In the Matter of the Watchmens (Australian Capital Territory) Award, 1974 and an application for an interpretation of the above award

[1978] FCA 22

IN TIiE FEDERAL COURT	)
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OF AUSTRALIA	) N.S.W. NO. 2 Of 1978
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INDUSTRIAL DIVISION	)

IN THE MATTER of the Watchmens (Australian

Capltal Territory) Award, --- 1074

.U- IN THE WATTER of an application for an

interpretatlon of the above Award

JUDGE ?IP,I<ING ORDER: J ,B. SWEENE:Y J.

DATE OF' ORDER:	6 April, 1278
ORDER CF THE COURT:

The Court orders that the said >.ward be interpreted in

the manner following: ~ , n empioyee employed as a cesual

employee in one week 05 seven days must if employed in

the sucqeeding week be employed as a weekly employee

under cLause 13(a) and (b) or as a part-tlme employee

under clause 7 of the said Award.

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- IN TIIE FEDEPAL COURT

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1

OF AIJSTRALIA	1	N.S.W. No. 2 Of 19-78	l -
)
INDUSTRIAL DIVISION	)
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-- IN THE M4TTEX of the Watchmens (Australian i

Capital TerrTtory) Award, 1974

AND TN THE MATTER of an spplzcation for	ap.
lnterpretatlan of the above Award

6 April, 1978 J.B. SWEENEY J.

REASONS FOR JUDGMENT

This 1s an applicatiol: for interpretation of

the Watchmens (Australian Capitbl Territory) Award, 1974.

The award is a conserrt award made by Mr. Commissioner

Stanton in that year. It succeeded and replaced other

awards which ha6 from time to tlme covered cleaners (malc

and fenale) as well as watchmen. The award applies in

the Australian Capltal Territory and to three employers

only, each of whom appeared on rhe hearmg.

The dispute concerns t h e employment of casual.

employees. The scheme of the auwd is that it provides

for the employment under clause i3 of weekly employees,

part-time employees and casual employees. Weekly emplojlees

are subject to the usual weekly hire provisions and are

entitled under the award to a weekly rate together wlth

payment for public holidays, sick leave and annual holidays.

Their houls are not to exceed elghty per fortnight to be

worked in ten shifts of not more than elght hours per shlft

and no more than one ordinary shift is to be worked in each

24 hours. part-time employees are pald the ordinary hourly

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rate of pay plus 15 percent and are entitled to pro rata

annual leave, sick leave, public holidays "and like

conditions". casual employees are pald "the relative rate

prescribed by this award plus 15 percent". The relative

rate appears to be the weekly rate divided by 40 for each

hour of employment.

It will be seen then that the casual worker is

able to be employed at a cost to the employer markedly

less than the cost of the part-time employee or the weekly

employe,?. The part-time employez works not less than 20

hours par week and is paid fqr each such hour the weekly

rate divided by 40 plus 15 percent. Since he receiges annual leave, sick leave, publlc holidays and other

entitlelnents, the 15 percent is clearly designed to comp-

ensate him for having less than 3 weekly engagement. in

the cas2 of the casual employee however, since he recelvc's

the same hourly rate as the part-tlme employee but withc-lt

the entitlements, the 15 percent loadlng compensates for

these eatitlements and for casu?J employment and his

employment is less costly than the part-time employee.

In these circumstances one would expect to fin2

some limitation on the numbers of casual employees or the

circumstances in whlch they may be employed. A feature

of all industry has been the gradual decasualisatlon of

employment and the substltution of either employment by

a central authority or the provision of guarantees of a

number of hours of payment each week. There are many

such examples In recent years, including the maritime

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industry, the building industry, the	stevedormg industry
and others.

The competing submissions in this case centre

around the terms used in sub-clause 13(c)	of the award.
That suh-clause reads:

"A casual employee shall be engaged either by the

d&y or by the hour at the discretlon of the employer. Provided that any such employee shall cease to be a casual employee after one week's

employment with an employer. In the event of an

elgagement being continued beyond one week the

provlsions of sub-clauses (a) and (b) hereof: and/or

fae provisions of clause 7 as the case may be sha l l

a,3ply. "

The union submits that in the clause "week" mems

a periG3 of seven consecutlve days and that the effect of

the second and third sentences is that an employee who h&s

had an engagement, however short, durmg one period of

seven dlys cannot be employed in the next successive peri3d

of seven days except as a part-time or weekly employee.

The employers' submission 1s that "week" means a

perlod (of 40 hours and that the prohibitlon dobs not

operate untll the employee has bad 40 hours work.

In addition to the subnusslon I have already

outlined, the employers submitted that it was the contract

of employment between the employer and the casual employee

which was to be looked at. The contract of employment, it

was said, came to an end at the end of the day or hour of

employment. I find myself unable to accept this interpret-

ation. The two relevant sentences in sub-clause 13 (c) use

the terms "one week's employment" and "an engagement'' and

the employers' submission pays no regard to this difference.

