IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T1985

Industrial Relations Act 1984

This is an application by the Tasmanian Confederation of Industries for interpretation of Clause 23(e) of the Bakers Award. The subclause in question refers to payment for annual leave, and is framed thus:

In keeping with the guidelines laid down by the Commission relating to matters of interpretation, an agreed set of facts was recited. The Commission was asked to interpret the award in the context of these agreed facts which were as follows:-

A machine operator employed under the terms of Division A - Bread Makers, Pastry Cooks and Biscuit Makers - worked regularly in accordance with the hours of work provision on Sundays to Thursdays inclusive.

His roster for ordinary hours was:

Under the terms of the award, for ordinary rostered work on Sunday a premium of 50% is payable. Ordinary work done between the hours of 10.00 a.m. and 10.00 p.m. on Monday, 8.00 a.m. and 8.00 p.m. on Tuesday and Wednesday, and 8.00 a.m. to midnight on Thursday, carry no premium.

A Mr Oakenfall, on whose behalf this application has been made, has been paid regularly at ordinary rates from Monday to Thursday inclusive and ordinary rates plus 50% (or the equivalent of time and one half) for ordinary work done on Sunday. This is in accordance with the award requirement.

However recently, when on annual leave, he was only paid for 4 weeks at ordinary rates. Messrs. Neilsen and O'Brien, representing the Bakery Employees and Salesmen's Federation of Australia and the Federated Miscellaneous Workers Union respectively, argued that under the terms of the award Mr Oakenfall should have been paid the prescribed 50% premium for Sunday while on annual leave. This was because Sunday was regularly worked during Mr Oakenfall's ordinary roster.

Mr Edwards disputed this, and argued that "wages" did not include premiums or penalty additions.

I reject Mr Edwards' contention that in the context of this award "wages" means only the ordinary time rate of remuneration assigned to an employee's particular classification. I accept that the noun "wage" is the correct description to be applied to the monetary amounts assigned to a specified classification. But within the framework of the award itself which makes provision for work done on all days of the week and at all times of the day, use of the word "wage" or "wages" to describe the minimum legal rate of remuneration for working ordinary hours on different days of the week, including the weekends, is equally appropriate given that this award applies to persons who regularly work Sundays as part of their ordinary working week.

I can discover no esoteric deficiency or grammatical flaw in the use of that terminology to describe the remuneration payable to an employee for working ordinary hours on a Sunday. As Sunday is ordinarily a non-working day for many workers, the legal minimum payment for ordinary time necessarily worked on that day is time-and-one-half or time plus 50%. Suffice it to say there can be found in the award no authority whatsoever for an employer to pay for ordinary work done on a Sunday a lesser amount than 150% of the lowest rate payable for work done on week days - i.e. the weekly rate divided by 5 (or per hour the weekly rate divided by 38).

Having reached this conclusion, it is a relatively uncomplicated exercise to then apply subclause (e) of Clause 23 to the given set of facts.

Had Mr Oakenfall continued to work his Sunday to Thursday roster instead of taking annual leave, he would have been paid the equivalent of 20% of the weekly rate for Monday to Thursday inclusive, and 30% of the weekly rate for Sunday. The aggregate becomes the amount he should have been paid for each Sunday to Thursday he was regarded as being on annual leave. [In addition he would have been entitled to be paid a flat amount of $231.10, being the present minimum wage set out in Clause 8. If, however, Mr Oakenfall took his leave prior to March 1989 the minimum wage add-on would have been something less.]

Although Mr Edwards was able to draw some comfort from his argument regarding the meaning of "ordinary pay" (particularly if resort is to be had to the Macquarie Dictionary), he was none the less unable to draw comfort from the terminology used by the award-maker in other parts of the award itself. I refer in particular to Clause 30 - Full Week's Wages to be Paid, and Clause 38 - Payment of Wages.

I am firmly of the opinion that in cases of this kind it is important to consider the award as a whole in order to test the probable intention of the award-maker against the overall infrastructure.

In this case, having carried out that exercise I reject the applicant's interpretation and declare that as Mr Oakenfall had regularly worked on Sunday to Thursday, he was entitled to be paid the minimum rate of 150% of one fifth of the ordinary weekly rate for each Sunday he was regarded as being on paid annual leave. The remaining days of his leave would attract ordinary time rates only. The extra add-on relating to the minimum wage is mentioned only in passing, as there appeared to be no issue between the parties as to his entitlement in that regard.

The award is interpreted accordingly with effect from 15 August 1988.

L A Koerbin
PRESIDENT