2026 WAIRC 00392
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00392



CORAM
:
INDUSTRIAL MAGISTRATE T. KUCERA



HEARD
:
MONDAY, 11 AUGUST 2025



DELIVERED
:
MONDAY, 15 JUNE 2026



FILE NO.
:
M 7 OF 2023



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





MSS SECURITY PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – FAIR WORK – breaches of award – underpayment of wages claim – award contraventions - alleged breach of instrument –  where claimant employed on a fly-in, fly-out basis – failure to pay an amount under a modern award - Security Services Industry Award 2010 – Security Services Industry Award 2020 – construction of award – where respondent provided one continuous ‘long break’ per roster cycle – where claimant required to work more than 48 hours without a ‘long break’ - whether rostering arrangements complied with ‘long break’ provisions contained in the Awards – whether claimant underpaid for work done – application of award rostering and long break provisions – entitlement to payment at overtime rates – Individual Flexibility Agreements – s 144 and s 145 of the Fair Work Act 2009 (Cth) – whether employees are ‘Better Off Overall’
Legislation : Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Acts Interpretation Act 1901 (Cth)
Instruments : Security Services Industry Award 2010
Security Services Industry Award 2020
Cases referred
to in reasons: : King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; (2021) 308 IR 171
Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705; (2024) 332 IR 387
Sydney Night Patrol and Inquiry Company Limited v Pulleine [2014] FCA 385
United Voice v Wilson Security Pty Ltd [2019] FCAFC 66; (2019) 269 FCR 608
Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Four Yearly Review of Modern Awards [2015] FWCFB 4466; (2015) 252 IR 256
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Result : Claim proven
Representation:
Claimant : Mr O. Fagir (of counsel) and with him, Ms S. Sayed (of counsel) on behalf of Construction, Forestry and Maritime Employees Union
Respondent : Mr J. Bourke KC (of counsel) and with him, Ms N. Campbell (of counsel) as instructed by Gilchrist Connell



REASONS FOR DECISION
What This Matter is About
1 This matter involves an underpayment of wages claim, in which it is alleged MSS Security Pty Ltd (respondent), has contravened the ‘long break’ and ‘overtime’ provisions of two modern awards being the:
i. Security Services Industry Award 2010 (2010 award); and
ii. Security Services Industry Award 2020 (2020 award).
2 Procedurally, this matter has a relatively long history, which commenced with an originating claim the Construction, Forestry, Maritime, Mining and Energy Union (claimant) On 17 December 2024, orders were issued amending the name of the claimant to the Construction, Forestry and Maritime Employees Union.
lodged on 9 March 2023 (claim).
3 Before setting out the issues to be decided, it is important to explain how the procedural history of this matter has affected the case the Court ultimately heard.
Background
4 The claim, as it was originally made, alleged the respondent had engaged in three types of contraventions of the Fair Work Act 2009 (Cth) (FW Act) Form 1.1 – Originating Claim lodged 9 March 2023 (originating claim) [12] – [15].
.
5 Firstly, the claimant alleged the respondent, in the period 6 July 2014 until 30 June 2019 (initial claim period) had committed numerous contraventions of the 2010 award by failing to pay one of its members, Craig Lummas (Mr Lummas), penalty rates as required and correct loadings, for overtime he had performed in addition to his ordinary hours of work.
6 Mr Lummas was employed by the respondent as a security officer on or around 16 November 2011 until his resignation on 24 July 2022. He worked at various locations which included on Fly in Fly Out work (FIFO) at BHP’s Pilbara Operations in Port Hedland and for the Pilbara Port Authority (PPA).
7 The claimant alleged that by engaging in breaches of the 2010 award, the respondent had contravened s 45 of the FW Act, resulting in Mr Lummas being underpaid during the claim period, a total amount of $109,471.39.
8 Secondly, the claimant alleged that contrary to s 323 of the FW Act, the respondent had failed to make all of the payments in full, that were owed to Mr Lummas in each of the pay periods the contraventions of the 2010 award were said to have been committed (alleged s 323 contraventions).
9 Thirdly, the claimant alleged the respondent had failed to provide employment records following a request the claimant made under regulation 3.42(4) of the Fair Work Regulations 2009 (Cth) (alleged records contraventions).
10 By way of relief, the claimant sought declarations under s 545 of the FW Act the respondent had:
i. contravened various provisions of the 2010 award;
ii. breached s 323 of the FW Act; and
iii. in respect of the records contraventions, contravened s 535 of the FW Act originating claim [50].
.
11 In addition to the declaratory relief, the claimant sought:
i. an order requiring the respondent to compensate Mr Lummas by paying him the amount he was allegedly underpaid;
ii. the imposition of pecuniary penalties under s 546 for each contravention of the FW Act, payable to the claimant; and
iii. an order under s 547 of the FW Act for interest to be paid on the amount Mr Lummas was allegedly underpaid originating claim [50].
.
12 In its response to the claim that was lodged on 4 May 2023 (first response), the respondent admitted the 2010 award applied first response [2].
. However, the respondent denied that it had contravened the 2010 award in the manner alleged or at all first response [12] – [13].
.
13 The respondent similarly disputed that it had engaged in the alleged records contraventions or that it had breached s 323 of the FW Act first response [15].
.
Discovery Orders
14 After the first response was lodged, the claim was (as is the Court’s usual practice) referred to a Pre-trial Conference that was held on 24 July 2023.
15 While the claim could not be resolved in the Pre-trial Conference, orders issued that required the respondent to discover various categories of employment records, containing information on:
i. the roster Mr Lummas worked;
ii. his hours of work; and
iii. the classification Mr Lummas was engaged in during his employment with the respondent.
16 Pursuant to these orders, the respondent was required to provide the claimant with the types of documents described by 15 August 2023 (discovery orders) discovery orders issued by the Clerk of the Industrial Magistrates Court of Western Australia on 25 July 2023.
.
17 In the lead up to the date specified, the respondent’s solicitors wrote to the claimant’s representatives requesting an extension of time to comply with the discovery orders.
18 When the claimant opposed this request, the respondent emailed the Court on 15 August 2023 seeking an extension of time to comply with the discovery orders.
First Initial Hearing
19 In response to an exchange of correspondence that followed the respondent’s email to the Court, the claim was referred to an initial hearing that was held on 26 September 2023 (first initial hearing).
20 During the first initial hearing, a direction requiring the respondent to comply with the discovery orders by 10 October 2023 was made.
21 In addition to an extension of the date for the respondent to comply with the discovery orders, the parties were ordered to confer on a minute of proposed programming orders so the claim could be progressed to a final hearing.
22 In the event the parties could not to agree upon a set of programming orders, the initial hearing would be reconvened on 23 October 2023 (second initial hearing) Form 20 - Orders issued by Industrial Magistrate Kucera 27 September 2023.
.
Second Initial Hearing
23 As directed, the parties conferred on a minute of proposed programming orders. When they were unable to agree upon the terms of these orders, the second initial hearing went ahead as planned.
24 At the conclusion of the second initial hearing, the claimant was ordered to lodge its witness statements in support of the claim by 4 December 2023. The respondent for its part was ordered to lodge it’s witness statements in response by 15 January 2024 (programming orders).
25 The second initial hearing was adjourned, but to a date to be fixed after the parties had lodged their witness statements Form 20 - Orders issued by Industrial Magistrate Kucera 23 October 2023.
.
Milestones Extended
26 After the second initial hearing, the dates by which the parties were each required to lodge their witness statements under the programming orders, were on three occasions, extended by consent.
27 As a result of the extensions to the programming orders, the date by which the claimant was required to lodge its witness statements was extended to 19 January 2024. It was agreed the respondent would be required lodge its witness statements by 4 March 2024.
28 In accordance with the programming orders, a further initial hearing was scheduled to be held on 25 March 2024 (third initial hearing).
First Lummas Statement
29 On 23 January 2024 the claimant lodged the Witness Statement of Craig Lummas (first Lummas statement). Attached to this statement were copies of his payslips and records of his working hours for the claim period that was referred to in the initial claim period.
30 In his statement, Mr Lummas said he worked for the respondent as a security officer from 16 November 2011, until his resignation on or around 24 July 2022 first Lummas statement [5].
.
31 He said that for the period commencing on or around 26 April 2013 until 15 January 2015 (period 1), he worked a three-week roster cycle and was paid a flat hourly rate that varied throughout his roster cycles first Lummas statement [7] – [9].
.
32 In the period commencing on or around 20 June 2019 until on or around 10 July 2022 (period 2), Mr Lummas said he worked a three-week roster cycle comprised of two weeks on and one week off. During this period, Mr Lummas said he was employed as a Level 4 – Security Officer. Mr Lummas also said he was paid a flat hourly rate that varied throughout his roster cycles first Lummas statement [10] – [12].
.
33 Mr Lummas attached a copy of the ‘Site Agreement-BHP Security Officer (Full-Time) FIFO’ that he signed on 23 May 2019 (BHP site agreement) to his statement.
34 The BHP site agreement was one of three site agreements Mr Lummas signed that are material to the respondent’s defence to the claim, a point to which I will return.
Third Initial Hearing
35 On 25 March 2024, the third initial hearing was held. There was, however, no appearance by a representative for the respondent. At this stage of the proceedings, no witness evidence had been lodged in support of the respondent’s case either.
36 During the third initial hearing, directions were made requiring the parties to provide their unavailable dates so the claim could be listed for a one-day hearing. The claim was subsequently listed for hearing on 18 June 2024 (first scheduled hearing).
37 The parties were required to lodge outlines of submissions prior to the first scheduled hearing.
First Price Statement
38 On 20 May 2024 the respondent lodged a Witness Statement of Paul Trevor Price (first Price statement). In this statement, Mr Paul Trevor Price (Mr Price) provided evidence about Mr Lummas’ employment history and how the respondent had responded to the claimant’s request for records.
39 He said the respondent is a security company which provides security services in every Australian state and territory. He said the respondent has a workforce of more than 6,000 employees first Price statement [3].
.
40 Mr Price said he worked for the respondent as the General Manager (GM) of Western Australia (WA) from November 2013 until his retirement in February 2023 first Price statement [6].
. Mr Price stated that in his role as GM, he was responsible for the management of the respondent’s WA operations which included overseeing human resources and payroll functions. Mr Price said that in this role, he reported to the respondent’s Managing Director first Price statement [8].
.
41 Mr Price gave evidence that at the end of his employment with the respondent, the WA operation employed around 600 employees first Price statement [9].
. He said that employees who were covered by the award (award covered employees), which included Mr Lummas, were either paid:
(a) a base rate of pay, additional penalties, overtime rates and allowances, in accordance with the applicable award; or
(b) they were paid an all-inclusive rate (which compensated them for the base rate of pay, penalties, overtime rates and allowances to which they were entitled under the applicable award), referred to as a ‘flat rate’ first Price statement [10].
.
42 Mr Price said the way an ‘award covered employee’ was paid, depended on the site where the employees worked and the role they were required to perform first Price statement [11].
.
43 He said that some award covered employees worked across different sites and in different roles. Mr Price said that in these cases, it was not uncommon for an employee to be remunerated in two different ways first Price statement [12].
.
44 Mr Price stated that employees were only paid an all-inclusive flat rate where the employee had signed a ‘site agreement’ first Price statement [13].
. He also said that he was involved in determining the rates that applied for those sites where employees were paid flat rates first Price statement [14].
.
45 Mr Price said that client contract rates tended to be negotiated annually after the Fair Work Commission delivered its national wage decision. He said that prior to renewing a contract (or entering any new ones), it was necessary to assess the work that had to be performed under the contract, against the labour costs that would be required to fulfill the contract. Mr Price said this assessment involved the preparation of a costings sheet first Price statement [15].
.
46 Mr Price stated that when the respondent prepared a costing sheet, all the shifts that employees would be expected to work under the contract had to be recorded. He said this information would then have to be put into a roster, noting the ordinary and overtime hourly rates to be paid under the award, along with any applicable allowances first Price statement [16].
.
47 Mr Price said that when determining the correct rates to be applied, the respondent had to consider the duties and responsibilities of the roles that were required and how they compared with the correct classification level under the award first Price statement [17].
.
48 He said from this, the respondent produced an hourly figure as to how much, at a minimum, employees had to be paid when performing the contract. Mr Price said this figure was then used to calculate an all-inclusive flat rate. Mr Price said a flat rate was calculated to ensure that employees would be ‘better off overall’ first Price statement [18].
.
49 Mr Price said that where an employee was paid a flat rate, they would not only receive the same rate for work performed, but also for any annual, personal or long service leave that was taken or accrued. He said the respondent also made superannuation contributions on behalf of the employee at this rate first Price statement [20].
.
50 He said that at any given time, approximately one third of the respondent’s employees working in WA were paid flat rates. Mr Price said a majority of the award covered employees who worked at PPA sites were paid by flat rates first Price statement [21].
.
51 Mr Price stated that an employee would be given a ‘site agreement’ before they could be paid flat rates first Price statement [22].
. In addition to the BHP site agreement, Mr Price attached a copy of a Site Agreement – Pilbara Ports Authority Security Supervisor (Full-time), that he said Mr Lummas signed on 23 March 2020 (PPA 1).
52 Other documents attached to the first Price statement included the following:
i. ‘Employment Change Advice’ forms; and
ii. copies of payroll reports for Lummas for the period 27 November 2011–12 July 2022.
Claimant’s First Outline
53 The parties each lodged outlines of submissions in the lead up to the first scheduled hearing. The ‘Claimants Outline of Submissions’ dated 23 May 2024 (claimant’s first outline) was relatively brief and mostly described the provisions of the 2010 and 2020 awards the claimant alleged the respondent had breached.
54 The claimant’s first outline also provided in tabular form, a description of the FIFO roster Mr Lummas said he worked during the initial claim period claimant’s first outline [7].
. Mr Lummas was on a two and one roster cycle, comprised of seven 12-hour day shifts, seven 12-hour night shifts, followed by seven days off (2 & 1 roster).
55 On a 2 & 1 roster, Mr Lummas was to work a total of 168 hours which was averaged over a cycle of three weeks. The 168 hours was comprised of 152 ordinary hours and 16 hours of overtime. Extracted below, is a copy of the table from the claimant’s first outline, that describes the 2 & 1 roster:


