T628
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
Background: This application by the Hospital Employees' Federation of Australia, Tasmania No. 2 Branch, sought interpretation of the Hospitals Award, Part II (Conditions), in relation to Cup Day. In his opening submission, Mr. Holden, appearing for the H.E.F. Tasmania No. 2 Branch, drew the Commission's attention to an apparent anomaly seen to exist between Section I and Section III of the award in relation to the respective "Show Day" definitions. The definitions in question are contained in: Section I (Staff Employed in Private Hospitals) - Clause 8. Holidays and Section III (Employees in Establishments Providing Care for the Aged) - Clause 13. Holidays He submitted that although the clauses are generally prescribed in similar terms, Clause 8. specifies an entitlement to 11 paid public holidays per year and Clause 13. to 11 1/2. He observed that as the actual days defined in relation to public holidays in each clause totalled 11 1/2 in number, there obviously existed the possibility of a drafting error in Clause 8. Mr. Fitzgerald, appearing for the Tasmanian Chamber of Industries, submitted that the reference to the number of public holidays stipulated in each definition did not, in his view, assist Mr. Holden's case. He said that in the event of Anzac Day falling on a Saturday or Sunday the total number of holidays could be reduced to 10 or 10 1/2 days. A similar provision appears in many of the Commission's awards. It was, he asserted, a nonsensical inclusion in any case and could not be relied upon to substantiate the applicant's interpretation of the matters at issue. In the event, the actual application prosecuted sought interpretation of Clause 13 (Holidays) appearing in Section III of Part II of the award, as it relates to Cup Day. The application stated in part: "Certain establishments in the Ulverstone 'area' are not prepared to accept that the Ulverstone Trotting Club Mid-Week Meeting should be recognised as a Cup Day, and accordingly employees in the Ulverstone area will not receive the same number of public holidays as employees in other areas of the State. The Ulverstone Trotting Club Mid-Week Meeting is a recognised Bank Holiday and is due to occur on 6th January 1987 ... Mr. Holden submitted that a general nexus existed between the Public Hospitals Award1 and the Private Hospitals Award2. This was established by a Full Bench in Matter T.10 of 1985. Currently employees in public hospitals enjoy a paid holiday on a Cup Day. Mr. Fitzgerald acknowledged that a general nexus existed between the two awards in relation to wage rates and conditions. However he asserted that it was not a precise nexus as such. Moreover, the day claimed by Mr. Holden as "Cup Day" was nothing of the sort. Instead he argued it should be regarded as a day "other than a Cup Day". Clause 13 reads: "13. HOLIDAYS (a) All employees other than shiftworkers, casual employees and part-time employees engaged to work less than 20 hours per week shall be entitled to the following holidays without deduction from their weekly wages - Christmas Day, Boxing Day, New Year's Day, Australia Day, Cup Day (half day), Hobart Regatta Day (south of Oatlands), Eight Hours' Day, Good Friday, Easter Monday, Anzac Day, Queen's Birthday, Show Day (as defined) and the first Monday in November in those districts where Hobart Regatta Day is not observed, or such other day as may be observed in the locality in lieu of any of the aforementioned holidays. (b) Payment for the holidays mentioned in sub-clause (a) which are taken and not worked, shall be at the normal rate of pay which would have applied to the employees concerned, when if it were not for such holiday he or she had been at work. (c) Where an employee who is entitled to holidays in accordance with sub-clause (a) hereof is required to work on any of the holidays mentioned in that sub-clause, either for part or the whole of such day she shall in the case of a shift worker be paid at the rate prescribed in Clause 23 (Shiftwork) hereof, and in the case of a day worker be paid at the overtime rate prescribed in subclause (a), Clause 18 (Overtime) hereof. (d) 'Show Day' means not more than one local show day observed on an employee's ordinary working day, other than a Saturday or a Sunday, in the city, town or district in which the employee is employed; or such other day which, in the absence of such a local show day, is agreed on by the employee and the employer, therefore making a total of 11 1/2 paid public holidays per year. (e) An employee required to work on any of the holidays mentioned in sub-clause (a), where such holiday applies at his or her normal place of work, but because his or her duties require the employee to work at a place where the holiday does not apply, shall have the time in lieu of such holiday added to his or her annual leave entitlement." Mr. Holden informed the Commission that the current situation in the Ulverstone area is that public hospital employees are receiving 11 1/2 public holidays per annum. 