In the Matter of the Conciliation and Arbitration Act, 1904 And In the Matter of the Aircraft Industry (Qantas Airways Limited) Award, 1974 re Aircraft Industry ( Qantas Airways Ltd) Award 1974

[1978] FCA 94

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N.S.W. 17 of 1979 !

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! ' re ATRCRAFT INDUSTRY (OANTAS AIRWAYS LTD.) AWARD 1974.
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CATCHWORDS , .

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Industrial law - interpretation of award - Aircraft Industry

(Qantas Airways Ltd.) Award - shift work provisions - shift

workers working on afternoon or night shift work which does

not continue for at least flve successive shifts - right to

payment - Conclllatlon & Arbitration Act, 1904, s.110

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I N THE FEDERAL COURT OF AUSTRALIA )

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IhmUSTRIAL DIVISION ) N S . W . 1 7 of 1978

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NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER of the conciliation and

Arbitratlon ACE, 1904

AND I N THE IvYlTTER of the Alrcraft

Industry (Qantas Alrways Limited)

AND I N THE MATTER of an applicatlon by

the Federated Mlscellaneous Workers Unlon

for an interpretation of the above award

JUDGE MAKING ORDER: J.B. SWeeney J.

DATE OF ORDER: D November, 1978

MADE:	WHERE	Sydney
THE COURT ORDERS THAT:

The application be dismissed.

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IN TI-IE FEDERAL COURT OF AUSTRALIA )

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TNDIJSTRIAL	D VISION	)	N.S.W. 17 Of 1978
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NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER of the conciliation and

Arbltratlon Act, 1904

ANT IN THE MATTER of the Aircraft Industry

(Qantas Alrways Limited) Award, 1974

AND IN THE MATTER of an application by

the Federated Miscellaneous workers Unlon

for an interpretation of the above award .

8 November 1978 J.B. ShXENEY J.

REASONS FOR JUDGMENT

This is an application for interpretatlon of clause 20,

sub-clause ( 4 ) , paragraph (g) of the Aircraft Industry

(Qantas Airways Limited) Award, 1974.

The applicant is the Federated Miscellaneous Workers Union,

an organization of employees which is concerned with security

guards employed under the award. The award is one covering

a large employer in the ancraft industry and there is a

large number of classifications in addition to security guards.

Indeed, the securlty guards are but a very small proportlon

of the employees. The award from its terns covers a large

number of tradesmen particularly in the metal trades and other

types of employees necessarily engaged in the aircraft industry.

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The award and particularly a clause such as that now under

consideration must be interpreted in the llght of this wide

application and cannot be interpreted as a provision apply-

ing to security guards only. The clause under consideration

is as follows:

“shift workers who work n any afternoon or night

shift work tihich does not contlnue for at least

five successive aI‘ternoons or nights shall be

paid at the rate of time and a half.“

The history of the provisions as put before me is that a clause dealing with this aspect appeared in the Aircraft

Industry Award made in 1966 (116 C.A.R. 408 at 449). It

l provided in clause 21(4)(b) as follows:

“Shift workers who work on any afternoon or night

shift which does not coctinue for ar: least five

successive afternoons cr nights In a five day

workshop or for at least six successive afternoons

or nights in a six-day workshop shall be pald at

the rate of time and a half.“

This provision however did not apply to watchmen and/or gatekeepers, the classlfications for whom the term security

guard is now used. sub-clause ( 5 ) of clause 21 made special

provision for shift work for such employees and that sub-

clause had no provislon similar to that quoted from

clause 21(4)(b). The rhen Metal Trades Award provision was

altered by a Full Bench of the Commonwealth Conciliation

and Arbitration Commission in 1969 (129 C.A.R. 239). The

commission considered the then provislon of rates for shifts

which continued for less than five successive afternoons o

njghts in a five day workshop. They referred to these shifts

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as being not of a frequent occurrence, usually introduced

to cope with some emergency by factors beyond the control

of the employer. The judgment continues:

"In the circumstances we do not consider that the	I
rates should be so high that it would be a complete deterrent in emergency situations. On the other
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hand it 1s understandable that such a shift must

cause extreme dlsruption to the normal routine f

the employees concerned and we consider that	a
reasonably high recompense is justified."

A clause was then awarded in the following terms:

"A shift worker who works on an afternoon or night

shift which does not continue for at least five

successive afternoons or nights in a five day

workshop or for at least six successive afternoons

or nights in a SIX day workshop shall be paid for

each such shift 50 per cent for the first 4 hours

thereof and 100 per cent for the remaining hours

thereof in additlon to his ordlnary rate."

In 1971 the Aircraft Industry (Qantas Airways umited) Award,

1974 was made. It inserted a clause in the following terms:

"Shift workers xvho work on any afternoon or night

shift work which does not continue for at least

five consecutlve afternoons or nlghts shall be

paid at the rate of time and a h lf."

Special provisions for security guards do not appear in this

award and the general shift work provisions therefore apply

to them. A further award was made in 1974 and the clause

then repeated (161 C.A.R. 895).

