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T530

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

T.530 of 1986 IN THE MATTER OF an application by the Hospital Employees' Federation of Australia, Tasmania No. 1 Branch for interpretation of the HOSPITALS AWARD

Re payment of part-time and casual employees

 

PRESIDENT 28 January 1987

INTERPRETATION

APPEARANCES:
For the Hospital Employees' Federation
of Australia, Tasmania No. 1
and No. 2 Branches
- Mr. P. Imlach
For the Royal Australian Nursing
Federation, Tasmanian Branch
- Mr. D. Heapy
For the Tasmanian Chamber
of Industries
- Mr. W. Fitzgerald

DATE AND PLACE OF HEARING:

10.12.86                      Hobart

 

This is an application by the Hospital Employees' Federation of Australia Tasmania No. 1 Branch for interpretation of Section III of Part II of the Hospitals Award. The requested interpretation is directed towards obtaining from the Commission a declaration that part-time and casual employees are entitled to be paid shift and other penalty additions on loaded hourly rates.

It was conceded by the applicant that the overtime rate of time-and-one-half or double time, as the case may be, is to be paid for on the basis of the ordinary overtime rate payable to full-time employees. It was also acknowledged that the award provides for work done on public holidays to attract an hourly rate ascertained by dividing the weekly rate by 40 and multiplying the result by a factor of 1.7 of the "relevant award rate" (as defined).

But it was argued that for work done on ordinary rostered days the appropriate rate would be calculated as follows:

A.
Week days

B.
Saturdays

C.
Sundays

D.
Afternoon and Night Shift

Relevant award rate plus 20% Relevant award rate plus 20% multiplied by 1.5 Relevant award rate plus 20% multiplied by 2 Relevant award rate plus 20%, multiplied by 1.15 - week days only

No 15% extra for Saturdays, Sundays or public holidays

"Relevant award rate" is defined in Clause 34 (t):

"The rate specified for the appropriate year of service applicable to the employee is the appropriate classification in Part I of this award, excluding all allowances, loadings1 etc."

Thus, in each of the cases cited above, if the relevant award hourly rate was, say, $10, the rate of payment to a part-time or casual worker employed for less than 20 hours per week would be A. $12, B. $18, C. $24 and D. $13.80.

Mr. Fitzgerald, representing the Tasmanian Chamber of Industries, disagreed with the applicant's interpretation of the various provisions set out in Section III of Part II.

He submitted that for day work on week days the base hourly rate for the calculation of shift penalties would be the "relevant award rate" (as defined) being the base rate applicable to a full-time employee.

He supported this assertion with a number of exhibits including a decision of the (then) Chairman of Industrial Boards. This decision referred to the rate of payment to be made for work done on public holidays. This was subsequently determined at the relevant award rate adjusted by a factor of 1.7 - i.e. base rate plus 50%, plus 20% of the base rate = 1.7.

This figure was reached on the assumption that a part-time or casual employee working less than 20 hours would, by reason of a 20% loading for ordinary hours worked in a 12-month period, derive by this method compensation for public holidays, sick leave and annual leave. Therefore if a part-time day worker was required to work on a non-paid public holiday he could only hope to attract a further payment of 1.5 times the relevant award rate (time and a half), plus 20%.

[Note: as full-time shift workers are only entitled to double time on public holidays, one would have assumed that the multiplier would be 1.2 - i.e. the equivalent of double the relevant award rate plus 20%.]

In order to avoid what would inevitably become a detailed lucubration consequent on examination of all the award provisions that need to be considered to discover the intention of the award maker, it might be appropriate to restate now an opinion expressed in T.91 of 1985. The view postulated by the Commission at that time was referred to by Mr. Fitzgerald in the present case. It is repeated for the guidance of parties to these proceedings. It may also assist others who may be contemplating lodging applications for interpretation in the future.

In referring to the ground rules to be applied in dealing with complex matters of interpretation, the Commission said:

"Speaking generally, unless the drafting is such as to lead to no other conclusion, the [interpretation] rules to be followed should not, ipso facto, become the absolute authority for construing a provision in such a way as to confer extreme advantage or disadvantage on an employee. One should also be satisfied that the result is not otherwise out of step with the general provisions of the award as a whole."

T.91 of 1985

It seems to me that this case might be regarded as an example of what the Commission had in mind when framing the foregoing additional "guideline.

The current award is a laborious instrument and is comprised of two major parts. Part I refers to wage rates and Part II sets out employment conditions. However each part is also subdivided into four sections. Each section sets out wage rates and conditions for persons employed in Private Hospitals (Section I), Public Hospitals (Section II), establishments providing care for aged persons (Section III) and Blood Bank Services (Section IV).

The requested interpretation relates only to Section III (Employees in Establishments providing Care for Aged Persons). However many of the provisions to be interpreted are common to other sections. Nevertheless care should be exercised in applying this interpretation outside the section under consideration. By way of illustration, persons working less than full time or 20 hours per week are referred to as part-time or casuals in Sections I, II and III. But in Section IV they have been ascribed the de facto designation of "intermittent employees". For this reason, if for no other, it must be made clear that the Commission has applied its mind only to Section III of the award. And as Section III in Parts I and II collectively deals with both wage rates and award conditions, when read together they could be regarded as a separate award for the purposes of this exercise.

