Nicol, D.A. v Crest International Hotel (Brisbane) Pty Ltd

[1983] FCA 297

Re: D. A. NICOL
And: CREST INTERNATIONAL HOTEL (BRISBANE) PTY. LTD.
QLD Q7, 8 And 9 of 1983
Industrial Law
6 IR 75

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald J.

CATCHWORDS

INDUSTRIAL LAW - proceedings for imposition of penalties under s.119 of the Conciliation and Arbitration Act in respect of alleged breaches by the respondent of the Hotels and Retail Liquor Industry Award 1975 - "penalty rates" - "additional allowance".

Conciliation and Arbitration Act 1904, ss. 119, 125(2)

Acts Interpretation Act 1901, s.13(1)

Hotels and Retail Industry Award 1975

HEARING

BRISBANE

#DATE 21:10:1983

ORDER

Applications Q7, Q8 and Q9 of 1983 are dismissed.

JUDGE1

The applicant, an inspector appointed pursuant to sub-s. 125(2) of the Conciliation and Arbitration Act, 1904 ("the Act") has commenced a number of proceedings against the respondent for the imposition of penalties under s.119 of the Act in respect of alleged breaches by the respondent of the Hotels and Retail Liquor Industry Award 1975, as varied, ("the Award"). There is no dispute as to the facts and it is common ground that the Award was applicable. The question in each case is whether the respondent was obliged to pay to various persons engaged by it as weekly employees additional allowances pursuant to clause 20(d) of the Award.

Nor is there any question but that the respondent would have been obliged to make such payments but for clause 21 of the Award. Each of the employees was a weekly employee employed in the back of the house and had a broken work day with a spread of hours of 10 or more. However, each was also entitled to be paid and was paid at an increased rate in accordance with clause 20(c) of the Award.

It is not necessary to refer to many of the provisions of the Award in detail. Sub-clause 17(a) prescribes the minimum rates of pay payable to employees in different categories. Additional allowances are payable under the following sub-clauses of clause 17 for a variety of functions, qualifications, or abilities. Sub-clauses 20 and 21 provide:

"20 - OVERTIME AND PENALTY RATES

Overtime

(a) An employer may require any weekly employee to work reasonable overtime at overtime rates and such employee shall work overtime in accordance with such requirements. To ensure that weekly employees are not deprived of the opportunity to work reasonable overtime an employer shall so far as is practicable offer such employee the opportunity to work any overtime that may be required to meet fluctuations in his trade or other special circumstances, in preference to engaging casuals to supplement his normal labour force.

All time worked in excess of the hours and/or outside the spread of hours or outside the rostered hours prescribed in clauses 12 and 13 of this award shall be overtime and shall be paid for at the following rates:

(i) Monday to Friday inclusive time and a half for the first three hours and double time for all work thereafter.

(ii) Between midnight Friday and midnight Saturday time and three quarters for the first three hours and double time for all the time worked thereafter.

(iii) Between midnight Saturday and midnight Sunday double time for all time worked.

(iv) All work performed on an employee's rostered day off double time, with a minimum payment of four hours at the rate of double time. The four hour minimum shall not apply where the overtime is continuous from the previous day's duty.

(v) Overtime on any day shall stand alone.

(vi) If an employee is so long on overtime duty that he has not had ten hours rest before his next regular starting time, he shall be allowed at least ten consecutive hours rest without deduction of pay or shall be paid at overtime rates for all time of duty until he has had at least ten hours rest.

Week-end Penalty Rates

(b) (i) For all ordinary time worked between midnight Friday and midnight Saturday time and a half rates shall be paid.

(ii) For all ordinary time worked between midnight Saturday and midnight Sunday in back of the house time and three quarters shall be paid.

(iii) For all ordinary time worked in the front of the house on a Sunday double time shall be paid, with a minimum of eight hours at the rate of double time.

