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T1075

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.1075 of 1987

IN THE MATTER OF an application by the Federated Liquor and Allied Industries Employees Union, Tasmanian Branch, for interpretation of the HOTEL AND MOTEL KEEPERS AWARD 

Re: Clause 52 - Casual Employment

PRESIDENT 24 June 1988

INTERPRETATION

 

APPEARANCES:
For the Federated Liquor and Allied Industries Employees' Union (Tasmanian Branch) - Mr N J Sherry
For the Tasmanian Confederation of Industries - Mr K Brotherson
DATE AND PLACE OF HEARING:
20.4.88    Hobart

 

This application by the Federated Liquor and Allied Industries Employees' Union of Australia, Tasmanian Branch, seeks an interpretation of Clause 52 (Casual Employment) of Division B of the Hotel and Motel Keepers Award.

The clause to be interpreted is framed in the following terms:

    "52. CASUAL EMPLOYMENT

    An employee engaged to work less than 40 hours in a week (other than a part-time employee as provided in Clause 66 hereof) shall be paid as follows:

    (a) Casual employees working Monday to Friday inclusive shall be paid per hour one fortieth of the weekly rate prescribed for the work he or she performs plus 25 per cent; such additional amount to be payment in lieu of annual leave, sick leave and public holidays.

Casual employees shall be paid at the rate of time and one half for work performed on Saturdays.

For all work performed on Sundays and public holidays casual employees shall be paid at the rate of double time.

A casual employee shall be paid a minimum of three hours pay for each engagement. ..."

The applicant contends that the 25 per cent loading prescribed in the first paragraph of subclause (a) is to be included as part of the basic hourly rate when calculating the hourly rate for Saturdays, Sundays and public holidays.

This contention is disputed by the Tasmanian Confederation of Industries who appeared on behalf of members bound by the award.

In a well-reasoned exposition on the award as a whole, supported by certain selected extracts from decisions of this and other tribunals, Mr Sherry attempted to show that the award maker intended that the 25 per cent loading prescribed for Monday to Friday work should also be included in calculating hourly rates for casuals regardless of the days and times during which work was carried out.

Mr Brotherson, on the other hand, submitted that the 25 per cent loading applies only to work done on Mondays to Fridays. For work done on Saturdays, Sundays and public holidays the appropriate hourly rate would be that which can be determined by reference to the weekly rate for the award classification applicable to any casual employee, plus in the case of Saturday work, 50 percent. For work done on Sundays and public holidays the penalty addition would be 100 per cent. He also submitted that subclause (a) of Clause 52 makes this clear when read in conjunction with Clause 68 (Penalty Rates Not Cumulative).

Clause 68, among other things, prohibits more than one penalty being attracted in circumstances where rates in excess of ordinary time are to be paid.

Mr Sherry acknowledged that the calculation of the hourly rates payable to casuals in accordance with Division A (Employees in Hotels, Taverns and Wine /Bars) was clear and unambiguous. This was due to the use of more explicit terminology. Nevertheless he pursued his assertion that in calculating rates for casuals working on Saturdays, Sundays and holidays, the 50 per cent and 100 per cent additional penalty attracted should be applied to the loaded Monday to Friday rate. In other words, for work done on Saturday the calculation would be thus:

      Ordinary classified hourly rate per week + 25%
                               40                                       + 50%

For Sundays and holidays the exercise would be:

      Ordinary classified hourly rate per week + 25%
                               40                                      + 100%

On Mr Sherry's interpretation the loading for Monday to Friday work would be 25 per cent; for Saturday work it would amount to 87.5 per cent, and for Sundays and holidays 150 per cent above the award rates.

Bearing in mind the fact that in dealing with applications for interpretation considerations of merit cannot play any part in determining a matter in issue, I propose to interpret the award in the following way:

A casual employee classified as, say, a waitress working 3 hours on any day, Monday to Friday, is entitled to be paid at an hourly rate ascertained in the following way:

      Weekly rate for waitress $294.201 + 25%
                                                  40              = $9.19 per hour

This rate would apply for all hours worked on those days, with a minimum payment, in any case, as for 3 hours.

A casual waitress working on a Saturday would be entitled to be paid an hourly rate ascertained by dividing the weekly rate of $294.20 by 40 and increasing the result by 50 percent, i.e. $11.03.

A casual waitress required to work on a Sunday would be entitled to be paid double time for all time worked. Therefore the hourly rate would be determined by dividing $294.20 by 40 and doubling the result, i.e. $14.71 per hour.

The 25 per cent addition for Monday to Friday is an allowance given for the reasons stated. If it is limited to Monday to Friday it cannot be extended to Saturday and Sunday. Although public holidays usually fall on week days, I do not believe the 25 per cent should be applied on such days as the double time penalty is intended to be an "all up" total addition.

On its face the definition of "ordinary earnings" as it applies to each classification in Division B for ordinary hours on Monday to Friday, may tend to suggest that Mr Sherry's submission regarding base rate could be correct. But the term "ordinary earnings" appears to have no application to determination of the hourly rate for casuals. Indeed, the expression is used once only in the award, and then only in relation to payment for pro rata leave. This, of course, would have no application to casuals. In those circumstances I believe Clause 68 (Penalty Rates Not Cumulative) makes it clear that there can be no penalty on a penalty.

This prompts the observation that under this division a casual employee is treated no differently to a weekly employee on Saturdays and Sundays. Moreover, on a public holiday a casual employee does not appear to be entitled to be paid at double-time-and-one half. On its face this may be inconsistent with a somewhat similar position regarding casuals to be found in Clause 14 applicable to Division A (Hotels, Taverns and Wine Saloons). I have been unable to discover any reason why this is so. One can only assume that the differences that appear in the award are there by consent and not by arbitration.

If I am correct in this observation it means that a casual who works only or mainly on weekends and holidays receives no loading for sick leave, annual leave and public holidays foregone. If, on the other hand, my assumption is not correct, inclusion of the Monday to Friday 25 percent loading for all purposes would produce for Saturday work a loading of 87.5 per cent and a loading of 150 per cent for Sundays and holidays. Except for public holidays the measure of those additions would also be inconsistent with Clause 14.

In the circumstances I feel I should interpret the award in a way more in line with the actual language used. If this is done any element of merit that might appear to be inherent in a more liberal interpretation will be avoided. Moreover, if, as a consequence, the parties detect an obvious deficiency in the drafting, that defect can always be repaired by making the appropriate application.

Accordingly I declare that a casual employee working in a motel and subject to Division B of the award, is entitled to be paid at the following hourly rates:

Monday to Friday: 1/40th of the weekly rate for the classification in which the casual is employed plus 25%

Saturday: 1/40th of the weekly rate for the classification in which the casual is employed plus 50%

Sundays and holidays:1/40th of the weekly rate for the classification in which the casual is employed plus 100%

In each case the employee concerned must be paid for a minimum of 3 hours whether work is actually done or not. The award is interpreted accordingly.

 

L A Koerbin
PRESIDENT

1 Current rate