Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd

Case •

[2012] FWA 9099

•

18 DECEMBER 2012

No judgment structure available for this case.

[2012] FWA 9099


FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
Anglo Coal (Dawson Services) Pty Ltd
(C2012/5125)

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Anglo Coal (Dawson Services) Pty Ltd
(C2012/5159)

Coal industry

COMMISSIONER SPENCER

BRISBANE, 18 DECEMBER 2012

Alleged dispute in relation to public holidays - additional public holiday - Queen’s Jubilee and Queen’s Birthday - clause 3.3 of Dawson Mines Collective Enterprise Agreement 2010 National Employment Standards - s.114 - reasonable request and reasonable refusal.

Introduction

[1] This decision relates to applications to Fair Work Australia (FWA), by the Construction, Forestry, Mining and Energy Union (the CFMEU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU), hereafter referred to collectively as the Applicants/Unions. The applications were made pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act) seeking FWA to deal with a dispute under clause 5, the disputes procedure, of the Dawson Mines Collective Enterprise Agreement 2010 (the Agreement). It was agreed that the steps of the disputes procedure had been met.

[2] The dispute relates to whether it was reasonable for employees to refuse to work on the Queen’s Birthday public holiday on 1 October 2012. The Applicants submitted this was an additional public holiday, which the employees would not be remunerated for working, in accordance with the terms of the Agreement.

[3] The Applicants submitted that on or about November 2011 they raised with the Respondent the issue of the extra public holiday for the Queen’s Birthday in 2012 and whether or not shift employees working on that day would receive extra remuneration. It is agreed, on review of the 2012 public holidays by the parties, that the extra public holiday is in fact the Queen’s Diamond Jubilee holiday gazetted for 11 June 2012. It is understandable that confusion has arisen given that this date in June is the normal date when the Queen’s Birthday public holiday is observed and the new date of 1 October 2012 became the date for the traditional Queen’s Birthday public holiday.

[4] The disputes were filed by the CFMEU on 30 August 2012 and the AMWU filed on 3 September 2012. The matters proceed to conciliation and then arbitration by consent. The disputes as filed, related to the, at that time, upcoming Queen’s Birthday public holiday which was observed on 1 October 2012. Clause 3.3 of the Agreement set out the entitlements of the employees to public holidays. Entitlements to public holidays are also governed by the terms of the National Employment Standards (NES) in the Act. Under the NES employees are entitled to the benefit of public holidays unless they are required to work, subject to any reasonable refusal of such request. The NES set out the criteria by which a request to work on a public holiday and any refusal to work is to be assessed. 1

[5] It was common ground between the parties that the employees’ remuneration was an aggregate or rolled up rate under the Agreement. It was agreed in negotiations between the parties that the employees’ (shiftworkers’) remuneration would be raised by an amount representing the component for working a roster including public holidays, in lieu of receiving penalty rates for working on individual public holidays. The exception to this was for ‘day work’ employees, which was dealt with in clause 3.3.4. Employees who perform ‘day work’, received extra annual leave, depending upon the amount of work performed on public holidays.

[6] The Applicants stated that, the dispute arose as a result of the Queensland State Government amending the Holidays Act 1983 (Qld) (the Holidays Act). The amendment, made in December 2011, altered the Schedule of public holidays to move the Queen’s Birthday from 11 June 2012 to 1 October in 2012. The amendment also created a new, additional, one-off public holiday to be observed on 11 June 2012, entitled the Queen’s Diamond Jubilee public holiday.

[7] When the questions for arbitration were originally framed, the dispute to be resolved, referred to the Queen’s Birthday public holiday, on 1 October 2012, as the additional public holiday. The Queen’s Diamond Jubilee, already taken on 11 June 2012, was in fact the additional public holiday. The parties agreed that these circumstances should be distinguished in this decision. That is that the questions for arbitration do not specifically reflect that the additional public holiday has already been worked. The Queen’s Birthday public holiday in October 2012 is incorporated into the list of public holidays in clause 3.3.1 of the Agreement, whereas the Queen’s Diamond Jubilee public holiday is not. Accordingly there is some interposing in the submissions of both parties, in relation to what is nominated as the additional public holiday, between 11 June 2012 and 1 October 2012. 2

[8] The Applicants submitted that the gazettal of an additional public holiday (under the Holidays Act) to those public holidays listed in clause 3.3.1 of the Agreement, affected the payment arrangement struck under the Agreement. They stated that the employees would not receive any additional payments for working the new Queen’s Birthday holiday (or in fact the day of 1 October 2012, the subject of the dispute) as their salary was based on 11 public holidays and not 12.

[9] The Applicants emphasised that the NES entitled employees to be absent from work without loss of pay for all public holidays, as defined in s.115 of the Act. Furthermore the Applicants pointed to s.114(2) of the Act, that allowed Employers to request employees to work if the request was reasonable. The factors which determine whether or not the request is reasonable are set out in s.114(4) of the Act (stated in full further in this decision). The Applicants emphasised the criteria of payment in s.114(4)(d), as being an important factor in the current dispute, that is they submitted it was an important element in determining whether a refusal to work, when requested to work a public holiday is unreasonable. The parties also stepped through the relevance of all of the other criteria to be considered in s.114(4) of the Act.

[10] The Applicants’ case was that any request to work on the then upcoming public holiday of 1 October 2012 (seen to be additional) was unreasonable, as the employees would not receive any penalty rate payment or other such entitlement for working this public holiday. Therefore, the Applicants argued, the employees should have the right to refuse to work on the public holiday as per s.114(3) of the Act.

[11] The parties agreed that the questions for arbitration were as follows:

    1. Was the request by Anglo Coal (Dawson Services) Pty Ltd (“Dawson”) for employees to work their normal rostered shift on Monday 1 October 2012 unreasonable?

    2. Would it have been reasonable for an employee to have refused the request by Dawson to work the rostered shift on Monday 1 October 2012?

[12] The parties agreed that, given the timing of the application, and that the matter was not able to be resolved at conciliation, that the appropriate preparation of materials and the hearing of the matter could not practicably be concluded prior to 1 October 2012, the Queen’s Birthday public holiday. The parties agreed, in order for this matter to proceed to arbitration, on the manner, in which the 1 October 2012 public holiday would be worked and the Respondent provided the following undertaking:

    1. If Fair Work Australia determines that:

      (a) The request by Anglo Coal (Dawson Services) Pty Ltd ("Dawson") for employees to work their normal rostered shift on Monday 1 October 2011 was unreasonable; or

      (b) It would have been reasonable for an employee to have refused the request by Dawson to work the rostered shift on Monday 1 October 2012;

    then the Respondent undertakes to give all employees who attend a rostered shift and work as normal on Monday 1 October 2012 a day-in-lieu to be taken by employees in the same manner as annual leave.

