T2268 (29 August 1990)
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
INTERPRETATION
This matter has an unfortunate and somewhat convoluted history which, for the sake of providing a comprehensible document, I will endeavour to record. In January 1989, the Bakery Employees' and Salesmen's Federation of Australia, Tasmanian Branch (BESF), notified a dispute with Nu-Bake Bakery, Launceston, over the alleged failure of the company to pay the correct rate to an employee proceeding on annual leave1. The hearing commenced on 21 February 1989 and was adjourned to allow a subsequent application from the Tasmanian Confederation of Industries (TCI), seeking an interpretation of the relevant subclause of the Annual Leave Clause, to be heard. The application and the hearing date for the interpretation were respectively 16 February 1989 and 6 April 19892. The then President (L.A. Koerbin), on 4 May 1989, handed down his decision in respect of the interpretation which purported to have retrospective application to 15 August 1988. The dispute application was withdrawn by the BESF on 18 May 1989. The Tasmanian Confederation of Industries, however, lodged an appeal against the President's decision on 25 May 19893. A Full Bench of the Commission found, on 26 July 1989, that appeal proceedings were not available to the parties because the President had not made a declaration in accordance with Section 43(4) of the Act. On 15 December 1989 the Secretary for Labour submitted an application for an interpretation4 of the same matter in the following terms:
The first hearing commenced before the Acting President (A. Robinson) on 27 February 1990 and as a threshold issue the parties sought to have the appeal matter relisted to hear alleged new material. The Acting President adjourned the hearing and on 6 March 1990 decided not to grant the request to relist the appeal. The adjourned hearing was set down for 3 May 1990. However, due to my appointment which was effective from 1 May 1990, and the unavailability of other parties, the matter did not recommence until 5 July 1990. Again, the actual case under consideration was that of Mr. Oakenfall, a machine operator employed by Nu-Bake Bakery, Kings Meadows. Mr Oakenfall's hours were in the form a "static roster", being:
The parties were not in dispute as to the ordinary time worked by Mr. Oakenfall. The precise matter of dispute was that Mr. Oakenfall, when proceeding on annual leave, was not paid the "loading" prescribed in Clause 12, Saturday, Sunday and Holiday Work, paragraph (ii) Sunday Work, placitum 1, which reads as follows:
Or, to put it another way, this dispute was about whether or not the word "wages" in Clause 23(e) includes premiums or penalty additions (Sunday loading). Mr. Evans, for the Secretary for Labour, read into transcript a substantial portion of President Koerbin's decision of 4 May 1989, asserting that the former President's interpretation was correct. In that interpretation, the then President could "discover no esoteric deficiency or grammatical flaw in the use of that terminology (wages) to describe the remuneration payable to an employee for working ordinary hours on a Sunday.5 He also found that there was no authority whatsoever in the award 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. In the circumstances the former President determined that as the employee in question 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"6. It was Mr. Evans' additional position that the interpretation should turn, not on the definition of "wages", but on the meaning of "ordinary time" for annual leave purposes: and, in his view, that ordinary time amount included the 50% Sunday shift premium. Mr. Evans presented two exhibits in support of his contention; however, those exhibits tended to go to the merit of the issue rather than to the question of what the words in the award actually mean. Other than to record their presentation, those exhibits have been ignored in this interpretation. Mr O'Brien, for the Federated Miscellaneous Workers' Union (FMWU), submitted that there was no reason why I should decide in any way differently from Mr. Koerbin, and he referred me to the FMWU's previous submissions appearing at pages 27 to 35 of the transcript of 6 April 1989. In particular, Mr O'Brien submitted that the phrase "the amount of wages" could not be read down to mean only the wage rate contained in Clause 8, Wage Rates. Mr. O'Brien claimed the term "wages" was a general term which embraced such things as penalties and premiums that applied to shift work and weekend work in the award. Mr. Edwards, the for TCI, contended that the proper construction of subclause (e) of Clause 23 was that the loading for ordinary time worked on a Sunday should not be included in calculating the wages due to an employee proceeding on annual leave. He claimed that the interpretation should turn not on the words "ordinary time" as proposed by Mr. Evans, but on the word "wages". Mr. Edwards submitted that the employee going on annual leave should receive an amount of money which, in the Annual Leave Clause, was referred to as "wages". [The additional payment of an amount equivalent to the minimum wage was not in dispute.] He relied on Clause 8, Wage Rates, subdivision 1 - Wages, for clarification of the precise amount to be paid as it used the same term, "wages", and he suggested that the