PR952595 AG832504 PR952595 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW application for settlement of dispute National Union of Workers and Queensland Property Investments Pty Ltd (C2004/4873) NATIONAL UNION OF WORKERS - QUEENSLAND PROPERTY INVESTMENTS PTY LTD HUME DISTRIBUTION CENTRE AGREEMENT 2003 (AG2004/1866) [AG832504 PR944063 ] Storage services SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 20 OCTOBER 2004 Re proper application of agreement to various employees rostered to work on combination of day and night shift patterns. DECISION [1] This decision arises from an application for settlement of a dispute by the National Union of Workers (NUW), pursuant to s.170LW of the Workplace Relations Act 1996 (the Act), in relation to a dispute between the NUW and Queensland Property Investments Pty Ltd (QPI) in respect of the National Union of Workers - Queensland Property Investments Pty Ltd Hume Distribution Centre Agreement 2003 (the 2003 Agreement) [AG832504]. [2] The s.170LW application raised a number of issues in dispute in relation to the 2003 Agreement. Through conciliation, a number of matters were resolved. The parties decided that other matters would be further pursued between the parties, with the possibility of further conciliation and/or arbitration, if required. The issue dealt with in this decision was one that the parties believed incapable of resolution by the agreement of the parties and requiring arbitration by the Commission. [3] The issue to be arbitrated arises from a dispute as to the proper application of the 2003 Agreement to various employees rostered to work a combination day and afternoon shift pattern. The NUW contend that such a work pattern is not permissible under the 2003 Agreement. The NUW sought a determination that: "the `combination day and afternoon shifts', introduced in the pay week commencing 8 August 2004, cannot be introduced under the current agreement." 1 [4] " Combination Shift " was defined by the NUW Victorian Branch Assistant Secretary Anthony Thow, as: "a weekly shift where some day shift hours are worked for a proportion of the week and then during the same week some afternoon shift hours are worked." 2 [5] More precisely, the specific " combination shift " in issue is a work roster of " Monday and Tuesday 0600 to 1430 and Wednesday to Friday 1600 to 0000 ", 3 although the specific hours were varied for some employees following discussions with management. 4 BACKGROUND [6] The 2003 Agreement was certified by myself on 4 March 2004, 5 pursuant to s.170LJ of the Act. The 2003 Agreement was made between and applies to QPI and the NUW " in regard to the total terms and conditions of employment for employees at the Hume Distribution Centre (Hume DC) situated at 120 Northcorp Boulevard, Broadmeadows, Victoria." 6 The Hume Distribution Centre (Hume DC), which commenced operations in 1999, is owned by QPI, which is a wholly owned subsidiary of Woolworths Limited. 7 The 2003 Agreement replaced a similarly titled 2001 Agreement, 8 which in turn replaced a 1999 Agreement. 9 [7] The dispute arose upon advice by the Hume DC Manager, Philip Town, to NUW organiser John Pilsbury on 19 July 2004, that QPI was proposing to make roster changes at the Hume DC as from 8 August 2004. The changes were directed to aligning the labour requirements of the Hume DC to the actual volume of stock provided to supermarkets, supplied from the Hume DC, which had been impacted by the introduction of an automated stock replenishment system for supermarkets. At the request of Mr Pilsbury, Mr Town forwarded an email setting out the proposed changes. 10 [8] Discussions occurred between the NUW and QPI in relation to the roster changes proposed. One element of the changes remains in dispute and is the subject of the present arbitration. That change was summarised by QPI 11 as follows: "(a) Prior to the changes, 24 production based afternoon shift employees worked, in accordance with their roster, Monday to Friday from 1630 to 0030; and (b) These employees were advised of a work roster change effective 8 August 2004 to work Monday and Tuesday 0600 to 1430 and Wednesday to Friday 1600 to 0000." [9] Prior to 8 August 2004, 18 of the 24 affected employees raised what they said were exceptional and critical circumstances relating to the roster change 12 pursuant to clause 8.4.2 of the 2003 Agreement. 13 For the majority of the 18 employees, the issues were resolved by agreement, often resulting in a different roster to that initially proposed, but a roster involving a combination of shifts in a given week. 14 [10] The relevant change affects 24 employees previously working afternoon shifts. Overall, approximately 300 permanent employees, a mixture of full-time and part-time, 101 direct Woolworths casuals and an agency pool of around an additional 200 casual employees, undertake work at the Hume DC. 15 EVIDENCE Anthony Thow (Assistant Secretary Victorian Branch NUW): [11] Mr Thow had responsibility for the 2003 Agreement negotiations on behalf of the NUW and its members. 