    2. This undertaking is dependent on the Construction, Forestry, Mining and Energy Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union directing their members to attend their rostered shift on Monday 1 October 2012 and the employees work as normal.

[13] The Applicants were represented by Mr Chris Newman of the CFMEU and Ms Lisa Butler of the AMWU. The Respondent was represented by Mr Ian Humphreys and Mr Chris Newman of Ashurst Australia.

[14] Whilst all of the submissions and evidence provided in this matter may not be referred to in this decision, all of such has been considered in making the determination.

Relevant provisions of the legislation and Agreement

[15] The Holidays Act 1983, s.11 states as follows:

11 Particular public holidays in 2012

    (1) A public holiday is to be observed on 11 June 2012 for the Queen's Diamond Jubilee.

    (2) To remove any doubt, it is declared that a reference in an industrial instrument under the Industrial Relations Act 1999 to a public holiday is taken, for 2012, to include the day mentioned in subsection (1).

[16] Section 55(1) of the Fair Work Act 2009 provides:

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...

[17] Section 61 of the Act provides:

61 The National Employment Standards are minimum standards applying to employment of employees

    (1) This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).

    Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.

    (2) The minimum standards relate to the following matters:

      (a) maximum weekly hours (Division 3);

      (b) requests for flexible working arrangements (Division 4);

      (c) parental leave and related entitlements (Division 5);

      (d) annual leave (Division 6);

      (e) personal/carer’s leave and compassionate leave (Division 7);

      (f) community service leave (Division 8);

      (g) long service leave (Division 9);

      (h) public holidays (Division 10);

      (i) notice of termination and redundancy pay (Division 11);

      (j) Fair Work Information Statement (Division 12).

[18] Section 114 of the Act provides:

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.

    Reasonable requests to work on public holidays

    (2) However, an employer may request an employee to work on a public holiday if the request is reasonable.

    (3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

      (a) the request is not reasonable; or

      (b) the refusal is reasonable.

    (4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

      (a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

      (b) the employee’s personal circumstances, including family responsibilities;

      (c) whether the employee could reasonably expect that the employer might request work on the public holiday;

      (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

      (e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

      (f) the amount of notice in advance of the public holiday given by the employer when making the request;

      (g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

      (h) any other relevant matter.

[19] Section 115 of the Act provides:

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)).

[20] Clauses 2.7, 2.7.1 and 2.7.2 of the Agreement sets out as follows:

2.7 Remuneration

    Employees will be paid by the week the relevant salary components according to their role as outlined in this Clause. An employee’s Total Remuneration is the sum of these components.

2.7.2 Work Pattern Payment

    Work Pattern Payments for each shift work roster will comprise a Rostered Overtime Component, a Weekend Work Component and a Shift Penalty Component as outlined in Attachment 2 (indicative salaries).

[21] Clauses 3.3.1 and clause 3.3.3 of the Agreement provide:

3.3 Public Holidays

    3.3.1 Subject to the provisions of this Agreement and the Act, unless employees are required to work, they will be entitled to the following public holidays or any day gazetted by the Queensland State Government to be observed in lieu of such public holidays, without loss of pay.

    • New Year’s Day


    • Australia Day


    • Good Friday


    • Easter Saturday


    • Easter Monday


    • Anzac Day


    • Labour Day or May Day


    • Queen’s Birthday


    • Biloela Show Day


    • Christmas Day


    • Boxing Day


    ...

    3.3.3 If employees are working shift work and they are required to work on a public holiday no additional payments apply as the remuneration provided under Clause 2.7 and/or the additional annual leave entitlement in Clause 3.1 comprehends such work.

    3.3.4 If employees are working day work and they are required to work on any public holiday in addition to the payment in Clause 2.7 they will receive an additional credit to their annual leave entitlement as follows:

      (a) Up to and including four (4) hours work – a credit of half a day;

      (b) More than four (4) hours work – a credit of one day.

    3.3.5 Dawson will, if practicable, give one (1) week’s notice of the requirement to work on a public holiday. Notwithstanding 3.3.2, employees will not be required to work on two (2) of the public holidays nominated in 3.3.1. These two (2) days will be as agreed between Dawson and the majority of employees. Where either of those days is Christmas Day or Boxing Day, those days must be observed on 25 and 26 December respectively.

[22] The disputes resolution procedure of the Agreement is contained in clause 5.1. The relevant part of this provision provides as follows:

5.1 Disputes Resolution

    In the event of any dispute arising under this Agreement, the National Employment Standards or in the course of employment, work shall continue in accordance with the reasonable direction of management.

    .....

    Step 5

    Should a resolution not be reached and the dispute has arisen from the terms of this Agreement or the National Employment Standards, the matter may be referred by any of the parties to Fair Work Australia for conciliation. Where resolution is reached before Fair Work Australia, it shall be promptly implemented and complied with by the Parties.

    Should a resolution not be reached and the dispute has arisen from the terms of this Agreement or the National Employment Standards, the matter may be referred by any of the Parties to Fair Work Australia, for determination through arbitration.

    It is the intention of the Parties that in fulfilment of Step 5, Fair Work Australia shall exercise the functions and powers normally associated with conciliation and arbitration.

[23] The current 2010 Agreement came into operation on 29 September 2010 and expires on 16 August 2013. There was some debate between the parties in relation to why this matter hadn’t arisen in terms of the history of amendments to the Holidays Act previously in respect to other previously gazetted public holidays worked during the life of the Agreement. Accordingly ss.9 and 10 of the Holidays Act, as they relate to other gazetted public holidays in previous years of this Agreement are set out below:

9 Particular public holidays in 2010

    (1) Subsection (2) applies despite a gazette notice made by the Minister under section 3 by which the Minister substituted another day for a public holiday for Christmas Day in 2010.

    Note—

    The Minister, by a gazette notice published on 28 August 2009, substituted 28 December 2010 for a public holiday for Christmas Day.

    (2) Both of the following days are to be observed as public holidays for Christmas Day in 2010—

      * 25 December 2010

      * 28 December 2010.

