Duggan v Shire of Roebourne
[2015] FCCA 1768
•29 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUGGAN v SHIRE OF ROEBOURNE | [2015] FCCA 1768 |
| Catchwords: LOCAL GOVERNMENT – Employee – casual lifeguard – enterprise agreement – entitlement to penalty rates for work on weekends and public holidays. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AA Fair Work Act 2009 (Cth), ss.548, 570(2) Local Government Industry Award 2010 |
| Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Decision – Public Holidays, Print L9178, 20 March 1995 Goodwin v Phillips (1908) 7 CLR 1 Re Australian Municipal, Administrative, Clerical and Services Union [2014] FWCFB 379; (2014) 241 IR 126 Re Clubs Association of New South Wales v Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch (Unreported, New South Wales Industrial Relations Commission, Matter No. IRC 6641 of 1999, 14 December 2000) Re Shop Employees Award (No.2) (1977) AR (NSW) 555 The Australian Workers Union & Ors v Blue Scope Steel (AIS) Port Kembla [2015] FWCFB 1798 Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 |
| Applicant: | PETER VINCENT DUGGAN |
| Respondent: | SHIRE OF ROEBOURNE |
| File Number: | PEG 383 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | By written submissions |
| Date of Last Submission: | 8 April 2014 |
| Delivered at: | Perth |
| Delivered on: | 29 June 2015 |
REPRESENTATION
| For the Applicant: | Australian Services Union (by written submissions) |
| For the Respondent: | Mr P Trestrail, Director Corporate Services, Shire of Roebourne (by written submissions) |
DECLARATION AND ORDERS
The Court declares that a casual employee employed under the terms of the Shire of Roebourne Enterprise Agreement 2012, who works on a Saturday or Sunday, is, by reason of the provisions of clause 17.2 of the 2012 Enterprise Agreement, entitled to be paid for all time worked on a Saturday or Sunday in accordance with clause 26.4 of the 2012 Enterprise Agreement.
The Court orders that:
(a)the Respondent pay the Applicant the sum of $328.74 within 14 days;
(b)the Applicant and Respondent file:
i)further submissions on the issue of payment to Mr Duggan for the public holiday on 1 January 2013, by 6 July 2015;
ii)any submissions in reply to the submissions in (i) above by 13 July 2015,
and that the Court consider the matter further on the basis of those submissions, and without an oral hearing, and any further Reasons for Judgment, declarations or orders be delivered at 9.30am on 27 July 2015;
(c)there be no order as to costs in this matter.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 383 of 2013
| PETER VINCENT DUGGAN |
Applicant
And
| SHIRE OF ROEBOURNE |
Respondent
REASONS FOR JUDGMENT
Issue
The issue in dispute relates to whether the Shire of Roebourne Enterprise Agreement 2012 (“2012 Enterprise Agreement”) provides an entitlement for the applicant, Peter Vincent Duggan (“Mr Duggan”), to be paid weekend penalty rates and public holiday penalty rates when performing the role of a casual lifeguard on a Saturday, Sunday or public holiday for the respondent, the Shire of Roebourne (“Shire”).
The matter is brought as a small claims proceeding in the Fair Work Division of this Court under s.548 of the Fair Work Act 2009 (Cth) (“FW Act”).
Mr Duggan is seeking orders to be issued by the Court for the payment of $620.16. The Shire seeks the dismissal of the application made by Mr Duggan.
The 2012 Enterprise Agreement
A copy of each of the 2012 Enterprise Agreement and the Shire of Roebourne Collective Agreement 2009 (“2009 Collective Agreement”) was attached to the Shire’s submissions. There does not appear to be any dispute about their terms.
Statement of Agreed Facts
A Statement of Agreed Facts was filed on 28 February 2014, and is as follows:
1.Peter Duggan was employed by the Respondent under a written contract of employment. Mr. Duggan commenced employment on 5 October 2012 in a Casual position of a Lifeguard. This contract was for the period 5 October 2012 to 4 October 2013. The written contract was not resigned upon expiry on 4 October 2013 but Mr. Duggan continued to perform the duties of a Lifeguard.
2.Mr. Duggan was also employed by the respondent under a written contract of employment as Assistant Accountant on a full time basis Monday to Friday with effect from 24 September 2012.
3.Mr. Duggan had two different pay slips for the two positions performed at the Shire and the pay rate / conditions for the role of Assistant Accountant is not in dispute.
4.Mr. Duggan’s salary, allowances and additional benefits were in accordance with the Shire of Roebourne Enterprise Agreement 2012 for both roles performed at the Shire.
5.The matter in dispute is whether the Roebourne Enterprise Agreement 2012 provides that Mr. Duggan is entitled to weekend and public holiday penalty rates
6.Mr. Duggan was required by the Respondent to work on the following dates;
Dates worked
Hours worked
Tuesday, 1 January 2013 (Public Holiday)
8.5
Saturday, 5 January 2013
8
Sunday, 6 January 2013
8
Saturday, 12 January 2013
8
Sunday, 13 January 2013
8
Total hours: 40.5
7.The total number of hours worked for the five days was 40.5 hours paid by the Respondent at the ASU Level 3 Step 1as per Appendix 1 Shire of Roebourne Enterprise Agreement 2012, at the Casual hourly rate of ($27.39 * 25% Casual loading) = $34.24 per hour. There is a Part A - Roebourne Allowance that is paid on top and is payable to all full time, part time and casual employees which is currently not in dispute.