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Moreover, if the contract of employment is the test and

it terminates at the end of'each engagement, there seems

no way in which a contract of employment would continue

heyond one week and the clause consequently would have no

practical application. Similarly I do not see how a con-

tract of employment would In the case	of a casual exceed
40 hours.

It was conceded that t5c terms of the award wern ambiguous. In these circumstances it seems to me proper firstly, that I should, m interpzeting the document, seek to give full welght to industrlal realities in lnterpreting

what is an industrial document. This perhaps does 1itt:e

more than say that the trlbunal should attempt to place

itself in the position of the award-making body just as a

court in construng a will endeavours to place ltself in

testator S armchair in order to understand what he sald

The testator's armchair and Its igdustrlal equlvalent may

not be c.>mfortable seats but an mterpretation 1s llkely

to he moi-e accurate ~f this approach 1s made.

The interprctatlon sought by the unlon is not

entirely free from dlfflculty and some extreme cases could perhaps arise where, for example, there was employment for

an hour or so in one week which wculd require in the follow-

ing week part-time or weekly employment. I have no evidence

before me showing the detalls of the method of employment

and I thlnk I cannot allow the posslbility of an extreme

case to influence me unduly.

5.

In interpreting the clause I thlnk I must regard

"weelc" as having the ordinary meaning of a successive

period of seven days since nothing appears In the award to

displace this. The industry is clearly a seven day, not a

five day industry, and ordinary tlme may be worked on any

of the seven days of the week.

Treatlng then the week a8 being a perlod of seven

days, the questlon is the effect o_' the phrase "an engagement

bemg con:inued beyond one week". Havlng regard to the

scheme of the award, I thmk one must look for some limita-

tion or prohibitlon on-the empl.oynent o€ casuals as part of

an industry-wide trend towards decasualisation.

In these clrcumstances the effect of sub-clause

13(c) in my view is that an engagement is ccntlnued beyor,d

one week If an employee who has been engaged for a period

durlng a 9Jeek of seven days	is to be employed durlng the
next perind of seven days.	Thls gives effect to the con-

cept of "continuing" the engagement and seems to me the

only inte-pretation rvhich takes into account the award.

This interpretatlon seems to me supported by

the history of the clause.

In 1955 this award applied to employees engaged

as cleaners and caretakers as well as watchmen. The equiv-

alent of clause 13 and Other provisions were hoTvever in

their present form and applied to watchmen as well as the

other two classes of employees covered by the award. In The Watchmen Cleaners and Caretakers (Australlan Capital

Territory) Award, 1953, an appllcation for variation came

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before Mr. Conciliation Commlssioner Flndlay. The

Commlssloner ln considerlng the appllcation consldered

as he was bound EO do the then award position and he said:

“The terms of engagement clause of the award in

Its present form sets out that employees shall be engaged and pald by the week. The clause

further specifles that casual employees may be

engaged by the day or by the hour at the discretlon

of the employer, provided that casual employees

shall cease to be regarded as casual employees

after one week‘s employment. The award then sets

out that after one week‘ S employment the employee

must be engaged on a weekiy basis.

?‘he Essentlal Cleaning Service is apparently the

Lnly respondent regularly employing male cleaners

?or less than 40 hours per weelc and, 111 my opinior?

the award in its present form demands that any

regular employee, after one week of casual employ-

rent, must recelve 40 hours’ pay for the completion

cf a week’s roster, whether or not that employee is

rostered for duty for the full period of 40 hours

j? that week. On the Information supplled to me,

it is clear that at least one employer regularly

rosters male employees for less than 40 hours per

veek and merely pays to those employees the approp-

rlate hourly rate of pay ylus the ten per centum

premium prescribsd for casual employment. This,

in my oplnlon, is a breacl, of the award In its

present form. ‘l

The vlew I have reached is consistent with thi?

declsion.

A similar approach to that which I have made

seems to have been made by the Industrial Commisslon of

New South Wales in a case clearly ln pari materia. That

case dealt with the Club Employees (State) Award which

provided In a definition clause that “a casual employee

is one whose engagement is for less than one week“. A

question arose whether an employee was a casual employee

and a Full Bench of the Commission deallng wlth an

employee who worked a total of 24 hours per week, being

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four hours dally from 5	a.m. to 9 a.m. on six days per
week said:

“The Full Bench further stated that as the

maglstrate had found that Mccarthy was employed

from November, 1954 to 26 Aprll, 1956 It folloved

that she was not a casual employee within the

meaning of the definitlon thers-of in the Club

Employees (State) Award because her engagement was

for not less than one week“

Mccarthy v. cunnlngham 130 New south Wales

Industrial Gazette 37

In these circumstances I interpret the award

as follaws. An employee employed as a casual employee

in one veek of seven days must If employed In the

succead*-ng week be employed as a weekly employee under

claus.. 13(a) and (b) or as a part-time employee under

clause ‘1 of the said award.

The Court orders accordmgly.