Australian Broadcasting Corporation v John McAuliffe
[1994] IRCA 145
•21 December 1994
C A T C H W O R D S
INDUSTRIAL LAW - Musicians' award - Interpretation - Provision for distribution of ordinary working hours over five days - Proviso permitting work on a sixth day under certain circumstances - Whether additional call fee payable on such occasions - Relevance of interpretation of predecessor Determination and of second tier agreement between union and employer.
Musicians (ABC) Award 1985, as amended, cll. 9, 15, 16 and 26.
AUSTRALIAN BROADCASTING CORPORATION v JOHN McAULIFFE
No. NI 905 of 1994
CORAM: WILCOX CJ
PLACE; SYDNEY
DATE: 21 December 1994
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.905 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
ON APPEAL FROM THE CHIEF INDUSTRIAL MAGISTRATE OF
NEW SOUTH WALES
BETWEEN:AUSTRALIAN BROADCASTING CORPORATION
Appellant
AND:JOHN McAULIFFE
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 21 DECEMBER 1994
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.905 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
ON APPEAL FROM THE CHIEF INDUSTRIAL MAGISTRATE OF
NEW SOUTH WALES
BETWEEN:AUSTRALIAN BROADCASTING CORPORATION
Appellant
AND:JOHN McAULIFFE
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 21 DECEMBER 1994
REASONS FOR JUDGMENT
WILCOX CJ: This is an appeal under s.422 of the Industrial Relations Act 1988 against a decision of the Chief Industrial Magistrate of New South Wales, Mr G A Miller. The proceeding before the magistrate was an information laid by John McAuliffe, Federal Secretary of the Musicians Union of Australia, alleging a breach by the defendant, Australian Broadcasting Corporation ("ABC"), of the Musicians (ABC) Award 1985 in failing to pay Julie Batty, an ABC employee, all the monies owing to her under cl.9(5) of the award.
It seems the information was laid in order to obtain a resolution of a long-standing dispute between the union and the ABC concerning the interpretation of cl.9. The Chief Industrial Magistrate held in favour of Mr McAuliffe. He found the offence proved but, recognizing the nature of the case, refrained from imposing any penalty. However, he ordered the ABC to pay to Ms Batty the sum of $1,258.76 in outstanding monies together with interest of $173.09, a total of $1,431.85. The ABC appealed against this decision, contending that the magistrate erred in his interpretation of the award and should have dismissed the information. No issue arises as to the amount of the monies ordered to be paid, if the magistrate's interpretation was correct.
The period covered by the information was 1 February 1988 to 1 February 1994. An Agreed Statement of Facts provided to the magistrate referred back to 1987, but that reference may be ignored. The amount ordered to be paid is that referable to the period after 1 February 1988.
The Agreed Statement of Facts was as follows:
"1.At all relevant times Ms Julie Batty (Ms Batty) was employed by the Australian Broadcasting Corporation (the ABC) as a musician to play in a symphony orchestra and a member of the Musicians Union of Australia.
2.At all relevant times the ABC was bound to comply with the provisions of the Musicians (ABC) Award 1985 (the Award) an award of the Australian Industrial Relations Commission made under the Industrial Relations Act 1988 in respect of the employment of Ms Batty. A copy of the Award is tendered with this Agreed Statement of Facts.
3.On 28 occasions between 17 July 1987 and 11 June 1993 Ms Batty was required to work on a sixth day in a week either because she was performing in an orchestra:-
(a)performing the same programme of works on two or more days; or
(b)which was on tour.
4.The twenty nine occasions referred to in paragraph 3 are set out below. If Ms Batty had any entitlement to a payment under clause 9(5) of the Award (which is in issue) the amount payable to her for each sixth day is set out in the column 'Call Rate'. The total amount of the claim is $1586.08 ($1586.08 -$76.86 = $1509.22).
Year No. of Sixth Days Call Rate
$1987 7 46.76
1988 2 48.86
1989 1 52.72
1989 4 53.72
1990 5 55.33
1991 3 56.99
1992 5 58.42
1993 1 76.86
5.The ABC has not paid to Ms Batty any amount by reference to clause 9(5) of the Award for work done by Ms Batty on each of the sixth days referred to in paragraph 4 above."
The award in force on 1 February 1988 was the Musicians (ABC) Award, as made on 21 October 1985. This was the first award governing the wages and conditions of ABC musicians made by the Australian Conciliation and Arbitration Commission, the predecessor of today's Australian Industrial Relations Commission. Previously, those matters had been governed by Determination No.45 of 1950, made under the Public Service Arbitration Act 1920, as amended by subsequent determinations.