16 His evidence was that there were extensive discussions, in broad terms, about hours of work and roster issues, with open discussions between the NUW and QPI in relation to shift patterns required for the new agreement. " Combination shifts " were never discussed during the negotiations. 17 [12] Mr Thow's evidence was that in ten years with the NUW, he had never seen a combination shift 18 and that, at a mass meeting, a unanimous position was endorsed by the membership that the NUW should seek to stop the introduction of the combination shifts as described in the memo of 8 August 2004. 19 Philip Town (Distribution Centre Manager for Hume DC): [13] Mr Town's evidence was that changes in work rosters were not unusual at the Hume DC, reflecting seasonal peaks, ordering habits of major customers and the meeting of personal circumstances of employees. 20 QPI records reveal that since 1999, 12 employees, some part-time and some full-time, have worked a combination of different shift hours during the same week at the Hume DC. 21 Also Mr Town's evidence was that a number of employees want to work combination shifts. 22 [14] Mr Town disputed the proposition that there were extensive discussions concerning hours of work issues and work rosters when the 2003 Agreement was negotiated. Discussions involved the length of shifts in regards to reverting from a twelve hour shift back to an eight or a ten hour shift and RDOs. 23 In regards to the 36 hour week, Mr Town did not recall specific discussions about the shape of the 36 hour week other than a broad, general discussion. 24 [15] His evidence was that in relation to shift arrangements in the 2003 Agreement there were no changes from the 2001 Agreement, other than to reduce maximum shift length from twelve to ten hours 25 and that there was no discussion regarding shift patterns in negotiations. 26 There was also no discussion of " combination shifts ". 27 SUBMISSIONS NUW [16] The NUW contended that hours of work arrangements of that nature are contrary to the provisions of the 2003 Agreement and specifically contrary to the hours of work and shift arrangements that are provided for by that agreement and, accordingly, are prohibited by the 2003 Agreement. The present dispute arises from the company attempting to implement a flexibility: which it did not bargain for; to which it did not seek the agreement of the union or its members; to which the union and its members have not agreed; and in essence, to seek to extend their rights in a manner which is inconsistent with the 2003 Agreement. [17] The NUW contended that " it is normal, absent some provision of an award or agreement that provides for rotational shiftwork for a person during a given period to be one, or the other of a day worker or a shiftworker ". 28 Clause 7 of the 2003 Agreement, which deals directly with hours of work for employees, requires the employer to engage employees on shift work by the week. The words in clauses 7.5 (Afternoon shift) and 7.6 (Night shift) imply that an employee works either an afternoon shift or night shift, but not a combination of shifts. Proper application of clause 7 would see all employees working either a day shift for the week, an afternoon shift for the week or a night shift for the week. The clause does not provide for any combination of the shifts during the week, nor mention this practice. [18] The NUW contended that the above interpretation is supported by clause 9.2 (Shift work employees of clause 9, Overtime) which describes employees as either " An afternoon shift employee " or " A night shift employee ", with no mention of a combination of shifts. The construction of this clause supports the view that an employee can be engaged from week to week on either a " day ", " afternoon " or " night " shift, but within a week they are one or the other. The NUW relied on a range of references to shift work and shift work employees in the 2003 Agreement, all of which, it contended, support a finding that there is such a thing as a shift worker under this 2003 Agreement and that an employee is either one or the other: clause 9, overtime: clause 9.1 for full-time employees and clause 9.2 for shift work employees; clause 11.7.2, in relation to the annual leave loading provision; clause 12, in relation to personal leave, explicitly creates the distinction between day employees and afternoon and night shift employees; clause 17, redundancy, in relation to the definition of week's pay or week's ordinary pay; clause 14.1, meal breaks; clause 19, jury service, also uses the term " a shift work employee "; and clause 13.1, public holidays. [19] The NUW submitted that the term " combination of days " should not be construed to mean a weekly shift pattern. The proper approach is that the parties intended to have work rosters that