“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Boeing Aerostructures Australia Pty Ltd T/A Boeing Aerostructures Australia
[2015] FWC 7772
•24 NOVEMBER 2015
| [2015] FWC 7772 [Note: An appeal pursuant to s.604 (C2015/5423) was lodged against this decision - refer to Full Bench decision dated 7 March 2016 [[2016] FWCFB 1204] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Boeing Aerostructures Australia Pty Ltd T/A Boeing Aerostructures Australia
(C2015/5423)
COMMISSIONER RYAN | MELBOURNE, 24 NOVEMBER 2015 |
Alleged dispute about additional public holidays.
[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) notified a dispute arising under the terms of the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2014 (the Agreement) concerning the entitlement of employees to public holidays.
[2] The dispute was subject to conciliation before Gostencnik DP but failed to be resolved. The dispute was subject to arbitration before me on 9 November 2015.
The relevant clause of the Agreement and its history
[3] Clause 7.6 of the Agreement is as follows:
“7.6 PUBLIC HOLIDAYS
Summary
This clause describes an employee’s (other than a casual employee) public holiday entitlements.
Employees are generally entitled to 13 specified public holidays per year without loss of pay.
Other days can be substituted for any of the specified days by agreement between the employer and employees.
7.6.1 Prescribed holidays
7.6.1.1 An employee under this Agreement is entitled to be absent from their employment when they would ordinarily work the following public holidays, without loss of pay:
New Year Day Australia Day
Good Friday Easter Saturday
Easter Monday Anzac Day
Queens Birthday Labour Day or Eight Hours’ Day
Show Day Melbourne Cup Day
Christmas Day Boxing Day
7.6.1.2 An additional day to be observed during the Christmas/New Year period, or such other day as is generally observed in a locality as a substitute for any of the said days respectively, or proclaimed as an additional holiday for the State of Victoria.
7.6.1.3 Substitution of certain public holidays which fall on a weekend
7.6.1.4 Where Christmas Day falls on a Saturday or a Sunday, 27 December shall be observed as the public holiday in lieu of the prescribed day.
7.6.1.5 Where Boxing Day falls on a Saturday or a Sunday, 28 December shall be observed as the public holiday in lieu of the prescribed day.
7.6.1.6 Where New Year’s Day or Australia Day fall on a Saturday or a Sunday, the following Monday shall be observed as the public holiday in lieu of the prescribed day.
For the purposes of this Agreement the said Saturday and/or Sunday shall be deemed not to be holidays.
7.6.1.7 Substitution of public holidays by agreement at the enterprise
By agreement between the employer and the majority of employees in the relevant enterprise or section of the enterprise, an alternative day may be taken as the public holiday in lieu of any of the prescribed days.
7.6.2 Payment for time worked on a public holiday
7.6.2.1 Payment for time worked by continuous shift workers on a public holiday
Refer to 6.2.4 to determine the pay entitlements of continuous shift workers working on rostered shifts which fall on a public holiday.
7.6.2.2 Payment for time worked by non-continuous shift workers on a public holiday
Refer to 6.2.4 to determine the pay entitlements of non-continuous shift workers working on rostered shifts which fall on a public holiday.
7.6.2.3 Payment for time worked by day workers on a public holiday
Day workers, other than employees engaged in maintaining the continuity of electric light and power or garage employees and/or drivers of tow and/or repair vehicles recalled for breakdown, accident or other emergency work, required to work on a public holiday shall be paid for a minimum of four hours work at double time and a half. The double time and a half is to be paid until the employee is relieved from duty.
Refer to 6.4.10 and 6.4.11 to determine the rest break and meal allowance entitlements of day workers who work on a public holiday.
7.6.3 Rostered day off falling on public holiday
An employee who by the circumstances of the arrangement of ordinary hours of work is entitled to a rostered day off which falls on a public holiday prescribed by this clause shall, at the discretion of the Company, be paid for that day eight ordinary hours pay or have an additional day added to annual leave. This sub clause shall not apply when the holiday falls on a Saturday or Sunday.
7.6.4 Public holidays falling during a period of annual leave Refer to 7.1.6.”
[4] Although the Agreement was only approved by the Commission on 7 July 2014 clause 7.6 appears to have been in a number of predecessor agreements and awards. The Aerospace Technologies of Australia Ltd Award 1998 (the 1998 Award), which formed part of the AMWU materials in this matter, contained an identical clause – Clause 7.5. It is relevant to note that the cross references in clause 7.6.2.3 of the Agreement clearly do not make sense in the context of the other clauses of the Agreement but makes eminent sense in the context of the 1998 Award.
[5] Further, on 2 March 1992 the Australian Industrial Relations Commission issued an award known as the Aerospace Technologies of Australia Pty Ltd Award 1991, Print K1381 (the 1991 Award) . The history behind the making of this award was described by Maher C in his decision to make the award 1. The 1991 Award contained clause 20 – Holidays and Sunday Work, which created an entitlement to public holidays as follows:
“Prescribed holidays
(a) (i) An employee on weekly hiring shall be entitled, without loss of pay, to public holidays as follows:
New Years Day
Australia Day
Good Friday
Easter Saturday
Easter Monday
Anzac Day
Queens Birthday
Eight Hours’ Day or Labour Day
Melbourne Show Day
Melbourne Cup Day
Christmas Day
Boxing Day
and an additional day to be observed during the Christmas/New Year period, or such other day as is generally observed in a locality as a substitute for any of the said days respectively, or proclaimed as an additional holiday for the State of Victoria.
(b) For the purpose of this award:
(i) Where Christmas Day falls on a Saturday or on a Sunday, the following Monday and Tuesday shall be observed as Christmas Day and Boxing Day respectively;
(ii) Where Boxing Day falls on a Saturday, the following Monday shall be observed as Boxing Day;
(iii) Where New Year’s Day falls on a Saturday or on a Sunday the following Monday shall be observed as New Year’s Day;
and the said Saturday and/or Sunday shall be deemed not to be holidays.
(c)By agreement between the Company, the majority of its employees, and their Union(s), other days may be substituted for the said days or any of them as to the Company’s undertaking.”
