CEPU v Australian Postal Corporation
[2012] FMCA 998
•1 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CEPU v AUSTRALIAN POSTAL CORPORATION | [2012] FMCA 998 |
| INDUSTRIAL LAW – Industrial award – interpretation of terms – shift work – penalty rates – payment in lieu – additional annual leave – commencement of shift – meaning of “seven day shift worker” – application of the award – whether the employees were rostered on for two days during shifts that commenced on one day and finished on the next – whether the employees were rostered on for public holidays – consideration of the industrial context – consideration of the relevant industrial relations environment – employees only rostered on for commencing day – application dismissed. |
| Australia Post General Conditions of Service Award 1999 |
| Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 |
| Applicant: | COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
| Respondent: | AUSTRALIAN POSTAL CORPORATION |
| File Number: | BRG 1255 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 3 October 2011 |
| Date of Last Submission: | 3 October 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 1 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Dwyer |
| Solicitors for the Applicant: | Communications Electrical and Plumbing Union |
| Counsel for the Respondent: | Ms K. Garner |
| Solicitors for the Respondent: | Australian Postal Corporation |
ORDERS
That the application filed 20 December 2010 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1255 of 2010
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
Applicant
And
| AUSTRALIAN POSTAL CORPORATION |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant represents the interests of persons employed at the respondent’s mail centres. The employees are covered by the Australia Post General Conditions of Service Award 1999 (the Award). An issue has arisen concerning the interpretation and application of the Award to some of the respondent’s employees.
Facts
Both Mr Lutter and Mr Kirwin are members of the applicant and employees of the respondent at its Underwood Mail Centre (UMC). Normally they would be rostered to work on Friday, doing an evening shift that would start at 6:00pm on Friday and conclude at 1:51am on Saturday. Had they undertaken that Friday evening shift, each of them would have been paid a weekday shift penalty (15% loading) for the time worked on Friday and a Saturday shift penalty (50% loading) for the time worked on Saturday.
Except for the public holidays on Good Friday and Easter Saturday, Mr Lutter and Mr Kirwin ordinarily would have worked the “evening shift” on the Friday constituting Good Friday which would have extended into the Saturday constituting Easter Saturday. Australia Post did not wish to have anyone work on the evening shift on Good Friday and, accordingly, Mr Lutter and Mr Kirwin were rostered off duty for that shift by the respondent.
The respondent’s interpretation of clause 24.8.2 of the Award and the fact that neither Mr Lutter nor Mr Kirwin worked on the Good Friday meant that they were not granted an extra day’s leave; nor were they paid a day’s pay for the public holiday (Easter Saturday). Upon that basis they allege that they were underpaid.
Mr Kirwin and Mr Lutter claim that they are recognised as “seven day shift workers” for the purposes of the Award. In recognition of that they receive an additional annual leave entitlement of one week’s leave per annum. Mr Peter Sparrow, the respondent’s Employee Relations Manager, swore that Mr Lutter and Mr Kirwin were employed as shift workers at the UMC. He stated that as at Easter 2009 they worked a shift pattern of 36.7 ordinary hours a week over five shifts. The shifts could only be scheduled on 6 out of the 7 days in the week, specifically on Sunday through to Friday. There was no Saturday shift. Concerning clause 24.8.2, he stated that the crucial requirement was that the shift worker be “rostered off duty.” He said employees who cannot be “rostered on duty” on Saturdays cannot be “rostered off duty,” but rather they were designated as off duty in the same manner as employees that work Monday to Friday are off duty for Saturday. He said that in both situations Saturday duty is not rostered. He explained that for the employees, including many others, Saturday is an off duty day for work attendance and payroll purposes and that apart from a few exceptions employees are not “rostered on duty” or required to work on a Saturday in the respondent’s processing operation. He noted that there were a small number of employees in Australia Post’s business operations that are “rostered on duty” on Saturdays and that these employees are paid for the Easter Saturday public holiday when “rostered off duty” on the Easter Saturday public holiday. He stated that, as at Easter 2009, no workers that were part of the “6pm shift” were or could be “rostered on duty” on the Saturday. In particular, he noted that in a regular or normal week the employees could be “rostered on duty” on a Friday shift, however because the week in question included the Good Friday public holiday the UMC was closed. Accordingly, the employees were not paid a day’s pay at ordinary rates or leave in lieu for the Easter Saturday holiday because they are never “rostered on duty” to work on any Saturday. Mr Sparrow explained that following a comprehensive roster change in September 2008, the employees’ ordinary hours of work changed with the consequence that their rosters no longer included a Saturday shift. He stated that because the employees could no longer be “rostered on duty” on a Saturday they could not be “rostered off duty” on a Saturday and thus their entitlement at clause 24.8.2 to a day’s leave in lieu or to be paid one day’s pay for a public holiday on a Saturday ceased.