'Ulverstone Mid-Week Trotting Meeting', he said, is a gazetted holiday observed in the area, generally in lieu of Cup Day. But he alleged that there are employers in private nursing homes in the area who are not allowing their employees all the public holidays specified in Clause 13. Mr. Heapy, representing the Royal Australian Nursing Federation, Tasmanian Branch, referred the Commission to the Bank Holidays Act 1919. This was recently amended to incorporate the transitory provisions of the Industrial Relations Act 1984. He cited Section 11 of the Bank Holidays Act as relevant to Clause 13 of Section III of the Hospitals Award. He referred the Commission to the following excerpts from the Act: "When in any Tasmanian Industrial Commission determination or industrial agreement or in any agreement relating to work made either before or after the commencement of this Act, reference is made to a public holiday or a bank holiday, such reference shall be deemed to relate to the day on which such holidays are to be observed." and "Where in any Tasmanian Industrial Commission determination or industrial agreement or in any agreement relating to work made either before or after the commencement of this Act, any reference made to a day observed in lieu of* or in substitution for any bank holiday (whether such bank holiday is therein referred to as a holiday) or a public holiday, or, in fact, a bank holiday or a day on which the bank holiday, whether such holiday therein referred to as a holiday, public holiday or bank holiday is generally or publicly observed either throughout the State or in any locality, such reference shall* be read and construed as reference to the day on which such bank holiday is publicly observed." Transcript, p.16 Mr. Fitzgerald submitted that not only the application but also the submissions made by both Mr. Holden and Mr. Heapy were totally misdirected. He believed they were based solely on merit in seeking to extend the number of public holidays available to private hospital employees in the Ulverstone area. The application, he said, would have been more appropriate had it sought to vary the award. In this regard he referred to a recently published decision of the Commission relating to payment of part-time and casual employees under the award in question,3 in which the Commission said: "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 by agreement or by application to vary. Interpretations frequently create disputes but rarely settle them." Mr. Fitzgerald submitted that the view then expressed by the Commission is apposite to the present application. He then referred to the significance that Mr. Holden had placed upon the last part of the clause in dispute; and in particular the words: " ... or such other day as may be observed in the locality in lieu of any of the aforementioned holidays." The suggestion that Ulverstone Mid-Week Trotting Day is awarded in lieu of Cup Day, Mr. Fitzgerald said, had no basis whatsoever. He said that to his knowledge 'Cup Days' are recognized as those so named, which included the Hobart, Launceston and Devonport Cups. Furthermore, he had received advice from the Tasmanian Racing Club that they believed 'Cup Day' is a special premier event of the racing calendar year, distinguishable from any other racing meeting which is conducted during the year. Therefore he believed it would be difficult to construe a mid-week trotting meeting to be of the same calibre as a Cup meeting. Such interpretation of the words 'or such other day as may be observed in the locality in lieu of any of the aforementioned holidays', he argued, could have application in circumstances where Boxing Day or another nominated day fell on a Saturday, and in such an event a day in lieu could be observed as a holiday - the following Monday, for example. Mr. Fitzgerald alleged that the only declaration open to the Commission would be to determine that the Ulverstone Trotting Club Mid-Week meeting is not a holiday as described within the award as 'cup day'. Finding: This is but another example of how disputes can arise in the work-place if proper care and attention is not given to drafting an award provision. Awards are instruments setting out contractual rights and obligations of employees and employers. They are drawn up and promulgated under statutory authority and when made are enforceable at law. It is essential therefore that an award made in this way be capable of being understood by those persons upon whom it is binding. To achieve this objective the draftsman must exercise due care and attention in framing a particular provision. If this is done the language finally selected by him should properly reflect the decision of the tribunal or the agreement of the parties. In the instant case the public holiday provision set out in Section III of Part II of the award makes it clear that it applies to all employees. It then identifies each holiday to be enjoyed by persons other than shift workers, or casual or part-time employees working less than 20 hours per week. The award nominates the following holidays: 1. Christmas Day The award also states that the first Monday in November is to be substituted for Hobart Regatta Day in those districts where Regatta Day is not observed. Then follows a disjunction, expressed as follows: "... or such other day as may be observed in the locality in lieu of any* of the aforementioned holidays." * Emphasis mine Show Day is defined to mean: "'Show Day' means not more than one local show day observed on an employee's ordinary working day, other than a Saturday or a Sunday, in the city, town or district in which the employee is employed; or such other day which, in the absence of such a local show day, is agreed on by