Gerald Dowsett v SouthLink Pty Ltd

[2013] FWC 4978

[2013] FWC 4978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Gerald Dowsett
v
SouthLink Pty Ltd
(C2013/4036)

COMMISSIONER LEWIN MELBOURNE, 12 AUGUST 2013

Application to deal with a dispute regarding public holiday entitlements - NES - SouthLink Bus Drivers 2010 Enterprise Agreement - meaning of “an employees ordinary working day” - principles of construction of terms of an Enterprise Agreement - ordinary meaning of words - history of Agreement - changed terms from previous Agreement- no NES entitlement to pay for public holidays when employee not rostered to work - no entitlement to payment under Enterprise Agreement when employee rostered off on day upon which public holiday falls.

[1] This Decision concerns an Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure under s.739 of the Fair Work Act 2009 (the Act). The Applicant, Mr Gerald Dowsett, is a bus driver employed by SouthLink Pty Ltd (SouthLink) at their Elizabeth depot in Adelaide, South Australia. Mr Dowsett lodged the Application on 23 April 2013. Mr Dowsett raised the dispute after he was not required to work on the Australia Day public holiday on Monday, 28 January 2013. In the Application, Mr Dowsett submits that he is entitled to be paid for the Australia Day public holiday under Part 2.2, Division 10, Section 116 of the National Employment Standards (the NES) as outlined below. Mr Dowsett did not perform work on that day and received no payment in respect of the public holiday.

[2] The matter was heard in Adelaide on 31 May 2013. At the hearing SouthLink was represented by Ms Hinton from the South Australian Chamber of Commerce and Industry (Business SA). Mr Dowsett was accompanied by Mr Gonsalves. Mr Gonsalves is an official of the Transport Workers’ Union of Australia (TWU). The TWU is an organisation of employees covered by the Agreement. 1 Mr Gonsalves did not seek to appear in the matter, nor did the TWU.

[3] Whilst Mr Dowsett’s Application asserts that the dispute arises under statutory provisions governing the resolution of disputes over the application of the NES, 2 it became clear in the hearing that Mr Dowsett was also relying upon the jurisdiction and powers of the Commission to deal with a dispute concerning the application of the NES conferred by Clause 8 of the SouthLink Bus Drivers 2010 Enterprise Agreement (the Agreement), which applies to Mr Dowsett’s employment, and the relevant terms of the Agreement governing public holiday entitlements.

[4] Both parties agreed that the characterisation of the dispute is such that the dispute encompasses alleged entitlements arising under both the NES and the Agreement. It was also agreed that the matter comes before the Commission for resolution by arbitration pursuant to the provisions of the Agreement. 3 In these circumstances, to the extent necessary, I waive the Rules of the Commission so far as to deal with the Application as if it were made in relation to a dispute over the proper application of terms of the Agreement, in addition to the proper application of the relevant provisions of the NES, which will both be referred to below.

Dispute Settlement Provisions

[5] The dispute settlement provisions of the Agreement are set out below.

8. DISPUTE SETTLEMENT PROCEDURES

8.1 If a dispute relates to:

(a) a matter arising under the agreement; or

(b) the National Employment Standards;

this term sets out procedures to settle the dispute.

8.2 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

8.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

8.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia.

8.5 Fair Work Australia may deal with the dispute in 2 stages:

(a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

Note If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the

Act.

A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

[6] The conjuncture between the Application, the NES, and the Commission’s jurisdiction and power to deal with disputes over the application of the terms of the Agreement raises some intersecting jurisdictional considerations.

[7] I intend to proceed without elaborate explanation of those considerations on the basis that, in essence, Mr Dowsett seeks and the Commission has jurisdiction and power to resolve the dispute(s) pursuant to the terms of Clause 8 of the Agreement having regard to the provisions of s.738 and s.739 of the Fair Work Act 2009 (the Act). In doing so I will determine what, if any, entitlements arise which are relevant to Mr Dowsett’s circumstances on 28 January 2013 under the NES and/or the Agreement.

