1 Fair Work Act 2009 s.739 - Application to deal with a dispute "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Visy Board Pty Ltd (C2025/2429) DEPUTY PRESIDENT SLEVIN SYDNEY, 1 JULY 2026 Private arbitration - Dispute Settlement Procedure Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2022 – application of call back rates to pre- shift overtime– dispute determined – call back rates apply where notification of pre-shift overtime occurs after employee leaves work on previous shift. [1] The AMWU has raised a dispute under clause 23 of the Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2022 about the way in which pre-shist overtime is allocated at Visy Board Pty Ltd’s (Visy) Smithfield and Warwick Farm sites. The dispute is over the allocation of pre-shift non-rostered additional hours. The Union claims the way those hours are being allocated amounts to call back under the Agreement, and the call back allowance applies. Visy claims that as it is pre shift overtime for which employees have volunteered overtime payments apply. The parties have asked the Commission to determine the dispute in accordance with clause 23.7 of the Agreement. [2] The dispute dates back to November 2024 when Visy proposed changes to the way overtime was allocated by introducing an overtime availability process to cover unplanned leave. The new process was introduced in January 2025. It is described in a company memorandum dated 6 January 2025 which read: MEMORANDUM: Overtime Availability Process for Unplanned Leave Coverage Effective Date - 6 January 2026 (commencement of 3 shift operation) Employee Responsibility- • Employees must mark themselves being available for either pre or post shift overtime on the OT wall planner if they want to be contacted for overtime. (Initial the relevant box) o The third box is for employees to write down limitations on when they would need to be called for pre shift overtime. Leave the box blank if you are happy for us to call at ‘anytime’. [2026] FWC 2455 DECISION [2026] FWC 2455 2 o VBWF is also working on a phone app option to manage OT allocation. • If Employee marks "Unavailable” for a given date; o They will not be called for overtime. o If no suitable coverage can be found, a casual or alternate site employee might be called upon. • • If Employee marks "Available" - o They will be asked for available post shift overtime as they are currently on-site. o They will be called for pre-shift overtime if it becomes available before the start of their next shift. o Overtime is available in 4 hour blocks - so it will be 3 hours of 1.5T and 1 hour of 2T. There is no call back rate to be paid as this is not a call back due to employees volunteering for overtime and agreeing to be contacted outside of their normal shift time. "Tea Money" will be paid. o The allocation will be based on skill competency and the ability of a person to complete the absent employee's role ▪ If a forklift driver is absent, a permanent forklift driver will be asked. If no permanent forklift drivers are available, we will ask a spare forklift driver. • If a corrugator wet-end operator is absent, we will ask another wet end operator to cover. If no wet-end operators are available, we will ask other corrugator tea members who are available and competent to operate the wet end. o Employees will be expected to provide up to date contat1 numbers so that supervisors can make contact when overtime is available. o If an "Available" employee misses a call, 10 minutes will be given to an 'Available' employee to call back before Visy moves onto the next 'Available' employee. If you miss the call, and more than 10 minutes has elapsed, call back anyway as the overtime might not have been allocated yet to somebody else. (An example is given in a graphic) Management Responsibility • Use the “available”/”unavailable” information on the OT wall planner when deciding who to call for unplanned overtime • Keep a log of who is being asked to work over-time to ensure fairness when opportunities for the same role is available. o Example; There are 3 corrugator stacker operators on a shift – if 1 is absent, we should share between the 3 on shift if they are available and not call the same person all the time. It is a different scenario if employees are marking themselves “Unavailable” • Annual Leave Coverage should be planned beforehand and the team pre-booked to avoid having to call employees. [3] The dispute is confined to whether the following statement in the Memorandum is correct when employees are called to at short notice to do pre-shift overtime before the start of their next shift: o Overtime is available in 4 hour blocks - so it will be 3 hours of 1.5T and 1 hour of 2T. There is no call back rate to be paid as this is not a call back due to employees volunteering for overtime and agreeing to be contacted outside of their normal shift time. "Tea Money" will be paid. [2026] FWC 2455 3 [4] I was provided with evidence of how the new system works. Employees