[6] As can be seen clause 20(a), (b) and (c) of the 1991 Award are nearly identical in wording to the provisions of clause 7.6.1 of the Agreement. The additional day provision within clause 20(a) of the 1991 Award is identical to clause 7.6.1.2 of the Agreement.
Relevant case law
[7] Both the AMWU and Boeing agree that the proper approach to determining the meaning of an enterprise agreement is that set out in AMIEU v Golden Cockerel P/L 2:
“[41] From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
[8] The AMWU contended that the relevant principles for determination of the present dispute were principles 7, 8 and 10. I have had regard to and have applied the Full Bench decision in Golden Cockerel to this matter.
Relevant legislative context
[9] Both the AMWU and Boeing accepted that the relevant legislative context is the Fair Work Act 2009 (the Act). 3 The relevant provisions of the Act are as follows:
“55 Interaction between the National Employment Standards and a modern award or enterprise agreement
National Employment Standards must not be excluded
(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.
Terms expressly permitted by Part 2-2 or regulations may be included
(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:
(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or
(b) by regulations made for the purposes of section 127.
Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.
(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).
Note: See also the note to section 63 (which deals with the effect of averaging arrangements).
Ancillary and supplementary terms may be included
(4) A modern award or enterprise agreement may also include the following kinds of terms:
(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;
(b) terms that supplement the National Employment Standards;
but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.
Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:
(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or
(b) that specify when payment under section 90 for paid annual leave must be made.
Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:
(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or
(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).
Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.
Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards
(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).
Effect of terms that give an employee the same entitlement as under the National Employment Standards
(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:
(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and
(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.
Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.
Terms permitted by subsection (4) or (5) do not contravene subsection (1)
(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).
Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).
56 Terms of a modern award or enterprise agreement contravening section 55 have no effect
A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.
114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
115 Meaning of public holiday
The public holidays
(1) The following are public holidays:
(a) each of these days:
(i) 1 January (New Year’s Day);
(ii) 26 January (Australia Day);
(iii) Good Friday;
(iv) Easter Monday;
(v) 25 April (Anzac Day);
(vi) the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);
(vii) 25 December (Christmas Day);
(viii) 26 December (Boxing Day);
(b) any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday.
Substituted public holidays under State or Territory laws
(2) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part-day is substituted for a day or part-day that would otherwise be a public holiday because of subsection (1), then the substituted day or part-day is the public holiday.
Substituted public holidays under modern awards and enterprise agreements
(3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).
Substituted public holidays for award/agreement free employees
(4) An employer and an award/agreement free employee may agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).
Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)).
116 Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay forthe employee’s ordinary hours of work on the day or part-day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.”
[10] By repeating public holidays which are set out in s.115(1), the Agreement is clearly relying on s.55(5). By providing for public holidays which do not arise under the operation of s.115(1) the Agreement is clearly relying on s.55(4)(b).
[11] Whilst s.115(1)(a) prescribes 8 named days, s.115(1)(b) incorporates into the NES any additional public holidays declared or prescribed by or under a law of a State or Territory.
[12] The legislative context therefore requires consideration of the relevant Victorian public holiday enactments or declarations. The relevant enactment is the Public Holidays Act 1993 (Vic) which provides as follows:
“s.6. Public holidays
The following days are appointed as public holidays—
(a) 1 January (New Year’s Day);
(b) the Monday after 1 January (New Year’s Day) when New Year’s Day is a Saturday or Sunday;
(c) 26 January (Australia Day) or the Monday after Australia Day when Australia Day is a Saturday or Sunday;
(d) the second Monday in March (Labour Day);
(e) Good Friday;
(f) the Saturday before Easter Sunday;
(g) Easter Monday;
(h) 25 April (ANZAC Day);
(i) the second Monday in June (the day on which the anniversary of the birthday of the Sovereign is observed);
(j) the first Tuesday in November (Melbourne Cup Day);
(k) 25 December (Christmas Day) or the Monday after Christmas Day when Christmas Day is a Saturday or the Tuesday after Christmas Day when Christmas Day is a Sunday;
(l) 26 December (Boxing Day);
(m) the Monday after 26 December (Boxing Day) when Boxing Day is a Saturday or the Tuesday after Boxing Day when Boxing Day is a Sunday.
s.7. Additional public holidays
(1) In addition to the days specified in section 6—
(a) the Minister may, by notice published in the Government Gazette, appoint another one or more days or half-days as public holidays or public half-holidays;
S. 7(1)(b) repealed by No. 55/2008 s. 6.
(2) A notice under subsection (1)(a) may be expressed so as to apply—
(a) throughout the whole of the State or in a specified part of the State; or
(b) to all persons to whom and bodies to which this Act applies or to a specified class of persons or bodies; or
(c) as specified in both paragraphs (a) and (b).
s.8. Substituted public holidays
(1) Subject to section 8A, the Minister, by notice published in the Government Gazette, may—
(a) declare that a day appointed—
(i) as a public holiday under section 6; or
(ii) as a public holiday or public half-holiday under section 7(1)(a); or
(iii) as a public holiday or public half-holiday under this subsection—
is not in a specified year such a holiday; and
(b) appoint—
(i) in the case of a public holiday, another day or 2 half-days;
(ii) in the case of a public half-holiday, another half-day or day;
(iii) in the case of 2 public half-holidays, another day—
as a public holiday or public half-holiday in that year.
(2) A notice under subsection (1) may be expressed so as to apply—
(a) throughout the whole of the State or in a specified part of the State; or
(b) to all persons to whom and bodies to which this Act applies or to a specified class of person or body; or
(c) as specified in both paragraphs (a) and (b).
(3) The day, half-day or 2 half-days appointed under subsection (1) replaces or replace the public holiday, public half-holiday or public half-holidays for which the day, half-day or 2 half-days was or were substituted.”