    (3) To remove any doubt, it is declared that a reference in the Industrial Relations Act 1999, or in an industrial instrument under that Act, to a public holiday for Christmas Day is, for 2010, taken to include both of the following days—

      * 25 December 2010

      * 28 December 2010.

10 Particular public holidays in 2011

    (1) Both of the following days are to be observed as public holidays for New Year's Day in 2011—

      * 1 January 2011

      * 3 January 2011.

    (2) To remove any doubt, it is declared that a reference in the Industrial Relations Act 1999, or in an industrial instrument under that Act, to a public holiday for New Year's Day is, for 2011, taken to include both of the following days—

      * 1 January 2011

      * 3 January 2011.

Summary of the Applicants’ submissions

[24] The Applicants submitted that the dispute was initiated prior to the gazettal of the public holidays amendment Act in December 2011, which set out the additional day for 1 October 2012 for the Queen’s Birthday Holiday.

[25] The submissions stated that in January 2012 the employees, again raised the issue of the public holiday and extra remuneration for working this additional day. However they stated that the Respondent did not provide a response to employees about their intentions regarding the additional day. The Applicants stated that the employees worked the public holiday on 11 June 2012, but were still pressing the Respondent for an answer, regarding the payment for shift employees for what was seen to be the additional public holiday on 1 October 2012.

[26] The Applicants referred to a response (from Ms Amanda Baker, Human Resources Manager for the Respondent) written to the Lodge President of the Mine, outlining the Respondent’s position regarding the upcoming October public holiday. An extract of the correspondence states:

    “The letter of 24 August stated:

    “as clause 3.3.3 refers to “any public holiday” rather than merely those normally recognised (and which are listed in clause 3.3.1), it is Dawson’s position that such employees will not be entitled to any additional remuneration for the additional public holiday as the remuneration provided for in the Agreement already compensates employees for all public holiday work.”

[27] As a result of the correspondence, the Applicants lodged the current dispute with FWA.

[28] The dispute notification set out that given the additional public holiday, employees of the Respondent would not receive any additional remuneration for work performed on 1 October 2012. Therefore any request to perform work on that day, would be unreasonable and that a refusal to perform work on that day by employees, would be reasonable.

[29] The Applicants set out that the payment for public holidays was first negotiated in the 2007 Agreement. They stated that the parties had agreed that penalty payments for shift employees working public holidays, was to be rolled up into the rate, so that employees received an aggregate rate of pay, for all work performed on rostered public holidays, from the list of those set out, in clause 3.3.1 of the Agreement.

[30] The evidence of Mr Glenn Power, District Vice President of the Construction, Forestry, Mining and Energy Union - Mining and Energy Division, is that in making the 2010 Agreement, the parties agreed to the continuation of the existing practice in relation to payment for public holidays, as set out in the previous 2007 Agreement. 3 The Applicants submitted that the payment for the public holidays as stipulated in clause 3.3.1 of the Agreement, already formed part of the payment to employees in their remuneration, as set out in the Agreement. The Applicants stated that the intent of clause 3.3.3 was to prevent shift employees from receiving any further additional payments (in addition to the aggregate rate) for work on these public holidays. However the Applicants submitted that it was never the intent of the parties that clause 3.3.3 was to operate as a bar to the payment to employees for working additional public holidays. Further the Applicants emphasised, that the Agreement does not accommodate or anticipate work being performed by shift employees on additional public holidays.

[31] Specifically the Applicants stated:

    “The issue at the heart of this dispute is the request to work on 1 October 2012, which the Applicant admits is not an additional day. However, given the uniqueness of the public holidays in 2012 with the additional day provided for in s.11 of the Holidays Act and the movement of the Queens Birthday holiday, the Applicant submits that any work performed on 1 October 2012 will not attract any additional payments even though it is not an additional day.” 4

[32] It is clear in this submission that the 1st of October is conceded as not an additional day, but that the gazettal of the additional public holiday for the Queen’s Diamond Jubilee, as prescribed by the Holidays Amendment Act has resulted in this giving rise to this dispute. The Applicants stated that the working of the Queen’s Birthday holiday will be, in practical terms, worked as an additional public holiday.

[33] The Applicants clearly conceded the position regarding the additional public holiday in paragraph 41 of their submissions which provides:

    “The Applicant admits that 1 October 2012 is the Queens Birthday holiday which is a holiday provided for in clause 3.3.1 and that the additional day in 2012 has already occurred on 11 June 2012.”

[34] The critical element of the dispute for the Applicants is that the base salary in the agreement only provides for a calculation for payment, for work on potentially nine of the annual public holidays as stipulated in clause 3.3.1 of the Agreement. The clear understanding of the parties is that on Christmas Day and Boxing Day the Mine will be closed and the employees shall be entitled to these two days off, without loss of pay, and will not be requested to work on the two days. The Applicants submitted, employees may be rostered to work on up to nine of the eleven days in clause 3.3.1 of the Agreement.

[35] The Applicants contended:

    “43. The Applicant submits that this agreement means that the payment for public holidays in the base rate is based on nine public holidays a year and once nine public holidays has been reached in a year, employees who work on any public holiday between this day and the end of the year would not receive any additional compensation under the agreement.

    44. Ordinarily, due to the agreement there would be no issue as employees would be entitled to the final two holidays of the year, Christmas and Boxing Day, off without loss of pay.

    45. However, due to the additional day on 11 June 2012, employees were rostered across 9 public holidays on the additional day in June. Therefore, the Applicant submits that the ‘rolled up rate’ exhausted all the compensation for work on public holidays on this date and any day worked subsequent to this date does not receive any additional compensation.

    46. Therefore, even though the Queens Birthday holiday is a day within clause 3.3.1 and not an additional day, the end effect of having the additional day in 2012 that is not anticipated and able to compensate for in the Agreement essentially means that employees who are requested to work on the final rostered public holidays in 2012 (i.e. 1 October) will not receive any additional compensation or remuneration.” 5

[36] The Applicants submitted that s.55(1) of the Act states that an Agreement cannot exclude any provision of the NES. Furthermore the Applicants stated that clause 3.3.3 of the Agreement states that employees can be required to work. They submitted that this requirement attempts to exclude s.114(2) and (3) of the Act, whereby the employees have the right to refuse the request, if the request is unreasonable or a refusal is reasonable. The Applicants submitted that the requirement to work on a public holiday excludes the NES entitlement that allows for an employee to refuse to work on a public holiday, which is contrary to s.55(1) of the Act. Section 55(1) of the Act states (repeated for convenience):

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...