[8] Before doing so, it is appropriate to note that both the relevant terms of the NES and their relationship, if any, with the terms of the Agreement will be considerations for that purpose. In particular, having regard to what has been put on behalf of SouthLink.

Provisions of the NES and the Agreement which must be taken into account

[9] S.116 of Part 2.2, Division 10- Public Holiday of the NES is as follows:

116 Payment for absence on public holiday

If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay forthe employee’s ordinary hours of work on the day or part-day.

Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.

[10] The facts concerning the 28 January 2013 public holiday are that Mr Dowsett was not rostered for work on that day. This was a consequence of the rotating roster of Mr Dowsett’s work, which applies to himself and other drivers employed by SouthLink.

[11] As noted, Mr Dowsett, whilst relying on the NES, also refers to the provisions of the Agreement which govern public holidays. Should the effect of the relevant terms of the Agreement add to or qualify the public holiday entitlement prescribed by the NES, beneficially, Mr Dowsett would be entitled to such additional or more beneficial terms. Should the terms of the Agreement provide for less than the relevant entitlement of the NES, the entitlements provided by the NES would override the terms of the Agreement as far as necessary to achieve their statutory purpose.

[12] The relevant terms of the Agreement appear at Clause 26 and are as follows:

26. PUBLIC HOLIDAYS

26.1 Public holidays for the purpose of this Agreement shall be those proclaimed for the state of South Australia.

26.2 Whenever a Public Holiday, as prescribed in clause 26.1 hereof, falls on an employee’s ordinary working day, a full-time employee shall be paid 7.6 hours of ordinary pay and a part-time employee shall receive a pro-rata payment for the Public Holiday equal to one-fifth of their average weekly hours worked.

26.3 When an employee works on a Public Holiday, as prescribed in clause 26.1 hereof, the employee shall be paid time and one half for the time worked plus receive payment of 7.6 hours for the Public Holiday for a full-time employee or one-fifth of their average weekly hours worked for part-time employees. The time worked will be used to count towards the employee’s minimum guarantee for that week

26.4 Where a Public Holiday falls on a Monday to Friday during the period of an employee’s annual leave, the employee shall be entitled to an additional days paid leave.

26.5 For the purpose of this clause “an additional day’s pay” means one-fifth the minimum weekly guarantee applicable to the employee’s classification.

26.6 Where an employee is absent from their employment without reasonable excuse or without the consent of management, on the working day before or the working day after a Public Holiday the employee shall not be entitled to payment for such holiday.

The NES entitlement

[13] In my view, the Note to s.116 of the Act illuminates the intention of s.116 of the Act, such that it will only be where Mr Dowsett is rostered to perform ordinary hours of work on a public holiday that the NES will confer an entitlement to payment for a public holiday.

[14] While the Note to s.116 of the Act refers to part-time and casual employees and no reference to full-time employees is made, I am unable to conclude that the omission indicates that the Note has no explanatory purpose in relation to full-time employees. In my view, the first sentence of the Note is a generic explanation of the intention of s.116 of the Act and the examples which follow are not meant to be exhaustive but rather illustrative.

[15] This observation is relevant to submissions made of behalf of SouthLink concerning the NES and the terms of the Agreement. It is convenient to reproduce those submissions from the transcript of the hearing of the matter in Adelaide between paragraphs PN148 and PN153. 4

MS HINTON: Thank you, Commissioner. If I may start by referring to clause 26 in the agreement, and this is purely for clarity for all parties. The agreement does specify that at clause 26.2, “Whenever a public holiday as prescribed in clause 26.1 hereof falls on an employee’s ordinary working day a fulltime employee shall be paid 7.6 hours of ordinary pay.” Clause 26.3 of the agreement continues to say, “When an employee works on a public holiday the employee shall be paid time and one half for the time worked plus receive payment of 7.6 hours for the public holiday for a fulltime employee.” Mr Dowsett is quite correct saying that the agreement does not provide for a public holiday falling on, what we call, a non-working day or a non-rostered day.

