Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Toyota Motor Corp Australia Ltd

[1999] FCA 393

FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Toyota Motor Corp Australia Ltd [1999] FCA 393

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED

INDUSTRIES UNION v TOYOTA MOTOR CORPORATION AUSTRALIA LTD

VG 719 OF 1997

RYAN J
9 APRIL 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 719 OF 1997

BETWEEN:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Applicant
AND:	TOYOTA MOTOR CORPORATION AUSTRALIA LTD (ACN 004 384 338) Respondent
JUDGE:	RYAN J
DATE OF ORDER:	9 APRIL 1999
WHERE MADE:	MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

THAT IT BE DECLARED that on its true meaning and intent cl 17 of the Toyota Australia Vehicle Industry Award 1988 (“the Award”):

(a)entitles any employee who is required to work for any part of a shift commencing before 10.45 pm on a public holiday as defined in cl 21 of the Award to be paid for the whole of such shift at the rate of two and one-half times the ordinary rate;

(b)entitles any employee who is required to work a shift which commences before midnight on the day preceding a public holiday as defined in cl 21 of the Award and which extends for any period into the public holiday to be paid for the whole of such shift at the rate of two and one-half times the ordinary rate;

PROVIDED HOWEVER that an employee who is required to work on two shifts each of which falls partly on the same public holiday shall only be entitled to be paid at the rate of two and one-half times the ordinary rate for the whole of one such shift, being the shift the greater part of which falls on the public holiday.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 719 OF 1997

BETWEEN:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Applicant
AND:	TOYOTA MOTOR CORPORATION AUSTRALIA LTD (ACN 004 384 338) Respondent

JUDGE:	RYAN J
DATE:	9 APRIL 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application under s 413 of the Workplace Relations Act 1996 for interpretation of sub-cll 17(d) and (e) of the Toyota Australia Vehicle Industry Award 1988 (“the Award”).  Clause 17 of the Award is in these terms:

   “17 – HOLIDAY WORK AND RATES THEREFOR

   (a)An employee who works on a holiday shall be paid therefor at the rate of two and one-half times the ordinary rate.

   (b)A shift commencing before 10.45 pm on a holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate.

   (c)Except as provided in subclause (e) hereof, a shift commencing at 10.45 pm or between 10.45 pm and midnight shall not be regarded as a holiday shift and work done thereon shall not entitle an employee to the holiday rate.

   (d)Except as provided in subclause (e) hereof, a shift commencing before midnight on the day preceding a holiday and extending into the holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate.

   (e)Notwithstanding subclauses (c) and (d) hereof, where an employee is rostered for a shift which terminates on a holiday and a shift which commences on the same holiday, one shift only shall be regarded as the holiday shift and such shift shall be the one, the major portion of which falls on the holiday.

   (f)An employee, other than on shift work, required to work on a holiday shall be paid for a minimum of four hours’ work at the appropriate rate.

   Crib time

   (g)(i)     An employee working on a holiday for more than nine and one-half hours shall, at the end of eight hours, be allowed a crib break of twenty minutes which shall be paid for at ordinary rates.

   (ii)An employee working on a holiday for more than eight hours shall be allowed a crib break of twenty minutes without deduction of pay after each four hours worked beyond eight hours, providing the employee continued to work after such crib break.

   (iii)The Company and the employee may agree to a variation of this subclause to meet the circumstances of the work in hand, provided that the Company shall not be required to make any payment in respect of any time allowed in excess of twenty minutes.

   Meal allowance

   (h)(i)     An employee required to work on a holiday for more than ten hours without being notified on the previous day or earlier that the employee will be so required to work shall either be supplied with a meal by the Company or paid $4.50 for each meal.

   (ii)Unless the Company advises an employee working on a holiday on the previous day or earlier that the amount of time to be worked on the holiday will necessitate the partaking of a second or subsequent meal (as the case may be), the Company shall provide such second and/or subsequent meals or make payment in lieu thereof as prescribed in paragraph (i) hereof.

   (iii)If an employee pursuant to notice has provided a meal or meals and is not required to work less than the amount advised, the employee shall be paid as prescribed in paragraph (i) hereof, for meals which he/she has provided but which have become superfluous.

   (i)An employee (other than a casual employee) not engaged on continuous work, who works on a holiday and (except for meal breaks) immediately thereafter continues such work shall, on being relieved from duty, be entitled to be absent until he/she has had ten consecutive hours off duty, without deduction of pay for ordinary time of duty occurring during such absence.

   (j)For the purpose of this clause ‘holiday’ means a day referred to in clause 21 of this Award.

   (k)Payments prescribed by this clause shall stand alone and shall not be included for any other purposes of this Award.”

