ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to Commission to deal with dispute under Ego Pharmaceuticals P/L and National Union of Workers Enterprise Agreement 2014 (Agreement) – dispute centred on meaning and application of clause 10.1 of Agreement in relation to night shift employees and their annual leave entitlements – Agreement provides shift penalty of 15% for afternoon shift workers and 30% for night shift workers – employees entitled to four weeks annual leave during which they will be paid ordinary pay – also provides employees will be paid annual leave loading of 17.5% of four weeks ordinary pay – annual leave loading is paid on the basis that ordinary pay means base rate of pay excluding shift penalties – effect of this is that day shift employees get paid 17.5% more than what they would have been paid if at work, an afternoon shift employee is paid 2.5% more than if at work and night shift employee is paid 12.5% less than if at work – NUW contended that night shift employees should be paid annual leave loading in addition to night shift penalty – submitted that Agreement has two separate terms: ‘base rate of pay’ and ‘ordinary pay’, and should therefore attribute different meanings – clause 10.1.1 uses the term ‘ordinary pay’ and not ‘base rate of pay’, so ‘ordinary pay’ should refer to what workers would ordinarily receive (inclusive of night shift loading) – Ego contended that Agreement expressly provides the annual leave loading to be payable on base rate and that ‘ordinary pay’ means base rate of pay for work performed before provision of any applicable loading, allowances or penalty rates – Commission considered the factor with the strongest influence over meaning to be attributed to ‘ordinary pay’ was practice which was in place at the time Agreement was put to vote – in absence of evidence, Commission determined the only objective fact was that Ego had been paying annual leave loading on base rate of pay – payment of annual leave loading on base rate of pay plus shift loading had not occurred in previous Agreements – Commission also noted that NUW had not sought to complain about payment of annual leave loading to afternoon shift employees – the fact that night shift employees were paid less whilst on annual leave than when working night shift may be an undesirable and unintended consequence, however Commission must not rewrite Agreement to remove such consequence – Commission held ‘ordinary pay’ in clause 10.1 of Agreement meant ordinary hourly rate of pay of employee without any shift loading or other penalty or loading included. National Union of Workers v Ego Pharmaceuticals P/L t/a Ego