[13] In July 2014 when the Agreement was approved by the Commission the employees who were to be covered by the Agreement had an entitlement under the NES to the 8 public holidays which are set out in s.115(1)(a) of the Act and to 3 additional public holidays which had been prescribed by s.6(d), (f) and (j) of the Public Holidays Act 1993 (Vic). The Public Holidays Act also prescribed 2 further additional public holidays, s.6(b) and (m), which only applied in some years and which did not apply in most years. These two further additional holidays did not apply in fact in 2014, 2015 or 2016. However the further additional holiday provided for by s.6(b) will apply in 2017.
[14] At the time the Agreement was approved by the Commission the Victorian Government had not appointed any additional public holidays pursuant to s.7 of the Public Holidays Act 1993.
[15] At the time the Agreement was approved by the Commission an additional public holiday had been proclaimed in Victoria for 2017 which was additional to the public holidays specified in clause 7.6.1.1 or substituted by clause 7.6.1.6.
[16] For 2017 the Public Holidays Act 1993 prescribes that both New Year’s Day (Sunday 1 January 2017) and Monday 2 January 2017 are public holidays - such is the effect of s.6(a) and (b).
[17] For 2017 the Agreement provides that New Year’s Day (Sunday 1 January 2017) is not a public holiday and that as a substitute Monday 2 January 2017 is the public holiday – such is the effect of clauses 7.6.1.1 and 7.6.1.6.
[18] For 2017 clause 7.6.1.6 simply cannot do what it purports to do. The clause is a clear contravention of s.55(4) of the Act and is therefore of no effect pursuant to s.56 of the Act. These two sections relevantly provide as follows:
“55 Interaction between the National Employment Standards and a modern award or enterprise agreement
(4) A modern award or enterprise agreement may also include the following kinds of terms:
(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;
(b) terms that supplement the National Employment Standards;
but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.”
“56 Terms of a modern award or enterprise agreement contravening section 55 have no effect
A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.”
[19] Whilst s.115(3) of the Act clearly permits the Agreement to contain substitution provisions such as clauses 7.6.1.3 – 7.6.1.7 inclusive, a substitution provision could not be used to remove an entitlement to a public holiday provided for by s.115(1) of the Act.
[20] The effect of the Agreement’s treatment of New Year’s Day in 2017 and Monday 2 January 2017 is to take the public holiday on 1 January 2017 and require it to be observed on the public holiday which already exists on 2 January 2017. In other words the Agreement requires employees to observe 2 separately prescribed public holidays on the one day. This is most certainly not substitution! The effect of the clause is to simply remove an entitlement to a public holiday which is a prescribed public holiday under s.115(1) of the Act.
[21] Given that clause 7.6.1.6 has no effect to the extent that it contravenes s.55 of the Act in 2017, then it is clear that in 2017 employees will have the benefit of the public holidays prescribed by clause 7.6.1.1 of the Agreement and an additional public holiday which has been prescribed for Monday 2 January 2017.
[22] It is relevant for the present matter that the predecessor enterprise agreement to the current Agreement was also an enterprise agreement approved by the Commission under the Fair Work Act. The Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2010 (the 2010 Agreement) was approved by the Commission on 11 March 2010 and contained clause 7.6 Public Holidays which was in identical terms to clause 7.6 of the current Agreement. It is also relevant to the present matter that s.6 of the Public Holidays Act 1993 was in the same terms when the 2010 Agreement was approved (s.6 in its current form was introduced into the Public Holidays Act 1993 by s.5 of the Public Holidays Amendment Act 2008). It is relevant to note that in 2012 New Year’s Day was on a Sunday and therefore both Sunday 1 January 2012 and Monday 2 January 2012 were public holidays under s.6 of the Public Holidays Act which meant that clause 7.6.1.6 of the 2010 Agreement was of no effect (for the reasons explained above) and that an additional public holiday was provided to employees in that year.
[23] The evidence in this matter makes clear that in 2012 clause 7.6.1.2 was applied on the basis that an additional day pursuant to that clause was given in the Christmas/New Year shut down period commencing in December 2012.
[24] In 2012 the 2010 Agreement, as implemented by Boeing, provided 14 public holidays to employees, being the 12 days specified by clause 7.6.1.1, an additional day in the Christmas/New Year period pursuant to the first element of clause 7.6.1.2 and an additional day on 2 January 2012 pursuant to s.115(1)(b) of the Act. I note that Mr Colman for Boeing contended that he was unaware of past instances where Boeing had an obligation to provide 14 public holidays to its employees. 4
[25] Neither the AMWU nor Boeing attempted to provide any detailed analysis of the legislative context in which the Agreement or the 2010 Agreement operate, yet both conceded that “the legislative context under which the agreement was made and in which it operates” is relevant to determining the meaning of the Agreement. (Note: the AMWU made a brief reference to the Fair Work Act at PN534 to PN541)
[26] A further aspect of the legislative context in which the Agreement operates is that in 2015 the Victorian Government twice exercised its powers under s.7 of the Public Holidays Act 1993 to declare additional public holidays in Victoria. By Special Gazette No S 29 issued on 17 February 2015 the relevant Minister appointed Sunday 5 April 2015 (Easter Sunday) as a public holiday in Victoria. By Special Gazette No S 229 issued on 19 August 2015 the relevant Minister appointed Easter Sunday and the Friday before the Australian Football League Grand Final as public holidays in Victoria.
[27] Outside of the legislative context in which the Agreement operates it is clear that the Agreement was always intended to provide a public holiday on a day which since 1993 had not been a public holiday in Victoria, namely Melbourne Show Day. The Bank Holidays Act 1958 (Vic) provided, through s.4(g), for a bank holiday on “the last Thursday in September” in the broad Melbourne metropolitan area. That public holiday was colloquially referred to as Melbourne Show Day as it fell within the period of the Royal Agricultural Society’s annual agricultural show held at the Flemington Show Grounds. This public holiday was explicitly included in the list of prescribed days in the 1991 Award. In 1993 the then Kennett Government introduced a new Public Holidays Act which removed “the last Thursday in September” from the list of public holidays. Notwithstanding that Melbourne Show Day ceased to be a public holiday in Victoria in 1993, no attempt has been made to remove that public holiday from the awards or enterprise agreements which have applied at the Boeing site in Port Melbourne.
