IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

REASONS FOR DECISION

The Commission has been requested to interpret those provisions (mainly set out in Section I of the Award) which relate to shift and day work in order to declare who is a day worker and who is a shift worker. In this way, it is hoped to discover whether certain private hospital employees are day workers or shift workers.

The relevant facts are:   

Some 20 or so cleaners employed at St. Vincent's Hospital, Launceston carry out their duties in accordance with the following arrangement -

(a) Some employees work 8 hours per day, Monday to Friday, between the hours of 7.00 a.m. and 3.30 p.m. inclusive of an unpaid meal break of 30 minutes; and

(b) Another group work 5½ hours each Saturday and Sunday inclusive of a paid meal or crib break of 20 mintues.

By agreement, or by custom and practice, those who work Monday to Friday do not work weekends. Similarly, those who work weekends, do not work on weekdays.

Those who work a total of 11 hours each weekend are considered to be "part-time" shift workers. They are paid rates loaded by 20 per cent for working less than 20 hours per week. In addition, ordinary weekend shift penalties apply, such as, time and a half for Saturday and double time for work done on Sunday.

Mr. Simmonds asserted that the 20 or so cleaners working one "shift" per day over 7 days were "shift workers" by definition and therefore entitled to be paid as such. Mr. Sertori disagreed. He argued that as one group work one "shift" only between the hours of 7.00 a.m. and 5.30 p.m. on Monday to Friday, those persons were, by definition, "day workers".

Those who work on Saturday and Sunday only, he submitted, must be, and indeed are, classified and paid as "part-time" shift workers. They only work Saturday and Sunday, and therefore satisfy the award definition of "shift worker" which states in Clause 4 -

"Shift worker includes an employee whose ordinary weekly hours of work are performed in accordance with a roster which regularly includes Saturdays and Sundays.

PROVIDED ALWAYS that to qualify as a shift worker under this definition for the purposes only of calculating annual leave entitlements, an employee shall be rostered to perform work on not less than 10 Saturdays and not less than 10 Sundays during any one leave year".

Mr. Simmonds maintained that it was simply not to the point to suggest that because some employees, by agreement, worked only Monday to Friday, and others, also by agreement, only weekends, it was proper to hold that the former group were day workers as they did not work on any weekends or outside the 7.00 am to 5.30 p.m. spread prescribed for day workers. He did not quarrel with the "shift worker" classification being applied to those working only on Saturday and Sunday.

This latter group are classified as "part-time" shift workers for two reasons. First they derive the adjective "part-time" because they work less than 20 hours per week on a regular basis. And second they are classified as shift workers because they only work on Saturdays and Sundays.

The award definition of "part-time shift worker" is -

"Part-time shift worker is a person who holds down a position on a roster prescribed in Clause 4(c) hereof (Shift Worker Rosters)".

Mr. Simmonds submitted that as the same processes, or essentially the same processes, are carried out 7 days per week, all persons employed on that work are shift workers. Because certain mutually acceptable arrangements envisaged by Award Clause 4(c)(i) (non rotating shifts by agreement) had been negotiated, resulting in some employees working 40 hours on weekdays only, and others working 11 hours on weekends only, those working Monday to Friday could not, and should not lose their "shift worker" identity. Mr. Sertori took the opposite view. He submitted that those employees who chose to work 40 hours, Monday to Friday between the hours of 7.00 a.m. and 3.30 p.m., and did not work on any Saturday or Sunday, fell squarely within the definition of "day worker" to be found in Clause 37 and which reads -

"Day worker is one whose weekly ordinary hours of work are performed within the days Monday to Friday, inclusive".

Hours of work for day workers are stated in Clause 1 as -

"(a)   Day Workers

The ordinary hours of work shall be...40 hours per week for all other day work employees to be worked in 5 days, Monday to Friday inclusive in continuous periods of...8 hours per day respectively except for a meal break of not more than one hour's duration to be taken between 7.00 a.m. and 5.30 p.m. on such days."

Mr. Sertori asserted that, on the basis of information provided by Mr. Simmonds, employees who work Monday to Friday, either inside or outside the hours 7.00 a.m. to 5.30 p.m., were unquestionably day workers. Being day workers, he submitted, they could not under any circumstances be regarded as shift workers.

