2025 WAIRC 00185
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00185



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
WEDNESDAY, 19 MARCH 2025



DELIVERED
:
WEDNESDAY, 19 MARCH 2025



FILE NO.
:
M 139 OF 2024



BETWEEN
:
ROBERT ARNOLD


CLAIMANT





AND





BENALE PTY LTD ATF THE FLETCHER UNIT TRUST T/A FLETCHER INTERNATIONAL WA


RESPONDENT

CatchWords : INDUSTRIAL LAW – claimed contravention of Fair Work Act 2009 (Cth) – small claims procedure – construction of Award – Meat Industry Award 2020 – weekend penalties – whether weekend penalties payable to shiftworker – no contravention – claim dismissed
Legislation : Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Instrument : Meat Industry Award 2020
Meat Industry Award 2010
Case(s) referred
to in reasons: : WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536
James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566
Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39
Result : Claim dismissed
Representation:
Claimant : Self-represented
Respondent : Mr D. Bates (agent)



REASONS FOR DECISION
1 The claimant, Mr Robert Arnold, has been employed by the respondent, Benale Pty Ltd which trades as Fletcher International WA for nearly 20 years.
2 Mr Arnold commenced this claim seeking payment of $89,064 as compensation for what he says is Fletcher International’s contraventions of the Meat Industry Award 2020 in the last six years of his employment. He has elected for the proceedings to be dealt with under the small claims procedure set out in s 548 of the Fair Work Act 2009 (Cth) (FWA).
3 There are two components to Mr Arnold’s claim. First, he claims payment of weekend penalty rates under clause 24.1 of the Award. He says he ought to have been paid an additional $86,192 over six years for weekend penalty rates that were not paid to him (Weekend Penalty Claim).
4 Second, Mr Arnold claims that he has been underpaid by $5.70 per hour because Fletcher International decreased, rather than increased, his base rate of pay in 2023. In the 58 weeks since then, he says he has been underpaid a total of $2,872.80 (Wage Underpayment Claim).
5 While Fletcher International accepts the Award applies to Mr Arnold, it denies it has contravened it. It says that Mr Arnold, as a shiftworker, is not entitled to the weekend penalty rates under clause 24.1. He is paid the relevant rate of pay for a shiftworker, which includes a shift loading, for all hours he works. In relation to the Wage Underpayment Claim, it says it has correctly calculated and paid annual increases to Mr Arnold’s rate of pay which includes a shift loading.
6 The key to determining the Weekend Penalty Claim is the correct construction of the Award. In particular, are weekend penalty rates payable to shiftworkers engaged in meat processing facilities, or are the shiftwork provisions and the weekend penalty rate provisions mutually exclusive?
7 The Wage Underpayment Claim turns on a question of fact, namely, what changed in relation to Mr Arnold’s pay following 1 July 2023?
8 At the conclusion of the hearing of Mr Arnold’s claims, I dismissed them. Mr Arnold failed to persuade me that the weekend penalty provisions of the Award applied to him, and he failed to establish as a matter of fact that his rate of pay was unlawfully reduced or that it was less than what he was legally entitled to receive. I indicated that I would publish my reasons for this decision. These are my reasons.
The Industrial Magistrates Court’s Jurisdiction
9 Under s 539 and s 540 of the FWA, an employee may apply to an eligible State or Territory court for orders in relation to a contravention of s 45 of the FWA, that is, the prohibition against contravening a term of a modern award, if the employee is affected by the contravention. Such application must be made within six years after the day the contravention occurred. Fair Work Act 2009 (Cth) (FWA) s 544.

10 The Industrial Magistrates Court of Western Australia (IMC) is ‘an eligible State or Territory court’. FWA s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.

11 The IMC may order that an employer pay an amount to an employee if the IMC is satisfied the employer was required to pay the amount under the FWA or a fair work instrument, and the employer has contravened a civil remedy provision by failing to pay the amount. FWA s 545(3).