Other Penalty

(c) Any employee engaged on weekly hire who is required to work any of his or her ordinary hours outside the hours of 7 a.m. to 7 p.m. on Mondays to Fridays inclusive shall be paid 30 cents per hour, or any part of an hour, for any such time worked outside the said hours with a minimum payment of 60 cents for any one day. An employee engaged on weekly hire who is required to work all of his ordinary hours outside the hours of 7 a.m. to 7 p.m. on Mondays to Fridays inclusive shall be paid 35 cents per hour for time worked.

Broken periods of work

(d) A weekly employee in the back-of-the-house who has a broken work day shall receive an additional allowance for a spread of hours as prescribed in sub-clause 12(b) as follows: Where the spread of but is Rate per hours is under day

under 10 - Nil

10 10 1/2 50cents 10 1/2 11 1/2 $1.00 11 1/2 12 1/2 $1.50 12 1/2 or more - $2.00

21 - PENALTY RATES NOT CUMULATIVE

Except as provided in clause 15, where time worked is required to be paid for at more than the ordinary rate such time shall not be subject to more than one penalty, but shall be subject to that penalty which is to the employee's greatest advantage."

Clause 15 of the Award is of no present relevance. There have been subsequent alterations to the rates prescribed by clause 20(d).

Clause 20(d) refers to an "additional allowance", but, in the context, that simply means a payment "additional to ordinary wages . . . as compensation for unusual conditions of . . . service.": Mutual Acceptance Company Limited v. Federal Commissioner of Taxation (1944) 69 C.L.R. 389, 396-7 per Latham CJ. I have no doubt that such a payment may properly be described as a penalty; i.e. as a sanction on the employer for the imposition of such conditions of service (Canberra Television Limited and Ors v. Australian Theatrical and Amusement Employees Association (1979) 24 A.L.R. 529) which, of course, similtaneously provides compensation to the employee for the detriment suffered in consequence.

The additional payment is expressed as a daily rate. Even were it not expressed as a rate, the work which attracts that payment as well as payment at the ordinary rate, is plainly enough work which is "paid for at more than the ordinary rate".

However, it was argued for the applicant that the payment was not made for "time worked" but for time not worked, and reference was made to the fact that the condition of employment which attracts the additional payment is a "broken work day". In my opinion, there is nothing in clause 20(d) which supports the fragmentation of such a work day between "time worked" and time not worked and the attribution of the additional payment to the period not worked. The payment is related to the "spread of hours" over which time is worked, and more particularly to a condition of employment which necessitates service over an interrupted period and therefore disadvantages the employee by reason of the restrictions placed upon his freedom over a greater part of the day than would otherwise be the case. The amount of the payment is related to the extent of the interruption. There is no semantic basis, in my view, upon which it can be suggested that the payment is not required to be made by reference to "time worked", encompassing within that phrase the length of the period over which time is worked on a particular day and the broken spread of hours.

Accordingly, in my opinion, clause 21 is applicable in respect of payments required to be made under both clause 20(c) (as is conceded) and clause 20(d). If that be correct, it is not in dispute that the proceedings must be dismissed.

Both Counsel referred me to the decision in consequence of which clause 20(d) was added to the Award at a later time than both clause 20(c) and clause 21. However, even if it is permissible to derive what was intended in that way, in fact I have received no assistance from either the decision or the history, although I am satisfied that neither is inconsistent with the conclusion at which I have arrived. That conclusion is also consistent with the heading to clause 20 (see sub-s. 13(1) of the Acts Interpretation Act 1901) but warnings have been given concerning the use to which that provision may be put (see, e.g. Hornsby Building Information Centre Pty Ltd v. Sydney Building Information Centre Limited (1977) 140 C.L.R. 216, 225), and, in any event, I have not found it necessary to rely upon the heading in any way in arriving at my conclusion.

The order of the Court is that applications Q7, Q8 and Q9 of 1983 be dismissed.