Clause 6 of the award contained some relevant definitions. It defined the term "Member of a regular unit" as "a musician who is appointed to a position in one of the Corporation's orchestras". A "Free Day" was "a period of 24 hours during which an employee is not required to attend for duty or to be available for duty and such period shall not be deemed to have commenced until the expiration of eleven hours from when the employee last performed duty". "Call" meant "an appearance for either a performance or rehearsal, recording call or mixed appearance and shall count as 3 hours". The terms "performance", "rehearsal" and "recording call" are self-explanatory but it is worth noting that a "Mixed Appearance Call" was defined as comprising "a rehearsal, interval and a studio performance." Clause 9 of the award was headed "Hours of Employment - Regular Units and Weekly Employees". It dealt with the number of hours in an ordinary working week and the distribution of those hours. It did not deal with overtime. Clause 15, to which I will refer in a moment, concerned "Excess Travelling Time" and cl.16 "Overtime Pay".
Clause 9 read:
"(1)The working week for a member of a regular unit and for a weekly employee shall, at the discretion of the Corporation, be 30 hours or 24 hours.
Provided that, in the case of musicians employed in the Sydney and Melbourne Symphony Orchestras the working week shall be 30 hours.
Provided further that, in the case of orchestras working a 30 hour week, the working week shall, for a total period of twelve weeks in each year selected at the Corporation's discretion be reduced by one three-hour call and where practicable, the twelve weeks shall be in one consecutive period and in no case shall the reduction by one call operate for a lesser period than four consecutive weeks.
(2)Subject to subclause (3) the week's work shall be worked in calls each of which, unless otherwise provided shall count as three hours.
(3)The period for a recording call, or a mixed appearance call is 2 1/2 hours, and shall count as three hours.
(4)Except as provided in clause 26, each week's work shall be done in five days excluding Sundays, and where possible, the two free days of the week shall be consecutive. The five working days shall be arranged at the Corporation's discretion.
Provided that, subject to the provision of clause 15, six days may be worked in any week in which an orchestra is performing in concerts in the Subscription Series in the home town or is away from the home town for not less than seven days.
(5)If the Corporation requires a musician to work on a sixth day of the week on which he would otherwise be free, the musician shall be entitled to payment for an extra call which shall count as 3 hours."
Clause 15 provided various rates of pay for travelling time. The detail does not matter but sub.(3) is important to the appellant's argument. Relevantly, it read:
"... if an employee is required to travel on a 'free day' he shall be paid for all such time of travel at the rate of time and a half but no such payment shall be made -
(a)in respect of such travelling time during any day on which the employee could have been worked pursuant to the proviso to subclause (4) of clause 9;
(b)in respect of time between 10.30 p.m. and 7.00 a.m. during any journey on which the employee is provided with sleeping accommodation; and
(c)in respect of any such travelling time on any third (or more) 'free day" in any week when payment shall be made at the rate per hour for a base grade musician in the unit to which the employee is attached. The maximum time, in any one day, for which payment may be made, is five hours."
Clause 16(3) provided:
"Additional calls bringing the week's work up to a total of 36 hours shall be paid for at ordinary time rates. Where the week's work exceeds 36 hours, the rate for time worked in excess of 36 hours shall be time and a half.
Finally, cl.26 dealt with Sunday work. It relevantly provided:
"(1)The Corporation may call a musician employed for a 30 hour week for twelve Sundays in a calendar year and a musician employed for a 24 hour week for six Sundays in a calendar year, without extra pay and, in any calendar week in which one of those Sundays is worked and is the first day, the musician shall be entitled to two clear days off, not necessarily consecutive days.
(2)In respect of any Sunday which is not included in subclause (1) of this clause and upon which the Corporation may call a musician and that Sunday is included in the week's work, a musician, who is covered by that subclause, shall be entitled to the benefit of the provisions of subclause (4) of clause 10 and, in addition, payment for single time extra with a minimum payment as for three hours."
Counsel agree that the words "who is covered by that subclause", in subcl.(2), should be understood as a reference to "this" subclause.
The award was varied on 4 November 1988. A new clause 9 was substituted, under the heading: "Hours of Employment - Orchestras". The new clause read:
"(1)The standard working hours for the Sydney Symphony Orchestra and the Melbourne Symphony Orchestra shall be 120 hours per four week period, provided that no more than 10 three hour calls may be physically worked in a single week without incurring overtime and provided further that the years work for the Sydney and Melbourne Symphony Orchestras shall be reduced by a total of twelve three-hour calls to be rostered consecutively over a period to be selected at the Corporation's discretion.