[37] The Applicants submitted that the NES provisions must take precedence. Further the Applicant submitted that the request for employees to work on the public holiday and their potential refusal in accordance with the factors outlined in s.114(4), could be considered to be reasonable, in circumstances where no payment was being provided for an additional public holiday.

[38] The Applicants submitted that particular weight should be placed on s.114(4)(d) that is payment, in accordance with paragraph 452 of the Explanatory Memorandum, which states in relation to s.114(4):

    “The relevance of each of these factors and the weight to be given to each will vary according to the particular circumstances.In some cases, a single factor will be of great importance and outweigh all others, in others there will be a balancing exercise between factors”

[39] The Applicants referred to, the manner in which the Modern Award; the Black Coal Mining Industry Award 2010, allows for extra payment for employees required to work on public holidays. Further they referred to a submission, in relation to public holidays, made by the Federal Government in the recent Modern Award review, where the importance of public holidays for workers was recognised. Specifically the Unions emphasised that public holidays have particular cultural and industrial significance and that to request employees to work these without effectively any extra remuneration is unacceptable.

[40] The Unions stated that the current dispute arose simply because the Agreement did not deal with the working of an additional public holiday and this left employees in a situation, where the practical effect of those working on the 1st of October 2012 is that those employees, will have worked the day without an additional payment and therefore it would have been reasonable for them, to have refused to work on this day.

[41] Mr Hempseed, the AMWU convenor on site since 1995, provided evidence. He had been involved in the negotiation of the 2010 Agreement. He confirmed that the 2010 public holidays clause was a rollover of the provision in the 2007 Agreement. Mr Hempseed confirmed, that when it became known to employees that the Respondent had no intention of paying any additional payments for work performed on the 1st of October 2012 (considered to be the additional public holiday by AMWU members) the employees indicated to him, that they would prefer to observe the public holiday and be absent from work without loss of pay. He stated that the reason predominantly provided to him, by members, was that it was unreasonable, for the Respondent to ask them to work on a public holiday, without any additional payment. He stated that given the Respondent’s delayed response and its proximity to the public holiday, AMWU members agreed to work the public holiday and to have this matter determined by FWA, in accordance with the undertakings provided by the Respondent. That is, where FWA finds that the request was unreasonable or the refusal reasonable for 1 October 2012, they be provided with a day in lieu, to be taken as annual leave.

[42] Mr Hempseed further confirmed, that during the negotiations, that on first looking at the amount of the rolled up rate, that it lacked the component for compensation for the public holidays. The Respondent conceded such, that an error had been made, and reviewed the rate and came back with another rate which was agreed to. Mr Hempseed’s evidence was that he was not aware of the structure or the basis for the calculation of the particular component, only that it compensated employees for working up to nine of the eleven public holidays. In this regard the following exchange occurred during cross-examination:

    “Mr Humphreys: So the bargain was struck in the 2007 agreement when the aggregate wage was first established, that coalmine workers would make themselves available to work the public holidays listed in clause 3.3.1, that is, excluding Christmas Day and Boxing Day, and that in fact means that they would be agreeing to work nine public holidays?

    Mr Hempseed: They would be agreeing to work the number of holidays that were put into their roster as per their roster cycle.

    Mr Humphreys: Up to a figure of nine?

    Mr Hempseed: Yes, but that didn't - you only went to - your roster was drawn for 12 months in advance.

    Mr Humphreys: Yes?

    Mr Hempseed: And whatever - wherever you were in that roster cycle was what you worked.

    Mr Humphreys: Correct. If per chance that roster cycle resulted in you working up to nine, then that was the deal?

    Mr Hempseed: Yes.

    Mr Humphreys: When in fact the rosters don't produce that outcome, as a matter of fact, do they?

    Mr Hempseed: Well, it depends on which roster you work on, yes.

    Mr Humphreys: But you're very clear that that was the bargain. Have you read Mr Burnet's affidavit?

    Mr Hempseed: Very briefly this morning, yes.” 6

[43] The parties did not provide a copy of the actual rosters worked across 2012. In any event Mr Humphreys stated that the roster did not identify the public holidays across the actual roster. 7

Summary of the Respondents submissions

[44] In line with the evidence of Mr Hempseed, the Respondent conceded that the structural basis for the calculation of the public holidays component of the wage rate was not communicated to the Unions nor were there specific discussions between the parties on this. The Respondent submitted, the calculation was based on employees working no more than an average of six public holidays per year, over the life of the three year Agreement.

[45] The Respondents provided a table (Exhibit 5) 8 entitled “Public Holidays Worked Over Life of Agreement (Including ‘Additional’ Public Holidays worked on 3 January 2011, 27 December 2011 and 2 January 2011)” that they say demonstrated that even with this additional public holiday being considered as the June 2012 Queen’s Diamond Jubilee public holiday or the 1st of October, Queens Birthday public holiday, the employees, on the basis of the public holidays worked, were not working any more than an average of six public holidays per year across the life of the Agreement.

[46] The table, Exhibit 5, presented the average number of public holidays worked over the life of the Agreement, including “additional” public holidays worked on 3 January 2011, 27 December 2011 and 2 January 2012. The public holidays (as set out earlier) arose from the amendments to the Holidays Act in earlier years during the Agreement. In this matter there was no specific evidence related to a refusal to work on those particular holidays, as denoted as additional in Exhibit 5. Accordingly a working history of whether there was a reasonable request and a reasonable refusal of such request, in terms of the application, cannot be factored into the current matter.

[47] However the Respondent stated that the only history in evidence, is that the employer had no experience with employees refusing to work such past public holidays.

[48] Both parties stepped through a consideration of the factors to be considered under s.114(4) and these will be considered under the heading “Considerations”.

[49] Both parties emphasised that the particular issue in contention between the parties was the element of s.114(4)(d) in terms of payment for working the public holiday. In interpreting whether an additional payment is required, the Respondent set out as follows:

    “15. It is submitted that it is clear under clause 3.3.3 of the 2010 Agreement that employees who are required under their roster to work a public holiday are not entitled to any additional payment because "the remuneration provided under clause 2.7 and/or the additional annual leave entitlement in Clause 3.1 comprehends such work".

    16. In interpreting an industrial instrument, the starting point should be a consideration of the natural and ordinary meaning of its words.: City of Wanneroo v Holmes (1989) 30 IR 362 at 379 per French J.

