T12671
TASMANIAN INDUSTRIAL COMMISSIONDECISION UNDER APPEAL Industrial Relations Act 1984
and The Minister administering the State Service Act 2000
[2] A hearing commenced at Hobart on 3 August 2006. On that occasion the applicant union was represented by Ms Caroline Saint and Ms Neroli Ellis. Ms Jane Fitton appeared for the employer. There was a further hearing on 29 September 2006, on which occasion Mr Philip Baker and Ms Jane Cox appeared for the employer. On 17 September 2008 there was a further hearing and conference. There were two further hearing days on 7 and 8 May 2009. On those dates Mr Eugene White sought and was granted leave to appear on behalf of the union with Mr Philip Gardner. Mr Baker together with Ms Fitton and Mr Ron Clegg appeared for the employer. [3] Prior to the hearing days of 7 and 8 May 2009 an amended application was provided, which set out the circumstances of the dispute. 1. The dispute concerns deliberate and wholesale ongoing breaches of: (a) Clause 2(h)(i) of Part V of the Nurses (Tasmanian Public Sector) Award 2005 (the Award) by reason of the employers (the Minister administering the State Service Act 2000) failure to pay shift workers double time on public holidays;. (b) Clause 2(h)(ii) of Part V of the Award by reason of the employers mandatory imposition of time off in lieu under the proviso as a means of avoiding the payment of double time prescribed by clause 2(h)(i); (c) Clause 1(b)(ii) of Part VI of the Award by reason of the employers failure to add one day for each statutory holiday to the period of shift workers annual leave, whether or not the employee is rostered on the statutory holiday concerned and regardless of whether or not the statutory holiday falls during the shift workers annual leave; (d) the Award by reason of the failure of the employer to accord shift workers (as defined) all the following entitlements (or the pro-rata equivalent thereof): (i) payment for double time on public holidays (Part V clause 2(h)(i); or (ii) time off in lieu (Part V clause 2(h)(ii)(iii)); and (iii) 152 hours annual leave (Part VI clause 1(a)(ii)); and (iv) 38 hours annual leave (Part VI clause 1(a)(ii)); and (v) one day added to annual leave for each statutory holiday prescribed under the Award (Part VI clause 1(b)(ii)); (e) clause 2(h)(i) of Part V of the Award by reason of the failure of the employer to pay double time on public holidays given its failure to satisfy the exemption provided for in clause 2(h)(ii)(3) by granting time off in lieu equivalent in hours to the hours worked on the public holiday and granting lesser hours only; (f) clause 2(h)(i) of Part V of the Award by reasons of the failure of the employer to pay double time on public holidays in view of its failure to satisfy the exemption provided in clause 2(h)(ii)(3) by granting time off in lieu only on application and election by the employee; (g) clause 1(i)(iii)(2) of Part VI of the Award by reason of the employers failure to pay annual leave allowance as per projected shift roster (or at all) to shift workers in respect of each of the days as are (or should be) added to their annual leave pursuant to clause 1(b)(ii) of Part VI as exceed five weeks annual leave accrued per annum; (h) clause 1(i)(iii)(2) of Part VI of the Award by reason of the employers failure to pay an annual leave allowance as per projected shift roster (or at all) to shift workers in respect of all of the days granted as days off in lieu of public holidays. (i) clause 2(h)(ii)(3) of Part V of the Award and clause 1(b)(ii) of Part VI of the Award by reason of the employers failure in respect of part time employees to grant the pro-rata equivalent of eight hours per public holiday worked as time off in lieu and to add to the pro-rata equivalent of eight hours per day to their annual leave entitlement because of the employers practice of adding the pro-rata equivalent of only 7.6 hour public holiday day in each case. 2. The dispute arises in circumstances where: (a) by letter of 21 January 2009 the Manager of Industrial Relations of the Department of Premier and Cabinet on behalf of the employer rejected a claim of breach of award by ANF and asserted that: (i) shift workers are not entitled to public holidays and are not entitled to a day in lieu of public holidays: (ii) shift workers are entitled to double time when they work on a public holiday which entitlement is to be satisfied by payment for ordinary time and the provision of a day off in lieu; (iii) shift workers are only entitled to payment of ordinary time and a half and a day off in lieu in respect of public holidays worked; (b) the ANF disputes each of these claims; (c) the employer has alleged that the award in an error; (d) the employer has refused, neglected and failed over an extended period to remedy award breaches as claimed by the ANF despite numerous exchanges of correspondence and the assistance of the Commission in conciliation. BACKGROUND [4] This is a dispute of many years standing concerning the way in which the employer has applied the entitlements specified in the award (and its predecessor awards) in relation to shift workers who work on public holidays. [5] The award entitles nurses who are shiftworkers to: four weeks annual leave, which attracts 17.5% leave loading or payments based on the projected shift roster, whichever is greater; plus 38 hours (for working weekends); plus one day for each statutory holiday prescribed in the award, for ease of writing I shall refer to these additional days as extended leave. Therefore, shift workers are entitled to five weeks annual leave plus either 11 or 11.5 days of extended leave (depending on whether they are in the north or the south of the state). This much is agreed between the parties. The extended leave applies regardless of whether an employee is rostered to work public holidays, or not. [6] When a shift worker works on a public holiday a penalty rate of double time applies, based on ordinary time it is in substitution for and not cumulative upon the shift allowance that would otherwise have applied. The award enables the employee to be granted time off in lieu of payment of the penalty rate. The practice of the employer is to pay shift workers who work on public holidays one day at ordinary time plus to add one day to their annual leave accrual. [7] The dispute arises because the employer maintains that time off in lieu of double time should be absorbed into the extended leave entitlement, ie that the time off should be offset against the entitlement to have 11 or 11.5 extra days added to annual leave. They argue that if the provisions were interpreted as argued for by the union, then, in effect, shift workers would get triple time for working on public holidays, whereas the award provision only entitles them to double time for public holiday work. [8] The union claims that the days in lieu of payment at double time that are