T6668
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union - and Wormald Australia Pty Ltd
Industrial dispute - 12-hour shift agreements - application of Security Industry Award - duress - alleged breaches of Clauses 17 (Hours), 21 (Overtime) and 30 (Saturday and Sunday Work) of the Security Industry Award - finding that there was agreement to work 12-hour shifts - further finding that agreements not made in accordance with the Security Industry Award - order made directing employer to comply with terms and conditions of the Security Industry Award REASONS FOR DECISION Introduction On 18 December 1996 the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the Union) applied to the President for a hearing pursuant to Section 29(1) of the then Industrial Relations Act 1984. That application concerned an alleged industrial dispute between the Union and Wormald Australia Pty Ltd (Wormald) about allegations that the company had breached Clauses 17 (Hours), 21 (Overtime) and 30 (Saturday and Sunday Work) of the Security Industry Award regarding six former employees, ie Paul Bonnitcha, Henry Wright, Tim Jones, Matti Latinen, Matthew Cooper and Ben De Groot. At the request of the Union and with Wormald's consent, I refrained from immediately listing the matter so that the parties might attempt to settle the dispute by conciliation. However, following a private conference on 15 April 1997 and two preliminary hearings on 25 July and 19 August 1997, the dispute remained unresolved. Ultimately, the matter first went to arbitration on 9 and 10 October 1997. On that occasion Mr D J O'Byrne appeared for the Union and Mr S J Gates of the Tasmanian Chamber of Commerce and Industry Limited appeared for Wormald Australia Pty Ltd. Procedural Matters Mr O'Byrne sought leave to amend the Union's application to remove from the list of claimants Mr Matti Latinen, who no longer wished to pursue his claim. There being no objection from Mr Gates, I granted the request and amended the application accordingly. Mr O'Byrne also told me that Mr Wright (now working in Melbourne) and Mr De Groot (knee injury of long term duration) had advised him, with very little notice, that they would be unable to attend the hearing. Mr O'Byrne submitted that because he could not present any evidence on their behalf, I should adjourn that part of the hearing until those claimants could attend. Mr Gates vigorously opposed any further adjournment, contending that I should dismiss the Union's application so far as it concerned Mr Wright and Mr De Groot on the grounds that: (a) Each claimant had received substantial notice of the present hearing; (b) Neither claimant had attempted to put affidavit evidence before the Commission; (c) Claimant De Groot had offered no medical evidence capable of supporting his assertion that his physical disability was such that it prevented him from actually giving evidence; and (d) Additional delay in hearing and determining the Union's claims would constitute a substantial prejudice to Wormald. After hearing the parties, I upheld the Company's submissions and dismissed the Union's application in respect of both Mr Wright and Mr De Groot.1 Thereafter, I took oral evidence from the remaining claimants (former employees Cooper, Bonnitcha and Jones). I also took evidence from Mr D Weir, General Manager Wormald Australia Pty Ltd (now Tyco Australia Pty Ltd) and Mr J Alexopoulos who was, at the relevant time, State Manager Guards, Patrols and Monitoring at Wormald Australia Pty Ltd.2 Finally, as to procedure, it was a matter of consent between the parties that, in these proceedings, the Commission should not go beyond determining: (1) The validity of the 12-hour shift agreements in terms of the Security Industry Award; and (2) Whether, depending upon the outcome in (a) above, Wormald had breached Clauses 21 (Overtime) and 30 (Saturday and Sunday Work) of the award. Mr Gates added that, should the Commission uphold the Union's contentions, Wormald specifically reserved the right to present further submissions and evidence concerning: (a) What amounts, if any and taking into account Section 52 of the Act, the claimants or any one of them should receive; (b) What account, if any at all, should be taken of retrospectivity; and (c) All matters regarding quantum. Subsequently, in the concluding stages of the principal hearing of 10 October 1997, the parties agreed that there should be a further reservation. That reservation concerned the 38-hour week proceedings before Gozzi C in relation to the Security Industry Award. In the event that I should find those proceedings to be relevant to the current matters, the parties requested an opportunity to make further submissions on that point.3 On 30 March 1998, having reached certain preliminary conclusions based on the submissions then before me in respect of the matters put to me by the parties, but being mindful of their reservations, I convened a conference for the purpose of obtaining advice on how I should proceed. After hearing the parties, I offered a range of suggestions regarding the future conduct of the case and again urged them to attempt to resolve matters by means of the conciliation process. Ultimately, the applicant asked me to hear further submissions regarding (i) the 38-hour week case and (ii) the law in relation to duress or, as it is perhaps more commonly known, undue influence since, even if the 12-hour shift agreements satisfied the requirements of the Security Industry Award, they were of no binding effect because Wormald obtained them by duress. Did the Parties Agree to Work 12-Hour Shifts? D J O'Byrne for the applicant: Wormald employed each of the applicants from 1990 (Jones), August 1992 (Bonnitcha) and December 1993 (Cooper) through to November 1995, when the Company's contract with Pasminco ended.4 Wormald employed all the claimants as security guards, on 12-hour shift rosters, to perform functions and exercise skills comprehended by Clause 7 (Definitions) of the Security Industry Award. For that work the Company paid the applicants at a "flat rate of pay for the whole shift ... worked in that particular shift roster system".5 In support of that approach, Wormald relied on the existence of "an agreement with the employees that allowed for the payment of single time and that this agreement was in line with the Security Industry Award".6 The particular agreement comprised a series of identically worded documents, each of which took the following form:7 "AGREEMENT 1 BETWEEN WORMALD AND CERTAIN EMPLOYEES We/I the undersigned, employed by Wormald Security as Security Guards, hereby agree to work extra hours over and above eight hours per day, or over 38 hours per week if we/I so choose to do so at no extra cost to Wormald in way of penalty rates, provided that the normal rates under the Award on anyone [sic] day worked, would apply." Wormald's available records disclose that Mr Bonnitcha and Mr Cooper apparently each signed such an agreement on 20 July 1994. However, there is no similar copy document attesting to Mr Jones' signature. Nevertheless, Mr Jones' oral evidence is that he recalled "signing something like this" and remembered "it being just typed and sort of looking like this, nothing very formal".8 The claimants' employment history shows that all of them commenced work with Wormald on the basis of a 12-hour rotating shift roster, for which the Company paid the basic ordinary time rate. The evidence of each claimant9 is that at one time or another all of them raised the question of overtime penalty rates with the supervisor, Mr Henry Wright. Mr Wright was the authorised on-site agent of Wormald.10 Mr Wright, in reply, apparently told the applicants to "keep their head down or you would not only lose hours but you could quite possibly lose your job"11. Each of the claimants worked those shifts for a number of years before Wormald realised it was acting outside the scope of the Security Industry Award. At that time Wormald moved to cover itself by obtaining the agreements mentioned above. However, the claimants' evidence is that Wormald's shift rosters had nothing to do with any agreement related to implementation of a 38-hour week12-an understanding confirmed in cross-examination in these proceedings by witness Alexopoulos.13 None of the claimants ever approached the Company to work a 12-hour shift roster-they had to accept such a roster, since they were given no other option at the time of their employment. Because there was no first agreement-merely a "nod and a wink and an understanding"14-each of the former employees raised with Mr Wright the legality of the shifts in terms of award obligations.15 When the claimants informed Wormald that they would not sign the mid-1994 agreements, Mr Wright apparently told them "in no uncertain terms that if they didn't, not only would they lose their extra hours but also their core hours would come into jeopardy".16 Those threats caused the claimants to seek advice from the Union. The Union told them that "if they did not feel empowered to take the company on"17 they should sign the agreements because the documents did not, in any event, comply with Clause 14 of the Award. In short, when the applicants first questioned the legality of working 12-hour shifts Wormald, without engaging in any consultative process, applied duress to obtain the