Shift

Day

Start time
Finish
time

Hours
Total
Hours
1
Friday
600
1800
12
12
2
Saturday
600
1800
12
24
3
Sunday
600
1800
12
36
4
Monday
600
1800
12
48
5
Tuesday
600
1800
12
60
6
Wednesday
600
1800
12
72
7
Thursday
600
1800
12
84
8
Friday
1800
600
12
96
9
Saturday
1800
600
12
108
10
Sunday
1800
600
12
120
11
Monday
1800
600
12
132
12
Tuesday
1800
600
12
144
13
Wednesday
1800
600
12
156
14
Thursday
1800
600
12
168

Friday
-
-
-
-

Saturday
-
-
-
-

Sunday
-
-
-
-

Monday
-
-
-
-

Tuesday
-
-
-
-

Wednesday
-
-
-
-

Thursday
-
-
-
-

56 Attached to the claimant’s first outline, was a spreadsheet of underpayment calculations. As the claimant had, because of the discovery orders, received employment records that showed the hours of work Mr Lummas performed for the respondent, a revised set of underpayment calculations was provided with the claimant’s first outline (amended calculations).
57 While the claimant maintained that Mr Lummas was underpaid, the level of underpayment as set out in the amended calculations was significantly less. Rather than alleging Mr Lummas was underpaid for the whole of the initial claim period, it was now claimed underpayments as described in the first Lummas statement, had only occurred in periods 1 and 2 claimant’s first outline [17].
.
58 It was submitted Mr Lummas was underpaid the amount of $6,089.03 in period 1. For period 2, it was alleged Mr Lummas was underpaid the sum of $18,707.92. The total amount of the alleged underpayment was an amount of $24,796.95 Loss Caused by Contraventions, claimant’s first outline [22]; exhibit C1, Court Book 126.
.
Respondent’s Initial Submissions
59 In the ‘Submissions of the Respondent’ lodged on 11 June 2024 (respondent’s first outline), the respondent made several submissions in response to the claimant’s amended calculations.
60 The first of these related to the two periods described in the amended calculations. In relation to period 1, the respondent contended the claimant was unable to recover any amounts the claimant had alleged Mr Lummas was underpaid more than six years prior to the lodgment of the claim, with that date being 7 March 2017 respondent’s first outline [7].
.
61 It was submitted the claimant was, by operation of s 544 and s 545(5) of the FW Act, statute barred from recovering the amount claimed for period 1 because the alleged underpayments were said to have occurred outside the prescribed six-year limitation date respondent’s first outline [8].
.
62 In relation to period 2, the respondent submitted the claimant, with the amended calculations had sought to make new allegations Mr Lummas was underpaid until 23 June 2022 that were outside the initial claim period respondent’s first outline [10].
.
63 The respondent submitted that because the original claim did not include allegations that were in effect now being raised in the claimant’s first outline and the amended calculations, the respondent was being deprived of an opportunity to put on a proper defence to new allegations that Mr Lummas was underpaid during period 2 respondent’s first outline [10] – [12].
.
64 In addition to the respondent’s submissions on the amended calculations, the respondent argued that Mr Lummas had signed contracts in which he had agreed to be paid ‘flat hourly rates of pay’ for all hours worked respondent’s first outline [34].
.
65 It was submitted that Mr Lummas was compensated for working overtime with the payment of a single hourly rate of pay that included payment for shift penalties, rostered overtime and allowances respondent’s first outline [35] – [36].
.
66 The respondent argued that where Mr Lummas may have been underpaid in any fortnightly pay period, the respondent was entitled to ‘set off’ that amount against any other fortnights where Mr Lummas may have been ‘better off overall’ than if he had been paid under the 2010 or 2020 awards (set off) respondent’s first outline [39] –[40].
.
June 2024 Directions Hearing
67 On Wednesday, 12 June 2024, a directions hearing was convened at the Court’s initiative. Amongst the matters traversed, was a suggestion the claimant should lodge further submissions on the issue of set off and the difficulties raised in the respondent’s first outline with the claimant’s amended calculations.
68 Also canvassed was a request the respondent had made to vacate the scheduled hearing so the claimant could lodge an amended outline of claim, the respondent could lodge an amended response, and the matter could be set down for a further Pre-trial Conference before a Clerk of the Court.
69 After hearing from parties, orders issued vacating the first scheduled hearing. The claim was instead listed for a further Pre-trial Conference to occur in its place. If the claim could not be resolved by Pre-trial Conference the matter was to be relisted for further directions.
Revised Programming Orders
70 As directed, a further Pre-trial Conference in relation to the claim was held on 18 June 2024. Although the matter could not be resolved, revised programming orders were issued that required the claimant to lodge an amended outline of claim by 12 July 2024 and for the respondent to lodge an amended response by 26 July 2024.
71 Orders requiring the lodgment of a statement of agreed facts, the exchange of documents, the lodgment of additional witness statements and outlines of submissions were also made, all which was supposed to be completed by 4 October 2024.
Amended Outline of Claim
72 On 18 July 2024, the claimant lodged an Amended Outline of Claim (amended claim). In its amended claim, the claimant substantially altered the basis upon which it was alleged the respondent had contravened the 2010 and 2020 awards.
73 While the claimant maintained the respondent had committed numerous contraventions of the 2010 and 2020 awards, the allegations were to confined breaches of the ‘long break’ and ‘overtime’ provisions (award breaches).
74 In summary, the claimant alleged that because of the award breaches, the respondent, in the period 16 June 2019 to 23 June 2022 (claim period) had underpaid Mr Lummas a total amount of $50,725.32 (alleged underpayment).
75 In respect of the alleged underpayment, the claimant attached a new schedule of calculations to the amended claim (underpayments schedule).
76 For each fortnight in the claim period, the underpayments schedule shows the number of hours Mr Lummas worked, the amount the claimant says he should have been paid under the 2010 or 2020 award, the amount he was actually paid and the claimed underpayment per fortnight.
The Entitlement to ‘Long-Breaks’
77 There are in effect two limbs to the claimant’s award breaches allegations. The first of these is that Mr Lummas was, because of the roster he was required to work, deprived of an entitlement to ‘long breaks’ that he was entitled to receive under both the 2010 and the 2020 awards (long break provisions).
78 The claimant contended the long break provisions in both the 2010 and 2020 awards, provide that an employee:
i. who is working a 21-day roster cycle, should receive three breaks of two days off (48 continuous hours); and
ii. must not work more than a total of 48 hours of ordinary time without a long break of at least 48 continuous hours off.
79 As the claimant has alleged the award breaches were committed during a claim period in which both the 2010 and the 2020 awards applied, it is worthwhile setting out the provisions as they appear in both industrial instruments.
80 The entitlement to a long break in respect of the 2010 award arises under cl 21.4, which provides as follows:
21.4 Long breaks
(a) An employee must be given separate long breaks of continuous time off work in each roster cycle as follows:
Length of roster cycle
Minimum number of breaks
3 weeks
3 breaks of 2 days (48 continuous hours)
4 weeks
3 breaks of 3 days (72 continuous hours); or

4 breaks of 2 days (48 continuous hours)
8 weeks
6 breaks of 3 days (72 continuous hours); or

9 breaks of 2 days (48 continuous hours)
(b) Regardless of the roster cycle, an employee on a roster cycle must not be required to work more than a total of 48 hours of ordinary time without a long break of at least 48 continuous hours.
81 Similarly, the entitlement to a long break in respect of the 2020 award arises under cl 14.5, which provides:
14.5 Long breaks
(a) An employee on a roster cycle of a length specified in column 1 of Table 3 – Long breaks is entitled to long breaks of continuous time off work in that roster cycle as specified in column 2:
Table 3 – Long breaks
Column 1
Length of roster cycle
Column 2
Minimum number of breaks
3 weeks
3 breaks of 2 days (48 continuous hours)
4 weeks
3 breaks of 3 days (72 continuous hours); or
4 breaks of 2 days (48 continuous hours)
8 weeks
6 breaks of 3 days (72 continuous hours); or
9 breaks of 2 days (48 continuous hours)

(b) The employer must not roster an employee on a roster cycle of any length to work more than a total of 48 ordinary hours without a long break of at least 48 continuous hours.
82 In short, the claimant says the long break provisions in both awards are directed at ensuring that employees do not work more than 48 ordinary hours without a ‘long break’ or a ‘weekend’.
Claim for Overtime Payments
83 The second limb of the claimant’s award breach allegations is that because Mr Lummas was required to work more than 48 hours without taking a long break, he was thereafter entitled to be paid at overtime rates.
84 The relevant provision of the 2010 award which the claimant alleges requires the respondent to pay overtime is cl 23.3, which states:
23.3 Overtime rates
Where an employee works overtime the employer must pay to the employee the ordinary time rate for the period of overtime together with a loading as follows:
For overtime worked on
Loading payable in addition to ordinary time rate