added to the annual leave accrual should be in addition to the extended leave referred to above. They say that the two entitlements are independent of each other. In other words, they say that all shift workers should get the extended leave but those who actually work on public holidays should have the time off in lieu of double time, as well. [9] A major part of the long-running dispute had been the practice of the Department of Health and Human Services (the Department) to add 7.6 hours in lieu of the payment of double time to the annual leave balance when a shift worker works on a public holiday, even though shift workers work 10 or 12 hour shifts. For part-time workers 3.8 hours has been added to the annual leave balances, even though they may have worked a 10 or 12 hour shift. This has meant that a shift worker forgoes 10 or 12 hours pay in exchange for 7.6 (or 3.8) hours off. The ANF claims that the time off in lieu should be accrued on an hour for hour basis. During the hearing the employer placed on record that they had changed their position and now agreed with this aspect of the ANFs claim, ie if a nurse worked 10 hours (or 12) on a public holiday then they would be paid for 10 (or 12) hours at ordinary time and be credited with 10 hours (or 12) hours leave. [10] Still to be determined is the question of whether shift workers should have days off in lieu of double time added to their annual leave in addition to the extended leave provided for in the annual leave provisions. [11] The relevant award provisions read as follows: Part V Hours of Duty Clause 2 Shift Work: (h) Sundays and holiday shifts (i) Shift workers (other than Registered nurses level 4 and 5) for work on a rostered shift, the major portion of which falls on a Sunday or public holiday, shall be paid at a rate of time and three quarters in the case of Sundays and double time in the case of a public holiday. Such rate shall be in substitution for, and not cumulative upon the shift allowances more particularly set forth in 2 (e) hereof. PROVIDED that: … (3) where a shift worker is required to work on a public holiday as herein defined and is granted time off in lieu thereof, the above penalty rate shall not apply. … (my emphasis) [12] In practice, no shift worker is paid the penalty rate. The Department has applied the proviso and there is no opportunity for a shift worker to elect to be paid double time. Part VI Leave and Holidays with Pay - Clause 1 Annual Leave: (b) Annual leave exclusive of public holidays (i) Subject to this subclause the annual leave prescribed by this clause shall be exclusive of the holidays prescribed by Clause 2 Public holidays and if any such holiday falls within an employees period of annual leave and is observed on a day which in the case of that employee would have been an ordinary working day there shall be added to the period of annual leave time equivalent to the ordinary time which the employee would have worked if such day had not been a holiday. (ii) Notwithstanding the foregoing provisions, a shiftworker shall have added to his/her period of annual leave one day for each statutory holiday mentioned in clause 2 of this Part, whether or not such holiday is observed on a day which, for that employee would have been a rostered day off. … 2. PUBLIC HOLIDAYS (a) All employees, other than shift workers, casual employee and part-time employees engaged to work less than twenty hours per week shall be entitled to the following holidays without deduction from their weekly wages: [lists statutory holidays] (b) Payment for the holidays mentioned in 2(a) which are taken and not worked, shall be at the normal rate of pay which would have applied to the employee concerned, when if it were not for such holiday, he/she had been at work. (c) Where an employee who is entitled to holidays in accordance with 2(a) hereof is required to work on any of the holidays mentioned in that subclause, either for part or the whole of such day he/she shall in the case of a shift worker, be paid at the rate prescribed in Part V Hours of Duty, Clause 3(c)(ii) Overtime and in the case of a day worked be paid at the overtime rate prescribed in Part V Hours of Duty Clause 3(c)(i) … (my emphasis) THE EVIDENCE [13] Mr Philip Gardner, solicitor and past Senior Federal Industrial Officer with the ANF gave evidence for the union. By way of written statement, he gave detailed and comprehensive evidence in relation to the history of the award and past decisions with particular reference to the annual leave provisions. Attached to his statement were numerous documents related to those matters1. SUBMISSIONS Mr White for the Applicant [14] Mr White submitted that a proper construction of the payment for work performed on public holidays is that it is paid at double time. Problems arise because the employer has offset that against a different entitlement, which is the entitlement to have 11 or 11.5 days added to annual leave [the extended leave]. [15] He contended that the employer has wrongly conflated two stand-alone provisions, in that they are claiming that a shift worker has no entitlement to the extended leave extra days if they have been paid double time, albeit that it has been taken as time in lieu, Mr White said. [16] The history of the award is set out in Exhibit A5 PG1. Mr White said that it was a consent award made in 2005, as was the case in all the previous manifestations of the award in both the state and federal jurisdictions. Prior to 1988 the award regulating nurses was a state award. In 1988 a federal award was made in accordance with the first award principles of the Australian Industrial Relations Commission (AIRC). There were two replacement federal awards in 1992 and 2003, at which time there were no changes made to the clauses in question. In December 2005 the award was made in the state commission, in the same terms as the federal award. [17] The award defines public holidays at clause 7 Definitions - of Part I as those days provided for in the Statutory Holidays Act 20002. A shift worker is also defined. [18] Clause 2(h) of Part V deals with public holiday shifts. That clause provides that shift workers shall be paid double time for working on public holidays, such rates being in substitution for and not cumulative upon the shift allowance. [19] Mr White submitted that the words in the clause are clear and unambiguous it is a stand-alone provision dealing with work on a public holiday. It does not deal with an entitlement for a shiftworker to take a public holiday that is dealt with elsewhere in the award. [20] There is an unambiguous entitlement to be paid double time if a shiftworker works on a public holiday. There is a proviso which allows for the granting of time off in lieu of the penalty rate of double time. [21] It is the unions position that it is up to the employee whether or not the option of time off in lieu is taken. [22] Mr White