IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

REASONS FOR DECISION

APPEARANCES:

DATES AND PLACES OF HEARING:

17.04.86                          Hobart

This application by the Tasmanian Public Service Association seeks interpretation of sub-clause 3.4 (a) (iii) of Clause 10.B. of the General Conditions of Service Award1.

In particular the matter at issue is the meaning to be attributed to the term "double time and one half" where appearing in the relevant sub-clause which reads:

(a)    Other than Shift Workers -

(i) Monday to Friday inclusive - at the rate of time and one half of his normal salary rate for the first three hours, and double time thereafter;

(ii) Saturdays and Sundays - at the rate of double his normal salary rate for all time so worked;

(iii) Public Holidays - at the rate of double and one-half of his normal salary rate for all time so worked."

It was contended by the applicant that the interpretation put upon sub-placitum (iii) by the Director of Industrial Relations in a circular dated 26 February 1986, was wrong.

The relevant part of that circular reads:

[If this advice was intended to include shift workers it would be incorrect.]

The Association disagreed with this. It argued that in addition to the rate of double time and one half, an employee, directed to work on a public holiday should, for work done during what would otherwise have been normal working hours, be paid ordinary time - that being the rate payable for a public holiday in any case.

Thus it was submitted that if an employee's ordinary rate of pay was $10 per hour, for example, and he was directed to work 8 hours on a public holiday during what would otherwise have been normal working time, he should be paid overtime calculated as follows:

The Director of Industrial Relations refuted this. He maintained that the total payment due in those hypothetical circumstances would be:

$10 x 8 x 2.5 = $200 or 20 hours' pay.

He asserted no extra payment would be attracted just because the day in question might be a paid bank or public holiday.

Mr. Philp, for the Association, tendered a number of exhibits intended to guide the Commission in coming to what he hoped would be the same view as that postulated by the T.P.S.A. For the most part those exhibits indicated that in some awards of other state tribunals it was clear that for overtime worked on public holidays either double time and one half or double time and one half in addition to payment for the public holiday was authorised. In some cases the all up result would amount to 3-1/2 days' pay. In other cases it would total only 2-1/2 days' pay.

Mr. Pearce, on behalf of the Minister, then referred the Commission to roughly the same number of decisions of other tribunals, or text book references, that supported his view that the rate of compensation payable for work done during working hours on a public holiday was that indicated in the relevant provision - no more and no less.

The award in question does not contain a public holiday clause. It only includes provision for payment for overtime performed on public or bank holidays.

It is necessary therefore to examine the relevant provisions of the Bank Holidays Act 1919. This appears to provide authority for State employees and others to enjoy as non-working days certain days identified in that Act.

But I am of the opinion it is not necessary to extend consideration of the issues beyond the pages of this award in order to discover the answer to the question posed by the applicant.

It seems to me the sub-clause itself provides the solution in very clear terms.

The preamble to sub-placita (i), (ii) and (iii) and those sub-placita themselves make it clear that time worked as overtime:

(a) on Monday to Friday (and this of course must be outside normal working hours) attracts payment at the rate of time and one half at the employee's normal "salary rate" [per hour] for the first three hours' work and double the employee's normal "salary rate" [hourly rate] thereafter.

(b) on Saturdays and Sundays - being normal leisure days - "all time so worked must be paid for at double the employee's normal salary rate [hourly rate]".

(c) on public holidays the rate of payment prescribed is "double and one half of his normal salary rate [hourly rate] for all time so worked".

There then follows a proviso that authorises an optional mix of paid overtime plus time off in lieu for persons regularly required to work on public holidays. This option is given as an alternative to payment prescribed in sub-placitum (iii).

It reads in part:

However this proviso concludes with an interpretation of the intention of the option. It states:

It is unlikely in the extreme therefore that the award-maker would have intended that compensation payable for working overtime on public holidays should be any more or any less than at the rate stipulated in the sub-clause for all time so worked. Indeed had that been the case a lesser hourly rate would have been payable for overtime worked outside what would otherwise have been the normal spread of hours if that day had been an ordinary working day.

If time is worked it is paid for at the prescribed rate. If time is not worked on any day because it is a public or bank holiday and an employee is entitled to observe that day as a leisure day, an award or a statute will frequently stipulate that in those circumstances an employee will suffer no loss of pay for not being required to work on that day.

I am of the opinion that the two sets of circumstances are quite dissimilar. They cannot therefore be married to support the applicant's argument that in addition to the prescribed compensation for "all time so worked" on a public holiday an employee should then be compensated for time not worked (except of course in circumstances where only part of a public holiday is worked).

In fact my attention was not directed to, nor have I been able to discover, any authority in the Bank Holidays Act, the Clerical Officers Award (for example) or the State Services legislation that gives support to the proposition postulated by Mr. Philp, that there is, in any case, an inalienable right given to employees to receive payment for a bank or public holiday not worked. That is not to say no such provision exists. But in the absence of a suitably drawn public holidays clause in an award, such issues tend to become somewhat buried in obscurity and therefore difficult to identify in precise terms.

Nevertheless I am able to say without equivocation that unless an award or statute specifically provides for payment in addition to overtime worked during ordinary hours on a public or bank holiday, the intention of a public or bank holiday provision in an award is firstly to identify the days to be observed as such. Implicit in this, although it needs to be clearly stated, is the notion that there should be no loss of pay in circumstances where no work is required to be done on days nominated and observed as public or bank holidays.

Although the information provided by Mr Pearce was useful, I do not find it necessary to go to that material to decide the question asked by the Association. Clearly the relevant award provision itself answers the question.

Accordingly I declare that an employee, (who is not a shift worker) required to work overtime on a public or bank holiday is, subject to sub-paragraphs 3.6, 3.7 and 3.8 of Clause 10. B. of the General Conditions of Service Award, entitled to be paid for all work done on that day at a maximum rate of pay equal to 250 per cent of his ordinary hourly rate.

Where overtime is worked partly during what would otherwise be normal working hours, the maximum rate of payment for that overtime is 250 per cent of the employee's ordinary hourly rate for all work done.

Where no work is done during some or all of the period which would otherwise be normal working hours, it is assumed the doctrine of `no loss of pay for not being required to work' applies. In those circumstances payment at the maximum rate of 100 per cent of the employee's ordinary time rate would apply for those hours in respect of which no work is required to be done.

As I consider the relevant award provision is unambiguous, no remedial variation is necessary.

The award is interpreted accordingly.

L. A. Koerbin
PRESIDENT

1 S085