[28] The Agreement has to be interpreted having regard to the context set out above.
The contentions of the parties
[29] The contentions of the parties are poles apart, yet both the AMWU and Boeing contend that the language of clause 7.6.1.2 is neither uncertain nor ambiguous.
[30] To understand and explain the contentions of each of the parties it is necessary first to label the different parts of clause 7.6.1.2 as follows:
7.6.1.2 An additional day to be observed during the Christmas/New Year period,
(the first element)
or (the first or)
such other day as is generally observed in a locality as a substitute for any of the said days respectively, (the second element)
or (the second or)
proclaimed as an additional holiday for the State of Victoria. (the third element)
[31] The AMWU contended that clause 7.6.1.2 provides at least one additional public holiday but that it can provide more than one additional public holiday. The AMWU contended that the word “or” is not used in the disjunctive sense, but rather that in the context of the Agreement the word “or” when used in clause 7.6.1.2 is used in the conjunctive sense. According to the AMWU employees are entitled to the traditional public holiday created by the first element of clause 7.6.1.2 (as such holiday has been given for over 20 years) and in addition the employees are also entitled to the additional public holidays which the Victorian Government gazetted in 2015 pursuant to the third element of clause 7.6.1.2 The AMWU contended that the second element of clause 7.6.1.2 does not provide an entitlement to an additional day but rather it is a proper substitution clause. As Mr Vroland put it:
“I mean the point that we're making is that the second element of the relevant subclause is an entirely different concept - well, may be read as an entirely different concept to an additional day. It really refers we would say in most common practical usage to a substitute day in the type of examples that I've alluded to, and that's also informed by as I say the legislative context. So I took you to the relevant provisions earlier. That kind of notion is not an unfamiliar one. We don't think that legislatively that's ever really the intention when there's such a proclamation.” 5
[32] The AMWU also contended that entitlement to both the extra public holiday in the Christmas/New Year period and the extra public holiday for the Friday before the Australian Football League Grand Final was supported by the Agreement’s provisions relating to significant change. 6
[33] The AMWU also contended that Boeing’s decision to remove the public holiday from the Christmas/New Year period was done in breach of clause 7.6.1.7. That is, the AMWU contended that Boeing could only substitute another day for the additional public holiday in the Christmas/New Year period if there was agreement with a majority of employees for such substitution. As there was no such majority agreement, then Boeing could not move the additional public holiday in the Christmas/New Year period. 7
[34] Boeing contended that the use of the word “or” in clause 7.6.1.2 is in the disjunctive sense and that the context and purpose of clause 7.6.1.2 is to provide employees with an entitlement to only 1 additional public holiday which is additional to the prescribed holidays in clause 7.6.1.1. Boeing contended that only clause 7.6.1.1 lists prescribed holidays and the additional holiday which flows from the operation of clause 7.6.1.2 is not a prescribed holiday. Boeing contended that clause 7.6.1.7 can only operate in relation to a holiday listed in clause 7.6.1.1. Boeing contended that where an additional public holiday can arise under any of the three elements of clause 7.6.1.2 then Boeing has the right to choose which public holiday will be used to meet the obligation under the clause. Boeing also contended that it can exercise its right to choose under clause 7.6.1.2 at any time and that it does not have to consult with or seek the agreement of employees. 8 Boeing contended that the second element can give rise to an entitlement to an additional public holiday. Mr Colman put it as follows:
“…one of the options for the employer to schedule the additional day is such other day as is generally observed in a locality as a substitute for any of the said days.” 9
“If there were to be Sale Cup Day or Werribee Cup Day, Fishermen's Bend, Picnic Day - whatever it might be - well, that's not really relevant. Go back to the Sale Cup Day. We - the company - could schedule the Sale Cup Day as the additional day and you would still get Melbourne Cup Day.” 10
“…In a sense, it doesn't practically arise. But I wanted to make sure that I addressed this point because you were wondering how this second limb would work. It doesn't have any application because there aren't any specially observed local holidays that are relevant to this agreement that the Boeing Aero Structures Australia Pty Ltd Port Melbourne Enterprise Agreement - so far as I'm aware - this is just not a relevant point. But we need to make sense of what it means and I wanted confirm that we concur with what you characterise as that being our argument.
And it's consistent with what we say is the scheme of the provision of 12 public holidays that are prescribed and one that is an additional day scheduled by the employer in any one of three circumstances which could be a day during the Christmas, New Year shutdown period. It could be the Sale Cup Day - observed in addition to Melbourne Cup Day - or, it could be a proclaimed additional day for the State of Victoria.” 11
[35] Boeing raised no issue as to the operation of clause 7.6.1.2 when the first additional public holiday was appointed in February 2015. Boeing only raised an issue as to the operation of clause 7.6.1.2 when the public holiday for the Friday before the Australian Football League Grand Final was appointed.
[36] An explanation for the difference in the position adopted by Boeing in relation to both the additional public holiday in January 2012 and the additional public holiday on Easter Sunday 2015 and the position adopted by Boeing in relation to the additional public holiday for the Friday before the Australian Football League Grand Final is that the first two extra public holidays fell on non-workdays, whereas the Friday before the Australian Football League Grand Final public holiday fell on a workday. As Mr Colman on behalf of Boeing put it like this:
“What emerged was a conclusion which no one disagrees with, that for a long time this day has been observed during the Christmas, New Year shutdown period. It has, and the reason that's the case is because we haven't had this particular circumstance come up. We have had Easter Sunday be prescribed, it was a day no work was scheduled to occur on. We haven't had the situation where it's a workday, and all of a sudden we have a workday, the Friday before Grand Final Day is prescribed in August as a public holiday.” 12
[37] It is clear from the submissions of both parties that no attention was paid to the wording of clause 7.6 when the current Agreement was made.
[38] The evidence and contentions from both parties makes clear that for at least 20 years clause 7.6.1.2 and its predecessor provisions have been applied on the basis that the additional public holiday provided by that provision was each year taken in the Christmas / New Year period.