referred to the Full Bench decision in the AIRC in the National Rates case, where an equivalent provision was being considered. When discussing who should have the discretion to determine if and when a day off in lieu should be taken, the Full Bench said: …We are not disposed to direct how a substitute day should be taken. In our view the nurse should have the general discretion to decide when it is convenient to take a substitute day. If these days are conveniently added to a period of annual leave then it is a matter primarily for a nurse. We add this caveat, in the event that a nurse selects particular day/s for a substitute holiday and for operational reasons this is considered inappropriate the employer then the matter may be resolved through the grievance procedure.3 [23] Mr White argued that the language of the clause is consistent with time off in lieu being the option of the employee, where it refers to time off being granted which must be in response to a request for that time off. The structure of the clause is such that the entitlement to double time is the primary entitlement. [24] He said that the employers view that the entitlement to be paid double time should be offset against another entitlement is inexplicable when the purpose of the clauses is examined. Shift workers are compensated by being paid double time for having to work on days when the rest of the state is enjoying recreation or relaxation with family and friends. Mr White said that the employers position seemed to be derived from some anteriorly derived notional fairness and he referred to Kucks v CSR Ltd (1966) 66 IR 182 at 184. Whether or not the employer thinks it is fair is irrelevant. [25] Mr White observed that there is no provision in the award entitling the employer to set off one entitlement against another. They are two stand-alone entitlements. There is nothing to suggest that the plain meaning of the award conferring those two entitlements should be read down. The way in which the respondent seeks to interpret the award has the effect that shift workers who work public holidays derive no benefit for doing so. They would in fact be worse off, because they would receive one days pay without a shift loading, whereas if they did not work they would receive one days pay with a shift loading. [26] A different part of the award - Part VI - deals with a different subject matter, he said, which is leave and holidays with pay. There is no dispute that shift workers are entitled to 152 hours of leave plus an additional 38 hours which is for the disadvantage of working weekends. Subclause 1(b) at (i) provides for annual leave to be extended for day workers who have public holidays fall within their annual leave period. A different provision is made for shift workers. Clause 1(b)(ii) provides that: Notwithstanding the foregoing provisions, a shift worker shall have added to his/her period of annual leave one day for each statutory holiday mentioned in clause 2 of this part, whether or not such holiday is observed on a day which, for that employee would have been a rostered day off. [27] In August 1990, Mr Jarman for the Tasmanian government told the ARIC what pertained at that time: In short, what currently happens is that when a shiftworker works on a public holiday they are entitled to double time in Tasmania. What has been happening is that the individual has been granted a days pay at ordinary time and has been giver or and there has been a day added to their annual leave entitlement. In the first place, if the individual was rostered on the public holiday to work an afternoon or evening shift: instead of getting the single time they have been getting single time plus 15% and then having the other day added to their annual leave entitlement. So, in other words, they have been receiving double time plus 15%. But it does not stop there because when they take their 49 or 51 days they in fact receive 35 days which is their annual leave entitlement if they are a shiftworker who qualifies for that amount of leave and then they get another 12 days, which represents the public holidays, plus rostered days off. So added to the 35 there is in fact another 16 days added to that number.4 [28] Mr Jarman said that the intention of the government was to vary the award to reflect what they believed was its intent and he referred to the decision of Koerbin P in matter T91 of 1985, which was an application by the Hospital Employees Federation of Australia Tasmanian Branch No. 1 for an interpretation in respect of the rate of payment for periods of extended leave applicable to shift workers, in particular the rate of pay employees were entitled to for time off in excess of the five weeks annual leave, in the Hospital Industrial Board Award. The debate was about the projected shift allowance and leave loading, not about an entitlement to seven weeks leave. It is clear from the transcript that there was no issue between the parties as to the entitlement to the 11 or 11½ days. [29] Mr White submitted that the interpretation in that case [which is relied on by the employer] dealt with matters that are different to the matters the subject of the instant dispute and is therefore not binding and does not stand for the proposition advanced by the employer that employees are not entitled to the full number of statutory leave days being added to their annual leave entitlement. The ANF was not a party to that matter and as a matter of natural justice, if that decision were to be binding on the ANF then the ANF should have been heard. Each award has to be dealt with on its own. It is incorrect to point to awards with similar provisions and say that they all must mean the same thing. [30] Another decision of Koerbin P, T384 of 1986, concerned an interpretation regarding the annual leave clause for shift workers in the Fire Brigades Award. The United Firefighters Union contended that the 11 days credited for statutory holidays to the annual leave credit should be extended by four days to take account of weekends. The President determined that:
