Employer's enterprise agreement crucial in deciding case
The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued he was entitled to an additional day off (ADO).
In its defence, the employer noted that the alternative roster arrangement had to be agreed upon and was not an entitlement that could be demanded by the worker.
Dispute on ADO
The worker involved in the case worked as a pay electrician, which was covered under the employer’s enterprise agreement.
He argued that as the other pay trades had been getting an ADO who were already on the agreement, pay electricians like him were also eligible for such. “The [worker] states that there was no consultation regarding not having ADOs,” the Commission stated.
The dispute between the worker and the employer regarding the ADO arose from the specific provision of the agreement stating, “[The employer] provides that an employee may work alternative ordinary hours of work arrangement (160 hours per 4 weeks with an additional day off) to that set out in clause 6.1 (152 hours per 4 weeks).”
In solving the dispute, the Commission had to find whether “an employee subject to the application of the EA entitled to elect hours of work arrangement in accordance with clause 6.3, in circumstances where the employer opposes the arrangement.”
The worker contended that the word “may” implies that he is allowed to select the alternative roster without needing to gain agreement from the employer.
He further said that during the lead-up to the agreement vote, the employer was not clear and did not provide the relevant details about the roster system.
Lastly, the worker said that there are no operational impediments to his request and cited other workers and departments where the employer's concerns about his request were not founded.
Despite such claims, the employer argued that the clauses under the agreement were straightforward and there was no ambiguity.
Hence, it argued that there was no need to interpret the clause as no ambiguity occurred and no other evidence was needed to be considered other than the plain meaning.
“The [employer] submits that the resolution of the question turns on the meaning of the word ‘may’ in clause 6.3 and that in context, it both allows and permits the [employer] to roster employees (team members) consistent with the clause,” the case noted.
Commissions’ decision
After examining the case and the relevant clauses, the FWC was satisfied that the worker was entitled to an ADO only if agreed upon by the employer.
It noted that the word “may” expresses a decision to offer or not, at the discretion of the employer. It does not provide a unilateral right to request and start without acquiring approval from the other party unless it met the requirements.
“The [worker] is able to be placed on ADO roster with the agreement of the Respondent. In this situation, the [employer] has not agreed, however, this may change based upon the [employer’s] future operational requirements,” the Commission stated.