8.The payment made by the Respondent to the Applicant for the 40.5 hours worked (refer paragraph 6) was $1386.84 before tax (excluding the Part A Roebourne Allowance).
9.The Applicant is claiming payment of $2006.98 before tax for the 40.5 hours worked as a Lifeguard in the pay period 1 January 2013 to 13 January 2013.
10.Mr. Duggan had contacted the respondent since October 2012 claiming payment of weekend penalty rates. The outline below shows the steps taken by the Applicant following the Dispute Resolution Clause as per the Shire of Roebourne Enterprise Agreement 2012.
a. …
b. …
c. …
d. …
e. …
f. … on 23 August 2013; Mr. Duggan advised that he had referred the matter to the Fair Work Commission as per Clause 13 Dispute Settlement procedure in the Shire of Roebourne Enterprise Agreement 2012.
g. The extended series of correspondence above with the Respondent was an attempt by the Applicant to resolve the dispute as per Clause 13 Dispute Settlement procedure in the Shire of Roebourne Enterprise Agreement 2012.
h. The matter went before Deputy President McCarthy, Fair Work Australia on 7 October 2013 for conciliation. However, the parties could not resolve the issue at conciliation.
i. Deputy President McCarthy referred the matter back to the parties to negotiate a resolution. The parties did not reach a resolution.
j. Subsequently the matter went to conference again on 8th November 2013 before Deputy President McCarthy but no resolution was reached.
k. The matter was withdrawn from Deputy President McCarthy and a Small Claims Application was later lodged in the Federal Circuit Court.
11.Mr. Duggan has since resigned his position as Assistant Accountant with the Respondent from 9 January 2014. He also gave notice to resign his position as a Casual Lifeguard and has since relocated from Roebourne.
(Transcribed from the Statement of Agreed Facts without amendment).
2012 Enterprise Agreement provisions
Relevant provisions of the 2012 Enterprise Agreement are set out hereunder.
Clause 3 – definitions
The following relevant definitions are contained in clause 3 – definitions:
3.8Casual shall mean a person employed on an intermittent or relief basis.
3.14Employee(s) includes all persons employed by the Shire of Roebourne who perform work covered by this Agreement.
Clause 17 - casual employment
The terms of casual employment are set out in clause 17 of the 2012 Enterprise Agreement which states that:
17.1Casual Employees will be paid an hourly rate of pay as per Appendix 1, which includes a loading of 25% as compensation in lieu of public holidays and any paid leave (sick, personal, carers and annual).
17.2Casual Employees, will also be paid any rates payable for shift and weekend work on the same basis as a full time or part time Employee. Such penalties, including overtime, will be calculated on the hourly Rate of Pay for the classification in which they are employed exclusive of casual loading.
17.3Refer Appendix 11 for further information regarding the terms and conditions of Casual Employees.
Clause 24 – accrued time off (ATO)
Clause 24.1 of the 2012 Enterprise Agreement states as follows:
24.1Ordinary hours of duty for full time salaried employees are 8.00am to 5.15pm with an unpaid break of 45 minutes for lunch to be worked Monday to Friday inclusive.
Clause 26 – overtime
Clause 26.3 of the 2012 Enterprise Agreement states that:
26.3.Overtime shall mean all the work performed in excess of, or outside, the ordinary hours of duty, the span of hours, the days of work and maximum hours as stipulated by clauses 23 and 24 and the relevant appendices for each work team.
Clause 26.4 of the 2012 Enterprise Agreement states that:
26.4Penalty rates will be calculated on the following basis:
26.4.1Overtime worked on any day, Monday to Saturday 12 noon inclusive, shall be paid for at the rate of time and a half for the first two hours then double time thereafter.
26.4.2Overtime worked on a Saturday after 12.00 noon or on a Sunday shall be paid for at the rate of double time.
26.4.3Overtime worked on any day prescribed as a public holiday shall be paid for at the rate of time and a half in addition to the ordinary pay otherwise due for that day.
Clause 43 – public holidays
Clause 43.1 of the 2012 Enterprise Agreement states that:
Full-time and part-time Employees will be entitled to the following public holidays without loss of pay for ordinary hours: New Year’s Day, Australia Day, Labour Day, Anzac Day, Good Friday, Easter Saturday, Easter Monday, Western Australia Day, FeNaCING Day (in lieu of Queen’s Birthday), Christmas Day and Boxing Day.
Clause 43.3 of the 2012 Enterprise Agreement states that:
By agreement between the Shire and the Employee, if an Employee works on the public holiday then the Employee will be granted time in lieu at time and a half.
Clause 43.4 of the 2012 Enterprise Agreement states that:
When an Employee works on a public holiday the employee will be remunerated at time and a half in addition to the ordinary pay for the day.
Appendix 4: Aquatic Employees and Fitness Instructors
In accordance with clause 2.1 of Appendix 4 of the 2012 Enterprise Agreement, Appendix 4 of the 2012 Enterprise Agreement covers Duty Managers and all Aquatic employees, Lifeguards and Fitness Instructors.
Clause 3.1 of Appendix 4 of the 2012 Enterprise Agreement states that:
The above Employees will be required to work a roster across the spread of hours from 5.00am to 10.00pm Monday to Sunday (inclusive).