[31] Mr White said that the observations made by the President in the second sentence of that paragraph are inconsistent with subsequent decisions of the Commission and are inapplicable in the present circumstances and are, in any event, concerned with a different award and with a different history and structure. [32] In matter T530 of 1986 concerning an interpretation of the Hospital Award, Koerbin P said that the provisions led to the conclusion that the conditions for full-time shift workers were: …annual leave of 5 weeks, 11½ public holidays, 28 days sick leave, 15% for afternoon and night shifts, 50% premium for Saturday work, 100% premium for Sunday and public holiday work, and payment as per roster for periods of annual leave.6 [33] This, whilst concerning a different award, expresses a different position to his obiter expressions in the earlier cases. Mr White said that interpretations should be limited in strict terms to the matter to be interpreted and that declarations should not be applied to different awards and beyond the limitations provided under s.43(7) of the Act. [34] Mr White referred to a number of authorities dealing with the way in which awards should be interpreted. He said that in CFMEU v Master Builders Group Training Scheme Inc (2007) 161 IR 86, Besanko J summarised the proper approach to award interpretation where he said that it must be remembered that awards are made for the industries and that, when interpreting an award, one must endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award. [35] Mr White said that the Commission should consider the comments of Mr Jarman to the AIRC in that context. [36] The intention is gathered from the ordinary meaning of the words and in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 518 Burchett J says that awards should be considered in the context in which they are made: The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is part, or to other documents with which there is an association. Context may also include, in some case, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colouring its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in the alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expressions with a known source, without looking at it s creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the Court should not deny itself all other guidance in hose cases where it can be seen that more is needed…. [37] Mr White said the history and context are of particular significance with industrial awards. [38] French J in City of Wanneroo v ASU (2206) 153 IR 425 at 438 discusses the approach to interpretation. He says at 53: The construction of an award, like that of a statute, begins with the consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant act or instrument surrounding the expression to be construed. [39] French J held that regard may be had to the purpose of the provisions of the award and the purpose of the award. [40] Mr White said that regard may also be had to the history of conduct of the parties, citing Merchant Services Guild of Australia b Sydney Steam Collier Owners and Coal Stevedores Association (1958) 150 FLR 248 at 251, 254 and 257. Again, Mr Jarmans evidence before the AIRC is of relevance. [41] The principle that prior conduct can be regarded when determining the meaning is supported by the case of Shop Distributive and Allied Employees Association v Woolworths (2006) FCA 616 at 31 (Woolworths), where Gray ACJ says: Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in construction. There is authority there for provisions that appeared in the series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of the provision, then it could be taken that they have agreed that the terms should continue to have the commonly understood meaning in the current agreement. [42] Mr White said that there must be clear understanding between the parties in order for this limited principle to apply. There must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provisions. This was demonstrated by Mr Jarmans comments. [43] In summary, Mr White submitted that the meaning of the award can be ascertained by the language of the award, its context and arrangement, the history, the purpose of the award and of the provisions, the general background and the conduct of the parties. Mr Baker for the Respondent [44] Mr Baker did not take issue with the authorities tendered by the applicant dealing with the principles in relation to the interpretation of awards. [45] He acknowledged that the employers application of the award since it was made by consent in 2005 has been inconsistent. He submitted that the view that the Minister was now putting was the correct one and is consistent with the decision of President Koerbin in 1985 in matter T91 concerning the Hospital Industrial Board Award. [46] He outlined the history of the award, covering some of the ground which had been addressed by the applicant. He said that the regulation for nurses in the public sector prior to 1988 was derived from a combination of a number of state awards bundled together to create the federal award. There were two substantive amendments in 1992 and 2002 but the clauses with which this dispute is concerned have remained the same. The 1988 award was made by consent. When the award was remade in 2005, again by consent, the clauses relevant to this dispute remained intact. On a number of occasions the issue of the application of those clauses have been raised, including in the federal commission, before Commissioner Turbet in 1990. [47] In Mr Bakers submission, award interpretation matters are often determined by a single application representing one employee and one award, in effect becoming test cases. The position of the Minister is predicated upon the decision of Koerbin P in T91 of 1985, which was an application by the then Hospital Employees Federation for an interpretation of the Annual Leave provision and the rate of pay that would apply for the period of annual leave in the Hospitals Industrial Board Award, as it was known at the time. That contained a provision mirrored the award today. Section 43(7) of the Act provides that: Subject to this Act a declaration made under the section is binding on all courts and all persons in respect to the matter the subject of the declaration. [48] Mr Baker submitted that, whilst agreeing that it was up to the Commission whether or not to they agreed with President Koerbins observations, the Commission is obligated to look at how the declaration President Koerbin made came about. He said that the interpretation of Koerbin P has since been applied consistently, including in relation to other awards of the Commission that have similar or identical provisions. [49] At page 3 of the decision, President Koerbin observes in relation to the leave provisions: This is a common enough provision where shift workers are concerned. The philosophy upon which the provision rests might be said to spring from acknowledgement of the fact public holidays are now regarded as statutory leisure days. They are days which for most employees are not intended to be worked unless circumstances determine otherwise. Shift workers are an example of those who frequently work on such days. It can be deduced therefore that an employee (other than a casual employee) should suffer no loss of pay by reason of not being required to work on a prescribed public holiday. If he were a day worker an employee would, when a holiday fell on a week day, work four days in that week and receive five days pay. In addition he would be able to enjoy the holiday as a leisure day without loss of pay. But as most forms of shift work require some person to work some time on each day of the week, including weekends