%
Monday to Friday—first 2 hours
50
Monday to Friday—thereafter
100
Saturday—first 2 hours
50
Saturday—thereafter
100
Sunday
100
Public holiday
150
85 In relation to the 2020 award the claimant says the respondent breached cl 19.2 which provides:
19.2 Payment of overtime
(a) An employer must pay a full-time employee at the overtime rate for any time worked in excess of their ordinary hours.
…
86 The claimant says that when regard is had to the roster Mr Lummas worked during the claim period, the first 48 hours or the first four shifts he worked on the roster are to be treated and paid as ordinary hours.
87 In respect of the shifts that followed the first four, the claimant contended that for each hour worked, until he went on R&R, Mr Lummas should have been treated as though he was working overtime and paid at overtime rates.
Amended Responses and the Claimant’s Reply
88 After the amended claim was lodged, the respondent lodged two amended responses. The first of these was lodged on 19 August 2024 (second response).
89 Attached to the second response was a spreadsheet of information on the amounts the respondent said it paid Mr Lummas in comparison to the amounts claimed for each pay period in the underpayment’s schedule (Annexure 1).
90 On 8 July 2025, the respondent lodged a Further Amended Response (third response) in which the respondent claimed Mr Lummas had signed Individual Flexibility Agreements (IFAs) that had varied the operation and effect of various provisions under the 2010 and 2020 awards, which included the long break provisions third response [11].
.
91 In the lead up to the final hearing, the claimant on 24 July 2025, lodged the Claimant’s Reply to the Further Amended Response (claimant’s reply), in which the claimant disputed the validity and effect of the purported IFAs.
Pathway to a Hearing
92 After the second response was lodged, there were, until the matter was eventually heard on 11 August 2025, at least two attempts to progress the matter to a final hearing. During this time frame, both parties lodged further witness statements and outlines of submissions.
93 A trial date in March 2025 was moved due to the availability of the respondent’s counsel. The rescheduled hearing on 19 May 2025 was vacated, after potential new matters were raised with the lodgment of a supplementary statement from one of the respondent’s witnesses on 7 May 2025.
94 To the parties’ credit, most of the facts giving rise to the issues in dispute were not contested. All the relevant documentary materials which included a Statement of Agreed Facts were compiled in a two volume Court Book of 1322 pages that went into evidence as exhibit C1.
95 As will become clear, the outcome in this matter largely turns on the interpretation of the 2010 and 2020 awards and whether the site agreements Mr Lummas signed during the claim period, varied or displaced the operation of those awards.
96 By the time the matter was ultimately heard, the claimant was no longer pressing for relief in respect of the alleged records or s 323 contraventions. In the end, the focus of this matter was solely about the alleged award breaches and the resulting underpayment of wages claim ts 23.
.
97 In the paragraphs to follow, I have provided a summary of the evidence that was contained in the further witness statements the parties lodged after the claimant lodged its amended claim.
98 None of the witnesses who provided witness statements in this matter were cross-examined. Each of the witness statements were tendered and accepted into evidence by consent. Any objections to the contents of the parties’ witness statements were similarly resolved by agreement between the parties.
Statements of Agreed Facts
99 The parties lodged two statements of agreed facts in this matter. By way of summary, the parties agreed upon the following essential facts:
1. The claimant is an organisation as defined in s 12 of the FW Act with standing to prosecute the amended claim Form 29 – Agreed Statement of Facts lodged 30 August 2024 [1].
.
2. The respondent, is a national system employer within the meaning of s 14 of the FW Act that was engaged to provide security services for the PPA Form 29 – Agreed Statement of Facts lodged 30 August 2024 [2].
.
3. The 2010 and 2020 awards as varied from time to time, applied to the respondent and its employees who were engaged as security officers, including Mr Lummas Form 29 – Agreed Statement of Facts lodged 30 August 2024 [3].
.
4. The respondent employed Mr Lummas as a security officer in the period 16 November 2011 to 10 July 2022 Form 29 – Statement of Agreed Facts lodged 24 May 2024 [3].
.
5. Mr Lummas was:
a. a national system employee;
b. a person to whom the 2010 and 2020 awards applied;
c. a member of the claimant;
d. employed by the respondent as a security officer at PPA sites, in the following classification set out in the 2010 and 2020 awards;
i. 1 June 2019 to 3 October 2019 – Level 4;
ii. 4 October 2019 to 25 August 2021 – Level 5, and
iii. 26 August 2021 to 23 June 2022 – Level 4 Form 29 – Agreed Statement of Facts lodged 30 August 2024 [5].
.
6. During his employment with the respondent at a PPA site, Mr Lummas was engaged as a full-time employee, on an on-going basis Form 29 – Agreed Statement of Facts lodged 30 August 2024 [6].
.
7. The parties agreed Mr Lummas worked on the dates and for the hours as described in the amended claim and the underpayment calculations, during the claim period Form 29 – Agreed Statement of Facts lodged 30 August 2024 [7].
; and
8. The various start and finish times, shift lengths and the dates on which Mr Lummas worked were compiled into a table and marked ‘SOAF 1’. This table appears at exhibit C1, 372 - 391.
First Witness Statement from Sharon Hall
100 On 14 October 2024, the respondent lodged a Witness Statement of Sharon Hall (first Hall statement). In this statement, Sharon Hall (Ms Hall) gave evidence that she works for the respondent as a Payroll Administrator. Ms Hall said she has been employed in this position for about 15 years first Hall statement [4].
.
101 Ms Hall said that she is required to act as a liaison between the respondent’s operations team and its payroll office. Ms Hall stated that she is responsible for ensuring that the security guards employed by the respondent in Western Australia are paid correctly, for both the number of hours they have worked, and at the applicable rates of pay first Hall statement [5].
.
102 Ms Hall stated that she reports to the Commercial Manager (WA), who in turn reports to the General Manager (WA). Ms Hall said there are no roles that report to her first Hall statement [6].
.
103 In the first Hall statement, Ms Hall explained that she prepared Annexure 1. Ms Hall said the information contained in Annexure 1 was based upon:
(a) the respondent’s internal payroll records;
(b) her understanding and belief on the applicable minimum rates of pay that had to be paid to Mr Lummas during his employment with the respondent; and
(c) her own calculations first Hall statement [8] - [9].
.
104 Ms Hall said Annexure 1 includes a column that is headed ‘Total Hours Worked’. The figures which appear in this column describe the total number of hours Mr Lummas worked in a relevant fortnightly pay period first Hall statement [9.3].
.
105 For the pay period ending 30 June 2019, Ms Hall said she included two amounts for the total number of hours worked; one for the hours Mr Lummas worked at a BHP site and the other for the hours he worked at a PPA site first Hall statement [9.3].
.
106 According to the information that is set out in Annexure 1, Ms Hall claimed the respondent had overpaid Mr Lummas during the claim period.
Second Lummas Statement
107 On 29 October 2024 the claimant lodged the second Witness Statement of Craig Lummas (second Lummas statement). In this statement, Mr Lummas accepted that he worked the days and hours as set out in the Statement of Agreed Facts second Lummas statement [7].
.
108 He also confirmed that during the claim period he worked in the security officer classifications described as follows second Lummas statement [8].
:
i. From 1 June 2019 to 3 October 2019, I was engaged as a Level 4 Security Officer and my duties included gatehouse duties, CCTV monitoring, mobile patrols, exercising computer skills, operating the Cardex security system, drug and alcohol testing and first aid attendance.
ii. From 4 October 2019 to 25 August 2021, I was engaged as a Level 5 Security Officer. In my role, I supervised approximately 8 guards in total across three to four sites, attended daily meetings with other security officers to coordinate their activities, I monitored other security officers, completed monthly reports, completed incident reports, and operated computer programs which have the ability to remotely lock/unlock doors, program access cards, audit and record door access by individuals.
iii. From 26 August 2021 to 23 June 2022, I was engaged as a Level 4 Security Officer and my duties included gatehouse duties, CCTV monitoring, mobile patrols, exercising computer skills, operating the Cardex security system, drug and alcohol testing and first aid attendance.
109 Mr Lummas stated that he had reviewed the employment records the respondent had provided by way of discovery. He confirmed the employment records accurately described the hours he worked second Lummas statement [10].
.
110 Mr Lummas attached a record of his employment history with the respondent during the claim period, which was marked CL-1 and appears at exhibit C1, 476 - 482. This document not only shows the dates and days Mr Lummas worked, but importantly where he worked (employment history).
111 Mr Lummas said that during his ‘on swing periods’, the respondent required him to work more than 48 consecutive hours (i.e. four shifts at 12 hours each) without a break of 48 hours second Lummas statement [11].
.
112 He also said there were times where he worked 14 consecutive shifts of 168 hours without a 48 hour break second Lummas statement [12].
. He stated that during his ‘on swing periods’, the respondent did not give him separate breaks of continuous time off second Lummas statement [13].
.
Second Price Statement
113 In response to the second Lummas statement, the respondent on 12 November 2024, lodged a second Witness Statement of Paul Trevor Price (second Price statement).
114 In his second statement Mr Price explained that the site agreements he had referred to in his first statement, not only allowed the respondent to pay employees like Mr Lummas by way of a flat rate, but it was intended they would also address and alter the respondent’s obligations under the long break provisions of both the 2010 and the 2020 awards second Price statement [6] – [8].
.
115 Mr Price said the respondent’s strict compliance with the long break provisions would not have been possible under the FIFO roster that Mr Lummas was required to work second Price statement [7].
.
116 He said that he recalled considering the long break provisions when the site agreements were being designed and drafted. Mr Price stated the respondent had designed its site agreements and rosters to ensure its employees would receive their ‘long breaks’ during the off-swing period of their roster second Price statement [8].
.
Second Hall Statement
117 On 7 May 2025, the respondent lodged a Supplementary Witness Statement of Sharon Hall (second Hall statement). In this statement, Ms Hall when referring to the underpayments schedule made the following observations:
4. …Mr Lummas has elected to assume that the first 48 hours worked by him during his 2week on-swing are to be treated as ordinary hours and that all hours worked on shift thereafter during this on-swing are to be treated and paid as overtime.
5. For the initial first 48 hours, Mr Lummas appears to have applied a base rate of pay, plus, in the case of work performed on Saturdays or Sundays or night shifts, the penalty rate applicable to hours worked on those days.
6. Mr Lummas then appears to treat as overtime, all hours worked in excess of 48 hours in an onswing. For the period Monday to Friday, an overtime rate of 1.5 times the ordinary rate is applied for the first two overtime hours, while an overtime rate of 2 times the ordinary rate is applied thereafter.
7. For a Saturday or Sunday, an overtime rate of 2 times the ordinary rate is applied to all hours worked.
118 In relation to these observations, Ms Hall said the respondent did not use this methodology to determine which hours would be treated as ordinary time and overtime when assessing what Mr Lummas should have been paid under the 2010 or 2020 awards. Instead, the flat rate was provided by his site agreements second Hall statement [8].
.
119 The methodology Ms Hall said she used was set out in Annexure 1 that I referred to in the preceding paragraphs [89], [103] – [104] and [106]. A copy of a roster showing how Ms Hall said the respondent allocated ordinary hours and overtime to various days on the 2&1 roster was also attached to the second Hall statement (SH-2).
120 In her second statement Ms Hall said the respondent had structured a roster for Mr Lummas and employees like him, that allocated all hours worked between ordinary hours and overtime hours, during the 2-week on-swing period, which she named the ‘Lummas Roster’ second Hall statement [10] – [11].
.
121 Ms Hall explained that when preparing a costing for this roster, which was also used to calculate the flat rates that applied under the site agreements and to make an assessment as whether the rates to be paid were ‘superior to any Award entitlements’, the respondent had allocated the majority of overtime on the roster as occurring on Saturdays and Sundays second Hall statement [13].
. Using this methodology, Ms Hall claimed that Mr Lummas was not underpaid.
122 The second Hall statement also provided a description of three other methods by which Ms Hall said, ordinary hours and overtime hours could be allocated on a 2&1 roster. Each of these methods (which were set out as attachments to the second Hall statement) assume that if the long break provisions applied, the requirement to provide a long break was not triggered after Mr Lummas had worked his first 48 hours on the 2&1 roster.
123 Rather, the three alternative methods each assume the respondent was within its rights to allocate overtime hours on the first Saturday and Sunday of the 2&1 roster and that the obligation to provide a long break, only applied after the completion of 48 ordinary hours, instead of the first 48 working hours on the roster.
Third Lummas Statement
124 On 30 June 2025, the claimant lodged the third Witness Statement of Craig Lummas (third Lummas statement). The claimant lodged this statement in response to the second Hall statement.
125 In this statement, Mr Lummas said that before these proceedings were commenced, he had never seen a roster that showed days/shifts, on which he would be working ordinary hours and the days/ shifts that would be overtime third Lummas statement [3].
.
126 Mr Lummas said that he was also never shown any of the attachments to the second Hall statement, which included SH-2 third Lummas statement [5] – [6].
. Mr Lummas stated that during his employment with the respondent, he was not told that his overtime hours would fall on Saturdays and Sundays third Lummas statement [7].
.
Third Hall Statement
127 On 8 July 2025, the respondent lodged the ‘Second Supplementary Witness Statement of Sharon Hall’ (third Hall statement).
128 The third Hall statement attached a chain of emails between Mr Lummas and Jason Raftery, who was the respondent’s business Manager from December 2012 until July 2022.
129 Attached to this email chain which ends on 20 August 2021, was a copy of a third site agreement that Mr Lummas signed on 20 August 2021 for work as a Level 4 Security Officer at PPA sites (PPA 2).
Defence to the Amended Claim
130 There are several limbs to respondent’s defence to the amended claim. The first is in respect of the construction of the overtime provisions of the 2010 and 2020 awards.
131 By this defence, the respondent says that even if there is an obligation under the award to provide a long break, there is no express obligation to pay an employee at overtime rates until a long break is taken.
132 The second limb is in respect of the site agreements the claimant signed. The respondent has contended the site agreements have the effect of varying either version of the award, in respect of any obligation to:
i. provide a long break; or
ii. to pay an employee at overtime rates where an employee may be required to work more than 48 hours without taking a long break.
133 The third limb of the respondent’s defence depends on whether it’s methodology for allocating overtime hours on the roster, to calculate whether Mr Lummas was ‘better off overall’ under the award flexibility provisions is accepted by the Court.
134 If the respondent’s methodology is accepted, a further limb is in respect of the ‘set off’ defence that was raised in the first response and the respondent’s first outline. As I understood the respondent’s defence, it is contended that any overpayment in one pay period may be ‘set off’ against any underpayment in another.
Consideration - Construction of Awards
135 Determining the issue of whether the respondent was required to pay Mr Lummas at overtime rates, in circumstances where his roster prevented him from taking a long break following the completion of 48 hours ordinary time, necessarily involves an application of the principles to be applied when interpreting awards.
136 These principles were summarised by a Full Court of the Federal Court of Australia in King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; (2021) 308 IR 171 at [40]- [43] (Collier, Katzmann and Jackson JJ) (King) which I have extracted below;
40. The principles governing the construction of awards are well-established and the primary judge’s exposition of them was not challenged on appeal. The construction of an industrial instrument depends on its language, understood in light of its industrial context and purpose: see Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). In City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378379, French J said (most citations removed);
The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words. The words are to be read as a whole and in context. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all. The logs of claim and arbitrator’s reasons for decision may be referred to … determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. … That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J said in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503:
it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result … from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.
41. We agree with the primary judge’s observation (at PJ [127]) that:
Practices in the relevant industry may provide material context. An illustration is Transport Workers Union v Linfox Australia Pty Ltd [2014] FCA 829; 318 ALR 54, where Tracey J held that evidence about the morning commencement time of work in the transport industry, together with an examination of the history of relevant award provisions, informed the construction of the term ‘day shift’ with the consequence that ordinary day workers were not to be regarded as shift workers for the purposes of the award, and were therefore not entitled to ‘crib time’.
42. Hence the framers of documents such as awards may well have been more concerned with expressing their intention in a way likely to be understood in the relevant industry rather than with legal niceties or jargon, so a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ) applying Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182 at 184 (Madgwick J). An award may be read that way despite mere inconsistencies or infelicities of expression which might tend to some other reading, and ‘meanings which avoid inconvenience or injustice may reasonably be strained for’: Kucks at 184.
