Australian Journalists Association v Advertiser Newspaper Ltd

[1982] FCA 143

Re: THE AUSTRALIAN JOURNALISTS ASSOCIATION
And: ADVERTISER NEWSPAPERS LIMITED
No. NSW52 of 1981
Industrial Law
3 IR 144

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - Holiday Leave - rights accruing during period of strike - entitlement after 52 weeks of employment - meaning of employment - interpretation of Awards generally. Journalists' (Metropolitan Daily Newspapers) Award 1974 as varied. Section 110 Conciliation and Arbitration Act 1904 as amended.

HEARING

SYDNEY

#DATE 28:7:1982

ORDER

Upon the proper construction of cl.35A sub-cl.(a), Holiday Leave of the Journalists' (Metropolitan Daily Newspapers) Award,1974 as varied an employee bound by the said award is entitled to accrue annual holiday leave during all periods of employment with an employer bound by the said award, notwithstanding that the employee refuses to provide all or certain services to the employer or otherwise engages in strike action, when the employer has not taken any steps pursuant to clauses 11 or 25 of the said award to terminate the services of the said employee.

JUDGE1

This is an application pursuant to s.110 of the Conciliation and Arbitration Act 1904 (the Act) for the interpretation of c.35A(a) of the Journalists' (Metropolitan Daily Newspapers) Award, 1974 as varied (the Award). Both the applicant, the Australian Journalists Association (the organization), an organization of employees registered under the provisions of the Act, and the respondent, Advertiser Newspaper Limited, were at all relevant times bound by the Award, the respondent being one of several publishers of metropolitan newspapers specified in a "Schedule of Respondents" annexed thereto. The application as filed refers to cl.35 but it was agreed that the relevant clause had been renumbered c.35A pursuant to a variation in 1974 and that, except for certain periods referred to in the clause, the clause set out later herein is in the terms in which the interpretation is sought.

The facts alleged in the affidavit of Mr Neal Swancott Federal Secretary of the organization sworn 14 October 1981 and filed in support of the application are not in dispute. During 1980, members of the organization who were employed as journalists, photographers and artists by certain metropolitan newspapers throughout Australia, including the respondent, and who worked pursuant to the provisions of the Award declined for a period of about 29 days to perform their normal duties associated with their employment and were on strike. At no time during the strike did the respondent take any steps or action to terminate the employment of any of such members employed by it pursuant to either cl.11(journalists), cl.19(artists) or cl.25(photographers) and at the end of the strike such members resumed normal work without any steps being taken by the respondent to re-employ or re-engage those members. Clauses 11, 19 and 25 made provision for the termination of employment of journalists, artists and photographers respectively.

Clause 35 A(a) reads:-
35A - HOLIDAY LEAVE - RESPONDENTS OTHER THAN AUSTRALIAN CONSOLIDATED PRESS LIMITED
(a) Subject to the provisions hereinafter contained, in every 52 weeks of employment and after 46 weeks from the annual date of appointment to the staff, all classified members and cadets shall become entitled to 6 weeks holiday on full pay irrespective of sick leave, provided that when a classified member or cadet completes after 12 June 1980, 45 weeks and 4 days of employment from the annual date of appointment to the staff, he shall become entitled in 52 weeks of employment to 6 weeks and 3 days holiday on full pay irrespective of sick leave.

The declaration sought by the organization is in the following terms:-

"That on the true interpretation of clause 35 subclause (a), Holiday Leave, of the Journalists' (Metropolitan Daily Newspapers) Award, 1974 an employee bound by the said award is entitled to accrue annual holiday leave during all periods of employment with an employer bound by the said award, notwithstanding that the employee refuses to provide all or certain services to the employer or otherwise engages in strike action, when the employer has not taken any steps pursuant to clauses 11 or 25 of the said award to terminate the services of the said employee."

On the other hand the interpretation sought by the respondent is as follows:

"(a) The expression "fifty-two weeks of employment" does not include any period during which an employee bound by the said award is on strike or is otherwise party to any ban, limitation or restriction on the performance of work in accordance with the provisions of the said award;
(b) That an employee who is on strike or who is otherwise party to any ban, limitation or restriction on the performance of work in accordance with the provisions of the said award will have the period of employment provided by the award qualifying him to an entitlement to annual leave extended by the period for which he is on strike or otherwise party to a ban, limitation or restriction as aforesaid."

Accordingly, it will be seen that the question of the interpretation of sub-cl.(a) of cl.35A comes to an inquiry whether the word "employment" in the phrase "52 weeks of employment" means the contract of employment between each respective member of the organization employed by the respondent and the respondent, as contended for by the applicant or, on the other hand, as the respondent contends, that the particular employee must have actually attended for work, performed work pursuant to the contract and been paid for it for a period of 46 weeks before becoming entitled to annual leave of 6 weeks. In other words, does the word "employment" as there used mean the contractual relationship of the employment or does it mean "service"?

It was conceded by Mr Bleby who appeared for the respondent that notwithstanding a strike by employees the contracts of employment of such employees will subsist and the strike of itself would not terminate the employment relationship. In other words, although the strike may be a breach of such a contract, it does not of itself terminate the employment unless some other step is taken by the employer or by the employee to terminate the contract. Here of course, the Award makes express provisions for the termination of the employment relationship (see cls.11, 19 and 25) and the evidence is that the respondent took no steps during the strike to dismiss any employee or to terminate any of the contracts of employment it had with its employees.

Further, it is to be observed that at relevant times (and indeed for many years) it was not unusual for rights to long service leave and/or annual leave to accrue during periods of strikes (cf. re Storemen and Packers Wholesale Drug Stores & Other Awards (1951) A.R. 527 @ 552 et seq.).

