Shop, Distributive and Allied Employees Association v Coles Group Supply Chain Pty Ltd T/A Coles Edinburgh Parks Distribution Centre
[2015] FWC 8975
•31 DECEMBER 2015
| [2015] FWC 8975 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Shop, Distributive and Allied Employees Association
v
Coles Group Supply Chain Pty Ltd T/A Coles Edinburgh Parks Distribution Centre
(C2015/8038)
Storage services | |
COMMISSIONER HAMPTON | ADELAIDE, 31 DECEMBER 2015 |
Dispute under the terms of an Enterprise Agreement – agreed arbitration in accordance with provisions – public holidays – substitute day provision – whether “actual day” refers to original or substituted day – principles of construction considered – operation of Enterprise Agreement in context of NES and public holidays legislation – ordinary and natural meaning of provision applied – determination made – reasons for decision provided.
1. Background
[1] This matter was subject to a hearing on 23 December 2015. The matter concerns the arrangements that were to apply on Saturday 26 December and Monday 28 December 2015; being only a few days after the hearing. In these circumstances, it was highly desirable, if not critical, that the matter be determined without delay and that the parties be advised.
[2] On 24 December 2015, I issued a decision 1 in this matter that, in effect, determined the dispute between the parties. In so doing, I indicated that comprehensive written reasons for the Decision would be published shortly, which I now do.
2. The context for the dispute
[3] The Shop, Distributive and Allied Employees Association (SDA) has made an application under s.739 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure. The dispute principally concerns the proper application of the public holiday provisions of the Coles Group Supply Chain Pty Ltd Edinburgh Parks Distribution Centre Enterprise Agreement 20152(the Enterprise Agreement).
[4] The Enterprise Agreement applies to the Distribution Centre operated by Coles Group Supply Chain Pty Ltd (Coles) at Edinburgh Parks near Adelaide. The SDA is covered by the Enterprise Agreement and represents employees who are subject to the issue in dispute.
[5] The application relies on the dispute resolution procedure set out in clause 24 of the Enterprise Agreement. Clause 24 is set out as follows:
“24 DISPUTE SETTLEMENT PROCEDURE
24.1 Defined Terms
In this clause:
“Party” means the Company or a team member or team members involved in the dispute and “Parties” means both or all of them;
“Dispute” means any matter concerning the application of the terms of
Agreement (not merely whether the Agreement applies at all) or matters arising from the Agreement or relating to the National Employment Standards (other than disputes as to whether the Company had reasonable business grounds under subsection 65(5) or 76(4) of the Fair Work Act 2009) but does not include a matter or claim that:
a) Would constitute an additional claim pursuant to clause 7 of this
Agreement, or;
b) relates to matters in respect of which a team member (or former team member) has an immediate right to make a legal claim pursuant to legislation pertaining to termination of employment, equal opportunity or unlawful discrimination complaints.
24.2 Dispute Resolution Procedure
24.2.1 The following procedure for the avoidance or resolution of disputes between the Company and team members covered by this Agreement shall apply:
24.2.2 In the first instance, the dispute shall, wherever possible, be discussed by the affected team member and their team manager with the joint intent of achieving a satisfactory outcome (if the dispute relates to the team manager, the team member can approach the Shift Manager in the first instance).
24.2.3 If the dispute remains unresolved within ten (10) calendar days following the steps taken in clause 24.2.2, the affected team member must put the dispute in writing to their team manager with the joint intent of achieving a satisfactory outcome. The team member may appoint another person to assist them including a team member representative.
24.2.4 If the dispute remains unresolved within ten (10) calendar days following the steps taken in clause 24.2.3, the team member must take the dispute in writing to the Shift Manager. The team member may appoint another person to assist them including a team member representative.
24.2.5 Should the dispute still remain unresolved within ten (10) calendar days following the steps taken in clause 24.2.4, a team member must take the dispute in writing to the Operations Manager. The team member and/or their representative shall meet as required with the Operations Manager.