2. The factual circumstances giving rise to the application are that the respondent, Toyota Motor Corporation Australia Ltd (“Toyota”) employs its manufacturing workforce on two shifts from Monday to Friday each week.  The day shift starts at 7.00 am and finishes at 3.30 pm and the afternoon shift starts at 5.30 pm and finishes at 2.00am on the following day.  Employees on both shifts are regularly required to work overtime.  When a public holiday falls during a working week, employees are not required to work on either the day shift which would begin and finish on that day or the afternoon shift which would begin on that day and finish early in the morning of the following day.  However, afternoon shift employees are rostered and required to commence work at 5.30 pm on the day preceding the holiday so that their shift intrudes by two hours into the day of the public holiday.

3. On the interpretation of cl 17(d) for which the applicant contends, the afternoon shift which intrudes into the public holiday in the way just described is to be regarded as a holiday shift attracting the penalty rate of two and a half times the ordinary rate for all work done on that shift.  For Toyota, on the other hand, it was contended that cl 17(e) applies so that employees who work the afternoon shift which intrudes into the public holiday should be paid only the ordinary rate of pay for that shift plus the ordinary 18% afternoon shift loading.  Counsel for Toyota supported this interpretation by contending that employees are “rostered” for shifts on public holidays but, by virtue of cl 21(a) of the Award, those rostered shifts are not actually worked.  Clause 21(a) provides:

   “21 – HOLIDAYS

   (a)Employees shall be granted the following holidays without deduction of pay:

   New year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day or Eight Hours’ Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day (Victoria only), Christmas Day, Boxing Day, August Bank Holiday (New South Wales only), Exhibition Day (Queensland only), The third Monday in May (South Australia only)

   or such other day as is generally observed in a locality as a substitute for any of the said days, respectively.

   Provided that:

   (i)In South Australia, Commemoration Day shall be observed as a holiday in lieu of Boxing Day.”

4. This contention involved the assertion that cl 17(e) applies to employees who work the first two hours of a public holiday because those employees are rostered for a shift the major portion of which falls on a holiday but in respect of which they are not required to attend for duty because of the operation of cl 21(a).  Toyota’s written contentions of law and fact concluded with these paragraphs:

   “10.The application of clause 17(e) does not depend upon employees actually working on a holiday.  The application of clause 17(e) depends only upon employees being rostered to perform work on a holiday.  The wording of clause 17(e) is in contrast to subclauses 17(b), (c) and (d) of the Award which provides that certain shifts are to be regarded as holiday shifts, and that “all work done thereon” is to attract the penalty rate.  The absence of these or similar words in clause 17(e) supports the inference that clause 17(e), in order to apply, does not require work to be done.

   11.The construction contended for by the applicant produces anomalous results, whereby an employee receives both a penalty payment of two and a half times the ordinary rate in respect of an afternoon shift on the day before a holiday, and also a paid holiday in respect of the shift which would otherwise commence on the holiday.”

5. It was also argued by Mr McDonald on behalf of Toyota that cl 17(j) of the Award had a relationship with sub-cl (e) which was designed to prevent an employee receiving two benefits, one being the double time and a half penalty for work on a shift which intrudes into a holiday and the other being the grant of the holiday at ordinary time rates for the shift the greater part of which would have been worked, but for the holiday, on the day in question.

6. In a related way, Mr McDonald submitted that the benefits prescribed by each of cl 17 and 21 are mutually exclusive.  He reiterated what was described in paragraph 11 of Toyota’s written contention quoted above to be an anomaly arising from the terms of cl 17(e).  That was that one employee who works a shift which intrudes into a public holiday would receive two and a half times the ordinary rate for that shift and would be granted the holiday for the balance for that day whereas another employee required to work, as well, the next afternoon shift, the greater part of which falls on the holiday, would receive the same penalty rate for only one shift but would be denied the benefit of the holiday.  This so-called anomaly can be resolved by paraphrasing the following observation by Northrop J in Canberra Television Ltd v Australian Theatrical and Amusement Employees Association (1979) 24 ALR 529 at 545:

   “Senior counsel for the appellants submitted that anomalous results would follow such an interpretation.  That may be so, but that does not detract from the policy of cl 10(f) which is to ensure that an employee receives the benefit of the rostered day off.  The award is designed to achieve a particular purpose and if that purpose is not achieved, the employer must suffer the financial consequences.  Incidentally, the employee gains a financial benefit.”

7. In my view, the primary function of cl 17, read as a whole, as indicated by sub-cl (a), is twofold.  In its first aspect it is to discourage the employer from requiring work to be done on public holidays.  Secondly, it is to provide correspondingly generous penalty rates for employees who are required, contrary to the policy evinced by the Award, to work on those days.  The following sub-cll (b), (c) and (d) effectuate that function by defining what shifts are to be regarded as requiring the performance of work on a public holiday.  Thus, sub-cll (b) and (c) exclude the liability to pay penalty rates when no more than the first one and a quarter hours of a shift are required to be worked on a public holiday.  Somewhat curiously, if any time at all is required to be worked at the end of a shift beginning before a public holiday where the shift intrudes into a public holiday, the penalty rate is attracted for the whole shift; [sub-cl (d)].  Sub-cl (e) is framed, I consider, to prevent an employee from receiving penalty rates for each of two successive shifts which intrude respectively into the beginning and the end of a public holiday.  Only the shift, the major portion of which so intrudes, is to attract the penalty rate of double time and a half.

