“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v T.O.P Welding & Construction Pty Ltd
[2020] FWC 5376
•8 OCTOBER 2020
| [2020] FWC 5376 |
| 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
T.O.P. Welding & Construction Pty Ltd
(C2020/3759)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 8 OCOTBER 2020 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s.186(6)] - clause 19A Public Holidays.
[1] On 20 May 2020, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), filed an application Fair Work Commission concerning a dispute with T.O.P. Welding & Construction Pty Ltd (Respondent), over the application of the TOP Welding & Construction Latrobe Valley Power Industry Agreement 2017-2021 (the Agreement). The applicant applies on behalf of its members employed by the respondent under the Agreement.
[2] Conferences were held for this matter on 3 and 10 June 2020. The then presiding member recused them self and asked for this matter to be re-allocated to another member for arbitration. The matter was allocated to my Chambers on 11 June 2020 where I held a further conference on 24 June 2020. On that day, my Chambers issued directions for arbitration.
[3] It was agreed that this matter be dealt with on the papers. I have had regard to all submissions and evidence. It was agreed that the dispute settlement procedure in the agreement applies and that pursuant to that procedure I have the power to now determine the matter by way of arbitration where the dispute remains unresolved after a conciliation conference has been conducted by the Commission, and I so find. 1
Background
[4] The factual background is not in contest in this matter. On 23 April 2020, Paul Richards, acting Employee Representative requested advice from the respondent as to whether Monday, 27 April 2020 would be a substituted public holiday for ANZAC day which fell on Saturday 25 April 2020. The Respondent advised that pursuant to Victorian legislation the Monday would either be a workday or Rostered Day Off (RDO) depending on the respondent’s site requirements. In the week leading to ANZAC day, the Respondent notified Agreement covered employees that they would not be required for work on Monday, 27 April 2020 and if employees sought to be paid on the Monday they could either take an RDO or apply for a day.
[5] Mr Richards then spoke to the Respondent’s Site Supervisor, Kenny Mckay and the Director, Bob Pacunskis who advised that ANZAC day was not a substituted Public Holiday in Victoria and that Monday 27 April 2020 would be scheduled as RDO, and all employees were accordingly required to submit a leave form.
[6] On 24 April 2020, AMU official Steve Dodds called the Respondent and advised that a dispute would to be lodged with the Fair Work Commission seeking ordinary pay for Monday 27 April 2020.
[7] Monday 27 April 2020 was scheduled as a RDO and no work was required to be undertaken onsite. All employees were advised to take the RDO in accordance with normal practice. However, no Agreement covered employee applied to take a RDO or a day’s annual leave for the Monday.
[8] An application was then lodged with the Fair Work Commission 20 May 2020.
The Agreement
[9] The dispute concerns the interpretation of clause 19A of the Agreement:
“19A PUBLIC HOLDAYS
A full-time employee shall be entitled to the following Public Holidays without loss of pay:
NEW YEARS DAY | ANZAC DAY |
AUSTRALIA DAY | QUEEN’S BIRTHDAY |
LABOUR DAY | MELBOURNE CUP |
GOOD FRIDAY | CHRISTMAS DAY |
EASTER SATURDAY | BOXING DAY |
EASTER MONDAY |
For the purpose of this agreement where any of the above Public Holidays falls on a Saturday or Sunday, the following workday will be the Public Holiday. (Excludes Easter Saturday). Work on any of these days will be subject to the normal overtime penalty rates. Work on any of the substitute days will be paid at Public Holiday rates.
PICNIC DAY (first Monday in December)
Employees (including casuals employed on site on the Friday or weekend prior to and the day after Picnic Day will be entitled to attend the Picnic Day without loss of pay. Where employees are required to attend work on Picnic Day this shall be by agreement between the parties.”
[10] Relevantly, clause 6 of the Agreement provides as follows:
“6. RELATIONSHIP TO PARENT AWARD & NATIONAL EMPLOYMENT STANDARDS (NES)
This Agreement shall incorporate the terms of and be read and interpreted wholly in conjunction with the
• Manufacturing and Associated Industries and Occupations Award 2010 MA000010 (hereinafter referred to as the Award)
and the
• Metal, Engineering and Associated Industries Award 1998- Part IV Long Service Leave
• Metal, Engineering and Associated Industries (Accident Pay, Victoria) Award 1998
as they stood on 1 March 2006.