and the holidays, it follows that a shift worker, unless rostered off on any of those days, could expect to be required to work on all or some statutory holidays. And of course shift workers are expected to work on Saturdays and Sundays as required. The award naturally recognises this fact. It requires that for rostered duty on a public holiday double time shall be paid. Therefore a shift worker rostered to work on a public holiday would work five days and be paid for six (all other penalties aside). However over a 12 month period he or she may well miss out on up to 11½ leisure days notwithstanding the fact double time rates may have been attracted for each holiday worked. In the event payment at double rates is made for work done on holidays the award makes it clear no additional compensation is due. In fact the exact provision states the position somewhat in reverse, but the effect is the same. It says 23(e) Sunday and Holiday Shifts PROVIDED ALWAYS THAT … (iii) Where a shift worker is required to work on a public holiday…and is granted time off in lieu thereof the above penalty rates shall not apply… Where a shift worker will or has already worked his required number of hours or days during a period in which a holiday falls but does not physically work on the holiday which in those circumstances becomes a rostered day off it is clear that if not sleeping following completion of night shift, he may be able to enjoy the day in the same way as a day worker might enjoy a weekend day. But without being afforded some extra compensation a particular shift worker employee would, in one year work more than the required 52 weeks less the 5 week period of annual leave; less 10½ or 11 ½ public holidays. The award recognises this requirement by providing in each case:- (i) If rostered to work on a public holiday, payment at double time rates may be made; OR (ii) payment at ordinary time plus a one day extension of annual leave; OR (iii) if rostered off on a public holiday extension of the annual leave by one day.7 … I have already noted that the parties to this application do not disagree that a shift worker on taking his usual period of annual leave is entitled to be paid for the whole of this years accrual at the same rate of pay he would have received had he remained at work and carried out duty in accordance with his shift roster. It seems to me the answer to the question asked by Mr Imlach is to be discovered within the provision to sub-clauses (b) and (f) of Clause 2, and Proviso (iii) to Clause 23 (Shift Work). Shortly stated consideration of those parts of the award can lead to but one conclusion. Provided the person concerned was a shift worker who had not been paid double rates for any work done on a public holiday, that person would be entitled in accordance with sub-clause (b) of Clause 2 to have added to his or her period of annual leave one day for each statutory holiday prescribed. A day in those circumstances would need to be added whether the employee was rostered on, or rostered off, on each of those holidays. The award makes it clear that the aggregate of those days shall be added to his or her period of annual leave. Subclause (f) of Clause 1 which is entitled Payment for Period of Leave states that Each employee before going on leave shall be paid the amount of wages he or she would have received in respect of the ordinary time which he or she would have worked had the employee not been on leave during the relevant period… The award makes no distinction between payment for annual leave and payment for the period by which annual leave is compulsorily extended pursuant to sub-clause 2(b). There is no doubt therefore that payment for leave in lieu is to be made on the basis payment as to roster. This may well confer some benefit upon the employee over and above what would have been due had payment in lieu been made. But when the award is read as a whole, additional support for this conclusion can be found in sub-clause (d) of Clause 24. This, in effect, allows extension of the period of annual leave by the same number of days an employee has been able to demonstrate to the satisfaction of the employer that he was sick while on holiday. … …The period in excess of five weeks is not annual leave but an extension of the leave period. [50] President Koerbin did not make any orders but suggested that the parties might like to tidy up a number of award provisions and Mr Baker said that occurred over the next seven or eight years, one such award being the Nursing Homes Award, which was derived from the Hospital Industrial Board Award, and he provided an exhibit which showed that the award had been varied to read at Clause 11 Annual Leave: … Notwithstanding the foregoing provisions, full-time employee required to work according to the roster (as defined) shall have added to his/her period of annual leave one day for each holiday mentioned in clause 23 Holidays with Pay, whether or not such holiday is observed on a day which, for that employee would have been a rostered day off.8 [51] Mr Baker said the Department in 1991, by written direction, removed loading payable to nurses for the extra days. The departments view was that it was an over-award payment. There was a dispute application which was heard by Turbet C of the Federal commission. Whilst that decision was quashed and cannot therefore be relied upon, the reason it was quashed were procedural. He submitted the decision in support of the Ministers position. On page 2 of that decision, Commissioner Turbet said: The essential facts of this matter are that nurses work shifts which cover 24 hours a day, seven days a week, 52 weeks of the year. The shifts are arranged following a regular pattern and have no special regard to the significance of any day. Nurses are therefore employed on rosters which incorporate afternoon and night shifts on days which are specified in the award as public holidays although they need not necessarily be rostered to work on every public holiday. All full-time shift workers receive sixteen days additional and in conjunction with their annual leave in recognition that the rostering system requires them to work on public holidays and grants days off in lieu. Conclusions … First, the shift worker is granted time off in lieu which is included in the sixteen additional days. Therefore, by the application of paragraph 35(hg)(iii) the Sunday or public holiday shift penalty of double time rte does not apply. And by virtue of the words but such rate (double time) shall be in substitution for, and not cumulative upon the shift allowance more particularly set forth in subclause (d) hereof the fifteen per cent shift loading does not apply. The rate which does apply therefore is ordinary time and a day in lieu which is a time off plus payment equivalent of double time. The ANF submit that the proviso eliminating the payment of the shift penalty in subclause 