Clause 3.2 of Appendix 4 of the 2012 Enterprise Agreement states that:
Ordinary hours will average 80 hours over two weeks and may be worked from Monday to Sunday (inclusive).
Clause 5.1 of Appendix 4 of the 2012 Enterprise Agreement states that:
Employees at the Roebourne Aquatic Centre will be eligible for all of the conditions outlined in this Enterprise Agreement.
[Note: reference to “all of the conditions”]
Clause 5.3 of Appendix 4 of the 2012 Enterprise Agreement states that:
For the purposes of this Appendix, overtime will be classed as:
·Any hours worked over 80 hours per fortnight.
·Hours worked outside of the ordinary spread of hours.
Clause 8.1 of Appendix 4 of the 2012 Enterprise Agreement states that:
Employees required to work ordinary hours on Saturdays and Sundays will be paid a loading of 25% on Saturdays and 50% on Sundays.
Appendix 11: Casual Employees
Appendix 11 of the 2012 Enterprise Agreement relevantly provides that:
1. Application
1.1 All casual Employees.
2. Spread of hours
2.1The ordinary spread of hours for casual Employee will be from Monday to Sunday (inclusive).
2.2By agreement Casual Employees can be rostered up to a maximum of ten (10) hours total on any day.
2.3Casual Employees can work split shifts
…
4. Loading
4.1All casual Employees will receive a 25% loading on the ordinary hourly rate.
Mr Duggan’s submissions
Mr Duggan relevantly made submissions as follows:
a)that in performing the duties of a casual Lifeguard he was entitled to weekend penalty rates by reason of clause 17.2 of the 2012 Enterprise Agreement;
b)casual employees are entitled to an hourly casual loading of 25% for every hour that they work. The casual loading compensates them for entitlements they do not receive such as paid annual leave, paid personal leave and paid public holidays;
c)clauses 3.1 and 3.2 of Appendix 4 of the 2012 Enterprise Agreement spell out the patterns of days and hours that all Aquatic Centre Employees, including casuals, may be required to work but do not take away any entitlements to penalty loadings for work performed on weekends and public holidays;
d)clause 5.1 of Appendix 4 of the 2012 Enterprise Agreement does not make an exemption of any entitlements to the casual Lifeguards employees;
e)the weekend penalty rates provided by Appendix 4 of the 2012 Enterprise Agreement apply to all workers employed on a full time, part time or casual basis of employment. This is the ordinary and normal meaning of the words in clause 8.1 of Appendix 4 of the 2012 Enterprise Agreement and is consistent with their application in industrial awards and agreements;
f)clause 2.1 in Appendix 11 of the 2012 Enterprise Agreement provides the patterns of days and hours that Aquatic Centre employees and casuals may be required to work but does not take away any entitlement to be paid the penalty loadings for work on weekends and public holidays;
g)clause 43.4 of the 2012 Enterprise Agreement does not distinguish which employee will be remunerated at time and a half in addition to the ordinary pay for the day, and where a casual employee is required to work on a public holiday that casual employee is entitled to be remunerated as per clause 43.4 of the 2012 Enterprise Agreement;
h)employees performing work on the following days are currently paid by the Shire at the following percentage of the minimum wage rate in clause 17.2 of the 2012 Enterprise Agreement - Minimum wages for the Aquatic Employees and Fitness Instructors Classification:
Monday to Friday Saturday Sunday Public Holiday
% % % %
Full-time and
Part-time 100 125 175 250Casuals-
(Plus
Casual Loading) 125 125 125 125i)Mr Duggan seeks payment of the weekend rates of pay as provided by the relevant clauses of the 2012 Enterprise Agreement. An employee performing work on the following days should be paid at the following percentage of the minimum wage rate in clause 17.2 of the 2012 Enterprise Agreement minimum wages for the Aquatic Employees and Fitness Instructors Classification.
Monday to Friday Saturday Sunday Public Holiday
% % % %
Full-time and
Part-time 100 125 150 250Casuals-
(Plus 25%
Casual Loading) 125 150 175 250j)the Shire paid to Mr Duggan the following (before tax) for the 40.5 hours worked in the period identified above.
Dates worked
Hours worked
Hourly Rate
Amount
Tuesday, 1st January 2013 (Public Holiday)
8.5
$34.2430
$291.06Saturday, 5th January 2013
8
$34.2430
$273.94Sunday, 6th January 2013
8
$34.2430
$273.94Saturday, 12th January 2013
8
$34.2430
$273.94Sunday, 13th January 2013
8
$34.2430
$273.94Total hours: 40.5
$1,386.82The Court notes the amount of $1386.82 differs from the amount agreed as having been paid to Mr Duggan, which is $1386.84: see [6] above, at [8] in the Statement of Agreed Facts.
k)Mr Duggan seeks orders for payment of weekend and public holiday penalty rates for hours worked at the weekend and public holiday at the rate (before tax) as calculated below:
Tuesday, 1st January 2013
(Public Holiday)
$27.3944*2.5=$68.486
Saturday’s, 5th and 12th January 2013
(Saturday rate)
(27.3944*25% Casual loading) + 25% Saturday loading.
$27.3944+$6.84 +$6.8486=$41.0916
Sunday’s, 6th and 13th January 2013.
