T3865
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Confederation of Industries NURSING HOMES AWARD
Interpretation - Definitions Clause - "years of service" REASONS FOR DECISION In this matter the Tasmanian Confederation of Industries sought a declaration pursuant to Section 43 of the Industrial Relations Act 1984 of the meaning of the term "years of service" in relation to increments available to certain classifications of employees covered by the Nursing Homes Award. The specific classifications referred to were classification 3. Nursing Assistant; classification 4. Therapy Assistant; and classification 7. Wardsmaid, Kitchen Maid, Theatremaid, Housemaid and Waitress, although most of the 24 classifications contained in the award had an incremental range based on years of service. As an example, a Nursing Assistant of Clause 8, Wage Rates, subdivision 2 - Ancillary Service and Clerical Employees, is entitled to a wage rate per week as follows:
The Commission was informed that an interpretation had become necessary because the Corumbene Nursing Home for the Aged Inc. had refused to accept a claim lodged with it by the Department of Employment, Industrial Relations and Training in respect of entitlements for certain employees engaged in the above classifications. The employer disagreed with the Department's method of calculating a year of service and the amount of working time necessary to attract the next increment. Mr. Foley, representing the Secretary of the Department, explained that the Department had taken the view that a "year of service" was a calendar year of 365 days, not 365 actual working days. However, the Commission was advised that the Department would refrain from further processing the claim pending the outcome of this application and would have regard to whatever the Commission determined. For the employer, Mr. Targett informed the Commission that until 29 January 1992, Division B of the Hospitals Award had applied to nursing homes. As from that date, the Nursing Homes Award, which had been established in terms of title and scope on 18 October 1991, had been varied to include wages and conditions taken from the Hospitals Award. With particular reference to this matter, the definitions and classifications transferred to the Nursing Homes Award from the Hospitals Award were identical. In order to determine which incremental level should apply to an employee in the classifications in question, Mr. Targett submitted that it was necessary to refer to the Definitions Clause in the award, specifically to the definition of "years of service". "`Years of service' shall mean 365 days of employment in an approved establishment providing care for aged persons, including rostered days off, public holidays, paid annual leave and paid sick leave." The employer addressed the definition in three parts, the first being the words "shall mean 365 days of employment". It was submitted that 365 days of employment meant 365 working days - a person was employed on a day on which they worked; if they were not working they were not employed on that day. Mr. Targett considered the definition was clear, precise and unambiguous and, for the purposes of interpretation, was capable of being construed in an intelligible way. There was no justification for attempting to read into those words a meaning different from their ordinary English usage. The second part of the definition was "in an approved establishment providing care for aged persons" which, Mr. Targett suggested, was of no direct consequence in this matter. The third and last part was "including rostered days off, public holidays, paid annual leave and paid sick leave". The employer considered there was no great difference of opinion on these words and the days mentioned were included for the purpose of ensuring that paid absences were regarded as days worked. To demonstrate how the employer wished to determine the incremental level, Mr. Targett chose, as an example, a part-time employee regularly working 3 days per week. "MR. TARGETT: In putting forward a simple mathematical example, if we take the 365 days and we assume that the person had five paid sick days, they would be counted as days of employment. If they took 4 weeks annual leave, bearing in mind I'm using the 3-day per week part-timer, that would be 12 working days, 3 days for 4 weeks. If we assumed that seven public holidays occurred on the days on which they were working, then that would be an additional 7 working days. If they are then subtracted from the 365, that then requires the employee to work 341 days to move up the incremental scale. 365 days at, say, 3 days per week in this particular example would require the employee to work 121.67 weeks to move up the incremental scale, or 2.34 years." Transcript, p.11 In response to questions, Mr. Targett indicated that the disputed claims were in respect of part-time employees only. It appeared that in some establishments full-time employees were advanced on the incremental scale, within their classification after twelve months' service. However this practice was regarded as being a benefit in excess of the award. The employer requested that a declaration be made to clarify the issue and, because the award was being reviewed, that no variation to the award for the purpose of remedying any perceived defect be made. The HSUA, in contesting the construction being put on the definition by the employer, indicated its principal position was that the application of the provision should be the same for both part-time and full-time employees. That is, that part-time employees should be advanced on the incremental scale on the anniversary of the commencement of their employment. The union's secondary position was that if the employers wished to adopt the practice put forward by Mr. Targett they should seek to vary the award accordingly. Mr. Warwick, for the union, argued that the employer's application of the definition was inconsistent with the rest of the award, because if it were to be applied in the manner suggested by the employer, full-time employees would have to work on 365 days before becoming entitled to an increment. It was the union's position that it was illogical to suggest that the award would require a full-time employee to perform 365 days of work before becoming entitled to an increment. Such a proposition was inconsistent with the ordinary meaning of the words in the award and with what the words "year of service" and "employment" normally were considered to mean. In addition, the employers' version of the word employment would lead to the conclusion that an individual's employment would cease on every day off, such as a weekend, not referred to in the definition. The union regarded "employment" as being a contract of employment which existed until resignation or dismissal. Full-time workers in the industry were granted increments on the anniversary of their employment and, Mr. Warwick alleged, in many areas the same custom and practice applied in respect of part-time employees. Mr. Warwick conceded that if the employer's version was accepted it would have to apply to full-time as well as part-time employees. It was claimed that the proposition advanced by the employer was too literal an adherence to the strict technical meaning of the words. The union maintained that such an approach was not consistent with the general construction of the award. It is clear that there are drafting problems in the definition in question which create difficulties for those required to administer the award. For example, the omission of "weekends" from the calculation of the number of days of employment to make up a year of service was described by the employer's representative as "perhaps a drafting error" and I am inclined to agree with Mr. Targett on this point. Although, having regard to the period during which the provision must have been drafted, it is possible that "weekends" were not included because at that time public sector employees were deemed to be employed for 365 days a year. Public hospitals at the time were subject to the provisions of the Hospitals Award under the jurisdiction of the Wages Boards system. Having said that it is important to note that Clause 39 - Sick Leave, at subclause (f) provides, in almost identical terms to the years of service definition, that "a year for the purposes of this clause shall mean 365 days' employment in an approved licensed establishment providing care for the aged including rostered days off, public holidays, paid annual leave and paid sick leave". It follows that if the employer's version of what constitutes a year of service, for the purpose of determining increments, was applied in relation to sick leave, a full-time employee would have to serve an additional 104 working days before becoming entitled to a full year's quantum of sick leave. I agree that the employer's approach on this matter is too literal and I accept the union's submission that the employers have not had sufficient regard to the manner in which the award, in general, has been constructed. The same criticisms are capable of being levelled at the union's approach and also that of the Department. It would appear that none of the parties has had regard for the practices applying in other areas covered by similar provisions. For example, it is generally accepted that a year of service is a period of twelve months employment with an employer, not simply 365 working days. In areas covered by other awards containing the disputed definition, part-time employees are awarded an increment when their work time equals the time a full-time employee works during a normal calendar year. This is not to say that the parties should disregard award provisions, but in this case the provision is quite out of context with the award as a whole and it is obvious that it needs correction. In all the circumstances I consider the definition is anachronistic to the point that it is incapable of meaningful interpretation. It is therefore recommended that the parties immediately commence to negotiate an appropriate amendment to the award, the terms of which should be used to settle the outstanding claims currently in the hands of the Department of Employment, Industrial Relations and Training.
F. D. Westwood Appearances: Date and Place of Hearing: |