Where there is inconsistency between this agreement and the Award, this agreement shall take precedence to the extent of any inconsistency.
It is the parties intent that this agreement complies with the NES.”
The National Employment Standards – Public Holidays
[11] The National Employment Standards (NES) provides the following with respect to public holidays:
“Section 115 – Meaning of public holiday
(1) The following are public holidays:
(a) each of these days:
…
(v) 25 April (Anzac 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.
(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 .
…
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)).”
The Victorian Public Holiday Act
[12] The public Holidays Act 1993 (Vic) provides the following with respect to public holidays:
“Section 6 – Public holidays
The following days are appointed as public holidays:
…
(h) 25 April (ANZAC Day);
…
(ia) the Friday before the Australian Football League Grand Final;”
Submissions
AMWU Submissions
[13] The AMWU submit that the issue turns on whether employees are entitled to payment for the 27 April 2020 under the clause 19A of the Agreement. According to the approach adopted in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited, 2 (Berri) the AMWU submit that it is necessary to look beyond the clause and the context in which the clause operates. The legislative context in which the Agreement and clause operate arise pursuant to ss.55-57, 115, and 116 of the Act.3
[14] The AMWU contend that the Clause has force as a term of an “enterprise agreement” and enterprise agreements are but one source of employee entitlements with further entitlements arising out of the Award and the NES. The NES provide a statutory minima of entitlements and Awards become nullified where an enterprise agreement is in operation. Taken in this context and with the impugned clause in mind, the clause provides a superior entitlement to employees than those benefits found in the NES. There may be times when the NES intrude into the clause’s functioning because the NES can operate to augment or modify the clause. For example, s. 115(1)(b) can work to add further holidays and s. 115(2) could have Victorian laws operate to substitute another day for a holiday referred to in the clause. 4
[15] Clause 6 of the Agreement states that the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) is to be incorporated into the Agreement, with the terms of the Manufacturing Award being read and interpreted wholly in conjunction with the Agreement. This clause makes the terms of the Manufacturing Award apply as terms of the Agreement, however, the express terms of the Agreement have precedence over the incorporated Manufacturing award terms to the extent of any inconsistency. Although the Agreement contains other Awards in clause 6, their incorporation is fixed in time. Thus, the Manufacturing Award is the real successor Award. With this in mind, public holidays are dealt with in clause 45 of the Award by referring to the NES as the primary source of the entitlement, setting out ways in which employees and employers could substitute another day for a public holiday, and has provisions dealing with where a RDO falls on a public holiday. 5
[16] The AMWU submit that the Clause can be interpreted without resorting to the context found in the Act, the terms incorporated from the Manufacturing Award, or the provisions elsewhere in the Agreement. 6 Consistent with principle in Berri, meaning can be derived from the plain text of the Clause. The head-clause of the Clause reads:
“A full-time employee shall be entitled to the following Public Holidays without loss of pay”.
[17] The expression “full-time employee” is co-extensive with a permanent or “weekly” employee based on clause 13 of the Agreement. There is then a list of public holidays, one of them being ANZAC Day. Below the list of public holidays the provisions provide:
“For the purpose of this agreement where any of the above Public Holidays falls on a Saturday or Sunday, the following workday will be the Public Holiday.”
[18] The AMWU submit that on this basis there is no possibility to deviate from the ordinary and plain meaning of the expression above. ANZAC Day falling on a Saturday requires the following workday to become the public holiday without loss of pay. When the Respondent did not afford this to Agreement employees, they subsequently contravened the Agreement. 7
Respondent Submissions
[19] The Respondent contends that employees engaged under the Agreement are not entitled to ordinary pay on Monday 27 April 2020 on the basis that Monday 27 April 2020 was not a public holiday or a substituted public holiday under the Agreement, when read in conjunction with the Manufacturing Award, National Employment Standards and the Victorian Public Holidays Act 1993 (Vic). 8
[20] The respondent submits that, pursuant to clause 6, the Agreement is to be is read and interpreted in conjunction with the Manufacturing Award and the NES. The NES does not exclude State laws that deal with the declaration, prescription or substitution of public holidays. The Respondent submits that it is therefore relevant to consider the Public Holidays Act 1993 (Vic). 9
[21] Section 8 of the Public Holidays Act 1993 (Vic) provides that a day appointed as a public holiday under section 6 may be substituted with a different day by the Minister by way of notice published in the Government Gazette. However, the Minister did not publish a notice under section 8 with respect to 25 April 2020 with the Business Victoria Website relevantly providing:
“ANZAC Day is commemorated on the day it falls. There is no replacement public holiday when ANZAC day falls on a weekend.”