35(g) only applies if double time payments are made and does not apply when single time is paid and a day off in lieu is granted. By their reasoning the fifteen per cent loading should be paid to shift workers who work on the public holiday and are granted a day off in lieu. In the Commissions view this is incorrect. … The Commission therefore determines that in the circumstances applying at the Royal Hobart Hospital shift workers employed under the Nurses (Tasmanian Public Sector) Award 1988 should be paid single time for each public holiday worked. Second, the issue was raised as to the correct method of paying the sixteen days added to the shift workers annual leave. The ANF submit that the days should be treated as annual leave and the employees paid as if the sixteen days were part of the employees normal roster as prescribed by clause 32. The Department of Health Services takes a contrary view. They submit that the days are not recreation leave but days off in lieu of working on public holidays which have been conveniently aggregated to be taken with annual leave. If taken as public holidays they would not attract additional payments and to do so when taken with annual leave would be incorrect. The Commission agrees with the Departments position. … [52] Mr Baker submitted that whilst shift workers are not entitled to public holidays, a shift worker is entitled to double time for time worked on a public holiday. All shift workers are entitled have added to their annual leave a number of days equal to the number of public holidays. This, whilst not annual leave, forms part of the leave entitlement. [53] He contended that shift workers who work on public holidays should be paid ordinary time for the day they work plus they should have a day added to their annual leave, this equates to double time and they are entitled to double time for time worked on a public holiday, no more, no less. Therefore the days in lieu are not in addition to the 11 or 11½ extra days provided for in the award. Whether an employee is rostered on or rostered off, a day is added to their annual leave. These conclusions were based on the reasons for the decision of Koerbin P and the decision of Turbet C. Mr Baker rejected the unions argument that the award provisions should not be conflated. He said that one provision complements the other. [54] In relation to the question of whether or not an employee could elect to take time off in lieu of payment of overtime, Mr Baker said the employee was not able to make such an election. He said that was consistent with President Koerbin and Commissioner Turbets decisions. Where a shift worker is granted time off in lieu it is to be added to their annual leave as provided for at Part VI(1)(b)(ii) of the award: Notwithstanding the foregoing provisions, a shift worker shall have added to his/her period of annual leave one day for each statutory holiday mentioned in clause 2 of this Part, whether or not such holiday is observed on a day which, for that employee would have been a rostered day off. FINDINGS [55] Following the employers acceptance of the unions claim that time off in lieu should be accrued on an hour for hour basis and agreement as to the rates of pay, the question that remains to be determined is: whether a shift worker who works on a public holiday is entitled to time off in lieu of payment of double time in addition to the extended leave provided for in the award? [56] The parties were agreed that shift workers have no entitlement to public holidays in the award. This is technically true, in that clause 2(a) Public Holidays of Part IV Leave and Holidays with Pay - excludes shift workers from an entitlement to take the listed holidays. However, clause 1(b)(ii) Annual Leave provides that shift workers shall have an equivalent number of days added to their annual leave. The effect of this is that whilst shift workers are not entitled to take a paid day off on the date of the statutory holiday they get the same number of paid days off in lieu of the public holidays. This leave is referred to in this decision as extended leave. [57] I am grateful to the parties for the detailed submissions in relation to the history of the award and the way in which the provisions have been applied in the past. The provisions in question have been applied in different ways at different times. The union relied upon the exposition of Mr Jarman on behalf of the Tasmanian government before the AIRC, where it appears that was being applied then was similar to what the union is contending for now. The employer has applied the provisions differently since that time, and has again changed its position as to how they should be applied. The union cited the Woolworths case as authority for the proposition that past conduct can be regarded when determining the meaning where there is clear understanding between the parties. It is apparent that clear understanding between the parties has been lacking at various times. Although of interest, the way the award was applied at a particular time in the past is not of great assistance as an aid to construction now. [58] The employer argued that if the unions argument were to find favour, then a shift worker who worked on a public holiday would, in effect, receive triple time whereas the award provision for working on a public holiday is that double time applies. They said that triple time would be the effect because they would receive one days pay, plus a day off in lieu, plus the additional annual leave day in lieu of the statutory holiday. [59] The union submitted that the employers argument that the time off in lieu of double time should be offset against the entitlement to extended leave would mean that a shift worker would receive no benefit for working on a public holiday. They would be worse off than an employee who did not work on that day because a shift worker who works on a public holiday loses the shift penalty that they would otherwise have been paid. Mr White said that what would be being offset against the extended leave entitlement would be both the double time and the shift loading. [60] The employer relied heavily upon obiter dictum observations contained in a decision of Koerbin P in T91 in 1985 which concerned an interpretation of the Hospital Industrial Board Award, which had provisions which mirrored the relevant provisions in the award the subject of this dispute. Mr Baker agreed that the declaration made by Koerbin P is not binding upon the Commission in that it concerned a different award and dealt with a different matter (the rate of pay). [61] Section 43(7) of the Act provides: Subject to this Act, a declaration made under this section is binding on all courts and all persons with respect to the matter the subject of the declaration. [62] However, the fact that the decision is not binding in respect of the instant matter does not mean that I should not consider the