(Sunday rate)
(27.3944*25%) + (27.3944* 50% Sunday loading)
$34.243+ $13.6972=$47.9402
Dates worked
Hours worked
Hourly Rate
Amount
Tuesday, 1st January 2013 (Public Holiday)
8.5
$68.486
$582.08
Saturday, 5th January 2013
8
$41.0916
$328.7328
Sunday, 6th January 2013
8
$47.9402
$383.5216
Saturday, 12th January 2013
8
$41.0916
$328.7328
Sunday, 13th January 2013
8
$47.9402
$383.5216
Total hours: 40.5
Total amount:
$2006.98
The Court notes that when each of the amounts in the “Amount” column are added together the correct “Total amount” is $2006.5888, which, rounded off is $2006.59.
The Shire’s submissions
The Shire submits that:
a)all Shire employees with the exception of management staff are employed under the 2012 Enterprise Agreement;
b)casual employees are not entitled to all of the conditions contained in the 2012 Enterprise Agreement including, but not limited to, clause 24 (Accrued Time Off), clause 25 (Additional Rates for Ordinary Hours of Work), clause 26 (Overtime), clause 27 (On Call), clause 29 (Redundancy), part of clause 33 (Shire of Roebourne Allowances), clause 34 (Loyalty Payments), clause 37 (Study Assistance), clause 40 (Use of Council Facilities), clause 42 (Cashing Out of Annual Leave), clause 43 (Public Holidays), clause 51 (Personal/Carer’s Leave), clause 52 (Personal Leave due to illness during Annual Leave), and most Appendices;
c)clause 17 of the 2012 Enterprise Agreement provides that casual employees “will be paid an hourly rate of pay in accordance with Appendix 1, which includes a 25% loading in lieu of public holidays and any paid leave”;
d)although clause 17.2 of the 2012 Enterprise Agreement states that casual employees will be paid rates payable for shift and weekend work on the same basis as full time or part time employees, clause 17.3 of the 2012 Enterprise Agreement specifically refers to Appendix 11 of the 2012 Enterprise Agreement for further information regarding the terms and conditions of casual employees – not Appendix 4 of the 2012 Enterprise Agreement nor any other provisions of the 2012 Enterprise Agreement;
e)Appendix 11 of the 2012 Enterprise Agreement outlines the spread of hours, overtime and loading applicable to all casual employees;
f)clause 2.1 of Appendix 11 of the 2012 Enterprise Agreement provides that “The ordinary spread of hours for [a] casual Employee will be Monday to Sunday (inclusive)”;
g)clause 4.1 of Appendix 11 of the 2012 Enterprise Agreement provides that “All casual Employees will receive a 25% loading on the ordinary casual rate”;
h)there is no provision for payment of shift and weekend penalties in Appendix 11 of the 2012 Enterprise Agreement;
i)Appendix 4 of the 2012 Enterprise Agreement applies to Aquatic Employees and Fitness Instructors. Clause 2 – Application of Appendix 4 of the 2012 Enterprise Agreement and does not include casual employees;
j)in interpreting the provisions of the 2012 Enterprise Agreement a purposive approach is to be preferred: Acts Interpretation Act 1901 (Cth) s.15AA. The Shire submits that the Court should have regard to the negotiations leading to the 2012 Enterprise Agreement in determining the purpose or intent of the 2012 Enterprise Agreement;
k)the 2009 Collective Agreement did not provide for shift or weekend penalties for casual employees. During the negotiations leading to the 2012 Enterprise Agreement there was no discussions or intent to effect changes to casual employee entitlements;
l)Appendix 4 of the 2012 Enterprise Agreement is the only Appendix of the 2012 Enterprise Agreement other than Appendices 1 and 11 of the 2012 Enterprise Agreement that does not explicitly limit the application to part time and full time employees. It was not intended that Appendix 4 of the 2012 Enterprise Agreement apply to casual employees and explicit exclusion of casual employees from Appendix 4 of the 2012 Enterprise Agreement was an oversight;
m)in order to give effect to the intention of the 2012 Enterprise Agreement, the Court may read in the words omitted by inadvertence to give effect to the intent of the 2012 Enterprise Agreement: Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292. The Shire submits that the Court should read in the words that casual employees are excluded from Appendix 4 of the 2012 Enterprise Agreement;
n)alternatively, if casual employees are entitled to shift and weekend penalties (which is denied) then in accordance with clause 17.2 of the 2012 Enterprise Agreement such payment would preclude payment of the 25% casual loading;
o)further, if a literal approach is preferred, in accordance with clause 17.1 of the 2012 Enterprise Agreement the hourly rate of pay as per Appendix 1 of the 2012 Enterprise Agreement should be taken to include the 25% loading in lieu of public holidays and any paid leave;
p)in relation to Mr Duggan’s claim for penalty rates for working on public holidays, clause 17.1 of the 2012 Enterprise Agreement provides that the 25% casual loading is compensation in lieu of public holidays and any paid leave;
q)further clause 43.1 of the 2012 Enterprise Agreement provides that only full time and part time employees are entitled to public holidays;
r)as casual employees are not entitled to public holidays, it follows therefore that casual employees are not entitled to payment of penalty rates in accordance with the provisions of clause 43.4 of the 2012 Enterprise Agreement;
s)alternatively, if casual employees are entitled to penalty rates for working on public holidays (which is denied) they would only be remunerated at time and a half as there is no entitlement to ordinary pay for the day as would apply to full time and part time employees in accordance with clause 43.1 of the 2012 Enterprise Agreement;
t)casual employees were not entitled to payment of penalties for working on public holidays in accordance with the 2009 Collective Agreement. During the negotiations leading to the 2012 Enterprise Agreement there was no discussions or intent to effect changes to casual employee entitlements in respect of public holidays; and
u)the Shire seeks dismissal of Mr Duggan’s application.