should include a combination of days, but the combination of days would be on the same shift. [20] The NUW further submitted that had the parties intended that the definitions section operate as contended for by QPI, a definition of " combination shifts " would have been included. The proper conclusion is that the parties never intended that a " combination shift " operate under the 2003 Agreement. The QPI interpretation requires the importation of the term " combination shift " into clause 4 (Definitions) where they clearly do not exist. The NUW noted in relation to clause 4.1 (clause 4, Definitions): ". . . and the definition of weekly employee and the term `weekly employee', and we say that the term `weekly' needs to be ascribed some meaning and is clearly, in our submission, a reference to the normal formulation for a full-time, or part-time employee that is contained in awards and agreements, that is the normal distinction that is drawn between a weekly employee, who has an expectation, or an entitlement to ongoing work and an irregular, or casual employee who is employed by the hour". 29 [21] Work roster is defined in clause 4.7 as: ". . . the hours an employee is rostered to work ordinary hours on any day, or combination of days, during the week . . ." has a couple of clear meanings and does not " support the view that work on different shifts is permissible ". 30 Whilst there is an ability for the employer to roster at different times within a shift, the use of the term " shift " singular in clause 4.7 implies that in a given work roster an employee is required to have one shift or the other. [22] The NUW submitted that the fact that a few employees may have worked this roster for a period of time does not establish a " some custom and practice argument " or an acceptance that such arrangements are allowed under the terms of the 2003 Agreement. It is not a defence to claim in respect of a breach of an agreement that some people were willing to agree to work that way. [23] The NUW relied on established principles of statutory interpretation: weight should be given to the ordinary and natural meaning of words used. Words should be held to mean what they say; words should be given their ordinary meaning unless to do so produces an irrational, inconsistent or absurd result; specific words in particular should be given their clear meaning; consideration should be given to the intention expressed by the words used and their context in the agreement as a whole; a specific provision of an agreement should be held to apply over a general term to the extent of any inconsistency; and reliance should be placed on external evidence as to the intent of the parties, or the meaning of an agreement, only where the agreement itself is unclear. QPI [24] QPI submitted that the relevant 2003 Agreement provisions are: clause 7.1 which outlines the spread of hours; clauses 7.2 and 7.4 which deal with the calculation of premium payments; clauses 7.5 and 7.6 which define afternoon and night shift and record loadings for each shift; clause 4.8, which defines " ordinary hours "; clause 8, Work rosters, which must be read in conjunction with clause 4, Definitions: 4.1 weekly employees; 4.2 full-time employees; 4.3 part-time employees; 4.6 a week; 4.7 work roster, " defined as the hours an employee is rostered to work ordinary hours on any day, or combination of days, during the week "; 4.9 a day, " the twenty four hours from 0000 hours to 2400 hours "; and 4.13 ordinary pay. [25] QPI submitted that the 2003 Agreement unambiguously permits it to work people on a roster which may combine different shifts, when regard is had to the definition of a work roster. QPI contended that a work roster is defined as: the hours an employee is rostered to work ordinary hours on any day during the week; the hours an employee is rostered to work ordinary hours on any combination of days during the week; and an employee's start or finish times, their ordinary days of work and/or shift. [26] Clause 7, the hours of work clause, sets out what the spread of hours is and sets out what an afternoon and night shift is and what the premium will be for payment for someone who works on an afternoon and night shift. The clause does not imply that an employee has to be an afternoon shift employee the entire time or a night shift employee the entire time. [27] Similarly, other clauses which mention " shift workers ", and relied upon by the NUW, do so in order to identify particular entitlements associated with shift work. Again, they do not imply that an employee has to be an afternoon shift employee the entire time or a night shift employee the entire time. [28] QPI contended that clause 8.1 is designed to ensure that ordinary hours of a weekly employee are achieved. It contains an express restriction in the way a weekly employee's work roster may be structured " in accordance with the appropriate daily minimum/maximum hours