T309
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
REASONS FOR DECISION APPEARANCES:
DATE AND PLACE OF HEARING: 21.1.86 HOBART
This application by the United Fire Fighters Union seeks confirmation by the Commission that for the purposes of determining a day's pay for shift workers referred to in sub placitum (ii) of Clause 5(a) of Section I of Part II (Conditions) of the Fire Brigade Award, either of the following formulae may be called in aid: (i) By dividing the 40 ordinary weekly hours by 5, or (ii) By dividing the total weekly average hours (42) by the average number of days worked each week (in this case the number is 4). [This would produce an average figure of 10 ½ hours per day. But this would also include a one half-hour per day excess which is presently aggregated and paid as 2 hours per week. This excess, together with ordinary hours, is subject to 36.75 per cent loading for shift and weekend work, extra duty hours and work on public holidays.] The State Fire Commission concurred in neither of the foregoing options. Each of the three representatives who appeared for the Commission were of the opinion the present practice of dividing the current weekly wage by 7 was the only way to determine a day's work. The reason the matter came before the Commission in the first place arose out of a decision taken by the Fire Commission consequent on a request by the union for rationalisation of pay days. The intention was to ensure that officers of the Commission paid under the terms of the "Officers of the State Fire Commission Award" and employees paid under the terms of this award would be paid on the same day, namely each alternate Thursday. In deciding to pay shift fire fighters in accordance with pay procedure observed for Officers, it was necessary as a "once only" exercise to add two extra day's pay - that is Wednesday and Thursday - for the purpose of extending one pay period to coincide with the normal Thursday closing day for Officers. In the event the Fire Commissioner added only 12 additional hours pay to shift workers affected by the rationalisation. This, it was argued, represented 2/7ths of an average week's work of 42 hours. The calculation was based upon the Commission's presumption that as shift workers were required to work on any day of the week, in the absence of any award provisions to the contrary, the appropriate formula for determining a day's pay was the total weekly hours worked divided by 7. The following award provisions are relevant to this application. PART II - CONDITIONS 5. HOURS (a)(ii) Shift work Firefighters, Watchroom Operators and Officers -
1. LOADINGS In addition to the wage rates prescribed in Clauses 1 and 2, Section I, Part I employees who are required to work shift work shall be paid the following loadings on the total of the aforesaid wage rates: Firefighters, Watchroom Operators and Officers: (i) 15% for shift work; Payment of the amounts prescribed shall continue to be made during periods of Annual Leave, Sick Leave or other absences approved by the employer, during which ordinary wages are paid. 6. ROSTER OF HOURS The roster of hours for Shiftworker Firefighters, Watchroom Operators and officers shall be as follows in rotation: 2 day shifts ... ... ... 0800 hours to 1800 hours It was explained, although not supported by award reference, that current practice is to average ordinary hours of work over an 8-week cycle. Sub-clause (a)(ii) of Clause 5 envisages a weekly payment of 42 "loaded" ordinary hours. Presumable the extra two hours is intended to in some way compensate for working a 4-day week comprising two 10-hour shifts, followed by two 14-hour shifts and 4 days off. But without having before me the benefit of an actual 8-week roster drawn in terms required by the award, I am quite unable to reconcile the hours paid per week with the hours actually worked. Nor am I able to understand the generous 4-day break after 4 days on. However simple extrapolation of the award requirement suggests that there should be rotating shifts of two day shifts of 10 hours duration followed by two 14-hour night shifts. When multiplied by 8, if an 8-week cycle is involved, an irreconcilable total of 384 hours is produced. But as the award also required that a 42-hour week be rostered, the total hours worked over 8 weeks should be 336. Eight week of 40 hours, on the other hand, necessitates only 320 hours being worked. The additional 2 hours per week set out in Clause 5 does not therefore appear to have any logical award justification. Clause 5(a)(ii) also appears to be at arms length with itself. It is clearly out of step with Clause 6, which requires rotating shifts to be worked in 10 or 14-hour periods. In no case does averaging appear to be permitted. However this might be implied by the requirement to roster employees for 42 hours each week. Yet obedience to the requirement to work only 10 or 14-hour shifts makes compliance with the additional requirement to work a 42-hour week a physical impossibility. These then are the apparent facts. Neither the union nor the Fire Commissioner appeared to have checked the total hours paid to shift workers over (in this case) an 8-week and 2-day period to ensure that all time actually worked had been paid for. In calling in aid the well-settled principles of award interpretation in determining this matter, I would draw attention to seven of the more important guidelines relevant to determining issues of this kind. These were listed in the Social Trainers' case1, and included the following: "An award must be interpreted according to the words actually used. Even if it appears that the exact words used do not achieve what was intended, the words used can only have attributed to them their true meaning." And - "It is not permissible to import into an award by implication a provision which its language does not express. The award being a document which is to be read and understood by persons not skilled in law or versed in subtleties of interpretation, any omission or imperfection of expression should be repaired by amendment rather than by implying into it provisions which are not clearly expressed by its language." I can find no authority in the guideline that would allow me to "interpret" an award on the basis of customs and practices resulting in procedures having been observed that are not even remotely authorised by the award itself. Moreover the Fire Commissioner's conclusion that as shift workers are rostered to work over every day of the week, a day's work is therefore ascertainable by dividing the weekly rate by 7, is simply not supportable. The award clearly states that a week's work shall comprise 40 hours plus 2 additional hours: all of which are to be paid for at a loaded rate. The additional 2 hours are not regarded as overtime. When regard is had for the actual award requirements regarding shift work, it is obvious no support whatever can be found for the notion of a 7-day week. Clause 6, on the other hand, stipulates that there should be a rotating roster of two 10-hour day shifts followed by two 14-hour night shifts, at the conclusion of which 4 days off must be allowed. Clause 5 required that shifts shall be worked in accordance with that roster and the duration of these shifts shall be of 10 or 14 hours, as the case may be. However it is quite impossible to work 42 hours per week without working 3 only 14-hour shifts. This would be a breach of the award. It is clear therefore that the award requirements regarding hours to be worked each week and the roster to be observed cannot be obeyed simultaneously. This may explain why the specific award provisions have been departed from over time. Mr Tomes' proposal that a day's pay should be calculated as one fifth of 40 hours or 42 hours has a certain logical attraction but likewise cannot be sustained by reasons of the language contained in the award. At best the divisor could be 4, but more likely 3, as no shift can be of lesser duration than 10 hours (4 x 10 = 40), nor more than 14 (3 x 14 = 42). It is aboundantly clear therefore that the current shift work requirements set out in Clauses 5 and 6 are incapable of sensible construction. It is not possible to work 42 hours each week in rotating shifts comprising two 10-hour day shifts and two 14-hour night shifts. This leads inescapably to the conclusion that there are obvious omissions from the award. These would clearly include references to averaging and a shift cycle. Faced with this dilemma I can only interpret the award as it now stands. I therefore answer the questions asked in the following way:
No other conclusion is possible. This finding gains a measure of support from Clause 5, Section I, of part I (Service Payments) which authorises payment of service pay on the basis of actual hours worked. But as the parties themselves have acknowledged different arrangements have been in operation for some years, it seems to me highly desirable that I refrain from now varying the award to make Clauses 5(a)(ii) and 6 compatible. Certain obvious deficiencies having been identified it would probably be better if the parties concerned were to now consider whether or not an application should be filed to repair the current award defects. If this were done it would obviate the potential for future allegations of award breach to be levelled at one party or the other.
L A Koerbin 28 January 1986 |