Consideration
Principles in relation to the interpretation of Enterprise Agreements
For present purposes the principles with respect to the interpretation of industrial agreements are sufficiently set out in Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 at [16]-[17] per Flick J, as follows:
16 At a very general level it was thus common ground that the words used in an agreement are to be given their “natural and ordinary meaning”: cf. City of Wanneroo v Holmes (1989) 30 IR 362 at 378 per French J (as his Honour then was). See also: BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124 at [20]-[21], 153 IR 397 at 401-402 per Pullin J (Wheeler and Roberts-Smith JJ agreeing). Any other approach, it has been said, “would lead to industrial anarchy”: Norwest Beef Industries Limited v Australian Meat Industry Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 per Olney J. “If the words of an award have an unambiguous meaning, then that is the meaning that should be ascribed to them and there is no need for the court to consider the expressed or supposed intention of the drafters of the award”: Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers [2012] FCA 1010 at [50] per Cowdroy J. See: Boncardo, “Enterprise Agreements and Contracts: Convergent and Divergent Approaches To Interpretation” (2011) 18 JCULR 56 at 60-63.
17 The terms of industrial agreements, it was also accepted, are to be understood in the industrial context in which they appear: AMCOR Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10, 222 CLR 241. Gleeson CJ and McHugh J there observed:
“[2] The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation. There is nothing inherent in the idea of redundancy that justifies an expectation either that redundancy payments will, or that they will not, become payable in the event of a reconstruction, merger, or takeover … ”
Redundancy payments were there sought pursuant to cl 55 of the Australian Paper/Amcor Fibre Packaging Agreement 1997. Gummow, Hayne and Heydon JJ there also similarly observed:
“[30]Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”
Kirby J there said of the Agreement there under consideration that it:
“[94] … bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail — including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.”
His Honour continued:
“[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 to be given to cl 55.1.1 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 at 184], 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.
See also: Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]-[18] per Marshall, Tracey and Flick JJ; Public Service Association (SA) Inc v South Australia [2012] SASCFC 66 at [32] to [38], 113 SASR 49 at 57-58 per Stanley J (Doyle CJ and Vanstone J agreeing).
Interpretation of the 2012 Enterprise Agreement – casual employees – shift and weekend work
Clause 17.2 of the 2012 Enterprise Agreement is the only provision of the 2012 Enterprise Agreement which deals specifically with the payment of casual employees for shift and weekend work. Clause 17.2 of the 2012 Enterprise Agreement:
a)provides for casual employees to be paid any rates payable for shift and weekend work on the same basis as a fulltime or part-time employee; and
b)makes specific provision for the calculation of payment for shift and weekend work for casuals, and expressly:
i)applies to casuals the rates for shift and weekend work for full time and part time employees; and
ii)excludes the payment of the 25% casual loading to casual employees for shift and weekend work.
The plain and unambiguous meaning of clause 17.2 of the 2012 Enterprise Agreement provides for payment of casual employees who do shift and weekend work on the same basis as full time and part time (that is non-casual) employees. A full time employee working on a Saturday or Sunday would be working outside of their ordinary hours of duty of 8.00am to 5.15pm, with an unpaid 45 minute lunch break, to be worked Monday to Friday inclusive: clause 24.1 of the 2012 Enterprise Agreement. Likewise a part time employee: clause 16, particularly clause 16.4, of the 2012 Enterprise Agreement. On that basis a casual employee working on a weekend is entitled to be paid at the appropriate rate prescribed for a full time or part time employee in clause 26.4.1 and 26.4.2 of the 2012 Enterprise Agreement.
That the rates payable to casual employees for shift and weekend work are in substitution for the normal loading of 25% payable to casual employees under clause 17.1 of 2012 the 2012 Enterprise Agreement is confirmed by the use of the words “will also” in clause 17.2 of the 2012 Enterprise Agreement. This is further confirmed by the means prescribed for the calculation of the rates payable for shift and weekend work for casuals which are “exclusive of casual loading”, which must be the casual loading in clause 17.1 of the 2012 Enterprise Agreement. The Court therefore agrees with that part of the Shire’s submission that a casual employee, being entitled to the shift and weekend penalty in accordance with clauses 17.2 and 26.4.1 and 26.4.2 of the 2012 Enterprise Agreement, is not entitled to the 25% casual loading on the appropriate hourly rate.
Clause 17.2 of the 2012 Enterprise Agreement is an example of a specific provision which, on ordinary principles of interpretation, prevails over more general provisions: Goodwin v Phillips (1908) 7 CLR 1 at 14 per O’Connor J; The Australian Workers Union & Ors v Blue Scope Steel (AIS) Port Kembla [2015] FWCFB 1798 at [13] per Hamberger SDP, Booth DP and Cargill C.
