T2382
IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
INTERPRETATION APPEARANCES:
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:
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:
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 (1) PO47 |