requirements ". Clause 8.2 provides maximum " ordinary hours starts " in a four week roster period. Clause 8.3 makes it clear that a weekly employee shall be guaranteed a minimum work roster cycle of four weeks and should be read in conjunction with clause 8.4, which provides that the roster of a weekly employee shall specify the starting and finishing time for each day the employee is rostered to work. If there is to be a change in the roster, seven days notice is required and changes are limited, except by agreement, to four times per year. [29] QPI submitted that there is no basis to imply that afternoon or night shift in clause 7 is for the whole week. It submitted that clause 9.2 is clear and unambiguous, prescribing only the appropriate overtime loading to be added to shift loadings. The use of the expression " afternoon shift employee " and " night shift employee " is necessary for and restricted to the identification of the relevant class of employees to whom the overtime loadings prescribed apply. [30] There is no necessity for a definition of combination shift in the 2003 Agreement. Such a definition is not required to permit the roster pattern associated with that expression. In the absence of any restriction within the agreement to prevent the working of such a roster pattern, that roster pattern is permissible and available under the agreement. Clear words, giving effect to such a restriction, would be required and are not evident in the 2003 Agreement. [31] QPI submitted that the provision in clause 8.4.1 requiring that a weekly employee shall be given a commencing and ceasing time " for each day " the employee is rostered to work, suggests that the starting and finishing times for each day might not necessarily be the same throughout the week. DECISION [32] There is no issue concerning the jurisdiction of the Commission to make the determination sought by the NUW, arising from its s.170LW application. 31 [33] Clause 2.1 of the 2003 Agreement, identifying it as an agreement made between and applying to QPI and the NUW " in regard to the total terms and conditions of employment for employees at the Hume Distribution Centre (Hume DC) situated at 120 Northcorp Boulevard, Broadmeadows, Victoria " [emphasis added] establishes a stand-alone agreement. The question to be determined is whether the " combination day and afternoon shifts ", introduced in the pay week commencing 8 August 2004, can or cannot be introduced under the current 2003 Agreement, and must be answered by reference to the agreement in circumstances, regrettably, where there is no express provision dealing with the permissibility or otherwise of " combination shifts ". [34] The 2003 Agreement does not expressly, in terms, authorise or restrain the rostering of employees for work over a combination of shift work and day work. Each side draws comfort from other provisions within the 2003 Agreement to support their competing contentions. [35] Clause 7, Hours of work of the 2003 Agreement provides: " 7.1 The spread of hours shall be 6 am to 6pm, Monday to Sunday, both days inclusive. 7.2 The base payment for the calculation of premium payments or loadings is 100% of the ordinary hourly rate. 7.3 Unless by mutual agreement, there will be at least two consecutive days off work per week. 7.4 Weekends as ordinary time 7.4.1 The minimum rate to be paid for a day worker for ordinary time worked on Saturday shall be 150% of the ordinary rate. 7.4.2 The minimum rate to be paid for a day worker for ordinary time worked on Sunday shall be 170% of the ordinary rate. 7.5 Afternoon shift Afternoon shift is an ordinary hours shift finishing after 6.00 pm and at or before 12 midnight. Afternoon shift loadings are as follows: (a) Ordinary hours worked Monday to midnight Friday 130% (b) Ordinary hours worked up to midnight Saturday 180% (c) Ordinary hours worked up to midnight Sunday 200% 7.6 Night shift Night shift is an ordinary hours shift finishing after 12 midnight and at or before 8.00 am. Night shift loadings are as follows: (a) Ordinary hours worked Monday to midnight Friday 135% (b) Ordinary hours worked up to midnight Saturday 185% (c) Ordinary hours worked up to midnight Sunday 205%" [36] Clause 7.1 prescribes the spread of hours. Ordinary hours may be worked between 6.00 am and 6.00 pm on any day [subject to penalty payments on Saturdays (clause 7.4.1) and Sundays (clause 7.4.2)]. Work within the spread of hours must be read as referring to day work, since ordinary hours may also be worked at times outside of the spread of hours within clause 7.1, as afternoon or night shift work, defined by reference to the finishing time and subject to the payment of additional rates, as prescribed in clauses 7.5 and 7.6. [37] In my view, clause 7 does distinguish between day work and work done on night or afternoon shift. It is the work which is distinguished, for the purpose of determining the applicable payment due for work undertaken, as ordinary time work, at the times identified. The clause does not create a distinction as to employees, such that they are either day or afternoon or night shift employees and, in itself, does not prevent a roster over a week or four week period mixing days worked as day work or afternoon or night shifts. [38] QPI focussed on clause 4, Definitions of the 2003 Agreement, a number of the definitions are set out below: " 4.1 Weekly employee means a full-time or part-time employee. 