reasons given by the President in his decision, particularly as the employer has relied upon those in reaching their own position. As Mr Baker said, it is up to me whether I agree with Koerbin Ps comments, or not. Whilst his observations are no more than that, on a close reading I am not altogether sure that his reasoning in some respects does in fact support the employers position. I note that the President himself adopted a different approach in a later case referred to by Mr White. [63] The decision of Turbet C of the AIRC in 1990 was relied upon by the employer. That dispute concerned actions by the employer that resulted in the reduction of the remuneration of shift workers. At issue was the payment of shift loadings and annual leave. Under a heading Conclusions Turbet C said: …the shift worker is granted time off in lieu [of double time] which is included in the sixteen additional days. This is of no assistance in the instant matter, not just because the decision was quashed on appeal, but also because the Commissioner advanced no reasons for his decision. Further it is not clear whether this conclusion is a finding in respect of that provision or whether he is describing what applied at the time. [64] The union provided a number of authorities that went to the question of how awards should be interpreted, and the employer did not take issue with those. I have read and considered the relevant parts of those decisions. How awards should be construed by the Commission is conveniently set out in a decision of Koerbin P in matter T30 of 1985, in which he said: … This is the first application to come before the Commission for interpretation pursuant to Section 43 of the Act. It is appropriate therefore to make some preliminary observations regarding the manner in which questions of interpretation should be addressed by applicants and the Commission. First: Construction or interpretation of award provision can only be made by considering their meaning in relation to specific facts. It is futile to attempt such an exercise in any other way. Second: It must be understood that in presenting an argument in support of or in opposition to a disputed construction relating to an award provision it is not permissible to seek determination of the matter on merit; that is, on the basis of what one party or the Commission believes the provision in question should mean. Third: Provided the words used are, in the general context of the award and its application to those covered by its terms, capable of being construed in an intelligible way, there can be no justification for attempting to read into those words a meaning different from that suggested by ordinary English usage. Fourth: An award must be interpreted according to the words actually used. Even if it appears that the exact words used do not achieve what was intended, the words used can only have attributed to them their true meaning. Fifth: If a drafting mistake has been made in not properly expressing the intention of the award maker, then the remedy lies in varying the award to accord to the decision given. Sixth: Where genuine ambiguity exists, resort may be had to the judgment accompanying the award as an aid to discovering its true meaning. Seventh: It is not permissible to import into an award by implication a provision which its language does not express. The award being a document which is to be read and understood by persons not skilled in law, or versed in subtleties of interpretation, an omission or imperfection of expression should be repaired by amendment rather than by implying into it provisions which are not clearly expressed by its language. …9 [65] Mr White submitted that the meaning of the award can be ascertained by its language, its context, its history, its purpose, the general background and the conduct of the parties. In determining this matter I have been informed by the authorities provided by the union and by the principles of construction as articulated by Koerbin P, which have been generally followed in the Commission. [66] The relevant clauses say: Part V Hours of Duty Clause 2 Shift Work: (h) Sundays and holiday shifts (i) Shift workers (other than Registered nurses level 4 and 5) for work on a rostered shift, the major portion of which falls on a Sunday or public holiday, shall be paid at a rate of time and three quarters in the case of Sundays and double time in the case of a public holiday. Such rate shall be in substitution for, and not cumulative upon the shift allowances more particularly set forth in 2 (e) hereof. (ii) PROVIDED that: … (3) where a shift worker is required to work on a public holiday as herein defined and is granted time off in lieu thereof, the above penalty rate shall not apply. … (my emphasis) Part VI Leave and Holidays with Pay - Clause 1 Annual Leave: (b) Annual leave exclusive of public holidays (i) Subject to this subclause the annual leave prescribed by this clause shall be exclusive of the holidays prescribed by Clause 2 Public holidays and if any such holiday falls within an employees period of annual leave and is observed on a day which in the case of that employee would have been an ordinary working day there shall be added to the period of annual leave time equivalent to the ordinary time which the employee would have worked if such day had not been a holiday. (ii) Notwithstanding the foregoing provisions, a shiftworker shall have added to his/her period of annual leave one day for each statutory holiday mentioned in clause 2 of this Part, whether or not such holiday is observed on a day which, for that employee would have been a rostered day off. ... 2. PUBLIC HOLIDAYS (a) All employees, other than shift workers, casual employee and part-time employees engaged to work less than twenty hours per week shall be entitled to the following holidays without deduction from their weekly wages: [lists statutory holidays] (b) Payment for the holidays mentioned in 2(a) which are taken and not worked, shall be at the normal rate of pay which would have applied to the employee concerned, when if it were not for such holiday, he/she had been at work. (c) Where an employee who is entitled to holidays in accordance with 2(a) hereof is required to work on any of the holidays mentioned in that subclause, either for part or the whole of such day he/she shall in the case of a shift worker, be paid at the rate prescribed in Part V Hours of Duty, Clause 3(c)(ii) Overtime and in the case of a day worker be paid at the overtime rate prescribed in Part V Hours of Duty Clause 3(c)(i) … (my emphasis) [67] The words in Clause 2(h)(i) Part V Hours of Duty - clearly and unambiguously provides an entitlement for shift workers to be paid double time when they work on a public holiday. That much is agreed between the parties. Also not at issue is the proviso that the double time can be taken as time off in lieu (although there is an issue about at