Australian Liquor Hospitality and Miscellaneous Workers Union v The Uniting Church in Australia (ACT) Property Trust t/as Mirrinjani Retirement Village
[1998] FCA 474
•6 MAY 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - Interpretation of Award - Principles relevant to interpretation - use of extrinsic material - Whether ACT Holidays Act inconsistent with Award - Whether Union Picnic Day capable of being a “Public Holiday” within the terms of the Award - Whether the Award deals exclusively with Union Picnic Day.
Holidays (Amendment) Act 1997 (ACT)
Australian Capital Territory (Self-Government) Act 1988, s 28
Community and Aged Care Services (ACT) Award 1995
Re Income Tax Acts (No 1) [1930] VLR 211
Registrar of Titles (WA) v Franzen (1975) 132 CLR 611 at 618
Short v F W Hercus Pty Ltd (1993) 40 FCR 511
Curragh Queensland Mining Ltd v Construction, Forestry, Mining and Energy Union, FC of Australia unreported, 25 November 1997, Merkel J
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION (Applicant) v THE UNITING CHURCH IN AUSTRALIA (AUSTRALIAN CAPITAL TERRITORY) PROPERTY TRUST TRADING AS MIRRINJANI RETIREMENT VILLAGE (Respondent)
AG 88 of 1997
FINN J
CANBERRA
6 MAY 1998
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
AG88 of 1997
BETWEEN:
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
APPLICANTAND:
THE UNITING CHURCH IN AUSTRALIA (AUSTRALIAN CAPITAL TERRITORY) PROPERTY TRUST TRADING AS MIRRINJANI RETIREMENT VILLAGE
RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
6 MAY 1998
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1. The preliminary questions are to be answered as follows:
Question 1: Yes
Question 2: No
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
AG88 of 1997
BETWEEN:
AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
APPLICANTAND:
THE UNITING CHURCH IN AUSTRALIA (AUSTRALIAN CAPITAL TERRITORY) PROPERTY TRUST TRADING AS MIRRINJANI RETIREMENT VILLAGE
RESPONDENT
JUDGE:
FINN J
DATE:
6 MAY 1998
PLACE:
CANBERRA
REASONS FOR JUDGMENT
In November 1997 the applicant, the Australian Liquor Hospitality and Miscellaneous Workers Union (“the Union”), initiated proceedings in this court in which it is alleged that the respondent, The Uniting Church in Australia (Australian Capital Territory) Property Trust (“the Property Trust”), had made payments to employees in breach of the provisions of the Community and Aged Care Services (ACT) Award 1995 (“the Award”).
Subsequently I gave leave to the Confederation of ACT Industry (“the Confederation”) to intervene in this proceeding. The Confederation is a party to the Award and on its motion I ordered that two preliminary questions be decided separately. They are:
“1. Does any provision of the Holidays (Amendment) Act 1997 (“the Holidays Act”), upon its proper construction, require a respondent to any award or agreement specified in the Schedule to the Holidays Act to treat the first Monday in March as a holiday or public holiday for the purposes of the award or agreement?
2. Is any provision of the Holidays Act, upon its proper construction, inconsistent with any award or agreement specified in the Schedule to the Holidays Act within the meaning of the Australian Capital Territory (Self-Government) Act 1988?”
An affirmative answer to the second of these questions would cause the provision of the Holidays (Amendment) Act 1997 (ACT) (“the Amendment Act”) to be of no effect by virtue of the inconsistency provisions of s 28 of the Australian Capital Territory (Self-Government) Act 1988 (“the Self Government Act”). The latter is a Commonwealth statute.
To appreciate how these questions arise it is necessary to refer both to the Award and to the two statutes I have mentioned.
The Legislative Setting
The Self-Government Act
Section 28 provides:
“28. (1) A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.
(2) In this section:
“law” means:
(a)a law in force in the Territory (other than an enactment or a subordinate law): or
(b)an award, order or determination, or any other instrument of a legislative character, made under a law falling with paragraph (a).”