12 Mr Arnold is an employee affected by the alleged contraventions of s 45 and the Award. The Award is a modern award under the FWA and is a ‘fair work instrument’. Section 45 is a civil penalty provision.
13 Mr Arnold, as the claimant in these proceedings, carries the burden of proving his claim on the balance of probabilities.
Background & Uncontentious Evidence
14 Most of the relevant background facts were outlined by Fletcher International’s Human Resources Manager, Matthew Nelson, in his evidence-in-chief. Mr Arnold told me that he agreed with Mr Nelson’s evidence about the following matters.
15 Fletcher International operates a meat processing plant in Narrikup, Western Australia. Its normal production operations occur over a single shift which commences early in the morning and finishes early in the afternoon. Outside of normal production there may be a second shift, or a second and third shift. Cleaners come in to clean at the conclusion of each shift.
16 Employees who work in production processes at the Narrikup plant are covered by an enterprise agreement made under s 185 of the FWA.
17 Outside the production operations, the plant’s gatehouse is staffed 24 hours a day, seven days a week. It is staffed over three shifts each day: a day shift which ends in the early afternoon, an afternoon shift which ends at 10.00 pm on week days and 9.00 pm on weekends, and a night shift which ends at 6.30 am.
18 Mr Arnold commenced employment with Fletcher International at the Narrikup plant on about 11 October 2006. According to Mr Arnold, he has worked in a variety of positions over the years, with different work patterns, including some day work.
19 Mr Arnold has worked on a permanent part-time basis for the duration of his employment.
20 Since late 2011 until 9 March 2024, Mr Arnold worked two shifts per week on the gatehouse:
a. From 9.00 pm Saturday to 6.30 am Sunday; and
b. From 9.00 pm Sunday to 5.00 am Monday.
21 From about 9 March 2024 Mr Arnold has worked only the Sunday night to Monday morning shift, with his usual Saturday shift being taken as personal leave.
22 Fletcher International has treated Mr Arnold as a Level 3 fixed night shift worker under the Award, and has applied the fixed night shift penalty rate of 130% to his rate of pay.
23 Fletcher International has not paid Mr Arnold additional weekend penalty rates.
24 The rates of pay which were paid to Mr Arnold are set out in the following table:
Time Period
Actual Hourly Rate Paid to Mr Arnold
1 July 2018 – 30 June 2019
$27.20
1 July 2019 – 31 October 2020
(a) From 1 July 2019 – 19 November 2019: $27.20
(b) From 20 November 2019 – 31 October 2020: $28.00
1 November 2020 – 30 June 2022
(a) From 1 November 2020 – 9 November 2020: $28.00
(b) From 10 November 2020 – 30 June 2021: $28.35
1 July 2021 – 30 June 2022
(a) From 1 July 2021 – 14 December 2021: $28.35
(b) From 15 December 2021 – 30 June 2022: $29.35
1 July 2022 – 30 June 2023
$29.35
1 July 2023 – 30 June 2024
$30.74
1 July 2024 – Present
$31.90
25 Mr Arnold’s pay was increased with effect from 1 July 2023 from a total of $29.35 per hour to a total of $30.74 per hour.
26 At about the same time, Fletcher International changed the format of the payslips it issued to Mr Arnold to separate the total hourly rate into two components, one of which was described as ‘Normal’ and the other as ‘Fixed Night Shift’. The ‘Fixed Night Shift’ component was equivalent to 30% of the ‘Normal’ component.
27 On 25 August 2023 Fletchers International issued a letter to Mr Arnold which said:
As you would have seen from your recent payslips your hourly rate now shows as a base rate plus 30% permanent afternoon shift separately.
In the past your rate (most recently $29.35) had the shift penalty included.
Your total remuneration from July 2023 is $30.74 per hour. This comprises of $23.65 base rate plus $7.09 shift loading per hour. Exhibit R1 Annexure Y.

Did Mr Arnold work fixed night shifts?
28 It is implicit in Mr Arnold’s claim that he considers himself to be a shiftworker. His claim refers to him requesting to be paid ‘fixed night shift loading’. During a directions hearing held in these proceedings on 12 March 2025 he told me that he agreed that he was a fixed night shift worker. And during the hearing, he tendered into evidence an email dated 4 December 2023 from a Fair Work Inspector which said:
The FWO also agrees Mr Arnold is employed as a Fixed Night Shift worker as reflected in clause 23.2 of the [Award]. Exhibit C12.

