Union argues employees deserve longer breaks after extended shifts, while employer pushes back
The Western Australian Industrial Relations Commission recently dealt with a significant dispute concerning minimum break requirements for workers completing overtime after 12-hour shifts.
The case centred on interpreting specific clauses within an industrial agreement that established different break entitlements for various shift patterns.
The workers' union argued that employees completing 12-hour shifts followed by overtime work must receive 12-hour breaks between successive shifts, except in extreme emergency situations.
The employer disagreed, arguing that workers could voluntarily accept reduced 10-hour breaks when choosing to work overtime between successive 12-hour shifts.
Workers employed on a full-time basis in this case were prison officers who worked in rostered patterns of either 8, 10, or 12-hour shifts under the Department of Justice Prison Officers' Industrial Agreement 2022.
The standard roster provisions required "at least eight hours between the ceasing of one shift and the commencement of the next shift except in the case of Officers working 12 hour shifts where the break shall be 12 hours."
All full-time officers, except those undergoing Entry Level Training Program (ELTP), were required to work reasonable overtime beyond their rostered ordinary hours.
This overtime requirement operated under clause 26.3 of the agreement, which stated that officers "are required to work reasonable Overtime in addition to their ordinary hours of work," subject to minimum time off duty provisions.
The overtime requirement was specifically subject to clause 28, titled "Minimum Time off Duty when Overtime is Worked." For 12-hour shift workers, clause 28.1 provided that they "shall be entitled to 12 hours off duty between successive shifts."
However, clause 28.2 created an exception for emergency situations, stating that "In an extreme emergency, an Officer who works a 12 hour shift may be required to perform 2 hours Overtime, requiring at least 10 hours off duty before returning to work."
The Commission applied established principles for interpreting industrial agreements, recognising that such documents often reflect practical workplace realities.
The Minister for Corrective Services argued that clause 28.2 "properly understood provides for the only circumstance where [the minister] can compel an Officer, working a 12-hour shift pattern, to work overtime if the working of the overtime will result in the Officer having less than a 12 hour break off duty between successive shifts."
The minister further argued that "it would be an overly narrow interpretation of clause 28.2 of the Agreement to say that it provides that an Officer working consecutive 12 hour shifts can only work overtime in circumstances of an 'extreme emergency', and then, only a maximum of two hours."
This position emphasised that voluntary overtime opportunities should remain available to workers regardless of their regular shift length.
The Western Australian Prison Officers' Union of Worker argued that the clause's heading "Minimum time off duty when overtime is worked" was "self-evident" and represented the parties' clear intention. [The union] also argued that "'all other Officers' referred to in clause 28.3 means 'not those Officers that worked a 12 hour shift', and argues that any other meaning would be to strain for meaning that is not there."
A crucial element in the Commission's analysis involved clause 28.4, which specifically addressed pay protection for workers who had not received adequate breaks.
This clause stated that workers who had "not had at least 10 hours off duty before their next rostered shift is due to commence shall, without loss of pay for ordinary hours of work for which they are absent, not be required to commence the shift until the Officer has had 10 hours off duty."
The Commission found significant that the agreement contained no equivalent pay protection provision for workers requiring 12-hour breaks.
The decision noted: "The inclusion of clause 28.4 which provides for the preservation of pay for Officers who have not had ten hours off duty before their next rostered shift indicates that the parties considered it necessary to make this provision to ensure that Officers who undertake overtime are not penalised for being absent for part of their subsequent shift."
The Commission examined whether restricting 12-hour shift workers to emergency-only overtime would create operational problems.
The Commission found: "If the parties intended that Officers rostered on 12 hour shift patterns were to be denied access to overtime or have limits on the overtime they may access, it would have been consistent with this intention to specify such restrictions in this clause."
The Commission concluded that worker entitlements could be voluntarily waived. The Commission accepted that "An 'entitlement' may be waived by the beneficiary, however an employer may not compel the waiver."
The final ruling stated: "I find that the parties did not intend for clause 28.1 and 28.2 to preclude an Officer rostered on 12 hour shift patterns from working overtime on a voluntary basis. Further, in circumstances where Officers on 12 hour shift rosters voluntarily worked overtime, then clause 28.4 applies to require an Officer to have 10 hours off duty without loss of pay."
The Commission answered [the minister's] interpretation question with "no," confirming that clause 28 did not require 12-hour breaks for workers choosing voluntary overtime after 12-hour shifts.