Where the agreement is silent we revert back to the NES, and the NES at section 116 – and again going to the note that the Commissioner referred to, “If the employee does not have ordinary hours of work on the public holiday the employee is not entitled to payment under this section.” So again that’s just to provide some context.

THE COMMISSIONER: You don’t say though that the National Employment Standards can condition any superior benefit in the agreement or that the agreement should be read down to the level of the NES?

MS HINTON: No, not read down, sir, but where the agreement is silent on a particular matter – such as payment for a public holiday that is not a non-working (indistinct) - - -

THE COMMISSIONER: Right. Are you suggesting that the NES is incorporated?

MS HINTON: Yes, sir.

[16] It follows that the submission of SouthLink is predicated upon the proposition that the Agreement does not in any way deal with public holiday entitlements where an employee is rostered off and is therefore “silent”. The Commission will therefore have to consider whether or not Clause 26 of the Agreement does deal with such circumstances in order for this submission to succeed. In other words the Commission will need to be satisfied that Clause 26.2 does not direct itself to the circumstances and entitlements of an employee who is not rostered to work on a day on which a public holiday falls.

[17] In the event that the Commission finds that the Agreement is silent on such circumstances and entitlements I agree with Ms Hinton that the NES does not confer, by s.116 of the Act, an entitlement to payment for such a day. Mr Dowsett was not rostered on for the Australia Day public holiday of 2013 and no entitlement therefore arises from the terms of the NES.

[18] Given my conclusion that the NES does not prescribe payment for the 28 January 2013 in respect of Mr Dowsett’s circumstances on that day, it is necessary then to consider whether the terms of Clause 26.2 of the Agreement prescribe such an entitlement.

[19] Before turning attention to the proper application of Clause 26.2 of the Agreement, it is necessary to refer to any perception of reflexive interaction or unified construction of the terms of the NES and the terms of the Agreement in relation to the circumstances of an employee who is rostered on to work a public holiday. Those terms of the Agreement are lawful by different means and must be construed on their own without conflation or confusion with the NES. Once a conclusion that the NES confers no benefit as claimed by Mr Dowsett, the terms of s.116 of the Act have no work to do in relation to the proper construction of the terms of the Agreement. They do not aid construction of the terms of the Agreement or cast a light upon the intention of the Agreement makers in the relevant respect. The NES are general legislative enactments of the Commonwealth parliament, which are limited by and to the intentions of the legislature. The terms of the Agreement are a result of a meeting of minds, in accordance with statutory procedures for the making of an Enterprise Agreement, between SouthLink and its employees. It is inappropriate where the NES has no force or effect to imply from the terms of the NES a meaning to be attributed to the terms of the Agreement.

[20] There is therefore no implication from the terms of the NES for the proper approach to be taken to the interpretation of the terms of the Agreement in relation to the subject matter of the dispute. Rather, the terms of the Agreement should be construed exclusively, according to well established principles.

Approach to interpretation of the Agreement

[21] Relevant authority governing the approach to the interpretation of Enterprise Agreements includes the decision of Madgwick J in Kucks v CSR Ltd (Kucks) 5 which, while determined for the interpretation of industrial awards, are considered applicable for present purposes and have been followed accordingly with widespread approval by the Tribunal and its predecessors.6

‘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.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’

(emphasis added)

[22] The Commission has likewise endorsed the well established principles in Short v FW Hercus Pty Ltd 7:

“No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: “The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.”

The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

...Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. “Sometimes”, McHugh J. said in Saraswati v. R (1991) 172 CLR 1 at 21, the purpose of legislation “can be discerned only by reference to the history of the legislation and the state of the law when it was enacted.”

Application of principles of interpretation

[23] Following, the principles referred to above it is now appropriate to look to the words of Clause 26 of the Agreement and to consider the meaning to be attributed to those words in their immediate context and in the wider context of the Agreement as a whole.