4.2 Full-time employee , means a weekly employee who works thirty-eight (38) hours each week. 4.3 Part-time employee , means a weekly employee who works a roster of between sixteen (16) and thirty-two (32) hours per week. Part-time employees accrue entitlements on a proportionate basis, based on their rostered ordinary hours. 4.4 Casual employee , means a non-weekly employee who is ready, willing and available to work the hours required by the Company, at call. A casual employee may also have their hours rostered for the convenience of operational and employee planning. . . . 4.6 A week is defined as Monday to Sunday, both days inclusive. 4.7 A work roster is defined as the hours an employee is rostered to work ordinary hours on any day, or combination of days, during the week. A work roster also means an employee's start/finish times, ordinary days of work and/or shift 4.8 Ordinary hours are defined as those hours that comprise an employee's base weekly roster and is not applicable to casual employees. A weekly employee may have their ordinary hours rostered over a four (4) week cycle to average out their hours over the cycle. 4.9 A day is defined as the twenty-four (24) hours from 0000 hours to 2400 hours. . . . 4.13 Ordinary pay is defined as the employee's remuneration for the employee's normal average weekly number of hours (over the four (4) week cycle), calculated at the ordinary time rate of pay, exclusive of any premiums." [39] The Definitions clause offers little direct assistance in resolving the dispute between the parties. Clause 4.7 (definition of work roster) read in an ordinary sense, simply identifies the hours an employee is rostered to work ordinary hours on any day or combination of days during a week, which would also include starting/finishing times, the ordinary days of work and/or shift. In itself, it reveals nothing about the question now in contention. Clause 4.8 reinforces the recognition of a weekly roster for weekly employees (subject to possible averaging over a four week period). [40] Clause 8, Work rosters of the 2003 Agreement, provides in part: " 8.3 Minimum roster cycles A weekly employee shall be guaranteed a minimum work roster cycle of four (4) weeks. 8.4 Notice to vary work rosters 8.4.1 Every weekly employee shall be given a commencing and ceasing time for each day the employee is rostered to work, which shall not be changed except upon seven (7) days prior notice in writing or by mutual agreement between the Company and the employee. 8.4.2 If an employee is unable to work the new ordinary hours due to exceptional and critical circumstances (to be determined on a case by case basis) the distribution manager and the employee will discuss the matter. After these discussions the final decision of the distribution manager will prevail. 8.4.3 In the absence of mutual agreement, an employee may only have their roster cycle varied a maximum of four (4) times during a twelve (12) month period. 8.4.4 All changes to an employee's work roster, whether by mutual agreement or otherwise, must be recorded in writing" [41] Clause 8.3 provides a minimum work cycle for weekly employees, but otherwise places no constraints upon work cycles. Clause 8.4 deals with variation of rosters but not limitations upon their construction. However, clause 8.4.1 provides that each weekly employee shall be given a commencing and ceasing time for each day the employee is rostered to work, which envisages different starting times on different days within a roster. There is no basis to presume differential daily starting times within a roster could not extend to different " shifts ". [42] The NUW raised the number of provisions, which they contend distinguish between day and shift workers and by implication support its contention that employees are either day workers or afternoon or night shift workers for the whole of their roster. [43] Clause 9, Overtime, provides in part: "9.1 Full-time employees A full-time employee who works hours in addition to their daily rostered hours will be paid overtime at the rate of 150% for the first two (2) hours and 200% thereafter, at the ordinary hourly rate exclusive of any other premiums. Employees who work ordinary hours on a Saturday and/or Sunday, shall be paid 200% for all overtime hours worked on a Saturday and/or Sunday. 