Health Services Union of Australia v Royal Dental Hospital of Melbourne
[1996] IRCA 528
•30 October 1996
DECISION NO:528/96
CATCHWORDS
INDUSTRIAL LAW - breach of award - application for imposition of penalty - whether applicants entitled to payment in respect of ‘Show Day’ 1994
Industrial Relations Act 1988 s 178
Bank Holidays Act 1958 (Vic) s 4(g)
Employee Relations Act 1992 (Vic) s 24(3)
Evidence Act 1995 s 144
Public and Bank Holidays Act 1934 (Vic) ss 3, 6
Public Holidays Act 1993 (Vic) ss 4, 6, 10
Public Sector Management Act 1992 (Vic), Sch 4
Public Service Act 1928 (Vic) s 187(1)(f)
Re Australian Nursing FederationEx parte State of Victoria and Another (1993) 112 ALR 177
Public Holidays Test Case Print L4534, 4 August 1994
Health Services Union of Australia (Victoria - Public Sector) Interim Award 1993 cl 3, 7
No. VI 4984 of 1995
HEALTH SERVICES UNION OF AUSTRALIA v THE ROYAL DENTAL HOSPITAL OF MELBOURNE
JUDGE: Marshall J
PLACE: Melbourne
DATE: 30 October 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
No. VI 4984 of 1995
BETWEEN: HEALTH SERVICES UNION
OF AUSTRALIA
Applicant
AND: THE ROYAL DENTAL HOSPITAL
OF MELBOURNE
Respondent
JUDGE: Marshall J
PLACE: Melbourne
DATE: 30 October 1996
ORDER
THE COURT ORDERS THAT:
1.The preliminary question is answered in the affirmative, i.e. dental technicians employed by the respondent on 22 September 1994 were entitled to payment in respect of Show Day.
2.The matter is adjourned to 9.15 am on 25 November 1996 at which time the Court will consider the question of the penalty, if any, which should be imposed upon the respondent. The Court will also make any further or other orders required to finalise the matter.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
No. VI 4984 of 1995
BETWEEN: HEALTH SERVICES UNION
OF AUSTRALIA
Applicant
AND: THE ROYAL DENTAL HOSPITAL
OF MELBOURNE
Respondent
JUDGE: Marshall J
PLACE: Melbourne
DATE: 30 October 1996
EX-TEMPORE REASONS FOR JUDGMENT
This matter is an application pursuant to s178 Industrial Relations Act 1988 (“the Act”) whereby the applicant, Health Services Union of Australia (“HSUA”) seeks the imposition on the respondent, The Royal Dental Hospital of Melbourne (“the hospital”) of penalties for the commission by the hospital of breaches of the Health Services Union of Australia (Victoria - Public Sector) Interim Award 1993 (“the award”).
When the case commenced this morning, the respective counsel, Mr Friend for HSUA and Mr Bourke for the hospital, asked the Court to determine a preliminary question arising in the application. The Court acceded to the request of counsel. The question identified was as follows:
“Were dental technicians employed by the respondent on 22 September 1994 entitled to payment in respect of Show Day?”
The issue for determination arose because prior to 1994 the relevant employees had, it appears for a considerable period of time, been entitled to “Show Day” as a public holiday. Show Day had traditionally fallen on either the fourth or the last Thursday of September in any given year. In recent times, at least until 1994, it had occurred on the Thursday prior to the scheduled holding of the Australian Rules football grand final at the Melbourne Cricket Ground. I take judicial notice of that lastmentioned fact as a matter of common knowledge pursuant to s 144 Evidence Act 1995 and being a person who has been domiciled during his entire life in metropolitan Melbourne. It is also a fact that was raised with counsel during submissions and a matter upon which they had the opportunity to make submissions.
The current controversy arose in the following way. On 25 August 1994, a memorandum was distributed to all staff of the hospital from Mr Martin Dooland, its Chief Executive. The memorandum provided as follows:
“For some time now the Hospital has been seeking definitive advice from various sources as to the legitimacy of Show Day as a Public Holiday, and as an Award entitlement, as it has been in previous years. The situation has been greatly complicated because of legislative changes at both State and Federal Government level with regard to Public Holidays and the fact that not all staff groups at the Hospital are covered under Federal Awards.