[24] It seems to me that the axis upon which the issue under consideration turns is the meaning to be attributed to the words in Clause 26.2 “an employee’s ordinary working day”. Prior to embarking on such consideration, I will sum up what I consider Mr Dowsett’s submission to be. The submission of SouthLink is captured in the reference to the transcript of proceedings above.

[25] Mr Dowsett contends that the meaning of the words under consideration is not limited to a day upon which an employee would be rostered to work ordinary hours. Mr Dowsett submits that the roster applicable to his work requires him to work on any day between Monday and Saturday. Mr Dowsett contends that it is very unusual for the roster to not require him to work on a Monday. In essence this submission is to the effect that, on the relevant facts, Monday is an ordinary working day for Mr Dowsett.

[26] Before proceeding further it is appropriate to give consideration to other terms of the Agreement which deal with the arrangement of the work of the employees covered by the Agreement.

[27] Clauses 16 and 17 of the Agreement give reference to an employee’s ‘Hours of Duty” and “Rosters”. In addition, Clause 18.1.5 of the Agreement deals with “Public Holiday”.

[28] It is appropriate to first set out Clauses 16 and 17 of the Agreement.

16. HOURS OF DUTY

The ordinary hours of work for a full-time employee shall not exceed 38 hours per week and can be rostered Monday to Saturday consisting of no more than 5 days of work per week.

17. ROSTERS

17.1 General principles

(a) Ordinarily all duty shall be rostered.

(b) Period rosters shall be posted fourteen days before coming into operation, whilst allowing for unforeseen circumstances, and shall include all known duty.

(c) Changes in the period roster including alterations to days off, shall be posted at the usual place at least 24 hours in advance of the duty to be worked and the employee notified accordingly.

(d) Any change to rostered duty with less than 24 hours notice must be with the consent of the employee concerned.

(e) Except for special events and charter, the period roster shall show the start and finish times and the commencing times for meal breaks on all shifts.

(f) Employees shall be rostered to commence and finish each day’s duty at the same location, or by agreement with the employee.

17.2 Principles of rostering duty

17.2.1 Duty shall be arranged

(a) So that the ordinary hours of duty (Monday to Saturday) shall be not less than seven hours on any shift for a full-time employee and not less than three hours for a part­ time employee.

(b) So that the hours of duty on a Sunday or public holiday shall not be less than four hours.

(c) So that broken shifts have no more than a l3 hour spread of duty, and not less than one and a half hours break and no more than five hours break between the two portions of duty.

(d) So that a part-time employee’s duty may include portions of duty that do fall within the parameters of a broken shift or straight shift.

(e) So as to avoid duty on any shift exceeding ten hours driving.

(f) So as to provide portions of work of not less than two hours except for the second portion of a part-time shift.

(g) So as to avoid split shifts on weekends and public holidays

(h) So as to provide breaks greater than 70 minutes at a suitable location for rest and refreshment.

17.2.2 At any time, a part-time employee may be requested to accept any alteration to their duty. Should they accept to work the altered duty then that duty shall count towards their ordinary hours of duty for that week.

17.2.3 Where a part-time employee agrees to perform additional duty that does not fall within the parameters of a straight or broken shift as defmed in this agreement, then such duty shall stand alone and count towards the ordinary hours of duty for that week.

17.2.4 Notwithstanding the principles contained in clause 17, employees may be required to work beyond rostered hours due to unforeseen circumstances. However, under no circumstances will an employee be permitted to work in excess of the prescribed National Heavy Vehicle Fatigue driving hours.

17.2.5 Any employee who attends for duty and is subsequently told that they are not required, shall receive payment for the shift for which they were rostered provided that this paragraph shall not apply in respect of stand-downs (clause 14).

17.2.6 In circumstances where an employee does not report for their duty, another appropriate employee due to sign on may be allocated this duty.

17.2.7 An employee’s duty is to be rostered so as to allow a ten-hour break between shifts.

17.2.8 Rosters shall include the following time provisions for the tasks listed below:

(a) When signing on and taking bus from depot ten (10) minutes.