who provide their availability for additional overtime may be called to do pre-shift overtime after a shift has finished, they have left the workplace, and before their next shift commences. The call usual comes from a shift supervisor who advises the employee that there is pre-shift overtime available and asks if they want to come into work early to do the shift. The system is used by Visy when work becomes available due to short term absences such as when another employee calls in sick with little warning. [5] The parties have proposed the following question for determination: Is an employee entitled to be paid call-back rates under clause 6.5.1 of the Graphics Arts Award 2000 (as at 1 March 2006, incorporated into the Visy Enterprise Agreement 2022) in circumstances where the employee: a. has voluntarily nominated themselves as available to work additional hours for a given roster period; b. finishes an ordinary rostered shift and leaves the workplace; c. is then contacted by the employer to return to work before their next shift; and d. the employee voluntarily agrees to do so? [6] The Agreement provides at clause 4.2 that the Graphic Arts General Award 2000 and the Metal Engineering and Associated Industries Award 1998 as they stood on the 1 March 2006 are incorporated terms. The parties accept that clause 4.2 operates so that clause 6.5 of the Graphic Arts General Award 2000 (the Award) regulates call back. Clause 6.5 of the Award reads: 6.5 CALL BACK 6.5.1 Call back applies when an employee is called back to perform work at a time when they would not ordinarily be at work and the employee has not been notified prior to last finishing work that they would be so called back. 6.5.2 Except as otherwise provided in 6.5.4 and 6.5.5, an employee called back will be paid one hour's ordinary pay for such call back and, in addition, will be paid as provided in 6.5.3. 6.5.3 All time worked on a call back will be paid for at double ordinary hourly rates of pay with a minimum of three hours' work or payment at such rate in lieu. 6.5.4 In the event of an employee receiving a call back and then, prior to commencing work, being informed by the employer that their services on such call are not required, the employee will, if they have: (a) left their place of residence, be paid as if they had in fact started work; (b) not left their place of residence, be paid one-hour's ordinary pay. [2026] FWC 2455 4 6.5.5 The provisions of the subclause will not apply where notification is given after the employees’ last occurring working day immediately preceding a weekend or rostered period off greater than 48 hours that they are required to report for overtime work prior to their normal commencing time on the first working day after that weekend or rostered period off and such overtime work: (a) does not exceed 30 minutes; and (b) is continuous with the commencement of their ordinary working time. [7] The focus of the parties’ submissions was clause 6.5.1. The AMWU contends that call back applies to the circumstances described in the Memorandum where under those arrangements an employee is contacted to work pre-shift overtime after they have left work and where they had not been notified prior to finishing their last shift. It points to the wording of the clause and in particular that call back applies “when the employee has not been notified prior to last finishing work that they would be so called back”. [8] Visy contends that the call back provision does not apply to work allocated in accordance with the Memorandum because employees are not called back to perform work. Instead under the arrangement they volunteer in advance to work overtime and can refuse to work the overtime when it is offered. Visy points to the words “when an employee is called back to perform work” and argues that the expression “call back” has always been understood to apply to circumstances where an employee is involuntarily summoned to work without prior notice, not when they have nominated themselves for overtime, had the overtime confirmed at short notice and have the option to refuse to work the additional hours. [9] Resolution of the dispute turns on the construction of clause 6.5.1 in the Award. The principles of construction are well settled. In Skene v Workpac Pty Ltd [2018] FCAFC 131 they were described as follows: [197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J). [10] Starting with the ordinary meaning of the words. The text of the clause seems clear enough. Call back involves an employee working hours in addition to their normal hours where [2026] FWC 2455 5 such work is performed at a time when they would not otherwise be working and they did not know they would be working those additional hours when they last finished work. If the words hold this meaning, then the AMWU’s construction is correct, and the practice contemplated in the Memorandum of employees being notified of pre-shift overtime after their last shift has finished is a call back and