T6540 (6 February 1997)
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Chief Executive, Workplace Standards Authority RESTAURANT KEEPERS AWARD
Interpretation of award - Annual Leave clause - "continuous service" and its application to Workers Compensation absence REASONS FOR DECISION The Chief Executive of the Workplace Standards Authority pursuant to section 43 of the Industrial Relations Act 1984 has made application for the interpretation of Clause 9, Annual Leave, of the Restaurant Keepers Award with particular emphasis on the phrase "continuous service". In particular an interpretation was sought as to whether absences on workers compensation affected "continuous service" for annual leave purposes. Clause 9, Annual Leave, is worded in the following manner:
Mr Williams for the Workplace Standards Authority, said that the authority had been approached by the employer and a past employee to clarify the employee's entitlements on termination. The employee had commenced employment on 5 March 1991 and on 25 July 1994 had suffered a back injury at work. From that date until 18 April 1996 the employee had been absent on workers compensation. On 24 April 1996 the workers' compensation matter was settled by the payment of a lump sum; the employee signed a release and the employee, it was agreed, lawfully terminated her employment. During her employment the employee had taken 13 weeks' of paid annual leave. If the period of workers compensation absence was to be counted as service for the purposes of annual leave Mr Williams said there would be an accrual of 20 weeks and 12.66 hours; less 13 weeks taken, a balance of 7 weeks and 12.66 hours at termination. Alternatively, if the workers' compensation period was not to count as continuous service, the total accrual would be 13 weeks and 12.66 hours; less 13 weeks taken, a balance of 12.66 hours at termination. The Commission was provided with an assortment of dictionary definitions for the words "continuous" and "service"; referred to a number of cases in other jurisdictions which turned on the meaning of those two words; and comparisons were made with the use of those words in other clauses of this and other awards. Ms Hudson, for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the ALHMWU) an organisation with members subject to the award, submitted that an employee who was injured in the course of his or her employment and consequently received workers compensation during the period of recuperation was still being employed ".. by the employer on a continuous basis". (Transcript p.11) Further, she contended that the period of absence could be deemed to have been authorised by the employer. If the absence was authorised by the employer it should be accepted that the absence did not affect the continuity of service. Ms Hudson said Section 84 of the Workers Rehabilitation and Compensation Act 1986 provided that workers were entitled to annual leave whilst receiving workers compensation payments. Mr Gates for the Tasmanian Chamber of Commerce and Industry Limited (the TCCI) relied on a number of case precedents which he said established what was meant by the expression "continuous service" and which made a clear distinction between a period of "employment" and a period of "service". It was submitted that for service to be continuous the employee was required to be available to serve the employer in accordance with the terms of the contract of employment. An absence not provided for in the contract of employment, which included the provisions of a relevant award, would break the continuity of service. He added that such a break might not have the effect of breaking the period of employment. Mr Gates rejected the proposition that section 84 of the above Act should be taken into account in determining the annual leave due to the employee. He maintained that section 84 simply stated that in respect of annual leave an employee, even though absent on workers compensation, was entitled to whatever the award provided. He added that the purpose of this interpretation was to determine what the award provided. However, Mr Gates said there was no specific recognition in the award to the effect that an absence on workers compensation would count for annual leave purposes and since the employee was unable to present for work and provide service in accordance with the contract of employment the absence could not count for annual leave purposes. Ms Fitzgerald, for the Tasmanian Trades and Labor Council (the TTLC) submitted that the words "service" and "employment" when used as nouns were synonymous. She referred to section 84 of the Workers Rehabilitation and Compensation Reform Act 1995 and submitted that the Commission must give consideration to that section when interpreting the annual leave clause and its relationship to the workers compensation matters. Section 84 of the Act is worded in the following manner:
Although it is not a matter for this tribunal to rule on it would seem to me that section 84 of the Workers Rehabilitation and Compensation Act can only come into effect once the employee's entitlements under his or her contract of service (or award) have been established. This application has been made in order to determine how the award should be applied in these circumstances. Once that has been established the Act can come into play. The cases relied upon by Mr Gates have certain aspects to them which make it difficult to apply them directly to the circumstances of this case. In the Wire Workers matter1 the Commonwealth Court of Conciliation and Arbitration was dealing with an appeal from a decision by a Conciliation Commissioner which purported to allow striking employees to receive their annual leave entitlements which had been withdrawn by the employer. The matter was conducted having regard to the National Security (Industrial Peace) Regulations. The majority decision of the Court as expressed by Kelly J. contained this introduction:
