IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This somewhat complex application for interpretation came before the Commission at the request of the Secretary for Labour. The matter in dispute was the method by which the ordinary time rate should be calculated for a casual working regular night shift. The employee concerned works a roster as follows:

First week:     Monday 8 p.m. to 4 a.m.
                    Friday 8 p.m. to 4 a.m.
                    Saturday 8 p.m. to 4 a.m.
                    Sunday 8 p.m. to 4 a.m.

Second week: Tuesday 8 p.m. to 4 a.m.
                    Wednesday 8 p.m. to 4 a.m.
                    Thursday 8 p.m. to 4. a.m.
                    Saturday 11 a.m. to 2 p.m. (day patrol)
                    Sunday 11 a.m. to 2 p.m. (day patrol)

The award provides the following: 20% add on for being a casual as distinct from being paid as a weekly employee. The additional percentage is to compensate for non entitlement to paid sick leave, annual leave and public holidays.

The award also provides for shift allowances of 15% extra for afternoon, early morning and night shift. Permanent night shift attracts a loading of 30% extra. A further penalty applies when shifts are split. Shift allowances apply only on Monday to Friday.

Ordinary weekly hours are to average, in the case of weekly employees, 38 per week and may be worked in a number of different ways. Ordinary hours may be worked on Saturdays, Sundays and public holidays.

Penalty payments are attracted for ordinary hours worked on weekends and public holidays. For Saturday the rate is time-and-a-half for the first 8 hours; double time for the next three hours, and double time-and-a-half thereafter. On Sunday all time worked as ordinary hours is paid for at the rate of double time for the first 11 hours and treble time thereafter. On public holidays all time of duty attracts a rate of double time-and-a-half for the first 11 hours, and treble time thereafter.

A casual employee, for working ordinary time shall be paid per hour one thirty-eighth at the rate prescribed for a weekly employee plus 20%. It is important to note that the 20% loading is restricted to ordinary time.

A casual employee is defined as a person who is employed on a casual basis and includes any person employed for a period not exceeding 5 days at any one time.

Permanent night shift, by definition, means a night shift which does not alternate with another shift so as to give the employee at least one-third of his or her working time off night shift. Afternoon, early morning and night shift are also defined but need not be discussed as there was no issue between the parties in this regard.

Whereas the Secretary for Labour, through his representative, admitted to being somewhat unsure of the correct method of calculating the hourly rate and ordinary time rate for a casual, Mr. Brown, for the Federated Miscellaneous Workers' Union, was adamant that for ordinary time as distinct from overtime worked on shifts carrying a penalty addition, say, two-and a-half-times above the base rate, a casual shiftworker working permanent night shift would be entitled per hour to a rate ascertained as follows: Weekly rate plus 20%, divided by 38.

For ordinary rostered work on a Saturday the rate would be time-and-a-half of the loaded rate. That is, the base rate plus 20%. A similar type of calculation would apply for ordinary time worked on Sundays and public holidays.

On week days the shift penalty of 30% would also be included as a multiplier and not as an add on.

Mr. Brown conceded that for overtime the hourly rate would revert to the weekly rate divided by 38 - i.e. the 20% being excluded for the purposes of overtime.

Mr. Edwards, on the other hand, submitted that a correct interpretation would be for ordinary time, Monday to Friday, base rate plus 20%, plus 30% of the base rate. For ordinary time worked on a Saturday the calculation would be: base rate multiplied by 50%, plus 20% of the unloaded base rate for actual ordinary hours worked. That is to say, if an 8-hour day was worked on Saturday, the rate for the day would be the equivalent of 12 hours at the base rate, plus 8 hours at 20% of the base rate. The same type of exercise would apply for Sundays and holiday shifts.

I do not agree that the ordinary public holiday rate for a casual should be as submitted by either party. As the 20% casual loading compensates for ordinary time payable to a weekly employee on a public holiday, this must be taken into account when calculating the rate payable to a casual on a public holiday.

However that may be, the intention of the respective award provisions is not easy to discover from the language used. However, by any standard the penalties regarding weekend and holiday work are generous to say the least. For example, this is one of the few awards that allows treble time for working excess hours in certain circumstances. A further example might be the loose construction put upon the definition of "casual".

It is hard to imagine that a person working a regular roster week after week could ever be regarded as a casual except under the terms of this award. Admittedly in the instant case the person concerned does not work a 38-hour week. But except for the designation of the worker, I can find no difference between the situation of the employee under consideration and that of a part-time control room operator, as defined.

Looked at as a whole, the various provisions applicable to an employee working as described would, I believe, be as follows:

Week 1: Monday and Friday - from 8 p.m. to 4 a.m.

(a) An hourly rate to be determined by dividing the weekly rate by 38, plus 20% for casual, and an additional 30% of the base weekly rate for working permanent night shift.

(b) The overtime rate would be calculated at an hourly rate ascertained by dividing the weekly rate by 38. No additional loading would apply for casual or permanent night work.

(c) For Saturday work, in Week 1, working during the hours 8 p.m. to 4 a.m., there would be no shift allowance payable. The rate would be the hourly rate ascertained as in (a) above, plus 50%, plus 20% of 8 hours at the ordinary hourly rate for casual. Overtime would be, in accordance with the award, at a flat hourly rate that includes no loadings for casual or shift work.