I merely note in passing that the Full Court of this court in Nominal Defendant v Morrison (1992) 37 FCR 479 at 483 noted that this provision, dealing as it does with inconsistency between Commonwealth and ACT laws, “adds a further dimension to the operation of contrariety in our legal system”. For reasons I later give it is unnecessary for me to explore that further dimension in this matter.
The Amendment Act
This Act amends the Holidays Act 1958 (“the Holidays Act”) by adding a new s 5. It provides:
Union Picnic Day
“5. In any year, the first Monday in March shall be observed as a holiday in the Territory by employees whose terms and conditions of employment are governed by an award specified in the Schedule.”
The Schedule referred to contains a long list of awards including the Award the subject of this application.
I should add that s 3 of the Holidays Act provides (inter alia) that:
Public holidays
3.(1) Subject to subsections (2) and (3) -
(a)in any year each of the following days in that year shall be observed as a public holiday in the Territory:
(i)1 January (New Year’s day), or, if that day falls on a Saturday or Sunday, the following Monday;
(ii)26 January (Australia Day), or, if that day falls on a Saturday or Sunday, the following Monday;
(iia) the third Monday in March (Canberra Day);
(iii) Good Friday;
(iv) the Saturday following Good Friday;
(v) the Monday following Good Friday;
(vi)25 April (Anzac Day), or, if that day falls on a Sunday, the following Monday;
(via)the second Monday in June (the day for the observance of the anniversary of the birthday of the Sovereign);
(vii) the first Monday in October (Labour Day);
(viii)Christmas Day, or, if that day falls on a Saturday or Sunday, the following Monday;
(ix) 26 December (Boxing Day), or -
(A)if that day falls on a Saturday, the following Monday; or
(B)if that day falls on a Sunday or Monday, the following Tuesday; and
(b) any other day, or a part of any other day, declared by the Minister, by notice published in the Gazette, to be a public holiday in the Territory or in a part of the Territory specified in the notice shall be observed as such in the Territory or that part of the Territory, as the case may be.”
Again I note in passing that for the purposes of the Holidays Act, while Union Picnic day is a holiday to be observed by a designated class of employees, it is not to “be observed as a public holiday” as such.
The Award
The relevant provision of the Award (clause 7I) was contained in a decision of the Australian Industrial Relations Commission of 23 January. That decision pre-dated the Amendment Act by more than a month. This timing may well explain why the issue now to be determined, has arisen. Be this as it may, clause 7I of the Award provides, for present purposes, as follows:
“Prescribed holidays
Employees other than casual employees will be entitled to the following public holidays without loss of pay, namely:
7I.1.1 New Year’s Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and
7I.1.2 The following days, as prescribed in the relevant States, Territories and localities: Australian Day, Anzac Day, Queen’s Birthday and Eight Hours’ Day or Labour Day; and
7I.1.3 One other day fixed as follows: Canberra Day or in lieu by agreement between the parties, Union Picnic Day being the first Monday in March.
7I.2.1 When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December.
7I.2.2 When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 28 December.
7I.2.3 When New Year’s Day or Australia Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on the next Monday.
7I.3 Where in a State, Territory or locality, public holidays are declared or prescribed on days other than those set out in 7I.1 and 7I.2 above, those days shall constitute additional holidays for the purpose of this award.
7I.4 An employer, with the agreement of the union(s) which is (are) party to this award, may substitute another day for any prescribed in this clause.”
The Union Picnic Day Holiday
The Union’s case, put shortly, is that the expression “public holiday” has a uniform and expansive meaning for the purposes of the Award. It treated Union Picnic Day in cl 7I.1.3 as being capable of being a “public holiday” even though not a public holiday in the sense of being a holiday for members of the public as such. Irrespective then of whether Union Picnic Day was a public holiday for the purposes of the Holidays Act, it was, for the purposes of cl 7I.3, capable of being - and was by the Amendment Act declared to be - a holiday on a day other than those set out in cl 7I.1 and cl 7I.2. It became then an additional public holiday to which under cl 7I.1 an employee was entitled “without loss of pay”. That it could also be a public holiday taken by agreement in lieu of Canberra Day under cl 7I.1.3 in no way detracted from this.
