Australian Bank Employees Union v Australia & New Zealand Banking Group Ltd

[1990] FCA 557

- ,

L,	7	L
'>

JUDGMENT No. SS.7 .... /.?..o-

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIAN DISTRICT REGISTRY	1	No. V1 19 of 1990
1
INDUSTRIAL DIVISION	1

B E T W E E N :

AUSTRALIAN	B AN K
EMPLOYEES UNION

Applicant

A N D :

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

Respondent

JUDGE MAKING ORDER:  KEELY J .

DATE ORDER MADE:	12 OCTOBER, 1990
PLACE ORDER MADE:	MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS THAT:

applicant Australian Bank Employees Union.

1.    A penalty of $250 be imposed upon the respondent Australia and New Zealand Banking Group Limited in respect of the three breaches of the Bank Officials' (Federal) (1963) Award, found to have occurred.

1. The said penalty shall be paid by the respondent to the

3 .          The respondent shal l pay t o M r . Jeff Chua the sum of

$349.78.

(Note:  Settlement and entry of orders i s dealt with i n Order

36 of the Federal Court Rules.)

.	.
i'	'
i- ,
I. I
I-.	I I '

i

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIAN DISTRICT REGISTRY	1	No. V1 19 of 1990
1
INDUSTRIAL DIVISION	1

B E T W E E N :

AUSTRALIAN BANK

EMPLOYEES UNION

Applicant

A N D :

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

Respondent

12 OCTOBER, 1990. KEELY J.

REASONS FOR JUDGHENT

i

The Australian Bank Employees Union ("the union") by its application, as amended by leave at the hearing, has applied,	I ,.
!'
under S. 178 of the Industrial Relations Act 1988 ("the Act")
for the imposition on Australia and New Zealand Banking Group
Limited ("the respondent") of penalties for alleged breaches	t
I
of terms of the Bank Officials' (Federal) (1963) Award ("the	i
i .
1
award"). It has alleged that the respondent failed to pay to one of its employees, Mr. Jeff Chua, sick leave on full pay in	l
I i :
!
respect of three periods, namely 30 and 31 July 1988, 29	I I .
I I
October 1988 and 17 and 18 December 1988 ("the relevant	I
l .
dates"). In each case the breach alleged was a failure to pay in accordance with the provisions of clause 24A of the award	I
l
i .
I
'
and clauses 8(j), 8(k) and 15(d) of Appendix A to the award.	;- *

2 / .

On the documentary evidence, the statement of agreed facts, the admissions contained in the defence, as amended by leave at the hearing, and the further admissions made orally by the respondent's counsel, the court finds that at all

material times : -

(a)	The union was an organisation of employees registered pursuant to the Act and also pursuant to the Conciliation and Arbitration Act 1904 and at least one of its members was affected by the alleged breaches.
(b)	The respondent was a body corporate.
(c)	The union and the respondent were both bound by the award.
(d)	Mr. Chua was a member of the union (transcript pp. 10 and 14).

(e)	Between November 1983 and March 1989 Mr. Chua was employed by the respondent as a part-time employee.
(f)	Between 7 February 1985 and 5 March 1989 Mr. Chua was engaged as an Automatic Teller Machine checker and worked on week-end days only.
(g)	As a part-time employee engaged to work on Saturdays and

Sundays Mr. Chua was entitled to and, apart from sick

3/.

leave absences, received payment for the hours worked by

him at the rate of double the hourly rate of pay.

(h) On each of the relevant dates Mr. Chua was on sick leave and was entitled to such sick leave pursuant to the award.

(i)   In respect of each of the relevant dates Mr. Chua was paid by the respondent for eight hours at the "ordinary time rate of pay".

(j) If Mr. Chua had worked on one or more of the relevant dates he would have been paid by the respondent in respect of such work for eight hours at double his hourly rate which was $8.8477.

There was tendered before the court the following

statement of agreed facts:

"l. On 7th November 1983 Jeff Chua signed the

attached Service Agreement (Part-time
Employee).

2.  On commencement, Chua worked as a part-time Customer Service Operator at the 388 Collins Street Melbourne Branch of the Bank. He worked on week days until December 1983.

3.  From December 1983 to 22 June 1984, Chua worked as an Immediate Credit Clerk in the Import Department at 388 Collins Street Branch. Over this period he worked part-time on week days.