29 Mr Arnold said during the hearing that he agreed with that conclusion.
30 Clause 23.2 of the Award defines what is ‘shiftwork’:
Shiftwork definitions
For the purpose of clause 23:
afternoon shift means any shift commencing at or after 2.00 pm and finishing at or before midnight.
day shift in a three-shift system means any shift finishing at or after 2.00 pm and at or before 4.00 pm.
fixed night shift means a night shift on which an employee is not allowed to rotate so as to give the employee at least one week in each 3 consecutive weeks on another shift or shifts.
night shift means any shift finishing subsequent to midnight and at or before 9.00 am.
non-successive shift means afternoon or night shifts which do not continue for at least 5 successive afternoon or night shifts.
31 Mr Arnold worked one or two shifts each week, both of which finished after midnight and before 9.00 am. He worked these shifts every week, without rotation. I am therefore satisfied his work pattern fits the description of fixed night shift in clause 23.2 of the Award.
32 Although I did not hear a fulsome argument as to the applicability of the non-successive shift definition to Fletcher International, my understanding is that the definition would not apply because the gatehouse runs on continuous shifts with seven consecutive afternoon and night shifts each week.
Wage Underpayment Claim
Mr Arnold’s 2023 Request to Human Resources
33 In his claim, Mr Arnold alleges that ‘in 2023 [he] asked Human Resources for an increase with the Fixed night shift loading.’ His evidence about this request was vague. He was unable to say whether the request was made to Mr Nelson in person, or in writing. He tended to think he might have just left a note to Mr Nelson on his door, because their hours of work did not cross over and he rarely saw Mr Nelson at work. His evidence was unclear as to whether what he was asking of Mr Nelson was a pay increase of any type, or whether it was to be paid night shift loading specifically.
34 As to what happened after the request, Mr Arnold’s evidence was even more vague. Initially he said that Mr Nelson said ‘yes, we’ll pay’ but he could not recall whether or not this eager agreement was verbal, or what exactly Mr Nelson was agreeing to pay. In cross-examination he suggested that Mr Nelson simply agreed to pay him an additional 30% on top of his current pay.
35 Mr Nelson’s evidence was that he can clearly recall Mr Arnold speaking to him directly about his pay in July 2023. According to Mr Nelson, Mr Arnold demanded he be given a pay rise because ‘everyone else in Australia just got one.’ Exhibit R1 [60].

36 Fletcher International was reviewing employee wage rates as a result of the Fair Work Commission’s Annual Wage Review in any event. Fletcher International did increase Mr Nelson’s pay from 1 July 2023, as set out in paragraph [25] above.
Consideration of Wage Underpayment Claim
37 It is not necessary for me to make any findings as to what, if anything, was requested or agreed in July 2023. Mr Arnold’s claim does not arise out of an alleged agreement. It arises as a result of his pay slips changing their format and content, from July 2023, as described in the 25 August 2023 letter. That this occurred, as a matter of fact, is uncontentious.
38 Mr Arnold says that he did not know that his rate of pay included a shift loading prior to July 2023, and that because his payslips did not identify a shift loading, that means he was not paid a shift loading. In effect, he says the form his payslips took are evidence that his ‘base rate of pay’ was the total rate shown on his pay slip, and that he was not paid any shift loading.
39 Regulation 3.46 of the Fair Work Regulations 2009 (Cth) requires that a pay slip provided to an employee under s 536(2)(b) of the FWA ‘must specify….any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentivebased payment or other separately identifiable entitlement’.
40 As a shiftworker, the Award provides for ‘shiftwork rates’. The Award describes shiftwork rates in clause 23 as a percentage of the minimum hourly rate. In the tables in Part B.5 of Schedule B, the rates are called ‘penalty rates’ and are described as an hourly dollar amount for each level.
41 The Award does not grant an entitlement to an allowance or additional amount of 30% on top of a ‘base rate’. Rather it provides for a different minimum rate of pay for shiftworkers, with that minimum loaded and calculated by reference to the Award minimum rates.
42 The penalty rate, for the purpose of regulation 3.46, is therefore a total hourly rate. While the hourly rate is loaded, the loading is not a separately identifiable component.
43 Accordingly, it was not necessary for Mr Arnold’s payslips to show a separate shift loading. What they had to show was the applicable penalty rate for shiftwork. They did show an hourly rate of pay although not expressly identified as a fixed nightshift penalty rate.
44 I do not accept Mr Arnold’s assertion that he did not know that the hourly rate referred to in his payslips prior to July 2023 was the shift penalty rate. That is because he referred in his evidence to a Notification of Change of Wages dated 10 January 2013 which showed a ‘new rate of pay’ (then $24.70 per hour) and also showed a lower flat rate of $20.67 for day work. Exhibit C9.