    17. Clause 3.3.3 refers to "a public holiday", and the plain and ordinary meaning of this term is any public holiday recognised in a particular area. It is not limited to public holidays that existed at the time the 2010 Agreement was made, or the public holidays listed in clause 3.3.1. It is submitted that this interpretation of clause 3.3.3 is supported by the absence of any provision in the 2010 Agreement providing for additional payment or other compensation to be made to employees if a public holiday not listed in clause 3.3.1 is worked.

    18. The reference to "a public holiday" in clause 3.3.3 also differs from the reference to the same term in clause 3.3.5, which states that "employees will not be required to work on two (2) of the public holidays nominated in 3.3.1". The reference to 'public holiday' in clause 3.3.3 could similarly have been defined as a public holiday "nominated in 3.3.1". However, this did not occur, and the term public holiday in clause 3.3.3 should not be understood as being limited to those public holidays listed in clause 3.3.1.

    19. As outlined by the Applicants, provisions in industrial instruments should be read to give effect to the evident intention of the parties: Kucks v CSR Ltd (1996) 66 IR 182.

    20. It is submitted however that in the negotiation of the 2007 Agreement, no party to the negotiation contemplated an additional public holiday being declared by the Government, and how such an additional public holiday would impact employees. This point is conceded in the Witness Statement of John Hempseed. 9 Clause 3.3.3 was then not discussed or materially altered during negotiation of the 2010 Agreement.

    21. In these circumstances, it cannot be said that there was any intention at all in relation to the declaration of additional public holidays, and as such, intention is not a factor that is able to be utilised in the interpretation of clause 3.3 of the 2010 Agreement. Rather, the Tribunal should be guided by the plain language of the clause as referred to above.” 10

[50] The Respondent submitted that the remuneration for public holidays is set out in clause 2.7 of the Agreement and that clause 3.3.3 of the Agreement states that employees are not entitled to any additional payments for working a public holiday because the payment in clause 2.7 or the additional annual leave entitlement comprehends working on such public holidays.

[51] The Respondent specifically referred to the calculation of the public holiday component as follows:

    “23. Under clause 2.7, an employee's remuneration consists primarily of a 'Base Annual Salary' and a 'Work Pattern Payment'. The Base Annual Salary effectively compensates employees for their ordinary hours of work, and the Work Pattern Payment compensates employees for working rostered overtime and shift/roster work.

    24. This remuneration structure was first formulated in the previous enterprise agreement at the mine, the Dawson Central Mine Enterprise Agreement 2007 ("2007 Agreement"). In determining the remuneration under the 2007 Agreement, the Respondent used a formula to determine the amount of the Work Pattern Payment applicable to each roster worked at the mine. 11 Part of the Work Pattern Payment compensated employees for public holiday work, and this component of the Work Pattern Payment was calculated as follows:

    Assumed number of public holidays worked x shift length x hourly rate

    25. The 'assumed number of public holidays' included in the this part of the formula for all 7-day rosters worked at the mine was six. The Respondent adopted a "generous" approach to this compensation. 12 This meant that the Work Pattern Payment each year compensated employees for working six public holidays, which meant that over the three-year life of the 2007 Agreement, each employee working a 7-day roster was compensated for working a total of 18 public holidays.

26. In determining the amount of the Base Annual Salaries and Work Pattern Payments in the 2010 Agreement, the parties to the negotiation of the 2010 Agreement simply applied the agreed remuneration increase to the Annual Base Salary and Work Pattern Payment amounts in the 2007 Agreement. 13 As such, the Work Pattern Payment in the 2010 Agreement is based on the formula used to determine the amount of the Work Pattern Payment in the 2007 Agreement, which included compensation for working six public holidays a year, and 18 public holidays over the three-year term of the Agreement.”14

Considerations

[52] The Applicants submitted that there was an attempt at excluding the effect of ss.114(2) and (3) of the Act by the requirement in the Agreement to work public holidays which did not accord with ss55(1) or 61(1) of the Act. The Respondent did not purport to be excluding or limiting the NES. Both parties proceeded on the basis that the enquiry was properly made under s.114(4) of the Act. It is clear that this is the Agreement the parties agreed to. An attempt to now exclude the operation of clauses of the Agreement, in a way that neither party submitted, was raised at the time the Agreement was considered for approval by FWA, would be an unfair advantage. The employer and employees agreed to a certain increased rolled up rate, which takes account of work on public holidays. Such arrangements are not unique and have been quite common in Agreements since their inception. The terms of the Agreement and the associated work arrangement struck are clearly matters that can be taken into account under s.114(4)(h).

[53] The Respondent’s conduct in this matter has clearly proceeded on the assumption that s.114(2), (3) and (4) are relevant and continue to operate in the context of the Agreement. I agree that this is the case. The wording of the Agreement does not operate so as to exclude the operation of s.114. The relevant provisions are “subject to...the Act”. There is no evidence that the employer has refused to consider any application by any employee as to their individual circumstances in relation to a refusal to work on the public holiday.

[54] Both parties provided submissions on s.114(4) of the Act in relation to the factors to be taken into account, as to whether a refusal to work a requested public holiday was reasonable.

[55] The agreed questions for arbitration are whether the request to work on 1 October 2012 was unreasonable and whether a refusal to work was reasonable in the circumstances of the agreed provision and the gazettal of the additional public holiday.

[56] Central to the parties’ submissions in relation to s.114(4) is a required interpretation of the Agreement provisions relating to the payment for public holidays.

[57] Clause 3.3.3 and 3.3.4 of the Agreement set out the applicable payment for public holidays. The Respondent relied on clause 3.3.3, that no additional payment was necessary for work on a public holiday as they argued the remuneration in clause 2.7 and/or the additional annual leave entitlements in clause 3.1 comprehend such work.

[58] However the Applicant argued that the Agreement does not anticipate or accommodate work on an additional public holiday by shift workers.

[59] The Applicants emphasised that the rolled up rate in clause 3.3.3 provided payment for the public holidays stipulated in clause 3.3.1, but this did not act as a bar for the additional payment for additional public holidays worked as per the NES.

[60] The Applicants noted that the dispute was brought about by the unique circumstances of the gazettal of the public holidays in 2012, with an additional day provided for the Queen’s Diamond Jubilee, via s.11 of the Holidays Act.

[61] The issue for interpretation, is whether in those circumstances there should be additional remuneration for the Queen’s Birthday public holiday under the Agreement. This is to be taken into account in s.114(4)(d) of the Act, together with the other factors in s.114(4) of the Act.

