appeal from decision of Western Australian Industrial Magistrates Court
where employer appeals against the Magistrate's construction of Part B cl 6 of the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020
where enterprise agreement provides for payment of overtime based on annual hours with separate provisions for different categories of employees
Quick Take
1Where an enterprise agreement provides for overtime based on annual hours but is silent on how hours are treated when an employee transitions between employment categories during the year, it is implicit in the agreement that hours worked in one capacity accrue towards the overtime threshold when the employee works in another capacity, provided reasonable adjustments are made to prevent double payment for the same hours.
2The absence of an express provision dealing with accrual of hours upon a change in employment status does not manifest an intention to extinguish accrued hours, particularly where the agreement contemplates a hierarchy of employment categories through which employees may progress and where other entitlements (such as leave) are expressly preserved on transition.
3On appeal from a construction finding, the appellant must demonstrate not only error in the construction adopted but that the error affected the relief granted; it is not sufficient to show the magistrate's reasoning was imperfect if the outcome is nonetheless supportable on a correct construction.