In support of the interpretation sought by the applicant organization, Mr Shaw submitted that if the draftsman had intended that only actual performance of work and payment for that performance would constitute employment for the purposes of accruing annual leave, there was then a clear and unambiguous form of words which would have given effect to that intention and that that form of words was well recognised and understood in industrial jurispudence at the time of the making of the Award. The form of words referred to is "of continuous service" or the like. At that time there had been several judgments of Industrial Courts throughout Australia whereby it had been determined that in cases where entitlement to annual leave was based on continuity of service then a strike disrupts that continuity. Several judgments had emphasized the difference between an award provision based upon continuity of service on the one hand and, alternatively, award provisions based upon periods of employment (see Australian Rope and Cordage Workers Union -v- Forsythe & Co. (1944) 51 C.A.R. 794; Re Annual Leave (1945) 55 C.A.R. 595 @ 599; Metal Trade Award 1941 69 C.A.R. 108 @ 110-111; Re Australian Iron and Steel Limited (1944) 2 A.R. 737 @ 741; Bermingham -v- Francis (1975) Queensland Government Gazette 965).

Mr Bleby submitted that the cases referred to above were dealing with the interpretation of the word "service" and not "employment" and further submitted that the word "employment" in sub-cl(a) of cl.35A depended upon the context in which it appears.

In my view it is clear that generally speaking a particular clause or a paragraph within a clause of an award is to be construed in the light of the whole of the award (see George Bond & Co. Limited -v- McKenzie (1929) 28 A.R. 498 @ 503).

In the present case a reading of the whole of the Award shows that the words "employment" and "employ" are used in both senses, that is, the words clearly mean in some clauses the contract of employment whilst in others the words mean the performance of work (see for example cls. 9, 10(c), 10(d), 10(f)(ii), 10(g)(ii), 11(c),(d) and (f), 15, 18(d), 19, 24, 29, 33, 37(a), 38, 40, 41(c), 41A and 54). What then, is the meaning of the word "employment" in its context in sub-cl.(a) of cl.35A?

Mr Bleby submitted that there were a number of pointers which indicate that the word means performance of work rather than the engagement. The first of these pointers, he argued, is the phrase "irrespective of sick-pay" in sub-cl.(a) itself. If the applicant's interpretation was the proper one then these words are unnecessary because the engagement would continue during the period of such absences. The second and third pointers are sub-cl.(e) and (h) of cl.35A.

Sub-cl.(e) of cl.35A reads:-

"(e) Where the annual holiday or any part thereof has been taken before the right to the annual holiday has accrued, the right to a further annual holiday shall not commence to accrue until after the expiration of the year of service in respect of which the annual holiday or part has been so taken."

Part of sub-cl.(h) of cl.35A reads:-

"If after 52 weeks (46 weeks of employment and 6 weeks of holiday) a member of the classified staff . . . leaves his employment . . . he shall be entitled to proportionate leave for the amount of his further service at the rate of 6 weeks holiday for 46 weeks of employment, provided that . . . "

The underlining in sub-clauses (e) and (h) above has been provided.

A further pointer, it was submitted is sub-cl.(e) of cl.54 dealing with leave with pay for attendance at Trade Union education courses. Sub-cl(e) provides that leave pursuant to the clause shall count as service for all purposes. Clause 54 was inserted into the Award at a time subsequent to 1974 but it was conceded by the applicant that the clause was in the Award as at the time of the 1980 strike.

Alternatively, the respondent submitted that the word "employment" as used in sub-cl.(a) of Cl.35A means a contractual relationship whereby an employer agrees to pay a wage in return for the performance of work or the provision of a service by the employee. If any one of those essential elements such as performance of work is removed then, so it was submitted, you have an incomplete employment relationship. The facts here indicate that the performance of work, an element of the contractual relationship, was removed by virtue of the strike. Therefore, it is argued, although the relationship was not terminated, it cannot be said that it subsisted in its entirety during the period of the strike for the simple reason that there is no work performed and there is no obligation to pay wages during that period. On that basis, it was submitted, it cannot be said that the employment with all its essential components existed during the strike and the period of the strike should not in the calculation of the 52 week period referred to in sub-cl.(a) of cl.35A.

In reply, it was submitted by Mr Shaw that, although the Award may have examples of redundant words being used, it must be remembered that it is a well recongnised principle that awards generally are "often framed without that careful attention to form and draftsmanship that one expects to find in an Act of Parliament". This particularly applies to use of the phrase "irrespective of sick leave" in sub-cl.(a) of cl.35A.

Further, it was submitted that the other so-called pointers referred to by Mr Bleby in cl.35A, viz sub-cls. (e) and (h) were in effect mere appendices to the substantial conferral of the right to annual leave. Sub-cl.(a) was the crucial provision of the clause - the dominant prescription. In any event within other sub-clauses of the clause itself, the word "employment" is clearly used in the sense of the contract of employment.

Further, in answer to Mr Bleby's argument regarding cl.54(e), Mr Shaw argued that this clause, having been inserted in 1979 and 1980 cannot be of assistance in interpreting the meaning of the word "employment" in cl.35A, the relevant terms of which were inserted in 1974. Further, in answer to the respondent's submission that the contract of employment did not subsist in its entirety during the period of the strike, the applicant argued that here there was no grey area - either the contract of employment subsisted or it was terminated during that period. Clearly, and by concession, the contract of employment had not been terminated.

In my opinion, the applicant's submissions should be upheld. I am clearly of the view that if, at the time when the sub-clause was drafted in 1974, the draftsman intended that the entitlement of full annual leave accrued only after the completion of continuous service for the full period referred to, then he would have used the expression "after 52 weeks of continuous service" - an expression then well-known and used in industrial agreements and in certain awards - or a similar phrase.

Accordingly a declaration should be made in the form as set out in the application filed herein.