INDUSTRIAL LAW - AWARD INTERPRETATION - meaning of “ordinary rate of pay" INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - REDUNDANCY - whether long service leave entitlement include shift allowance
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
The application is dismissed.
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 CSRStaff (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),…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Kucks v CSR Limited
Sign in free to access the full text
Details
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.