The Australian Workers' Union (claimant) claimed UGL Resources (Contracting) Pty Ltd (respondent) failed to pay Shift Over Cycle rates for hours regularly worked over 10 hours in specified affected workers’ shifts from 7 May 2020 to 4 March 2022. The claimant argued that this failure breached:

• clause 14.8 of the UGL Resources (Contracting) Pty Ltd Karratha Enterprise Agreement 2019 (Agreement); and
• contravened section 323 of the Fair Work Act 2009 (Cth) (FWA).

The claimant sought orders for the underpayments, interest on judgment, and a civil penalty.

The respondent denied the alleged contraventions and contended that the Shift Over Cycle rates did not apply in the manner that the claimant contended. The respondent paid each affected worker for all hours worked, but 0.87 hours were paid at the base rate instead of the Shift Over Cycle rate. According to the claimant, each affected worker should have received 10 hours at the base rate and 0.87 hours at the Shift Over Cycle rate. The respondent argued that the Shift Over Cycle rate was designed to compensate employees for time worked in excess of the rostered hours.

The respondent relied upon the uncontested evidence of its Group Manager Industrial Relations, particularly the rationale behind the roster change that occurred in response to the COVID-19 pandemic, a change which was implemented to ensure the continuation of maintenance works and employment at the Woodside Energy Limited operated Karratha Gas Plant. The roster saw employees working 14 days on followed by 14 days off (14:14 roster). The respondent’s evidence was that this roster was designed to accommodate the restrictions and requirements of the pandemic, allowing a 70% FIFO workforce to continue operations. The 14:14 roster also resulted in the shift length temporarily increasing from 10 hours to 10.867 hours to ensure employees met the base requirement of working 152 hours in a roster cycle. This also enabled the accrual of annual and personal leave based on an average 38-hour working week.

In addition to the evidence, the Industrial Magistrate considered the principles of interpreting industrial agreements, which include understanding the natural and ordinary meaning of the words used, the industrial context and purpose, and the circumstances of the origin and use of the clause in dispute. Ultimately the Industrial Magistrate was required to give effect to the evident purpose of the clause, which is to compensate employees for hours worked in excess of their rostered hours.

After contemplating the evidence and the purpose of disputed clause, the Industrial Magistrate determined that the respondent did not contravene clause 14.8 of the Agreement as it related to the affected workers and, therefore, did not contravene section 323 of the FWA. The claimant’s claim was dismissed. The decision can be read here.