That clause 17.2 of the 2012 Enterprise Agreement applies to casuals is also evident by the terms of those clauses which do not apply to casuals, that non-application being expressed in various ways, namely:
a)by expressly excluding casual employees, as in clause 25 of the 2012 Enterprise Agreement: “25.1 This clause does not apply to casual employees.”, clause 40.1 of the 2012 Enterprise Agreement which provides for the use of facilities by employees “excluding casual employees”, and clause 44 of the 2012 Enterprise Agreement dealing with parental leave for employees “other than casual employees”;
b)by a qualified exclusion, as in clause 54.6 of the 2012 Enterprise Agreement, where compassionate leave is provided to casual employees but on an unpaid basis; and
c)by necessary implication from the terms of a clause as in clauses 24, 26.3, 27, 29, 33 and 34 of the 2012 Enterprise Agreement.
The Shire placed reliance upon clause 17.3 of the 2012 Enterprise Agreement and the reference therein to Appendix 11 of the 2012 Enterprise Agreement. Clause 17.3 of the 2012 Enterprise Agreement is however general in its terms, referring the reader to Appendix 11 of the 2012 Enterprise Agreement “for further information” about the terms and conditions of casual employees. Because clause 17.2 of the 2012 Enterprise Agreement is specific to the method of calculation of shift and weekend penalties for casual employees, it prevails over the general terms of clause 17.3 and Appendix 11 of the 2012 Enterprise Agreement in that respect.
The fact that there is no provision for payment of shift and weekend penalties in Appendix 11 of the 2012 Enterprise Agreement does not mean that casual employees do not receive shift and weekend penalties, but again that other specific provisions apply, namely clause 17.2 of the 2012 Enterprise Agreement.
The fact that casuals are not mentioned in clause 2 – Application of Appendix 4 of the 2012 Enterprise Agreement, being the Appendix that applies to aquatic employees such as Mr Duggan, does not mean that Appendix 4 does not apply to casual employees employed as aquatic employees. Casuals are clearly included because clause 5.3 of Appendix 4 of the 2012 Enterprise Agreement expressly provides that employees at the Roebourne Aquatic Centre “will be employed on a specific term contract or on a casual basis.” The inclusion of casuals in such specific terms – as one of only two types of employment at the Roebourne Aquatic Centre – runs wholly counter to the Shire’s argument that express words of exclusion for casual employees ought to be implied into Appendix 4 of the 2012 Enterprise Agreement. So too does the fact that clause 5.1 of Appendix 4 of the 2012 Enterprise Agreement entitles “Employees” (which includes casual employees) to “all of the conditions outlined in this Enterprise Agreement”.
The reference to a 25% loading for casual employees in clause 4.1 of Appendix 11 of the 2012 Enterprise Agreement refers to a loading on the “ordinary hourly rate”:
a)and not the “ordinary casual rate” as submitted by the Shire; and
b)which is not the hourly rate for shift and weekend work for casuals by reason of clause 17.2 of the 2012 Enterprise Agreement.
In Re Australian Municipal, Administrative, Clerical and Services Union [2014] FWCFB 379; (2014) 241 IR 126 (“Re AMACSU”) a Full Bench of the Fair Work Commission (“FWC”), having regard to an earlier decision of a Full Bench of the FWC in relation to an aged care award, in which the FWC adopted a union’s alternative position and made provision for casual employees to receive the relevant weekend penalty at rates in substitution for the casual loading, determined to do likewise in relation to an award in the social, community, home care and disability services industry on the basis that it represented the predominant position in awards and instruments existing prior to the making of that particular award: see Re AMACSU at [27], [28] and [31] per Hatcher VP, Smith DP and Lewin C.
There is nothing inherent in the nature of casual employment which should exclude casual workers from payment of penalties for working on weekends, and as Re AMACSU demonstrates it is a normal and sensible industrial outcome, and one which in this case accords with the plain and normal meaning of the words in the 2012 Enterprise Agreement. Moreover, as is evident from the terms of the Local Government Industry Award 2010 reproduced in the affidavit of Patricia Anne Branson affirmed 18 March 2014, the provisions in the 2012 Enterprise Agreement giving rise to this entitlement are consistent with the provisions in the Local Government Industry Award 2010 which is the relevant Modern Award.
For all of the above reasons, a casual employee employed to work by the Shire on a Saturday or a Sunday is entitled to be paid at the appropriate rate prescribed in clause 26.4.1 and 26.4.2 of the 2012 Enterprise Agreement. Mr Duggan was entitled to be paid at those rates for his work on 5, 6, 12 and 13 January 2013.
Interpretation of the 2012 Enterprise Agreement – casual employees – public holidays
Clause 43.1 of the 2012 Enterprise Agreement prescribed a specific entitlement to public holidays for full time and part time employees.
Clause 43.4 of the 2012 Enterprise Agreement prescribes the rate of pay for an “Employee” who works on a public holiday as being “at time and a half in addition to the ordinary pay for the day”. The use of “Employee” in clause 43.4 of the 2012 Enterprise Agreement is not qualified in the same way as the reference in clause 43.1 to “Full-time and part-time Employees”. As the definition of “Employee” includes “all persons employed by the Shire … who perform work covered by this Agreement”, the reference in clause 43.4 of the 2012 Enterprise Agreement includes (contrary to the Shire’s submission) a casual employee because they are a person employed to perform work covered by the 2012 Enterprise Agreement, and in particular, Mr Duggan was so employed in his capacity as a lifeguard.
It follows that on the plain meaning of the 2012 Enterprise Agreement a casual employee employed to work on a public holiday was entitled to be remunerated at the rate of time and a half in addition to the ordinary pay for the day, that is at double time and a half.