4. From 22nd June 1984 to 7th February 1985, Chua worked as a Customer Service Operator and Cheque Book Clerk (Basement) at 388 Collins

Street Branch. Over this period he worked part-time on week days.

5.  From 7th November 1983 to 7th February 1985 Chua was paid an hourly rate based on the Part Time Clause in the Award without addition of penalties.

6. From 7th February 1985 to 5th March 1989, Chua worked as an ATM Controller at 227 Toorak Road, and later at 484 St. Kilda Road at the Bank's Network Command Centre on week-end days only.

7.  At those Centres were other part-time employees, and full-time employees, some of whose shifts and rosters covered weekends.

8.  Over the time of the sick leave in issue i.e. July 1988 to December 1988 Chua worked on week-end days only at the hours of 7 a.m. to 3 p.m. or 3 p.m. to 11 p.m. alternatively or by arrangement."

It is not necessary to set out the terms of the Service
Agreement referred to in paragraph 1.

No oral evidence was called by either party. As a result of the parties' agreement upon the facts, the hearing was completed in one day, including full argument from both counsel on the point of substance at issue between the

parties.

It was contended in the amended statement of claim that Mr. Chua "should have received sick leave on full pay instead of sick leave on half pay in respect of his absence on" each of the relevant dates. The respondent denied the applicant's

claim but agreed that the figures set out in paragraph 32 of
the statement of claim were accurate. They were as follows:

Amount	Amount	Claimed
Paid	Claimed	Shortfall

"30/31 July 1988	$137.44	$274.88	$137.44
29 October 1988	$ 70.78	$141.56	$ 70.78

17/18 December 1988 $141.56	$283.12	$141.56
Amount Claimed	$349.78"

Between 7 February 1985 and 5 March 1989, when Mr. Chua worked for the respondent on weekend days only, he was paid, and under the award was entitled to be paid, "at the rate of double time" for all of the work performed by him throughout that period of four years.

Clause 24A of the award provided, insofar as is material, as follows:

"(a) An officer who is unable to perform his or her duties on account of illness or injury not covered by Workers' Compensation shall be entitled to sick leave on full pay as follows :

(i)  in the 1st year of employment: eight days

(ii) in the 2nd year of employment: ten days

(iii) thereafter per annum: twelve days.

(b) For the purpose of this clause 'year' shall mean the 12 calendar months between the date of engagement and the corresponding date in the following year and each successive year thereafter."

Appendix A to the award contained the following

provisions:

8( j) "Clause 15 of this Appendix shall apply to

part-time employees subject to the following
limitations:

(i)  The hours of duty for part-time employees required to perform shift work shall not exceed:

(1) eight per shift; or
(2) 29 per week;

....

(ii) Subclauses 15(e), (g) and (h) of this Appendix shall not apply to part-time employees performing shift work."

8(k) "The provisions of clause 24A of this Award shall apply to part time employees with entitlements calculated on the following basis:

Those employees employed for less than five days per week shall have their entitlement calculated on a pro-rata basis of one-fifth of that set out above for each day worked, such calculation to be rounded off to the nearest day."

15   "Saturday, Sunday and holiday work

(d) A shift, the major portion of which falls on a Saturday, a Sunday or a public holiday shall be paid for at the rate of double time."

[ ' I,

By reason of sub-clause 8(k) of Appendix A to the award, I

I

the provisions of clause 24A of the award applied to Mr. Chua as a part-time employee. By reason of clause 24A he was

t - :

"entitled to sick leave on full pay" in respect of each of the	I :
r

relevant dates.	The question for decision by the court is as	-'
I .

to the meaning of the words "full pay" in clause 24A.	l
I I
1.
I .
1 .
I accept the submissions advanced by the applicant's counsel that, on a correct construction of the award	r
; ,
provisions, read in the context of the award, the respondent	L . I

7/.

was required to pay Mr. Chua for each of the relevant dates at the rate of pay which he would have earned had he worked on those days.

First, that submission, in my opinion, is in accordance with the natural meaning of the words "full pay".

Second, it is also supported by certain passages in the reasons for judgment of Smithers J. in Crawford Productions Pty. Ltd. & Anor. v The Film and Television Production Association of Australia & Ors. (1983) 79 FLR 274. The terms of sub-clause 16(a) of the award before the court in that case were : - "16 - Annual Leave (a) An employee shall be allowed by his employer a continuous period of three weeks annual leave on full pay, ..." (see Jenkinson J. at 280).