45 Further, on 24 October 2022, in response to a request for employment records from Mr Arnold’s then solicitors, Fletcher International wrote to Mr Arnold stating:
…
(c) in accordance with then clause 33 (now clause 23) of the Award, you are a fixed night shift employee;
(d) in accordance with then subclause 33.9(c) (now subclause 23.3(c)) of the Award, you are entitled to payment of the base rate of pay for your classification level plus a 30% fixed night shift penalty;
…
You have at all times been paid an hourly rate which is higher than the corresponding hourly rate in the Award. Exhibit R1 Annexure O.
(original emphasis)
46 Mr Arnold’s pay was not reduced in July 2023. It was increased. And at all relevant times the rate that he was paid was the same as or slightly exceeded the Award minimum rate of pay for fixed night shifts.
47 Immediately before 1 July 2023 the minimum rate of pay for Level 3 fixed night shift under the Award was $29.08 per hour. Mr Arnold was paid $29.35 per hour. From 1 July 2023 Mr Arnold’s total pay was increased to $30.74 per hour in line with the Award minimum rate for fixed night shifts.
48 Mr Arnold has failed to establish he is entitled to any further payment in relation to his Wage Underpayment Claim.
Weekend Penalty Claim
Applicable Principles
49 This part of Mr Arnold’s claim involves the proper construction of the Award, and in particular the interaction between clause 14 – Ordinary Hours of Work and Rostering, clause 23 – Shiftwork and clause 24 – Penalty Rates.
50 The principles that apply when construing an industrial instrument are not in dispute. They are encapsulated at [197] of WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes; (1989) 30 IR 362 at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”: Amcor Limited v Construction, Forestry, Mining and Energy Union; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited; (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
51 In the Federal Court of Australia Full Court decision in James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 at [65], Griffiths and Derrington JJ expressed the relevant principles as follows (citations omitted):
(i) The starting point is the ordinary meaning of the words, read as a whole and in context.
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind”. The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.”
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to “... the entire document of which it is a part, or to other documents with which there is an association”.
(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken”.
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...”.
(vi) A generous construction is preferred over a strictly literal approach, but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties”.
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.
52 This statement of the principles was referred to with approval by Lee J in Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39 at [28].
Relevant clauses in the Award
53 It is the provisions of the Award relating to meat processing establishments that apply in this case.
54 What is set out below is the current provisions of the Award. Mr Arnold’s claim spans six years. Prior to 2020, the Award was known as the Meat Industry Award 2010. The provisions set out below were differently arranged and numbered, and there were slight differences in wording. However, those minor differences are not material to the outcome in these proceedings. To keep things simple, I will refer only to the Award in its current form, and current clause numbering.
55 The relevant provisions of the Award are inserted as a schedule and attached to these reasons.
Does clause 24.1 apply to shiftwork?
56 Mr Arnold accepts that a precondition for an entitlement to weekend penalties in meat processing establishments is that there be an agreement in accordance with clause 14.3(b).
57 Mr Arnold relied on a handwritten document dated 10 March 2010 Exhibit C1.
as being evidence of an agreement meeting the description in clause 14.3(b), that is, an agreement between Fletcher International and Mr Arnold individually, that ordinary hours be worked on Saturday and Sunday.
58 Mr Arnold’s evidence was that this document was signed by himself and Mr Greg Cross who was then Fletcher International’s General Manager. Mr Arnold’s evidence was that the document was written by him and signed by Mr Cross in the presence of someone from the Fair Work Ombudsman’s office.
59 The main body of the document is in Mr Arnold’s handwriting. It is in dot-point form. The document contains the following:
(31.2) Hours of work Max 10 hours. Outside spread.
Mon-Fri. 6 am – 8 pm. (iii) Midnight Fri-Mid Sat 1 ½ Mid Sat – Mid Sun. 2. Exhibit C1.

