FWC dismisses ‘misconceived’ arguments for overtime

The full bench of the Fair Work Commission has granted but dismissed an appeal against an earlier decision that concluded a part-time employee’s double shifts were not broken shifts, nor necessary, and that they had not exceeded ordinary hour limits for part-time workers.

The appellant initially applied to the FWC for determination under s 739 of the FW Act, alleging numerous instances of unpaid overtime and penalty entitlements by his employer, NSW Trains, where he had worked as a customer attendant between March 2024 and October 2024.

As the specific dispute period, the worker was a part-time employee, contracted for 20 hours a week and covered by the Sydney Trains and NSW TrainLink Enterprise Agreement 2022.

Despite purporting that closely scheduled broken shifts or extended shifts necessitated overtime and penalty rates, the commission found that the 8:00am to 12:00pm and 8:00 to 12:00am shifts on the same day did not meet the definition of a broken shift under clause 201.2 of the agreement as they were not completed within 12 hours.

In this way, commissioner Adam Walkaden found the appellant was not entitled to any additional pay penalty rate or overtime.

In appealing the decision, the employee argued that the commission incorrectly understood additional hours as connected to existing shifts and further failed to identify which shift they were connected to.

It was similarly purported that management forced the employee to work with an eight-hour shift break in the middle which, as identified by the enterprise agreement, should be avoided unless as a necessity.

The appellant also argued that NSW TrainLink intentionally uses two conflicted legal interpretations of the work schedule – that is, additional hours as a shift extension and additional hours as a new shift – “so that they can use them interchangeably to reject penalty payments”.

While the full bench – consisting of vice president Ingrid Asbury, deputy president Nicholas Lake and deputy president Peter Hampton – granted permission to appeal as it determined there was “at least at this threshold permission to appeal level of assessment, arguable case of appealable error in relation to the decision on this subject matter”, the bench did not ultimately find an appealable error.

The bench further identified the appellant’s submissions as “circuitous, confusion and [are] not based on any cogent legal argument”.

In response to an alleged denial of procedural fairness whereby the respondent was allowed to file submissions and evidence within one hour of the deadline, the bench noted that the appellant failed to identify how this delay impacted proceedings.

In the same way, the bench identified some of the questions raised by the appellant as travelling “well outside the authority conferred on the commission”.

One of the questions asked: “Does the commissioner believe that compensation is due to the appellant for all the work that he has had to put in over the last year on his own time to try and get paid what he should have been paid 20 months ago?”

In this way, it was noted that the commission needed to not engage with questions relating to judicial power.

With regard to broken shifts and additional hours, the bench noted that the appellant’s definition of additional hours as meaning hours added onto existing rostered shifts is “an unnecessarily constrained interpretation" and that, under clause 15.49(f), “additional hours” simply mean hours above the minimum for a part-time worker.

Further, the bench concluded that the commission was correct that the appellant did not work a broken shift, due to clause 201.2, which states: “A broken shift is one during which employees are released from duty for other than meal breaks and consists of two parts, which, except in cases of accident or unavoidable necessity, shall be completed within 12 hours and must comply with legislative requirements.”

Further, the full bench clarified that both full-time and part-time workers can be asked to perform additional duties or hours unless it is unreasonable, and that records showed the appellant could decline to work these hours even after the roster had been published.

Finally, it was determined that the appellant was not entitled to overtime or penalty rates as they referenced a clause relevant to full-time workers and would instead need to work more than eight ordinary hours per day.

In this way, the full bench concluded that there was no error in commissioner Walkaden’s original ruling, and that the appeal was dismissed.

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