(b) When signing on and picking up bus in traffic five (5) minutes plus travelling time to picking up point.

(c) When signing off at the completion of shift after bringing bus to depot and paying in ten (10) minutes.

(d) When signing off when relieved in traffic and paying in ten (10) minutes plus travelling time from point of relief.

(e) When signing off when relieved in traffic and not paying in three (3) minutes plus travelling time from point of relief.

(f) When signing off after bringing a bus to depot and not paying three (3) minutes plus travelling time from point of relief.

(g) When bringing bus to depot for meal/crib break- three (3) minutes.

(h) When relieved in traffic for meal/crib break - three (3) minutes plus travelling time from point of relief.

(i) When signing off after bringing bus to depot at the completion of the first portion of a broken shift-three (3) minutes.

(j) When signing off when relieved in traffic at the completion of the first portion of a broken shift- three (3) minutes plus travelling time from point of relief.

(k) When signing on the second portion of a broken shift and taking bus from depot­ three (3) minutes.

(l) When signing on the second portion of a broken shift and relieving in traffic - three (3) minutes plus travelling time to picking up point.

(m)When taking bus from depot after meal or crib break- three (3) minutes.

(n) When picking up in traffic after meal or crib break - three (3) minutes plus travelling time to picking up point.

17.2.9 Where an employee is required to sweep a bus and empty rubbish, an additional five minutes shall be added to the sign on/sign off time as applicable.

17.2.10 Where an employee is required to sweep a bus, empty rubbish, fuel a bus and machine wash the bus, an additional ten minutes shall be added to the sign on/sign off time as applicable.

17.2.11 An employee shall be responsible for undertaking their own sign on and sign off procedure.

[29] It will be noted that the above Clauses deal with ordinary hours of work and the rostering of duty whereas the expression in Clause 26.1 refers to “an employee’s ordinary working day”.

[30] The plain meaning of the word ordinary in the Macquarie Dictionary is as follows:

1. such as a commonly met with; of the usual kind.

2. not above, but rather below, the average level of quality; somewhat inferior.

3. customary; normal: for all ordinary purposes.

4. immediate as contrasted with that which is delegated.

5. belonging to the regular staff or the fully recognised class.

6. the ordinary condition, degree, run, or the like: out of the ordinary.

7. something regular, customary or usual.

[31] The question for determination could therefore be posed as follows; was Monday, 28 January 2013, a day which Mr Dowsett would work in the usual course of his employment? Or perhaps, is working on a Monday “something regular, customary or usual”? The answer will depend upon the roster of work upon which Mr Dowsett was engaged. The roster does not always require Mr Dowsett to work on a Monday. The roster operates such that Mr Dowsett will work on many, but not all, Mondays.

[32] The roster is a rolling five over six day roster, meaning that Mr Dowsett and his colleagues will work five days of each week between Monday and Saturday, inclusive, over the roster cycle, which is ten weeks. Thus, in some weeks Mr Dowsett would work, for example, Monday to Friday, on others Tuesday to Saturday. Other permutations are possible, the principle being that the drivers will be required to work on five days over the Monday to Saturday spread of the roster as determined by the changing configuration of the roster from week to week. These facts give rise to some uncertainty about the application of a plain meaning approach the effect of the words “an employee’s ordinary working day” in the context of Clause 26.2 of the Agreement. Although, it should be noted that the mathematics of the roster referred to clearly to suggest that more often than not Monday will be a working day for employees on the roster over the ten days and over a longer period.

[33] The facts are well illustrated by Ms Hinton’s submission concerning the operation of the roster in relation to Mr Dowsett’s circumstances since 2 January 2012 which are set out below. 8

If we look at the total number of public holidays that have occurred for Mr Dowsett in particular, going back to 2 January 2012, he had 11 public holidays where he received a paid day off. There were four public holidays where he worked and received the appropriate penalty rates. There was one public holiday where he was not rostered to work, which is the day in question. Again, looking at the pattern of public holidays, going back to January 2012, of the 16 public holidays eight of them occurred on a Monday, two on a Tuesday, two on a Wednesday, two on a Thursday and two on a Friday.