60 The reference to ‘31.2’ is apparently a reference to what was, at the time, the Ordinary Hours of Work clause of the Award (current clause 14.3). Clause 31.2(f) of that clause (current clause 14.3(b)) provided for ordinary hours for meat processing establishments, and paragraph (iii) refers to the penalty rates of time and half and double time for work between midnight Friday and midnight Saturday and midnight Sunday and midnight Sunday where an agreement is reached in accordance with thenclause 31.2(f)(ii).
61 I am mindful, though, that this was an agreement that was struck in 2010. The evidence before me is that Mr Arnold commenced working two weekend night shifts in about late 2011. There is scant evidence before me as to what hours and duties Mr Arnold was performing as at 10 March 2010. He did tell me in his closing submissions that he has worked days as well as afternoon and night shifts before 2011.
62 It is therefore difficult to form a conclusive view as to what the 10 March 2010 document means, and whether it continued to apply at the relevant times. If, at the time the document was drafted, Mr Arnold was not a shiftworker, then the document could be an agreement that Mr Arnold’s ordinary hours could be worked on Saturdays and Sundays in accordance with clause 14.3(b).
63 However, even if Mr Arnold and Fletcher International did make an agreement for the days in which ordinary hours are worked to include Saturday and Sunday, such an agreement could not be made in relation to shiftwork. Any such agreement could only be made in relation to ordinary hours for the purpose of clause 14.3’s ordinary hours, and could only apply to non-shiftwork.
64 The Award contemplates that ordinary hours for shiftworkers be determined in accordance with clause 23 to the exclusion of clause 14.
65 This is revealed by the words in clause 23 itself. Clause 23.1(b) expressly deals with the ordinary hours of work for shiftworkers. It covers the same ground as clause 14.1, except it does so by reference to shiftworkers. Under clause 23, ordinary hours for shiftwork can be worked on any day of the week, Monday to Sunday and any hour of the day. Unlike clause 14, there is nothing which limits ordinary hours for shiftwork to Monday to Friday, nor is there a limit on the spread of hours.
66 In other words, the reference point to determine ordinary hours for shiftworkers is clause 23 only.
67 This is reinforced by the shiftwork definitions in clause 23.2. The definitions of afternoon shift and night shift involve shifts where the hours of work fall outside ordinary hours under clause 14. A person whose ordinary hours are those set out in clause 14 cannot by definition be a shiftworker.
68 This is also consistent with the fact that clause 14.3 only permits agreement for ordinary hours to be worked on Saturday and Sunday, but does not permit agreement for ordinary hours to be worked beyond one hour at either side of the spread of hours in clause 14.3(a) of 6.00 am to 8.00 pm. There can be no agreement to alter the spread of hours to start earlier than 5.00 am or finish later than 9.00 pm. Clause 14.3(d) of the Award.
Neither afternoon shifts nor night shifts can, by definition, involve only ordinary hours under clause 14.
69 Other indications in the text of the Award of this mutual exclusivity between clause 23 and clause 14 include:
a. Schedule B – Summary of Hourly Rates of Pay contains separate tables for nonshiftworkers: Table B.1.1 and Shiftworkers: Table B.5.1. Notably, the table for nonshiftwork includes columns showing weekend penalty rates with express reference to an agreement under clause 14.3(b), whereas the table for shiftworkers does not.
b. Both clause 14.1(b) and clause 23.1(b) refer in the same terms to ordinary hours for part-time and casual employees. If clause 14 applied to shiftworkers, there would be no need to repeat these provisions. The fact that they are repeated indicates the clauses are to be read and applied independently of one another.
c. Under clause 14 ordinary hours cannot exceed ten hours on any day or shift. Clause 14.1(b).
For shiftwork, 12-hour shifts are permitted by agreement and subject to conditions. Clause 23.7.
These provisions are inconsistent and cannot both operate simultaneously. They are mutually exclusive.
d. Clause 15 – Breaks contains a separate provision for shiftworkers. Clause 15.4.