[62] Firstly, considering the other elements of s.114(4):

(a) The nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee

[63] The Respondent submitted that the workplace is a coal mine that operates 24 hours a day, 7 days a week, including public holidays. Further it was submitted that the coal mine operates on all public holidays (except for the Christmas Day and Boxing Day public holidays as set out in the Agreement) and it is not only normal practice for to the Respondent but also in the wider coal industry.

[64] In reply the Applicant submitted that such an operation is the Respondent’s preference but there is no compulsion for them to run the mine accordingly. The Applicant further pointed to the fact that the mine does cease operations on Christmas Day and Boxing Day and that, not all areas of operation in the Respondent’s mine operate or are requested to operate on such a continuous basis. Further the Applicant’s distinguished the nature of a coal mining operation, in contrast to a hospital that provided essential services and could not be arbitrarily closed on a public holiday.

(b) The employee’s personal circumstances, including family responsibilities;

[65] The Applicants and Respondent did not direct the Tribunal to any instances of an employee, or either Applicant on behalf of any employee, raising any such considerations (relevant to the present dispute) to assess in relation to the request to work.

(c) Whether the employee could reasonably expect that the employer might request work on the public holiday;

[66] The Respondent submitted that there was a clear expectation that the employees would be required to work on all public holidays, where their roster required such work, excluding Christmas Day and Boxing Day. Again the Respondent submitted that clause 3.3.3 stipulated such and was relevant to this consideration. Further employees were aware of this requirement when they received their roster for the year.

[67] The Applicant in reply, submitted that there was a reasonable expectation to work on the listed public holidays, but pointed to the Applicants’ attempts to raise the issue of working the additional public holiday, with the Respondent, since as early as last year. The Applicant’s submitted that the Respondent only made the decision to require employees to work the October 2012 public holiday in September of 2012.

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

[68] This particular factor of the relevant payment is the element of the dispute which has received the most attention from the parties, particularly the Applicants in submissions.

[69] The Applicants submitted that it was the intent of Parliament as set out in the Explanatory Memorandum, 15 that in certain circumstances, it is appropriate for FWA to give greater weight to “one factor above all others”16 when examining s.114 of the Act. The Applicants further submitted that this is such a matter. The Applicants stated that public holidays hold an important place in Australian society, and that if an employee was not to be paid for working such, they are entitled to be absent to observe the public holiday.

[70] The Applicant submitted that due to the ‘lacuna’ created in the Agreement regarding work on additional public holidays, employees in this circumstance will have worked on the 1 October 2012 public holiday, without any additional payment.

[71] The Respondent submitted that it was incorrect to say that employees did not receive any additional payment in addition to their ordinary remuneration for working the holiday. The submission on behalf of the Respondent was that employees had already received compensation for working on the public holiday in question, as a part of the agreed total remuneration under the Agreement.

[72] The Respondent’s interpretation of clause 3.3.3 of the Agreement submitted that the use of the term “a public holiday” carried its plain and ordinary meaning and was not limited to those public holidays listed in clause 3.3.1 of the Agreement. Following from this it was significant in the Respondent’s submission, that a distinction could be drawn between the use of the term “a public holiday” in clause 3.3.3 and the reference to the qualified term “the public holidays nominated in 3.3.1” in clause 3.3.5 of the Agreement.

[73] The evidence of Mr Hempseed, was that no party contemplated additional public holidays when negotiating the Agreement. The result of this, it was submitted, was that the intention of the parties is not a factor which the Tribunal should take into account in this interpretation, rather the plain and ordinary meaning of the words should be relied on.

[74] In any event, the Respondent also emphasised that the calculation of the aggregate annual salary was on the basis of an average of six public holidays being worked per year. Whilst the Applicants stated that the basis for the calculation was not conveyed to them, they did not challenge the Respondent’s submissions in this regard. The Applicant’s position was that the employees could be rostered to work up to the nine out of the eleven public holidays. However they stated that the Queen’s Diamond Jubilee holiday was not one of these nine public holidays. It was an additional day. Exhibit 5 clearly demonstrated that even with the additional gazette public holidays in 2010/11 and 2012, no employee was working more than nine public holidays; in fact no employee was working more than the average of six per year over the life of the Agreement. The Respondent again emphasised that the payment accounted for more than the number of days being worked under either the Applicant’s or the Respondent’s approach to the clause.

(e) The type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

[75] The Respondent and Applicants both agreed that the employees in question are shiftworkers. In the Respondent’s submission the shiftwork roster is to be worked across all of the public holidays except the stipulated two and therefore this requires the workforce to attend at work on all rostered public holidays in accordance with their roster. The Applicant put the position slightly differently, that employees are generally expected to work if they are rostered. The Applicants did not point to how the specific rosters were incompatible with the public holidays clause.

(f) The amount of notice in advance of the public holiday given by the employer when making the request;

[76] The Respondent pointed to the fact that the roster requiring employees to work on the public holidays in question was released in October 2011. In the Respondent’s submission this meant that employees were put on notice several months prior to the date of the (public holiday of 1 October 2012) of the requirement to work. The Queen’s Birthday public holiday was gazetted in December 2011. The Respondent provided a notice to employees at a later stage on 20 September 2012 indicating the requirement to work on 1 October 2012. In the Respondent’s submissions this notice, satisfied the requirement under clause 3.3.5 of the Agreement for one weeks notice of the requirement to work on a public holiday.

[77] The Applicants do not challenge that the roster for the year ahead was provided in October of 2011. However the Applicants submitted that the provision of the roster was not notice of the requirement to work on a differently gazetted public holiday and that specific notice was not provided until the notice to employees of 20 September 2012. It was this notice that the Applicants contended ‘crystallised’ the roster into an actual request to work on the public holiday.

[78] It is difficult to accept the submission that the provision of a roster is not a “request to work”. The roster setting out the days and times that the employer requires the employees to work is a request. It is common practice in a large number of workplaces and industries that Employers provide their employees with the rosters. To accept that a roster is not a request to work could lead to unacceptable consequences. The employer held out the days to be worked, however the Applicant’s stated that the further notification by correspondence of the requirement to work the Queen’s Birthday confirmed the request in the circumstances. Granted the Applicants submitted that the roster did not identify the public holidays. However they did not ask for them to be identified even after the gazettal of additional public holidays in previous years. This supports the Respondent’s submission of the remuneration being set to account for the required public holidays up to the average of six per year during the life of the Agreement. This maximum has not been met.

