Coles Group Supply Chain Pty Ltd v Shop, Distributive and Allied Employees Association
[2011] FWA 1752
•23 MARCH 2011
[2011] FWA 1752 |
|
STATEMENT |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
Coles Group Supply Chain Pty Ltd
v
Shop, Distributive and Allied Employees Association
(C2011/3301)
COMMISSIONER ASBURY | BRISBANE, 23 MARCH 2011 |
Alleged dispute re clause 38.12 - public holidays in lieu.
Background
[1] On 14 February 2011 an application under s. 739 of the Fair Work Act (the Act) was made by Coles Group Supply Chain Pty Ltd (Coles). The application sought Fair Work Australia (FWA) to deal with a dispute in accordance with the dispute settlement procedure in clause 8 of the Coles Myer Logistics Forest Lake - Certified Agreement 2005 (the Agreement). The Respondent is the Shop Distributive and Allied Employees Association. A conference was held in relation to the dispute on 3 March 2011.
[2] The dispute relates to clause 38.12 of the Agreement which provides as follows:
“For Shift employees who regularly work a Tuesday to Saturday Shift, the Company has agreed that from 06/05/96, with the exception of Easter Monday, when a public holiday falls on a Monday, a day off in lieu shall be granted. This day shall be taken within 12 months of a public holiday by mutual agreement.”
The dispute
[3] The subject matter of the dispute is set out in the notification in the following terms:
“1. The Company’s distribution centre has three full-time shifts, which are Monday - Friday, Tuesday - Saturday and Sunday - Thursday.
2. Anzac Day and Easter Monday public holiday fall on the same day, being Monday, 25th April 2011. By virtue of this, the Queensland Government has declared Anzac Day on Monday, 25th April 2011 (this is in fact Easter Monday) and Tuesday, 26th April 2011 as the Easter Monday public holiday.
3. It is understood when this provision was drafted it would not have been anticipated that the two days (being Anzac Day and Easter Monday) would coincide and fall on the same day. It would have not been contemplated that Easter Monday, by its very nomenclature, would fall on a day which is not a Monday.
4. The effect is that employees working on Tuesday - Saturday shift, as a result of the Government moving the day of Easter Monday to Tuesday, would now receive a benefit for the Easter Monday public holiday (ie a day in lieu in addition to the ability to earn public holiday rates for work on the day which they would not normally receive had the Easter Monday public holiday not been moved). Full time and part time employees on a Tuesday - Saturday shift would also receive a day in lieu for the Monday 25th April public holiday (now being Anzac Day).
5. On 4 February, in an endeavour to reach a mutual agreement on the uncertainty created, the Company had proposed two options to the SDA in order to resolve the uncertainty created by this. Option One for consideration was for the purpose of this clause to treat the Tuesday as Easter Monday and not pay it as a PH for the Tuesday - Saturday employees. Option Two for consideration was for the purpose of this clause, to still observe the Monday as Easter Monday and the Tuesday as Anzac Day and for the public holiday entitlements and payment provisions to still apply for the days.
6. The SDA responded and rejected both proposals.
7. The Company is seeking the assistance of FWA to resolve this dispute. The Company maintains that intent of the Public Holidays clause is to provide all full time employees with 10 public holidays per annum unless there are additional days declared or gazetted, and the uncertainty has been created by the peculiarity of Anzac Day and Easter Monday falling on the same day and the Government’s treatment of the days.
If the dispute cannot be resolved, the Company foreshadows an application under section 217 of the Fair Work Act 2009 seeking FWA to vary the terms of the Agreement as a result of uncertainty with the additional words to clause 38.12 as follows:
In the event that Easter Monday is substituted to an alternative date (other than a Monday) due to it coinciding with another public holiday, shift employees who regularly work a Tuesday to Saturday shift will not receive the benefit of a day off in lieu for that Monday.”
[4] The relief sought in respect of the dispute is as follows:
“Ability to reflect the intention of the clause by clarifying the uncertainty and enabling for the purpose of clause 38.12 to observe the Monday 25th April as the Easter Monday public holiday and Tuesday 26th April as the ANZAC Day public holiday. All other public holiday entitlements and payment provisions will still apply for the two days.”
[5] The dispute has arisen because of the unusual circumstance in 2011, that Monday 25 April 2005, is the day on which both Anzac Day and Easter Monday fall. The Queensland Government has addressed this matter by substituting Tuesday 26 April 2011 for the Easter Monday public holiday.
[6] As a result the question arises as to whether the terms of clause 38.12 of the Agreement entitle Tuesday to Saturday shift workers to payment of public holiday rates for work on Tuesday 26 April plus a day in lieu for the fact that Tuesday 26 April has been substituted for the Easter Monday public holiday.
[7] Coles contends that the Agreement should not be interpreted in this way, and foreshadows an application to amend the Agreement so that it reflects the intent of the public holiday clause.
Conclusions
[8] After hearing from the parties, and considering the relevant provisions of the Agreement, I am of the view that the proper interpretation is that clause 38.12 is intended to ensure that shift employees who regularly work the Tuesday to Saturday shift roster, have an incentive for working that roster and are not disadvantaged by the fact that many public holidays throughout the year fall on Mondays.
[9] Generally, employees who are not rostered to work ordinary hours on the day on the day of the week on which a public holiday falls, are not entitled to payment where they do not work on that holiday. Thus, employees who regularly work Tuesday to Saturday roster, and for whom Sundays and Mondays are days upon which they are not rostered to perform ordinary work, would not be entitled to payment for a public holiday falling on a Monday, where no work was performed on that public holiday.
[10] Clause 38.12 makes it clear that from 6 May 1996, Coles decided to provide a benefit to employees regularly rostered to work a Tuesday to Saturday shift, so that day a off in lieu would be granted to such employees for public holidays falling on Mondays, with the exception of Easter Monday. Clause 38.11 indicates that with effect from Labour Day 1994, this benefit was granted to employees who were not shift workers, but who were rostered to work Tuesday to Saturday.
[11] There is nothing to suggest that clause 38.12 (or clause 38.11) operate to provide a day off in lieu for Easter Monday, simply because it will now be observed on Tuesday 26 April, and Monday 25 April is designated as Anzac Day. To interpret the Agreement in this way would provide a bonus for employees clearly not intended when the Agreement was made. The clear intention of clause 38.12 is to exclude Easter Monday from other holidays that fall on Mondays, so that employees are not granted an additional day in lieu for Easter Monday. To grant employees a day off in lieu for Easter Monday simply because it is to be observed on a Tuesday, would subvert the clause. This interpretation does not disadvantage employees, but simply maintains the status quo, whereby Tuesday to Saturday shift workers are not entitled to a day off in lieu for Easter Monday. The status quo should not be altered simply because of the unusual circumstance that the Easter Monday Holiday coincides with the Anzac Day Holiday, and a substituted holiday has been declared for Easter Monday.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR507745>
0
0
0