So just to again provide some context, Mr Dowsett was paid for 15 out of those 16 public holidays because they were the days he was rostered to work. As I’ve stated, Monday 28 January he was not rostered to work and therefore not entitled to payment for that particular day. Had he been paid for that particular day it would have equated to a sixth day of payment for him, which would be outside of the operation of the agreement and the NES. Again, looking at the rosters and considering the rosters that we have here today, on any given public holiday there are usually two staff who are not rostered to work. Of the remaining staff a number of them are paid for the day to remain at home, and the remaining are paid to work those public holidays and they receive the applicable public holiday rates.

In relation to Mr Dowsett’s claims that he’s been rostered to work every Monday for more than a year, as we’ve shown that’s not the case. There were a number of seven different occasions where he was not rostered to work on a Monday. Of those seven four were taken as days off, and they are examples that I’ve provided to the commission this morning in exhibit R1; two fell during annual leave weeks; one was swapped with another employee, which is the week commencing – sorry, the Monday 1 October 2012 was swapped for Saturday 6 October and denoted as requested, “DNR” which stands for do not roster.

[34] Of considerable relevance to a proper construction of Clause 26.2 of the Agreement, in my consideration, is the contextual juxtaposition of Clause 26.2 and Clause 26.3 and Clause 18.1.5 of the Agreement.

[35] The first observation which may be made is that Clause 26.2 and Clause 26.3 of the Agreement both prescribe payment in respect of public holidays. Importantly, the payment prescribed respectively is significantly different.

[36] The further observation immediately relevant is that Clause 18.1.5 and Clause 26.3 of the Agreement are both applicable to circumstances where there is work performed on a public holiday. The payment prescribed is effectively double time and a half in both cases.

[37] Clause 26.2 of the Agreement does not use any words of qualification such that an employee is required to work or works on a public holiday to be entitled to the “7.6 hours of ordinary pay”.

[38] SouthLink submit that Clause 26.2 of the Agreement, relevantly, only applies to an employee who was rostered on to work on Monday 28 January 2013. This is not expressly self evident having regard to the provisions of Clause 18.1.5 and Clause 26.3 of the Agreement.

[39] It is difficult to conclude that the makers of the Agreement intended that Clause 26.2 of the Agreement be concerned with what employees should be paid when required to perform work on public holidays, in light of the terms of those provisions already referred to, which prescribe payment at the rate of double time and a half.

[40] Accordingly, if not to prescribe payment for work performed on public holidays what is the work that Clause 26.2 of the Agreement sets out to do?

[41] In my view, the answer can be discerned from consideration of the general circumstances to which the Agreement applies and consideration of the history of the Agreement.

[42] It will have been observed that Ms Hinton explained the effect on SouthLink operations and requirements for employees to attend work on public holidays. 9 Notably, it was revealed in the hearing and not contested that the bus services operating on public holidays are somewhat less than those which would be operating but for the Public Holiday. Consequently, not all drivers are required to work on such days, notwithstanding that they are rostered to do so. Those who are required to work must clearly be paid at the rate of double time and a half for work performed on those days. For those drivers who are not required to work according to their roster, due to the operation of reduced public holiday services, Clause 26.2 of the Agreement prescribes payment for 7.6 hours at the relevant employee’s rate of pay.

[43] Without the provisions of Clause 26.2 of the Agreement, the Agreement would not regulate what, if any, payment should be made to such employees. Indeed in such circumstances the NES would operate because of this lacuna in Clause 26.2 of the Agreement. It will be noted that the NES prescribes by its terms the amount of payment an employee will be entitled to in such circumstances.

[44] In my view, the work which Clause 26.2 of the Agreement does is to specifically entitle any employee who would be rostered on to work on a public holiday and would do so, except for SouthLink’s decision not to require attendance on that day due to the level of services operated, to 7.6 hours pay. This is in my view the agreed regulatory effect of the Agreement in relation to payment in such circumstances.