43. The circumstances may lead the court to conclude that a clause in an award is a product of history; in such circumstances it may be possible to discern the purpose of the award only by reference to its history: see Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J). But there are limits to that; as the primary judge said in the present case (at PJ [128][129]), the texts of modern awards are widely available to members of the public and should be reasonably capable of being understood and implemented by participants in the relevant industry by reference to the language of the award itself, without having to delve into the pedigree of the instrument. That is especially so where, as here, non-compliance with an award can expose a person to pecuniary penalties: see Wanneroo at 380.
137 The passages I have extracted from King were followed and applied by Colvin J in Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705; (2024) 332 IR 387 (Wilkinson).
138 Wilkinson in the context of the present case is significant because it is, together with an earlier decision of Katzmann J in Sydney Night Patrol and Inquiry Company Limited v Pulleine [2014] FCA 385 (Pulleine), one of two cases in which the principles that apply when interpreting awards, were applied to the construction of provisions in the 2010 and 2020 awards that are in issue.
139 In view of this, it is worth providing a summary of Pulliene and Wilkinson in the order in which they were decided, particularly on the issue of how the long break provisions, should be interpreted and applied.
The Decision in Pulleine
140 Pulleine involved an appeal of decision by a NSW Industrial Magistrate, where it was held the employer; Sydney Night Patrol, was in breach of the 2010 award, by failing to pay the claimant overtime where he was required to work more than 48 hours of ordinary time without giving him a long break.
141 The claimant in the case at first instance, like Mr Lummas, was employed as a security officer, but on a fortnightly roster. The claimant was paid at overtime rates when he worked a shift of more than 10 continuous hours or when he worked more than 76 hours in any two-week roster cycle.
142 Before the Industrial Magistrate, the claimant argued that it was a contravention of cl 21.4(b) of the 2010 award, to require him to work more than 48 hours of ordinary time without giving him a long break and that if he was required to do so, his employer was obliged to pay him at overtime rates.
143 Sydney Night Patrol denied that cl 21.4(b) applied to employees on a fortnightly roster because this type of roster was not expressly mentioned under the heading ‘Length of roster’. In the alternative, Sydney Night Patrol argued that if the requirement to give the claimant a long break did apply, the 2010 award did not require that he be paid overtime in the event of a breach.
144 At first instance, the Industrial Magistrate concluded that the construction pressed by Sydney Night Patrol would produce the absurd result that employees on a fortnightly or weekly roster, would not be entitled to a long break after 48 hours of ordinary time, unlike employees on a roster of three, four or eight weeks.
145 Her Honour was also satisfied that for the purpose of cl 21.4(b) a long break is a minimum of 48 continuous hours. On this construction, the Industrial Magistrate held that Sydney Night Patrol was in breach of the 2010 award, by requiring the claimant to work more than 48 hours without giving him a break.
146 The Industrial Magistrate also accepted the claimant’s argument that hours worked in excess of 48 hours of ordinary time, should have been paid at overtime rates. It is of note that on appeal, Sydney Night Patrol did not dispute that overtime would be payable in the event the award applied to the claimant.
147 The issue that ultimately found its way on appeal to Katzmann J, was on the issue of whether the long break provisions applied to employees on a fortnightly roster.
148 In determining the long break provisions under cl 21.4(b), the 2010 award extended to employees who worked fortnightly rosters, Her Honour at [41] – [52] reached the following conclusions;
41. In my opinion, the interpretation given to cl 21.4 by the learned magistrate is reasonably open and is to be preferred because it more closely conforms to the intention of the award.
42. I accept that there is an advantage, however, in the interpretation for which Sydney Night Patrol contends. Its interpretation would provide certainty and there is some uncertainty in how the clause would operate if the learned magistrate’s interpretation is upheld. That uncertainty arises in part because there is no definition of ‘long break’ in the award. So if employees on a fortnightly roster are to have a long break, how long should it be? And how many breaks are they entitled to? But the uncertainty may be resolved by a process of construction. The conclusion the learned magistrate reached – that a long break means a minimum of 48 continuous hours – is an obvious one, derived, no doubt from the terms of cl 21.4(a). The number of long breaks is more difficult to resolve. But that question, too, may be determined by a process of construction. It is reasonable to infer from the text of cl 21.4(a) that an employee on a two-week roster is entitled to two breaks, each of two days (48 continuous hours). Clause 21.4(a) requires employees on three-week rosters to be given three breaks, each of two days, and employees on four-week rosters four breaks, each of two days. It follows that employees on two-week rosters are to be given two breaks each of two days’ duration. True it is that employees on eight-week rosters are entitled to nine (rather than eight) breaks of the same duration. I am not, however, persuaded that this minor discrepancy is sufficient to undermine the pattern established by the shorter roster cycles and that, for the shortest – the two-week cycle – the inference I have drawn is not the appropriate one.
43. There are also some important contextual reasons favouring this interpretation.
44. First, cl 21.4 should be seen against the background of the industrial struggles for shorter working hours and the declarations by the Commonwealth Arbitration Court and its successors of standard working weeks, beginning with the 48-hour week recognised in Australian Builders’ Labourers’ Federation v Archer (1913) 7 CAR 228 and culminating in the legislative recognition of a 38-hour week.
45. Second, in Australia most working people have long worked a five-day week and have enjoyed a two-day break on the weekend. Those who do not generally receive time off in lieu. Most, if not all, awards provide for penalty rates for working over the weekend. This award is no different. Clause 22.3 provides for the payment of a 50% penalty rate on top of the ordinary time rate for working ordinary hours on a Saturday and 100% for working on a Sunday.
46. Third, the Award is a modern award made under the Workplace Relations Act and varied from time to time thereafter. In making an award, s 576B of the Act (which appears in Div 2 of Part 10A) required that the Australian Industrial Relations Commission have regard (amongst other things) to:
(f) the need to assist employees to balance their work and family responsibilities effectively, and to improve retention and participation of employees in the workplace; [and]
(g) the safety, health and welfare of employees[.]
47. These considerations are reflected in the time limits for ‘ordinary time shifts’ and the requirements for health monitoring, suitable roster arrangements and adequate breaks if those limits are to be exceeded by up to two hours (cl 21.2). They are also reflected in the requirement for breaks between successive shifts (cl 21.3) and the prohibition against working for more than 14 hours (cl 23.2). And they are reflected in the requirement for long breaks in cl 21.4. The statute treats work/life balance and safety, health and welfare for all employees as mandatory considerations in the making of a modern award. The statute does not discriminate between employees based on the length of their roster cycles. It may reasonably be inferred that in making the award neither did the Commission.
48. Indeed, Sydney Night Patrol pointed out that the Full Bench of the Commission in its award modernisation decision [[2008] AIRCFB 1000] said that it had paid ‘close attention’ to the requirements in Part 10A of the Act.
49. Third, the Award is to be read with the National Employment Standards (‘NES’), which came into effect on 1 January 2010, the same day the Award commenced. Clause 6 of the Award provides that the minimum conditions of employment for employees covered by it are contained in the NES and the Award. ‘NES’ is defined in cl 3.1 to mean the National Employment Standards contained in ss 59–131 of the Fair Work Act. Section 62(1) provides that, unless the additional hours are reasonable, an employer must not request or require a full-time employee to work more than 38 hours a week or an employee who is not a full-time employee the lesser of 38 hours a week and the employee’s ordinary hours of work in a week. Section 63 permits a modern award to contain terms providing for the averaging of hours of work over a specified period, but those hours are not to exceed the above-mentioned hours unless they are reasonable. In determining in each case whether additional hours are reasonable, s 62(3) provides that certain matters be taken into account. Those matters include:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
…
50. These provisions tend to reinforce the notion that all employees can expect to receive a long break or, as the learned magistrate put it, ‘a weekend’, at the end of an ordinary working week or compensation (here, overtime payments) in lieu, and that that notion lies behind cl 21.4(b).
51. Fourth, s 576S of the Workplace Relations Act (compare s 153 of the Fair Work Act) provides that ‘[a] modern award must not include terms that discriminate against an employee because of, or for reasons including … family responsibilities’. If Sydney Night Patrol’s interpretation were correct, this award might discriminate indirectly against sole parents, if not all parents. In other words, while neutral on its face, cl 21.4 could have a discriminatory effect (see, for example, the discussion in Waters v Public Transport Corporation (1991) 173 CLR 349). It is highly unlikely that the Commission would have made an award which contained a term that contravened the statutory prohibition against discrimination.
52. In view of these considerations, there is no good reason to conclude that the Award was intended to deny a long break to employees working a fortnightly roster or to deprive those who work beyond the 48 hours of the appropriate overtime rate.
149 I accept the respondent’s submission that Pulliene, was concerned with the discrete issue of whether an employee on a fortnightly roster, is entitled to a long break.
150 I similarly accept that the Industrial Magistrate’s finding that an employee who does not receive a long break after performing 48 hours of ordinary time, should receive overtime, was not under appeal.
151 Notwithstanding this, I regard Katzmann’s J analysis of an employee’s entitlement to a long break under cl 21.4 of the 2010 award in the paragraphs I have extracted, and her view (even if obiter) that overtime is payable when a long break is not taken, as highly persuasive.
The Decision in Wilkinson
152 Following Pulliene, Colvin J’s decision in Wilkinson was decided in a very similar context to the present case. Like this matter, the applicant was employed to work as a security officer on a resources project in the Pilbara region of Western Australia.
153 The applicant in Wilkinson (Mr Wilkinson) was for a period, employed on a comparable 2&1 roster. When he was rostered to work, the applicant like Mr Lummas was required to work 14 consecutive 12-hour shifts, comprising of seven 12-hour day shifts and seven 12-hour night shifts.
154 Upon the completion of these 14 consecutive shifts, Mr Wilkinson, like Mr Lummas had seven days continuous days off, during which he returned to Perth from the Pilbara. The total number of hours Mr Wilkinson was rostered to work, for the 14 days he was on site was 168.
155 In relation to this roster, Colvin J was asked to consider whether an employer, by providing one continuous long break in each three weekly roster cycle, (which is identical to the roster under consideration in this case) was in breach of the long break provisions of the 2010 and 2020 awards (Claim 1).
156 Colvin J was also asked to consider whether by reason of its rostering arrangements, the employer in Wilkinson had failed to comply with the long break provisions of the 2010 and 2020 awards, that stipulated employees must not work more than 48 hours of ordinary time, without a long break of at least 48 continuous hours off (Claim 2).
Wilkinson Claim 1
157 Applying the award interpretation principles I earlier referred to, His Honour in Wilkinson at [63] – [71] reached the following conclusion in relation to Claim 1;
63. The case for Wilson Security was to the effect that it could conform with the long break provisions by providing for consecutive long breaks of the required duration. It claimed that it met the long break requirements because it provided more days off than were provided for by the Awards when it came to long breaks. It pointed to the fact that, as part of the three-week roster, Mr Wilkinson was entitled to a long break of seven days which was said to amount to three long breaks of two days plus an extra day. As each period of two days was a continuous period of 48 hours it was a long break that was 'separate' from the employee's rostered shift and there was no requirement that each of the 'separate' breaks could not be consecutive.
64. If the contentions for Wilson Security were to be accepted, then it could roster an employee on an eight-week roster to work 38 days (or about five and a half weeks) consecutively as long as it then provided 18 consecutive days of long break. Further, in the case of a four-week roster, it could roster an employee to work 20 days (or about three weeks) consecutively followed by eight consecutive days of break because that would meet the requirement for four long breaks of two days. That would be so even though the Awards expressly provide that where the long breaks are for three days then there must be three of them, making a total of nine days.
65. In context, it is plain that the long break provisions limit the extent to which an employer can require an employee to work consecutive rostered days without a long break. It is concerned with the frequency of long breaks as well as their duration. The 'continuous time off work' that is specified in each of the Awards is not simply a number of days for each specified length of roster cycle. Rather, it is both a number of breaks and a number of days for each break. Both requirements must be met. The case for Wilson Security would reduce the long break provisions to provisions which simply specified the number of days of a long break in a roster cycle. It is a construction that is inconsistent with the express language of the relevant provisions which refers to a minimum number of breaks and the use of the plural form 'long breaks' in the operative provision. It is also supported by the use of the term 'separate long breaks' in the 2010 Award together with the absence of any matter of context to suggest that the parties intended the long break provisions (which are otherwise expressed in the tables in each of the Awards in the same terms) to operate in a different manner in the case of the 2020 Award compared to the 2010 Award. The change in terminology in the 2020 Award appears to be explained by the fact that its foundational version was prepared as a 'plain language redrafting of the [2010 Award]': see 4 yearly review of modern awards - Plain language redrafting - Security Services Industry Award 2010 [2018] FWCFB 6755.
66. It was suggested for Wilson Security that a provision could easily have been inserted to make clear that the long breaks could not be contiguous if that was indeed the intention. However, that submission is premised upon the long break provisions taking a form which contemplates that possibility thereby inviting language of qualification to that effect if it was intended that long breaks could not be rostered contiguously. For reasons that have been given, the long break provisions do not contemplate such a possibility. Instead, they provide expressly for a minimum number of breaks, specifying those breaks both by number and duration. There is no real room in the language of the provisions for the construction for which Wilson Security contends. Therefore, there is no real foundation in the language for a submission of the kind advanced.
67. When there is regard to the rostering provisions in the Awards, the result would mean that employees undertaking work in the security services industry could be required to work very long hours over many consecutive days without a break. The coverage provisions in the Awards refer to the industry as including patrolling, protecting or guarding people or property, crowd, event or venue control, body guarding and traffic control incidental to those activities. It does not cover cash-in-transit protection or work in prisons, correctional or other detention facilities or relating to the installation or repair of electronic alarms or ATMs. Nevertheless, it is work of a kind that may be expected to require vigilance and attention for sustained periods. These are matters which bear upon the proper construction of the Awards.
68. It was further submitted by Wilson Security that its construction of the long break provisions was supported by the fact that the Awards applied to the provision of work by FIFO employees. It was suggested that a construction which required each long break to be separate would make it difficult to accommodate FIFO arrangements where security guards work. There are a number of problems with this submission.
69. First, as has been explained, the Awards apply broadly. The construction contended for would allow for rostering of a kind that would apply in many different circumstances. The construction must be one which has regard to the work to be undertaken by all employees covered by the Awards. Second, there is no evidence advanced of admissible contextual material to support the construction of the Awards by reference to the particular requirements of FIFO employment arrangements. Third, I am not persuaded that an application of the long break provisions on the basis that long breaks must not be continuous is inconsistent with FIFO employment. For example, a four days on, three days off roster would comply, as would a rolling four-week roster which was five days on and four days off with an extra day on in the first four weeks and an extra day off in the second four weeks.
70. There are also other industrial mechanisms by which different work arrangements may be put in place with approval of the Fair Work Commission. The availability of those alternatives is part of the context in which the Awards are to be construed.
71. It follows that Claim (1) by Mr Wilkinson must succeed. In relation to his employment, Wilson Security has not provided him with sufficient long breaks. He has been made to work for longer periods without a break than should have been the case (and would have been the case if Wilson Security had complied with the long break provisions of the Awards). It follows that Mr Wilkinson has established the alleged contravention of s 45 of the Fair Work Act that was the basis for Claim (1).
Wilkinson Claim 2
158 Referring to the decision of Pulliene, Colvin J at [72] – [83] reached the following conclusion in relation to Claim 2;