Those who chose to work regularly on Saturdays and Sundays were, according to Mr. Sertori, shift workers because -

1. Saturday and Sunday were part of their ordinary hours. In fact, they were the only hours worked; and

2. No day worker can work ordinary hours on a weekend; and

3. Any person who works regularly on Saturday or Sunday was a shift worker in any case.

Debate then took place regarding the existence, or non existence of rosters. Mr. Sertori considered that the preparation of rosters was essential, as the award required that these be drawn up when shifts are worked. Mr. Simmonds on the other hand maintained that they were not necessary at all. He suggested that a person did not become, or cease to become a shift worker merely because there was a piece of paper affixed to the wall purporting to be a roster in which his name was included. He concluded on this point by posing the rhetorical question whether or not an employee would cease to become a shift worker if a roster, in which his name was included, was subsequently taken down from the notice board?

In summary then those were main arguments of the participants. There were other thrusts and parries made but they need not be repeated or referred to in detail.

I therefore turn to address the particular questions I am asked to answer.

WHAT IS A DAY WORKER?

I would answer this question in the following way:

Without limiting the generality of the definition set out in sub-clause (i) of Clause 37 of the award, a day worker should -

a) Be engaged as such.

b) Work his ordinary time hours in continuous periods not exceeding 8 hours per day (inclusive of an unpaid meal break), Monday to Friday only.

c) Not, without the payment of overtime, be required to work ordinary hours on a public holiday.

d) Not, except by agreement between all, or a particular section of employees, be required to work ordinary hours outside the spread 7.00 a.m. to 5.30 p.m., Monday to Friday.

e) Not, without payment of the prescribed penalty rates otherwise be required to work ordinary hours wholly or partly outside the prescribed spread; notwithstanding the fact those hours falling outside the spread are to be regarded as ordinary hours for the purposes of making up the required number of weekly hours or daily hours to be worked by a day worker.

WHAT IS A SHIFT WORKER?

A shift worker for pay purposes should be either -

A.     (i) An employee engaged as a shift worker whose ordinary working hours are  performed in accordance with a roster which may or may not

(ii) provide for rotation of shifts unless all employees concerned desire otherwise; and may

(iii) regularly include Saturdays and Sundays.

OR, A SHIFT WORKER -

B. May be an employee who is not a day worker, as defined, and whose terms of employment are such that they do not satisfy, in their entirety, the requirements of (i), (ii) and (iii).

At least that is what the award appears to say: The position might also be restated thus -

"A shift worker is an employee employed as such who is not a day worker (as defined) and without limiting the generality of the foregoing includes an employee whose ordinary weekly hours are worked in accordance with a rotating roster which regularly includes Saturday and Sunday."

THE RELEVANCE OF SHIFT ROSTERS

Mr. Simmonds did not consider that the existence of a shift roster was central to determination of whether an employee was a shift worker or not.

Mr. Sertori disagreed with this. He argued that a shift worker is one who works in accordance with a roster. Implicit in his argument was the presumption that a roster means more than just a piece of paper with names on it as suggested by Mr. Simmonds.

It is proper therefore to go again to the award and attempt to ascertain what part rosters play in determining or maintaining the status or identify of shift worker employees.

Clause 36(x) defines "roster" thus -

"Roster -

For the purposes of Clause 4 (Shift Work) a roster is a document setting out clearly the names of the employees required to work in accordance with such roster; the days, duties and hours during which each employee is required to attend for duty."

The emphasised parts of this definition clearly indicate some of the purposes of a roster.

It is necessary now to examine Clause 4 referred to in the definition. The relevant parts of Clause 4 which deal with the question of rosters are as follows -

"4. SHIFT WORK

(a)    Definitions

Shift worker includes an employee whose ordinary weekly hours of work are performed in accordance with a roster which regularly includes Saturday and Sunday."

This is really a kind of conjunctive definition. But when read in association with the general definition set out in Clause 37 it appears to be superfluous - and in all probability is just that.

Except for the grammatical aberration resulting from the use of the third person singular "is" instead of the transitive verb "includes" so as to comfortably accommodate the all embracing add on generalisation of "...and includes all employees who are not day workers" the definition in Clause 4 is later repeated and extended by the Clause 37 (j) definition which states -

"A shift worker is an employee whose ordinary weekly hours work are performed in accordance with a roster which regularly includes Saturdays and Sundays and notwithstanding includes all employees who are not day workers.

Clause 4 also devotes a special sub-clause to rosters per se.

