18.4 . . . 101 When the AIRC issued its exposure draft [NAME] on 12 September 2008, cl 17.1 was in the following terms (as proposed by the [NAME] and as now appears in the [NAME]): The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the [NAME]. 102 In its submissions dated 10 October 2008, responding to the exposure draft [NAME], the [NAME] said: Clause 17 – Hours of Work 26. The employer group notes that the [NAME] has so far chosen not to include in the clause these words – … unless another period is agreed between the employer and individual [NAME] as sought by the employers.

27. The employer group notes, however, that clause 7.1 will cover this matter. It would be helpful if the [NAME] were able to make a confirmatory comment to this effect. 103 When the AIRC issued its decision on 17 December 2008 making the [NAME] (and the other priority modern awards), the AIRC said in relation to the averaging clause: Ordinary hours of work [163] We have not included a note sought by the [NAME] to the effect that the [NAME] flexibility clause would authorise the employer and an individual [NAME] to agree to averaging of hours over a period other than the relevant [NAME]. Such a note is unnecessary. On any view an [NAME] of that sort can be made under the [NAME] flexibility clause. 104 When the AIRC made the [NAME] in December 2008, the averaging clause was cl 20.1. It is now cl 21.1. 105 [NAME] notes that in the same decision by which the AIRC determined the averaging clause in the [NAME], it made similar averaging clauses in two other modern awards. 106 In my view, it is clear from all the above that: (1) cl 21.1 of the [NAME] is an averaging clause as allowed for in the [NAME]; and (4) the words "Those hours will be averaged over the [NAME]" were included to define the period over which hours may be averaged – in circumstances where the [NAME] did not prescribe the period but allowed for awards to include terms providing for the averaging of hours "over a specified period". The awards and NAPSAs being replaced prescribed different averaging periods or no period at all and the employers were seeking to allow for averaging over a longer or different period. 107 In my view, there is little or no support anywhere in the extrinsic materials for the proposition that the words, "Those hours will be averaged over the [NAME]" were also intended to require ordinary hours to be apportioned equally across each [NAME] in the [NAME]. 108 As [NAME] submits, the imposition, by a side wind, of a requirement that the same number of ordinary hours be worked on each [NAME] of the [NAME] would introduce extraordinary rigidity into an [NAME] system which has as one of its objects the "promot[ion of] flexible modern work practices and the efficient and productive performance of work", the more so when it is considered that averaging provisions in other awards provide for hours to be averaged over significantly longer periods – for example 16 weeks in the case of the [NAME] 2010 and 26 weeks in the case of the [NAME] 2010 which were made by the AIRC at the same [NAME]. Such provisions were intended to allow, not curtail, flexibility. 109 The applicants' approach of spreading the ordinary hours across each [NAME] in a [NAME] would likely have the effect of preventing rosters from including standalone overtime shifts. Such shifts have been a feature of some types of [NAME] in the coal industry and it must be considered unlikely that the AIRC in making the [NAME] intended to preclude them. [NAME] v [COMPANY] PR916549, AIRC, 9 April 2002, [NAME]. 110 In my view, when one takes into account the [NAME] legislative history and sequence of statutory provisions under the former and present legislation pertaining to the making of modern awards and, in particular, the [NAME] in this case, the final submission made by [NAME], that when provisions of the [NAME] are read together and given their ordinary meaning, the [NAME] allows an employer to arrange the rostered hours of work and to [NAME] shifts of up to 10 ordinary hours, should be accepted. 111 In particular, there is nothing in the definitions of the expressions "[NAME]", "[NAME]", "rostered hours", "rostered overtime", "seven day [NAME] [NAME]", or "six day [NAME] [NAME]" in cl 3.1 of the [NAME], and set out above, to suggest a contrary construction. 112 Rather, those definitions support an inference that: (1) employees may be "rostered" to work shifts and may be "required" to work reasonable overtime as [NAME] of their [NAME]; and (2) a [NAME] is an "arrangement" of ordinary hours of work and rostered overtime; thus (3) it is the employer who sets the [NAME] and who, in doing so, may "arrange" the ordinary hours of work and overtime in a [NAME]. 113 As to cl 17.1, set out above, concerning overtime, I accept it is a common provision in industrial awards and means that overtime payments are to be calculated on the basis that each day stands alone. Thus, as [NAME] says, for example, in the case of the [NAME], if three hours' overtime are worked on a Monday and three hours' overtime are worked on a Tuesday, the first three hours on each day are paid at [NAME] and a half, that is, cl 17.2(a) (set out above) is to be read as prescribing payment at [NAME] and a half for the first three hours on each of Monday to Friday (rather than as prescribing payment at [NAME] and a half for the first three hours of overtime in the week and at double [NAME] for all hours after that). While the applicants, in their written submissions, say that [NAME] construction does not sit happily with cl 17.1 it is not clear to me that it does not. On the contrary, as [NAME] submits, to the extent that cl 17.1 has anything to say on the point, it does not sit comfortably with the applicants' approach which is to aggregate all the overtime in a [NAME] and allocate a portion of it to each [NAME]. [NAME] approach treats each [NAME] separately. 114 Paragraphs 17.2(a) and (b) effectively define overtime to mean "all [NAME] worked in excess of or outside the ordinary hours of any [NAME]" [Emphasis added.]. 115 Overtime is not defined by reference to the number of hours worked in a week or [NAME]. 116 The [NAME] does not, for example, define overtime to mean all [NAME] worked in excess of an average of 35 hours per week over the [NAME]. Nor does the [NAME] impose overtime payments based on the number of hours worked in a week or [NAME]. 117 Overtime payments are imposed by reference to whether the "[NAME] worked [is] in excess of or outside the ordinary hours of any [NAME]". The focus is on each [NAME]. 