72. As to Claim (2), Mr Wilkinson submitted that after 48 hours of ordinary time worked there was an entitlement to a long break. He relied upon the language of the Awards that were concerned with the number of ordinary hours that may be included in a roster cycle of any length without a long break. As has been noted, the ordinary hours to be worked where a roster is operated are an average of 38 hours per week. However, Mr Wilkinson's submission fails to take account of the fact that the Awards expressly contemplate shift rosters with work hours of up to 14 hours in any 24-hour period. It is also possible for an employer to roster overtime.
73. In my view, the provisions concerning 48 hours of ordinary time before a long break is to ensure that a roster is not formulated which provides in a two-week roster say for 60 hours of ordinary time in the first week with a long break followed by a roster in the second week of say 16 hours of ordinary time and then a long break, but with no overtime. A roster of that kind would mean that an employee would be required to work long hours for part of the roster without receiving any overtime payments.
74. There was no suggestion that the roster in the present case was one which operated in that way. Although there had been a dispute in the past as to payment of overtime, by the time of these proceedings that issue had been addressed by the payment of back pay in relation to overtime (at least for so long as Mr Wilkinson was working as a full-time employee and not as a casual employee). The present issue did not concern whether there had been adequate overtime payments. It was concerned with whether there had been compliance with the long break provisions. That is to say, the case being made was that the amount and frequency of long breaks was inadequate, not that there had been inadequate pay for overtime.
75. For Mr Wilkinson it was submitted that after working four days of a typical 14-day swing, he was entitled to a long break and the requirement under his roster arrangements to work each of the following 10 days would mean that Wilson Security contravened s 45 of the Fair Work Act on each of those days for each of the times that he was rostered on to work.
76. The long break provisions in the 2010 Award were considered by Katzmann J in Sydney Night Patrol and Inquiry Company Limited t/as SNP Security v Pulleine [2014] FCA 385. In that case, the employee worked on a fortnightly roster and was paid overtime when he worked a shift of more than 10 hours or more than 76 hours in any two-week roster cycle: at [1]. He based his claim to overtime and a first aid allowance on the long break provisions. In a similar argument to that advanced by Mr Wilkinson in the present case, the employee had claimed that it was a contravention of the 2010 Award to require him to work more than 48 hours of ordinary time without giving him a long break and that that if he was required to do so then he was entitled to be paid at overtime rates.
77. Before Katzmann J, the employer, Sydney Night Patrol, accepted that if employees on a fortnightly roster were entitled to a long break after 48 hours of ordinary time worked in a week then overtime was payable. Sydney Night Patrol claimed that the long break provisions did not apply to employees on a fortnightly roster cycle: at [15]. At that time, the words 'Regardless of the roster cycle' did not form part of cl 21.4(b) of the 2010 Award. They were introduced by way of amendment after the dispute arose with Sydney Night Patrol.
78. In the course of reasoning as to why the prohibition on being required to work more than 48 hours of ordinary time with a long break of at least 48 hours applied to all employees, Katzmann J referred to provisions of the National Employment Standards which 'tend to reinforce the notion that all employees can expect to receive a long break or, as the learned magistrate put it, ‘a weekend’, at the end of an ordinary working week or compensation (here, overtime payments) in lieu, and that that notion lies behind cl 21.4(b)': at [50].
79. Significantly, after considering the above and other matters bearing upon the proper construction of cl 21.4(b), Katzmann J expressed her final conclusion as to the meaning of the provision in the following terms at [52]:
In view of these considerations, there is no good reason to conclude that the Award was intended to deny a long break to employees working a fortnightly roster or to deprive those who work beyond the 48 hours of the appropriate overtime rate.
80. The expression of her Honour's conclusion in that way supports Wilson Security's position that the prohibition in cl 21.4(b) is not transgressed where the employer pays overtime. That is to say, the relevant Awards provide for a roster with an average of 38 hours of ordinary time per week. After that, time worked is overtime.
81. What cl 21.4(b) makes clear is that there is a limit on the averaging that can occur such that ordinary hours beyond 48 hours in any week must be paid at an overtime rate or, if overtime is not to be paid, the employee must be given a long break. In that regard the use of the term 'ordinary time' in the relevant provisions in the 2010 Award and in the 2020 Award is significant. It is not a provision that operates to curtail the possibility of a roster with reasonable overtime that conforms to the provisions of the relevant awards in relation to overtime and for which overtime is paid.
82. Of course, as has been explained, the separate requirements as to the minimum number of long breaks and their duration (as addressed in dealing with Claim (1)) must still be met.
83. It follows that Claim (2) fails.
Pulliene and Wilkinson Together
159 When read together, several common elements may be gleaned from the passages in Pulliene and Wilkinson that I have referred to, regarding the application and interpretation of the long break provisions of the 2010 and 2020 awards.
160 In the context of the present case, I consider the decisions in Pulliene and Wilkinson confirm that where the 2010 and 2020 awards apply, an employee, on a 2&1 roster like the one Mr Lummas worked, should receive the following;
i. a long break after the completion of the first 48 hours of work on the roster;
ii. the long break (like a weekend) must be for a continuous period of 48 hours off; and
iii. the long break provisions of the 2010 and 2020 awards do not permit the long breaks to be taken together at the end of the roster cycle.
161 I consider that where the elements I have set out are not satisfied, both Colvin and Katzmann JJ have each found the 2010 and 2020 awards, make provision for payment at overtime rates until a long break can be taken in the manner prescribed.
162 I accept that Wilkinson like the decision in Pulliene, is not directly concerned with whether overtime is payable in the event of an employer’s failure to comply with the long break provisions.
163 That said, I will now turn to explain why I respectfully disagree with the respondent’s submission that the 2010 and 2020 award overtime provisions do not confer an entitlement to be paid at overtime rates in the event of an employer’s failure to comply with the long break provisions.
Respondent’s Submissions on the Obligation to Pay Overtime
164 The respondent submitted there is nothing in the text of the 2010 or 2020 awards that suggests the failure to give a long break ‘sounds in overtime’ Form 29 – Respondent’s Consolidated Outline of Submissions lodged 8 July 2026
.
165 It was submitted that this is to be contrasted with other provisions in the 2010 and 2020 awards which clearly and expressly indicate that overtime is payable where a clause is not complied with.
166 One of the examples the respondent referred to in support of this submission was cl 14.4(d) of the 2020 award which provides:
14.4 Breaks between work periods
…
(d) If, on the instructions of the employer, the employee resumes or continues work without having had 8 hours off duty, the employer must pay the employee at a rate of 200% (emphasis added) of the employee’s minimum hourly rate until the employee has a break of 8 consecutive hours. The employee must not suffer any loss of pay for ordinary hours not worked during that period of that break.
167 It was submitted that in the absence of wording similar to the language used in cl 14.4(d), there is no foundation to construe that any failure to provide a long break, results in overtime being payable Form 29 – Respondent’s Consolidated Outline of Submissions lodged 8 July 2026 [17] – [21]
.
168 Moreover, it was also submitted that in the absence of words that provide for an obligation to pay overtime, there is similarly no guidance within the 2010 or 2020 awards to explain how the overtime is to be calculated and over what period Form 29 – Respondent’s Consolidated Outline of Submissions lodged 8 July 2026 [18]
.
Requirement to Pay Overtime Supported by Authority
169 It is my view the arguments being made by the respondent regarding the payment of overtime are not supported by authority on the construction of the 2010 and 2020 awards, which includes the decisions in Pulliene and Wilkinson.
170 I respectfully do not accept the respondent’s submission the Court is not bound by or should not follow Pulliene and Wilkinson, for several reasons.
171 Firstly, I am unable to ignore the first instance decision from Industrial Magistrate Lisa Stapelton in Noel Pulleine v Sydney Night Patrol and Inquiry Company Pty Limited t/as SNP Security 2011/409806; delivered 26 July 2013 (unreported) which preceded the appeal decision in Pulleine.
172 At [31] Her Honor held:
The Award provides for ordinary time, overtime and double time. Hours worked by an employee can only fall within these categories. An employee may work on a maximum of 10 ordinary hours under clause 21.2(a)(ii) (unless otherwise agreed under clause 21.2(b)) and any additional hours are overtime. The Award does not explicitly state that any additional hours are overtime and it is not necessary for it to do so. It is plain that if an employee has worked the maximum ordinary hours for a shift as required by the Award, additional hours worked by him are overtime, or if clause 23.5 applies, double time. Applying this reasoning if an employee has worked the maximum ordinary hours required to qualify for a long break, additional hours worked by him (whether described as during his long break or before his long break commences) cannot be categorised as ordinary hours. Those hours can only be overtime hours unless clause 23.5 applies. The Court accepts the applicant’s argument that the additional hours he worked during the claim period should have been categorised as overtime by the employer and paid at the relevant rate.
173 As Industrial Magistrate Stapelton’s decision on the requirement to pay overtime where an employee does not receive a long break was not appealed by Sydney Night Patrol in Pulliene, I am not inclined to depart from Her Honour’s reasoning on this point.
174 Secondly, the respondent’s argument in respect of the obligation to pay overtime is predicated on there being a lack of clear prescription in both the 2010 and 2020 awards. This issue however was addressed by Katzmann J in Pulleine, when dealing with the seeming absence of an express provision for an entitlement to long breaks, for employees on fortnightly rosters.
175 On one view, the absence of clear prescriptive text regarding the obligation to pay overtime might be because the parties did not intend that overtime would be payable where a long break is not provided (which is the respondent’s submission).
176 On the other hand, Katzmann J’s view in Pulleine as expressed at [38], on the absence of clear wording in the long break provisions of the 2010 award, in the circumstances of this case, is apposite;
Moreover, if Sydney Night Patrol’s construction were correct, it would be open to employers to circumvent the award’s requirements for long breaks by rostering everyone on a fortnightly cycle. It is unlikely that such an outcome was intended. In my opinion the purpose of cl 21.4 (read in its context by reference to the other provisions in the Award and the Award as a whole) is, as Mr Pulleine submitted, to ensure that no employee is required to work an excessive number of consecutive days without an extended period away from the workplace unless the employee is paid the appropriate penalty rate. The purpose of paragraph (a) is to stipulate the minimum number of breaks for those employees on roster cycles of more than two weeks’ duration. In these circumstances, it is likely that the omission from paragraph (a) of a reference to a two-week roster cycle was either an oversight or its inclusion was regarded as unnecessary.
(emphasis added)
177 In other words, I consider that in the same way Katzmann J reached the conclusion that when drafting the award, it is unlikely the parties would have intended employers would be allowed to circumvent the long break provisions, it is also likely the parties would not have intended there would be no penalties payable, where an employee is prevented from taking a long break.
178 Thirdly, it is my view, (from what Katzmann J held in Pulleine, that was subsequently followed by Colvin J in Wilkinson), that when the long break provisions are construed in context, overtime is payable where an employee is unable to take a long break in the manner prescribed.
179 I therefore consider that along with Industrial Magistrate Stapelton’s decision, the cases in Pulliene and Wilkinson provide a line of authority that I am required to follow when interpreting the 2010 and 2020 awards.
180 Fourthly, I consider the text of the overtime provisions in the 2010 and 2020 awards, that must be read together with s 62 and s 63 in Part 2-2 of the FW Act - National Employment Standard (NES), make it plain that where an employee works more than the maximum weekly or the maximum average weekly hours of 38, overtime is payable.
181 Section 63 of the NES permits the inclusion of terms in modern awards that allow hours of work to be averaged over a specified period. These terms appear at cl 21.1 of the 2010 award (Ordinary hours and roster cycles) and cl 13 of the 2020 award (Ordinary hours of work and rostering arrangements).
182 The effect of these provisions is to allow an employer to roster a greater number of ordinary hours in any one week of a roster cycle, so long as the average over the cycle do not exceed 38. For a 2&1 roster cycle, an employer has the discretion to operate a roster with an average of 38 ordinary hours in a roster cycle or 114 hours over a three-week cycle.
183 However, as Colvin J held in Wilkinson, the long break provisions place a limit on the extent to which ordinary hours may be averaged in any one week, with the effect that overtime is payable for any hour worked over the 48-hour maximum.
184 On this basis, it appears reasonable to find the parties to the 2010 and 2020 awards would have likely considered that one of the purposes of the hours and rostering provisions (which is where the long break provisions appear) was ensuring employees’ working hours could be arranged in a manner that would not offend s 62 and s 63 of the FW Act.
185 The construction I have favoured is purposive in the sense that it allows for flexibility in rostering average weekly hours, subject to the outer limit on the number of ordinary hours that may be rostered consecutively, which the long break provisions impose.
186 Accordingly for the reasons I have outlined, I consider a construction that construes the long break provisions of the 2010 and 2020 awards in context, as imposing a requirement to pay overtime where a long break is not provided, should be preferred.
Consideration - Individual Flexibility Agreement Defence
187 The second limb of the defence the respondent raised in opposition to the amended claim, is in respect of site agreements the claimant signed during the claim period and which the respondent says, applied as IFAs.
188 In relation to this defence, s 144 and s 145 of the FW Act provide:
144 Flexibility terms
Flexibility terms must be included
(1) A modern award must include a term (a flexibility term) enabling an employee and his or her employer to agree on an arrangement (an individual flexibility arrangement) varying the effect of the award in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer.
Effect of individual flexibility arrangements
(2) If an employee and employer agree to an individual flexibility arrangement under a flexibility term in a modern award:
(a) the modern award has effect in relation to the employee and the employer as if it were varied by the flexibility arrangement; and
(b) the arrangement is taken, for the purposes of this act, to be a term of the modern award.
(3) To avoid doubt, the individual flexibility arrangement does not change the effect the modern award has in relation to the employer and any other employee.
Requirements for flexibility terms
(4) The flexibility term must:
(a) identify the terms of the modern award the effect of which may be varied by an individual flexibility arrangement; and
(b) require that the employee and the employer genuinely agree to any individual flexibility arrangement; and
(c) require the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to; and
(d) set out how any flexibility arrangement may be terminated by the employee or the employer; and
(e) require the employer to ensure that any individual flexibility arrangement must be in writing and signed:
(i) in all cases – by the employee and the employer; and
(ii) if the employee is under 18 – by a parent or guardian of the employee; and
(f) require the employer to ensure that a copy of any individual flexibility arrangement must be given to the employee.
…
145 Effect of individual flexibility arrangement that does not meet requirements of flexibility term
Application of this section
(1) This section applies if:
(i) an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in a modern award; and
(ii) the arrangement does not meet a requirement set out in section 144.
Note: A failure to meet such a requirement may be a contravention of a provision of Part 3-1 (which deals with general protections).
Arrangement has effect as if it were an individual flexibility arrangement
(2) The arrangement has effect as if it were an individual flexibility arrangement.
Employer contravenes flexibility term in specified circumstances
(3) If subsection 144(4) requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the award.
…
189 Clause 7 (Individual flexibility arrangements) was included in the 2010 award as required under s 144 of the FW Act (award flexibility provision) in the following terms:
7.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:
(a) arrangements for when work is performed; or
(b) overtime rates; or
(c) penalty rates; or
(d) allowances; or
(e) annual leave loading.
7.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.
7.3 An agreement may only be made after the individual employee has commenced employment with the employer.
7.4 An employer who wishes to initiate the making of an agreement must:
(a) give the employee a written proposal; and
(b) if the employer is aware that the employee has, or reasonably should be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal.
7.5 An agreement must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made.
…
190 The award flexibility provision in the 2020 award appears at cl 5 (Individual flexibility arrangements).
191 It is not disputed Mr Lummas signed three site agreements during the claim period (site agreements). The respondent says the site agreements are IFAs that were made under the award flexibility provision.
192 I have provided details of the site agreements in the table below:
Number
1
2
3
Title
Site Agreement – BHP Security Officer (Full-time) FIFO
Site Agreement – Pilbara Ports Authority Security Supervisor (Full-time)
Site Conditions – Pilbara Ports Authority Security Officer (Full-time)
Flat Hourly Rate
$36.10
$36.29
$34.42
Date signed
23 May 2019
23 March 2020
20 August 2021
Description
BHP Site Agreement
PPA 1
PPA 2
Reference
Preceding paragraph [33] and exhibit C1, Court Book 728
Preceding paragraph [51] and exhibit C1, Court Book 732
Preceding paragraph [129] and exhibit C1, Court Book 1001