e. Clause 23.1(e) requires agreement between the employer and an employee to transfer from day work to shiftwork, or from shiftwork to day work. There can be no unilateral transfer between day work and shiftwork. This is consistent with the significance of the differences between the terms and conditions for shiftwork and the terms and conditions for day work.
f. Clause 23.3(f) expressly provides that where a cleaning employee is entitled to a penalty rate under clause 24.4 and a shiftwork rate under clause 23.3 in relation to the same shift, only the higher penalty rate applies, not both. There is no equivalent provision for any other category of shiftworker. The need for express provision about how the different penalty rates apply for cleaners arises because under clause 14.2 cleaners’ ordinary hours can be worked between 6.30 am and midnight. There is no weekend penalty rate for cleaners under clause 24.4, but penalty rates do apply for particular hours. This means that cleaners might work ordinary hours under clause 14, but be a shiftworker rather than a day worker under clause 23.
The fact that the Award does not expressly describe how clauses 23 and 24 interact for other categories of shiftworker indicates that it was not intended that both provisions could simultaneously apply, unlike the position for cleaners. The need to describe the interaction only arises for cleaners.
70 Viewing the relevant clauses in the context of the Award as a whole, it is apparent that clauses 23 and 24 are mutually exclusive. An agreement cannot be made under clause 14.3(b) in respect of shiftwork. Accordingly, clause 23, which is conditioned on the existence of such an agreement, cannot apply to shiftwork.
71 Therefore, on a proper construction of the Award, applied to the present facts, Mr Arnold was not entitled to receive weekend penalty rates when working fixed night shifts.
Orders and Disposition
72 For the above reasons, I dismissed Mr Arnold’s claim.
73 Fletcher International sought an opportunity to make an application for the costs of all or part of these proceedings. I am surprised by this, given:
a. the limitations on the Court’s power to award costs contained in s 570 of the FWA;
b. the fact that these proceedings were conducted under the small claims procedure under s 548 of the FWA, with legal representation only permitted by leave of the IMC under s 548(5);
c. Mr Arnold complied with all directions made in the course of these proceedings and the manner in which he prosecuted his claim and conduct in the proceedings generally was clearly reasonable;
d. the hearing of this matter involved contestable issues of fact and law.
74 Nevertheless, I made orders giving Fletcher International the opportunity to file any application for costs it may decide to make within 21 days. If an application is made, I will determine it in due course on the papers.