The latest advice from the Australian Industrial Relations Commission via the Victorian Department of Health and Community Services, is that Show Day is not a Public Holiday for any employee - as the Victorian Government has formally declared it not to be on. Furthermore, Show Day is not included in the Federal legislation which has provision for 10 Public Holidays plus one other - most likely to be Melbourne Cup Day, in Victoria.
Accordingly, it will be ‘business as usual’ for all Hospital employees and units on Thursday 22 September 1994.
Any queries which staff, or their representatives, have on this issue can be directed to either the Manager - Personnel Services, Mark Gibson (Ext. 425) or the Pay Officer, Garry Semmens (Ext. 387).”
The award was made by the Australian Industrial Relations Commission (“the Commission”) constituted by Senior Deputy President Riordan on 23 December 1993. It is common ground that the award is binding upon HSUA and the hospital in respect of dental technicians employed by the hospital.
Clause 3 of the award, in so far as is material, (as it applied on 22 September 1994) provided as follows:
“... each employer shall accord to each and every employee referred to in Clause 1 hereof the terms and conditions prescribed in the following former awards of the Industrial Relations Commission of Victoria prior to 1 March 1993 as is applicable to that employee:
...
Dental Technicians Award;
...”
Clause 7 of the award provided that:
“7.(i) This Order shall come into force from 20 December 1993, and shall remain in force until 28 February 1994 unless replaced earlier by further agreement or by agreement made pursuant to the Industrial Relations Reform Act 1993.
(ii)Leave is reserved for the parties to have the issue of the public holidays clause in the former award insofar as it deals with Easter Saturday and ANZAC Day arbitrated.”
The effect of the award was to accord to employees entitled to the benefit of it, the terms and conditions of employment which they had enjoyed prior to 1 March 1993. For dental technicians it meant that the terms and conditions provided for in the Dental Technicians Award (“the State award”) made by the former Industrial Relations Commission of Victoria (“IRCV”) prior to 1 March 1993 became incorporated by reference into the award. In effect, the status quo of award regulation which had been disturbed by Employee Relations Act 1992 (Vic) (the “ER Act”) was restored by the making of the award. See Re Australian Nursing Federation; Ex parte State of Victoria and Another (1993) 112 ALR 177, 182 and 188 - 189 per McHugh J. At 188 - 189, his Honour said:
“Mr Uren contended that a stay would preserve the status quo because, unless and until a federal award is made, the relevant employees are now employed on individual contracts. If the position was that the employees had been employed on individual employment contracts for a long period of time, the threat of a proposed award interfering with that situation would be a powerful factor inclining this court to grant a stay of proceedings. But in a real sense, it is the placing of employees on individual contracts from 1 March 1993 and not any proposed award which alters the status quo. Presumably, any award will restore the situation as it existed immediately prior to 1 March 1993. In the circumstances, this court should not stay the proceedings in the Commission in this matter particularly since the Deputy President has expressed the conclusion that the cessation of the awards for nurses ‘may result in the detriment to existing conditions of employment for these nurses in the absence of any award of this Commission.”
The relevant provision of the State award was cl 35(a). It provided that:
“35. (a)Employees shall be entitled to the following holidays without deduction of pay: New Year’s Day, Australia Day, Anzac Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Queen’s Birthday, Show Day, Melbourne Cup Day, Christmas Day and Boxing Day, but if any other day be by Act of Parliament or Proclamation substituted for any of the abovenamed holidays, employees shall be entitled to the days so substituted.”
Mr Bourke submitted that, as at 22 September 1994, there was no longer a “Show Day” as such. He contended that Show Day was the creation of State Parliament and that if State Parliament abolished it as a public holiday, it ended as a concept. He referred the Court to the Public Holidays Act 1993 (Vic) (“the PH Act”). The PH Act was assented to on 7 December 1993. Section 6 of the PH Act provides as follows:
“6. Public holidays
The following days are appointed as public holidays-
(a)New Year’s Day or the day after New Year’s Day when New Year’s Day is a Sunday;
(b)26 January (Australia Day);
(c)the second Monday in March (Labour Day);
(d)Good Friday;
(e)Easter Monday;
(f)25 April (Anzac Day);
(g)the second Monday in June (the day on which the anniversary of the birthday of the Sovereign is observed);
(h)the first Tuesday in November (Melbourne Cup Day) but only in metropolitan municipal districts;
(i)Christmas Day;
(j)The day after Christmas Day (Boxing Day) or the following Monday when Boxing Day is a Sunday.”