The difficulty in this case appears to have arisen because of an apparent inconsistent application of the award. The award provides certain benefits to “seven day shift workers” including extra annual leave and public holiday entitlements. The respondent has paid the applicants those extra leave entitlements with respect to annual leave but has not paid those entitlements in respect of public holidays. The respondent says that the employees are not “seven day shift workers” and accordingly it has no obligation to pay them the public holiday entitlement under the award.
On its face, the treatment appears inconsistent. The inconsistency of treatment is central to this application.
The employees were governed by the award. Its most recent iteration was operative from 21 March 2006.
In September 2008, the employees’ rosters were changed from a strict seven day shift to six day shifts, Sunday through to Friday. That is to say that a shift commenced on any of those days although, as in the case of a Friday shift, work on the shift may have progressed into the early hours of the following day (a Saturday). No shift commenced on a Saturday.
Prior to that time the employees were seven day shift workers.
Clause 25.7 of the Award provides that seven day shift workers receive additional annual leave entitlements. The employees have in part continued to be paid this entitlement despite the change in shift arrangements in September 2008. This occurred notwithstanding concerns expressed by the employees in mid 2008, which arose in a similar workplace, relating to the abolition of the then extant rotating roster. In a memo prepared for the employees addressing those concerns, it was stated:
“What’s a seven day shift worker?
Some people have said that if we abolish the underlying rotating roster people may not be classified as seven day shift workers & hence won’t be entitled to the 5th week of annual leave. This is not true.
Here is the relevant section of the Award.
25.7 Annual Leave – Seven Day Shift Workers
25.7. 1 Additional Annual Leave
In addition to the period of annual leave prescribed in 25.1, seven day shift workers, that is, shift workers who are rostered to work regularly on Sundays and holidays, are allowed an additional week of leave (7 consecutive days) including non-working days.
For the purpose of this section of the Award, a seven day shift worker is defined as a person who is rostered to work regularly on Sundays & holidays.
The existence or otherwise of a rotational roster is irrelevant. What matters is whether you are rostered to work regularly on Sundays and holidays.
Am I a seven-day shift worker if I don’t work Saturdays?
Some people have said that if we don’t work Saturdays, we would not be a seven day shift worker and hence wouldn’t be entitled to the 5th week. This is not true. Remember, the award defines a seven day shift worker as someone who is rostered to work regularly on Sundays and holidays. There is no mention of Saturdays in the Award. Think of Northgate Mail Centre as an example. Northgate has been closed Saturday for the past couple of years, yet most of their mail officers still receive the 5th week. None of the other major mail centres in Australia work Saturday – yet their staff still receive the fifth week.”
Since that time the respondent has paid the employees upon that basis. The employees have construed this action by the respondent to constitute recognition by it of their “seven day shift worker” status for the purpose of the Award.
Accepting that fact, the applicant, for the employees, contends they are also entitled to be recognised for the purpose of the public holiday clauses contained in the Award.
Principles of award interpretation
In interpreting awards, the industrial context and the intention or purpose of the makers of an industrial instrument should be paramount, notwithstanding the strict wording of the document: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, Gleeson CJ and McHugh J at [2], [13], Kirby J at [96].
In that decision, Kirby J stated at [96]:
“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction … should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd [(1996) 66 IR 182], where his Honour observed:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.” (Original emphasis).
See also Gummow, Hayne and Heydon JJ at [30].