(g) In relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

[79] The Respondent submitted that the employer was not aware of the employees’ refusal to work on 1 October 2012, until the disputes were filed in FWA by the Applicants on 30 August 2012 and 4 September 2012.

[80] The Applicant’s accepted that they had not previously provided notice of their refusal to work until the first application was filed on 30 August 2012. However it was also noted by the Applicants that this was prior to the Respondent’s notice of the request to work on the public holiday on 20 September 2012.

(h) Any other relevant matter.

[81] Neither party submitted any other matter which FWA should take into account in this matter. However the experience with working the additional Queen’s Diamond Jubilee public holiday in 2012 is taken into account as relevant as are the provisions of the Agreement. Further the lack of evidence as to the gazettal of the previous year’s public holidays and the working of such without dispute is noted.

Conclusion

[82] Taking into account s.114(4)(d), as to whether the employees had been remunerated for working the public holiday, requires an interpretation of the Agreement provisions and the elements of s.114(4) of the Act.

[83] Deputy President Ives in National Union of Workers v GrainCorp Operations Limited 17summarised the general principles to be adopted in the interpretation of certified agreements as per the current circumstances. The approach was recorded as follows:

    “[46] A number of general principles relating to the interpretation of industrial instruments have been established by cases in the past. While an award or agreement should be interpreted in the same manner as a court or tribunal would interpret legislation or another document, it must be borne in mind that often industrial instruments are framed and drafted by laypersons who are not aware of all the legal niceties that may have been developed by the courts.

    [47] Among the general principles to be followed in the interpretation of awards and certified agreements are these:

      (a) if the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning (Re Clothing Trades Award (1950) 68 CAR 597);

      (b) the words used in an industrial instrument should not be interpreted in a strict, technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise (Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499; Hancock SDP in PTC of Victoria v ARTBIU, above);

      (c) each clause should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole (Australian Workers' Union v Abbey (1939) 40 CAR 494) and in the context of the clause/section in which it falls (Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 at 283);

      (d) the court or tribunal should strive to give effect to the intention of the authority which made the award (or, presumably, in the case of an agreement, the intent of the parties to the agreement), provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/parties intended them to mean (Australian Timber Workers' Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172;

      (e) the court or tribunal's recourse to extrinsic material in the interpretation of industrial instruments is not dependant upon the existence of ambiguity in the industrial instrument (Australian Municipal, Administrative, Clerical & Services Union v Treasurer of the Commonwealth of Australia (1998) 82 FCR 175; 80 IR 345);” 18

[84] The parties referred to the ‘legal principles’ of interpretation as set out by Madgwick J in Kucks v CSR Limited 19. In relation to the provisions for payment for public holidays under the Agreement, that decision relevantly states the approach taken is:

    “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 documents, 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.” 20

[85] In accordance with s.115 of the Act the “Meaning of Public Holiday”, the Queen’s Birthday holiday and any other declared public holidays are prescribed as public holidays. The Queen’s Diamond Jubilee public holiday, was accordingly declared as such, in s.115(1)(b).

[86] Clause 3.3.1, sets out that the working of public holidays is subject to the Act and the Agreement. The Act as set out above accommodates the working of additional public holidays.

[87] Clause 3.3.3 of the Agreement sets out that no additional payments apply as the remuneration for such was contemplated by clause 2.7.

[88] Clause 3.3.4 whilst referring to day workers refers to how the work on any public holiday will be treated. Again clause 3.3.5 treats the reference to public holidays in two specific ways. That is there is to be 1 weeks notice of the requirement to work on a public holiday. The scope of the public holidays are not limited (the roster indicating the days to be worked for the year is normally given at the commencement of the year). Clause 3.3.5 treats the days that will not be worked differently, by tying 2 of the public holidays to the list in clause 3.3.1. Similarly it was open to the parties to restrict the public holidays that could be rostered for the commensurate remuneration in clause 2.7 to only that list in 3.3.1, less Christmas and Boxing Day. This was not done.

[89] This Agreement and the prior Agreement with similar provisions were applicable when the additional public holidays (28 December 2012 and 3 January 2011) were gazetted to be observed for Christmas Day in 2010 and New Years Day in 2011. No disputes were recorded with such. The wording of clause 2.7.2 sets out the work pattern payments comprehended for work under the Agreement. The words of clause 2.7 simply state “[A]n employee’s Total Remuneration is the sum of these components”. The concept of working additional public holidays is not specifically dealt with for shiftwork employees under the Agreement and any additional remuneration for working such is not referred to. However as stated the Agreement provision relies on the Act. As set out, s115 provides for additional public holidays.

[90] The evidence of the Applicants was that the list in the Agreement provided the limit of public holidays that could be worked; nine of those eleven. However no such limit in terms of those actually listed in clause 3.3.1 was applied in 2010 and 2011, highlighted by the additional gazetted public holidays in those years. The evidence of the Applicants was that employees could work on up to nine of those eleven days. The evidence of the Respondent was that even against this arbitrary limit on the days to be worked no crew of employees had worked more than seven public holidays in any year 21. Whilst the employer argued the payment contemplated the working of an average of six public holidays per year over the life of the Agreement and that this had not been exceeded. The Applicants referred to the provision in the Black Coal Mining Industry Award [MA000001] that specifically provides for a payment for work on a public holiday, as prescribed as such by the NES. In contrast the wording of the provision in this Agreement does not provide for an extra payment.

[91] The Applicants argued that on the wording of the Agreement there was an absence of treatment for additional public holidays. The Respondent argued that in respect of the wording of the Agreement there was no absence of treatment.

[92] The framers of the Agreement, came to an arrangement, regarding the payment to the employees to compensate for the working of public holidays. In the consideration of this matter, the plain an ordinary meaning of the words of the provision is the commencing point. 22 Clauses 3.3.3 or 3.3.1 or 2.7 do not limit the working or payment of the public holidays to the list in clause 3.3.1 whereas clause 3.3.5 does specifically refer to the list of public holidays in clause 3.3.1. When excluding two of the public holidays in that list, it was also open to the parties in drafting the Agreement, to restrict the working of public holidays in clause 3.3.3, specifically only to the list in clause 3.3.1.

[93] Furthermore clause 3.3.3 states “subject to the provisions of the Agreement and the Act”, it was the Applicants submission, then that they could be rostered up to nine days of the eleven days. Specifically, 1 October 2012, the Queen’s Birthday public holiday, forms 1 of the nine public holidays, in the list in 3.3.1, open for employees to be rostered on to work. It is recognised that the Queen’s Diamond Jubilee public holiday does not form part of that list of public holidays. There was no evidence of any employees refusing to work on the ‘additional’ public holiday on the Queen’s Diamond Jubilee in June 2012 or the additional holidays in 2010 and 2011 which is, in fact, the additional public holiday, or that an additional consideration in relation to remuneration was sought.