Section 10 of the PH Act provides that:
“10. Holiday entitlements
(1)Despite any provision to the contrary made by or under any other Act or by any contract of employment or other agreement or arrangement relating to employment or by any award or employment agreement within the meaning of the Employee Relations Act 1992, a person referred to in section 4 (a)-
(a)is entitled to a public holiday or public half-holiday that applies to him or her without loss of pay;
(b)is not entitled to a holiday without loss of pay on any of the following days-
(i)a day instead of New Year’s Day when New Year’s Day is a Saturday;
(ii)a day instead of 26 January (Australia Day) when Australia Day is not a Monday;
(iii)the day after Good Friday;
(iv)Easter Tuesday;
(v)a day instead of 25 April (Anzac Day) when Anzac Day is a Saturday or Sunday;
(vi)the fourth Thursday in September in metropolitan municipal districts;
(vii)a day instead of Christmas Day when Christmas Day is a Saturday or Sunday;
(viii)a day instead of the day after Christmas Day (Boxing Day) when Boxing Day is a Saturday;
(c)who ordinarily works from Monday to Friday only is not entitled to any payment in respect of, or time off in lieu of, a public holiday or public half-holiday that falls on a Saturday or Sunday unless he or she works on that day.
(2)Nothing in sub-section (1) affects a provision made by or under any Act, contract, agreement, arrangement or award referred to in that sub-section requiring a person who is entitled to a particular public holiday or public half-holiday to work on that day or half-day on any terms and conditions specified in the provision.”
Section 4 of the PH Act is also relevant. It provides that:
“4. Application
This Act applies to-
(a)all persons in Victoria not covered by a federal award who are employed under an Act or a contract of employment or other agreement or arrangement relating to employment or who are bound by an award or employment agreement within the meaning of the Employee Relations Act 1992; and
(b)every person or body employing a person referred to in paragraph (a).”
Mr Friend submitted that Show Day was not created as a public holiday by Parliament. He contended that the State award provided for it to be treated as such. He referred the Court to a notice from the Victoria Gazette of 2 September 1953 which was admitted into evidence and which advised that on Thursday, 24 September 1953 “State Public Offices” in certain named municipalities in Melbourne were to be closed on that day.
The Public and Bank Holidays Act 1934 (Vic) (“the 1934 Act”) provided for a public holiday on the “last Thursday in September” for public servants (s 3). Prior to that, the Public Service Act 1928 (Vic) had referred to the “Thursday before the last Saturday in September” (s 187(1)(f)). A materially identical amendment was made via the 1934 Act to the Banks and Currency Act 1928, which had the effect of making Show Day a bank holiday.
The Bank Holidays Act 1958 (Vic), which consolidated the law in Victoria with respect to bank holidays, provided in s4(g) thereof that:
“4. The following days shall be observed as holidays in all banks:-
...
(g)the last Thursday in September so far only as regards the banks situate within any of the municipalities mentioned in the Second Schedule.”
The municipalities referred to in the Second Schedule were those in or about Melbourne.
Prior to 7 December 1993, all public servants in Victoria employed pursuant to the Public Sector Management Act 1992 (Vic) (“the PSM Act”) and prior to that, the Public Service Act 1974 (Vic) and the Public Service Act 1958 (Vic), enjoyed as a holiday the day which, at least by 1992, had come to be described in such legislation as “the fourth Thursday in September”. See Schedule 4 (Cl. 15(h)) to the PSM Act.
The dental technicians employed by the hospital at all material times, although employed in the public sector, have not been employed as public servants in the sense described in Division 1 of Part 2 of the PSM Act. They are not “officers” of the public service under the PSM Act. “Public Servants” ordinarily had the terms and conditions of their employment regulated by determinations of the Public Service Board rather than awards of the IRCV and its predecessor, the Industrial Appeals Court.
