(AGENPARL) – SYDNEY (AUSTRALIA), gio 02 luglio 2020
Today a Full Bench of the Fair Work Commission handed down its decision in what has been known as the ‘Ordinary Hours of Work case’ – a long running dispute between the United Workers’ Union and the Security Industry.
The decision in favour of ASIAL ensures that members will continue to be able to allocate ordinary hours and overtime in roster cycles of up to 8 weeks in an efficient and cost effective manner.
The matter was heard by a Full Bench of the Fair Work Commission on 17 and 18 June 2020.
ASIAL engaged Tim McDonald from Moray and Agnew Lawyers assisted by Chris Delaney, ASIAL’s Workplace Relations Advisor to defend the industry position and seek to maintain the status quo.
The ordinary hours of work decision Fair Work Commission Decision
In its 2018 decision of the Federal Court – Full Court, dismissed United Voice’s appeal endorsing the decision of Tracey J in the Federal Court where he concluded:
“ The Award provides for ordinary hours (that is, 38 hours per week) to be averaged over two, three, four or eight week roster cycles “at the discretion of the employer”: cl 21.1(a). It also provides for additional payments for the working of overtime hours: cl 23.3.
 Rostering arrangements are within the discretion of the employer. Consistently with the existence of this discretion the Award does not contain any express restrictions on the exercise of that power. In particular it is open to an employer:
• to choose the day on which a roster is to begin;
• to decide whether overtime hours can be included in the roster at a point before which all ordinary hours have been worked;
• to decide on the number of days on which ordinary hours can be worked; and
• to fix the number of days of the week on which ordinary hours are to be worked (subject to the limitations prescribed by cls 21.3 and 21.4).”
 Absent such express restrictions, the ordinary and natural language of the Award, in my view, permits an employer to act in the manner in which the respondent has done in the present case.
This confirmed that the long standing practice of allocating overtime to Saturdays or Sundays as overtime days in a roster cycle of up to 8 weeks was both lawful and an acceptable industry practice.
The Union (now the United Workers’ Union) subsequently filed an application in the Fair Work Commission to vary the Security Services Industry Award to prohibit employers from allocating overtime to a day, which carries a similar penalty i.e. Saturday or Sunday.
The stated objective of the application was to “ensure that an employer covered by the Award cannot arbitrarily allocate overtime hours within a roster cycle regularly and systematically to hours where the overtime penalty is absorbed within another penalty”.
The Full Bench of the Fair Work Commission stated “we are not satisfied that the variations to the Security Award 2020 sought by the UWU, or any variations to the relevant provisions of the award, are necessary to meet the modern awards objective. Accordingly, the UWU’s application is dismissed”.
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