the relevant penalties apply. [11] The context of clause 6.5.1 read with the other provisions in clause 6.5 also suggests that the AMWU construction is correct. [12] Clause 6.5.4 makes provision for a payment where the employee receives a call but prior to commencing work is told they are not required. The provision, read with 6.5.1, compensates for the inconvenience of being called at short notice, preparing to attend for work and that work being cancelled. The payment required is determined by whether the employee has left home before the work was cancelled. [13] Clause 6.5.5 provides that the clause does not apply, and no call back penalty applies, where the employee is notified over a weekend (or other rostered period off greater than 48 hours), the additional work is for no more than 30 minutes and is at the commencement with their shift. It is noteworthy that the additional work is referred to as overtime in this sub-clause. This suggests that the clause is directed at providing a penalty payment when the time of the notification of work is after a shift is complete and before the commencement of the next shift. Clause 6.5.5 is an exception to the general rule in clause 6.5.1. This emphasises that clause 6.5.1 is identifying circumstances where the notification of the work is at short notice. [14] Visy contends that when the words are read in light of their industrial context and purpose, they should be read to include a notion that the work is performed involuntarily as the words “call back” connote the employer summonsing or requiring the employee to return to work. Reference to industrial context and purpose arise because the words of the clause themselves do not readily import a notion that the additional work is performed either by compulsion or voluntarily. Visy refers to a number of cases that have considered call back provisions in earlier awards to make good its preferred construction. [15] Visy referred to Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158. This was a decision of a Full Bench of the Industrial Relations Commission of New South Wales (NSWIRC). It considered a clause in the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005, an award of that Commission. The contest in that case was whether employees required to work an hour of overtime prior to a shift commencing were entitled to a payment equal to four hours overtime. The clause being considered was clause 9.6.1 which read: 9.6 Recall to Maintain Required Staffing Levels 9.6.1 An employee off duty who is required to report for duty for the purpose of maintaining required staffing levels shall, on so reporting, be entitled to a minimum payment equal to four hours at overtime rates. [16] The argument considered by the NSWIRC was different to what is being put in this case. There the contest was whether, when an employee was required to report for duty to work [2026] FWC 2455 6 overtime for the purpose of maintaining staffing levels and the overtime abutted the commencement of work by the employee on a normal rostered shift without the employee having been released from duty, the overtime worked was to be regarded as merely "an early start" or amounted to a recall under cl 9.6.1. The union in that case contended that it did not matter that the overtime worked pursuant to cl 9.6.1 abutted a normal rostered shift, the words were plain and unambiguous, and the employee was entitled to the minimum payment prescribed by the provision. I was taken to the reasoning in the decision at [51] which was as follows: 51 The ordinary meaning of "recall" is to "call back" or to "summon to return". Thus, if the employee is off duty and is then summoned to return to duty, the employee has been recalled. Importantly, where there is a need to recall an off duty employee or summon them to return to work to perform overtime work, it embodies the notion of an unstructured, unforeseen or unplanned event that is required to be dealt with at short notice. Employers are usually required to pay a premium on such recalls for the sudden interruption caused to the employee's rest or leisure time and the premium also acts as a deterrent against employers requiring employees to work unnecessary or excessive overtime: see Re Metalliferous Miners, etc, General (State) No 2 Conciliation Committee [1940] AR 249 at 255; Re Local Government Electricity Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [1975] AR 697 at 699. [17] Visy seeks to draw from this passage authority for the proposition that a “call back” is to be understood as including an element of compulsion. I do not read the passage in that way and do not consider that it assists in the construction of cl 6.5.1 of the Award. The NSWIRC was not considering the question of whether the clause being considered included an element of compulsion. Further, the term being considered in that case was “recall” and the relevant clause used the expression “required to report for duty”. Thus, the clause being considered used