[94] In any event, based on Exhibit 5, the maximum number of public holidays worked by any particular crew at the mine, was 8 in the years of 2011, and 2012. Further the Respondent emphasised that based on their calculation for the public holidays component in the rolled up rate, no more than an average of six public holidays per year over the life of the Agreement will be worked by any crew. This is the case even taking into account the ‘additional’ public holidays worked in previous years (for which there was no history of refusal to work). If the consideration is on actual, rather than average public holidays worked per year, only 1 crew has worked over six, in 2012, again less than the Respondent’s average of six and less than the Applicant’s nine public holidays.

[95] The Applicants did not challenge the submission of the Respondent that the calculation of the rolled up rate was on the basis of an average of six public holidays per year. Rather the Applicants submitted that as the rolled up rate is an annual rate, and given that public holidays are also treated on the basis of a calendar year the Tribunal should not be persuaded by the use of averages. However taking into account the discussion above, even if this argument is accepted only 1 crew will have actually worked more than six public holidays in only one of the three years of the Agreement. Further, the Applicants did not challenge the submission of the Respondent that the bargain struck was on the basis of a calculation of an average of six public holidays per year. To find otherwise would be stepping away from the bargain made between the parties in negotiating the agreement.

[96] Specifically, the 2013 figures presented in Exhibit 5 take into account public holidays up to the expiration of the Agreement in August 2013. The calculations for 2013 in the Agreement also include an additional public holiday after its expiry.

[97] Exhibit 5 sets out the total number of public holidays worked by each 7 day rostered crew, including the additional public holidays in 2012. The payment for working public holidays is as per clause 3.3.3 of the Agreement. Importantly this clause does not entitle employees to an additional payment or entitlement for working on 1 October 2012 or 11 June 2012, as the remuneration in clause 2.7 provides compensation to employees for working any public holiday and not just those listed in clause 3.3.1 or those that existed at the time the Agreement was made.

[98] Whilst it is acknowledged that the employees are frustrated with the scenario that has arisen in 2012, there is nothing in the clause or the evidence that can be applied to interpret the Agreement clauses or s.114(4) so as to introduce an additional payment or in the circumstances of the current Agreement warrant providing a day off in lieu, for an unreasonable request or reasonable refusal.

[99] The public holiday component of the ‘work pattern payment’ in the 2007 and 2010 Agreements was negotiated to compensate for the public holidays actually worked by employees rather than those that were simply listed in the Agreement. Therefore the Respondent stated that in accordance with s.114(4)(d) of the Act, the employees who attended their rostered shifts on 1 October 2012, were compensated for working on that public holiday and therefore any refusal to work would be considered to be unreasonable, under the Agreement and in relation to s.114(4).

[100] Based on a consideration of the plain and ordinary meaning of the wording of the Agreement, and the intention of the framers of the Agreement, and the history of the Agreement the additional payment is not warranted for 1 October 2012 nor for the 11 June 2012 Queen’s Diamond Jubilee public holiday. Accordingly it is not required that the employer exercise the undertakings to provide a day off in lieu. Exhibit 5 provides evidence of the public holidays worked over the life of the Agreement, including the additional days. The parties agreed on a rolled up rate, rather than a work pattern payment that was to be adjusted for public holidays worked.

[101] Differentiated wording was used in the clauses where the parties chose to limit the scope of public holidays to only those in clause 3.3.1, as was done in clause 3.3.5. This was not done in terms of the remuneration clauses or particularly in terms of clause 3.3.1 or 3.3.3 of the Agreement.

[102] Accordingly, taking into account those considerations set out in s.114(4) of the Act, and the material before the Tribunal, the request to work was reasonable. Further as the parties have not provided any evidence of the individual circumstances of any particular employee in refusing to work, the refusal to work would have been deemed unreasonable.

[103] It should be noted that this matter was conducted by the parties on the basis of an assessment of circumstances which apply to a group of employees. The wording of s.114(4) of the Act includes multiple references to “the employee”. Ordinarily this exercise would be done on a case by case basis as the requirement is to take into account the individual circumstances of “the employee” in relation to a request to an individual employee to work. That is not to say that all of the criteria in s.114(4) of the Act, require such an individual consideration, as some matters set out that the section clearly contemplates a general situation (for example the first portion of s.114(a)). It was not submitted by either party however, that the general submissions made regarding each criteria in s.114 did not apply to all of the employees in question, as if an individual request to work had been made. Further no individual circumstances regarding difficulties with working on the public holidays in question were raised.

[104] Taking into account the material before the Tribunal and the reasons as discussed above the applications by the CFMEU and the AMWU are dismissed. The request to work was reasonable and any refusal to work in the circumstances was unreasonable.

[105] I Order accordingly.

COMMISSIONER

Appearances:

Mr C Newman, CFMEU for the first Applicant.

Ms L Butler, AMWU for the second Applicant.

Mr I Humphreys and Mr C Newman of Ashurst for the Respondent.

Hearing details:

22 October 2012, Brisbane.

 1   Fair Work Act 2009 (Cth) s.114(4).

 2   Paragraph 26 of the Applicant’s submission and paragraph 6 of the Respondent’s submissions.

 3   Paragraph 32 of the Applicants submissions.

 4 Submissions of the CFMEU at [40].

 5   Applicant submissions in chief, paragraph 43-46.

 6   Transcript at PN78 - PN83.

 7   Transcript at PN716.

 8   Exhibit 5.

 9   At paragraph 10.

 10   Respondent outline of submissions at [15]-[21].

 11   See Statement of Chris Burnet at paragraphs 9 to 10.

 12   See Statement of Chris Burnet at paragraph 13.

 13   See Statement of Annette King at paragraph 6.

 14   Respondent outline of submissions at [22]-[26].

 15   Fair Work Bill 2009 Explanatory Memorandum, at paragraph 452.

 16 CFMEU submissions in chief, at [55].

 17   PR918161.

 18   Ibid at [46]-[47].

 19 [1996] IRCA 166.

 20   Ibid at page 184.

 21   Exhibit 5.

 22   City of Wanneroo v Holmes (1989) 30 IR 362 at 379 per French J.

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