193 As set out previously, the respondent maintains that each one of the site agreements, had the effect of varying obligations under the 2010 and 2020 awards in respect of:
i. the requirement to provide a long break; or
ii. to pay Mr Lummas at overtime rates, where because of the 2&1 roster he was prevented from taking a long break in the manner prescribed.
The Respondent’s Submissions on the IFAs
194 The respondent submitted the site agreements did not need to comply with the long break provisions in either the 2010 or 2020 awards, because they were IFAs made under the award flexibility provision Form 29 – Respondent’s Consolidated Outline of Submissions lodged 8 July 2026 [5] – [6].
.
195 It was submitted the site agreements have this effect because the award flexibility provision allowed the respondent and an individual employee, to agree to vary the application of the 2010 and 2020 awards, in relation to arrangements for when work is performed Form 29 – Respondent’s Consolidated Outline of Submissions lodged 8 July 2026 [7].
.
196 The respondent submitted the formal requirements for what an IFA must do are set out in the award flexibility provision. This includes identifying the terms of the award that are to be varied and setting out how that variation occurs Form 29 – Respondent’s Consolidated Outline of Submissions lodged 8 July 2026 [7].
.
197 On this, the respondent submitted that under the site agreements, Mr Lummas agreed that he would be paid a flat rate that compensated him for all shift penalties, rostered overtime, loadings and allowances Form 29 – Respondent’s Consolidated Outline of Submissions lodged 8 July 2026 [8].
.
198 It was submitted Mr Lummas agreed that he would be required to work a roster of 14 days on and seven days off, comprising of seven day shifts of 12 hours, seven night shifts of 12 hours, followed by seven days off. The respondent characterised this agreement as an ‘arrangement for when work is performed’ Form 29 – Respondent’s Consolidated Outline of Submissions lodged 8 July 2026 [8].
.
199 In the alternative, the respondent submitted that even if the site agreements did not meet the requirements of the award flexibility provisions, there is a ‘curative provision’ under s 145 of the FW Act whereby an IFA that fails to meet the requirements of s 144, will continue to apply Form 29 – Respondent’s Consolidated Outline of Submissions lodged 8 July 2026 [9].
.
Claimant’s IFA Submissions
200 The claimant contended the difficulty with the respondent’s submission regarding IFAs is that the site agreements are not, and do not purport to be IFAs in the form contemplated by the award flexibility provisions Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [26]
.
201 On this, the claimant submitted the site agreements were not ‘arrangements for when work is performed’ but were instead, agreements that ‘vary the application of the terms relating to overtime rates, penalties and allowances in the [2010 award] by rolling up the rates and allowances payable into a higher hourly rate’ Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [26], exhibit C1, Court Book 288.
.
202 More specifically, it was submitted the site agreements do not purport to vary or negate the entitlement under the 2010 and 2020 awards to a long break, expand the number of ordinary hours that may be worked consecutively or alter the circumstances in which overtime rates are payable Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [27], exhibit C1, Court Book 289.
.
203 In relation to s 145, the claimant submitted s 144(4)(c) of the FW Act does not authorise the making of an IFA unless an employee is ‘better off overall’ than the employee would have been, if no IFA was made Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [30] – [32].
.
204 The claimant argued an IFA could not be made that would authorise payments below the minimum standards that are contained in awards. The claimant argued the purpose of s 145 is not to excuse an employer’s non-compliance with the award where an employee is worse off under the IFA Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [33].
.
205 Rather, it was contended that the effect of s 145 of the FW Act, is to deem below award payments under a purported IFA to be a breach of the award flexibility provision Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [34].
.
206 The claimant submitted that in the present case, any loss resulting from a contravention of an award flexibility provision would be identical to that claimed for a breach of the overtime provisions of the 2010 or 2020 awards Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [36].
.
Observations on the Site Agreements
207 The wording in each of the site agreements is very similar. They each describe the classification Mr Lummas is employed in and the flat hourly rate he must be paid for each hour he works on the roster. Each of the site agreements are less than two pages long.
208 The following words appear as a header, under the titles of the BHP site agreement and PPA 1:
‘As per Part 1 Clause 7 of the Security Services Industry Award 2010’.
209 A similar header appears under the title of PPA 2, with the only difference that it refers to the award flexibility provision in the 2020 award.
210 Each of the site agreements state that Mr Lummas agrees to vary the application of the terms of the applicable award relating to overtime rates, penalties and allowances by rolling up the rates and allowances payable to a higher hourly rate.
211 The payment of this single rate is made in accordance with a series of enumerated conditions that are common to each of the site agreements that include the following:
i. A single hourly rate of pay will be paid for all hours worked that is accompanied with the statement which will result in the employee being better off financially than if paid under the award;
ii. The single hourly rate includes compensation for all shift penalties, rostered overtime and allowances;
iii. Ordinary hours will be averaged to 38 hours per week over the roster cycle;
iv. Rosters will include 12-hour shifts worked as ordinary hours.
212 Each one of the site agreements specifies the type of roster that will be worked. The BHP site agreement for example states that Mr Lummas would be required to work a 14-day FIFO roster cycle of eight days on, six days off and seven nights on, seven nights off, working 12-hour shifts (8&6 Days7&7 Nights roster).
213 In contrast, PPA 1 and PPA 2 both state that Mr Lummas would be required to work a 2&1 roster. While both of these site agreements state the roster will be comprised of 38 ordinary hours per week averaged over the roster cycle, only PPA 2 states that an average of 18  hours per week overtime, will be included in the roster.
Difference Between the BHP Site Agreement and PPA 1 and PPA 2
214 One of the ways in which the site agreements differ is in respect of the workplaces the site agreement says that it applies to. By way of example, the BHP site agreement, according to its terms, states it only applies to the role of full-time security officers working on ‘BHP sites’ for the respondent.
215 PPA 1 and PPA 2 on the other hand, both state that they only apply to full time positions working on PPA sites for the respondent.
216 I have also noted there is difference in the type of roster worked under the BHP site agreement and the 2&1 roster that Mr Lummas was required to work at the PPA sites. Under the BHP site agreement, Mr Lummas was required to work a FIFO 8&6 Days7&7 Nights roster comprised of eight 12-hour day shifts with six days off and seven 12-hour night shifts with seven nights off.
Work at Pilbara Ports from 20 June 2019
217 I have closely reviewed the evidence as set in the employment history on the hours Mr Lummas worked, where he did that work and the days and dates Mr Lummas worked for the respondent during the claim period. I have compared the employment history with the underpayments schedule.
218 Even if I was to accept the site agreements were IFAs, they could only apply in accordance with their terms. By this, I mean the site agreements could only apply on those dates, where Mr Lummas worked on a site, to which the terms of a site agreement applied.
219 Critically, I have noted that from 20 June 2019 until 23 March 2020 which is the timeframe within the claim period before he signed PPA 1, Mr Lummas only worked as a security officer on sites operated by the PPA exhibit C1, 881 – 903.
.
220 It is well known the PPA is a different corporate entity to BHP, with operations separate from those that BHP has in Port Hedland. In other words, although the BHP site agreement may have applied for this period, Mr Lummas was not according to its terms, covered by this site agreement because he was not working on a BHP site.
221 I have also noted that from 30 June 2019, Mr Lummas was paid a flat rate of $33 per hour which continued until 6 October 2019. This is well below the flat hourly rate of $36.10 that was contained in the BHP site agreement exhibit C1, 103.
.
222 It therefore cannot be said that even if it was found the BHP site agreement was a validly made IFA that ousted or varied the operation of the 2010 award, it had no application to Mr Lummas in the period 20 June 2019 until 23 March 2020. This is because the employment history shows he did not work at a BHP site and only worked as a security guard at PPA sites.
223 As a result, the only instrument that may be found to have applied for this part of the claim period is the 2010 award. My findings on how overtime should have been paid to Mr Lummas because he did not receive his entitlements to a long break on the 2&1 roster in this period, is a matter I will return to.
Work at Pilbara Ports from 23 March 2020
224 From my analysis of the employment history, I accept that from 23 March 2020 until 20 August 2021 the terms of PPA 1 applied to Mr Lummas’s employment with the respondent.
225 It is also reasonable to find that PPA 2 applied from when Mr Lummas signed it on 20 August 2021 until he resigned from his employment on 24 July 2022.
226 I make this finding on the basis the employment history shows that Mr Lummas, for the duration of the claim period, continued to only work at PPA sites on those dates in the claim period after Mr Lummas had signed PPA 1 and PPA 2.
Were the Site Agreements IFAs?
227 In determining whether the site agreements were IFAs, it is necessary to consider if they were made in accordance with the requirements that apply under the FW Act and the award flexibility provisions in the 2010 and 2020 awards.
228 In relation to these requirements, I consider that they are deficient in several ways:
i. While the site agreements contain words like ‘As per Part 1, Clause 7 of Security Services Industry Award’ they do not identify with sufficient clarity each one of the award terms to be varied and how the application of these clauses will be changed.
ii. The site agreements do not provide any real detail on how the award terms are to be varied other than stating Mr Lummas will receive a single hourly rate that will be paid for all hours worked, that includes compensation for all shift penalties, rostered overtime and allowances.
iii. Other than declaring the employee will be financially ‘better off overall’ than if paid under the award, the site agreements do not explain how they result in an employee being better off for each hour worked.
iv. While the site agreements do describe the FIFO roster Mr Lummas would work, they do not expressly refer to, exclude or vary the long break provisions of the 2010 or 2020 awards.
229 I consider that the respondent’s compliance with its obligation under the award flexibility provision to set out the award terms the purported IFA will vary can, at best, only be inferred. This in my view, is not sufficient, particularly where the obligation under the award flexibility provision is cast in clear mandatory terms and where the respondent is a large, well-resourced national security firm.
230 As IFAs have the effect of varying the minimum standards of employment that apply under an award it is incumbent upon employers to provide an employee with the level of detail an employer is required to provide under the award flexibility provision.
231 If the respondent had as Mr Price suggested in his second witness statement, designed its site agreements and rosters to ensure its employees received their ‘long breaks during the off-swing period’, the site agreements (as is required by the award flexibility provisions) would have made this clear.
232 While the respondent might have drafted the site agreements with this variation of the long breaks provision in mind, this is not clear from the text of the documents the respondent provided to Mr Lummas. As I have indicated, the language of the award flexibility provision, on the information an employer must provide to an employee in an IFA, is very clear.
233 Accordingly, for the reasons set out, I am not, because of the deficiencies in the respondent’s drafting of the site agreements, prepared to find that they were validly made IFAs.
234 While contractually I am inclined to accept the site agreements may have altered or formed a part of Mr Lummas’ contract of employment, I do not accept the respondent’s argument that they were IFAs that varied or ousted the operation of the 2010 and 2020 awards.
Effect of the Long Break Provisions on the Site Agreements
235 The difficulty the respondent has created by not making it clear in the site agreements that it was the respondent’s intention to vary the long break provisions, is that the effect of this clause could not have been amended in the way the respondent says it was.
236 I therefore find that notwithstanding the terms of the site agreements, the long break provisions in the 2010 and 2020 awards, would have continued to apply for the duration of the claim period.
237 Following the reasoning of Colvin J in Wilkinson that I earlier referred to, it is clear the requirement for the respondent to provide a long break could not have been complied with by the adoption of a 2&1 roster under PPA 1 and PPA 2.
238 It is also worth noting, the 8&6 Days7&7 Nights roster that is in the BHP site agreement, on the reasoning of Colvin J in Wilkinson, would not have complied with a requirement to provide a long break under the 2010 or 2020 awards either.
239 Having made these findings, I consider that the continued application of the long break provisions would have affected the respondent’s assessment of whether Mr Lummas was better off financially under the site agreements, than if he was paid under the 2010 or 2020 awards.
240 By this, and even if it may be said there was sufficient detail in the site agreements that allowed the respondent to vary the effect of some terms of the 2010 or 2020 awards (for example in respect of flat hourly rates of pay, the payment of penalty rates and an agreement to work 12-hour shifts), their validity as IFAs was by no means assured.
241 This is because the methodology the respondent said it used to assess if Mr Lummas was better off financially, which was described in the second Hall statement, for the reasons I will set out, would not have properly compensated Mr Lummas for the payment of overtime, where he was prevented from taking a long break.
The Decision in United Voice
242 On the question of whether Mr Lummas was, having regard to the requirement under the award flexibility provisions, better off financially than if he was paid under the 2010 or 2020 awards, I do have to address the decision of a Full Court of the Federal Court in United Voice v Wilson Security Pty Ltd [2019] FCAFC 66; (2019) 269 FCR 608 (United Voice).
243 The decision in United Voice is both relevant to the methodology to be applied in assessing whether the site agreements breached the award flexibility provisions and the third limb of the respondent’s defence that, even without the IFAs, Mr Lummas was still paid more than what he was entitled to receive under the 2010 and 2020 awards.
244 United Voice dealt with an appeal of a first instance decision in which it was decided Wilson Security Pty Ltd (Wilson Security), under the provisions of the 2010 award, was allowed to allocate ‘overtime hours’ to shifts on a pre-determined roster, where other penalty rates had to be paid.
245 Wilson Security employed guards on four-week rosters, to work an average of 38 ordinary hours per week and 152 ordinary hours over a four-week cycle. Employees on the roster were required to work 14 shifts of 12-hours duration over a four-week cycle; a total of 168 hours. It was not in dispute that 16 of the 168 hours, which were in addition to the 152 rostered ordinary hours, were to be treated and paid as overtime United Voice at [4].
.
246 Until 31 October 2016, Wilson Security rostered the 16 hours of overtime so that they were worked only after the 152 ordinary hours were completed. Under the 2010 award, ordinary hours may be worked on any day of the week, provided penalty rates are paid on ordinary hours performed on Saturdays and Sundays.
247 From 31 October 2016, Wilson Security changed its rostering practices so that it rostered overtime to be worked on Sundays, with the effect that if overtime fell on a weekday within the roster cycle, penalty rates would not have to be paid if the number of ordinary hours within the 152 on the roster cycle had not been exhausted.
248 The Full Court noted that a loading on top of ordinary rates, between 50% and 150% was payable under the 2010 award for overtime, depending on:
i. when the overtime was worked;
ii. how many overtime hours were worked; and
iii. if there was any agreement extending ordinary hours on a given rostered shift United Voice at [4].
.
249 The Full Court observed that it was a matter of chance as to whether the 16 hours of overtime fell at a time when no other penalty was payable. This is because penalty rates did not have to be paid at the same time as overtime rates applied United Voice at [5].
.
250 Due to this change in rostering practice, Wilson Security was able to reduce the amount paid in penalty rates for work performed on Sundays and to reduce superannuation costs.
251 In opposition to this change, the appellant argued the 16 hours of overtime, in line with existing practice, could only be worked after the 152 ordinary hours had been performed.
252 For context, it is useful to extract the roster the Full Court was required to consider below:
Shift
Day
Start time
Finish time
Hours
Total
1
Monday
600
1800
12
12
2
Tuesday
600
1800
12
24