The Confederation (whose submissions the Property Trust adopted) has submitted that in cl 7I.1.3 the Award has dealt exclusively with Union Picnic Day for its purposes so that even if it has been declared a public holiday in the ACT, it cannot be made an additional public holiday under cl 7I.3. In any event “public holiday” in cl 7I.3 is to be given its ordinary meaning and as such Union Picnic Day is not a public holiday, it not being so declared by the Holidays Act. Rather it is a holiday available to only a limited designated class of employees.
It will be necessary to enlarge on these below but before so doing it is helpful and, as I will later suggest, legitimate in this matter to refer to the history of this part of the Award dealing with public holidays.
The Award’s Provenance
On 4 August 1994 the Full Bench of the Australian Industrial Relations Commission (“the Commission”) gave its decision in what is now referred to as the Public Holiday Test Case (“the Test Case”): see L 4535. Its object was, as part of an award’s “safety net”, to prescribe a standard for public holidays that would ensure that employees had an entitlement to leisure (or payment in lieu) on an adequate number of days designated to be public holidays. The term “public holiday” itself was described as one of “broad characterisation”. The standard set by the Commission was of eleven holidays, 10 of these being particularised. The eleventh - the “additional holiday” - the Commission described as: -
“a day identified by a governmental prescription (for example, Melbourne Cup Day) or a day otherwise specified (for example, for a union picnic).”
Of this I merely wish to note that the Commission countenanced the possibility of a union picnic day being a holiday for the purposes of its proposed standard. Finally the Commission envisaged that a State or Territory could add holidays to, but not subtract them from, the safety net provisions.
New public holiday provisions were inserted in the present Award in 1995. They did not in terms reflect the safety net approach of the Test Case. Insofar as presently relevant they provided that:
“Employees, other than casual employees, shall be entitled to the following public holidays, without loss of pay, namely:
New Year’s Day, Australia Day, Union Picnic Day (such day to be observed on first Monday of March in each year), Good Friday and the following Saturday and Monday, Anzac Day, Queen’s Birthday, Labour Day, Christmas Day and the following day (Boxing Day) and any day declared by the Minister or required by any law of the Territory by the Minister in lieu of any of the said days, or any additional day declared as a public holiday in the Australian Capital Territory.”
Again I note that Union Picnic Day was there described as a “public holiday”.
In 1996 the Confederation applied to the Commission to have some number of awards (including the present) varied so as to reflect the Test Case decision. In its decision of 8 January 1997 (N 7913) the Commission noted that, with Canberra Day being a public holiday in the ACT and that day being the ACT Government’s preferred “additional day” if the safety net standard was adopted, but with Union Picnic Day already being a designated holiday in the award, the most significant point of contention in the application to vary the awards was whether “the additional day [was] to be Canberra Day or Union Picnic Day”. In adopting the Test Case approach, the Commission rejected the submission that Union Picnic Day should be the additional day as not being in accord with the “form and intent” of the Test Case, Canberra Day already being a public holiday. In the event it concluded that the additional day should be Canberra Day or in lieu by agreement between the parties, Union Picnic Day.
Construing the Award
It is clear from the terms of cl 7I 1.3 that the parties to the Award (see Award cl 1C(b)) could by agreement constitute Union Picnic Day a “public holiday” for the purposes of the Award. Assuming they were so to do, the designation “public holiday” in the Award would then encompass a day that was not designated a public holiday for the purposes of the Holidays Act: see s 3(1)(a) of the Act. Likewise it would encompass a day that would not ordinarily be described as a “public holiday” for the reason that the beneficiaries thereof were defined by criteria other than their membership of the public or of a section of it: cf for a somewhat analogous definitional issue in the law of charitable trusts, see Re Income Tax Acts (No 1) [1930] VLR 211 at 222-223 and Jacob’s Law of Trusts, para 1006-1009 (5th Ed).