[45] I have reached this conclusion having regard to the history of the Agreement which in my view provides confirmation and reinforcement accordingly.

[46] Whether this prescription accords with the terms of the NES will depend upon what the ordinary hours of an employee who is rostered to work on a day upon which a public holiday falls are. If, for example, an employee was rostered to work for 10 hours on the 28 January 2013 but was paid for 7.6 hours, query whether the terms of the NES have been complied with. This question is not the question before me and it is therefore inappropriate to give further consideration to it.

History of the Agreement

[47] I invited submissions on the history of the relevant terms of the Agreement which regulated the employment of drivers employed by SouthLink subsequent to the hearing of the matter. Submissions were received from Mr Dowsett and from SouthLink.

[48] Prior to the Agreement being made and approved by Fair Work Australia, relevant public holiday provisions were prescribed by the SouthLink Collective Agreement 2006 (the 2006 Collective Agreement), made under the Workplace Relations Act 1996, as follows.

24. PUBLIC HOLIDAYS

24.1 Public holidays for the purpose of this Agreement shall be those proclaimed for the State of South Australia

24.2 Whenever a public holiday, as prescribed in clause 24.1 hereof, falls on an employee’s ordinary working day, a full-time employee shall be paid 7.6 hours of ordinary pay and a part-time employee shall receive a pro-rata payment for the Public Holiday equal to one-fifth of their average weekly hours worked.

24.3 Where a public holiday falls on a Monday to Friday during the period of an employee’s annual leave, the employee shall be entitled to an additional days paid leave.

24.4 For the purpose of this clause “an additional day’s pay” means one-fifth the minimum weekly guarantee applicable to the employee’s classification.

24.5 Where an employee is absent from their employment without reasonable excuse or without the consent of management, on the working day before or the working day after a public holiday the employee shall not be entitled to payment for such holiday.

24.6 An employee whose rostered day off duty falls on a public holiday, as prescribed in clause 24.1 hereof, shall be paid 7.6 hours of ordinary pay for full-time employees or one-fifth of their average weekly hours worked for part-time employees.

24.7 When an employee works on a public holiday, as prescribed in clause 24.1 hereof, the employee shall be paid time and one half for the time worked plus receive payment of 7.6 hours for Public Holiday for a full-time employee or one-fifth of their average weekly hours worked for part-time employees. The time worked will be used to count towards the employee’s minimum guarantee for that week.

[49] It will be observed that Clause 24.6 of the 2006 Collective Agreement contained express terms which prescribed payment of 7.6 hours of ordinary pay for full time employees whose rostered day off falls on a public holiday.

[50] It is informative to compare the provisions of Clause 24.6 of the 2006 Collective Agreement with the terms of Clause 26.2 of the Agreement, its successor. It is clear that there was a change from the wording of Clause 24.6 of the 2006 Collective Agreement when the Agreement was made. In particular, the change occurs in the first part of the sentence comprising the text of Clause 26.2 of the Agreement. One can compare the change in words as follows:

24.6 An employee whose rostered day off duty falls on a public holiday, as prescribed in clause 24.1 hereof, shall be paid 7.6 hours of ordinary pay for full-time employees or one-fifth of their average weekly hours worked for part-time employees. (SouthLink Union Collective Agreement 2006)

26.2 Whenever a Public Holiday, as prescribed in clause 26.1 hereof, falls on an employee’s ordinary working day, a full-time employee shall be paid 7.6 hours of ordinary pay and a part-time employee shall receive a pro-rata payment for the Public Holiday equal to one-fifth of their average weekly hours worked. (SouthLink Bus Drivers 2010 Enterprise Agreement)

[51] The change is significant. There is no evidence before me of the circumstances under which the change occurred. Since the making of the Agreement, SouthLink has applied the Agreement on the basis that Clause 26.2 of the Agreement does not confer an entitlement to payment upon employees where a public holiday falls on a day on which they are rostered off. Consequently, between the making of the Agreement and now there will have been a number of instances where employees who would have been entitled to payment for such days, as prescribed by Clause 24.6 of the 2006 Collective Agreement have not been paid accordingly under the Agreement. This was submitted by Ms Hinton and was not contested.