whose election the time off in lieu may be taken). [68] It is also clear from the words that an employee does not receive both double time and the shift loading. This is also not at issue. [69] The provision is clear. The words are capable of being construed in an intelligible way. Nowhere in the clause does it say that the entitlement to double time is able to be absorbed into the extended leave provisions contained in the annual leave clause. As said by Koerbin P, it is not permissible to import into an award by implication a provision which its language does not express. [70] The words in Clause 1(b)(ii) of Part VI Leave and Holidays with Pay say clearly and unambiguously that a shiftworker shall have added to their period of annual leave one day for each statutory holiday set out in clause 2 of Part VI whether or not the employee would have been rostered off. This provision cannot be read other than to mean that all shift workers shall have a number of days equal to the number of statutory holidays added to their annual leave what Koerbin P referred to as an extension of the leave period. Nowhere in the clause does it say that a shift worker is not entitled to these days where they have been paid double time for working on a public holiday or have taken time off in lieu of double time. [71] Clause 2(c) Public Holidays again sets out the entitlement for a shift worker to be paid double time for working on a public holiday. Nowhere in any of those clauses does it say that one entitlement shall be set off against the other. Nowhere in the clauses is there provision for one entitlement to be satisfied by another. [72] If it were the intention that the days off in lieu of double time were to be absorbed into the extended leave them, in order to be consistent with the awards structure and wording, the clause would say something like: such time off shall be in substitution for and not cumulative upon the extension to annual leave provided for at clause 1(b)(ii) of Part VI. It does not say that. [73] I agree with the unions submission that the two provisions are unrelated and should not be conflated. The concept of compensation for the social disadvantage of working unsociable hours is well established. I accept the unions submission that the payment of double time is for the social disadvantage of working on a public holiday. The purpose of the extended annual leave is to ensure that shift workers get a number of days off equivalent to the number of statutory holidays regardless of whether they were rostered to work on those days, or not. The purpose of this is to ensure that shift workers get 11 or 11½ days holidays with pay each year. The two entitlements are different and for different purposes. [74] The employer contended that an employee should not receive any more than 11 or 11½ days off (plus annual leave entitlements) in a twelve month period because that is the number of holidays with pay employees are entitled to. This argument is misconceived; the shift workers are not, in fact, getting an extra holiday, what they are getting is a penalty payment converted to a day off. Such arrangements have been provided for in industrial instruments for many years. Time off in lieu of penalty payments is not leave or holidays and is not able to be absorbed into entitlements to leave or holidays with pay. I observe that an employee would be most unlikely to opt for time off in lieu of payment of penalty rates if that time off were to be absorbed into their existing leave entitlements. [75] The provisions are consistent with other provisions of the award. Shift workers are entitled to an additional week of annual leave for the social disadvantage of working on weekends and in addition they receive penalty payments when they do work on weekends. [76] When construing an award, the construction is not determined by considerations of merit or equity, however I observe that, when the award is read as a whole, there is not such a great deal of difference between what a day worker receives for working on a public holiday (two and a half days pay) and what a shift worker receives (three days pay but with the loss of shift loading). [77] As argued by the union, the employer has wrongly conflated two stand-alone provisions. The employer has read into the award provisions that are not there. The award provisions are clear and intelligible and, as said by Koerbin P in T30 of 1985: ..there can be no justification for attempting to read into those words a meaning different from that suggested by ordinary English usage. [78] I find that, according to the terms of the award, a shift worker who works on a public holiday is entitled to be paid double time (which maybe taken as time off in lieu) and is also entitled to 11 or 11½ days of extended leave. [79] In respect of the election, or otherwise, to take time off in lieu, the union argued that it should be the employees election and the employer argued that the employee was unable to make such an election given, they said, that the award requires that the extended leave for statutory holidays shall be added to annual leave. Again, this is conflating two separate provisions. There is no requirement for the time off in lieu to be added on to annual leave. [80] Mr White referred to the National Rates case where a Full Bench of the AIRC said that they were of the view that the taking of substitute days should be a matter primarily for a nurse, with the caveat that if a nurse wished to take them at a time considered inappropriate by the employer, then it would be a matter that could be resolved through the grievance procedure. [81] I am of the view that it should be the employees right to elect (a) whether to be paid or to take time off in lieu and (b) when to take the day off, subject to operational requirements. I am, however, aware of the difficulties with shortages of nurses and rostering requirements. This should be a matter for further discussion between the parties, given that the days off in lieu are, as I have found, additional to the extended leave already provided for pursuant to clause 1(b)(ii) of Part VI. [82] Mr White suggested that the parties confer as to draft orders consistent with my decision, and I agree that should be the case. I leave the file open to allow this to take place. If the parties are unable to reach agreement as to the form of orders, then I shall reconvene the hearing in order to hear submissions as to what orders should be issued. DIRECTIONS I hereby direct that the parties confer with the aim of reaching agreement as to the form of orders to be issued in settlement of this dispute AND THAT such discussions take place no later than 3 August 2009 AND THAT the parties inform the Commission of the outcome of the discussions no later than 17 August 2009.
P C Shelley
Date and place of hearing: 1 Exhibit A5 bundle of documents
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