Interpretation of Employment Award

Question

Australia has the General Retail Industry Award:

Specifically regarding overtime:

http://awardviewer.fwo.gov.au/award/show/MA000004#P778_67718

My question is specifically around overtime for casual employees.

29.2 -c - iii

(c) Hours worked by casual employees:

(i) in excess of 38 ordinary hours per week or,where the casual employee works in accordance with a roster,in excess of 38 ordinary hours per week averaged over the course of the roster cycle;

(ii) outside of the span of ordinary hours for each day specified in clause 27.2;

(iii) in excess of 11 hours on one day of the week and in excess of 9 hours on any other day of the week;

shall be paid at 175% of the ordinary hourly rate of pay for the first three hours and 225% of the ordinary hourly rate of pay thereafter (inclusive of the casual loading).

This final clause (iii) in particular:

in excess of 11 hours on one day of the week and in excess of 9 hours on any other day of the week;

There seems to be several interpretations to this:

• Work 10 hours shifts for 7 days, you get paid 1 hour overtime for 6 of those days (as one did not hit 11 hours, you don't get overtime for that day).
• Work 10 hours shifts for 7 days, you get no overtime, because you did not meet both the 11 hour and 9 hour conditions
• Work a 12 hour shift on the monday, and 10 hour shifts for the rest of the week, you get 1 hour overtime for every day
• Work a 12 hour shift, then a 13 hour shift, then 10 hour shifts for the rest of the week... you get 1 hour for the 12 hour shift, 4 hours for the 13 hour shift, and one our for the rest (we count the first instance of being over 11 hours).
• Work a 12 hour shift, then a 13 hour shift, then 10 hour shifts for the rest of the week... you get 3 hour for the 12 hour shift, 2 hours for the 13 hour shift, and one hour for the rest (we count the shift with the most amount of hours as the "11 hour" shift).

Answer 1

I am not aware of Australian case law regarding this, but I will outline the rationale I would present for judicial interpretation of the [statutory?] language.

None of the bullet points in your question requires interpretation of (iii): in each case, the total amount of hours in a week exceeds 38, thereby triggering the application of (i). But I gather that the last bullet encompasses the sense of your question whether the calculation of overtime depends on the sequence of schedules. The answer is no.

The language in (iii) has no indication that the 11-hour schedule needs to precede the 9-hour schedule even if it is written in that order. Notice how (iii) is in terms of "any other day" instead of "a later date". The term "other" is more flexible or wider encompassing --in terms of chronology-- than a term such as "later".

Thus, as an example, suppose an employee worked three days giving a total of 27 hours in a week. Clearly he did not exceed 38 hours (also assume for simplicity that (ii) and the clause on "roster cycle" are inapplicable). If the employee's schedules were 10, 10, and 7 hours, he gets no overtime because he never exceeded 11 hours.

By contrast, if the employee's schedules were 12, 2, and 13 hours, respectively, then gets (13-11) + (12-9) = (13-9) + (12-11) = 5 hours at overtime rate. The language in (iii) allows for subtracting 11 and 9 hours from either of the 13- and 12-hour schedules interchangeably (also notice that the 2-hour schedule plays no role in the calculation).