Without setting out in full all of the references to rosters to be found in Clause 4, the summary which follows will, I think, demonstrate that the act of drawing up rosters and working in accordance with them is an essential part of the shift work process.

THE PURPOSE OF SHIFT ROSTERS

1.  There shall be a roster for shift work which shall

(a) Provide for rotation unless all the employees concerned desired otherwise;

(b) Provide for not more than 8 shifts to be worked in any 9 consecutive days; and most importantly -

(c) Not be changed without payment of penalty rates until 4 weeks' notice has been give. Provided that an employee's place on such roster shall not be changed except on one week's notice of such change or payment of the penalty rates. So far as employees present themselves for work in accordance therewith shifts shall be worked according to the roster.

(d) Provide for a minimum of two consecutive days off duty, except when, by mutual agreement between the employer, the employee(s) concerned and the Secretary or authorised representative of the appropriate employee organisation, alternative arrangements are made. All rosters shall provide for two days off each week.

2. To establish that rostered shifts falling partly on Friday, Saturday, Sunday or a public holiday shall attract payment calculated in the manner prescribed.

3. To establish entitlement to particular penalty rates for work done during and outside a rostered shift -

4. To establish entitlement to penalty rates when a rostered employee is not relieved by another rostered employee on change of shift.

5. To establish that there be allowed a rest period following completion of a rostered shift with penalty rates being attracted when a rest period of the prescribed duration is not observed.

These then are some of the purposes of rosters. They are complementary to a number of award provisions. Expressed in more succinct terms, the award requires that rosters be drawn up identifying -

(a) The individual

(b) The time a shift shall start and commence

(c) The day and date of the shift

(d) When one shift cycle shall finish and another commence

(e) (usually) when the shift worker shall take annual leave

(f) From information deducible from the roster, all those items mentioned in 1. to 5. can be ascertained, calculated, demanded or observed.

It is for that reason that I am unable to conclude that rosters are not required for...all employees who are not day workers."

ST. VINCENT HOSPITAL CLEANERS

Although the award permits certain agreements to be entered into regarding non rotation where more than one shift operates on any day, there appears to be no scope for agreement to waive production of rosters.

Indeed it seems to me clear that in relation to the facts given in this case, it would only be possible to discover from a roster the following information -

(a) The name of the participants;

(b) The hours per day and per week, fortnight or month each should work;

(c) The days upon which each should work;

(d) The public holidays to be worked and by whom;

(e) The days upon which penalty shift payments are attracted;

(f) The names of rostered relief workers and the days and hours required to be worked on relief duty such as annual leave etcetera.

Given that such a roster was drawn up or did exist a further test as to the bona fides of the classification of those working in accordance with that roster might involve determining whether, in the absence of agreement to the contrary, all employees by working some weekdays and some weekends could satisfy the hours of work provision to be found in sub-clause (b) of Clause 1 (Hours). This sub-clause does not in fact establish a minimum number of weekly hours to be worked by any shift worker.

However, applying all the tests to the facts stated it would be difficult to hold that an employee, rostered to work some weekdays and some weekends would not be entitled to be paid over four weeks for 160 hours, although he would not work that number if he worked only 5½ hours on Saturday and 5½ hours Sunday. Expressed another way, if all cleaners employed at the hospital were rostered over weekdays and weekends, they could not, without working additional time on Saturdays and Sundays, make up the maximum number of hours in any 4 week period. But of course this would not be the determining factor in deciding whether or not employees were shift workers.

If they worked less than an average 160 hours over four weeks the employer would be obliged to make payment for the full four weeks anyway.

Moreover, application of the foregoing tests facilitate determination of whether or not, in the circumstances described, Saturday and Sunday work can be included to justify the claim that there is in existence a continuous process; or whether the work is properly day work with regularly rostered overtime scheduled for weekends.

Were this to be the case, Mr. Sertori's assertion that those who presently work Saturday and Sunday are part-time shift workers must fall to the ground. This would be so, unless it could then be established that all employees engaged in that process, Monday to Sunday, were themselves shift workers.

The acid test might be to consider what the position would be if those presently working only Monday to Friday were required to share the weekend work as well. Would they not, in those circumstances, be day workers working rostered overtime? And if so, would they retain that identity if weekend work was shared between those working ordinary hours Monday to Friday only and some employees engaged specifically to work either Saturday or Sunday only?