draftsperson had meant the two money amounts to be interchangeable. He further submitted that Clause 30 - Full Weeks Wages to be Paid - contrary to the former President's interpretation, supported the employer in that it referred to "overtime or other penalty rates" as being distinct additions to the weekly wage. However, Mr. Edwards did not attempt to draw any comfort from two other clauses, viz. Clause 38 - Payment of Wages, and Clause 43 - Time and Wages Book, which use the word "wages" in a manner which clearly must include components such as penalty rates for Sunday work. Mr. Edwards asked the Commission to bear in mind that the award was designed to be read by employers in the field and therefore his view of what the word "wages" meant would provide employers with an unambiguous and consistent application of the term7. He also drew my attention to a number of interpretation cases which he considered assisted his point of view, in particular, T.91 of 1985 and T.1837 of 1989, highlighting the need for consistency within awards, which I shall refer to later. Although not referred to by Mr. Edwards, in his interpretation in T.91 of 1985, the then President, in dealing with somewhat similar circumstances in the Hospitals Industrial Board Award, offered the following comment:
It is interesting to note that the payment for leave provisions in the two awards are identical in respect of the key words, viz. "an employee shall be paid the amount of wages he would have received in respect of the ordinary time which he would have worked if he had not been on leave." Another matter, T.368 of 1986, dealt with an interpretation of the Fire Brigades Award in relation to payment of a week's wages on termination, and as such is not, in my view, a precedent upon which Mr. Edwards could successfully rely, given the different wording used in that award compared with the Bakers Award. After careful consideration of all the submissions, I have concluded that the TCI's view, as submitted, is a far too narrow construction of subclause (e) of Clause 23. I believe that Mr. Edwards' reliance on the use of the word "wages" in the sub title 1. Wages, in Clause 8, Wage Rates, is somewhat flawed. The Wage Rates clause sets out the minimum rates payable which are simply the rates used for the purpose of calculating wages payable in accordance with the award. I also believe that subclause 23(e) must be considered in its entirety; the words in it must be read and understood in the general context of the full subclause, the clause and, indeed, the full award. It is inappropriate to consider the individual words of the subclause standing alone. Therefore, in that general context, the subclause means to me that an employee going on annual leave is entitled to receive the amount of money as wages that he or she would normally receive for the ordinary time that employee would normally have worked but for being on leave. It follows that I do not consider the use of the word "wages" in Clause 23(e) (i) refers only to the "minimum rates" contained in the Wage Rates clause. So far as Clause 30 - Full Week's Wages to be Paid - is concerned, it certainly is more specific than the other clauses referred to above in that it cites the components which, for the purposes of that clause, go to make up a full week's wage. This does little for either case because the clause can be used to support or contradict either view. Therefore I find that throughout this award the use of the word "wages" is directed more towards the broader meaning espoused by the unions, the Secretary for Labour, and indeed the former President than to the narrow definition propounded by the employers. While on this point, I should reinforce the opinion expressed by the former President 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, and I believe I have done that. I further consider that confirmation of such a meaning, in the form of an interpretation, will ensure a more consistent and readily understood application of the award generally. As to the question of operative date, Mr. Evans requested my interpretation should take effect from the date determined by President Koerbin. Mr. O'Brien considered that the date was not of great significance, but Mr Edwards opposed any suggestion that there should be a retrospective operative date. As a general rule I would not consider retrospective application of a decision of the nature contemplated in this case. However, there are special and extenuating circumstances involved, such as:
These circumstances set this matter apart from the norm and I therefore believe full retrospectivity is appropriate to ensure that no injustice occurs as a result of technical deficiencies in the process. Having regard to the foregoing circumstances, in accordance with Section 43(1) of the Act, I declare that the Bakers Award, in particular Clause 23 (e) (i), should be interpreted to mean that Mr. Oakenfall, a machine operator whose normal week of 38 hours, at the time under review, was worked on Sunday to Thursday inclusive, is 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 should attract the ordinary rate of pay. He is entitled also to the additional payment of the minimum wage as provided in subclause 2 of Clause 8 - Wage Rates. This declaration shall take effect from 15 August 1988.
F.D. Westwood 1 T.1827 of 1989 | ||||||||||||||||||||||||||||||||||