T91
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
REASONS FOR DECISION APPEARANCES:
This application for interpretation comes before the Commission pursuant to Section 43 of the Act. The application was filed by the No. 1 Branch of the Hospital Employees' Federation of Australia on 29 March 1985 and seeks confirmation of the Federation's contention that -
The request for interpretation was prompted by the circumstance of a member of the No. 1 Branch employed at Strathaven Home for the Aged claiming to have been paid incorrectly during a period of approved leave. On the information presented during the hearing, it appears the member embarked upon a period of leave embracing in all 36½ working days. The person concerned, being an acknowledged shift worker, was granted leave on the following basis -
Documentary evidence tendered by Mr Imlach during the hearing clearly demonstrated that the question of pay entitlement for shift workers proceeding on annual leave has, at least since 1981, been the subject of considerable controversy. Moreover, the Department of Labour and Industry, in carrying out its statutory policing role has, it would appear, itself experienced some difficulty in making up its mind exactly what should be the correct payment in the circumstances. For example, in 1981 the Department interpreted the award to mean that a shift worker proceeding on approved leave of 36½ working days would be entitled to the following:-
In addition there was tendered in evidence a copy of a letter from the Department to the Mary Ogilvy Home Society purporting to declare that the award should be applied in a certain way. However, notwithstanding that alleged interpretation the Secretary then indicated he was prepared to approve a lesser amount be paid provided a disputed matter was settled within two weeks. While that interpretation was only incidental to this case, I must none the less express concern that a body charged with the responsibility of ensuring compliance with awards should, for reasons of expediency, thereupon authorise a form of "contracting out". Other copies of correspondence to and from the Department of Labour and Industry were tendered. A more recent letter qualified the 1981 advice by reducing the leave allowance additional payment for shift premiums from 36 ½ days to 25 days. It is obvious therefore the award needs to be interpreted definitively if further misunderstanding and disputation is to be avoided. Before moving to consider the actual award provisions giving rise to the difficulties being experience by the parties, it is convenient to first set out why 10½ or 11½ working days are taken in conjunction with a shift worker's annual leave. The answer is to be found in Clause 2(b) of Section III of the award which states in part:
This is a common enough provision where shift workers are concerned. The philosophy upon which the provision rests might be said to spring from acknowledgement of the fact public holidays are now regarded as statutory leisure days. They are days which for most employees are not intended to be worked unless circumstances determine otherwise. Shift workers are an example of those who frequently work on such days. It can be deduced therefore that an employee (other than a casual employee) should suffer no loss of pay by reason of not being required to work on a prescribed public holiday. If he were a day worker an employee would, when a holiday fell on a week day, work four days in that week and receive five day's pay. In addition he would be able to enjoy the holiday as a leisure day without loss of pay. But as most forms of shift work require some person to work some time on each day of the week, including weekends and the holidays, it follows that a shift worker, unless rostered off on any of those days, could expect to be required to work on all or some statutory holidays. And of course shift workers are expected to work on Saturdays and Sundays as required. The award naturally recognises this fact. It requires that for rostered duty on a public holiday double time shall be paid. Therefore a shift worker rostered to work on a public holiday would work five days and be paid for six (all other penalties aside). However over a 12 month period he or she may well miss out on up to 11½ leisure days - notwithstanding the fact double time rates may have been attracted for each holiday worked. In the event payment at double rates is made for work done on holidays the award makes it clear no additional compensation is due. In fact the exact provision states the position somewhat in reverse, but the effect is the same. It says -
Where a shift worker will or has already worked his required number of hours or days during a period in which a holiday falls - but does not physically work on the holiday which in those circumstances becomes a rostered day off - it is clear that if not sleeping following completion of night shift, he may be able to enjoy the day in the same way as a day worker might enjoy a weekend day. But without being afforded some extra compensation a particular shift worker employee would, in one year work more than the required 52 weeks less the 5 week period of annual leave; less 10½ or 11½ public holidays. The award recognises this requirement by providing in each case:- (i) If rostered to work on a public holiday, payment at double rates may be made; OR (ii) payment at ordinary time plus a one day extension of annual leave; OR (iii) if rostered off on a public holiday extension of the annual leave by one day. The number of days to be credited might vary from none where payment is made, to 10½ or 11½ per annum depending upon whether Anzac Day falls on a Saturday, Sunday or a week day. The extra days credited are usually taken in conjunction with annual leave but are not in themselves annual leave. This is the nub of the question I am asked to rule upon. Although I am not required to interpret the award provision relating to leave allowance, the fact that the various Department of Labour and Industry interpretations declared that there were