Wednesday
-
-



Thursday
-
-


3
Friday
1800
600
12
36
4
Saturday
1800
600
12
48
5
Sunday
1800
600
12
60

Monday
-
-



Tuesday
-
-


6
Wednesday
600
1800
12
72
7
Thursday
600
1800
12
84

Friday
-
-



Saturday
-
-



Sunday
-
-


8
Monday
1800
600
12
96
9
Tuesday
1800
600
12
108

Wednesday





Thursday




10
Friday
1800
600
12
120
11
Saturday
1800
600
12
132
12
Sunday
1800
600
12
144

Monday





Tuesday




13
Wednesday
1800
600
12
156
14
Thursday
1800
600
12
168

Friday





Saturday





Sunday




Note: Total ordinary hours in a four week roster = 152.
Total number of rostered overtime hours = 16.
Total number of rostered hours in a four week roster = 168.
253 At first instance, the primary judge held that because the rostering arrangements under the 2010 award were within the discretion of the employer and the 2010 award did not contain any express restrictions on the exercise of this discretion, Wilson Security was entitled to:
· choose the day on which a roster is to begin;
· decide whether the overtime hours are to be scheduled in the roster, at a point before all the ordinary hours have been worked; and
· fix the number of days of the week on which the ordinary hours are to be worked, subject to the limitations prescribed by cl 21.3 and cl 21.4 of the 2010 award (which are the long break provisions) United Voice at [15].
.
254 The appeal to the Full Court in United Voice was essentially a re-run of the case before the primary judge United Voice at [16].
. It was noted the resolution of the appeal turned on the meaning to be given to the relevant terms of the award.
255 At [30] – [32] the Full Court held:
30 Properly considered, ‘overtime’ means no more than it states and has been long understood on the authorities referred to above – over, or more, than ordinary hours, in relation to the period of time for which ordinary hours apply. The chronological limitation Mr Davis seeks to impose is the product of historic usage and application, rather than inherent meaning. Even that usage and application does not necessarily support the appellants’ argument. It is an amount of time that is over the ordinary hours, not necessarily after the ordinary hours, even if it more commonly, or even invariably, takes place after those ordinary hours will be, or have been, worked.
31 If the ordinary hours under consideration are those of a single day, then overtime may be such extra hours to be worked before those ordinary hours, or after those ordinary hours, being the number of hours that will be in excess of ordinary hours. The same approach may be taken on a weekly basis, or, as in this case, a four-weekly basis, but with the additional element that the overtime hours may take place not just before or after the ordinary hours for the week or four weeks have been, or will be, worked, but also during a period which ordinary hours are worked, or will be worked.
32 Once the broader meaning of overtime is appreciated, which is consistent with the prior curial understanding in Re Steel Works Employees, Re Confectioners and Mills, and not inconsistent with Australian Communication Exchange, all of which focus on the notion of overtime being additional working hours, that meaning does not influence the operation of the Award in the manner contended by the appellants. Nor do the findings of industrial tribunals or dictionary definitions assist, reflecting as they do common historic applications of the concept of overtime in one particular way, rather than reflecting any limitation to be given to its true meaning. Just because the extra or additional hours might often take place after ordinary hours have been, or will be, worked, that does not preclude them taking place before they have been, or will be, worked, or in between the time in which ordinary hours will be worked. In any of these scenarios, they are additional hours, and therefore constitute overtime for which a loading is payable, depending on when the additional hours are required to be performed.
The Respondent’s View of the Decision in United Voice
256 In its outline of submissions, the respondent relied upon the decision in United Voice to challenge the way in which the claimant had calculated the underpayment amount.
257 It was argued the claimant’s approach to calculating the alleged underpayment assumed the first 48 hours Mr Lummas worked during his two week on swing are to be treated and paid as ordinary hours (which includes payment at the base rate plus penalty rates for Saturdays and Sundays) and that all the hours worked on his roster thereafter, are to be treated and paid as overtime. The respondent submitted this approach was inconsistent with the decision in United Voice Form 29 - Respondent’s Consolidated Outline of Submissions lodged 8 July 2025 [41] – [43].
.
258 It was submitted that because of the decision in United Voice, there were at least three alternative methods by which overtime could have been allocated and paid to Mr Lummas for a 2&1 roster (one of which the respondent says it used) to make an assessment as to whether he was, under the site agreements, better off overall than if he was paid by the 2010 and 2020 awards.
259 The respondent submitted the decision in United Voice requires each of these methods to be considered when assessing the allegations that Mr Lummas was not, in breach of the 2010 and 2020 awards, paid correctly for the overtime he worked because he was unable to take a long break Form 29 - Respondent’s Consolidated Outline of Submissions lodged 8 July 2025 [38].
.
260 Relying upon the decision of the High Court in Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151 (Berry) at [28]-[29] , the respondent argued that it was entitled to nominate how it could have lawfully met its obligations under the 2010 and 2020 awards, that ‘minimises the level of loss caused by its breach’ Form 29 - Respondent’s Consolidated Outline of Submissions lodged 8 July 2025 [38].
.
261 I understood this to mean, that even if it may be found Mr Lummas was entitled to be paid overtime for not receiving a long break, because of the decision in United Voice, the Court is required to have regard to other rosters the respondent says it could have issued when determining if Mr Lummas was underpaid, even though the respondent never actually implemented these rosters.
The Respondent’s Roster Allocations
262 Relying upon the decision in United Voice the respondent, for the purpose of calculating if Mr Lummas was better off under the site agreements than if he was paid under the 2010 and 2020 awards, submitted that it could use any one of three different methods of allocating overtime hours that are described in the second Hall statement Form 29 - Respondent’s Consolidated Outline of Submissions lodged 8 July 2025 [46] – [52].
.
263 Under each one of the respondent’s potential methods of allocating overtime hours on a 2&1 roster, the second and third shifts in order, fall on a Saturday and a Sunday. The respondent says these two shifts should both be treated and paid as overtime and should not count in the tally of ordinary hours to determine when a long break becomes due.
264 For comparison and by way of example, the respondent’s stated method of allocating overtime on the first Saturday and Sunday shifts, as set out in SH-2 is as follows:
Guard Name

CRAIG LUMMAS

DAY

Shift

ORD

OT 1.5

OT 2.0

OT 2.5

21.7% (N/S)