[22] As such, ANZAC Day is appropriately commemorated on the day it falls and should not be substituted. 10 In 1922 the Australian government declared 25 April to be a full public holiday with all businesses closing as a mark of respect. It is the significance which the day marks to suggest why it is commemorated on the day it falls and why no substitute public holiday arises unless specifically mandated by a government of a State or Territory.11
[23] The Respondent submits that regard must be had to the Manufacturing Award and the NES when interpreting the Agreement. When clause 19A in the Agreement is read in context with the Manufacturing Award and the NES, an ambiguity arises which has resulted in the current dispute with respect to ANZAC day. The Respondent suggests that the ambiguity is resolved by considering the Victorian legislation with respect to public holidays, which is explicitly permitted under the NES and that ANZAC day is commemorated on the day which it falls and is not to be substituted. 12
[24] Additionally, the Respondent submits that the Agreement employees covered are not entitled to ordinary pay for 27 April 2020 as they did not work on 27 April 2020. Further, employees who decided not to fill in a leave form which resulted in non-payment for the day in question was a matter of personal choice and their failure to complete a leave form is inconsistent with clause 11 of the Agreement – Dispute Resolution / Avoidance Procedure and are as such not entitled to payment. 13
Authorities
[25] A Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 14 summarised the approach to be taken in construing an enterprise agreement. I do not set out those principles in full, but I adopt them. The required approach to be undertaken has been summarised by the Full Court of the Federal Court in Workpac Pty Ltd v Skene15 as follows:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; 138 IR 286 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”
Consideration
[26] I now turn to consider the ordinary meaning of the relevant words in clause 19A and other aspects of the principles summarised in Berri. The AMWU submits that the words are unambiguous and are clear in their intent. The Respondent submits that as the Agreement incorporates the terms of the Manufacturing Award and the NES, regard must also be given to the Public Holidays Act 1993 (Vic), and that the differences between these instruments demonstrate an ambiguity.
[27] Clause 19A has a plain and ordinary meaning on its face. It provides an entitlement for full-time employees to access a public holiday without loss of pay and where any of those public holidays fall on a weekend, the following workday will be observed as the public holiday. It provides:
“For the purpose of this agreement where any of the above Public Holidays falls on a Saturday or Sunday, the following workday will be the Public Holiday. (Excludes Easter Saturday). Work on any of these days will be subject to the normal overtime penalty rates. Work on any of the substitute days will be paid at Public Holiday rates.”
[28] The clause does contain an express exception, that being Easter Saturday. Easter Saturday does not carry over and is not taken on the ‘following workday’. It is only taken on Saturday. There is however no express exception for ANZAC day. On one view if the parties had intended to treat ANZAC day in the same manner as Easter Saturday, they might be expected to provide a similar express exception. This important issue of context suggests that the fact that they have not means that they did not intend to treat the two in the same manner. It is difficult to imply an exemption for ANZAC day that is not expressly made, when an express exemption for Easter Saturday is expressly made.
[29] Further, as the AMWU submits, 16 the clause can be interpreted in context without resort to the Act and the Manufacturing Award to change its ordinary meaning.
[30] Are there any other issues of context? The respondent submits that Easter Saturday falls on a Saturday, and ANZAC day is always commemorated on 25 April. The respondent submits that ANZAC day has great significance for Australian and New Zealand citizens, that we should have regard to what it is commemorated for, and that the 25th of April is marked as a day of respect for those who have served and died in wars and peace-keeping efforts. I accept that ANZAC day has this significance.
[31] However, with respect, commemoration is not an identical issue to the taking of a public holiday. A public holiday is a day off work, or penalty rates are paid, and there are other beneficial consequences for employees, for example, where a public holiday falls on a weekend, the following workday will be deemed the public holiday and any employee working on those days will be subject to normal overtime penalty rates and work on any of the substitute days will be paid at public holiday rates. 17 It is open to the parties to provide for example that a day of significance such as ANZAC day always has the beneficial results of an agreement public holiday for employees, instead of those beneficial results being lost in whole or in part, and this is what the agreement appears to have done. If anything this is consistent with the importance and significance of ANZAC day, by ensuring that beneficial results always apply even if the day falls on a weekend.