the employee and the employer, therefore making a total of 11 1/2 paid public holidays per year." This holiday provision, when read in conjunction with the definition of Show Day, clearly intends that all employees (other than shift workers, casual and part-time employees working less than 20 hours per week) are to enjoy 11 1/2 days per annum without deduction of pay through not being required to work on those days. There are no other exceptions or exclusions. Mr. Fitzgerald pointed out that some years Anzac Day falls on a Saturday or a Sunday and in those circumstances employees enjoy only 10 1/2 days. This assertion is probably correct although not relevant. Anzac Day would be "lost" only when, by accident of the calendar, it happened to fall on a weekend. However, there remains in the holiday clause itself provision for substitution of any of the nominated holidays. This would of course include Anzac Day if, in any locality, another day was observed in lieu. Indeed, and by way of example, the Miscellaneous Workers Award4 makes specific provision for another working day to be substituted for a public holiday that falls on a Saturday or a Sunday. However that may be, there is no question at all that all those employees subject to this award who are entitled to enjoy paid public holidays must be allowed a total of 11 1/2 days per annum (or 10 1/2 days when Anzac Day falls on a weekend, if that be custom and practice, although not prescribed in that way). There are no discernible exceptions other than those stipulated in the holiday clause itself. Thus the applicant's question of whether or not persons subject to this award who work in the Ulverstone Municipality are entitled to Cup Day, must be answered in the affirmative. As there are numbers of Cup Days occurring each year in different localities, it seems to me that the award must be interpreted to mean the Cup Day generally observed in that locality, or nearest that locality; or perhaps by agreement, some other day. Unfortunately the award is deficient in this regard. Moreover it does not stipulate that Hobart Cup Day shall not be observed in Launceston, Devonport or Burnie for example. Similarly it does not provide for residents of, say, Devonport to observe the Devonport Cup in lieu of Hobart or Launceston Cup. The fact that the local gala race day (usually referred to as Cup Day) is taken in lieu of (say) Hobart Cup, seems to me to be consistent with the concluding words of the clause "... or such other day as may be observed in the locality in lieu of any of the aforementioned holidays". On the balance of probabilities I would consider it reasonable for Ulverstone residents to observe the Ulverstone Trotting Club Mid-Week Meeting as the local Cup Day. This is a gazetted bank holiday from 11 a.m., and applies to the Ulverstone Municipality. The fact that it is a gazetted bank half-holiday suggests that this particular race meeting takes on all the characteristics of a gala horse race. Moreover, this day is observed as "Cup Day" by public hospital employees and other State employees working in the Ulverstone Municipality. I cannot accept Mr. Fitzgerald's argument that because the mid-week trotting meeting is not regarded as an important event in the Tasmanian Racing Calendar it cannot therefore be regarded as a Cup Day. The award requires no such test to be applied. If this was to be the case many of the provincial Show Days would also have to be excluded because they too would not compare with the Hobart and Launceston Shows. The award is framed in such away as to leave little doubt that the standard number of holidays to be observed should total 11 1/2 per annum, and that this number may be achieved by substitution of any day should that be necessary to make up the required total. Anzac Day was mentioned as an exception as it is observed only on the twenty-fifth day of April regardless of the day of the week upon which it falls. This may be true. But even that so-called exception is not to be discovered from the framework of the clause itself. And it is not permissible to apply to an award provision a construction that is simply not possible from the language used. Therefore, in accordance with the requirements of Section 43(1)(a) of the Act, I declare that on the proper construction of Clause 13 of Section III of Part II of the Hospitals Award, all employees (other than shift workers, casual employees and part-time employees engaged to work less than 20 hours per week) who are employed in establishments providing care for aged persons, are entitled to one half-day "Cup Day holiday" per annum. Where, as in this case, no "Cup Day" as such occurs in the Ulverstone Municipality it would not be inconsistent with this clause for the gazetted bank half-holiday to mark the occasion of the Ulverstone Trotting Club Mid-Week Meeting to be observed in lieu of the prescribed "Cup Day" half holiday. The award is therefore interpreted accordingly with effect from today's date. Note: This declaration relates only to employees who work in the Ulverstone Municipality. Amore complex situation would obviously arise in localities such as Oatlands or Swansea where a whole day holiday is gazetted for Hobart Cup. The same would apply to many areas falling within the boundaries nominated for observance of the Launceston Cup.
L.A. Koerbin 1 P037
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