24.2.6 Should the dispute still remain unresolved within ten (10) calendar days following the steps taken in clause 24.2.5, the team member must take the dispute in writing to the DC Manager. The team member and/or their representative shall meet as required with the DC Manager.
24.2.7 Should the dispute still remain unresolved within ten (10) calendar days following the steps taken in clause 24.2.6, the team member has recourse to FWC.
24.2.8 Until the dispute is resolved, but subject to clause 24.2.11, all work shall continue in accordance with the practices existing prior to the matter in dispute arising, or other agreed arrangements. No Party shall be the work in accordance with this clause.
24.2.9 Clause 24.2.8 is subject to the Company's responsibility to provide a safe and healthy working environment.
24.2.10 If after the steps in clause 24.2.1 to 24.2.8 have been followed and, subject to this clause, the dispute (or part of it) is still unresolved after having followed all of the above steps, either party may refer the dispute to Fair Work Australia (“FWC”) for resolution through conciliation and, where necessary, by arbitration. An arbitrated decision of FWC is subject to the appeal rights to the Full Bench of FWC referred to in sub clause 24.9.
24.2.11 A dispute may also be referred to FWC for conciliation and arbitration in accordance with clause 24.2.10 by agreement between the Parties even if the relevant dispute (or part of it) has not progressed through the steps outlined in clauses 24.2.1 to 24.2.8.
24.3 Conduct of the Parties
24.3.1 In order to facilitate this dispute resolution procedure:
a) the Party with the dispute must notify the other Party at the earliest opportunity of the problem in writing;
b) throughout all stages of the procedure all relevant facts must be clearly identified and recorded; and
c) sensible time limits must be allowed for completion of the various stages of discussion. However, the Parties must co-operate to ensure that the dispute resolution procedure is carried out as quickly as possible.
The Parties will:
d) if FWC makes an arbitrated decision and an appeal is not lodged under clause 24.9.1 abide by and give full effect to the arbitration decision; and
e) if an appeal is lodged under clause 24.9.1, abide by and give full effect to the decision of the Full Bench of FWC in determining the appeal.
24.4 Conciliation
24.4.1 Where a dispute is referred for conciliation, the parties can elect to be represented by a representative of their choice. FWC shall do everything that appears to it to be right and proper to assist the Parties to agree on terms for the settlement of the dispute. In doing so, FWC may make suggestions and conduct an initial assessment of the dispute.
24.4.2 The action that may be taken by FWC under this clause 24.4.1 includes, without limitation:
a) arranging conferences of the Parties presided over by FWC;
b) meeting or otherwise discussing the dispute with one or more of the Parties in order to conciliate dispute;
c) arranging for the Parties to confer among themselves at conferences (with or without the presence of FWC);
d) making an interim recommendation or assessment in relation to all or any matters in dispute;
e) hearing submissions from the Parties as to the facts or issues pertaining to the dispute;
f) conducting the conciliation at any place;
g) adjourning the conciliation to any time and place;
h) correcting, amending, or waiving any error, defect or irregularity, whether in substance or form;
i) allowing the amendment, on such terms as it considers appropriate, of any application or other document relating to any proceeding; and
j) generally giving all direction and do all such things as are necessary or expedient for the speedy and just conciliation of the matter in dispute.
24.5 Completion of conciliation process
24.5.1 A conciliation proceeding before FWC shall be regarded as completed when:
a) the Parties have reached agreement for the settlement of the whole of the dispute; or
b) whether or not the Parties have reached agreement for the settlement of part of the dispute:
c) FWC is satisfied that there is no likelihood that, within a reasonable period, conciliation, or further conciliation, will result in agreement, or further agreement, by the Parties on terms for the settlement of the dispute or any matter in dispute; or
d) the Parties to the dispute have informed FWC that there is no likelihood of agreement, or further agreement, on matters in dispute and FWC does not have a substantial reason to refuse to regard the conciliation proceeding as completed.