[32] The issue dealt with the Agreement is that of what the Agreement provides when the public holiday falls on a weekend. Is there an actual day off work for workers who work Monday to Friday for example, or is there only the ordinary weekend day off, which is less beneficial to employees in various respects in terms of entitlements? On its ordinary meaning the clause provides an actual day off from work additional to the ordinary weekend day off which might apply for some. It does this by providing that ‘the following workday shall be the Public Holiday’, meaning the enterprise agreement public holiday applies during workdays, with all the beneficial consequences that this involves. This does not detract from the significance and importance of ANZAC day. Again, it may in fact arguably be a recognition of its importance, by ensuring that the various arguably beneficial results for employees are not lost if the day falls on a weekend.
[33] While there is an express exception for Easter Saturday, there is no express exception for ANZAC day, which might suggest that the parties intended to treat the two days in a different manner. Instead of making an exception for ANZAC day, the clause provides that where any of the holidays listed (with the only exception being Easter Saturday) fall on a weekend, the following workday will be deemed the public holiday with work on that substitute day being paid at public holiday rates.
[34] I note that clause 6 of the Agreement provides that the agreement is to be read and interpreted in conjunction with the Manufacturing Award and in the event of any inconsistency between the Agreement and the Manufacturing Award, the Agreement is said to take precedence to the extent of any inconsistency. This does not advance the argument for an implied exception. It may suggest, again, that we look to the ordinary meaning of clause 19A of the agreement, because the agreement takes precedence. I also note the submissions of the AMWU with respect to how enterprise agreements interact Awards and the NES, which appear to be persuasive.
[35] I further note the respondent submission that adopting the AMWU interpretation may result in a dispute arising in the future with respect to the Friday before the Australian Football League Grand Final, as this day is not listed in the days available as public holidays in the Agreement. This is not directly relevant to ANZAC day. This is a different holiday, and only takes the respondent so far. To the extent that it is relevant, the AMWU submits that enterprise agreements are one source of employee entitlements with further entitlements arising out of the Award and the NES. The AMWU submits that clauses in enterprise agreements are capable of independent and autonomous operation to the extent that a clause may provide a superior entitlement and there may also be times where the NES applies and affects how a clause may function. 18 On this view the NES would modify how clause 19A would operate and would confer the benefit of the public holiday before the Australian Football League Grand Final. In the view of the AMWU this may be a situation where an ambiguity does arise and regard to other statutory instruments may thereby appropriately resolve the ambiguity. The respondent submits that if regard is had to the words in the agreement only, it would result in a narrow interpretation whereby agreement covered employees would be denied the public holiday before the Australian Football League Grand Final.19 However, with respect, the AMWU submission is somewhat different in nature. In any event, the question of how the Agreement treats ANZAC day where it falls on a weekend is a different question and appears not to be ambiguous on its face. Nor is it necessary that I express a final view on the issue of that other public holiday.
[36] It is open to the parties to further address this issue during enterprise bargaining, and they may wish to do so, but this is a matter for the parties. In this decision I only deal with the current agreement, and not various other options that the parties could consider.
Conclusion
[37] The answer to the question must be answered as follows:
Question: Were the Respondent’s permanent employees engaged under the TOP Welding & Construction Latrobe Valley Power Industry Agreement 2017-2021 immediately prior to 25 April 2020 and on 27 April 2020 entitled to their ordinary pay despite not working on 27 April pursuant to clause 19A?
Answer: Yes
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR723402>
1 TOP Welding & Construction Latrobe Valley Power Industry Agreement 2017-2021, cl. 11; Directions, 24 June 2020, [3].
2 [2017] FWCFB 3005, [114].
3 Applicant Submission, [3]-[4].
4 Ibid, [9]-[13].
5 Ibid, [14]-[17].
6 Ibid, [19]-[20].
7 Ibid, [21].
8 Respondent Submission, [1].
9 Ibid, [13]-[19].
10 Ibid, [20]-[23].
11 Ibid, [24]-[28].
12 Ibid, [29]-[31].
13 Ibid, [32].
14 [2017] FWCFB 3005, [114].
15 [2018] FCAFC 131.
16 Applicant’s Submissions, [18].
17 TOP Welding & Construction Latrobe Valley Power Industry Agreement 2017-2021, cl. 19A.
18 Applicant Submissions, [12]-[13].
19 Respondent Submissions, [30].
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