[39] As Mr Colman for Boeing contended, this wasn’t because of any specific attention to the possible meaning of clause 7.6.1.2 but rather simply because the possibility of either substitute days or additional declared public holidays had not arisen before. This year was the first time that additional public holidays had been declared in Victoria.
[40] The weakness in this contention is that, as discussed above at [22] to [24], in 2012 there was an additional public holiday declared in Victoria yet Boeing still provided employees with a further additional public holiday in accordance with the first element of clause 7.6.1.2.
Consideration
[41] The contention of the AMWU that Boeing had an obligation to consult with employees before removing the additional public holiday in the Christmas/New Year period because of the requirement to consult about the introduction of significant change must fail. The obligations on Boeing arise under clause 1.7 of the Agreement which also incorporates a definition from the modern award. Clause 1.7 provides as follows:
“1.7 INTRODUCTION OF CHANGE
The parties to this Agreement undertake the following:
The need to maintain a program of change at Boeing Aerostructures Australia that enables the Company to succeed in being world class in relation to productivity, product quality, customer service and cost competitiveness is critical. Support for the Boeing Aerostructures Australia change program is fundamental to the Agreement. The program for change on an on-going basis will emerge at both a Company and Site level during the life of the Agreement.
Where the Company has made a definite decision to introduce major change in production, program, organisation, structure or technology that are likely to have significant effects on employees, or if the Company proposes to introduce a change to the regular roster or ordinary hours of work of employees, the Company shall notify the employees who may be affected by the proposed changes and their union or unions.
For the purpose of defining Significant effects, refer to clause 9.1(b) of the Manufacturing and Associated Industries and Occupations Award 2010.
The Company shall discuss with the employees affected and their union or unions, the introduction of the changes referred to in this clause, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and/or their unions in relation to the changes.
Where the proposed change relates to regular roster or ordinary hours of work for employees, the Company must:
(a) Discuss with the relevant employees the introduction of the change;
(b) For the purposes of the discussion, provide to the relevant employees:
a. All information about the change including the nature of the change;
b. Information about what the Company believes will be the effects of the change on the employees; and
c. Information about any other matters that the Company reasonably believes are likely to affect the employees, and
(c) Invite the relevant employees to give their views on the impact of the change (including any impact in relation to their family or caring responsibilities).
The discussions shall commence as early as practicable after a definite decision has been made by the Company to make the changes referred to above. The Company shall give prompt consideration to matters raised by the employees and/or their unions in relation to the changes.”
[42] Whilst clause 1.7 of the Agreement refers to the definition of significant effects in clause 9.1(b) of the Manufacturing and Associated Industries and Occupations Award 2010, that reference is clearly wrong. It must be accepted that the drafters of the Agreement intended to refer to the definition of significant effects in clause 9.1(a)(ii) of the Award which is as follows:
“9.1(a)(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.”
[43] Clause 1.7 requires that Boeing consult if it introduces major change which has significant effects. The allocation of an extra public holiday whether during the Christmas/New Year period or at another time does not fall within the definition of significant effects nor would it be a major change “in production, program, organisation, structure or technology”. To the extent that Boeing has an additional obligation to consult in relation to proposed changes relating to regular roster or ordinary hours of work for employees the allocation of an extra public holiday whether during the Christmas/New Year period or at another time does not constitute a change to a regular roster or hours of work.
[44] The primary dispute between the contentions of Boeing and the AMWU concerns the operation of clause 7.6.1.2. In circumstances where the parties have taken such diametrically opposed positions it should not be surprising that the proper interpretation of clause 7.6.1.2 accords with neither parties contentions.
[45] As the Act makes very clear an enterprise agreement can repeat NES entitlements and it can supplement NES entitlements but an enterprise agreement cannot exclude an NES entitlement.
[46] The purpose of clause 7.6 is to provide, at the very least, an entitlement to 13 public holidays in circumstances where the NES provides an entitlement to as few as 8 public holidays, being the named days in s.115(1)(a).
[47] As clause 7.6.1.1 provides for the first 12 public holidays then it is clause 7.6.1.2 which provides for the 13th public holiday.
[48] In the context of the legislative framework in which the Agreement operates there is nothing more that clause 7.6.1.2 need do than provide for the 13th public holiday which the Agreement guarantees as the minimum entitlement under the Agreement. Clause 7.6.1.2 does not need to create an entitlement to more than the 13th public holiday.
[49] The meaning of clause 7.6.1.2 contended for by the AMWU is so strained as to be unrealistic. The AMWU contend that the first and third elements of clause 7.6.1.2 are cumulative but that the second element is not cumulative with either or both the first and third elements. This means that the first “or” is disjunctive and the second “or” is conjunctive but that the second “or” does not create a conjunction as between the second and third elements of clause 7.6.1.2 but rather creates a conjunction as between the first and third elements of clause 7.6.1.2. To ascribe to the second element of clause 7.6.1.2, as does the AMWU, a meaning which has nothing to do with the provision of an additional day and everything to do with substitution of one of the 12 public holidays provided by clause 7.6.1.1 simply highlights how unrealistic is the whole approach of the AMWU to clause 7.6.1.2 and 7.6.1.1.
[50] The simplest reading of clause 7.6.1.2 provides the meaning with the greatest clarity and avoids the language gymnastics that had to be engaged in by the AMWU.
[51] Clause 7.6.1.2 comprises three elements separated by the word “or”.
[52] Both the Commission and Boeing accept that the word “or” can be read as “and” in certain circumstances and neither the Commission nor Boeing cavil with the correctness of the authorities relied upon by the AMWU. But as Mr Colman nicely put it:
“The critical thing is the content, and in each of those cases that (Mr Vroland) referred to, I must say, Commissioner, I had the impression that the outcome was the correct one in those particular cases, because in each instance - well, in none of those instances did it involve an entitlement as we have here, where we have wording that says "There shall be an additional day in circumstances A or B or C". None of those cases were at all like that. Rather, they were in circumstances where it makes sense contextually to read them together. "A Minister can consider the following considerations, namely A or B or C." Of course the Minister can consider all of them, or "An application can be made by applicant A, B or C", of course they can all together.