agreements referred to in these proceedings. Finally, regarding the question of duress, Section 86(1) of the Act prohibits victimisation in that, among other things: "An employer shall not dismiss or threaten with dismissal an employee from employment, or injure the employee in employment, or alter the employee's position to his or her prejudice, because the employee - (c) is entitled to the benefits of an award or registered agreement." Concerning their bona fides, it is clear that the claimants questioned the validity of the agreements at the time. Then, when their employment with Wormald ended, they again asked the Union to pursue the matter. The Union responded to that request by meeting Mr Weir during February 1996 and by negotiating with Company representatives throughout the remainder of that year. The present application is a consequence of the failure of that exercise. S J Gates for the respondent: Wormald commenced its Pasminco contract on 23 August 1990 and continued operations thereunder until November 1995.18 However, the evidence of witness Alexopoulos,19 whose credibility was not impeached by cross-examination, is that when the applicants commenced their employment with Wormald at the Pasminco site, they each worked a roster of three eight-hour shifts, ie. 0700 - 1500, 1500 - 2300 and 2300 - 0700 hours.20 Leading up to and continuing into 1992, Wormald extended its Pasminco operations from the main gate to coverage of the whole site. During May 1992, Wormald's on-site supervisor, Mr H Wright, twice approached Mr Alexopoulos on behalf of Wormald employees21 on the Pasminco site seeking approval to work 12-hour shifts. The uncontested evidence of both Mr Alexopoulos and Mr Weir is that Wormald refused those requests.22 When Mr Wright made his third approach to the Company regarding 12-hour shifts he spoke to both Mr Alexopoulos and Mr Weir, telling them that: All employees wanted to work 12-hour shifts;23 Clause 17(d) of the Security Industry Award allowed such shifts; There would be no additional cost to the Company as a result of introducing 12-hour shift rosters;
12-hour shifts would enable Wormald to better service Pasminco, because shift rosters between the two Companies would be identical; and that The employees would benefit because they could earn more money by working above average hours each week.24 After hearing Mr Wright, Mr Weir finally accepted the employees' offer to work 12-hour shift rosters. He did so on the understanding that the practice would not interfere with Wormald's ability to service the Pasminco contract and involved no additional costs.25 Wormald never asked for a system of 12-hour shift rosters-the Company only adopted the practice because of the employees' repeated requests for its introduction. The evidence shows that introduction of the practice gave rise to no employee complaints or union problems, despite the fact that all the employees were union members. Indeed, in pressing the current application, the Union did not contest the evidence that: Mr Wright met Company officers on three occasions regarding 12-hour shift rosters; There was in fact a first agreement signed by all employees or, at least, a majority of them26 in respect of which, on the basis of Mr Wright's evidence of 15 June 1993 (see below), there is no evidence of duress; 27 and that Mr Wright's letter of 19 May 1994, in which he acknowledged that he and his fellow employees were working a 12-hour shift roster "decided upon by ourselves",28 supported Wormald's contention that the employees signed the agreement in an environment free of Company coercion, duress or force. There is no evidence that any employee or the Union ever raised the question of duress with the Company before the current proceedings. In any event, the Union's allegations concern only three of 11 employees involved at the time. The Union did not call any of the remaining eight employees to give evidence in support of the claimants' contention that they only signed the agreement because they were under duress. The clear inference from that evidence is that there was no duress. Subsequent proceedings in this Commission support the position of Wormald in the current case. In 1993 the Union applied to vary the Security Industry Award concerning, among other things, "application of the classification structure to the employment of contract security officers employed at the EZ Risdon premises".29 In the course of those proceedings, on 15 June 1993, Mr Wright (then Leading Hand, Wormald Security) gave evidence on behalf of the Union. During his cross-examination by Mr T Abey (who appeared for Wormald), the following discussion took place concerning 12-hour shifts:30 "[MR ABEY:] Now, the 12-hour shifts at Pasminco - I understand that was an agreed matter, is that right? [MR WRIGHT:] Well, the Team leaders - that's the EZ staff people - do 12 hours. It just seems simple that we do the same because it falls in line, yes. [MR ABEY:] I understand that: all I'm trying to establish - it was agreed by Wormald people to operate on that basis. It wasn't imposed on you? [MR WRIGHT:] Oh, no." Mr Wright's evidence in those proceedings regarding the consent nature of the 12-hour shift arrangements and the absence of duress was not challenged or questioned in any way by Mr K O'Brien, then appearing for the Union. In the circumstances, Mr Wright's evidence clearly confirms the evidence of witnesses Alexopoulos and Weir in the present matter. Then there is Mr Wright's letter of 19 May 1994,31 which he sent to all employees and to Mr Alexopoulos. In that letter Mr Wright observed (i) that "the rostered shift work of two (2) days, two (2) nights and four (4) off duty at Pasminco Metals-EZ is our roster, decided upon by ourselves"; (ii) that the arrangements "may incur us signing a document consenting to our roster"; and (iii) that "if anyone dislikes our present roster, wishes a change to eight hour shifts, etc, please contact me and I will put it to a vote".32 The evidence before the Commission in the present matter is that none of the applicants complained to Mr Wright and no vote was ever taken.33 From the time of Mr Wright's letter up to mid-July 1994, when the employees signed the agreements referred to in the current proceedings, the Union never raised with Wormald the question of 12-hour shifts. Because the Union had a history of raising matters with the Company, the available inference from that evidence is that there were no problems with the agreements and that the Union perceived them to be in accordance with the Security Industry Award. The reason why the mid-July 1994 agreements were sent to employees was because Wormald, having looked for it, could not find the earlier agreement-although the evidence now before the Commission shows there is no doubt that such a document actually existed. A further reason for Wormald's mid-July 1994 action was that there had been staff changes since 1992 and, as mentioned in Mr Wright's letter of 19 May, some employees had evidently expressed concern about the 12-hour shift arrangements. The best evidence before the Commission is that all, or at least a majority of employees concerned, signed either the original agreement or the mid-July 1994 agreements. They each did so of their own free will, being fully aware of the effect of the agreements in terms of overtime penalty rates. Indeed, the evidence clearly demonstrates that the Union never at any time disputed the Company's use of Clause 17(d) at Pasminco. For example, even though it had members on site in 1992, the Union: Never took the matter up with the Company; Never pursued the matter with the Company following Mr Wright's June 1993 evidence in proceedings in this Commission; and Never raised the question with the Company in mid-1994 when the employees signed the agreements the subject of the present case.34 The only inference available from this evidence is that the Union accepted Clause 17(d) as permitting the 12-hour shift arrangements that Wormald and its employees, by agreement, had put in place at Pasminco. Certainly, none of the claimants involved in this case and no other Wormald employee ever disputed the validity of the agreements until 18 December 1996, when the Union lodged the current application in the Commission. They did not dispute the agreements when they ceased working for Wormald and they did not dispute them when they ceased working for Chubb.35 All the claimants did was file the current application in response to an unsuccessful redundancy claim. The Company was committed by its contract, which it could not vary, to service the Pasminco site on a 24-hour basis by operating three 8-hour shifts. Wormald only changed to a 12-hour shift roster when it was satisfied (i) that all, or a majority of its employees wanted to work those shifts; (ii) that the award made appropriate provision for such arrangements; (iii) that employees benefited from the arrangements; and (iv) that there was no additional cost for the Company. The present application suggests that the employees concerned, notwithstanding their earlier guarantee that the Company would not incur additional costs by introducing 12-hour shift rosters, now want to "double-dip". That is to say, "they had want they wanted at the time and now they think they can get some more".36 That is one reason why Wormald refused