The standard working hours for the other symphony orchestras employed by the Corporation shall be 96 hours per four week period, provided that no more than 10 three hour calls may be physically worked in a single week without incurring overtime.
(2)Subject to subclause (3) hereof, the week's work shall be worked in calls, each of which, unless otherwise provided shall count as three hours.
(3)(a) All performance calls, mixed appearance calls and final rehearsal calls shall be of three hours duration.
(b)All sitzproben, stage orchestral and final dress rehearsal calls for opera and ballet shall be of three hours duration.
(c)All other rehearsal calls for concerts, orchestra alone, rehearsal calls for opera and ballet and recording calls shall be of 2-1/2 hours duration and shall count as three hours.
(4)Subject to clause 26 of this Award, each week's work (Sunday to Saturday inclusive) shall be done in five days and, where possible, the two free days of the week shall be consecutive. The five working days shall be arranged at the discretion of the Corporation.
Provided that, subject to the provisions of clause 15 of this Award, six days may be worked in any week in which an orchestra is performing the same program of works on two or more days or is on tour.
(5)If the Corporation requires a musician to work on a sixth day of the week on which he would otherwise be free, the musician shall be entitled to payment for an extra call which shall count as three hours.
(6)No more than eight days may be worked consecutively."
It was common ground before the Chief Industrial Magistrate that the 1988 variation did not change the substance of cl.9; whichever was the appropriate interpretation of the l985 form of cl.9 was the appropriate interpretation of the 1988 form. As indicated, the magistrate adopted the interpretation urged on behalf of the informant. In his reasons for decision he said:
"The traditional approach in interpreting an award provision is as the starting point to consider the natural and ordinary meaning of the words of the award (see Re Clothing Trades Award (1950) 68 CAR 597). The award must be read as a whole and in context (see Australian Timberworkers' Union v Angliss & Co Pty Limited (1924) 19 CAR 172 and see generally the discussion of French J in City of Wanneroo v Holmes (1989) 30 IR 362 at 378 to 379).
Adopting such an approach the first sentence of cl 9(4) clearly provides 'each week's work (Sunday to Saturday inclusive) shall be done on 5 days and where possible, the 2 free days of the week shall be consecutive' (my emphasis). Taking into account the mandatory nature of the word 'shall', this constitutes a five day working week with a prescription of two free days per week. Clause 9(4) restricts the spread of standard hours to be worked over a number of days - namely, five days.
However, the proviso to cl 9(4) creates an exception to the prescription of a five day working week (and two free days per week) and provides that six days may be worked in any week in two designated circumstances those being: where the orchestra, is performing the same program of works on two or more days, or, is on tour. It is conceded that Ms Batty was required on twenty eight occasions to work on a sixth day in a week in accordance with the proviso to cl 9(4). Clause 15 (cl 16 as it appears in the latter form of the Award) makes no overtime prescription in respect of work done on more than five days per week. Clause 15 (or cl 16) refers to the number of hours to be worked not the days on which those hours are to be worked.
Clause 9(5) provides that a musician shall be entitled to payment for an extra call which shall count as three (3) hours if the ABC requires the musician to work on a sixth day of the week on which she 'would otherwise be free'. It seems to me quite logical and clear that if a person is required to work on a sixth day as Ms Batty was in the circumstances prescribed this is a requirement to work on a day on which she would 'otherwise be free'.
To adopt the ABC's reasoning I would have to ignore the opening paragraph of cl 9(4) and the expression there used of 'free days'. The words 'would otherwise be free' as they are found in cl 9(5) must be read as a reference to a five day working week simply because hours cannot be rostered over more than five days. A musician would 'otherwise be free' if the proviso was not invoked. In interpreting the Award there has to be consistency given to the meaning of words used within the Award. Referring to other clauses of the then Award there is nothing to suggest that cl 9(5) is anything other than a penalty for work being done under the proviso on more than five days. It is not overtime or Sunday work. In the light of my decision on the clarity of the clauses there is no need to go to the history of the Award or to extrinsic aids." [Original emphasis]
Mr Peter Kite, counsel for the appellant, criticised this reasoning. He accepted that the purpose of cl.9, in either manifestation, was to prescribe the ordinary working hours of employees; the hours being calculated by reference to "calls". Clause 9 had nothing to do with overtime or Sunday work. Mr Kite agreed that work is ordinarily to be performed over five days in any particular week, with two free days. But he argued this was subject to two exceptions - not one as stated by the magistrate. The first exception was when one of the provisos to cl.9(4) applied; that is, the orchestra is performing in a Subscription Series (1985 version) or is performing the same program on two or more days (1988 version) or is on tour (both versions). When that exception applied, he said, there was no entitlement to an extra payment. The second exception, according to Mr Kite, was that provided by cl.9(5). It applied when the musician was required to work on a sixth day under different circumstances, in which case he or she is entitled to payment for an extra call. As Ms Batty's sixth day work fell within one of the provisos, it was covered by the first exception; no additional payment was required.