Immediately prior to 1 March 1993, the only entitlement to a public holiday for dental technicians employed by the hospital on the fourth Thursday in September, was an entitlement arising as a result of cl 35(a) of the State award. On 1 March 1993, the State award was abolished and the terms and conditions of employment of employees formerly covered by it were “rolled-over” into the employees’ contract of employment in the absence of an individual or collective employment agreement. See s24(3) of the ER Act. There was no evidence before the Court of any employee relevant to this matter having been covered by such an agreement.
When the PH Act removed the entitlement of a dental technician employed by the hospital to Show Day as a public holiday, it removed an entitlement which had not been given by legislation but by the State award. The effect of the Commission’s making of the award was to restore the entitlement to Show Day as a public holiday which had existed immediately prior to 1 March 1993.
Mr Bourke effectively submitted that the reference to Show Day in the State award should be read as a reference to Show Day as proclaimed by the State Parliament. He submitted that when such a day was proclaimed by the State Parliament it would be a public holiday, otherwise it meant nothing.
I reject that construction of the State award. For a start it is based on a false premise. The State Parliament has never proclaimed “Show Day” as a public holiday for non-public servants. Additionally, such a construction does violence to the plain and ordinary meaning of the relevant sub-clause. It seeks to read additional words into cl 35(a), or alternatively, urges upon the Court a construction which invites it to read out of the sub-clause altogether the words “Show Day”.
As at immediately prior to 1 March 1993, persons entitled to the benefit of the State award had an entitlement to a public holiday on Show Day. Show Day was then commonly understood, not only as a matter of common knowledge in the sense described earlier in these reasons, but also with the assistance of Schedule 4 to the PSM Act, as the fourth Thursday in September. When the Commission made the award, with effect from 20 December 1993, it restored to such persons a previously existing entitlement which had been removed less than two weeks beforehand by the PH Act.
Mr Bourke referred the Court to the decision of a Full Bench of the Commission in the Public Holidays Test Case, Print L4534, 4 August 1994 and to a passage contained therein where the Full Bench noted a submission made by counsel, which it appeared later to endorse, that the Commission’s practice had been to “recognise the public holidays determined by the appropriate authorities, and in various ways, to incorporate them into its awards” (emphasis in original). It determined to continue such a practice. I find those observations of no assistance in the resolution of the issue before the Court. Whatever the Commission’s practice was is of little relevance when one is construing an interim award which was based on provisions established by a State Tribunal. Further, the effect of that Full Bench decision was to abolish Show Day as a public holiday. One might rhetorically ask what there was to be abolished if the hospital’s submissions in this matter are correct.
A further factor which supports the construction of the State award contended for by HSUA is that cl 35(a) permits other days to be substituted for any of the days there referred to. The provision does not sanction removal without substitution or what is commonly referred to in industrial relations parlance as “negative cost cutting” or removal of conditions without compensation.
Mr Bourke contended that if the Court rejected his construction of the State award, and hence the award, there was no evidence before the Court to allow it to find that 22 September 1994 was in fact Show Day. As there was confusion between counsel as to whether that matter was in contention on the pleadings, I allowed Mr Friend to re-open his case. When he did so he tendered, without objection, the memorandum referred to earlier in these reasons. That memorandum unambiguously records the understanding of the hospital that 22 September 1994 was Show Day. The only issue in the memorandum was the payment which should be made to employees who worked on that day.
The Court also takes into account, on this issue, the identification of what was treated as Show Day in the Schedule to the PSM Act and the matters of common knowledge referred to earlier in these reasons in rejecting Mr Bourke’s submission that 22 September 1994 was not Show Day.
Consequently the Court answers the preliminary question in this way:
Dental technicians employed by the hospital on 22 September 1994 were entitled to payment in respect of Show Day.
The order of the Court is:
1.The preliminary question is answered in the affirmative, i.e. dental technicians employed by the respondent on 22 September 1994 were entitled to payment in respect of Show Day.
2.The matter is adjourned to 9.15 am on 25 November 1996 at which time the Court will consider the question of the penalty, if any, which should be imposed upon the respondent. The Court will also make any further or other orders required to finalise the matter.
I certify that this and the preceding 15 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date:
Counsel for the Applicant: Mr W Friend
Solicitor for the Applicant: Maurice Blackburn & Co
Counsel for the Respondent: Mr J Bourke
Solicitor for the Respondent: Mr G Slawski
Date of hearing: 30 October 1996
Date of judgment: 30 October 1996
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