to settle the present claim. Another reason is that late lodgment of the claim, in the circumstances, prejudiced the Company because it had discarded documents, their preservation being no longer required by Section 75 of the Act, that were capable of resolving the matter in its favour. Based on the above grounds the Commission should issue the following orders in favour of Wormald: (1) That Clause 17(d) of the Security Industry Award enables an employer and its employees, by agreement, to extend ordinary hours past eight on any day; (2) That, on the evidence in this case,37 there was such an agreement, or agreements, between Wormald and its employees; and (3) That the agreement, or those agreements, were freely entered into by at least a majority of the employees concerned. Findings: I begin my considerations with Mr O'Byrne's contention that there was no first or initial agreement as such, merely a "nod and a wink" kind of arrangement. In part, at least, his submission appears to rely on the following grounds: (a) The evidence of the claimants, witnesses Cooper, Bonnitcha and Jones, that they each worked 12-hour shifts from the moment they commenced their employment with Chubb; and (b) The fact that Wormald cannot produce the original or even a copy of the alleged initial agreement. Looking at relevant events in the time sequence in which the evidence suggests they occurred, there is no dispute between the parties that Wormald's operations at Pasminco began in August 1990. At that time, according to witnesses Alexopoulos and Weir, Wormald fulfilled its contractual obligations by using a continuous shift roster of three 8-hour shifts. Those arrangements, on Mr Alexopoulos' evidence, remained in place until sometime after May 1992 when, following a third meeting on the subject with Mr Wright, Wormald changed to a continuous shift roster of 12-hour shifts.38 Mr Alexopoulos' evidence appears to be confirmed by witnesses Cooper and Bonnitcha. Mr Cooper said a 12-hour shift roster was in place when he commenced in December 1993 and Mr Bonnitcha said Wormald was working 12-hour shifts when he started work for the Company in August 1992. Neither of them knew or could recall knowing what the Company's shift roster practices were before their respective commencement dates. The evidence of witness Jones however, who commenced work for Wormald at Pasminco sometime during 1990, but obviously later than August, is contrary to that of Mr Alexopoulos. Mr Jones said he never worked anything other than a 12-hour shift roster. The conflicting statements of witnesses Alexopoulos and Jones generated one of a number of evidentiary difficulties that tended to impair the quality of the evidence tendered in these proceedings. I now pause to discuss those matters. In the first place, one might reasonably suppose that, in the ordinary course of events, an employer such as Wormald could produce the agreement in question and the relevant time and wages' records. Section 73 of the Act, however, only required Wormald to keep employment records "for a period of 12 months after the termination of the employment" of its employees. Consequently, because of the passage of time since 1995, when Wormald ceased operations in Tasmania, those records are said to be no longer available. The next best evidence in the circumstances, one would think, could have come from Mr Wright, who the evidence suggests was a principal actor in all the events that surround and comprise the present application. However, neither the Union nor Wormald sought to lead from him any evidence at all. It is of course true to say that, because Mr Wright was initially a claimant in these proceedings, the parties might reasonably have expected to obtain his evidence in that capacity. However, he chose not to attend the hearing and, on the motion of Wormald, I dismissed the application made by the Union on his behalf. I am in no doubt that Mr Wright's failure to attend the hearing, together with my subsequent ruling, were events that the parties did not expect. Even so, neither the Union nor Wormald thereafter requested me to adjourn the hearing so that they might endeavour to obtain Mr Wright's evidence by some other means. Mr Gates made much of the Union having not called Mr Wright as a witness - "... Mr Wright is relevant to these proceedings. It is clear Mr Wright is relevant to the applicant's case. It is clear Mr Wright is the applicant's witness. He is part of the claim against the employer. He is not our witness." - for the purpose of asserting (relying on the High Court case of Jones v Dunkel (1959) 101 CLR 298)39 that to the extent of any inconsistency, the Commission should prefer Wormald's evidence to that of the Union.40 There is no doubt about Mr Wright's relevance to the proceedings. However, for reasons that follow, I seriously doubt the assertion that Mr Wright was not, equally with the Union, the employer's witness. First, at the time Mr Gates made the above submission, Mr Wright was no longer part of the claim against Wormald. Second, Mr Gates had earlier stated that "Mr Wright is a key witness for both the applicant and I'd even suggest for the respondent because he was the supervisor at the time".41 Third, and finally, Exhibit G1 shows plainly enough that Mr Wright saw himself as the on-site representative of management at Pasminco, which Wormald did not deny. In the circumstances, I believe the evidentiary principle espoused in Jones v Dunkel is a two-edged sword so far as it concerns Mr Gates' submission that Mr Wright was the Union's witness. In my opinion, once the Commission had dismissed his claim, Mr Wright was clearly capable of being the employer's witness for the reasons expressed above. It was, therefore, open to Mr Gates to request an adjournment in order to obtain Mr Wright's evidence but, like Mr O'Byrne, he did not do so. In the light of those considerations, it seems to me that Jones v Dunkel is unlikely to be of any assistance in the particular circumstances. I return now to the conflicting evidence of witnesses Jones and Alexopoulos. In support of Mr Alexopoulos' recollection of events Mr Gates relied on: (i) the evidence of Mr Wright of 15 June 1993 in another matter, as confirming the existence of a 12-hour shift agreement;42 and (ii) Mr Wright's observations in his letter of 19 July 1994.43 Whatever else this evidence may tend to suggest, it plainly does not assist in resolving the question regarding the kind of shift operation Wormald had in place in 1990 when it first employed Mr Jones. In the absence of any other evidence on the point and because I have no reason to disbelieve either witness, the issue, so far as I can see, must remain unresolved for the time being. The time frame concerning the 12-hour shift arrangements then moves to mid-1992 and Mr Wright's three meetings with Company officers. There being no challenge from the Union on this point, I accept that the meetings occurred and concerned the working of 12-hour shifts, as mentioned in the evidence of witnesses Alexopoulos and Weir. The outcome of those meetings appears to have been either an agreement to commence a 12-hour shift roster or, perhaps, taking into account the evidence of witness Jones, an agreement to continue working 12-hour shift rosters. That there existed agreement on the subject is confirmed, in my opinion, by Mr Wright's evidence of 15 June 1993, in another matter in this Commission. His evidence was that, at that time, the relevant employees were working a 12-hour shift roster that was not imposed on them.44 Furthermore, he noted in his letter of 9 July 1994 that the 12-hour shift roster then being worked was "decided upon by ourselves".45 That there also existed a document to which employees had appended their names in mid-1992 seems clear enough, too. That conclusion, I believe, flows from the evidence of witnesses Jones and Alexopoulos, although only Mr Alexopoulos was confident enough to say that it was exactly the same as the mid-1994 agreements. The evidence as to whose signatures appeared on that document, however, is unclear. Witness Alexopoulos said that "there was a paper signed by all employees"46 whereas witness Weir, while believing that all employees had signed the document, was only certain that it was definitely a majority of them.47 Mr Jones, the only witness among the claimants who was in a position to give evidence on this point, said the paper he saw had multiple signatures on it. Mr Gates invited me to note that the Union did not call any other person, employed by Wormald at the relevant time, to give evidence concerning this issue. However, there is no need for me to take that matter any further. That is because, in my opinion, the weight of all the evidence leads inescapably to the conclusion that, not only did the document exist but that, most likely, its content concerned the working of 12-hour shifts. In addition, the evidence persuades me that a number of, if not a majority or even all the then employees signed the document. Moving on in time, the content of the mid-July 1994 agreements is, however, plain enough. Clearly, the agreements do not authorise the working of 12-hour shifts as such but, duress aside, they do confirm the consent of those who signed them to work: "above eight hours per day, or over 38 hours per week ... at no extra cost to Wormald