So context is everything, and in my submission, there was a lot of focus on the decisions, the context of which is very different but not that much focus on the context of the word "or" in clause 7.6.1.2.” 13
[53] In the context of a provision of an enterprise agreement which is to provide an entitlement to a 13th public holiday when the other 12 public holidays have been specified the simplest way to read and apply clause 7.6.1.2 is to treat the word “or”, twice appearing, in the disjunctive sense. This gives effect to the plain meaning of the words of the provision.
[54] In other words the three elements of clause 7.6.1.2 are three separate alternatives. An employee can obtain the entitlement to a 13th public holiday under any one of the three elements but once the entitlement to the 13th public holiday is identified then the other alternatives cannot be used to create an entitlement to more than 13 public holidays.
[55] Part of the interpretation contended for by Boeing is answered by reading clause 7.6.1.2 according to the plain meaning of the words. However, part of the interpretation of clause 7.6.1.2 contended for by Boeing requires reading into that clause additional words.
[56] Boeing contended that clause 7.6.1.2 must be understood as giving Boeing the right to decide, at any time, which of the three elements of clause 7.6.1.2 will be used in any year to create the entitlement to the 13th public holiday.
[57] Boeing contended that clause 7.6.1.2 could not be interpreted as operating automatically so that where the third element was applicable it would oust the operation of the first element:
“THE COMMISSIONER: ….is it possible to read 7.6.1.2 to say that the purpose of specifying the Christmas, New Year day is to ensure that there is some degree of certainty around the taking of the 13th day, but if that certainty is provided by the State Government declaring an additional day then that certainty is not needed because it's replaced. In other words, the third element of 7.6.1.2 operates to oust the day during the Christmas, New Year period.
MR COLMAN: I think that's reading too much into the clause, Commissioner.” 14
And further:
“MR COLMAN: Commissioner, our submission is clause 7.6.1.2 is in stark contrast to clause 7.6.1.7 which does require agreement.
THE COMMISSIONER: Yes.
MR COLMAN: That is our submission, Commissioner, and I reiterate that we say this is not a case of substitution but one of working out and determining the additional day, the one additional day that will be observed under the agreement as the 13th public holiday.” 15
[58] The Commission agrees with the contention of Boeing that it would be reading too much into clause 7.6.1.2 to have the clause operate automatically so that the third element could oust the first element.
[59] The Commission also agrees with the contention of Boeing that clause 7.6.1.2 is in stark contrast to clause 7.6.1.7 which requires agreement from the majority of employees before substitution of public holidays can occur.
[60] It is relevant to look at the substitution provisions in clause 7.6.
“7.6.1.3 Substitution of certain public holidays which fall on a weekend
7.6.1.4 Where Christmas Day falls on a Saturday or a Sunday, 27 December shall be observed as the public holiday in lieu of the prescribed day.
7.6.1.5 Where Boxing Day falls on a Saturday or a Sunday, 28 December shall be observed as the public holiday in lieu of the prescribed day.
7.6.1.6 Where New Year's Day or Australia Day fall on a Saturday or a Sunday, the following Monday shall be observed as the public holiday in lieu of the prescribed day.
For the purposes of this Agreement the said Saturday and/or Sunday shall be deemed not to be holidays.
7.6.1.7 Substitution of public holidays by agreement at the enterprise
By agreement between the employer and the majority of employees in the relevant enterprise or section of the enterprise, an alternative day may be taken as the public holiday in lieu of any of the prescribed days.”
[61] Clauses 7.6.1.3 to 7.6.1.6 deal with substitution of certain public holidays where the trigger for substitution is identified and the outcome is identified. Neither Boeing nor its employees nor the employees representatives need do anything. The provisions operate automatically.
[62] Clause 7.6.1.7 provides for substitution of public holidays and requires that substitution can only occur where there is agreement between Boeing and the majority of employees in the relevant enterprise or section of the enterprise. The clause provides for a process but does not mandate an outcome.
[63] The stark contrast between clause 7.6.1.2 and clause 7.6.1.7 is that clause 7.6.1.2 provides for an outcome but does not provide for a process to achieve that outcome, whereas clause 7.6.1.7 provides for a process but not an outcome.
[64] Boeing contended that clause 7.6.1.2 could not be interpreted on the basis that employees could choose which of the three elements of the clause provided the 13th public holiday provided by the Agreement. As Mr Colman put it:
“THE COMMISSIONER: So, why can't they choose which of the additional days is the day that they go - they're selecting.
MR COLMAN: If we take the situation that occurred this year where, out of the blue, in August, we find ourselves with an additional prescribed public holiday for Victoria. Then, if it required agreement, or for your example, Commissioner, if the employee were able to choose of course the employee would never choose - the union or the employees would never choose to have the additional day recognised on the new Victorian Public Holiday because they would lose a day.
In fact, this is precisely the point. The whole point of this clause is to provide the employer - is to provide - and it makes sense that there will be such a provision that allows the employer to move it around, to move the day, to respond to a situation where there is an additional public holiday prescribed in Victoria.
Otherwise, can you see what I mean, Commissioner? That when would an employee in the circumstances of this year which is the present example, when would an employee ever agree to that? So it must be the employer that schedules it. It has been, we've heard from the evidence, the employer who schedules it.” 16
[65] The Commission agrees with the contention of Boeing that clause 7.6.1.2 does not provide an entitlement for employees to choose which element of the clause will give rise to the 13th public holiday provided by the Agreement. As Boeing correctly contended, employees would not choose to use the third element of clause 7.6.1.2 as the 13th public holiday if it meant that practically they would be losing a public holiday on a work day.
[66] What’s good for the goose is good for the gander. If it is not permissible to read into clause 7.6.1.2 words that entitle the employees to select which element of clause 7.6.1.2 is used to create the 13th public holiday provided by the Agreement how is it permissible to read into clause 7.6.1.2 words that entitle the employer to select which element of clause 7.6.1.2 is used to create the 13th public holiday provided by the Agreement?