This approach was recently adopted by the Full Court of the Federal Court of Australia in Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 (see Marshall, Tracey and Flick JJ at [13] – [18]. In that decision, their Honours upheld a decision which dismissed an application which would have effectively resulted in an employee getting payment at public holiday rates twice in respect of the one Anzac Day public holiday. At [18] their Honours asked the question:
“Could it be reasonably intended by industrial parties to an industrial instrument that a person would be entitled to the benefit of a public holiday for Anzac Day and on the very next day the provision of another public holiday for Anzac Day? The answer is obvious and must be no.”
Were the employees ‘seven day shift workers’?
Clause 25.7.1, the annual leave provision, defines a seven day shift worker to be “shift workers who are rostered to work regularly on Sundays and holidays.” Clause 24.8.2, which deals with public holiday leave entitlements, employs the phrase “seven day shift worker” but provides no definition.
The respondent says that there is no uncertainty or ambiguity about the term “seven day shift worker.” It submits that it means a worker who works shifts across seven days of a week. There is no contest on the facts that the relevant employees here work only six days not seven days a week. Likewise there is no contest that they are rostered to work regularly on Sundays and holidays.
Clause 24.8.2, when read alone, supports the respondent’s contention. However, as a principle of basic construction the document must be read as a whole; see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381.
In this case, clause 25.8 operates to support the applicant’s contention. Clause 25.8 relevantly provides:
“25.8 Seven Day Shift Workers – Payment In Lieu Of Additional Annual Leave
25.8.1 Payment Instead of Leave
An individual employee may, subject to management agreement, elect to receive payment instead of the additional leave accrued under 25.7 Annual Leave – Seven Day Shift Workers.
25.8.2 Payment for Public Holidays During Leave
An individual employee may elect, subject to management’s agreement, to receive payment in lieu of additional leave for public holidays falling during the period of annual leave.
25.8.3 Amount of Payment
The rate of payment in lieu of the additional leave shall be identical to the rate of payment to which the employee would be entitled if the additional leave were taken.”
Clause 25.8.2 concerns payment in lieu for public holidays that fall during an employee’s leave period. By way of contrast, clause 24, which deals with shift work, provides at clause 24.8.2 the following in respect of shift workers, they being shift workers other than “seven day shift workers”:
“24.8.2 Day Off Instead of Holiday
A seven day shift worker who is rostered off duty on a public holiday will be granted a day’s leave in lieu of that holiday within one month, if practicable, after the holiday or paid one day’s pay at ordinary rates.”
The earlier provisions of clauses 24.1.6 and 24.8.1 provide for penalty allowances for an employee who is rostered on duty on a public holiday. These clauses would apply to any employee rostered on for duty on a public holiday, including a ‘seven day shift worker.’ However, clause 24.8.2 distinguishes the ‘seven day shift workers’ from other shift workers and provides a different public holiday regime for them when they are “rostered off duty on a public holiday.”
No general guidance on the construction of the clause can be gleaned from a review of the Award. Clause 9.2.1 of the Award provides that clause 25.8.2 is a facilitative provision. The Award itself deals with shifts in “Part 6 – Hours of work, overtime, excess travelling time and shift work.” Part 6 addresses the term “employee” generally in respect of all matters relevant to shifts except in clause 24.8.2, where it employs the term “seven day shift worker.” Part 7 of the Award addresses ‘Types of leave and public holidays’ and contains clause 25 – “Annual leave.” As with clause 24, clause 25 uses the term “employee” in general terms in respect of “annual leave,” except in respect of “Annual leave – seven day shift workers”: Clause 25.7; and “Seven day shift workers – payment in lieu of additional annual leave”: clause 25.8. It is the differential circumstances involving the use of the term “seven day shift worker” in these clauses that is problematic.