in way of penalty rates". According to witness Alexopoulos,48 all the then employees signed agreements of this nature in an environment in which there was no employee or Union objection because Wormald was merely reflecting the employees' wishes. Witnesses Cooper, Bonnitcha and Jones, however, all say they never asked for 12-hour shifts; that they objected to signing the documents and that they referred the matter to the Union for advice. Subsequently, it seems, a Union officer advised them to sign the documents if they did not feel they could take the Company on, because the agreements were incapable of being enforced since they did not comply with Clause 14 of the award. The above evidence convinces me it is safe to conclude, and I do so conclude, that in 1994 all then employees of Wormald signed the agreements that are the subject of these proceedings. The Union's submission is that they did so only under duress. I will turn to that matter shortly. In the meantime, however, it is appropriate to make certain findings on the evidence as discussed to this point. I am satisfied, having regard to the evidence and on a balance of probabilities, that in mid-1992 there was an agreement between Wormald and its then employees, or a majority or all of them, to work 12-hour shifts, or to continue to work 12-hour shifts. Notwithstanding the fact that Wormald cannot now find the document evidencing that agreement, I am also satisfied on a balance of probabilities that the document witnesses Jones and Alexopoulos could recall having seen, which was signed by a number of, if not a majority or even all the then employees of the Company, was most likely a document that reflected the terms of the parties' 12-hour shift arrangements. Furthermore, the evidence satisfies me that, in mid-1994, all Wormald's then employees each signed an agreement identical to those produced in these proceedings (Exhibits O2 and O3). Those were the agreements upon which the Company relied as authorising the continuation of 12-hour shift rosters in respect of its Pasminco operations.49 Were the Parties' 12-hour Shift Agreements made in accordance with the Security Industry Award? P Tullgren and D J O'Byrne for the applicant: Clause 14 of the Security and Watching Services Award, the predecessor of the Security Industry Award, provided for hours of work in the following manner: "(a) The ordinary hours of work shall be 40 per week worked in 5 consecutive days of 8 hours each. (b) Provided that the hours mentioned in sub-clause (a) of this clause may be varied by agreement between the employer, the employees and the Union." In 1987 the Union applied to vary the award for purposes of introducing the 38-hour week and, according to Commissioner Gozzi who heard the matter, to "tidy up and clarify some existing award provisions".50 Gozzi C went on to say that:51 "In effect that proposed variation would remove the present award obligation to work normal hours in five consecutive days, thus allowing for more flexible working arrangements to be introduced." and later, after dealing with a range of cost offsets, that:52 "The negotiated variations may also allow for a review of work methods and practices in the industry on an establishment by establishment basis, which may result in further cost savings based on the more flexible award prescriptions negotiated." Nowhere in the Commissioner's decision is there any mention of 12-hour shifts-indeed, the transcript of those proceedings discloses no reference at all to 12-hour shifts. Rather, the parties' observations show they were talking about introducing a 38-hour week and the consequential award variations required to achieve that purpose. As for the proposed hours clause itself Mr K O'Brien, appearing for the applicant Union, explained that the new clause dealt with certain methods of implementing the 38-hour week. Those methods included, in proposed sub-clause 14(d), the capacity for:53 "... the employer and the majority of employees [to] organise their hours in such a way that standard hours, ordinary hours may exceed 8 in any one day, with the provision that that would enable a rostered day off situation to apply more frequently than would otherwise apply." It is clear that the only basis upon which Wormald could rely on sub-clause 14(d) is for the purpose of making provision for an additional rostered day off that otherwise would not occur. However, on the evidence, that was not the purpose of the agreements that are now before the Commission. The specific purpose of sub-clause 14(d) also reflects in Clause 21 of the award, which provides for overtime. Mr O'Brien explained at the time that it was necessary to amend that clause "to allow for ... the special circumstances which arise in relation to the introduction of the 38-hour week".54 In his submissions, Mr O'Brien also identified a number of cost offsets associated with introduction of the 38-hour week. None of those offsets concerned 12-hour shifts or indicated that its purpose was to allow such shifts, essentially without additional pay. The transcript of proceedings before Gozzi C shows that removal of the five consecutive days requirement from Clause 14 was certainly an offset, but it was not one that extended to 12-hour shifts. Mr T Edwards, who appeared in the 38-hour week proceedings for the employers, told the Commission that removal of the "five consecutive days" provision was largely a flexibility question. However, nowhere in his submissions did he suggest that the new clause provided for the introduction of 12-hour shifts. He concluded his submissions with statements that "the agreement reached is one that is fair and equitable" and that "the employers are more than happy to indicate their acceptance of the 38-hour week in the form put forward by Mr O'Brien".55 It is quite significant that none of the matters for which Wormald now argues were in fact raised in the 38-hour week proceedings. That was clearly because those matters did not comprise part of what the parties were seeking to achieve. The consent variation to Clause 14 of the Security and Watching Services Award, as subsequently approved by Gozzi C, greatly enhanced the scope of that provision. Sub-clause (a) specified that "the ordinary hours of work shall be an average of 38 per week" to be worked in accordance with one of four methods specified in sub-clause (b). While those methods do not concern the present proceedings, the opening words of the sub-clause are relevant because of the exception they contain, ie "Except as provided in subclauses (d) and (e) hereof the method of implementation of the 38-hour week may be agreed to be ...". It is clear that, not only did the four prescribed methods deal with implementation of the 38-hour week, but the exception itself expressly dealt with the same subject-matter. Sub-clause (c) of Clause 14 provided for the parties to make an assessment as to the best method of implementation of the 38-hour week. Sub-clause (d) permitted the parties, by agreement, to extend the daily ordinary hours for the purpose of "enabling a week day off to be taken more frequently than would otherwise apply". That provision was also part of the implementation process because, by reason of the exception, it referred back to sub-clause (b), that is, a method of implementation. Sub-clause (e) expressly provided for implementation of the 38-hour week in relation to "various groups or sections of employees"; sub-section (f) prescribed a method for recording implementation agreements in writing; and sub-clause (g) covered averaging of payment in respect of two of the methods permitted by sub-clause (b). All the provisions of new Clause 14 related to implementation of the 38-hour week. If the provision that most concerns the current proceedings-sub-clause (d)-was meant to be something separate from those that dealt with implementation of a 38-hour week, the parties would not have put it in the middle of a clause dealing with that subject-matter-they would have put it elsewhere in the award in a manner that identified it with the particular subject-matter to which it related, in this case 12-hour shifts. In Clause 14, sub-clauses (b), (d) and (e) all concerned the same subject-matter, ie implementation of the 38-hour week. The Shorter Oxford English Dictionary defines "implementation" as meaning "something necessary to make a thing complete; to complete; to perform; to fulfil". That is clearly what the sub-clauses mean: they can have no other construction. In determining for itself the proper meaning of Clause 17 of the Security Industry Award the Commission must have regard to the accepted rules of statutory interpretation in so far as they relate to industrial awards. First, the Commission must give effect to the ordinary meaning-or technical meaning where appropriate-of the words of the award in the general context of their use. The award must be read as it stands on the assumption that it contains no inherent difficulties because the writer meant precisely what was written. Furthermore, if the award uses general words they must be given their plain and ordinary meaning unless the contrary is shown-Cody v J H Nelson Proprietary Limited (1947) 74 CLR 629; The Clothing Trades Award 1950 [1950] 65 CAR 597; and De Havilland Aircraft Pty Ltd v T W Boyd [1948] 61 CAR 735. The plain words of Clause 17 