It is, in my view, proper to conclude from this that, for the purposes of cl 7I.1.3 at least, the term “public holiday” has a meaning larger than that usually signified, at least insofar as it is capable of embracing Union Picnic Day. I have not understood the Confederation to submit to the contrary. Indeed, the provenance of the Award from the Test Case onwards reinforces the conclusion at which I have arrived.
Is there any reason to assume that the same term when used in cl 7I.3 has a different meaning? If it does not, as the Union submits, then the Union Picnic Day holiday given by s 5 of the Holidays Act to (inter alia) employees whose terms of employment are governed by the Award, can properly be said to be a public holiday for cl 7I.3 purposes (assuming an agreement that it be a holiday has not already been reached under cl 7I.1.3). If, as the Confederation submits in contrast, “public holiday” in cl 7I.3 has a different meaning being its ordinary or else Holidays Act meaning, then, whatever otherwise might be the effect of s 5 of the Holidays Act, it does not declare or prescribe such a public holiday as is envisaged by cl 7I.3.
For my own part, I do not see in the language of cl 7I or in the apparent purposes of its various sub-clauses, any reason for departing from the “sound rule of construction” - see Registrar of Titles (WA) v Franzen (1975) 132 CLR 611 at 618 - that the same meaning be given the same words appearing in different parts of a document, statute or statutory instrument: see generally Pearce and Geddes, Statutory Interpretation in Australia, para 4.4 (4th ed).
Clause 7I is concerned with settling the days which, for the Award’s purposes, are to constitute the basic holiday entitlement (as opposed to the leave entitlement): (see cl 7A-7H) of employees subject to the Award whether or not work is required to be performed on those days. If in a State, Territory or locality an arm of government having power so to do prescribes a further holiday for such employees howsoever named (other than a holiday referred to in cl 7.1 or 7.2), it is performing the very function of prescribing a “public holiday” such as is envisaged by cl 7.3. It is designating a day for those employees on which “work is suspended” - “a day of recreation or amusement” - to use the most apposite of the meanings ascribed “holiday” in the Shorter Oxford English Dictionary. So viewed, there is no inconsistency or difference in the use of the public holiday formula as between cl 7I.1.3 and cl 7I.3.
Even if I were to conclude that, as used in cl 7I.3, the formula was ambiguous in the sense of being susceptible to more than one meaning, resort to the provenance of the award confirms rather than contradicts the conclusion at which I have already arrived: on use of extrinsic materials in the construction of an award, see Short v F W Hercus Pty Ltd (1993) 40 FCR 511 esp at 517ff; see also Curragh Queensland Mining Ltd v Construction, Forestry, Mining and Energy Union, FC of Australia unreported, 25 November 1997, Merkel J. The safety net principle enshrined in the Test Case decision and given effect to in the 1997 amendment to the Award was designed to ensure that employees had an entitlement to leisure (or payment in lieu) on an adequate number of days “loosely designated as public holidays”, as the ACTU put it in the submission accepted by the Commission in that case. Union Picnic Day was capable of being such a holiday. Indeed it was declared to be so expressly in the 1995 version of the present Award. The burden of the decision and of the specific award provisions putting it into effect was with employee holidays not public holidays as such. Doubtless employee holidays will, predominantly, be ones which employees enjoy as members of the public. But they need not necessarily be so as Union Picnic Day illustrates.
The Test Case envisaged that a State or Territory could add to the safety net holidays. But there is no reason for concluding from the terms of that decision that, for the purposes of the Award, the days so added would only be ones that were available to the employees concerned, not as employees, but as members of the public.
