Professional Radio & Electronics Institute of Australasia v Qantas Airways Ltd

[1984] FCA 476

NEW SOIJTH MALES DISTRICT	REGISTRY	N.S.W. No. 72 of 1984
INDUSTRIAL OIVI-

BETvJEEN : FROFESSIONAL RADIO AND

ELECTRONICS INSTITUTE 'IF

AUSTRALASIA

AND :

QRNTAS AIR'dAYS LIMITED

Respondent

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E< TEMPORE REASONS FOR JUDG

4 --.,

m n IGE: GP. AY J .

DATE	:	27TH NOVEMBER 1984
By appllcatlon dated 7th June 1984, the AFpllcant se2ks

an lnterpretatlon of the Alrcraft Industry fnantas Alrwavs Llmlted) Award 1980, ( "the Award"). The Application 1s made

pursuant to S . 110 of the Concillatlon and Arbltrati9n A c t 1904,

( '' the Act 'I ) . The AppllCant 1 s an orqanlzatlon of emplqees

registered pursuant to the Act and 1 s bound by the Award. The

Respondent is also bound by the Award. Service has been effezted

I

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on a number of other organizations of employees bound by the

Award, but no party	other than the Appllcant and the	Respondent
has appeared.

The preclse provlslon of whlch interpretatlon 1s sought

is the flrst sentence of cl. 21(a)!v) whlch 1s In the following

terms :

' ' ( * I ) Should any of the public holldays fall on a day

sn whlch a shift worker 15 rnstered off 112 Ehall be entltled to a day off at ordinary tlme thereforeCslc.3, which day off shall be availible to hlm on applicatlon made to the company and by mutual arrangement."

The questlon submitted for determlnatlon 1 s :

Whether upon a proper interpretatlon of the provislons of the Alrcraft Industry (Oantas Airways Limlted) Award 1980 an employee to whom the Award applies who 1s engaged to work his allotted span of hours, 7.00am to 3.00pm or 2.45pm to 10.45pm or 3.30pm to 11.30pm throughout Monday to Friday lncluslve only and whose ordlnary worklng hours do not requlre him to work on any

publlc holldays, Saturdays or Sundays, is entltled to

recelve the beneflt provided by cl. 21(a)(v) of the sald Award in respect of a publlc holiday which falls upon a Saturday or a Sunday.

"he facts have been agreed between the partles.

Approxlmately 140 employees of the Respondent work In various

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classiflcatlons in the Englneerlng Overhaul Centre and Aircraft

Malntenance at Mascot Airport, near Sydney. Thelr terms and

.conditions of employment are governed by the Award. Some of them

are members of the Electrical Trades Unlon of Australla; the

rest are members of the Applicant.

Approximately 43 smployees are day wr,rket-s, whose

grdlnary haurs of work are on Mondays to Frldays. Approxlmately

67 are flve day shlft workers: their r;hlfts may be 7 . 0 0 a m to

3.00~m. 2.45pm to 10.45pm, or 3.30pm t 3 11.30pm. Their ordinary

hours of work are restricted to Mondays to Friday;.

Approxlmately 12 employees work on a seven day rotatlng day and afternom shift, and a further 14 work on a seven day continuous shift, lnvolvlnq 24 hour operation.

The focus of the application has been on the 67 flve day

shift workers. These employees rotate between the three relevant

shlfts. If required to work on a public holiday other than

Christmas Day or Good Frlday, they are paid overtime at the rate of double tlme. Indeed, they are pald at the rate of double time

for all overtlme worked. There has been no change in any

relevant practice wlth respect to the flve day shlft workers since the relevant provislon was flrst introduced by the Aircraft

Industry (Oantas Airways Llmlted) Award 1970, made on 27th August

1971, and operatlve from the	first pay perlod to commence on	or
after 15th August 1970.

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It may be that the question which I am now required to

determine 1s no longer a llve one. The terms of the Award appear agreement, which 1s to be read In con]unctlon wlth the Award, and

to have been affected by a memorandum of agreement, certified

under S. 28 of the Act, and coming Into operatlon from the first

f u l l pay period after 1st December 1983. The Appllcant and the

uverrldes ~ t s terms to the extent of any Inconsistency. Clause 5

of thls agreement speclfically provldes: "A seven day shlft

worker who is rostered off on a prescribed Public Holiday shall be entltled to a day In lieu". Even if this provision does clarify the positlon for the future, however. it seems to me I am not prevented from glving an Interpretation of the Award. Nothing In S . 110 of the Act requires that an award to be Interpreted must stlll be in force. The rlghts of members of the Appllcant to beneflts ln respect of past service depend upon the proper interpretatlon of the Award as it was at the time of that service.

The Applicant contends that a five day shlft worker 1s a

"shift worker" for the purposes of cl. 21(a)(v) of the Award, and

that a Saturday or a Sunday 1s a day on whlch such an employee is

rostered off. The Respondent dlsputes that Saturdays and Sundays

can be reqarded as rostered days off, and contends that thls

expresslon 1 s appropriate only for seven day shlft workers, whose

non-worklng	days may fall	at	any	time,	by	vlrtue	of their
rosters.

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M r . Phllllps, who appeared for the Applicant, referred

to a number of clauses In the Award for the purpose of showlng that flve day shlft workers, along wlth seven day shlft workers, were to be re3arded as shift workers for all purposes of the Award, lncudlng cl. Zl(a)(v). These provlslans werS cl. 7 ( k ) ,

whlch prevents apprentlces belng rsqu~red to work shifts, cl.