[67] As this matter makes clear, Boeing will, if entitled to choose which element of clause 7.6.1.2 is used to create the entitlement to the 13th public holiday provided by the Agreement, apply the clause so as to minimise the impact on Boeing of employees getting additional public holidays on work days.
[68] Just as there is no need to read into clause 7.6.1.2 any words which give employees the right to choose how the clause is to operate, there is also no need to read into clause 7.6.1.2 any words that give Boeing the right to choose how the clause is to operate.
[69] This conclusion is not reliant solely upon the plain words of clause 7.6.1.2 but is consistent with the structure of the Agreement as a whole.
[70] Mr Colman’s contention that the evidence establishes that it is Boeing that schedules the 13th public holiday provided by clause 7.6.1.2 is only partially correct. Whilst I accept that Boeing issues the annual schedule of days off and close down period, it does so only after consultation with the employee representatives. So much is clear from the evidence.
[71] This evidence is also consistent with the terms of the Agreement.
Clause 1.8 of the Agreement provides as follows:
“1.8 CONSULTATION
The parties to this Agreement recognise the value of consultation as a fundamental means of communication and decision making. To be effective, consultation must occur between the industrial parties (union and management), between management, employees and their representatives.
The development of effective participative/consultative practices is important in the process of change and will lead to advantages for both the Company and Employees. It is therefore agreed that participative/consultative arrangements will be applied as follows:
The current consultative forum will continue to operate as per its current structure unless varied by agreement.
Employees shall be represented at least equally on the consultative committee by their elected union delegates, or employee representatives nominated for the purpose of the union. Joint subcommittees may be established for specific purposes and may be comprised of persons nominated by the parties.”
[72] The evidence about meetings between the employee representatives and Boeing in November each year to discuss the calendar for the following year is absolutely consistent with the operation of clause 1.8.
[73] There is no need to read into clause 7.6.1.2 the additional words sought by Boeing. The very lack of words in clause 7.6.1.2 as to how that clause is to operate to provide the 13th public holiday provided by the Agreement strongly supports the operation of clause 1.8 of the Agreement.
[74] Clause 1.8 only provides for a consultative process and it is clear that clause 1.8 does not provide a mechanism for resolution of matters upon which no agreement can be reached through the consultative process under that clause.
[75] However, once again the terms of the Agreement provide the appropriate answer. Part 2 of the Agreement is as follows:
“PART 2 DISPUTES AVOIDANCE PROCEDURE
(a) It is the intention of this Agreement to demonstrate to Boeing Aerostructures Australia's customers that it is committed to ensuring continuity of services to those customers. Further, it is recognised by Boeing Aerostructures Australia, its employees and their unions that this commitment is vital to the continual viability of Boeing Aerostructures Australia and to improve the job security of employees.
(b) The Company, the union(s) and the employees recognise the importance of uninterrupted production and delivery performance and agree that they and their appropriate representatives will confer to resolve any industrial matter in dispute between them (including matters under the National Employment Standards and this Agreement) without resort to industrial actions of any kind by the union(s) or its members. In the event the matter is not resolved by agreement, it will be referred to Fair Work Commission . No party will be prejudiced as to the final settlement by the continuance of work in accordance with this provision.
(c) The parties also recognise that issues affecting employees should be resolved speedily and effectively and that most issues will be resolved informally between the employee and the immediate supervisor.
(d) The following formal procedure for the resolution of problems will apply
Stage 1 All matters shall be raised by employees and/or their representatives in the first
instance with the employee’s immediate supervisor
Stage 2 If the matters remain unresolved they shall be raised by the employee and/or
their representatives with the employee’s manager.
Stage 3 If the matters thereafter remain unresolved they shall be referred by the
employee or their representatives to the Company’s Human resources section,
which will respond to the issues within 48 hours (excluding weekends, rostered
days off and public holidays)
Stage 4 Where the matters are complex and may take time to resolve a timetable for
further discussions shall be agreed.
Stage 5 If a dispute in relation to a matter arising under the Agreement is unable to be resolved at the workplace and all agreed steps for resolving it have been taken, the dispute may be referred to Fair Work Commission (FWC) for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary, FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.
Any dispute referred to FWC for arbitration will bind the parties, subject to either party
exercising a right of appeal against a decision.
Until the matter is determined, work shall continue in accordance with existing practice subject only to safety issues, where the work shall be deferred until the matter is determined. No party shall be prejudiced as the final settlement by the continuance or deferment of work in accordance with this subclause.
At any stage of the dispute resolution process, a party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.”
[76] It is clear from the plain words of Part 2 of the Agreement that where agreement cannot be reached after consultation under clause 1.8 in relation to the operation of clause 7.6.1.2 then there is a simple and clear process for resolving the industrial matter in dispute.
[77] Clause 7.6.1.2 cannot be read and understood in isolation from the other terms of the Agreement. When clause 7.6.1.2 is read and understood in the context of the Agreement’s terms at clause 1.8 and Part 2 then it is extremely clear that there is no need to read into clause 7.6.1.2 the words proposed by Boeing.
[78] Equally, the stark contrast between clause 7.6.1.2 and 7.6.1.7 makes eminent sense when clause 7.6.1.2 is considered in the context of the operation of clause 1.8 and Part 2 of the Agreement. The very absence of a process in clause 7.6.1.2 is explained by the presence of the processes contained in clause 1.8 and Part 2 of the Agreement. The very presence of a process in clause 7.6.1.7 means that the processes in clause 1.8 and Part 2 cannot apply. This also makes sense in the context of the Agreement as a whole.
[79] Having determined the proper operation of clause 7.6.1.2 it is now possible to resolve the dispute as notified in the application in this matter namely:
“2.1 What is the dispute about?