Accordingly I conclude that the term “public holiday” has a common meaning in cl 7I.1.3 and cl 7I.3. This, though, does not conclude the matter. The Confederation has argued that even if union Picnic Day could otherwise be declared a public holiday under cl 7I.3, it has been dealt with exclusively and exhaustively in cl 7I.1.3. In other words it could only become a public holiday for the purposes of the Award via cl 7I.1.3 and not otherwise.
If Union Picnic Day can be made subject to the Award under cl 7I.3, an unusual situation may seem to result. It is this. Union Picnic Day can be made a public holiday by agreement under cl 7I.1.3. If such were to happen Canberra Day would be excluded from the provisions of the Award and cl 7I.3 could have no effect notwithstanding the Holidays Act because Union Picnic Day would be then one of the embargoed days “set out in 7I.1”. Contrarily, if there was no cl 7I.1.3 agreement both Canberra Day and Union Picnic Day would be Award holidays. The confederation’s submission is that the clear object of the cl 7I.1.3 choice was to allow one or other of these days to be an Award holiday and the Award should not be construed so as to allow both to be such.
It is the case that if Union Picnic Day can become a holiday under cl 7I.3, the choice given in cl 7I.1.3 probably becomes an illusory one for practical purposes. But this does not provide reason for construing the Award in a way which deprives a State or Territory of the capacity to add Union Picnic Day to the days that are to be Award holidays. I note that in the Test Case the Commission was at pains, subject to the safety net, to “allow for State or Territory autonomy” in the prescription of holidays and cl 7I.3 was the practical expression of that. Clause 7I.1.3 does not of itself make Union Picnic Day a holiday. It merely allows for its being substituted for Canberra Day by agreement. Absent such agreement it manifestly is not a holiday for the purposes of the award.
I do not consider the choice given in cl 7I.1.3 should be taken as precluding the Territory from adding the day to award holidays. There is no obvious reason why it alone of all days should be incapable of being made a holiday in its own right for the purposes of the Award. A day which has enjoyed such a place of particular significance to employees over the years seems an unlikely candidate for such unfavourable treatment as the construction the Confederation proposes would entail. The Confederation’s exclusivity submission should be rejected.
Relatedly, the Confederation has submitted that cl 7I.1.3 isolates the first Monday in March (ie Union Picnic Day) as a potential holiday. Consequently that day is an embargoed day under cl 7I.3 because the day for it has, in the language of cl 7I.3, been set out in cl 7I.1. I would merely say of this that the reference in cl 7I.3 to days set out in cl 7I.1 is a reference to those days that are in fact cl 7I.1 holidays for the purposes of the Award. Absent agreement, Union Picnic Day is not such a day and hence is not affected by the cl 7I.3 embargo.
Conclusion
Though it is obviously the case that the 1997 amendment to the Holidays Act created a state of affairs not envisaged when cl 7I of the Award was amended in that year, the Act and the Award can and do coexist without conflict. Given that the award ascribes its own meaning to “public holiday” such as is capable of encompassing Union Picnic Day, the designation of that day as a holiday in s 5 of the Holidays Act for the award employees it specifies, has the affect of making that day a cl 7I.3 public holiday for the purposes of the Award.
The consequence of this is that the answer to the first question is “Yes” although I would emphasise that it is the construction of the Award that ordains this answer.
As to the second question - that of inconsistency - the answer is “No”. Union Picnic Day, as I have indicated, has been made a further public holiday under cl 7I.3 of the Award. Clause 7I.1.3 remains unaffected even if the choice it now gives is of a quite different character.
I would then give the following answers to the preliminary questions:
Question 1 - Yes
Question 2 - No
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn
Associate:
Dated: 5 May 1998
Counsel for the Intervenor: I Neal Solicitor for the Intervenor: Barker Gosling Counsel for the Applicant: C Erskine Solicitor for the Applicant: Pamela Coward and Associates Solicitor for the Respondent: Philips Fox Date of Hearing: 15 April 1998 Date of Judgment: 6 May 1998
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