R. COSENTINO
INDUSTRIAL MAGISTRATE

Schedule: Relevant Clauses
10. Part Time Employees
10.1 A part-time employee
(a) is engaged to work less than 38 ordinary hours per week; and
(b) has reasonably predictable hours of work of not less than 4 consecutive hours on any day; and
(c) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.
10.2 At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work specifying at least:
(a) the hours worked each day;
(b) which days of the week the employee will work;
(c) the actual starting and finishing times of each day; and
(d) that the minimum daily engagement is 4 hours.
10.3 Clause 10.2 does not apply to a meat processing establishment, except for employees of the establishment engaged in retail and/or wholesale sales of fresh meat and/or meat products and any ancillary products.
10.4 The terms of any agreement concerning part-time employment or any agreed variation to the hours of work will be in writing, with a copy retained by the employer and a copy provided to the employee.
10.5 All time worked in excess of the hours as mutually agreed will be overtime.
10.6 A part-time employee employed under the provisions of clause 10 will be paid for ordinary hours worked at the minimum hourly rate prescribed in clause 16—Minimum rates.
…
14. Ordinary hours of work and rostering
14.1 Ordinary hours and roster cycles
(a) The ordinary hours of work for a full-time employee must not exceed 38 hours per week or an average of 38 hours per week not exceeding 152 hours in 28 days.
(b) The ordinary hours of work for a part-time or casual employee will be in accordance with clause 10—Part-time employees and clause 12—Casual employees.
(c) The ordinary hours of work for a casual employee must not exceed 38 hours in any week.
(d) The ordinary hours of work must be worked continuously at the discretion of the employer, except for meal breaks or other breaks prescribed in the award.
(e) The maximum number of ordinary hours which may be worked on any day or shift must not exceed 10 hours.
(f) Any hours worked outside the spread of hours listed must be paid at overtime rates.
14.2 Cleaners
Regardless of the spread of hours in clauses 14.3(a), 14.4(a) or 14.5(a), cleaners may be employed to work ordinary hours between 6.30 am and midnight in any establishment under this award. A cleaner may be entitled to a payment under clause 24.4.
14.3 Meat processing establishments (except for employees of the establishment engaged in retail and/or wholesale sales of fresh meat and/or meat products and any ancillary products)
(a) Subject to clause 14.3(b), ordinary hours for these establishments are worked between:
Days
Spread of hours
Monday to Friday
6.00 am–8.00 pm
(b) Where the employer and a majority of affected employees agree, ordinary hours may be worked on Saturday and Sunday. Agreement in this respect may also be reached between the employer and an individual employee.
(c) Payment for ordinary hours on weekends in accordance with clause 14.3(b) is provided in accordance with clause 24.1.
(d) The spread of hours may be altered by up to one hour at either side of the spread by agreement between:
(i) the employer and the majority of employees concerned; or
(ii) in appropriate circumstances, between the employer and an individual employee.
(e) Any work performed by an employee prior to the commencement of the spread of hours and which is continuous with the normal ordinary hours for the purpose, for example, of getting the plant in a state of readiness for processing work, may be regarded as part of the employee’s ordinary hours of work.
(f) Where an employee of the establishment is engaged in retail and/or wholesale of fresh meat and/or meat products and any ancillary products, clause 14.3 will not apply and clause 14.5 will apply to the employee.
14.4 Meat manufacturing establishments (except for employees of the establishment engaged in retail and/or wholesale sales of fresh meat and/or meat products and any ancillary products)
(a) Ordinary hours for these establishments are worked between:
Days
Spread of hours
Monday to Saturday
6.00 am–6.00 pm
(b) In addition, up to 4 ordinary hours may be worked by an employee on Saturday between the hours of 6.00 am and 6.00 pm.
(c) Payment for ordinary hours worked on Saturday is provided in accordance with clause 24.2(a).
(d) Where an employee of the establishment is engaged in retail and/or wholesale of fresh meat and/or meat products and any ancillary products, clause 14.4 will not apply and clause 14.5 will apply to the employee.
14.5 Meat retail establishments (including employees of meat processing establishments and meat manufacturing establishments engaged in retail and/or wholesale sales of fresh meat and/or meat products and any ancillary products)
(a) Ordinary hours for these establishments are worked between:
Days
Spread of hours
Monday to Friday
4.00 am–9.00 pm
Saturday
4.00 am–6.00 pm
Sunday
8.00 am–6.00 pm
(b) Payment for ordinary hours on weekends will be in accordance with clause 24.3/
(c) Load out areas
Notwithstanding clause 14.5(a), in load out areas involving the receipt, storage, inspection, load out and delivery of meat or meat products, the ordinary hours may be worked between 10.00 pm and 4.00 pm (the following day), Sunday to Saturday. Payment will be in accordance with clause 24.3(d).
(d) Weekends off
Once every 4 weeks, an employee who works ordinary hours on each Sunday over a 152 hour work cycle must be given 3 consecutive days off which will include Saturday and Sunday. Any alternative arrangements between the employer and the employee must be by mutual agreement and in writing and signed by each of the parties.
(e) Spread of hours for particular employees performing meat retail establishment duties
Where an employee of an establishment covered by this award is called upon to perform meat retail establishment duties, the hours of work provisions for the employee will be all the provisions associated with a meat retail establishment as contained in clause 14.5.
14.6 Methods of arranging ordinary working hours
(a) Clause 14.6 applies to all establishments.
(b) Matters upon which agreement may be reached include:
(i) how the hours are to be averaged within a work cycle established;