Mr Kite placed some emphasis on cl.15(3), set out above. He said it would be incongruous if a musician could be asked to travel on a sixth day, without extra payment, yet was entitled to payment for working that day. Mr Kite also referred to the overtime provisions. His submission repeated what he put to the magistrate so it is convenient to summarise his argument on that matter by quoting this written submission to the magistrate:
"18.Counsel for the informant submits that only the work referred to in cl 9(4) may be performed on a sixth day. He says this on the basis that cl 16 'Overtime' relates only to overtime worked on Sundays and public holidays. In my submission this totally misreads the overtime clause.
19.In the 1985 form cl 16(3) relates to additional hours worked on any day. In the 1988 form cl 16(2) prescribes overtime rates of time and a half and double time except on Sundays and public holidays when specific clauses apply viz cl 26(3) and 27(1)(ii).
20.It is simply untenable to suggest that employees cannot be required to work overtime on non-rostered days. The award clearly contemplates such work and caters for it. The premise on which Counsel builds his submission that work on a sixth day is proscribed except in the circumstances of the proviso is thus false and the submission dissipates.
21.Work of all sorts can be done on a sixth day. It can only be done without penalty if it falls within the terms of the proviso."
Mr Kite submitted to me, as he had submitted to the magistrate, that, if cl.9(5) was unclear, reference should be made to earlier documents. He went back to a decision of Mr J M Galvin, Public Service Arbitrator, in July 1959. That decision concerned the proper interpretation of cl.4 of Determination No.45 of 1950, the antecedent of the award. Clause 4 contained the following sub-clauses:
"(6)Except as provided in clause 21, each week's work shall be done in five days excluding Sundays and, where possible the two free days of the week shall be consecutive. The five working days shall be arranged at the Commission's discretion:
Provided that, subject to the provision of sub-clause (8) of this clause, six days may be worked in any week in which an orchestra is rehearsing for, or performing in, concerts in the Subscription Series (Celebrity or Youth) or is away from the home town for not less than seven days. ...
(9)If the Commission requires a musician to work on a sixth day of a week on which he would otherwise be free, the musician shall be entitled to payment for an extra call which shall count as 3 hours."
A question arose whether musicians were entitled to extra payments for working on six days of the week when they played in operas presented by the Elizabethan Theatre Trust. Mr Galvin said:
"It seems to me to be clear that there is, in Determination No.45 of 1950, nothing which permits the Commission to ignore the provisions of sub-clauses (6) and (9) of clause 4 when the arrangement with the Elizabethan Theatre Trust is in force. The only exceptions from the operation of sub-clauses (6) and (9) appear to be those contained in the first-mentioned sub-clause and in clause 21, and none of these exceptions seem to apply in the circumstances of the employment under the arrangement mentioned above.
In these circumstances, the provisions of sub-clauses (6) and (9) of clause 4 should be applied in the same manner as they would be applied if the work performed assisting the Elizabethan Theatre Trust was work performed solely for the Commission not subject to the exceptions prescribed in sub-clause (6) of clause 4 and in clause 21. In substance, therefore, the interpretation placed on sub-clauses (6) and (9) of clause 4 by the applicant organization is correct."
The "applicant organization", to which he referred, was the Musicians' Union.
Mr Galvin held the sub-clauses inapplicable and the musicians entitled to additional payments. But Mr Kite points out that Mr Galvin assumed that additional payments would not have been required if the work had fallen within one of the provisos in sub-cl.(6).