different wording to clause 6.5.1 of the Award. The NSWIRC was considering the terms of an award made under Industrial Relations Act 1996 (NSW). It was an award provision that had no relation in terms of legislative context, history, or otherwise to cl 6.5.1. I do not consider this decision provides context or an indication of purpose that assists in the construction of clause 6.5.1. [18] I also was taken to a decision of the Federal Court in Polan v Goulburn Valley Health [2016] FCA 440. There the Court considered whether work related telephone calls taken by an employee while not at the workplace amounted to being “recalled to duty”. The Court considered the meaning of the following clause: "25.3 In the event of an employee being recalled to duty for any period during an off-duty period such employee shall be paid a minimum of three hours' payment for each recall at the appropriate rate.". [19] I was taken to [74] of that decision which reads: In my opinion, the distinction lies in the notion of “recall” itself. Recall suggests a conscious decision by or on behalf of an employer to require an employee to perform specific duties of employment outside the employee’s ordinary hours of duty. This construction is consistent with the expressions used in both the 2005 Award, and the 2009 and 2011 Agreements, which refer to an employee “being recalled” or state that an employee “is recalled.” The use of those tenses, together with the use of the verb “recall,” suggest an active decision or instruction from an employer (or on behalf of an employer) to an employee. This construction is also consistent [2026] FWC 2455 7 with the purposes of the provisions to which I have referred. In order for the three hour minimum payment to have the limiting effect which in my opinion it is intended to have, an employer must be responsible for the decision to require an employee to return to perform her or his employment duties. Otherwise – and this is one of the consequentialist arguments I understand the respondent to make – an employee could unilaterally decide to return to work for a short period of time (say, half an hour) and trigger her or his entitlement to be paid for a three hour minimum period. Further, this construction is consistent with the collocation of provisions dealing with on-call and recall allowances. [20] The distinction the Court was referring to here was the distinction between an employer requiring work to be done and an employee doing extra work at their own volition. The Court determined that an employer must require work to be done in the sense that an employee could not unilaterally decide to return to work for a short period of time and trigger an entitlement to a recall allowance. At [76] the Court said: Putting the matter more generally, in my opinion the intention of the instruments (notwithstanding some confusion and interchangeable use of the words “recall” and “overtime”) is that the performance of overtime by an employee is more likely to be an ongoing arrangement between employer and employee, whereas a recall will occur by way of a specific instruction or direction to an employee on a particular occasion and for a more particular purpose. [21] This passage tells in favour of the AMWU’s preferred construction. The wording in clause 6.5.1 evinces a similar distinction between overtime on an ongoing arrangement, such as rostered overtime, and additional work which arises on a particular occasion. [22] I was also taken to a decision in this Commission in Lamb & Brown v NRG Gladstone Operating Services Pty Ltd [2018] FWC 4334 which involved a claim for recall payments for employees attending Joint Workplace Consultative Committee meetings that were scheduled monthly in accordance with a yearly schedule drafted and distributed to beginning of each year. The Commission held that this did not constitute recall. Given the different facts the decision does not assist here. [23] Visy referred to a decision of the Full Court of the Industrial Relations Court of South Australia in Cotter v United KG Facility Management Pty Ltd [2006] SAIRC 12. The Court referred to authorities that "support a conclusion that call back work involves a recall to work to attend to emergencies or unscheduled tasks, in contrast to scheduled work where it is customary for an employee to return to work to perform a specific job outside normal working hours." This distinction does not address the question raised here as the work that is being performed in accordance with Visy’s memorandum is to meet ad hoc circumstances to cover unexpected absences. It is not work to perform a specific job outside normal working hours. [24] The AMWU took me to cases which go to the question of whether an employee can be compelled to work additional hours. Those cases suggest that they cannot. Reference was made to Anthony v Fresh Food and Ice Co. Ltd [1946] AR NSW 64 a case which has been relied upon as authority for the proposition that an employee can be expected