SAT 50%

SUN 100%

PH 150%
1. FRIDAY
0600-1800
12







2. SATURDAY
0600-1800

2
10





3. SUNDAY
0600-1800


12





4. MONDAY
0600-1800
12







5. TUESDAY
0600-1800
12







6. WEDNESDAY
0600-1800
12







7. THURSDAY
0600-1800
12







8. FRIDAY
1800-0600
7.6
2
2.4

6
1.6


9. SATURDAY
1800-0600

2
10





10. SUNDAY
1800-0600
7.6

4.4

1.6

6

11. MONDAY
1800-0600
8.8
2
1.2

8.8



12. TUESDAY
1800-0600
10
2


10



13. WEDNESDAY
1800-0600
10
2


10



14. THURSDAY
1800-0600
10
2


10



15. FRIDAY









16. SATURDAY









17. SUNDAY









18. MONDAY









19. TUESDAY









20. WEDNESDAY









21. THURSDAY









114
14
40
0
46.4
1.6
6
0
The Claimant’s Submissions on the Decision in United Voice
265 The claimant submitted the evidence does not suggest the respondent published any roster which ‘allocated’ overtime to weekends or that anyone ever told Mr Lummas that his weekend shifts were being treated and paid as overtime Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [42].
.
266 It was submitted the respondent’s overtime allocation appears to have been an entirely internal process, whereby the respondent resolved internally that Mr Lummas’ weekend shifts, were overtime shifts, regardless of where they fell in the roster that was published Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [42].
.
267 The claimant contended the respondent’s argument finds no support in United Voice which involved a case in which the employer had in fact rostered overtime on Saturday and Sunday shifts. It was submitted the allocation in United Voice was not a notional or internal process, but conventional rostering Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [43].
.
268 The claimant submitted the decision in United Voice does not stand for the proposition that an employer is entitled to assume it would have structured its roster in a way that was the most beneficial to it, thereby reducing any compensation owing under an award Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [44].
.
269 It was further submitted the respondent’s case regarding allocation of overtime should be rejected as a matter of fact. In support of this, the claimant submitted it should be sufficient to point out the site agreements indicated that overtime will be an average of 18 hours per week. The claimant submitted that this should be decisive against any argument that overtime was allocated to weekends Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [45].
.
270 The claimant submitted the Court should find the true position is that which appeared at [25] of the Form 29 – Respondent Outline of Submissions lodged 16 December 2024:
‘…after 38 hours of ordinary hours, the time was then allocated as overtime’ Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [46].
.
271 It was submitted this earlier submission from the respondent accurately reflects the understanding Mr Lummas and the respondent (and any reasonable employee and employer in their positions) would have held in the circumstances of this case Form 29 – Claimant’s Outline of Submissions lodged 24 July 2025 [46].
.
United Voice is Distinguishable
272 From the outset, it is worth noting the circumstances at issue in the present case are very different from those that were considered by the Full Court in United Voice. It is my view the decision in United Voice turns on its own facts and was concerned with allocation of overtime hours to a particular type of roster.
273 The roster that was being utilised by Wilson Security in United Voice is different from the roster that was used in the present case because it programmed long breaks during, rather than at the end of the roster cycle, with employees rostered to have 48 uninterrupted hours off, before they had completed 48 ordinary hours of work.
274 In contrast to the present case, Wilson Security’s compliance with the long break provisions in United Voice was never in issue. Similarly, the question of whether the entitlement to a long break only arises following the completion of 48 ‘ordinary hours’ on a roster, was not raised either.
275 Further, the decision in United Voice dealt with the change to the allocation of overtime hours to days worked on an actual pre-prepared roster, rather than one that was either theoretical or that employees had not seen before.
276 It is also of relevance, and I note from Mr Lummas’ evidence, that the respondent did not share the methodology it used to determine that he was better off under the site agreements than if he was paid under the 2010 or 2020 award at the time he signed them.
277 I have noted from the third Lummas statement, that unlike the case in United Voice the respondent did not, at any stage prior to these proceedings, tell him that his ordinary hours would only be worked on weekdays and that overtime would only be allocated to Saturdays and Sundays, thereby reducing its exposure to the requirement to pay penalty rates on shifts that are not worked on weekends.
278 There is also no evidence the methodology the respondent says it used to determine if Mr Lummas was better off overall under the site agreements than if he was paid under the 2010 or 2020 award, was ever shared with him.
Interpreting the Site Agreements
279 Also different from the case in United Voice is the effect I consider the site agreements had on the manner and method of allocating overtime on the roster.
280 In making further findings on this point, it is worth touching on the principles to be applied when interpreting the site agreements, which I earlier noted may be regarded as forming a part of the contract of employment that Mr Lummas had with the respondent.
281 The meaning of the terms of a contract, is to be determined by what a reasonable person would have understood them to mean. That normally requires not only consideration of the text of the contract, but also the surrounding circumstances known to the parties and the purpose and object of the transaction Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.
.
282 When applying these principles, it is worth observing the site agreements do not say much about rostering. The site agreements do not provide any details on how overtime hours will be allocated on the roster. PPA 1 and PPA 2 both state that Mr Lummas would be employed on a 2&1 roster that will include 12-hour shifts, worked as ordinary hours.
283 While PPA 2 does confirm 18 overtime hours per week, on average, will be included in the roster, both PPA 1 and PPA 2 are silent on how those hours would be allocated to the various days on the roster.
284 Applying the principles I have referred to, it cannot be said the site agreements in any way suggest that ordinary hours and overtime hours would be allocated on the 2&1 roster in the way they were in United Voice or in the way described in the second Hall statement.
285 Rather I consider that a reasonable person would have understood the payment of a flat, all-in hourly rate indicates the parties to the site agreements had intended that ordinary hours could be worked on any day within the 14-day cycle, including sequentially and on Saturdays and Sundays.
286 Lending weight to this view is that it is frankly not possible, with the payment of a flat hourly rate, to determine which hours on the 2&1 roster were ordinary hours and which ones should be treated as overtime, in the way the two were separated on the roster in United Voice.
287 I consider that a reasonable person would have understood the terms of the site agreements to mean that an employee’s ordinary hours on the 2&1 roster would be rostered chronologically.
288 Also relevant by way of context, is that the respondent believed it did not have to roster a long break following the completion of the first 48 hours worked. This was because the respondent believed the site agreements had varied the long break provisions, a point confirmed in the second Price statement.
289 The only method by which it may be reasonably said both parties had agreed to roster working hours on the 2&1 roster, is the method as set out in the site agreements which, relied upon a belief, as evidenced in the second Price statement, that the long break provisions did not apply second Price statement [6] – [8].
.
290 Applying this methodology, the long break would have become due after the fourth 12-hour shift on the 2&1 roster. The hours performed on the first Saturday and Sunday on the roster because of the terms of the site agreements, should be regarded as ordinary hours that counted towards the first long break on the roster.
291 In the circumstances therefore, I do not regard the chronological approach the claimants have taken to calculating the alleged underpayment as artificial. Rather, I consider it a logical consequence of the way in which working hours were rostered under the site agreements.
Conclusion on Whether Mr Lummas was ‘Better Off Overall’
292 In assessing if Mr Lummas was better off overall than if he was paid under the 2010 and 2020 awards, it is relevant to consider what he would have received if Mr Lummas’s ordinary hours were rostered sequentially, from the first day of the roster cycle.
293 While the Full Court’s decision in United Voice confirmed an employer could roster overtime hours on days before the number of ordinary hours in a roster cycle had been worked, it did not preclude parties from reaching an agreement to roster overtime hours, following the completion of all the ordinary hours in the roster cycle.
294 I raise this because I consider the method the respondent should have used for its ‘Better Off Overall’ assessment is what I have found is a consequence of the site agreements; that an employee’s ordinary hours on the 2&1 roster would be rostered and exhausted chronologically, before overtime was paid.
295 On this analysis the only method by which it may be reasonably said both parties had agreed, is what is set out in the site agreements, and which relied upon the respondent’s view the long break provisions did not apply. As Mr Lummas was paid a flat hourly rate for all hours worked, it did not matter when his ordinary hours were rostered.
296 Applying this methodology, the long break would have become due after the fourth 12-hour shift on the 2&1 roster. The hours performed on the first Saturday and Sunday because of the terms of the site agreements, should have been regarded as ordinary hours that counted towards the first long break on the roster.
297 Each one of the methods described in the second Hall statement assume that any work performed on Saturday and Sundays could be scheduled and paid as overtime rather than rostered as ordinary hours to which penalty rates would have applied.
298 They also assume that if work performed on Saturdays and Sundays is treated as ‘rostered overtime’ it will not count towards the first 48 ordinary hours of work on the roster even though the award contemplates ordinary hours may be worked on Saturdays and Sundays, albeit subject to the payment of penalty rates.
299 The difficulty I have with the alternative methods of allocating overtime hours that Ms Hall described in the second Hall statement is that there is simply no room within a 2&1 roster cycle to roster long breaks in the way they were scheduled in United Voice.
300 Each of the shifts in a 2&1 roster must sequentially follow the other. Rostering overtime on Saturdays and Sundays on a 2&1 roster in the way the respondent says it can, would make the limit on the extent to which an employer can require an employee to work consecutive shifts, that Colvin J identified in Wilkinson and which the long break provision was intended to impose, ineffectual.
301 It is my view that under the long break provisions of the 2010 and 2020 awards, Mr Lummas should have received a long break upon the completion of his first four 12-hour day shifts on the 2&1 roster that applied under PPA 1 and PPA 2.
302 It is in my view, the combined effect of the site agreements and the correct application of the long break provisions is that overtime was payable following the completion of the first 48 hours on the 2&1 roster.
303 It is on this basis that I do not accept the respondent, notwithstanding the site agreements it made, should now be permitted to say that it’s compliance with an industrial award, should be determined by reference to some other method of rostering ordinary hours and overtime that it did not apply in practice, nor disclose to Mr Lummas.
304 For this reason, I consider the decision in Berry has no application to the circumstances at issue in the present case. This is because I do not consider there is an alternative way in which overtime could be rostered on a 2&1 roster in the ways Ms Hall described.
305 The significance of these findings is that I consider the claimant’s underpayments schedule more accurately reflects what Mr Lummas should have been paid on a 2&1 roster, where he was not given a long break as required, rather than the methods the respondent has urged me to prefer.
306 The underpayments schedule shows that when compared with what he was paid for each fortnight during the claim period, with what he should have received under the 2010 and 2020 awards, Mr Lummas was underpaid in each fortnightly pay period.
307 Accordingly, for all of the reasons outlined, and having regard to the underpayments schedule, I am not satisfied that Mr Lummas was better off overall under the site agreements than if he was paid under the 2010 and 2020 awards.
Effect of the ‘Better Off Overall Finding’ on the Site Agreements
308 There are two consequences for the respondent with my finding that Mr Lummas would not have been better off overall under the site agreements than if he had been paid under the 2010 and 2020 awards.
309 Firstly, my finding on this third limb of the respondent’s defence, provides a further reason why I do not consider the site agreements were validly made IFAs.
310 The necessity for Mr Lummas to be better off overall under the site agreement than if he was paid under the 2010 and 2020 awards, is a requirement under s 144(4)(c) of the FW Act.
311 Having reached the conclusion, that this requirement of the award flexibility provision was not met, I am not however satisfied that s 145 of the FW Act has the curative effect on the site agreements the respondent says it does.
312 While I accept PPA 1 and PPA 2 and the 2&1 roster referred to in these site agreements would have continued to apply, I do not consider that s 145 of the FW Act permitted the respondent to pay Mr Lummas less than what was entitled to be paid under the 2010 and 2020 awards.
313 The effect of s 145(3) was explained by the Full Bench of the Fair Work Commission in its Four Yearly Review of Modern Awards [2015] FWCFB 4466; (2015) 252 IR 256 at [122] as follows:
Section 145 deals with the situation where an IFA does not meet a requirement of s.144. In such circumstances the arrangement still has effect as if it were an IFA. However, where an employer is required to ensure that a requirement for a flexibility term in s.144(4) is met (such as ensuring that the employee is better off overall), failure to do so is a contravention of the flexibility term of the award (s.145(3)).
314 It is also worthwhile observing that s 145 of the FW Act must be construed so that it is consistent with the language and purpose of all the provisions of the statute as a whole; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].
315 Also relevant is s 15AA of the Acts Interpretation Act 1901 (Cth) (Interpretation best achieving Act’s purpose or object) which provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
316 I have noted s 3 of the FW Act (Object of this Act) relevantly states:
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
…
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; …
317 In view of those parts of s 3 of the FW Act that I have referred to, I am more inclined to prefer the interpretation of s 145 that was described in the claimant’s submissions.
318 The construction of s 145 being pressed by the respondent would seemingly permit or validate the making of individual arrangements that fall below the terms of an award, thereby undermining the minimum safety net as described in s 3 of the FW Act. I consider that such an outcome would be contrary to the objects in s 3 that I have extracted.
319 For this reason, I am more inclined to accept that if a purported IFA does not comply with a requirement under s 144(4) (one of which is that Mr Lummas could not be worse off than if he was paid under the 2010 and 2020 awards), s 145(3) provides the respondent will have contravened the award flexibility provision.
320 While it is not specifically alleged the respondent contravened s 145(3) of the FW Act, it cannot be said with the finding that Mr Lummas was not better off overall, that any loss arising from the alterations to his entitlements under the 2010 or 2020 awards, that were made by the site agreements, is not actionable.
321 Having made a finding the respondent did not comply with the requirements of the award flexibility provision, I do not consider there is any barrier to the relief that is sought for the loss resulting from the alleged contraventions of the long break and overtime clauses of the 2010 and 2020 awards.
322 In my view the loss resulting from both types of contraventions even though a contravention of the award flexibility provision is not being pressed in this case, is the same as the loss resulting from the award breaches.
Set Off Defence
323 The second consequence of my finding that Mr Lummas would not have been better off overall under the site agreements than if he had been paid under the award is that there is no need to consider the respondent’s ‘set off’ defence.
324 The claimant’s underpayments schedule shows that Mr Lummas was underpaid in each fortnightly pay cycle during the claim period. There are therefore no ‘overpayments’ in any of the relevant fortnightly pay periods that may be ‘set off’ against any claimed underpayments during the claim period.
Conclusion
325 For all the reasons set out in the preceding paragraphs, I am satisfied the claimant has established on the balance of probabilities, that the respondent has engaged in the award breaches as alleged and thereby contravened s 45 of the FW Act. I therefore find that the amended claim has been proved.
326 I am also persuaded that an order should be made under s 545(3) of the FW Act requiring the respondent pay Mr Lummas the sum of $50,725.32, being the amount by which he was underpaid because of the award breaches.
327 Having made this decision, I intend to hear from the parties on any further relief that should be granted and what if any other orders should follow, including on the number of contraventions and the issue of penalty.



T. KUCERA
INDUSTRIAL MAGISTRATE