Arguably the inclusion of clause 24.8.2 in that part of the Award dealing with shift workers is clearly intended to differentiate between ordinary shift workers and ‘seven day shift workers.’ By operation of clause 24.8.2 ordinary shift workers who are rostered off duty on a public holiday will not be granted a day’s leave in lieu or the option of one day’s pay at ordinary rates. Accordingly, the difficulty presented by the clause 25.7 definition of ‘seven day shift worker’ is immediately apparent. That is, if the respondent’s contention is accepted, and a literal approach is taken to the term ‘seven day shift worker,’ an employee who is a ‘seven day shift worker’ for the purposes of clause 25 may not be one for the purposes of clause 24.[1] In that event, there would be an economic incentive for a clause 25.7.1 employee to structure his/her annual leave such that public holidays fell during the course of that leave period so he/she would be entitled to take extra leave or payment in lieu pursuant to clause 25.8.2. If that employee did not do so, then upon a literal construction of clause 24.8.2 he/she would not be entitled to any additional leave or payment if a public holiday fell during annual leave. Such a circumstance would cause a distortion of sensible workplace practices. For instance, adopting the respondent’s contention, any rational employee who was a clause 25.7.1 ‘seven day shift worker’ would only take annual leave over periods which incorporated public holidays. Upon that basis, the employee would be entitled to claim either the extra leave or payment in lieu for each of those public holidays that fell during his annual leave period. On the other hand, if the same employee did not adopt such an approach he/she would run the risk of receiving no additional compensation for public holidays not worked. This result follows if a literal construction applies to clause 24.8.2 such that a clause 25.7.1 employee was not a ‘seven day shift worker.’
[1] Generally a clause 25.7 shift worker who by definition is a seven day shift worker will not be a literal seven day shift worker because the UMC does not operate a Saturday shift. That circumstance may change.
In my view, the definition of ‘seven day shift worker’ which is provided for in clause 25.7.1 must carry across to clause 24.8.2, for it is only upon application of a common definition that a harmonious and sensible construction can be provided to that term where it appears in other parts of the Award. In addition, that construction is consistent with the circumstances presented in the workplace where operations are conducted from Sunday to Friday with no operations on a Saturday. It also conforms to the general practices both represented to the employees and implemented by the respondent when the issue first presented itself in mid 2008.
Were the employees “rostered off duty on a public holiday”?
Accepting that the relevant employees were seven day shift workers for the purpose of clause 24.8.2 of the Award, the next issue for resolution is whether they were entitled to the benefit of that provision because they were “rostered off duty on a public holiday” on the Easter Saturday.
It was agreed that the employees were often rostered to work Friday and that a Friday shift would start at 6:00pm and continue into the following Saturday morning, concluding at 1:51am. That is, part of the shift was worked on a Friday and part of it was worked on a Saturday. It is agreed that they were rostered off duty on the Good Friday. The Award provides that both Good Friday and Easter Saturday are designated holidays as defined in clause 31.1.
As I have earlier determined, the Award defines a seven day shift worker as a shift worker who is rostered to work regularly on Sundays and holidays. It is agreed that the UMC does not operate on a Saturday, although plainly it remains operational into the early hours of a Saturday morning for the purposes of seeing out those shifts that commence on a Friday.
The applicant’s contention is that because the Friday shift concludes on a Saturday the employees were employees who were ordinarily rostered on duty on a Saturday. Accordingly, because they were not rostered to perform any duty on the Easter Saturday in question they were “rostered off duty” on the Easter Saturday and ought be afforded an extra day’s leave pursuant to clause 24.8.2.
The practical effect of this would be to grant those employees a day’s leave for Easter Saturday despite them having been rostered off for Easter Friday and the fact that they were already enjoying the benefit of a clause 24.8.2 entitlement for the Easter Friday. In other words, they would receive two days’ allowances for the loss of one shift.
It was submitted for the respondent that the union’s interpretation in this regard is inconsistent with accepted award interpretation principles and that the interpretation alleged by it could not have been reasonably intended by the parties. It was submitted that:
a)it does not contribute to a sensible industrial outcome between the parties;
b)it is inconsistent with the industrial context; and
c)it would result in inconvenience or injustice.
The respondent submitted that in order for an employee to be “rostered off duty” on a particular day it must be the case that the day was a day when the employee could ordinarily have been “rostered on duty.” It was submitted that the employees could not have been “rostered off duty” on the Easter Saturday because it was not a day on which they could normally be rostered on by virtue of the Sunday to Friday shift structure which was adopted at the UMC.
In my view, the resolution of this issue involves a consideration of two matters. First who is a shift worker, and second, what is meant by rostered in the industrial context?
“Shiftwork” is defined in the Macquarie Dictionary to mean:
“1.a system of work which is regularly carried out at hours outside the normal spread of hours in addition to work within the spread, so that work performed by one employee or group of employees during a shift (usually of eight hours) is continued by another employee or group for the following shift, etc. 2. an arrangement of an employee’s working hours under which, over a period of time, the employee works on different shifts.”