The Shire’s argument that casual employees are not entitled to payment of penalty rates because only full time or part time employees are entitled to public holidays is plainly wrong for reasons set out above. The Shire’s alternative argument that casual employees are only to be remunerated a time and half for public holidays because there is no entitlement to ordinary pay for the day as would apply to full time and part time employees, is also plainly wrong. Whilst casual employees might not be entitled to a public holiday per se, they are entitled to be paid the penalty rate for the disadvantage of working on a public holiday if it is necessary for them to do so.
In Re Clubs Association of New South Wales v Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch (Unreported, New South Wales Industrial Relations Commission, Matter No. IRC 6641 of 1999, 14 December 2000) Glynn J observed that:
The proposition that other rates, including the casual loading, should be taken into account even in addition to weekend penalties is not new.
Two decisions were cited thereafter. Firstly, in Re Shop Employees Award (No.2) (1977) AR (NSW) 555 where at 582 and 584 respectively Macken J said:
I turn now to the question of the penalty rates payable to casual employees. The existing penalty rates provided for in the award have been designed to reward permanent employees with penalty rates for work performed in certain ordinary hours, weekend and holiday work. They have not been designed to regulate the situation which arises when casuals work any hours which are outside of the accepted ordinary hours of work.
…
I think it is inappropriate that Sunday work be paid for at the rate of time and a half for a casual on the reasoning that a casual is working in his “ordinary” hours. I consider that the appropriate penalty to be paid to casual employees called upon to work on a Sunday should be double time in addition to the casual loading.
Secondly, in Decision – Public Holidays a Full Bench of the Australian Industrial Relations Commission decided, with reference to casual workers, as follows:
Casual employees receive higher ordinary rates in recognition of their non-enjoyment of various benefits provided for other workers. We are in no doubt that this compensation recognises the lack of holidays, including public holidays. No party asked for us to alter this arrangement. There is an issue, however, about the rate of payment of a casual worker who does work on a public holiday. The ACTU contends that for such a worker the relevant public holiday rate should apply. Although some other parties resisted this contention, we think that the principle is fair. It reflects the inconvenience to the employee of working on a day which, for most of the community, is one of leisure and recreation. We do not think that the relevant “penalty” should itself be subject to the casual loading. The employees should, rather, receive the ordinary casual rate plus the applicable penalty. An example may assist. Assume that the casual loading is 25%; and that the prescribed holiday rate for non-casual workers is double time. The casual would then be paid 2.25 times the ordinary time of rate for non-casual workers.
(Decision – Public Holidays, Print L9178, 20 March 1995 at pages 24-25 per Hancock SDP, MacBean SDP and O’Shea C).
In the Court’s view Decision – Public Holidays sets out the correct means of determining the rate to be paid to a casual employee for a public holiday worked under a provision such as clause 43.4 of the 2012 Enterprise Agreement, and on that basis an employee under the 2012 Enterprise Agreement, engaged as a casual, and working on a public holiday would be entitled to 2.75 times the ordinary time rate of pay for non-casual workers. On that basis, Mr Duggan would have been entitled to $640.34 for working 8.5 hours on 1 January 2013, or $349.28 more than he was paid by the Shire.
The Court notes that this amount - $349.28 - is more than was claimed by Mr Duggan for working on 1 January 2013, and that neither Mr Duggan nor the Shire has had an opportunity to address the conclusion which the Court has reached. In fairness to both parties, and in the circumstances particularly to the Shire, it is appropriate that a further short opportunity be given to both parties to address the Court’s conclusion.
No change from the 2009 Collective Agreement
The Shire also argues that casual employees were not entitled to payment of penalties for working on weekends or public holidays in accordance with the 2009 Collective Agreement, and says that there was no intention to effect changes to casual employees’ entitlements in respect of weekends or public holidays in the 2012 Enterprise Agreement. In this respect, the Court makes a number of observations:
a)the 2009 Collective Agreement (as annexed to the Shire’s Outline of Submissions) does not define a “casual employee” at all;
b)there is no equivalent in the 2009 Collective Agreement of Appendix 11 of the 2012 Enterprise Agreement;
c)the only references to a casual employee in the 2009 Collective Agreement appear to be:
i)in the notice period which prescribes for a casual employee to receive one hour’s notice: see clause 21.1 of the 2009 Collective Agreement; and
ii)in clause 19.1 of the 2009 Collective Agreement which prescribes a 20% casual loading:
19.1 Casual wage rates will be those applicable to the position and as described in this Agreement schedule plus 20% loading in lieu of Annual Leave and Sick Leave entitlements and paid Public Holidays.
