[2012] FWAFB 8837 [2012] FWAFB 8837 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.266—Industrial action related workplace determination Schweppes Australia Pty Ltd v United Voice - Victoria Branch (B2012/587) JUSTICE ROSS, PRESIDENT SENIOR DEPUTY PRESIDENT WATSON COMMISSIONER ROE MELBOURNE, 17 OCTOBER 2012 Settlement of order - correction of errors - s.602 of the Fair Work Act 2009 (Cth). [1] This decision follows and should be read in conjunction with our decisions of 12 September 2012 1 and 8 October 2012 2 . [2] In accordance with our decision of 8 October 2012, the terms of the Workplace Determination were settled by Senior Deputy President Watson, with recourse to the Full Bench. The Workplace Determination is published in [AG897585] in the terms settled by Senior Deputy President Watson, with which we agree. [3] In the course of the process of settling the Workplace Determination, two errors were identified in paragraph 100 of our 8 October decision. Paragraph 100 dealt with additional payments in respect to the 6 hour shift arrangements, as follows: [100] We have had regard to all of the circumstances and in particular to the interests of Schweppes and the employees; the merits of the respective proposals and the public interest. We have decided that the penalties which will be included in the Workplace Determination in respect of the 6 day 12 hour roster will be based on the provisions of sub-clauses 31.3 and 31.4 of the Modern Award. Further, employees working the 6 day 12 hour roster will be paid an additional two hours’ pay at overtime rates for each 6 day roster to compensate for the one hour of overtime worked in each week of the 6 day cycle. This arises because the Workplace Determination provides for 35 ordinary hours of work per week whereas the 6 day roster is worked over 36 ordinary hours each week. The shift penalties in respect of the 6 day shift arrangements will be as follows: SHIFT PENALTIES APPLICABLE TO 6 DAY SHIFT ARRANGEMENTS Monday to Wednesday Thursday to Saturday Day Shift 0% 16.7% Night Shift 30% 36.7% [4] The first error concerned a misunderstanding on our part that the 6 day shift arrangements were based on 36 ordinary hours of work, rather than 35 ordinary hours for the existing 5 day rosters. That misunderstanding arose from the evidence of Schweppes in relation to the shift penalties it initially proposed, which took “into account the overtime penalties that employees would be entitled to receive for hours worked in excess of 35 working hours (i.e. 1 hour under the proposed 6 day shift pattern)” 3 , a proposition reflected in the table in paragraph 153 of our in-principle decision of 12 September 2012. However, it is clear from the agreed terms of the joint Workplace Determination provided during the settlement process that the 3 day shift arrangements involve the working of only 35 ordinary hours of work 4 . The additional two hours’ pay at overtime rates for each 6 day roster to compensate for the one hour of overtime is not required nor appropriate given the 6 day roster is worked over 35 ordinary hours per week rather than 36. [5] The second error was an error in calculating the Thursday to Saturday Night Shift penalty. The figure of 36.7% involved an error in that it was calculated on the basis that the 30% night shift penalty applies to Thursday and Friday night work and 50% penalty applies to the Saturday night work. The 50% penalty should also apply to the hours on the Friday shift after midnight. When properly calculated, the figure of 36.7% should be 40%. [6] Pursuant to s.602 of the Fair Work Act 2009 , we correct paragraph 100 of our 8 October decision to read: [100] We have had regard to all of the circumstances and in particular to the interests of Schweppes and the employees; the merits of the respective proposals and the public interest. We have decided that the penalties which will be included in the Workplace Determination in respect of the 6 day 12 hour roster will be based on the provisions of sub-clauses 31.3 and 31.4 of the Modern Award. The shift penalties in respect of the 6 day shift arrangements will be as follows: SHIFT PENALTIES APPLICABLE TO 6 DAY SHIFT ARRANGEMENTS Monday to Wednesday Thursday to Saturday Day Shift 0% 16.7% Night Shift 30% 40.0% PRESIDENT Appearances: F Parry SC with M Follett of Counsel for Schweppes Australia Pty Ltd. C Dowling of Counsel for United Voice – Victoria Branch. Hearing details: 2012. Melbourne: April 5; June 29; July 3 to 5, 30; September 20; October 15. Final written submissions: 28 September 2012 and 3 October 2012. 1 [2012] FWAFB 7858 . 2 [2012] FWAFB 8599 . 3 Schweppes written submission of 20 July 2012 at paragraph 71. 4 Joint Draft Workplace Determination filed on 12 October 2012; Appendix, Clauses 2.3 and 5.2(c). Printed by authority of the Commonwealth Government Printer <Price code A, PR530275>