118 Clause 17.2 is also significant because it provides that overtime on a Saturday shall be paid at [NAME] and a half for the first three hours and double [NAME] thereafter and that overtime on a Sunday shall be paid at double [NAME]. 119 Clause 17.3 leaves no doubt that [NAME] may be required to work overtime on a Saturday or Sunday, including as a standalone [NAME]. It provides some additional protection for employees in that circumstance, by requiring payment for at least three hours, but otherwise it reinforces that such overtime is to be paid at the rates prescribed in the [NAME] (the appropriate rate). 120 It is clear from cl 17.2 and cl 17.3 that the AIRC in making the [NAME] made special provision for overtime worked on Saturdays and Sundays. I accept [NAME] submission that the AIRC must be taken to have regarded the rates prescribed as fair (fair having regard to the interests of both employers and employees). There is nothing anomalous or unfair about an employer rostering overtime on a Saturday or Sunday and paying those rates. 121 Returning to cl 21.1 (Ordinary hours of work), which provides: The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the [NAME]. 122 I accept [NAME] submission that, in light of the [NAME] context, the clause is not ambiguous. Ordinary hours are to average 35 per week over the [NAME] (which in this case is three weeks). That prescription is satisfied if 105 ordinary hours are worked over three weeks. There is no requirement for any particular number of ordinary hours, or for the same number of ordinary hours, to be worked each [NAME] or each week. Hours are to be averaged over the [NAME]. They are not required to be averaged over each week or [NAME] in the [NAME]. 123 The ordinary meaning of the text is consistent with the legislative and historical context discussed above. Those extrinsic materials confirm the ordinary meaning. Alternatively, if there is ambiguity, the extrinsic materials support [NAME] construction. 124 Employees may therefore be rostered to work reasonable additional hours as an integral [NAME] of their [NAME] (as per the definitions of "[NAME]", "rostered hours" and "rostered overtime") but may also be required to work reasonable additional hours in addition to their rostered hours (effectively, unrostered overtime), as provided for by cl 17.4. 125 Clause 23, in my view, indicates that the employer can determine the type of rosters to be worked (that is, the type of arrangement of ordinary hours and rostered overtime to be worked), the [NAME] length to be worked (as long as ordinary hours do not exceed 10), the start and finish times of shifts up to 10 ordinary hours, and may vary the number and spread of ordinary shifts. 126 [NAME] is therefore entitled to [NAME] shifts of 10 ordinary hours and to determine the number of ordinary shifts, provided the number of ordinary hours average 35 per week over the [NAME]. There is no requirement in the [NAME], implicit or express, for [NAME] to [NAME] employees for only 7.5 ordinary hours on each [NAME]. That is contrary to the express stipulation in the [NAME] that the employer may determine [NAME] lengths of up to 10 ordinary hours, including start and finish times, and may vary the number and spread of ordinary shifts. Nor is there any requirement in the [NAME], implicit or express, for [NAME] to [NAME] ordinary hours on each [NAME] in the [NAME]. There is no reason why [NAME] cannot [NAME] one or more overtime shifts as [NAME] of the [NAME]'s [NAME]. As mentioned, such shifts have been a feature of some types of [NAME] in the coal industry and it is unlikely that the AIRC in making the [NAME] intended to preclude them. 127 In my view, the words "will be an average of 35 hours per week" and "will be averaged over the [NAME]" in cl 21.1, are intended to allow the number of ordinary hours in any week to be more or less than 35, provided the number of ordinary hours per week averaged over the [NAME] is 35, that is, provided the total number of ordinary hours in the [NAME] divided by the number of weeks in the [NAME] is 35. That appears both from the ordinary meaning of the words and from their textual, historical and legislative context set out above. 128 I consider that to adopt the applicants' construction of the [NAME] would be to give the words in cl 21 a meaning they do not bear and, in effect, to read words into the [NAME] that are not to be found there. 129 There is, in the result, force in [NAME] contention that the applicants' real complaint in this proceeding is that it is not fair for [NAME] to [NAME] overtime on a Saturday or Sunday because the employees will receive less in total penalties than if those overtime hours were rostered on a weekday, and that the [NAME] should therefore somehow be read as not permitting that outcome. 130 As to that, I accept that the [NAME] is not to be construed as wholly for the benefit of employees or employers. The obligations which it imposes are various and intended to strike a balance between the interests of employees and employers. That was reflected in the objects in s 576A of the former [NAME] [NAME] under which the [NAME] was made and which required that modern awards "be simple to understand and easy to apply", "provide a fair minimum safety net" and "promote flexible modern work practices and the efficient and productive performance of work". It continues to be reflected in the "modern awards objective" in s 134 of the [NAME]. 131 Also, as [NAME] J said in the frequently quoted statement in [NAME] v CSR Limited [1996] 66 IR 182; [1996] IRCA 141: … the task remains one of interpreting a document produced by another or others. A court is not [NAME] to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the [NAME]. Deciding what an existing [NAME] means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an [NAME]. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. 132 The AIRC in making the modern [NAME], determined that work on Saturday and Sunday would be paid at no more than double [NAME] whether it was ordinary hours or overtime. [NAME] submits, and I accept, that the applicants should not be permitted to read into the [NAME] a restriction on an employer's ability to [NAME] overtime on a Saturday or Sunday simply because that would be more lucrative for employees. 133 Rather, if a party considers a modern [NAME] is not achieving the modern awards objective, then its remedy would appear to lie in the Fair Work Commission: see ss 157(1), 157(3), 158 and 160 of the [NAME]; also s 156.

Conclusion 134 The separate question should be answered "no". The [NAME] does not require [NAME] to [NAME] the employees' hours of work in the way contended for by the applicants. I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 14 June 2018