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T2382

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.2382 of 1990 IN THE MATTER OF AN APPLICATION BY THE AMALGAMATED METAL WORKERS UNION FOR INTERPRETATION OF THE MINING (LEAD-ZINC) AWARD
   
  RE: CONTRACT OF EMPLOYMENT AND PAYMENT FOR SHIFT
   
PRESIDENT F. D. WESTWOOD 10 JULY 1990

 

INTERPRETATION

APPEARANCES:

For the Amalgamated Metal
Workers Union
- Mr. D. Harding
   
For the Australian Workers' Union
Tasmania Branch
- Mr. C. Hayes
   
For Pasminco Mining, Rosebery

- Mr. R. Evetts

 

DATE AND PLACE OF HEARING:

 

8.6.90

Hobart

 

 

This is an application by the Amalgamated Metal Workers' Union (AMWU) in accordance with Section 43 of the Industrial Relations Act 1984 for an interpretation of Clause 13(c) - Contract of Employment - and Clause 32(a) - Payment for Shift - of the Mining (Lead-Zinc) Award1.

In this case, on 6 March 1990 the underground day shift workers were stood down for four hours after spending the first four hours of their eight-hour shift waiting for a motor, in the cage used to transport employees underground, to be repaired. The motor was repaired some considerable time later. The company paid the employees for the first four hours and gave them the option, in respect of the "stand down" period, of either four hours' unpaid leave or eight hours annual leave.

Mr. Harding claimed that Clause 13(c) permits the employer to deduct payment for any day, not for any part of a day, in the event that employees cannot be usefully employed through any breakdown in machinery.

The subclause reads as follows:

"(c)  Subclause (a) above shall not affect the right of the employer to dismiss any employee without notice for misconduct and in such cases the wages shall be paid up to the time of dismissal only; or to deduct payment for any day the employee cannot be usefully employed because of any strike or through any breakdown in machinery or any stoppage of work by any cause for which the employer cannot reasonably be held responsible.

The right of the Company to deduct payment for any day an employee cannot be usefully employed because of a strike or by any stoppage of work by any cause for which the employer cannot reasonably be held responsible is subject to the following conditions:

(i)  The Company shall notify the employee verbally or in writing or by public notice of the proposed stand down. During the period such notification remains in force, the employee shall be deemed to be stood down until he is advised to resume work, which may be done verbally or in writing, or by public notice.

(ii)  An employee who is stood down under this subclause shall be treated for all purposes (other than payment of wages) as having continuity of service and employment notwithstanding such standing down.

(iii)  An employee who is stood down under this subclause may at any time during the period of being stood down terminate employment without notice and shall be entitled to receive as soon as practicable all wages and other payments to which there is an entitlement up to the time of termination. The day on which the employee exercises the right of termination without notice shall be the day on which the employment is terminated.

(iv)  An employee who terminates his employment under subparagraph (iii) hereof, shall for all purposes (other than payment in lieu of notice) be treated as if his employment had been terminated by the employer without default of the employee.

(v)  An employee who is stood down under this subclause shall be at liberty to take other employment.

(vi)  Save and except an employee who is a member of an organization engaged in a strike at E.Z. West Coast Mines, an employee stood down for a period of more than one week who has exercised the right to take other employment shall be entitled to work out in such other employment, notice of up to one week provided he notifies the Company of his so doing.

An employee who is stood down under this subclause who takes alternative employment shall notify the Company of the address at which he may be contacted.

(viii)  An employee whom the Company proposes to stand down under this subclause may elect to take, for the period of the stand down only, any annual leave to which he is entitled or which is accruing to him and upon such election being exercised the employee's annual leave shall be reduced accordingly.

(viii)  Notwithstanding anything hereinbefore contained in this subclause, the Company shall not be entitled to deduct payment for any day prescribed by the award as a public holiday which occurs during the period in which an employee is stood down except to the extent that the employee had become entitled to payment for the holiday in other employment. An employee claiming payment for a holiday shall, if required by the Company, furnish a statutory declaration setting out details of any other employment during the stand down period and the remuneration received therefrom.