Smithers J. (at 275-6) said:

"There are two substantial issues in the appeal. The first is whether, on their proper

construction, the expressions "full pay" in sub-cl	(a) of cl 16 of the award, "ordinary pay" in sub-
cl (d)(i) and "total earnings" in sub-cl (d)(ii) thereof comprehend the remuneration actually payable according to the terms of employment of an actor for rendering services the subject of the award or to the minimum remuneration payable in respect of such services according to the award.
. . . .
When, therefore, one comes to cl. 16 and finds that it provides for three weeks annual leave on "full pay" it is not to be thought that it refers to some rate of pay which is not the full pay under the employment to which the award applies. The award applies to the employment of the employee to render services covered by the award and contemplates that the full pay for that work may exceed the minimum rates prescribed for that work. Where it does the minimum rate as such, cannot in any sense be considered full pay for that work. If it had been intended that annual leave would be at the minimum rate prescribed it is hardly to be doubted that those words would appear rather than the words "full pay"."

Third, the applicant's contention also gains some support from the following observations by Gibbs J., with which Menzies J. agreed, in Kezich v Leiqhton Contractors Ptv. Ltd. (1974) 131 CLR 362 at 363 and 364-5:

"Clause 2 of the schedule is as follows:

"For the purposes of this Act, 'weekly earnings' means the amount of the ordinary wage or salary (including any over award payment) the worker would have received for the ordinary hours he would have worked, if he were not incapacitated for work as a result of the injury."

The appellant's employment with the respondent was subject to an industrial award - the Building Construction Employees and Builders' Labourers1 Award, 1973. Clause 14 of that award provided, inter alia, that "the ordinary working hours shall be 40 in a week to be worked in five days". The award fixed the rates of pay which were to be paid for these "ordinary working hours", and provided an overtime payment, at an increased rate, "for

clause 14 of this part of this award" cl. 17. In	all work in excess of the hours prescribed in
fact the appellant was engaged by the respondent on the basis that he would normally work sixty hours per week while employed by the respondent at Mt Newman; he was to work ten hours six days a week. ... The question for decision is whether he was, as the Board decided, entitled to an award of $167.50 per week which, it was conceded, should for the purposes of his application be taken as the amount which he ordinarily earned in the employment of the respondent prior to the accident, or whether, as the majority of the Full Court of the Supreme Court of Western Australia held, he was not entitled to an award at a higher rate than $91.40 which represented the pay he would have received if he had worked forty hours per week. The answer to this question depends entirely on the proper construction of cl. 2 of the schedule.
[At 364-51 ... What has to be determined is the meaning that those words have in the Act and since the words "ordinary hours" are common English words they should, in accordance with established principles of statutory construction, be understood in their natural meaning unless the context otherwise requires.
The word "ordinary" means "regular, normal, customary, usual". A man's "ordinary hours" of work are the hours during which it is usual for him to work. There is nothing in the expression "ordinary hours" that connotes payment at any particular rate, and to understand the words as meaning "hours during which work is done for which overtime is not paid" would be to place upon them a meaning which they simply do not bear. The expression "the ordinary hours he would have worked" in my opinion means the same as "the hours he would ordinarily have worked" ...
. . . The clause is not concerned with the question
whether the "ordinary wage" included something extra for overtime, but solely with the question what was ordinary for the particular worker concerned."

In that case Mason J., in a separate judgment, reached the same conclusion and said (at 369):-

"In reaching this conclusion I am influenced also

by the fact that cl. 2 refers to the amount of the	"ordinary wage or salary" which the worker would
have received, that is, the aggregate amount of wage or salary payable for a week's work. It makes no reference to ordinary rates of pay, a concept which lies at the foundation of the respondent's argument."

It may be added that in the present case sub-clause 24A refers to "full pay" and makes no reference to ordinary rates of pay.