(d) For work performed between 8 p.m. and 4 a.m. on Sunday, no shift allowance would be payable, but an hourly rate ascertained as in (b), plus 120% (i.e. double time, plus 20% for casual for the first 8 hours) would be applicable.

Week 2: Tuesday, Wednesday and Thursday - as per Monday and Friday of the first week

(a) Saturday, from 11 a.m. to 2 p.m., the weekly hourly rate (as discussed) plus 70%, if the period 11 a.m. to 2 p.m. is regarded as ordinary time. If not, the award overtime rate would apply. That rate would not include any loading for casual or shift work.

(b) Sunday, for work done between 11 a.m. and 2 p.m. the ordinary weekly unloaded rate, plus 120% if ordinary time. If Sunday work is not ordinary time, the 20% loading for casual would be deleted. The rate would therefore be double the ordinary weekly hourly rate.

To further illustrate the position in less confusing terms, it would be convenient to describe what appears most likely to be the foregoing entitlements in fairly cryptic terms.

First week:

For working week days the employee is entitled to the base hourly rate to which is added 20% for being a casual, and 30% for permanent night shift. The 20% and 30% add ons are just that, and comprise in all a 50% add on to the base hourly rate for ordinary time. Overtime does not attract the 20% casual add on. Nor does it attract the 30% permanent night shift component.

For ordinary time on Saturday the rate of payment is time and one half of the ordinary hourly rate. To this is added 20% of the ordinary hourly rate for actual ordinary hours worked up to 8. The total add on for 8 hours ordinary time on Saturday is therefore 70%, that is time-and-a-half plus 20%.

For ordinary hours on Sunday the rate is double the ordinary hourly rate. To this is added 20% of 8 hours at the ordinary rate for casual loading. Total add on equals 120% for 8 hours. For overtime no 20% allowance is payable. The award penalties as set out are calculated using the ordinary base hourly rate ascertained by dividing the weekly rate by 38. [Note: Up to the first 38 hours ordinary time will attract the 20% casual loading. No overtime carries a penalty loading of 20%, or 30%. The permanent night shift loading of 30% will only apply Monday to Friday in any case, and then only for ordinary time.]

A casual working ordinary time on a public holiday, having already been (theoretically at least compensated for the day by the 20% loading, is not entitled to double dip. Therefore any ordinary time worked should be paid for at the ordinary hourly rate, plus 70% - (i.e. time plus 170%, less 100%). In this way double counting would be avoided.

Second week:

Week days as per Week 1.

Saturday (if ordinary working time) is paid for at the ordinary hourly rate plus 70% up to a maximum of 8 hours. That is to say, time-and-a-half plus 20% for casual loading.

Sunday (if ordinary time is worked) is to be paid for at the ordinary hourly rate plus 120%. That is, double time plus 20%. No shift penalties are payable on Saturdays, Sundays or public holidays.

In no case is a penalty calculated on a penalty. The 20% loading for casual hire stands alone as does the 30% for working permanent shift work. Each add on is just that. Each component is calculated as a percentage of the basic hourly rate. That is say, the weekly award rate divided by 38. Each component is then added together.

To demonstrate the point: For 8 hours' work on Monday a casual working permanent night shift would be paid 8 hours at the ordinary base rate, plus 8 hours at 20% of the ordinary hourly rate, plus 8 hours at 30% of the ordinary hourly rate. The sum total for the day would be 150% of 8 hours' pay.

It is unfortunate that awards are not always drawn in terms easily understood by those upon whom they are intended to be binding. But such is the nature of our industrial relations system - not just the Tasmanian arrangements - but the system as a whole. Industrial relations practitioners, by and large, tend to leave untied so many loose drafting ends. Often genuine, yet avoidable, differences of interpretation arise as time goes by and the original parties or personalities change. In their collective anxiety to avoid the complexity of precise drafting such as that employed by those whose task it is to draw up statutes, those concerned with drafting industrial awards tend to err on the side of simplicity. For the most part that is not such a bad thing, but it can lead to confusion, and on occasions has the potential to be extremely costly where actions for recovery of underpayments result in substantive retrospective adjustments.

This award is a classic but by no means unique case in point. Taken alone the various provisions discussed during proceedings appear on their face to be reasonably clear and relatively unambiguous. But when one or more of those provisions is read in conjunction with other selected clauses, confusion can be the result. This is because draftspersons, over time have not, it would seem, applied their minds to the need for inclusion, as required, of linkage or separation provisions in certain areas.

The parties to this matter were perfectly entitled to argue for their own interpretation because prima facie each had an arguable case. But I am of the opinion that the construction I favour is one more readily reconcilable, and for that reason is probably to be preferred. Nevertheless it is difficult to be absolute in matters of this kind. For that reason the parties may consider it desirable to clarify these issues by seeking a variation to put beyond doubt what is intended regarding multiple penalties and the casual loading.

If requested, I am obliged under the Act to make a declaration. Although reluctant to do so, if issue of such an instrument is insisted upon it will be prospective in effect and not retrospective. Naturally any declaration will be subject to appeal.

L. A. Koerbin
PRESIDENT