Having therefore heard, at length, Mr. Imlach, Mr. Heapy and Mr. Fitzgerald, I am of the opinion that it is necessary to consider individually and collectively Clauses 2 (f), 13, 18 (vii), 19 (b), (c), (d), (e) and (f), 23 (c) (i), 24, 34 (k) and (t).

Among other things all of these provisions lead to the conclusion that the following conditions of employment apply:-

To full-time shift workers -

    Annual leave of 5 weeks, 11 ½ public holidays, 28 days' sick leave, 15% premium for afternoon and night shifts on week days, 50% premium for Saturday work, 100% premium for Sunday and public holiday work, and payment as per roster for periods of annual leave.

To part-time employees and casual employees working less than 20 hours -

    No annual leave, no public holidays. No sick leave entitlement is provided as such. In lieu thereof a 20% loading on the full-time hourly rate is provided. Shift premiums are payable on week days and work done by part-time or casual employees on weekends and holidays carries the same penalty as that prescribed for full-time workers.

All employees are paid overtime at the base or "relevant award rate".

It is clear therefore that the award maker, in prescribing a fixed 20% loading for part-time or casual employees who are excluded from annual leave, public holidays and sick leave, intended that, mutatis mutandis, each class of employee (full-time, part-time or casual) should be treated as similarly as possible. This is particularly evident insofar as annual leave, public holidays and sick leave entitlements are concerned, albeit those benefits are prescribed in different ways.

The award also stipulates that part-time shift work employees shall enjoy afternoon and night shift additions as well as weekend and public holiday penalty rates. Sub-placitum (h) of Clause 23 states in part:

"Part time shift workers shall be entitled to the provisions of this clause [Shift Work] with the following exceptions:-

Rosters - Work by choice or mutual agreement outside rostered shifts shall
             not be subject to penalty (other than shift, weekend and public
             holiday penalty) provided that any time worked in excess of 8 hours
             per day shall be paid at double time.

      Where an employee is instructed to work shifts other than in accordance with this clause she shall be entitled to the penalty payments prescribed by this clause."

Nevertheless, overtime payments must be calculated at the unloaded or "relevant award rate". Curiously, the explanatory note contained in Clause 19 (b) of the award makes no reference to the fact that the 20% loading also contains a component to compensate part-time and casual employees for shift, weekend and holiday premiums that apply to full-time employees who are paid in accordance with a projected roster when proceeding on annual leave [sub-placitum (f) of Clause 2 - Annual Leave refers].

Moreover, a full-time shift worker is, by award, presently entitled to the following:

  5 weeks' annual leave (25 working days)
2.3 weeks' public holiday (11 ½ working days)
5.6 weeks' sick leave (28 working days)
_________
Total: 12.9 weeks

Expressed as a percentage over 52, this represents 24.8%. But in fact if, in a 12-month period, all annual leave, public holidays and sick leave was taken, a full-time employee would work only 39.1 weeks and be paid for 52. Therefore the equation could be expressed thus:

12.9
39.1 = 33% (rounded)

The award appears to allow only a 20% premium to part-time and casual employees regardless of whether they are employed as shift or day workers.

From the language used it is difficult to discover how it would be a correct application of the guidelines to interpret the award in such a way as to hold that the 20% loading is also intended to compensate part-time and casual workers for the annual leave payment as per projected roster add-on additions that would have been attracted had those persons been employed on a full-time basis.

Furthermore, it cannot be deduced from the drafting used that afternoon and night shift penalties should be calculated according to the relevant award rate in order to avoid double counting.

Therefore, assuming that a part-time or casual employee would also have a prima facie right to notional payment in accordance with his projected roster for the annual leave component included in the 20% loading, it is obvious that Mr. Fitzgerald's argument that shift penalties should be calculated at the relevant award rate cannot be sustained. The existing award provisions just do not support this conclusion. Furthermore, this proposition cannot be sustained when regard is had for the whole framework of Section III. Likewise the same conclusion must be drawn from a considered study of the Saturday and Sunday shift penalty provisions.

Accordingly, I conclude that part-time and casual shift workers working less than 20 hours per week are entitled to be paid afternoon and night shift premiums on the loaded rate. I am also satisfied that the award provides no impediment to payment at the "loaded rate" for Saturday and Sunday rostered shifts provided those shifts are not in the nature of overtime.

The award stands alone insofar as overtime and public holiday payments are concerned. In each case the relevant award rate is the stipulated basis for payment although there is a 20% add on for public holiday work.

The conclusions I have drawn appear to accord with those postulated by Mr. Imlach and Mr. Heapy. It remains for me to indicate that I can find no support for the proposition that there is to be found in the award authority to pay a part-time or casual employee at a lesser rate than the relevant award prescribed plus 20%. To put it another way, except where otherwise stated the minimum ordinary time rate is ascertained by multiplying the base award rate by 20%.

I do not propose making an order at this stage unless requested to do so pursuant to Section 43 (4) of the Act. However, I should indicate that in the event such a request is forthcoming the order shall be given prospective and not retrospective effect.

My own view is that interpretations achieve little because they are not based upon merit. This award is notorious for its loose drafting. These defects should be remedied either by agreement or by application to vary. Interpretations frequently create disputes but rarely settle them.

For that reason it is confidently expected that the parties to this application will heed this counselling and in future refrain from seeking interpretation of an award so patently in need of redrafting.

 

L.A. Koerbin
PRESIDENT

1 Emphasis mine