The changes made in the 1971 award were made after the Full

Bench of the Conclhation and Arbltratlon Coinmisslon had

given its judgment in 1969. The two changes made were to

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omit the speclal provislon for security guards and as a

consequence to let the clause apply to them. In addltion the word "work" was added after the words "nlght shift".

The addition of thls word did not follow the Metal Trades

Award provislon. It seems to me that it was added to ensure that in determining the application of the clause regard would be had to the nature of the job which requlred the particular working.

Two constructions of the award have been urged. It 1 s argued

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for the union that in determining the application of he pro-

vision one looks at the shlft workers concerned, examines only

the shifts they have worked and if those shift workers have

not worked for at least five successive afternoons or nights

they are entitled to payment. For the employer it was sub-

mitted that the right to payment only arises if the worker is

engaged on work which falls within the description of work

which does not continue for at lease five successive after-

noons or nights. It is submitted that it is the short duration

of the particular job in question requiring the working of

particular shifts for a short period, which attracts the pay-

ment. I think a good deal of weight has to be attached to the

terms actually used. They are "work on any afternoon or night

shift work". Unless the word "work" has the effect that the

rate is attracted by the type of work being done, It being

emergency and consequently of short duration, the word "work"

has no significance at all and is mere surplusage. If the

clause meant that one had regard only to the shifts actually

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worked by the s h i f t worker then t h a t meaning would be b e t t e r

conveyed i f t h e word	"work"	t o which I have referred had been
omitted.

It seems t o me tha t the c lause does bear the meaning sought

by the employers and it just does not have appl lcat lon to

security guards regularly working i n a ros t e r pe r iod a mixture

of s h i f t s where the duratlon of t h e s h i f t s is less than f ive

consecutive afternoon or night shifts . Security guards work

a day, afternoon and n i g h t s h i f t and one man is on duty each

day of t h e week on each s h i f t a t l e a s t a t the c l ty loca t ions .

From the ros te rs before m e up t o seven consecutive shifts

may be worked and they may be s t r a igh t day s h i f t s o r a mixture

of afternoon and n igh t sh i f t s . Days off occur a t i n t e r v a l s

durlng the	ros t e r pe r lod , e i the r	two	consecutive days or four
consecutive	days.

On the mater ia l before m e it appears that they work a s a

matter of regular routlne afternoon and n i g h t s h i f t s which

do not cont inue for a t l eas t f ive consecut ive a f te rnoons or

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nights.

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If in those circumstances they were e n t i t l e d t o payment a t

t he rate of time and a h a l f f o r such s h i f t s t h e e f f e c t would

be t h a t t h e employee received greater payment than i f he

were a l l t h e time on n i g h t s h i f t , and t h a t seems t o m e an

in t e rna l anomaly which polnts s t rongly to the clause having

the meaning I have set out. Further anomalies would resu l t .

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If an employee worked three afternoon shifts and then four night shifts consecutively, on the union's construction he

would be entitled to payment at time and a half for each of

those seven shifts. If however he worked two afternoon shifts and then five night shlfts again consecutively he

would receive payment at the r-ate of time and a half for

the two afternoon shifts only and payment at the night shift rate of 27% per cent for the night shifts although

there is a greater disability in working night shifts than

afternoon shifts. Again, if an employee were worked five

night shifts and two day shifts he would receive penalty

payments at the rate of 27:s per cent extra for the five night

shifts but if he worked four night shifts and three day shifts

i consecutively, a preferable method of working, he would recelve

payment for the four night shifts at time and a half. All

these internal anomalies seem to me to reinforce the inter-

I pretation which I have glven. Earlier clauses in the Metal

Trades Award have been always interpreted by the appropriate

tribunals under the Commonwealth Conciliation and Arbitration

Act as requiring payment having regard to the work done and

whether it was of an emergent or urgent nature. A similar

view has been taken by the New South Wales Industrial Commission

of a like clause appearing in the crown Employees Skilled

Tradesmen Award (Re Dlspute Shift Work at Coal Loading Berth,

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Port Kembla, 1970 N.S.W.A.R. 278). In that case Sheehy J.

in considering the clause said:

"It is to be observed that the provision concerned does not refer to weekly perlods and the condition

for payment of tine and a half is simply that the

shift 'does not continue for at least five successive

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afternoons or nights'. The condition relates to the

shift, not to the work done by an individual employee

and one must therefore look to the system of worklng

itself as was done in the firstmentioned case."

It seems to me that on the making of the 1971 award the shift

work provisions were applied to security guards probably

without particular conslderation being given to the effect on

them of a clause such as that now under conslderation. They

just do not work the mixture of shifts in the circumstances

envlsaged by the clause, and while the particular mixture may

well impose difficulties by reason of frequency of changes,

that is not a matter for me to deal with.

In the circumstances I am unabk to make the interpretation

sought by the union. No partlcular interpretation was sought

by the employer and in the circumstances	I di miss the
application.

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