must be given their ordinary and general meaning because they disclose nothing to the contrary by way of ambiguity, absurdity, obscurity or contradiction. Consequently, the clause cannot support the construction that Wormald seeks to place upon it. The Commission should also read the award as a whole, that is to say in the sequence or order in which it is written-Patman v Fletcher's Fotographics Pty Ltd (1984) 6IR 471. In addition, the meaning of a word or phrase should be derived from its context-Bourne v Norwich Crematorium Limited [1967] 1WLR 691 and Avondale Motors (Parts) Pty Ltd v Commissioner of Taxation of the Commonwealth (1971) 45 ALJR 280. In the Security Industry Award, Clause 17 sets out matters relating to implementation of the 38-hour week. Clause 21, which deals with overtime, contains a specific provision dealing with payment for overtime in the case of agreements reached under the implementation provisions of Clause 17. Clause 21 does not displace Clause 17-it simply recognises the modification of ordinary hours that can occur pursuant to sub-clauses 17(b) and 17(d) in relation to implementation of the 38-hour week. The proposition advanced by Wormald in the current proceedings does not fall within the scope of that meaning of Clauses 17 and 21 of the award. Wormald's proposition is quite different. The Company asserts that sub-clause 17(d) permits the introduction of an hours of work arrangement that does not in any way concern the 38-hour week for the purpose of avoiding provisions of the overtime clause. Contrary to Wormald's view, the words of the award are clear; they have a direct and simple meaning and contain no ambiguity. The applicant's contention as to the proper meaning of Clause 17 also finds support in the syntactical presumption that, when general matters are referred to in conjunction with a number of specific matters of a particular kind, the general matters are limited to things of the like kind to the specific matters. The very name of the rule-eiusdem generis-indicates the necessity to establish a genus before it can be applied-R v Regos and Morgan (1947) 74 CLR 613 and Cody v J H Nelson. In the case of Clause 17 of the Security Industry Award the general words of sub-clause 17(d) relate to the other provisions of the clause, all of which concern implementation of the 38-hour week. Consequently, the genus of Clause 17 is those provisions that specifically relate to the 38-hour week. Exhibit O4 in these proceedings-a letter of 20 February 1996 from Chubb to the then Secretary of the applicant Union-supports this conclusion. The letter, after referring to an employer/union discussion concerning "employees wishing to work extra hours for no penalty rates, provided the award rate for any day worked would apply", states in part that:56 "... unless we hear from you by the 29th February 1996 with your preparedness to enter into a Section 55 Registered Industrial Agreement to give lawful effect to this arrangement we would cancel and convert back to a 38 hour week." The inference available from the letter is that it suggests Clause 17 does not lend itself to the construction for which Wormald argued in the current case. A Section 55 agreement was clearly thought necessary in order that, by virtue of Section 60 of the Industrial Relations Act 1984, it would override existing award provisions. It is open to the Commission on this evidence to form the view that Chubb sought a Section 55 agreement because the Company knew that it could not use the provisions of Clause 17 of the Security Industry Award for the purpose mentioned in the letter. A further syntactical presumption suggests that "... an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course"-R v Wallis and Another (1949) 78 CLR 529 at p. 550 per Dixon J; Plunkett v Smith (1912) 14 CLR 76 and Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal (1984) 57 ALR 309. In the present matter, Clause 17 positively established particular hours of work procedures in relation to implementation of the 38-hour week. Wormald's contention, however, is that Clause 17 also negatively established an entirely different hours of work procedure going to 12-hour shifts and non-payment for overtime. The applicant's contention is that such a situation clearly cannot be the case. Finally, an expression must be read in its context and the context of an expression may be much more than the words that are its neighbours-Short v F W Hercus Pty Ltd (1993) 46 IR 128 per Morling J at p. 134. In that regard, even if the Commission were to say that the words of Clause 17 are ambiguous, reference to the transcript of the proceedings before Gozzi C-the source of Clause 17-will show that, in context, the words do not support the interpretation advanced by Wormald. Because the agreements do not concern implementation of a 38-hour week, but relate to enterprise flexibility, Wormald should have dealt with them in accordance with Clause 14 of the Security Industry Award. That is, by an agreement made pursuant to Section 55 of the Act between "an employer and all or some of the employees engaged by that employer" in pursuit of enterprise flexibility. Mr Alexopoulos himself apparently preferred such an approach when, as one of Chubb's managers, he wrote his letter of 20 February 1996 to the then Secretary of the Union (Mr K O'Brien).57 Wormald, however, asserts that sub-clauses (d) and (e) of Clause 17 of the Security Industry Award (previously Clause 14 of the Security and Watching Services Award),58 authorise the making of such agreements because they provide that: "(d) An employer and the majority of employees in the plant, business, section or sections concerned, may agree that the ordinary working hours are to exceed eight on any day, thus enabling a week day off to be taken more frequently than would otherwise apply. (e) Circumstances may arise where different methods of implementation of a 38-hour week apply to various groups or sections of employees in the plant or establishment concerned." But, as the 38-hour week case before Gozzi C shows, Clause 17 taken as a whole is a facilitative clause only, written and designed for the purpose of facilitating implementation of the 38-hour week and a system of rostered days off. The application of proper principles of award construction show that sub-clause 17(d) is not separate from, but part of the specific 38-hour week focus of Clause 17. Confirmation of that view is to be found in Clause 21 - Overtime of the award, the relevant parts of which, for current purposes, are: "(a) Subject to subclause (b) hereof, and subclauses (b) and (d) of Clause 17 - Hours ; for all time worked on a Saturday or in excess of eight hours on any day Monday to Friday (excluding public holidays) or before the time fixed for commencing work or after the time fixed for ceasing work the rate of pay per hour shall be the relevant amount in accordance with subclause 8(2) - Hourly Wage Rates. (b) For all overtime worked by shift workers on a Saturday, payment per hour shall be at the relevant amount in accordance with subclause 8(2) - Hourly Wage Rates." The effect of those provisions is that all time worked in excess of 8 hours on any one day attracts appropriate overtime rates-unless, of course, there is in place an agreement between the parties relating to implementation of a 38-hour week. The wording of sub-clauses (a) and (b) of Clause 21 make it plain that each day's overtime stands alone. Exhibit O1 shows that the roster system worked by Wormald's employees at the relevant time was one of rotating 12-hour shifts-four days on and four days off-over a period of nine weeks, averaging between 42 and 43 hours per week. Consequently, in the absence of a 38-hour week agreement of the kind envisaged by Clause 14 of the Award, overtime on each working day stands alone and must attract the rates prescribed by Clause 21. The evidence of the applicants and Mr Alexopoulos shows conclusively that there was no such agreement in the present case. The agreements upon which the Company now relies are simply arrangements for working hours over and above 38 per week. As such, they have no bearing on the implementation of a 38-hour week. All the facts and circumstances demonstrate that Wormald, in not paying the applicants appropriate overtime penalty rates, breached Clause 21 of the Security Industry Award. For that reason there was also a breach of Section 49(1) of the Act, which provides that: "Subject to this section, where an employee is employed by an employer in work for which a rate of remuneration is fixed by an award or a registered agreement, the employee is entitled to be paid by his or her employer in respect of that work remuneration at the rate so fixed." Furthermore, because of Section 85 of the Act, the agreements themselves appear to be without any binding status. That enactment provides, among other things, that: "(1) Any provision of an award or a registered agreement that is inconsistent with a provision of a contract of service prevails over the latter provision to the extent of that inconsistency. (2) Any provision of a contract of service that is inconsistent with a provision of an award or a registered agreement is to be construed and has effect as if it were modified to conform to the provision of that award or registered agreement." In settlement of this