The respondent has informed its employees covered by the Agreement of a decision to absorb a new public holiday gazetted by the Victorian Government, viz., Grand Final Friday (2 October 2015), into the Agreement’s general provision of 13 public holidays per year.” |
[80] The evidence in this matter clearly establishes that Boeing and employee representatives met in late 2014 to discuss the schedule for 2015 and that part of that discussion was settling on the 13th public holiday required to be provided by clause 7.6.1.2. The outcome of the discussions in late 2014 was that the first element of clause 7.6.1.2 would be used to provide the entitlement to the 13th public holiday required to be provided to employees by the Agreement. Thus it is clear that a process was adopted which was consistent with clause 1.8 of the Agreement to select the 13th public holiday required to be provided under clause 7.6.1.2 in 2015. No dispute existed between Boeing and its employees in relation to the operation of clause 7.6.1.2 or as to the operation of clause 1.8 in relation to determining the 13th public holiday required to be given under clause 7.6.1.2.
[81] In August 2015 Boeing sought to resile from the outcome agreed with employee representatives in late 2014 and communicated to all employees through the issuing of the 2015 calendar. Boeing did not utilize the consultative process set out in clause 1.8 to raise with employees its proposal to resile from the position accepted by it in late 2014 and Boeing did not utilize the processes in Part 2 of the Agreement to resolve any potential or actual dispute concerning Boeing’s proposal to resile from the position accepted by it in 2014. Rather Boeing acted unilaterally in resiling from the position accepted by it in late 2014. The position adopted by Boeing in acting unilaterally is consistent with its interpretation of the clause 7.6.1.2. The consideration of and determination of the proper meaning and operation of clause 7.6.1.2 and other terms of the Agreement makes very clear that Boeing did not have at any time the right to act unilaterally in resiling from the position accepted by it and employees in late 2014 in relation to the identification of the 13th public holiday pursuant to clause 7.6.1.2 for 2015.
[82] Nothing in the terms of the Agreement required Boeing to accept, in late 2014, that the 13th public holiday required to be provided to employees in 2015 would be provided in accordance with the first element of clause 7.6.1.2. Clause 7.6.1.2 does not contain a timing requirement. Obviously, it was a matter of convenience to have the 2015 calendar settled with employees before 2015.
[83] It would appear to be completely incompatible with the purpose of the Agreement, (including clauses 7.6.1.2 and clause 1.8), to permit Boeing to obtain the result it seeks through its unilateral resiling from the position it accepted in late 2014 as to the use of the first element of clause 7.6.1.2 to set the 13th public holiday in 2015.
[84] As the earlier discussion on the legislative context makes clear, clause 7.6 of the Agreement provides for a minimum of 13 public holidays but not a maximum of 13 public holidays. In the circumstances of the present matter where in late 2014 Boeing, after discussion with employee representatives, set the 13th public holiday for 2015 according to the first element of clause 7.6.1.2, then, any additional public holidays in 2015 occur, not because of the operation of the Agreement but rather through the operation of the legislation.
[85] I again note that this dispute only arose because of Boeing’s concern over an additional public holiday being created by the Victorian Government and which fell on a workday - the Friday before the Australian Football League Grand Final. Boeing had no concern when the Victorian Government created an additional public holiday which fell on a non-workday – Easter Sunday. Boeing’s change in position depending whether a public holiday fell on a workday or a non-workday simply reflects any employers concerns around costs to the business. However, the determination of the proper meaning and application of the public holiday entitlements of employees under the NES and the Agreement must ignore whether a public holiday falls on a workday or a non-workday. Even though throughout this decision the Commission has referred to the entitlement of employees to a minimum of 13 public holidays under the Agreement that entitlement is always conditional on the pattern of work of an employee. The entitlement whether under the NES or the Agreement has never been to a number of paid days off work. The entitlement has always been for an employee to be paid for not attending work on days which the employee would normally attend work but where the normal workday is a public holiday. The opening words of clause 7.6.1.1 make this abundantly clear.
[86] Just as there are different cost outcomes to Boeing depending on whether a public holiday falls on a workday or a non-workday so are there different benefit outcomes for employees depending on whether a public holiday falls on a workday or a non-workday.
[87] Considering the costs to Boeing or the benefits to employees in relation to any or all of the public holidays is to consider an irrelevant matter. The Agreement permits part time employment and an employee employed on a part time basis to work a standard 7.6 hour day on each of Tuesday, Wednesday and Thursday each week would never receive 13 paid days off work as public holidays. The very structure of clause 7.6.1 and 7.6.3 make it clear that for such a part time employee most public holidays will fall on the non-workdays for that part time employee. A Tuesday, Wednesday and Thursday part time employee could not claim either under the NES nor the Agreement that they had an entitlement to public holidays which fell on the employee’s non-workdays. This is not a new revelation, it has been a fact of life for part time employees in many industries for a very long time.
[88] In all of the circumstances of this matter the proper resolution of the matter in dispute is that employees entitlement to the 13th public holiday provided for by clause 7.6.1.2 is to be the day set in the 2015 calendar within the Christmas / New Year period, namely 24 December 2015. The public holidays on Easter Sunday and the Friday before the Australian Football League Grand Final are additional days provided to employees through the operation of the legislation and not through the operation of the Agreement.
[89] The determination of this dispute provides the parties with the necessary understanding of the operation of clause 7.6 so as to enable them to usefully engage in the consultative process required by clause 1.8 to identify which element of clause 7.6.1.2 will be used for the setting of the 13th public holiday in 2016.
COMMISSIONER
Appearances:
D. Vroland for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
A. Colman of counsel for Boeing Aerostructures Australia Pty Ltd.
Hearing details:
2015.
Melbourne:
November 9
1 Print K1124.
2 [2014] FWCFB 7447.
3 Transcript at PN984 – PN1012 and PN1031 – PN1033.
4 Ibid at PN125.
5 Transcript at PN682.
6 Ibid at PN711 – PN715.
7 Ibid at PN704 – PN706.
8 Ibid at PN859 – PN861 and PN883 and PN928 – PN930 and PN949 – PN954.
9 Ibid at PN704 – PN706.
10 Ibid at PN765.
11 Ibid at PN767 – PN768.
12 Ibid at PN941.
13 Ibid at PN937 - PN938.
14 Ibid at PN911 – PN912.
15 Ibid at PN928 – PN930.
16 Ibid at PN881 – PN884.
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