Kucks v CSR Limited

Case [1996] IRCA 141


DECISION NO:  141/96

CATCHWORDS

INDUSTRIAL LAW - AWARD INTERPRETATION - meaning of “ordinary rate of pay"
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - REDUNDANCY -  whether long service leave entitlement include shift allowance

Industrial Relations Act 1988 (Cth): s.179, s.413

CSR Staff (Consolidated) Award 1992

Scott v Sun Alliance Australia Pty Ltd (1993) 178 CLR 1
Catlow v Accident Compensation Commission (1989) 167 CLR 543
Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362

TREVOR KUCKS v CSR LIMITED

QI201 of 1994

CORAM:      MADGWICK J
PLACE:        BRISBANE
DATE:          19 APRIL 1996


IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

No. QI201 of 1994

BETWEEN  TREVOR KUCKS

Applicant

AND  CSR LIMITED
  Respondent

CORAM:  MADGWICK J
PLACE:    BRISBANE
DATE:     19 APRIL 1996

MINUTES OF ORDER

  1. The application is dismissed.

  1. Judgment for the respondent.


IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

No. QI201 of 1994

BETWEEN  TREVOR KUCKS
  Applicant

AND  CSR LIMITED
  Respondent

CORAM:  MADGWICK J
PLACE:    BRISBANE
DATE:     19 APRIL 1996

REASONS FOR JUDGMENT

MADGWICK J: The applicant sues, under s179 of the Industrial Relations Act 1988 (Cth) for the recovery of an alleged underpayment of an amount due to him, pursuant to the CSR Staff (Consolidated) Award 1992 (“the Award”), upon the termination of his services.  He claims a shade under $14,500, for underpayment of his untaken long service leave entitlement.

A long-term shift worker is retrenched

There is no dispute about the factual setting.  Mr Kucks was employed at the respondent’s New Farm refinery on 3rd March 1958 and worked continuously there for 36 years until his retrenchment on 29th April 1994.  He had been promoted to a position known as Shift Superintendent and thereby to the salaried staff of the respondent on 1st November 1987.  At all relevant times, his contract of employment was governed by the Award, its predecessors and related agreements. 

As from August 1992 the respondent introduced at the New Farm refinery a 38-hour, seven-day continuous shiftwork roster based on 12-hour shifts.  Mr Kucks worked in accordance with that roster until his retrenchment.  He was paid shift allowance of 40% of his ordinary salary for time worked on that roster.  It is agreed that that occurred pursuant to Clause 13(g) of the Award which is in the following terms:

Employees working a seven-day continuous roster shall be paid an allowance in lieu of afternoon and night shift allowances, weekend penalty rates and payment for any rostered overtime shift included in the cycle. This allowance shall be determined at each location by the Company and the Association. Provided that employees working a 7 day continuous roster which operates over a 4 week, 38 hours per week, roster cycle shall be paid a shift allowance of 40% of ordinary salary for time worked.  (emphasis added)

When payment was made to him, upon the termination of his services, for untaken long service leave, Mr Kucks was paid for the relevant period his “salary” (within the meaning of Clause 4 of the Award),…

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AGLC
Kucks v CSR Limited [1996] IRCA 141
Case
[1996] IRCA 141
Decision Date

CaseChat Overview and Summary

Trevor Kucks brought an action against CSR Limited, claiming underpayment of long service leave entitlements following his retrenchment. The dispute centred on whether the shift allowance that Mr Kucks received for his shift work should be included in his "ordinary rate of pay" for the purpose of calculating his long service leave entitlements under the CSR Staff (Consolidated) Award 1992. Mr Kucks argued that his usual pay included the shift allowance, and thus it should be included in his long service leave calculations. CSR Limited contended that the shift allowance should not be included in the calculation of ordinary pay for long service leave purposes.

The court had to decide whether the phrase "ordinary rate of pay" in the Award included shift allowances. The Award specified that employees working a seven-day continuous roster should receive a shift allowance of 40% of their ordinary salary for time worked. However, Clause 18(h) of the Award stated that long service leave payments should be made at the employee's ordinary rate of pay, which excluded "allowances or the like." The court needed to interpret whether "allowances or the like" included shift allowances.

Justice Madgwick concluded that the term "allowances or the like" in the Award did include shift allowances. The court reasoned that the term "allowance" was used in its ordinary meaning, as an addition for extenuating circumstances, and there was nothing in the Award to suggest otherwise. Furthermore, the Award's provisions for other types of leave, such as annual and sick leave, paid at full pay, supported the interpretation that shift allowances should be excluded from ordinary pay. The court found that the Award's framers intended to pay a standard rate of pay for long service leave, excluding allowances such as shift allowances.

Accordingly, the court dismissed Mr Kucks' claim for underpayment of his long service leave entitlements. The shift allowance was not included in the calculation of his ordinary rate of pay for long service leave purposes, and thus CSR Limited was not liable for the claimed underpayment. Justice Madgwick's decision was based on a careful interpretation of the Award's language and its industrial context, finding that the shift allowance was properly excluded from ordinary pay for long service leave.

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