9.2 Shift work employees Shift work employees who work overtime will have the overtime loading added to their -shift loading: An afternoon shift employee working overtime receives 180% for the first two (2) hours overtime and 230% thereafter. A night shift employee working overtime receives 185% for the first two (2) hours overtime and 235% thereafter. 9.3 Part-time and casual employees Part-time and casual employees who work overtime shall be paid overtime, as per the above rates. The overtime rate for casual employees shall be payable exclusive of the casual loading." [44] Clause 11, Annual leave, provides in part: " 11.7 Annual leave loading 11.7.1 Each weekly employee will be entitled to receive an annual leave loading of 25%. Annual leave loading will apply to accrued annual leave only. 11.7.2 The annual leave loading of 25% is calculated on the base rate of pay for that employee's classification. An employee engaged on shift work will also receive his/her regular shift premiums in addition to the annual leave loading stated above (ie. straight addition of shift premium and annual leave loading)." [45] Clause 12, Personal leave, provides in part: " 12.2 Qualification for payment 12.2.1 To qualify for personal leave payment the employee must; (a) (Day employees) advise the Company, at least one (1) hour prior (or sooner) to the commencement of their work (either ordinary or overtime hours); and (b) (Afternoon and Night shift employees) advise the Company, at least two (2) hours prior (or sooner) to the commencement of their work (either ordinary or overtime hours); and (c) Advise of the nature and expected duration of absence." [46] Clause 13, Public holidays also identifies particular provisions applicable to " night shift employees " as follows: " 13.1 Definition For those employees whose shift ends in to a public holiday, the shift after the day on which the public holiday commences shall be taken as the public holiday except for Night Shift employees whose shift where the majority of hours for the Public Holidays of Good Friday, Easter Saturday, Christmas Day and Boxing Day, fall, then this day will be recognised as the Public Holiday and will be taken as time off with pay." [47] Clause 14, Meal breaks and rest pauses, identifies a particular entitlement applicable to " shift work employees " as follows: " 14.1 Meal breaks 14.1.1 An employee, unless by agreement shall not be required to work five (5) hours or more without taking a rest pause. An employee must not work more than six (6) hours without a break for a meal, of at least thirty (30) minutes duration. Meal breaks, except for shift workers, are unpaid. 14.1.2 Shift work employees are entitled to be paid a thirty (30) minute paid meal break. For day work employees working a ten (10) hour ordinary hours shift, the second meal break will be a paid thirty (30) minute meal break." [48] Clause 17, Redundancy includes " shift loading " within the definition of " week's ordinary pay " as follows: " 17.6 Severance Pay In addition to the period of notice prescribed under this Agreement for ordinary termination, the Company shall pay the following severance pay in respect of employees terminated due to redundancy: 17.6.1 Four (4) weeks pay for each year of continuous service, or part thereof (where in excess of one-(1) years service) - up to a maximum of forty (40) weeks. 17.6.2 employees who have less than one-(1) year's service shall receive two (2) weeks severance payment. 17.6.3 `Weeks' ordinary pay' means ordinary pay for the week plus shift loading." [49] Clause 19, Jury service provides leave on the day preceding attendance for jury duty for a " shift work " employee as follows: "A weekly employee shall be allowed leave of absence during any period of ordinary working hours when required to attend for jury service. Provided, that this clause shall have no operation while the period of entitlement to leave under it coincides with any other period of entitlement to leave or a rostered day off. During such jury service, an employee shall be paid the difference between the jury service fees received and the employee's agreement rate of pay as if working ordinary hours. The employee shall produce proof of jury service fees received, requirements to attend and attendance on jury service and shall give the Company notice of such requirements as soon as practicable after receiving notification to attend for jury service. When a shift work employee is required to attend during the day to serve on a jury, he/she will be allowed the immediate preceding shift off as leave under the terms of this clause." [50] Each of the agreement provisions relied on by the NUW does distinguish between afternoon and night shift employees and other employees. However, this is necessary because differential entitlements/obligations apply in relation to employees whilst working such shifts (as defined), relative to employees undertaking day work. The variation of language within the provisions is confusing, with the terms " shift work " (7.5 and 7.6), " shift