T384
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
REASONS FOR DECISION APPEARANCES:
DATE AND PLACE OF HEARING: 27.5.86 Hobart
This application for interpretation was lodged by the State Fire Commissioner on 22 April 1986. By its terms it sought an interpretation of sub-clause (b)(ii) of Clause 10 (Annual Leave) in Part II of Section I of the Fire Brigades Award. It referred specifically to the quantum of consecutive days to be added by award prescription to a shift worker's annual leave on account of public holidays, whether worked or not worked. The application was drawn in the following terms:
It was argued by Mr. Crew that a shift worker's total leave entitlement in a full year should be calculated as follows:
Mrs. Herbert, representing the United Fire Fighters' Union, disagreed with this calculation. She submitted that the 11 days' credit for public holidays should be extrapolated to 15 to take account of weekends. Mrs Herbert explained the position thus:
The relevant award prescriptions are framed as follows:
When read in conjunction with Clause 9 (a) (Holidays With Pay), a literal interpretation applied to sub-placitum (ii) of sub-clause (b) of Clause 10, would produce an addition of 11 days to the normal shift worker's entitlement of 35 consecutive days. It was this rationale that led to the Fire Commissioner's assertion that the total annual shift worker entitlement should be 46 consecutive days. However, in my opinion, one must look beyond the words used in sub-placitum (ii) in order to understand fully the intention of the award maker. Clause 9 (Holidays With Pay) commences with the following proclamation:
And then follows a list of holidays to be allowed. Clause 10 (b), it will be noted, is entitled "Annual Leave Exclusive* of Public Holidays". *(Emphasis mine) Sub-placitum (i) refers to day workers and provides that annual leave for day workers shall be exclusive of any of the holidays mentioned in Clause 9. It then goes on to say ... "if any such holiday falls within an employee's period of annual leave and is observed on a day which, in the case of that employee would have been an ordinary working day, there shall be added to the period of annual leave, time equivalent to the ordinary time which the employee would have worked if such day had not been a holiday". Sub-placitum (ii) of the clause is headed "Shiftworkers" and states:
The need for different prescriptions for shift and day workers is clear. As shift workers usually work 7-day rosters, every day is, for some shift worker, a rostered working day. For day workers each public holiday that falls on a week day is a paid non-working day. "Day" in this sense is reckoned as one-fifth of an ordinary week's pay. Therefore, in a full year, assuming all public holidays fell on week days, day workers would enjoy 11 paid leisure days. Thus where annual leave is "extended" by the number of public holidays occurring during the period of annual leave, the extension must be in terms of working days - not consecutive days. To illustrate this point by example: Assume a day worker took annual leave over the Christmas-New Year period and thereby became entitled to 3 extra days for Christmas Day, New Year's Day and Boxing Day. If his ordinary leave period concluded on a Thursday, the 3-day extension for public holidays would translate to 5 consecutive days. These would be Friday (a paid day), Saturday and Sunday (non-paid days), plus Monday and Tuesday of the following week (paid days). Applying the same reasoning to shift workers, it is clear that the exercise must require that 11 working days be aggregated and regarded as a notional extension to the 5 weeks' annual leave allowed by the award. Such an extension would result in an additional 15 consecutive days being added to the leave period. The question asked by the Commissioner can therefore be answered in this way: A shift worker, after 12 months' continuous service, is entitled to have his period of 35 consecutive days' annual leave extended by a further 15 consecutive days (but not more than 11 working days). This extension, which is not extra annual leave, is in lieu of either the non-observance of, or non-penalty payment for working on, the public holidays referred to in Clause 9 (a) of the award. For the purpose of clarification I would add the following cautionary observation. Exhibit H.2 tendered by Mrs. Herbert disclosed that shift rosters within the fire service require employees to work 4 days on and 4 days off regularly. These are not standard days of 8 hours and cannot be regarded as such for the purposes of this interpretation. In short, a 15-day extension of annual leave would mean just that: The fifteen consecutive days added attract payment according to roster. Paid days would be those that would have been rostered days had the employee not been on leave at the time. During that 15-day extension, no payment should be made for those days that are, according to the roster, rostered days off. In other words, payment as per roster for any working day occurring during that 15 consecutive days, regardless of the number of working days occurring during that period. Actual payment could depend upon a number of factors. It would be largely influenced by the day of the week and the point in the roster at which the period of extended leave fell. As the roster now stands, a 15-day extension could mean payment for an additional 96 hours, or it could be only 82 hours. Other possible combinations may produce different results. But that does not bear upon the intention of the award which is as stated above, namely 11 public holidays aggregated equals 15 consecutive rostered days - no more and no less.
L. A. Koerbin |