Piper C.J. in the same matter confirmed that it had been "held by the N.S.W. Industrial Commission that `service' is the qualifying factor and not employment and that the two words are not synonymous". [Page 187] The decision raises other considerations which might have application in this case, particularly the suggestion that if a "legitimate reason" existed for ceasing work, continuity of service might not be broken. The Australian Rope and Cordage Workers matter2 also set against the background of National Security (Industrial Peace) Regulations, concerned the interpretation of the Annual Leave clause of the Rope and Cordage Workers Award which provided that any absence from work on account of sickness or accident up to fourteen days in any twelve months would be deemed to be part of continuous service. The court held that "unauthorized absences" were "breaches of continuous service". It is not clear whether authorised absences were considered to be those specifically provided for in the award or simply absences authorised by the employer. In the Birmingham v. Francis matter3, Matthews J, President of the Queensland Industrial Court, held that "continuous service" in relation to long service leave entitlements meant service which was given in accordance with the contract of service without interruption. The distinction was made between "service" and "employment". In this matter Matthews J, and I paraphrase his decision, found that the contract of service established the days of work; that the employee had no other employer and worked uninterruptedly for the employer for all time in each week that he was required to perform his duties and that he was always available to perform them. In Richard Affleck v. Evans Anderson Phelan (Pty) Ltd (1964) (57 Q.G.I.C. 408), referred to in the above matter, the President of the Queensland Industrial Court, Hanger J, also dealt with the issue of "employment" and "service". In relation to long service leave entitlements, section 17(3) of the then Industrial Conciliation and Arbitration Act of Queensland provided that an absence from work on leave granted by the employer "including such absence through illness or injury" would not interrupt continuity of service. He found that while such an absence did not break the continuity of service, nothing said that the period of absence was to be treated as service. Given these precedents I am satisfied that "continuous service" for the purpose of this award means the uninterrupted provision of the employee's labour in accordance with the contract of service entered into between the employee and employer. In this case the contract of service is supported by an award, viz. the Restaurant Keepers Award. The employee was a full time worker and, subject to conditions in the award, the employer was to provide work for the employee for 38 hours per week. The employee was to be available to work for the employer for 38 hours per week. It is not clear from the precedent cases discussed whether authorised absences from work were those identified in the relevant award or legislation, or whether the employer was in a position to authorise an absence which would not affect the continuity of service. However, having considered the words of the award I have concluded that it is the award which provides for those absences which do not affect continuous service. In this case compassionate leave, parental leave, public holidays and sick leave are provided for in the award and if granted, in my opinion, do not affect the continuity of service. No reference is made in the award to an absence on workers compensation or indeed any absence arising from work caused illness or injury, and accordingly I must conclude that such an absence is an interruption to the provision of continuous service to the employer and consequently does not count for the purposes of calculating annual leave entitlements. Indeed it might be argued that such absences break service completely requiring a fresh start at least for annual leave purposes, a situation which does not apply in the case under review. Section 43 of the Industrial Relations Act 1984 requires the President, when application is made, to declare how a provision of an award is to be interpreted. In this case an interpretation is sought as to the emphasis to be placed upon the words "continuous service" as used in the Annual Leave clause and the effect an absence on workers compensation might have on the accrual of annual leave. The guidelines used by the Commission in interpretation matters require the President to attribute to the words under consideration, if they are clear and unambiguous, their generally accepted meaning. This case is one where the words in contention are in my opinion clear and unambiguous. Accordingly, having considered the submissions of the parties and the material referred to in those submissions, I declare that Clause 9, Annual Leave, of the Restaurant keepers Award, subclause (a), Period of Leave, means that an employee on weekly hire is entitled to 28 consecutive days leave each year after having provided to the employer 12 months continuous service (less the period of annual leave). Continuous service meaning uninterrupted service in accordance with the award. Put another way, absences from work must be provided for by the award to avoid interruption to service. The words "continuous service" have the same meaning in subclause (c), Proportionate Leave on Termination of Service. Since absences on workers compensation are not provided for in this clause, I declare, pursuant to section 43 of the Act, that an absence on workers compensation interrupts continuous service for the purposes of Clause 9, Annual Leave, of the Restaurant Keepers Award. I recommend the organisations with an interest in this award apply themselves to ensuring that the award contains provisions which reflect current practice and/or standards.
F D Westwood Appearances: Date and place of hearing: 1 Wire Workers Wire Fence and Tubular Gate Workers Union of Australia and others v. Rylands Bros (Aust.) Pty Ltd and others (1944) 53 C.A.R. 180 |