(ix)  Any employee who is absent from his employment without reasonable cause for a period exceeding 3 consecutive working days shall be deemed to have terminated his employment, provided where termination is disputed such matter shall be referred to the Tasmanian Industrial Commission."

Mr. Harding further claimed that Clause 32(a) provides that having commenced a shift the employees must be paid for a full shift. The subclause reads as follows:

"32(a)  After beginning his shift an employee shall not be paid for less than a shift unless he leaves of his own accord or is discharged for insubordination."

Mr. Harding submitted that, taking the two subclauses together, the employees could not be stood down other than for a full day and that having commenced a shift, and remaining available for that shift, the employees were entitled to be paid for a full shift. I was asked for my interpretation of the award in respect to these two subclauses.

The AMWU was supported by Mr. Hayes for the Australian Workers Union.

Mr. Evetts, appearing for Pasminco Mining, Rosebery, sought to rely on one of several dictionary definitions of the word "day". The definition he adopted was that a day was "a distinctive period of time", and in his view, in the context of this event, that "distinctive period of time" was four hours. The employees were paid for the time they worked and then stood down for the remaining "distinctive period of time" of four hours which related to the breakdown of machinery.

However, Mr. Evetts conceded that a normal working day at the Rosebery site was comprised of eight hours.

Mr. Evetts claimed that Clause 32(a) could not reasonably be used in this case; in his submission the clause should not be used as a catch-all for payment of a full shift, just because an employee had commenced a shift. He submitted that if Clause 32(a) were to be taken literally, an employee who was late for work, or left early, or who went on strike, or attended a stop work meeting, would have to be paid for a full shift. Mr. Evetts asserted that the Company was acting reasonably and without malice in applying the award in the manner that it had.

In reply, Mr. Harding rejected the Company's proposition in relation to Clause 32(a), claiming that payment for strikes, stop work and late attendance etc. was not in debate. In his words, "obviously you don't get paid for them ... you get paid for the time you work"2.

Mr. Harding then referred to Clause 25, Hours, which repeatedly refers to eight consecutive hours as representing a day's work, in rebuttal of the Company's claim that four hours could be deemed to be a day.

Mr. Hayes argued that the employer was not at liberty to set aside the contract of employment other than in accordance with Clause 13 and that Clause 32(a) could only be read as requiring the full payment of shift in those circumstances. He claimed that Clause 13(c) provided that an employee could be stood down for no less than a day. As to the question of what was a "day", he was of the view that the award provided in Clause 25 that a day was comprised of eight consecutive hours. Since there was no reference to the employer having the ability to stand employees down for a part of a day, the stand down must be for a full day, being a full shift.

DECISION

The Commission's interpretation guidelines as set out in previous decisions3, require me to interpret an award according to the words actually used, provided in the general context of the award, they are capable of being construed in an intelligible way and no attempt is made to read into those words a meaning different from that suggested by ordinary English usage.

I have some difficulty in accepting the Company's proposition that the word "day" as used in Clause 13(c) can be construed, for the purposes of the award, as meaning anything other than a period of eight consecutive hours as is provided for in Clause 25 of the award. It follows that I have difficulty in accepting the Company's view that the award gives the company the right to deduct four hours' pay (or half a normal working day's pay) when the award specifically states that a deduction of payment may be made only for "any day".

Accordingly I declare Clause 13(c) to mean that provided the pre-conditions of that subclause are met, a stand down, and the consequential deduction from pay, can be effected only if the employee is appropriately notified of the proposed stand down prior to the commencement of the employee's day, which, for the purposes of the award, is that employee's normal working day of eight consecutive hours. Stand down and consequent deduction from pay are not available under the award for part of a day.

As a result of this interpretation I find that Clause 32(a) has no bearing on this particular case and I decline to interpret that subclause.

If I am requested to issue an order in respect of this matter I should inform the parties that it will be effective from and including 6 March 1990.

 

F. D. Westwood
PRESIDENT

(1) PO47
(2) Transcript, p.18
(3) T.30 of 1985 and T.530 of 1986