The Construction, Forestry and Maritime Employees Union (claimant) alleged Qube Ports Pty Ltd (respondent) failed to pay overtime rates to an employee (and member of the claimant) after the employee completed the required 1820 annualised hours within a financial year. The claimant argued that this failure:

• breached Part B, clause 6.1 of the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020 (Agreement); and 
• contravened section 50 of the Fair Work Act 2009 (Cth) (FWA). 

The claimant sought orders for the payment of the entitlement, interest on judgment and a civil penalty.

Under Part B, clause 6 of the Agreement, Salaried Employees (SE) and Non-Salaried Employees (Non-SE) are entitled to overtime paid at the Supplementary Employees’ hourly rate once they have achieved or worked 1820 hours in a financial year.

Over the course of the financial year that included the period in dispute, the employee transitioned from a Non-SE to an SE. The respondent argued that the hours that the employee worked as a Non-SE did not contribute to his total annualised hours for the purposes of overtime once the employee became a SE.

The claimant contended that the employee was entitled to overtime at the Supplementary Employees’ hourly rate regardless of any changes to their employment category during the year.

The Industrial Magistrate determined that the preferred construction of Part B, clause 6 of the Agreement is that SE and Non-SE become entitled to overtime paid at the Supplementary Employees’ hourly rate when they achieve or work the total of 1820 hours in a year, regardless of any change to their category of employment during the year.

Having found the respondent breached the Agreement and contravened section 50 of the FWA, the Industrial Magistrate will convene a further hearing on the remaining issues. The decision can be read here.