dispute, the Union seeks an Order or Orders pursuant to Section 31(1) of the Act directing that the applicants, Mr Matthew Cooper, Mr Paul Bonnitcha and Mr Tim Jones be paid the correct remuneration, according to the Security Industry Award, for all the overtime hours each of them worked for Wormald. R Brown and S J Gates for the respondent: Negotiations between the award parties regarding moving from a 40-hour week to a 38-hour week occurred over a long period of time. During those negotiations the parties discussed greater flexibility regarding rostering of hours and the employer's ability to roster hours over a particular work cycle. The need for greater flexibility arose from difficulties experienced by employers in working the 40-hour week in the manner prescribed by what was then Clause 14(a) of the Security and Watching Services Award, ie "in 5 consecutive days of 8 hours each". Clause 14(b), a proviso, allowed some flexibility in so far as it permitted the employer, employees and Union to agree to vary the daily or weekly hours worked. However, that flexibility could only operate within the constraints of the "5 consecutive days" rule. Furthermore, there were consequential problems in that such agreements had to be read in conjunction with the overtime provisions of the award. The outcome of the parties' discussions reflected in the four different work cycle options for which sub-clause (b) of Clause 17 of the present Security Industry Award makes provision and in the two additional options referred to in sub-clauses (c) and (d). The agreed situation was that ordinary hours of work on any one day might exceed eight per day in circumstances where there was agreement to adopt such a work practice. The additional flexibility in the use of hours was not merely a matter of clarification, as the Union argues, but a significant cost offset. In the proceedings before Gozzi C the following exchange occurred:59 "MR EDWARDS: ... I will be indicating that the actual savings for each of the two companies that I'm putting forward is significantly higher than that stated in the exhibits, brought about by the increased flexibility. Take, for example, Offset No 1 under 'Hours of Work'. The employer has indicated the deletion of consecutive shifts-he has indicated 'NIL'. That would not necessarily be the case, because there arises out of that provision an increased flexibility of use of the work-force. COMMISSIONER GOZZI: Well Mr O'Brien has really specified that as being the most significant of all cost offsets, I think." Commissioner Gozzi recorded Mr O'Brien's comments in that regard in his subsequent decision.60 In those same proceedings Mr Edwards tendered without objection an exhibit (Exhibit E2) which reflected the views of one employer (Chubb) regarding the value of benefits provided to employers to offset the cost of moving to a 38-hour week. One of the offsets there specified is the "Ability to exceed 8 hours of a day without penalty". In speaking to the exhibit Mr Edwards gave an example of the benefit to Chubb of the new flexibility arrangements:61 "... where they work an employee on a Saturday. I think it is two separate shifts, in the vicinity of 14 to 16 hours-it is a weekend shift, and it is almost invariably (from memory) followed by three consecutive days off." Mr Edwards' observations answer the applicant's point in the current proceedings that, before Gozzi C, no party mentioned 12-hour shifts. That was clearly because the agreed flexibility provisions provided for the hours worked in addition to eight on any day to be paid for at ordinary time rates. Subject to the other provisions of Clause 17, the actual additional time worked could be, for example, eight hours thirty minutes or sixteen hours.62 That was the agreed position of the parties: provision for a roster in excess of those dealt with elsewhere in Clause 17 and especially in the previous clause, which limited work to five consecutive days. Mr Edwards, in reporting to employers his understanding of that agreement-prior to the hearing before Gozzi C-informed them that the agreed points were:63 "(a) Provision to allow for an average of 38 hours per week over a designated and agreed work span to be negotiated at an establishment level. (b) Abolition of the requirement that shifts should be worked over 5 consecutive days. (c) Hours by agreement may exceed 8 in any day at ordinary rates provided they do not exceed an average of 38 over the agreed work span. (d) Different methods of implementation may apply in different sections of the business." Having regard to all the evidence, Wormald's contention is that in moving from a 40-hour week to a 38-hour week, the parties agreed as an offset to facilitate flexibility in how employers could roster employees that the ordinary hours on any one day could, in accordance with other provisions of Clause 17, exceed eight hours. The plain English reading of sub-clause 17(d), using the Shorter Oxford English Dictionary definition of "implement" (to perform, fulfil or complete) shows that the way in which the average of 38 hours per week is worked "over the agreed work span"64 may vary or change according to agreements reached with employees at any particular time. For example, the phrase "thus enabling a week day off to be taken more frequently than would otherwise apply" must mean that a day off may be taken once or even twice a week. If that is not the meaning of sub-clause 17(d) then it would appear to add nothing to Cause 17 as a whole. In the present case the evidence suggests that there was no settlement between the parties as to "the agreed work span". That fact simply raises the question of overtime and Clause 21, which deals with situations in which the ordinary hours of work exceed an average of 38 per week. In this case the parties reached an agreement pursuant to sub-clause 17(d) of the award to work ordinary hours in excess of eight on any one day. Those are circumstances that must be taken into account, pursuant to Clause 21 of the award, prior to calculating any overtime entitlements that might become due and payable. In summary, regarding how the award should be read, sub-clause 17(d) certainly provides for agreements to be made regarding rostering arrangements that incorporate working ordinary hours in excess of eight on any one day. That was the kind of agreement that, not without some initial reluctance, Wormald entered into with its employees. It follows from the evidence that Clause 17(d) of the award is not and does not constitute a "method of implementation" of the kind referred to in Clause 17(b). It is a stand-alone facilitative or majority clause, unfettered in the method of its use, that allows the parties to extend one or other of the methods of implementation prescribed in Clause 17(b). The evidence shows that the method of 38-hour week implementation initially adopted by the parties was that of 8-hour shift rosters. They then extended that practice to 12-hour shifts, as Clause 17(d) of the award entitled them to do. Clause 17(d) does not require a relevant agreement to follow a prescribed format, to be in writing, countersigned, witnessed or even lodged with this Commission, because it is not a method of implementing a 38-hour week. For that reason it is also not open to the Commission, not being bound to observe legal forms and technicalities, to test the agreement for compliance as if it were drafted by an expert. Rather, the Commission's task in looking at the facts and circumstances is to have regard to the public interest, the substantial merits of the case, and to test the agreement by reference to words that a layman would use in dealing with the commercial realities encountered in the ordinary course of business. It is Wormald's primary submission that Clause 17(d) permits oral agreements. Furthermore, both Wormald and the relevant employees freely entered into just such an agreement, either when Mr Wright had his third and final meeting with Messrs Alexopoulos and Weir or at the time the 12-hour shift rosters actually became operative. That oral agreement was supported by two documents: the original agreement submitted to the Company by Mr Wright, and Mr Wright's subsequent letter of 19 May 1994 in which he spoke of "a gentleman's agreement that we work the roster of our choice".65 Clause 14 of the Security Industry Award-enterprise flexibility-is, in the circumstances of this case, absolutely irrelevant. It was never the intention of the award parties an enterprise flexibility clause must be used in circumstances of the kind for which Clause 17(d) makes provision. The Australian Industrial Relations Commission makes just such a distinction in its Wage Fixing Principles, ie there is reference to, on the one hand, facilitative and majority clauses and, on the other hand, enterprise flexibility clauses. Majority or individual clauses are used throughout the Security Industry Award in circumstances where it is not necessary to use an enterprise flexibility provision like Clause 14, eg: Clause 9(d), where an employer and an employee may agree upon a time for taking annual leave; Clause 9(g), where an employer and an employee may agree to take annual leave in two periods; Clause 18, where an employer and an employee may agree to the rate by which the employer can recover licence fees from the employee's