In July 1988 the ABC and the union adopted in principle a document they described as "Second Tier Agreement". This document was said to contain a "package of measures" providing benefits to the ABC sufficient to justify, under the 1987 National Wage Decision, payment of "an average 4% second tier salary increase" to union members employed under the 1985 award. It dealt with a number of subjects including what was called "cycle rostering". In a background statement on that subject the agreement said:
"No provision is made for cycle rostering. Each week's work is restricted to 5 days with, where possible, 2 consecutive free days. There is a restricted right to roster for a 6th days work with no extra pay, in any week during which the orchestra is performing subscription series or is on tour for 7 days or more."
The document went on to record an agreement to amend cl.9 in several respects. One of the proposals was described in this way:
"e)amend proviso for 6th day to allow a 6th day to be rostered without extra payment in any week involving substantially the same program on two or more days or where the orchestra is on tour."
The material before me does not disclose what happened between the date of this agreement and the variation order on 4 November 1988. That order was made by consent but it referred to a decision of the Commission on 22 August 1988. Whether the 22 August decision related to a contested issue, and if so what issue, I do not know. Nor do I know why the consent order failed to include the words "without extra payment" that were used in the second tier agreement. Had it done so, the present case would not have arisen.
I understand why Mr Kite placed reliance on this background material. But I do not think it should determine the outcome of the appeal. The 1959 decision related to a different issue. All that can be said was that Mr Galvin made an assumption along the lines now suggested by the ABC. But the matter was not argued, so the decision cannot be regarded as significant. In relation to the second tier agreement, the problem is that there is no way of knowing whether the omission of the words "without extra payment" was an oversight, both parties to the consent award intending that sixth day work should be without extra payment, or whether this occurred because of a change in position by the union or a Commission decision. I do not think it safe to assume that the consent order of 4 November was intended to implement the July agreement, without alteration.
Accordingly, I put aside the earlier documents and decide the appeal purely by reference to the terms of the award. This is not easy; there is something to be said for both sides' arguments. However, I have reached the conclusion that the better view is that propounded by Mr Robert Reitano, counsel for Mr McAuliffe, and accepted by the magistrate.
The critical question, as it seems to me, is what was intended by the words "would otherwise be free" in cl.9(5). These words are used in both the 1985 and 1988 versions. Does "otherwise" mean in the absence of the operation of the proviso? Or does it mean even after the operation of the proviso, so referring to a requirement to work a sixth day in circumstances not covered by the proviso?
I see three reasons favouring the first alternative. The main one arises out of the point made by Mr Kite about the role of cl.9. The clause is not concerned with overtime but with the distribution through the working week of ordinary time. It is clear that ordinary time is ordinarily to be worked over five days, with a proviso that some ordinary time may be allocated to a sixth day in either of two specified situations. It follows that the situation suggested by Mr Kite, the working of a sixth day for some other reason, would involve the working of overtime. And this subject is comprehensively dealt with elsewhere.
Secondly, and allied to this, the payment envisaged by cl.9(5) is limited to an extra call; that is, three hours. But, if Mr Kite is correct, the musician might be asked to work for the whole of the sixth day. This would be time in excess of the musician's ordinary weekly hours. So why should the additional payment be limited to one call? It makes sense, on the other hand, to limit the additional payment to one call if the worked time is within the musicians' ordinary time. The musician is inconvenienced in being called out on a sixth day, but not asked to work more than his or her ordinary weekly hours.
Finally, I agree with the magistrate that the result is equitable. It is likely to be more burdensome to the musician to be asked to work on six days rather than five, if only because this involves additional journeys between home and work. If the musician is called out on a sixth day to meet commitments undertaken by the employer, it seems reasonable that he or she receive recompense for the inconvenience. On Mr Kite's argument, there would be none.
The major contrary argument is provided by cl.15(3). On my construction of cl.9(5), a musician would be paid extra money for working (performing, recording or rehearsing) on a sixth day but not for travelling on that day. This may be thought incongruous. But it is not indefensible. Travelling on a sixth day will not involve an extra return journey between home and work. Travelling might be thought less taxing than working. However, even if there is a degree of anomaly, on balance I do not think it outweighs the matters previously mentioned.
I have come to the conclusion that the Chief Industrial Magistrate was right, basically for the reasons he stated. I propose to dismiss the appeal.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment of his
Honour Chief Justice Wilcox.
Associate:
Dated: 21 December 1994
APPEARANCES
Counsel for the Appellant: P Kite
Solicitor for the Appellant: Minter Ellison Morris Fletcher
Counsel for the Respondent: R Reitano
Solicitor for the Respondent: R L Whyburn & Associates
Date of hearing: 6 December 1994
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