to obey instructions to work overtime if the request is to work reasonable overtime1. Those cases accord with what I 1 See Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 at [68] [2026] FWC 2455 8 regard as a more proximate context provided by s. 62 of the Fair Work Act 2009. Section 62 makes it clear that additional hours may be by request or may be required but only if it is reasonable to do so. Section 62(2) confers a right on employees to refuse to work additional hours if they are unreasonable. Visy’s argument that the capacity of an employee to refuse work offered under the Memorandum determines whether the work is performed as a call back should be considered in light of the statutory right in s 62 for the employees to refuse additional hours. Simply describing the additional hours as call back does not confer on an employer the right to compel the employee to work additional hours. Overtime arising from a call back is not excluded form the right to refuse. An employee may refuse a call back, whether made under the Memorandum or otherwise accordance with s. 62. The Memorandum allowing an employee to refuse a request to work overtime notified at short notice does not mean that the request is not a call back. [25] Accordingly, I do not agree with Visy’s construction that work done in accordance with the Memorandum does not attract the call back payment because call back only applies when the employee is required or summoned to return to work. I disagree for the following four reasons. [26] First, the text of clause 6.5.1 is straight forward, if an employee is called back to perform work at a time and the employee has not been notified that they were to perform that work prior to last finishing work, then the clause applies. [27] Second the context provided by the rest of clause 6.5 supports the AMWU’s construction. Those provisions provide for a penalty associated with work requested at short notice, make provision for payments when overtime is requested and then withdrawn, and make an exception for notice to be given for overtime notified over a weekend or rostered period off greater than 48 hours. [28] Third, Visy’s argument that the use of the term “call back” should be read as only applying where the call back is required rather than requested, which is made by reference to case law that the expression call back involves compulsion, is not made out. I do not consider that any of the authorities referred to by Visy stands for the proposition that a call back involves compulsion. Rather those cases reflect the purpose of call back calls which is to provide for a specific penalty when work is performed at short notice. Further, s. 62 of the Act provides that an employee has a right to refuse to work additional hours. This speaks against the notion that additional hours, whether described as call back or otherwise, cannot be required by compulsion. [29] Fourth, while the procedure in Visy’s Memorandum provides for an employee to nominate their availability to be called for pre-shift overtime on an overtime planner, clause 6.5.1 refers to when the notification actually occurs. For the purpose of cl 6.5.1 it is the actual time of the notification of the work to be performed that is important. If the notification to perform the work comes after the employee’s previous shift has finished and the work is to be performed prior to the next shift commencing, clause 6.5.1 designates that work as call back work. The wording of 6.5.1 is clear. A prior arrangement by which Visy’s supervisors are aware who may be available to accept a call back request does not affect the proper construction of the clause. It follows that if an employee is contacted to do work to cover a short-term absence and that contact is made after the completion of an employee’s shift then what is happening is [2026] FWC 2455 9 that the employee is being called back to work. It is the timing of the notification for the work required that is relevant to whether the clause applies, not some earlier indication by the employee that they may be available to be called back. [30] Consequently, the answer to the question posed is no. An employee is entitled to be paid call back rates under the Agreement if the employee has voluntarily nominated themselves as available to work additional hours for a given roster period. If the notification of the work to be done is made after the employee finishes an ordinary rostered shift and leaves the workplace, is then contacted by the employer to return to work before their next shift and the employee performs the work the clause 6.5 applies. There is an exception in clause 6.5.5 for notification given over a weekend or during a rostered period off greater than 48 hours, but otherwise the employee must be paid call back rates. DEPUTY PRESIDENT Appearances: Mr J Martin for the AMWU Mr S Meehan SC for Visy Board Pty Ltd Hearing details: 10 March 2026 Sydney Printed by authority of the Commonwealth Government Printer <PR811577>