15(d), whlch relates to the process of transferring employees

from day work to shift work, cl. 18, whlch dezls wlth hours of work for day workers, cl. 13(3), whlsh provides for payment at the rate of double tlme for all overtime worked by shift workerz,

compared wlth a lesser rate for day workers, cl. 31!a)(v1), whlcli

requlres that employees other than shlft workers be paid at t!he

rate of double time and a half for all tlme worked on publl; holidays, cl. Zl(b), which provides that shift w o r k s r s 5e pald at the rate of double tlme for public holidays, other than Chrlstmas

Day and Good Frlday whlch are to be pald for at double time and a

half, cl. 2Z'b). whlch makes speciflc extra provlsion for annual leave for seven day shlft workers, cl. 3 2 ! k ) , which makes speclfic provision for annual leave loadlng for shlft workers,

and cl. 2 4 , whlch deals wlth shlft work generally and provldes

for shlft loadlnga.

The argument put by Mr. Phlllips was that flve day shift

workers are entitled to be reqarded as shift workers whenever

thls expresslon 1 s used In the Award. They have In practice Seen

treated as entltled to the beneflt of provisions of the Award

deallng wlth shlft workers since before the Award repeated the

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provlsion whlch is now cl. 21(a)(v). Where the Award Intends to single out seven day shlft workers, ~t does so expressly. An

example 1 s cl. 2Z(b), whlch makes speclfic provlslon for extra

annual leave for seven day shift workers. It follows, so lt is said, that the expresslon "shlft worker" I n cl. Zl(a)(v) must include a flve day shlft worker.

There 1 s no doubt that, for the purposes of most provlslons of the Award, flve day shlft workers are dealt wlth a5 shlft workers, along wlth both cateuorles of seven day ihlft workers. Mr. Phllllps' argument, however, focusses attenticn on the wrong phrase In cl. Zl(a)(v). The questlon raised by that

provlsion is not whether flve day shift workers are "ihlft

workers", but whether they are shlft workers who have r3stered

days off, or, more preclsely, whether a publlc holldaqr whlsh falls on a Saturday or Sunday falls "on a day on whlch a shlft worker 1s rostered off", where such a shift worker 1s a flve day shlft worker.

Mr. Phllllps invited me to adopt the ordlnary and

natural meaning of the words used In the Award. Uslng that approach, I flnd It dlfflcult to regard Saturdays and Sundays as rostered days off for a flve day shift worker. The expresslon

"rostered day off" In common use relatlng to shift workers 1 s

much more approprlate to a seven day shlft worker whose

non-worklng days may fall Irregularly, on weekdays or weekends,

dependlng upon the provlslons of the particular roster.

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The ordlnary and natural meanlng of cl. 31(al(v),

therefore, appears to be that a seven day shift worker 1s to recelve a day off in lieu of a publlc hollday whlch falls on a rostered non-worklng day. Mr. Phllllps was unable to dlrect me

to anythmg I n the context of the .Award, or lt5 hlstory, or the

usage of the parties, whlch would	oust what I regard as the
proper constr,uztion of cl. Zl(a)(v).

'Re f a c t that I have reached thls conclusion does not

necessarily mean that I accept a11 the arguments put to me by Mr. Cullen P.C. , who appeared wlth Mr. West for the Respondent. I do not 30 so far 35 to hold that the lnterpretatlon contended for by Yr. Phlllips i: so absurd or unreasonable that it mclst be rejected. I als.2 leave open the questlon whether, In construlng an award, It 1 s permisslble for the Court to look at the decision

of the arbitrator who made the award, to see if that decislon

throws light on the sub~ective lntentlon of the maker of the award. In this case, attentlon was dlrected to a decislor. of Commlssioner Clarkson in 165 C.A.R. 2 9 8 , at pages 303-203. !The present AFpllcant was not a party to the proceedings In w h l s h that declslon was given, and dld not intervene. There 1 s no lndlcatlon in the report that it was even aware of the proceedlngs. The circumstances, therefore, do not constltute a proper zase for determlnlng whether resort may be had to the

arhltrator's expressed declslon in construlng an award.

The extent to which regard may be had to the acts of the

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partles under an award, as an aid In its constructlon, 1 s

llmited. There A S authorlty that It 1 s not proper to look at the

i-onduct of the parties after the making of an award: Seamen's

Unlon of Australla V. Adelalde Steamshlp C,>. Ltd. 11276) 46

F.L.R. 4 4 4 , Re Hvdro-Electrlc Commlsslon (Tas.) C3rpenters and

Palnters Award 1979, !1381) I.A.S.C.R. 549, at page 5E4. If the relevant provlslon of the Award 1 s "re-enacted" after a hlstory of conzlstenk conduct by th? partzes, ~t may be Fermlaslble to have reyard to that conduct as supprting the -1isw that the partles and the arbitrator Intended to contlnue a settled

lnterpretatlon of the provlsion: c aee Merchant "Jervlce G l u l l d of

Australla V. Svhev Steam Collier Owners and Coal SCe~ledz~res

Associatlon (1358) 1 F.L.R. 248 , at pages 751, 1 5 4 and 2557. If

regard 1s had to the pre-hzstory of cl. : l ! a '> (v ) , it does not

dlsclose any settled practlce of allowing five day shift workers an extra day's holiday In lleu of a publlc holiday falling on a Saturday or Sunday. History does not, therefore, detract from

the ordinary and natural meanlng of the clause.

The interpretatlon I give 1 s as follows:

Upon the true interpretatlon of cl. 21(a)(v) of the

Aircraft Industrv (Oarltas Alrwavs Llmlted) Award 1380,

an employee to whom the Award applies whose normal

worklng hours are worked in shlfts on five days per

week, excluding Saturdays and Sundays, 1 s not entltled to an extra day off An the event that a publlc hollday

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falls on a Saturday or Sunday.

I certlfy that this and the 8 preceding

pages are a true copy of the Reasons for

Judgment of the Honourable Mr. Justlce Gray.

Associate