[52] The change to the terms of the 2006 Collective Agreement in relation to payment in respect of public holidays is a significant textual variation which cannot be ignored. While the obvious reformulation of Clause 24.6 of the 2006 Collective Agreement to Clause 26.2 of the Agreement results in some potential ambiguity, the historical context in which the Agreement was made and the objective circumstances should be considered. 10

[53] The employees, it appears from the Decision of Fair Work Australia approving the Agreement, 11 were amply represented by Bargaining Representatives in accordance with the relevant legislative provisions of the Act when the Agreement was made. I must proceed on the basis that the employer complied with the relevant statutory provisions for the making of the Agreement and explained the effects of the terms of the Agreement and that a majority of employees who voted in an approval ballot voted to approve the Agreement. In doing so, those employees have, whether carefully and intentionally or not, approved a change to the terms and conditions of employment governing payment for public holidays. I do not know what the relevant consideration for doing so in the bargaining for the Agreement was, if any.

[54] At the time the Agreement was made the instrument governing the employment of persons covered by the Agreement expressly conferred a benefit of payment where a “rostered day off duty falls on a public holiday”, which was removed and replaced with a benefit of payment when a public holiday falls “on an employee’s ordinary working day”, of the same amount.

[55] From its conduct since the Agreement was approved, SouthLink has applied the terms Clause 26.2 of the Agreement such that when an employee’s rostered day off falls on a public holiday no payment has been made. This occurs very infrequently due to the characteristics of the rosters of work applicable to the drivers. However, notably, no issue has been taken with this application of those terms to date, other than by Mr Dowsett. While unilateral and uncontroversial interpretation of the terms of the Agreement by an employer should not be taken to settle a question of interpretation per se, provided that interpretation is consistent with a construction which gives logical sense to the relevant terms of the Agreement, in all the objective circumstances, it can be given some but not necessarily conclusive weight.

[56] In my view, the fact that the history reveals a clear change in the terms and conditions of employment governing Public Holidays and the fact that Clause 26.2 of the Agreement can be applied to the circumstances when a Public Holiday falls on a day upon which drivers are rostered for work but are not required to do so, with a regulatory effect of conferring a right to a specified amount of payment, lead me to conclude that Mr Dowsett is not entitled to a benefit from Clause 26.2 of the Agreement for Monday 28 January 2013.

[57] In my view, the Agreement makers have removed the express entitlement of employees to be paid an amount when a public holiday falls on a day on which an employee is rostered off. What has been retained is a prescribed amount of payment for an employee who is rostered to work on a public holiday but not required to do so.

[58] I therefore determine, under Clause 8(5)(ii) of the Agreement, that Mr Dowsett was not entitled to 7.6 hours pay for the Australia Day public holiday of 28 January 2013.

COMMISSIONER

Appearances:

Mr G. Dowsett for the Applicant

Ms V. Hinton for the Respondent

Hearing details:

Before Commissioner Lewin

2013

Adelaide:

31 May.

Final written submissions:

Applicant: 6 August 2013.

Respondent: 9 August 2013.

 1   [2010] FWAA 10053

 2   Fair Work Act 2009, Chapter 2, Part 2-2, Division 10, s116.

 3   PN1-PN554

 4   I consider there to be a transcription error at PN154 where the word “exclude” should read “include”. A reading of the transcript amended accordingly would show xxx between the submission and the Commissions recapitulation of it.

 5 [(1996) 66 IR 182]

 6   AMWU v Silcar Pty Ltd [2011] FWAFB 2555.

 7 (1993) 40 FCR 511.

 8   PN 325,326,327

 9   PN326

 10   Kucks v CSR Ltd (1996) 66 IR 182; Short v FW Hercus Pty Ltd (1993) 40 FCR 511.

 11   [2010] FWAA 10053

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