wages; and Clause 24(a), where an employer and a majority of the employees may agree upon the period for which wages are to be paid, ie. weekly or fortnightly. In the present case, Wormald in its use of Clause 17(d) did not vary the award in any way at all or contract out of any of its provisions. That is because Clause 21 does not recognise hours worked in excess of 38 as being overtime hours. Consequently, there was no requirement for an agreement of the kind for which Clause 14 makes provision. Any finding in the circumstances that those facts obliged Wormald to use Clause 14, Mr Gates contended, would be "illogical and against the interest, intention and practice of industrial parties in this jurisdiction".66 Concerning overtime, Clause 21(a) of the award, being conditioned by reference to Clauses 17(b) and 17(d), is abundantly clear in its mode of operation. That is, overtime penalty rates are payable for Saturday work and for hours worked in excess of eight on any day, Monday to Friday, unless there is in place, by reason of Clause 17(d), an agreement to the contrary. There is, however, nothing in Clause 21(a) that describes hours worked each week in excess of 38 as overtime hours or that requires payment of such hours at overtime rates. In terms of the Union's submissions in this matter the question is: What is the rate of pay for hours in excess of 38 ordinary hours? In the circumstances, it is clear from Clause 8(2) of the award that the relevant rate of pay depends upon the day on which an employee performs the work in question. That is, Saturday pay for Saturday work, Sunday pay for Sunday work, public holiday rates for work done on such days and, if a shift worker, the relevant shift allowance. Any arrangements that fall outside those provisions do not fall within the award's coverage unless, of course, the employee concerned is a part-time or casual employee for whom a specific rate is prescribed. For full-time employees, however:67 "... the rate is the rate agreed by the employer and the employee. That is not contracting out of the award; that is not breaching the Act; that is doing nothing illegal because the award does not cover it; it does not set a rate for it and that is abundantly clear." The outcome is that:68 "... the fact an employee may work or may have worked in excess of an average of 38 hours per week is absolutely irrelevant for this Commission. It does not affect the use of Clause 17(d); it does not affect the working hours in excess of 38 and it does not affect hours in excess of eight on any day, being ordinary hours." Indeed, the award expressly recognises in Clause 17(h) that an employee may work hours in excess of 38 ordinary hours in any one week. It does this by acknowledging that employees may accrue rostered days off. In order to do so, an employee must necessarily work more than a weekly average of 38 hours for the period in which a particular rostered day off would otherwise fall due. The payment for such hours must accrue at ordinary time rates. In summary, regarding the question of overtime, the award does not require an employer to pay overtime rates for weekly hours worked in excess of 38. The question of whether such hours should attract overtime penalty rates, as the Union asserts, is an entirely separate issue from that of whether or not the award currently provides such an entitlement. The award as it stands is very clear. It is not open to the Commission to determine the matter currently before it in a manner that, in effect, would vary the terms of the Security Industry Award. Having regard to all the circumstances, the orders sought by Wormald are: (1) that the agreement between Wormald and its employees to extend hours beyond eight on any day was not an agreement of the kind envisaged by Clause 14 of the Security Industry Award; and (2) that hours worked in excess of 38 in any one week are not overtime within the meaning of Clause 21 of the award. Findings: I take as my starting point Clause 14 of the Security and Watching Services Award. I accept the respondent's explanation, since there is no reason for me not to do so, that the provision greatly limited an employer's capacity to efficiently roster hours over a particular work cycle. That is to say, even though sub-clause 14(b) provided some flexibility regarding daily ordinary hours, it was still necessary to work the relevant shifts over five consecutive days. I also accept the respondent's contention that, even when the parties reached an agreement pursuant to sub-clause 14(b), there were difficulties in calculating overtime entitlements because the overtime clause-then Clause 19-made no provision for such agreements. In the face of such circumstances it is easy to see why, in the 1987 38-hour week case, Commissioner Gozzi and the parties regarded the increased flexibility provisions of what is now Clause 17 of the Security Industry Award as constituting a significant cost offset. I accept that evidence. It is now necessary to look closely at the award hours arrangements that were in place in 1987 at the time of the proceedings before Gozzi C. In short terms ordinary hours per week comprised 40 which, subject to a proviso, had to be worked over five consecutive eight hour days. The proviso allowed the employer, employees and union, by agreement, to vary the hours but not the five consecutive days. In other words, the award established ordinary hours as 40 per week and provided a method of working them by reference to a work span or cycle of five consecutive days. As a result of the negotiations that led to introduction of the 38-hour week into the award, the scope of the award hours clause changed substantially. The new Clause 14 established ordinary hours of work as an average of 38 per week to be implemented by working those hours, subject to two provisos, in accordance with one of the methods prescribed in sub-clause 14(b), that is to say: "(i) by employees working less than 8 ordinary hours each day; or (ii) by employees working less than 8 hours on one or more days each week; or (iii) by fixing one week day on which all employees will be off during a particular work cycle; or (iv) by rostering employees off on various days of the week during a particular work cycle so that each employee has one week day off during that cycle." The two provisos mentioned in sub-clause 14(b) appear in sub-clauses 14(d)-the operation of which is the issue that divides the parties in the current proceedings-and 14(e), ie: "(d) The employer and a majority of employees in the plant, business, section or sections concerned, may agree that the ordinary working hours are to exceed 8 on any day, thus enabling a week day off to be taken more frequently than would otherwise apply. (e) Circumstances may arise where different methods of implementation of a 38-hour week apply to various groups or sections of employees in the plant or establishment concerned." The award variations approved by Gozzi C were consent variations that, as mentioned above, established ordinary hours as an average of 38 per week to be worked, subject to the provisos, in accordance with one of the methods set in sub-clause 14(b). There is no reason to suspect any disagreement between the parties as to their intentions in that regard. However, while the parties explained to Commissioner Gozzi the purpose of the various parts of Clause 14, they regrettably offered no or, at least, very little explanation as to how those parts might interact one with the other in the application of Clause 14 as a whole. There are, happily, a few crumbs as to what the parties' agreement comprised, in that regard, concerning increased flexibility provisions. Mr O'Brien, for the applicant union in that case, told the Commissioner that, in respect of the proposed new Clause 14, "... we married the hours clause and the method of implementation in this area".69 Looking at the proposed Clause 14, just such a "marriage" is very evident. That is to say, there is: (a) an hours clause-ordinary hours shall be an average of 38 per week; (b) four methods of implementation, or work cycles as Mr Brown called them-those specified in sub-clause 14(b); (c) a capacity in the parties to agree to work more than eight ordinary hours on any day for the purpose of achieving an additional week day off; and (d) a capacity to apply different methods of implementation to various groups or sections of employees in the one establishment. In my view that approach reflected the substantial elements of what was up until then the existing award arrangement. That is: (a) an hours clause-ordinary hours of 40 per week; (b) a method of implementation or work cycle-to be worked in five consecutive days of eight hours each; and (c) a capacity in the parties to vary the hours, but not the "five consecutive days" method of implementation or work cycle. There is some confirmation of this construction of old Clause 14 to be found in the respondent's explanation of the need to change the restrictive nature of the provision.70 The transcript of proceedings before Gozzi C offers little assistance regarding Mr Edwards' views on these matters. However, in a memorandum to his organisation's relevant members prior to the hearing, he reported his understanding of the outcome of negotiations in the terms set out above at page 23. I do not see that Mr