work employees " (9.2 and 19), " An employee engaged on shift work " (11.7) and " Afternoon and Night shift employees " (12.2.1) variously used throughout the agreement. None of those terms is defined within the agreement. In my view, there is not a sufficient basis in that differing terminology to suggest they have different effect and nothing in the agreement establishes a class of afternoon shift only or night shift only employees, as is implicit in the NUW position, as distinct from persons being shift employees when engaged at hours falling within the definition of afternoon shift or night shift, when so engaged. [51] In respect of the negotiation of the 2003 Agreement, the evidence suggests that there was no specific discussion or agreement as to a " combination shift " of the type now in issue. [52] This could be because each party, holding the positions now advanced, saw no necessity to discuss such arrangements. The NUW, for its part, would have been content that such arrangements were not permissible. QPI, for its part, would be content that such arrangements were available to it under the 2003 Agreement. The negotiations provide no light on the question in issue. DETERMINATION [53] This is a most difficult matter. The agreement neither specifically authorises nor precludes " combination shifts " of the type presently in issue. The evidence in relation to the negotiation of the 2003 Agreement discloses that the parties gave no attention to the issue now in dispute. When the 2003 Agreement as a whole is considered, the provisions relied upon by the NUW, although distinguishing between afternoon/night shift and other/day work, do so in order to identify differential conditions applicable to work on afternoon and night shifts. [54] Clause 8.4.1 provides that each weekly employee shall be given a commencing and ceasing time for each day the employee is rostered to work, which envisages different starting times on different days within a roster, which might lead to work on a different basis - day work or afternoon and/or night shift, within a given roster period. [55] On balance, I prefer the interpretation of QPI, on the basis that there is nothing within the 2003 Agreement which directly proscribes the working of the " combination shifts " in question and nothing which can be reasonably and clearly inferred from the general context of the 2003 Agreement, and other provisions of the 2003 Agreement, which supports the prohibition of them. The best that can be said for the NUW case is that there is nothing in the 2003 Agreement which expressly, or by reasonable inference, authorises the " combination shifts" . As noted by Wilcox J, in respect of a disputed award provision, in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd: ". . . it would not be enough to show an employer has taken a course not expressly contemplated by an award; it must be shown the course contravened the award. The intent of an award may be conveyed by implication, but it will not ordinarily be enough that the award is silent about a particular subject." 32 [56] In the absence of an express or reasonably implied limitation upon QPI within the 2003 Agreement, I decline to make the determination sought by the NUW. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: T. Lyons with A.C. Thow on behalf of the National Union of Workers. S. Amendola with Y. Finger and M. Tamvakologos on behalf of Queensland Property Investments Pty Limited. Hearing details: 2004. Melbourne: September 1. Printed by authority of the Commonwealth Government Printer <Price code C> 1 Exhibit NUW 2 at para 1. 2 Exhibit NUW 1 at para 3. 3 Exhibit QPI 3 at para 23. 4 Exhibit QPI 3 at para 30. 5 AG832504 PR944063. 6 Clause 2.1. 7 Exhibit QPI 3 at para 2. 8 National Union of Workers - Queensland Property Investments Pty Ltd Hume Distribution Centre Agreement 2001 [AG812355 PR912079]. 9 Queensland Properties Investments Pty Ltd Hume Distribution Centre Agreement 1999 [Q0525 Print R3435]. 10 Exhibit QPI 3 at attachment PT4. 11 Exhibit QPI 3 at para 23. 12 Transcript at para 161. 13 " If an employee is unable to work the new ordinary hours due to exceptional and critical circumstances (to be determined on a case by case basis) the distribution manager and the employee will discuss the matter. After these discussions the final decision of the distribution manager will prevail. " 14 Exhibit QPI 3 at para 30. 15 Transcript at para 201. 16 Exhibit NUW 1 at para 2. 17 Transcript at para 30. 18 Exhibit NUW 1 at para 3. 19 Transcript at para 36. 20 Exhibit QPI 3 at para 16. 21 Exhibit QPI 3 at para 34 and Transcript at paras 159 and 160. 22 Exhibit QPI 3 at para 37. 23 Transcript at para 173. 24 Transcript at para 182. 25 Exhibit QPI 3 at para 32. 26 Exhibit QPI 3 at para 33. 27 Transcript at para 184. 28 Transcript at para 224. 29 Transcript at para 233. 30 Transcript at para 235. 31 Transcript at paras 217 and 218. 32 87 IR 141 at 146.