I note that the Macquarie Dictionary also defines “shift” to mean, inter alia:
“11. the portion of the day scheduled as a day’s work when a factory, etc., operates continuously during the 24 hours, or works both day and night: night shift. 12. a group of workers so employed.”
Based on the facts in this case, there seemed little difficulty in concluding that the relevant employees were shift workers as that term is both defined and understood.
The Macquarie Dictionary defines term “roster” to mean, inter alia:
“1. a list of persons or group with their turns or periods of duty. 2. any list, role or register – verb (t).”
In this instance it is important to note that the word “rostered” as employed in clause 24.8.2 is used as a verb. In that sense the term appears to refer to the list, role or register maintained by the respondent specifying the day that a shift worker is required to work.
A copy of the relevant roster or its relevant form was not produced at the hearing. However, common experience would suggest that defined shifts would be recorded in the roster by reference to their common descriptors such as “day shift,” “evening shift,” etcetera and/or start times. Each descriptor would enjoy a common understanding in the workplace. In this case, in his evidence Mr Kirwin referred to being “rostered Friday”[2] in the context of working “into Saturday.”[3] Similarly, he agreed with terminology by which roster shifts were identified by reference to days of the week. Nothing in his evidence suggested that at the UMC the term “shift” was used other than by reference to a day in the roster when it commenced.
[2] T.5 Ln 16
[3] T.5 Ln 3
Likewise, Mr Lutter, in his evidence concerning shifts commencing on a Saturday, used the term “Saturday shift” in circumstances quite distinguishable from a shift that commenced on the Friday and progressed into the Saturday. So much is to be inferred from his answers addressing questions relevant to Good Friday. He stated that he worked the “Thursday shift.” It commenced at 6:00pm on the Thursday and progressed into Good Friday, concluding at 1:51am that day. Significantly, in that context he stated: “I didn’t work the Good Friday. No.” He acknowledged that he was paid a day’s pay at ordinary rates for the Good Friday, but that he did not in fact work that day on the basis that he was rostered off.[4] Plainly, in his mind the shift terminology related to the commencement day, not its conclusion day.[5]
[4] T.8 Ln 44
[5] T.8 Ln 33
In the industrial context for the UMC, I am satisfied that the shift rosters were identified by the commencement day. The shift reference here was to the day of commencement not the day of completion, such that for shift computation purposes the day upon which a shift is deemed to be undertaken is attributed to the day the shift commences, not the day the shift concludes.
It follows that the industrial context in which the term was employed in this instance required an examination of rostering of shift workers by reference to the day the shift began and not the day the shift concluded. In the ordinary course no shifts were rostered to commence on a Saturday, including Easter Saturday. It was not a day upon which the employees could ordinarily be “rostered on duty.” As they would not ordinarily be “rostered on duty” on a Saturday, it follows that they could not be “rostered off duty” on a Saturday as is contended for by the applicant.
It follows in my view that, notwithstanding that the applicants were “seven day shift workers,” they have no entitlement to any benefit under clause 24.8.2 because under the terms of their employment arrangements they would never be “rostered off duty” on the Saturday, which in this case proved to be the Easter Saturday public holiday.
Construction of the Award in this manner produces an outcome consistent with a sensible industrial outcome. It recognises the common understanding in the workplace. It addresses the evident purpose of the clause, that being to afford compensation for loss suffered by shift workers because a public holiday falls upon a day when the shift worker is off duty, a loss not suffered by a regular hours employee who enjoys a day’s leave at the employer’s expense. It also avoids the mischief of a double dip for a day when a shift worker employee would not otherwise ordinarily be at work.
Summary
In conclusion:
a)In my view the term “seven day shift worker” as defined in clause 25.7.1 applies where that term appears in clause 24.8.2 of the Award.
b)In the industrial context of the UMC, the employees were not rostered on duty on the Easter Saturday as no employee was ever rostered on for duty on a Saturday and, accordingly, could never be rostered off for a Saturday. Working from one day into the next did not constitute being “rostered on duty” for the purposes of the Award.
Orders
Application dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 1 November 2012