In any case, the present weekend arrangement needs to be regarded with some scepticism. It must be obvious that a part-time shift worker for working less than 20 hours a week(in this case 11), is entitled to a 20 per cent loading on his pro rated salary.

But the award makes it clear that the loading of 20 per cent includes a component for non application of sick leave, annual leave and public holidays. However, no paid public holidays occur on weekends. Therefore, a part-time shift worker attracting a 20 per cent loading is obviously being compensated for something he could not, under ordinary circumstances, lose. Furthermore, the loaded rate (including the public holiday component) is further loaded by a 50 per cent premium for Saturday work and a 100 per cent premium for Sunday work. Thus over a year an employee working Saturday and Sunday only would be over compensated by 75% for sick and annual leave and allowed 175% compensation for public holidays that do not occur.

Moreover, I can discover no authority in the award for employees, whether by agreement or otherwise, to work Monday to Friday on a certain process regarded as day work, while others carrying out the same process, albeit for a lesser number of hours on weekends, are classified as part-time shift workers.

It seems to me what is occurring at present is probably carrying the notion of shift work too far.

It would not be difficult to find, within the scope of this award, sufficient authority for the proposition that where there was an established shift work process in place, part-time shift workers could be discovered "filling in" on a regular basis to balance the roster hours. Any person who takes part in a rostered shift system is a shift worker. One could see this occurring if, in a 3 x 8 roster, ordinary weekly hours were reduced to say 38, necessitating 6 hours per week to be made up. There are probably many more illustrations that could be given. But to suggest that persons engaged to work regularly on Saturdays and Sundays only are part-time shift workers for that reason only is, I believe, attaching a liberal interpretation to the definition of shift worker.

For the foregoing reasons I am unable to answer positively whether, on the facts given, the employees concerned are all shift workers or all day workers, or if some are shift workers and some are day workers.

If the employees were employed as shift workers and there was a roster drawn up stipulating the names, times, days and dates upon which every employee was required to work, and that roster extended over 7 days, Mr. Simmonds' view would unquestionably stand, provided -

a) Employees worked some of their ordinary time on weekdays and some of their ordinary time on weekends; or

b) Alternative arrangements permitted by the award had first been agreed upon.

On the other hand, if the employees were engaged as day workers and there was no roster, those employees could only work Monday to Friday. Any necessary weekend work would need to be performed as rostered overtime. However I believe it would be an erroneous interpretation of the award if employees specifically engaged to work Saturdays and Sundays only were to be classified as part-time shift workers for that reason.

Alternatively, in the event there were employees engaged as shift workers to work a two shift per day rotating roster in a continuous process Monday to Friday, with some of that work being done by others on weekends, all would be shift workers. In that case it could be clearly established that all work was carried out within the parameters of a shift work system.

It follows therefore I must reject some of Mr. Simmonds arguments, and most of Mr. Sertori's submissions. In Mr. Simmonds' case he has relied upon certain practices current in other hospitals and has put too little weight on the need for rosters and the actual employment contract.

Mr. Sertori, on the other hand, has attempted to read into an admittedly convoluted set of award prescriptions something that is just not there.

There are, in my opinion, too many provisions relating to the same subject matter. These have strangled the intent of the award-maker to such an extent that I feel quite unable to declare, without reservation, that Mr. Simmonds' interpretation is either correct or wrong. To do so would lead inevitably to consideration of the merits. This I cannot do.

Having identified what I believe needs to be done to remedy this imbroglio, I consider I have answered the questions posed to the extent that they are answerable at all. Nevertheless I am unable to declare without equivocation that certain employees at St. Vincent's Hospitals are either shift workers or day workers within the meaning of the award. I do not have before me sufficient information to enable me to apply the tests referred to elsewhere. Those tests include the existence of rosters from which certain award rights and obligations flow; evidence of the contract of employment of individuals and evidence that agreement of some kind has been reached regarding hours to be worked and days upon which work is to be carried out by different groups of employees.

I realise this is an unsatisfactory situation. It could best be resolved by the parties themselves applying their minds to rationalisation of those provisions which appear to them to be responsible for the present absurdities. These unquestionably give rise to genuine and understandable differences of opinion in interpretation of conditions which by reason of their importance should be cast in more easily understood language.

L.A. Koerbin
PRESIDENT

4 July 1985