(ii) the duration of the work cycle for day workers provided that such duration does not exceed 3 months;
(iii) rosters which specify the starting and finishing times of working hours;
(iv) a period of notice of a rostered day off which is less than 4 weeks;
(v) substitution of rostered day off;
(vi) accumulation of rostered days off;
(vii) arrangements which allow for flexibility in relation to the taking of rostered days off; and
(viii) arrangements of ordinary hours overall.
14.7 Rostering
(a) The employer must post a roster in the premises, showing the starting and finishing times for ordinary hours for employees.
(b) Starting and finishing times appearing on the roster will be for a period which is not less than one week in length.
(c) This roster may be amended by the employer provided 36 hours’ notice is given. Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 32—Consultation about major workplace change.
14.8 Make-up time
An employee may elect, with the consent of their employer, to work make-up time, under which the employee takes time off ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award.
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23. Shiftwork
23.1 Hours of work—shiftwork
(a) Shifts may be worked on any work covered by this award.
(b) The ordinary hours of work for full-time shiftworkers are to be an average of 38 per week and must not exceed 152 hours in 28 consecutive days, subject to clauses 23.1(b)(i) and 23.1(b)(ii). The ordinary hours of work for a part-time employee with be in accordance clause 10—Part-time employees and for a casual employee will be in accordance with clause 12—Casual employees.
(i) Where the employer and the majority of affected employees agree, a roster system may operate on the basis that the weekly average of 38 ordinary hours is allowed over a period which exceeds 28 consecutive days but does not exceed 12 months.
(ii) In the absence of agreement between the employer and employee, by the employer giving not less than 7 days’ notice to each employee of such proposed change of times.
(c) The ordinary hours of work are to be worked continuously, except for meal and any rest breaks, at the discretion of the employer.
(d) Except at changeover of shift an employee will not be required to work more than one shift in each 24 hours.
(e) Transfer of an employee from day work to shiftwork, or from shiftwork to day work, will be by agreement between the employer and the employee.
(f) Shifts may be worked on a one-shift, 2 shift or 3 shift system.
23.2 Shiftwork definitions
For the purpose of clause 23:
afternoon shift means any shift commencing at or after 2.00 pm and finishing at or before midnight.
day shift in a three-shift system means any shift finishing at or after 2.00 pm and at or before 4.00 pm.
fixed night shift means a night shift on which an employee is not allowed to rotate so as to give the employee at least one week in each 3 consecutive weeks on another shift or shifts.
night shift means any shift finishing subsequent to midnight and at or before 9.00 am.
non-successive shift means afternoon or night shifts which do not continue for at least 5 successive afternoon or night shifts.
23.3 Shiftwork rates
(a) Afternoon shift
A shiftworker will be paid 115% of the minimum hourly rate for all ordinary hours worked on afternoon shift.
(b) Night shift
A shiftworker will be paid 125% of the minimum hourly rate for all ordinary hours worked on night shift.
(c) Fixed night shift
A shiftworker will be paid 130% of the minimum hourly rate for all ordinary hours worked on fixed night shift.
(d) Non successive shifts
A shiftworker will be paid:
(i) 150% of the minimum hourly rate for the first 3 hours; and
(ii) 200% of the minimum hourly rate thereafter,
for all ordinary hours worked on non successive afternoon or night shifts.
(e) Casual shiftwork
A casual shiftworker will be paid the appropriate shift rate and the 25% casual loading (as prescribed by clause 12.4) based on the minimum hourly rate in clause 16.1 for the classification in which the casual employee is employed. For example, a casual employee working on afternoon shift would be paid 140% of the minimum hourly rate.
(f) Cleaners— shiftwork rates and cleaning penalty rates not cumulative
Where a cleaning employee is entitled to a penalty rate under clause 24.4 and a shiftwork rate under clause 23.3 in relation to the same shift, the employee will only be entitled to payment of the higher penalty rate and not both.
NOTE: See Schedule B—Summary of Hourly Rates of Pay for a summary of hourly rates of pay including overtime and penalty rates.
23.4 Meal break—shiftworkers
Meal breaks for shiftworkers are provided in accordance with clause 15.4.
23.5 Altering starting times
Unless otherwise agreed, an individual employee who is required to alter their starting time to enable the management to make provision for a replacement will be given at least 24 hours’ notice of the change. Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 33—Consultation about changes to rosters or hours of work.
23.6 Three-shift systems
Employees engaged on a three-shift system will rotate between shifts unless otherwise agreed between the employer and employees directly concerned.
23.7 Twelve-hour days or shifts
By agreement between an employer and the majority of employees in the enterprise or part of the enterprise concerned, 12 hour days or shifts may be introduced subject to:
(a) proper health monitoring procedures being introduced;
(b) suitable roster arrangements being made;
(c) proper supervision being provided;
(d) adequate breaks being provided; and
(e) an adequate trial or review process being undertaken.
24. Penalty rates
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24.1 Meat processing establishments (except for employees of the establishment engaged in retail and/or wholesale sales of fresh meat and/or meat products and any ancillary products)
Where agreement is reached in accordance with clause 14.3(b) ordinary hours may be worked on weekends at the following rates:
(a) Saturday
An employee will be paid 150% of the minimum hourly rate for ordinary hours worked between midnight Friday and midnight Saturday.
(b) Sunday
An employee will be paid 200% of the minimum hourly rate for ordinary hours worked between midnight Saturday and midnight Sunday.