Question C5

Why did MS WILLOUGHBY mention an alternative argument at PN301? (multiple choice)

(a)She forgot to raise this argument in her opening address

(b)The case theory of the respondent had been directly challenged by the applicant

use extract below

PHILIP ANDREW GOLBY XXN MS WILLOUGHBY

PN138

So you'd have to agree, wouldn't you, that as of 5 June 2018 when you circulated this agreement that you were aware and you were of the view that clause 39 of your document which became clause 40, gave the company the flexibility to require employees to work shiftwork as required and to provide work coverage on a continuous basis if required, would you not?---A day worker, yes.

PN139

And is Ms McCrae a day worker, Mr Golby?---Ms McCrae is a day worker, yes.

PN140

So I put it to you then, Mr Golby, that it was your understanding that day workers such as Ms McCrae could be directed to work a changed roster, including shiftwork and continuous work as required pursuant to clause 40 of the 2018 agreement?---That would have to be in line with clause 36, so I'd have to say no.

PN141

Can you please answer the question, Mr Golby?---I'd say no.

***

MS WILLOUGHBY: I'll just make a short opening. Deputy President, I assume that you've had the chance to have a look at our written submissions already, is that correct?

PN280

THE DEPUTY PRESIDENT: That's correct.

PN281

MS WILLOUGHBY: So I won't go over those in any great detail but I would just like to make a very short opening. In the respondent's submission what this matter comes down to is this. Ms McCrae was hired at a time when the 2014 agreement was in place and her employment relationship is governed by both the EBA that was in place at the time, and the contract of employment that she entered into. That contract clearly states at exhibit DS2 that shiftwork is required from time to time. The 2014 agreement similarly states that due to operational requirements it may be necessary for employees to work twelve hour or nightshifts for short periods including for the purposes of a shut-down. This was the agreement that applied to Ms McCrae at the time that she commenced employment.

PN282

It was the intention of the parties at the time to continue this flexibility which culminated in the inclusion of clauses 40 and 43 of the 2018 agreement. In fact, while Ms McCrae satisfies the definition of a day worker under both the 2014 and the 2018 agreement, our primary contention is that she is also capable of being a shiftworker under those agreements. It is the case that Ms McCrae in fact worked shifts from time to time, other than dayshifts. In fact, during the period from 9 April 2018 when she first commenced work until 15 March 2019 which was during the time that this dispute was on foot, she worked six weekends and public holiday shifts and twelve nightshifts in less than a year.

PN283

In the respondent's submission Ms McCrae does satisfy the definition for a shiftworker under the 2014 agreement. Under the 2018 agreement we submit that that term is ambiguous because it is susceptible of more than one meaning and that is, it is not clear from that provision whether it is the worker who must be rostered in some circumstances to work shifts, or whether it is only required that the company rosters continuous shifts in some circumstances. Our contention is the insertion of the word, 'some,' into that provision by the AMWU without discussion introduces an ambiguity into the interpretation of that provision.

PN284

THE DEPUTY PRESIDENT: But that provision might just be there for the purposes of the additional week of leave, because if you didn't have it there you would have been made to put it there. When the agreement was approved the company would have been taken to the definition of - or the requirements of the Act with respect to approval and asked, what is the definition of 'shiftworker' for the purposes of the additional week of leave.

PN285

MS WILLOUGHBY: That may well be the case, Deputy President. There is also a definition of 'continuous shiftwork' within the agreement, which has a somewhat different definition.

PN286

THE DEPUTY PRESIDENT: So what did the company - anyway, I've got the form F16 and 17, so - because the company had to - but I understand your point.

PN287

MS WILLOUGHBY: So on that basis, Deputy President, our submissions is that Ms McCrae is capable of being a shiftworker for the purposes of clause 43, and therefore clause 43 applies to her.

PN288

THE DEPUTY PRESIDENT: So essentially your position is, whether it's clause 40 or clause 43, so if the starting point is clause 40, the two parts of that clause operate independently and it allows you with appropriate notice to require a person to work shifts on a temporary basis, and then once you do that, clause 43 then kicks in with respect to the payment? Or your alternative position is clause 43 isn't limited to shiftworkers and allows you to change rosters, in any event?

PN289

MS WILLOUGHBY: That is correct, Deputy President. In either scenario we say that clause 43 applies to Ms McCrae.

PN290

THE DEPUTY PRESIDENT: Yes. And do you also say that if Ms McCrae was working on the nightshift arrangement temporarily, would Ms McCrae be paid penalty rates if she didn't work for five consecutive nightshifts, or would she only be paid penalty rates if the nightshift arrangement on which she was allocated didn't continue for five consecutive days, or nights?

PN291

MS WILLOUGHBY: So the way that it has played out, Deputy President, and in fact this has occurred on a number of occasion throughout her employment, where she works fewer than five consecutive nightshifts she is paid overtime rates pursuant to clause 43, but - - -

PN292

THE DEPUTY PRESIDENT: So you attach it to the employee, not the roster?

PN293

MS WILLOUGHBY: That's correct, Deputy President.

PN294

THE DEPUTY PRESIDENT: So you say, when we change you to work nightshifts, we will acknowledge that for that purpose the disability is you didn't work five consecutive nightshifts, and if you didn't we will pay you the penalty rate?

PN295

MS WILLOUGHBY: That's correct, Deputy President.

PN296

THE DEPUTY PRESIDENT: Yes.

PN297

MS WILLOUGHBY: And that occurred on four occasions throughout Ms McCrae's employment.

PN298

THE DEPUTY PRESIDENT: All right, I understand, thank you.

***

PN300

THE DEPUTY PRESIDENT: If you'd like to, or you can do it in your final submissions, whatever you want to do.

PN301

MS WILLOUGHBY: Thank you, Deputy President, so I'll move on. In the alternative, our argument will be that the heading to clause 43 should be disregarded. And the reason for that contention is that it is accepted at law that an enterprise agreement is a statutory instrument and statutory instruments have particular rules of construction that apply. One of those rules is that regard should only be had to headings within the document in order to resolve an ambiguity. And it is the respondent's contention that 43.5 contains no ambiguity on its face, and nor does 43.7. For that reason no regard ought to be had to the heading of that document.

PN302

Even if that argument is rejected then we would say that this is a case where the text of the provision that follows should not be confined to the heading in light of the extensive negotiations that took place regarding that matter, some of which we have had some evidence of this morning and which we will certainly lead further evidence in respect of.

PN303

THE DEPUTY PRESIDENT: Because essentially, to accept the AMWU's proposition would mean that your client would not be able to request that a day worker work a period of shiftwork without paying that person overtime rates?

PN304

MS WILLOUGHBY: That's correct, Deputy President.

PN305

THE DEPUTY PRESIDENT: Yes, I understand.

PN306

MS WILLOUGHBY: And it is the position that that was rejected during negotiations.

PN307

THE DEPUTY PRESIDENT: Yes, I understand.

PN308

MS WILLOUGHBY: In addition we would say that the title, 'shiftworker,' at clause 43 is infected by the ambiguity that we've referred to in respect of the term, 'shiftworker.'

PN309

If those submissions are accepted then our view is that the reference to clause 40 within the resolution of this matter, the questions to be resolved does not actually fall for consideration. However in the event that we are wrong about that we contend as we've already alluded to that the two clauses are not required to work together and that Monadelphous was entitled to direct Ms McCrae on three days' notice to move to an alternative shift.

PN310

THE DEPUTY PRESIDENT: I understand.