8. In other words, the scheme of the early part of cl 17, as I perceive it, is that employees either get the whole day off work on a public holiday or receive two and a half times the ordinary rate.  As Mr McDonald acknowledged, which entitlement is regarded as more beneficial may vary from employee to employee.  Doubtless those employees who are required to work only two hours of their shift on a public holiday might be seen as getting the best of both worlds but that is a consequence of the system of work and the allocation of hours which the employer has chosen to adopt.  I can discern nothing in the Award to prevent Toyota from bringing forward to, say, 4.00 pm, the commencing time for an afternoon shift to be worked on the eve of a public holiday and directing that the shift finish at midnight.  By that means, at the cost of losing thirty minutes work, Toyota would avoid attracting the penalty rate of double time and a half for the whole shift. 

9. Counsel for Toyota also referred to the Toyota Australia Workplace Agreement (Altona) 1995 (“the 1995 Agreement”) which was incorporated by reference in the Toyota Australia Workplace Agreement (Altona) 1996 which is expressed to continue in operation until 8 August 1999.  Clause 25 of the 1995 Agreement included these sub-clauses:

   “25.10As a result of the working of a nineteen day four week cycle, there will be a total of twelve scheduled days off per year of which a maximum of ten may be rostered with two further days fixed to coincide with Easter and the Melbourne Cup holiday.

   ...

   25.13Rosters will be prepared three months in advance and will take into account –

   ·    the commitment that all employees have access to four of the rostered days immediately prior to, or subsequent to weekends;

   and

   ·    the ability for employees to exchange rostered days with other employees within the same group by mutual agreement provided the exchange is endorsed by supervision taking into account operating requirements.”

10. The 1995 Agreement was expressed by cl 2 to have the following relationship with various awards binding on Toyota including the Award:

    “RELATIONSHIP TO OTHER AWARDS

    This Agreement shall be read and interpreted wholly in conjunction with the Awards (as varied from time to time) specified below which shall continue to apply to relevant employees but shall not form part of this Agreement, provided that, to the extent of any inconsistency between a specified Award and this Agreement, the latter shall prevail.”

11. However, as I pointed out in the course of argument, an agreement made after an award which the Court is required to interpret cannot, on ordinary principles, affect the proper construction of the Award.  To the extent that a later agreement creates an inconsistency with an award on its proper construction, the agreement will prevail and may provide a defence against the enforcement of the award according to its terms.

12. Mr McDonald next submitted that there was a discernible difference between the language of sub-cll (c) and (d) of cl 17 each of which refers to “work done” and that of sub-cl (e) which refers to an employee being “rostered for a shift”.  That expression, it was contended with the aid of a dictionary definition of “shift”, includes a period during which an employee may be absent from work without loss of pay, as prima facie obtains on a public holiday by force of cl 21(a).  However, in my view “rostered for a shift” in cl 17(e) means no more than “rostered to work on a shift”.  It runs counter to ordinary usage to speak of an employee being “rostered off” on a public holiday.  By contrast, where an industrial instrument, like the 1995 Agreement provides for “rostered days off” it is apt to speak of the employee’s being “rostered off” or “rostered not to work” because the selection of the day off is entrusted to the employer.  On the other hand, the prima facie entitlement to a day off work on a public holiday is mandated by the Award.

13. The whole of cl 17, including sub-cl (e), is concerned with an actual requirement to work.  There is no warrant in the language of any part of the clause for imputing to the framers of the Award an intention that employees not required to work on any part of a public holiday are to be treated as notionally working a shift on that day.

14. For these reasons I shall declare that on its true meaning and intent cl 17 of the Award obliges Toyota to pay two and a half times the ordinary rate for the whole shift to an employee who is required to work for any part of a shift commencing before 10.45 pm on a public holiday or who is required to work a shift which commences before midnight on the day preceding a public holiday and which intrudes to any extent into the public holiday.  I shall qualify the interpretation by a proviso which gives effect to the mechanism erected by cl 17(e), as I have construed it, to prevent an employee from receiving double time and a half for two shifts which both intrude into the same public holiday.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             9 April 1999

Counsel for the Applicant:	Mr H Borenstein
Solicitors for the Applicant:	Maurice Blackburn & Co
Counsel for the Respondent:	Mr M McDonald
Solicitors for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	7 April 1998
Date of Judgment:	9 April 1999