The respondent's counsel submitted that the award and
Appendix A "should be read as a whole and the words and

10/.

phrases contained therein should be given a consistent meaning unless clearly expressed not to". His primary submission sought to rely upon the definition of "full pay" appearing in sub-clause 24(h) of the award - a clause headed "Annual Leave". He contended that the words "full pay", in sub-clause (a) of clause 24A (the clause headed "Sick Leave") should be construed as having the same meaning as the words "full pay", as in sub-clause 24(h). There are two answers to that submission. The first is that the definition of "full pay" in sub-clause 24(h) relied upon by the respondent does not appear in the clause which the court has to construe. The second is that that definition is preceded by the express words "for the purpose of this clause". Those words must be given their normal meaning which, on the face of it, is to confine the definition to the meaning of "full pay" in clause 24 i.e. to matters dealt with under the heading of "Annual Leave". Accordingly, I am unable to uphold the respondent's primary submission.

history of the relevant provisions of the award. It is, of The respondent's counsel also sought to rely upon the course, not permissible to appeal to the history of an award or a statute "for the purpose, first of introducing uncertainty into plain words, and then of resolving the difficulty thus illegitimately created" per Kitto J. in B v Metal Trades E ~ D ~ O V ~ K S ' Association: ex parte Amaluamated Ensineerina Union (Australian Section1 (1951) 82 CLR 208 at 263, citing Aristide Ouellette v Canadian Pacific Railwav Co.

!. . .

[l9251 AC 569 at 575, 576.

1
!

i . j . ~

In my opinion there is no ambiguity in the words "full	!
T '

pay" in clause 24A of the award. In forming that opinion I

I .

have applied the following observation by Viscount Simonds in

Kirkness v John Hudson and Co. Ltd. [l9551 AC 696, at 712: :

"It would have been easy then to say that, since judicial opinion differed as to the meaning of these words, there was such an ambiguity as to justify recourse to a later Act to resolve it. But the decision of this House was unanimously to the contrary. That means that each one of us has the task of deciding what the relevant words mean. In coming to that decision he will necessarily give great weight to the opinion of others, but if at the end of the day he forms his own clear judgment and does not think that the words are 'fairly and equally open to divers meanings' he is not entitled to say that there is an ambiguity. For him at least there is no ambiguity and on that basis he must decide the case."

In my respectful opinion that statement of principle is to be

l .

preferred to the well-known passage in the judgment of Isaacs	I . I
ACJ in Pickard v John Heine & Son Ltd. (1924) 35 CLR 1, at 9.	!.,~
1 ., ,
It follows that the respondent can not rely upon the history	1 -:  !
respondent would not have succeeded even if it had been	of the award provisions; it may be added that, in my view, the
permissible to appeal to the history of the award.

The respondent also sought to rely upon the transcript I j .

of proceedings before the Conciliation and Arbitration	\	I .
Commission in 1975, including the transcript of evidence given	1.
I
by a witness called in those proceedings by the applicant in

applicant's objection) was not admissible in these

5            ~

proceedings.	!
Having rejected the respondent's submissions, the court finds that the respondent breached the award on the three
i f s
l :
occasions alleged in the amended application. In my opinion	i
they all "arose out of a course of conduct by" the respondent	I
I '
I ,

(S. 178(2) of the Act) and accordingly "shall .	. . be taken to	j '
!
constitute a single breach ...".	!
8 .
1.'

As to the amount of the penalty, I was disposed to the view that any penalty imposed should be nominal.	i
t:  ,' ,

However, C.'

since then, I have considered the matter further, and have

I .'

,.

read the transcript of the submissions advanced by the

1	I
I	.

respondent. I have come to the conclusion that a somewhat higher penalty is appropriate in all the circumstances.

p-,

The	, .
i -:

penalty imposed will be $250. i . '

1 -

It will be ordered, under S. 356 of the Act, that the respondent pay the penalty to the applicant and that it pay to	: :
, .
Mr. Chua the sum of $349.78, being the amount to which he is	i
l '
entitled under the award.
I certify that this and the eleven
preceding pages are a true copy of the Reasons for Judgment herein of his Honour,
Mr. Justice Keely delivered on 12 October,
1990.
Associate: W 6- A4 Cb--%,
Date: 12 October, 1990	4
Date of Hearing	: 4 October, 1990
Date of Judgment	: 12 October, 1990
Solicitors for the Applicant	: Ryan Carlisle Thomas
Counsel for the Applicant	: Mr. S. Marshal1
Solicitors for the Respondent	: Freehill Hollingdale &

Page

Counsel for the Respondent