d)the “Agreement schedule” referred to in clause 19.1 of the 2009 Collective Agreement is the relevant schedule of salary rates for particular levels of employees which appears at Attachments 1 and 2 to the 2009 Collective Agreement;
e)in clause 20 of the 2009 Collective Agreement overtime was prescribed to mean “all the work performed in excess of, or outside, the ordinary hours of duty”: 2009 Collective Agreement at clause 18.2, which for aquatic employees were “not [to] exceed 80 ordinary hours per fortnight to be worked on any 10 days within the fortnightly pay period inclusive”: 2009 Collective Agreement at clause 18.8. Thus, in the absence of a provision such as clause 17.2 of the 2012 Enterprise Agreement, there was no provision in the 2009 Collective Agreement requiring work on Saturdays or Sundays by casual aquatic employees, such as lifeguards, to be paid at penalty rates;
f)the position is significantly different under the 2012 Enterprise Agreement, because of the inclusion of clause 17 of the 2012 Enterprise Agreement, and in particular clause 17.2 of the 2012 Enterprise Agreement. The insertion of clause 17 of the 2012 Enterprise Agreement does not evince an intention not to pay casual employees at the rates prescribed therein, but rather quite the opposite. A specific provision having been inserted in the 2012 Enterprise Agreement with respect to the payment of casuals for shifts and weekends, that provision must, on a proper interpretation of the 2012 Enterprise Agreement, be given some work to do. The work that it has to do is to properly prescribe penalty rates for casual employees for shift and weekend work; and
g)clause 32 of the 2009 Collective Agreement dealt with public holidays and prescribed eleven public holidays for “eligible employees without deduction of pay”: clause 32.1 of the 2009 Collective Agreement. It went on to prescribe however that an “employee … required to be on duty” on a public holiday was entitled to payment at the rate of double time and a half: clause 32.3 of the 2009 Collective Agreement. The payment thereby prescribed was a payment to an “employee”, and was not a payment from which casuals (who are “employees”) were excluded by the terms of the 2009 Collective Agreement.
In short, however, whatever was said to be the alleged intention behind the provisions of the 2012 Enterprise Agreement vis-a-vis the 2009 Collective Agreement, those alleged intentions, which are not the subject of any agreed facts or agreement between the parties, cannot prevail over the plain meaning of the 2012 Enterprise Agreement which provides for payment of penalties on weekends and public holidays for casual employees, and its inherent industrial sensibility in accordance with long established industrial authority, for the reasons set out above.
Further observations
The Court notes that the conclusion reached by it highlights one of the difficulties with small claims proceedings in the Fair Work Division of the Court which often arises from the non-appearance of lawyers in such claims. Although such claims are often, by their nature, about relatively small sums of money, the implications of the outcomes, as here, might be significant for casual employees, not only at the Shire of Roebourne, but also for other local government employees. The non-appearance of lawyers results, as here, in the Court having to conduct its own research in relation to the issues, and more particularly relevant cases, because that research has not necessarily been done by the parties. That gives rise to, as here, delay in delivery of the judgment, and, as here, can give rise to further delay where the Court arrives at a conclusion not contemplated by the parties. It also highlights the fallacy that small claims proceedings are simple and easily disposed of: rather, as often as not, although they involve small amounts of money they give rise to complex issues of interpretation of industrial awards which are, as here, often not particularly well drafted and difficult to interpret, and which may have significant industry effects. As to drafting, if, as was the Shire’s submission, it was never the intention under the 2012 Enterprise Agreement to pay casual employees penalty rates for work on Saturdays, Sundays and public holidays, the Court wonders why it was, and how difficult it would have been, to insert a provision, either in clause 17 or in Appendix 11 of the 2012 Enterprise Agreement, to the effect that:
Casual employees will only be paid a 25% casual loading, and not be paid penalties, overtime or public holiday rates, for any work performed on Saturdays, Sundays or public holidays.
And, when the matter is thus put, the answer is obvious: such a provision was not included because clauses 17.2 and 43.4 of the 2012 Enterprise Agreement expressly provided to the contrary.
Conclusions and orders
With respect to Mr Duggan’s claim for payment for Saturdays and Sundays worked on 5, 6, 12 and 13 January 2013 the Court has concluded that casual employees under the 2012 Enterprise Agreement are entitled to be paid for work on weekends at the rates prescribed in clause 26.4 of the 2012 Enterprise Agreement, by reason of the provisions of clause 17.2 of the 2012 Enterprise Agreement. Mr Duggan is therefore entitled to be paid an additional $328.74 ($1424.50 - $1095.76) for working as a casual lifeguard on 5, 6, 12 and 13 January 2013. There will be a declaration and order to reflect the above conclusions.
With respect to Mr Duggan’s claim for payment for work on 1 January 2013 the Court has concluded that casual employees under the 2012 Enterprise Agreement are entitled to be paid at time and a half in addition to the ordinary pay for the day, by reason of the provisions of clause 43.4 of the 2012 Enterprise Agreement. This equates to double time and three quarters, and Mr Duggan is therefore entitled to be paid $640.34 for working 8.5 hours as a casual lifeguard on 1 January 2013, that being $349.28 more than he was paid for that day by the Shire.
As the Court’s conclusions with respect to payment for the public holiday results in an outcome not contemplated by either party, and an award of money in excess of that claimed by Mr Duggan, the Court, will as a matter of procedural fairness, afford both parties the opportunity to make any further submissions they wish on the public holiday issue. There will be a right to make a submission, a submission in reply, and any further judgment and declarations and orders will be made on the basis of those written submissions.
With respect to costs, having regard to the following matters:
a)that this was a small claims proceeding in the Fair Work jurisdiction of this Court;
b)that both parties were not legally represented, Mr Duggan being represented by his union, the Australian Services Union, and the Shire being represented by its Chief Executive Officer;
c)the provisions of ss.548(3) and 570(2) of the FW Act; and
d)that there was a genuine dispute concerning the interpretation of the 2012 Enterprise Agreement,
the Court is of the view that there ought to be no costs order in the matter.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 June 2015
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