​EA varied to remove ambiguity over 'day workers'


​EA varied to remove ambiguity over 'day workers'

An enterprise agreement has been varied to ensure employees who started early in the morning were not unintentionally eligible for a shift loading.

An employer has successfully applied to have an enterprise agreement varied that could have seen employees who started a shift early in the morning unintentionally eligible for a shift loading instead of ordinary pay.

Facts of case

Sunfresh Health Pty Ltd applied to the Fair Work Commission (FWC) to vary a clause in the enterprise agreement covering its employees. It claimed that when two clauses of the agreement were read together, there was an overlap between the ordinary hours of day workers and morning and afternoon shift workers. Sunfresh wanted to exclude workers performing day work from the definition of “shift workers”. 

Sunfresh had notified the bargaining representatives of the proposed variation before submitting it.

One clause stated that employees who were “day workers” would be paid the ordinary rate of pay, and that their hours were in the range of 5.30am to 6.30pm. The other referred to a “shift” for certain types of workers that commenced at 6am and stated that these workers would receive shift loadings. As it was possible for some employees to come within both categories, there was ambiguity over whether those employees should be paid ordinary pay or shift loadings. The intention was that “day workers” who started between 5.30 and 6am should receive ordinary pay only. 

Sunfresh obtained a declaration from the bargaining representative that the latter was the intention of the parties to the agreement. 


The FWC approved the variation. It commented that it would generally err on the side of approval where competing interpretations were argued, and take account of the mutual intention of the parties when negotiating the relevant clause. In this case, the agreement did not have a definition of “shift work” or “shift worker”, but the variation made it clear that shift workers were different from day workers. 

The bottom line: Before lodging a proposed agreement, it is recommended to seek expert advice, eg from lawyers, as to the meaning of all clauses in it, to avoid possible ambiguities.

When applying to vary an agreement, obtaining the prior approval of bargaining representatives is likely to assist the application significantly.

Read the judgment

Sunfresh Health Enterprise Agreement 2017 variation, [2018] FWCA 5807, 23 October 2018 
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