Edwards' "agreed points" differ in any substantial way from the scheme of Clause 14 as outlined above. In the circumstances, I believe it is open for me to conclude that the parties were in agreement in relation to the nature of the increased flexibility provisions included in Clause 14 as varied by Gozzi C. However, it is in the area of operation of those provisions that the parties now differ significantly. In relation to this issue the transcript of proceedings before Gozzi C is for the most part unhelpful. In approaching my task in this regard I keep in mind the scheme of Clause 14-which I now refer to by its current award reference, ie Clause 17-as outlined above. In doing so I mention that it is not my task to interpret the meaning of the award in question at law, but to simply form a view as to its meaning in order to resolve the particular industrial dispute now before me. I start by going to the applicant's contention that all the provisions of Clause 17 relate in some way to introduction of the 38-hour week and its implementation. The respondent, however, contended that sub-clause 17(d) is not a method of implementing the 38-hour week but a stand-alone facilitative or majority clause, unfettered in the method of its use. I do not agree with that contention because the scheme of Clause 17 as a whole strongly suggests otherwise. A plain English reading of Clause 17, having regard to the scheme of its construction described earlier, is that having established ordinary weekly hours as an average, the Clause then provides four methods of implementation or work cycles. As I understand the parties' submissions, those are the methods, ie increased flexibility provisions, that replaced the previous and only method, ie the "five consecutive days" provision. What relevantly then follows, in Clause 17, is sub-clause (d) which creates a capacity for the parties to agree to work more than eight ordinary hours on any day at ordinary rates. In my opinion, the practical effect of that provision is that it permits the parties to modify the daily ordinary hours component of any of the methods of implementation or work cycles set out in sub-clause (b). In my view the sub-clause does not operate to create a capacity in the parties to modify the methods of implementation or work cycles themselves. I am also of the view that the sub-clause does not operate at large in relation to the award as a whole. I take this approach because the scheme of Clause 17 reflects as a whole the scheme of its predecessor. That is to say, the flexibility provision of former sub-clause 14(b) operated to permit the parties to modify the hours component of the method of implementation set out in former sub-clause 14(a), but not to modify the method of implementation or work cycle itself. I find some support for this construction of Clause 17(d) in Mr Edwards' report to employers where he recorded, as an "agreed point" in relation to sub-clause 17(d) the fact that (the underlining is mine):71 "Hours by agreement may exceed 8 in any day at ordinary rates provided they do not exceed an average of 38 over the agreed work span." The "agreed work span" to which Mr Edwards referred, in my opinion and looking at Clause 17 as a whole, could only have been one of the four methods of implementation or work cycles specified in sub-clause 17(b), since they are the only permitted methods of working an average of 38 hours a week. That construction will explain why, as Mr Brown pointed out albeit for a different reason, there is no evidence in the current proceedings of an "agreed work span". Clearly that is because, as the evidence shows, the employees were not working an average of 38 hours a week-they were working an average of 42-43 hours a week over a nine week period.72 Furthermore, there is no evidence that, pursuant to sub-clause 17(d), the employees were working in that manner for the purpose of taking "a week day off more frequently than would otherwise apply". In addition, it seems to me that the construction I prefer accommodates the respondent's suggestion, which is plainly correct, that "subject to other provisions of Clause 17" the additional times worked could cover a wide range of ordinary hours in excess of eight.73 In the circumstances I find and conclude that, on a plain English reading of Clause 17, sub-clause 17(d) is not in itself a method of implementation of the 38-hour week but a means of modifying the ordinary hours component of one or other of the four methods of implementation or work cycles specified in sub-clause 17(b). That process, in my opinion, comprises the increased flexibility to which the parties appended their agreement in the 38-hour week case before Gozzi C. In the circumstances, I reject the respondent's contention that sub-clause 17(d) has some wider scope of operation. In light of the above findings, I now return to the actual agreement.74 It is abundantly clear from the evidence75 and from the face of the document itself that the agreement had nothing to do with implementation of a 38-hour week; that is to say, any of the four permitted methods of implementation or work cycles. The plain words of the agreement, in my opinion, suggest a quite different purpose, ie "... to work extra hours over and above eight hours per day, or over 38 hours per week, ... at no extra cost to Wormald in way of penalty ...".76 Having regard to all the facts and circumstances put to me by the parties, I find that the 12-hour shift agreements between the respondent Wormald and those of its former employees who are the subjects of the Union's present application were not agreements made in accordance with Clause 17 of the Security Industry Award. In coming to this decision I have not found it necessary to refer to the somewhat more esoteric presumptions of statutory interpretation referred to me by the applicant. I took that view because, as I have already mentioned, my task is not to interpret the meaning of an award at law but simply to form a view as to its meaning in order to resolve a particular industrial dispute. For those reasons I preferred the plain English approach. Having arrived at that decision, I take time to note that it is contrary to the preliminary view I formed after the parties' initial submissions.77 I simply add, by way of explanation, that I came to my preliminary view on the basis of submissions, put to me by the parties at the time, that did not go to the 38-hour week proceedings. That was because the parties did not then consider that case to be relevant to the present matter. I reserved their right to make further submissions should I be prepared to make a finding to the contrary. I subsequently made such a finding, in response to which the parties exercised their right to put further submissions on that matter. It is on the basis of those further submissions, including where relevant the earlier submissions, that I have made the decision recorded above. I add, for the sake of completeness, that the parties also put substantial submissions to me regarding the applicant's allegation that if the agreements were of a kind authorised by the Security Industry Award, they were without force and effect at law because the respondent obtained them by duress. The applicant submitted, however, that there would be no need for me to answer that contention should I find that the agreements were not agreements made in accordance with the Security Industry Award. Since I have made such a finding I do not find it necessary to consider the question of duress. I now come to the form of order required to settle this dispute. In that regard, bearing in mind my findings, I have considered the applicant's suggested draft order (Exhibit O5) and have also taken into account the respondent's reservations, as outlined above at page 3. As a result of those considerations, I now make the following order pursuant to Section 31 of the Industrial Relations Act 1984: ORDER 1. In respect of hours worked in excess of eight hours per day by former employees Tim Jones, Paul Bonnitcha and Matthew Cooper Wormald Australia Pty Ltd, now known as Tyco Australia Pty Ltd (the respondent), must pay each of them the relevant rate of pay prescribed at the time of their employment by either the Security and Watching Services Award or the Security Industry Award, as the case may be, for overtime or Saturday, Sunday or holiday work. 2. The Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the applicant) must provide the respondent with draft calculations of all monies allegedly owed by the respondent to former employees Tim Jones, Paul Bonnitcha and Matthew Cooper arising out of Paragraph 1 of this Order within 14 days of the date of these Reasons for Decision. 3. If the applicant and the respondent cannot agree on the sums of money allegedly owed by the Company to former employees Tim Jones, Paul Bonnitcha and Matthew Cooper arising out of Paragraph 1 of this Order within 21 days of the date of these Reasons for Decision, the Commission on the application of the parties or either of them will determine the matter, including those issues specifically reserved by the respondent, by arbitration. 4. Liberty is reserved to the parties, or either of them, to apply for the purpose mentioned in Paragraph 3 of this Order.
B R Johnson Appearances: Date and place of hearing: 1 Transcript 9/10/97, p. 10. |