further payments attracted when annual leave was taken, prompts me to (without giving reasons) indicate now I regard the current DLI "policy" on the amount payable by way of annual leave allowance to be incorrect. Those conclusions which are now stated as policy are not, I believe, reasonably open to be discovered from application of well-settled criteria relating to interpretation of industrial awards. In my decision of 20 February 1985 in re T30 of 1985 I set out for the purposes of guidance, certain rules derived from well-established canons of industrial practice. Those principles have log since been adopted by other tribunals having judicial authority to interpret awards. Other examples could have been given or highlighted. But to have done so may have confused more than clarified the message intended to be conveyed. Speaking generally, unless the drafting is such as to lead to no other conclusion, the 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. By way of illustration, if an award provided penalty rates ranging from say 15% to 150% for working on afternoon shifts, weekends and public holidays, an interpretation that produced in the result that a penalty of 500% could be attracted by reason of certain perceived ambiguities in drafting would clearly not sit comfortably within the overall framework of the award when looked at as a whole. Similarly if, in the same set of circumstances, an interpretation led to the conclusion that 10% penalty need only be paid for working on a Sunday while 15% could be attracted for afternoon shift on a Monday, it would be obvious to any fair-minded person that unless the intention of the award-maker permitted no other conclusion the interpretation would not sit comfortably within the framework of the award and would therefore be regarded as suspect. It appears to me the instant matter has become convoluted mainly because of past history and not through major drafting defect. The problem arises not because the relevant provision has, as Mr Fitzgerald suggested, been ineptly drawn, although in truth it is by no means unambiguous. It seems more likely certain persons, not familiar or experience with industrial awards and drafting by lay persons, have been unwilling or unable to come to a reasonable understanding of what the draftsman intended. I will therefore interpret the award in accordance with Rules 1, 3, 4 and 7. I have already noted that the parties to this application do not disagree that a shift worker on taking his usual period of annual leave is entitled to be paid for the whole of his year's accrual at the same rate of pay he would have received had he remained at work and carried out duty in accordance with his shift roster. It seems to me the answer to the question asked by Mr Imlach is to be discovered within the provisions os sub-clauses (b) and (f) of Clause 2, and Proviso (iii) to Clause 23 (Shift Work). Shortly stated consideration of those parts of the award can lead to but one conclusion. Provided the person concerned was a shift worker who had not been paid double rates for any work done on a public holiday, that person would be entitled in accordance with sub-clause (b) of Clause 2 to have added to his or her period of annual leave one day for each statutory holiday prescribed. A day in those circumstances would need to be added whether the employee was rostered on or rostered off on each of those holidays. The award makes it clear that the aggregate of those days shall be added to his or her period of annual leave. Sub-clause (f) of Clause 2 which is entitled Payment for Period of Leave states that -
The award makes no distinction between payment for annual leave and payment for the period by which annual leave is compulsorily extended pursuant to sub-clause 2(b). There is no doubt therefore that payment for leave in lieu is to be made on the basis of payment as to roster. This may very well confer some benefit upon the employee over and above what would have been due had payment in lieu been made. But when the award is read as a whole, additional support for this conclusion can be found in sub-clause (d) of Clause 24. This, in effect, allows extension of the period of annual leave by the same number of days an employee has been able to demonstrate to the satisfaction of the employer that he was sick while on holiday. In simple terms I see nothing in that clause to suggest that having been paid as per roster for the original leave period the days by which that period might be extended due to sickness would not, be paid for on the same basis. Nor does the provision suggest that there should be any refund of shift penalties paid during the five weeks (say) the employee intended taking as annual leave but during which he was taken ill. I therefore declare that an employee whose period of annual leave has been extended in accordance with Clause 2(b) of Section III of Part II of the award is entitled to be paid for that extended leave on the same basis as he or she would be entitled to be paid for the initial period of annual leave. The applicant's assertion that -
is rejected. The period in excess of five weeks is not annual leave but an extension of the leave period. Questions relating to payment for approved annual leave exceeding five weeks for a shift worker in any one year may need to be answered having regard for Proviso (i) to sub-clause (i) of Clause 2 of the award. As Mr Fitzgerald, on behalf of the employer involved in this matter, undertook to ensure retrospective adjustment would be made to the person concerned if the application succeeded, I am, in the circumstances, only prepared to declare prospectively that the award should be interpreted in the way mentioned. I am also reluctant to make any order at this stage. To do so would inevitably require significant "tidying up" of a number of award provisions. I incline to the view that the parties themselves might prefer to repair any apparent defects by way of application, thereby providing opportunity to all interested persons to appear and be heard.
L A Koerbin 27 June 1985 |