Worker claims she met the criteria in their enterprise agreement
The Fair Work Commission (FWC) recently dealt with a dispute concerning a part-time worker's attempt to convert to full-time employment.
The case revolved around the interpretation of specific clauses in an enterprise agreement and highlighted issues related to employment contracts and leave entitlements.
The worker argued that by accepting additional "shift pick-ups" and then taking approved annual leave for those shifts, she had met the minimum hours requirement specified in the agreement.
The FWC noted that this interpretation, if accepted, would have significant implications for how rostered hours are calculated and potentially accelerate the path to full-time status for many part-time employees.
Worker seeks full-time status
The dispute arose when a part-time casino dealer, who was employed in the Premium Tables division of Crown Melbourne, sought to convert to full-time employment. The worker was on a waitlist for full-time positions, along with other part-time employees.
Frustrated with the “slow progress,” she planned to a clause in their enterprise agreement, specifically the Crown Melbourne Limited Enterprise Agreement 2023.
The agreement contained a clause titled "Conversion to Full-Time Employment," which allowed part-time employees to request conversion to full-time status under certain conditions.
The key requirement was that the employee had to be rostered for 152 "Minimum Rostered Hours" per cycle for any 9 cycles in the 13 full roster cycles immediately before the request.
The worker's regular part-time hours were approximately 130 hours per 4-week cycle, falling short of the 152-hour threshold. To bridge this gap, she began accepting "shift pick-ups" – additional shifts offered by colleagues.
However, instead of working these extra shifts, she applied for and was granted annual leave for those periods.
Interpreting agreement clauses
The central issue in this case was the interpretation of clauses 20.6 and 20.7 of the enterprise agreement. These clauses detailed the conditions for full-time conversion and how to calculate the Minimum Rostered Hours.
Clause 20.6 stated:
"Subject to the terms of this clause, a Part-Time Employee may request to convert to full-time employment if:
(a) a Part-time Employee has at least 12 months' continuous service in the role that they occupy at the time of making a request for conversion; and
(b) a Part-Time Employee is rostered the minimum hours per cycle specified in the table below for any 9 cycles in the 13 full roster cycles immediately before the request is made:"
The table referenced in the clause specified 152 hours as the minimum for full-time conversion.
The employer argued that the hours related to shift pick-ups should not count towards the Minimum Rostered Hours, even if they were taken as annual leave.
The worker, on the other hand, contended that these hours should be included as they were periods of paid leave approved by the company.
FWC’s interpretation of employment relationships
The FWC's decision hinged on the interpretation of two seemingly contradictory subclauses in clause 20.7.2:
"20.7.2 For the purposes of sub-clause 20.7, the Employee's rostered hours per cycle:
(i) will not include hours that relate to pick up shifts that have been given away by an Employee;
(ii) will include any period of paid leave approved by the Company during the relevant cycle(s);"
The worker argued that the annual leave taken for the picked-up shifts should count towards the Minimum Rostered Hours as per subclause (ii). However, the employer contended that these hours were excluded under subclause (i) as they related to pick-up shifts.
The Commission's ruling emphasised the importance of context in interpreting agreement clauses:
"The inconsistency is resolved by recognising that cl20.7.2(i) deals with a particularly specific subject matter – pick up shifts. There is no dispute that, if the pick up shifts accepted by [the worker] were worked, they would be excluded by clause 20.7.2(i) from her Minimum Rostered Hours. It would be an unusual result if hours not worked could count towards the total yet those same hours, if actually worked, did not count."
The FWC’s decision
Ultimately, the FWC ruled in favour of the employer, determining that the conditions for full-time conversion were not met by the worker. The decision was based on several key points:
"Clause 20.7.2(i) operates to exclude certain 'hours'. The hours excluded are those 'in relation to' pick up shifts given away by an employee, not hours 'for' such a shift. There is no requirement that the hours actually be worked."
The Commission also noted the broader context of the agreement:
"The conversion rights from part-time to full-time employment are structured around hours rostered by the company and additional hours requested by the company to be worked. Pick up shifts are a bespoke arrangement entered into voluntarily between any two employees and [the employer] that sit outside that general structure."
Finally, the decision highlighted the limitations of applying contract law principles to enterprise agreements:
"An enterprise agreement is not a contract and, for that reason alone, I have significant doubts that the rule applies to the interpretation of enterprise agreements."
FWC reminded employers that enterprise agreements are unique instruments that may require different interpretative approaches compared to standard contracts.