24.6 Arbitration
24.6.1 When a conciliation proceeding before FWC in relation to a dispute is completed but the dispute has not been fully settled, FWC shall by agreement between the Parties proceed to deal with the dispute, or the matters remaining in dispute, by arbitration.
24.6.2 In arbitration proceedings under this Agreement, the parties can elect to be represented by a representative of their choice.
24.6.3 In arbitration proceedings under this Agreement, unless all parties agree, evidence shall not be given, or statements made, that would disclose anything said or done in a conciliation proceeding under this Agreement (whether before FWC or at a conference arranged by FWC) in relation to matters in dispute that remain unsettled.
24.7 At Arbitration
24.7.1 In dealing with a dispute, FWC shall, where it appears practicable and appropriate, encourage the Parties to agree on procedures in respect of those arbitration proceedings by discussion and agreement.
24.7.2 If, in accordance with clause 24.7.1, the Parties are unable to come to an agreement on procedures in respect of the arbitration proceedings, FWC will be entitled to determine its own procedures for the arbitration proceedings.
24.8 Arbitration Powers of FWC
24.8.1 The powers of FWC in arbitrating a dispute shall include the following:
a) taking evidence on oath or affirmation;
b) making a decision in relation to all or any matters in dispute;
c) hearing and determining the matter in dispute;
d) giving a direction, in the course of, or for the purpose of, the hearing or determination of the matter in dispute;
e) referring any matter to an expert and accepting the expert’s report as evidence;
f) directing, in so far as it has power to do so, that Parties be joined or struck out;
g) summoning before it persons in respect of whom the Parties to this Agreement can reasonably procure attendance, the Parties to the Agreement, the witnesses or any other person whose presence FWC considers would help in the hearing or determination of the matter in dispute and compel the production before it of documents and other things for the hearing and determination of the matter in dispute;
h) making an interim finding in relation to all or any matters in dispute;
i) hearing submissions from the Parties as to the facts or issues pertaining to the dispute;
j) conducting the arbitration at any place;
k) adjourning the arbitration to any time and place;
l) correcting, amending, or waiving any error, defect or irregularity, whether in substance or form;
m) allowing the amendment, on such terms as it considers appropriate, of any application or other document relating to any proceeding; and
n) generally giving all direction and do all such things as are necessary or expedient for the speedy and just hearing and determination of the matter in dispute.
24.8.2 Any decision of FWC dealing with a dispute (or any matter that remained in dispute) by arbitration shall in writing, dated and given to the parties on the day that it is delivered.
24.9 Appeals to the Full Bench of FWC
24.9.1 Where the dispute (or any matter that remained in dispute) has been arbitrated and a decision given under clause 24.8.2, either Party may appeal the decision to a Full Bench of FWC, with the leave of the Full Bench, within 21 days of the date of the arbitrated decision. A Full Bench of FWC will have all of the powers as outlined in clause 24.8.1 and shall have the power to confirm, quash, dismiss or vary the decision of FWC.
24.9.2 The Full Bench of FWC may grant leave to appeal under clause 24.9.1 if, in its opinion, the matter is of such importance that leave should be granted.
24.9.3 An appeal under clause 24.9.1 may be instituted by either Party.
24.9.4 For the purposes of an appeal under clause 24.9.1, a full bench of FWC may:
a) admit further evidence; and
b) direct a member of the Full Bench to provide a report in relation to a specified matter.
24.9.5 The appeal process set out in this clause 24.9 is intended to be comprehensive of all rights of appeal.
24.9.6 The Parties agree to exclude the operation of any legislation (other than the Fair Work Act) applicable to arbitration agreements in relation to rights of appeal. For the avoidance of doubt, the Parties wish to exclude rights of appeal to any court and rights to refer a question of law to a court pursuant to such legislation.
24.10 FWC generally
Guidelines to FWC in the exercise of its powers, functions and discretions
In the exercise of its powers, functions and discretions in this Agreement, FWC must ensure that:
a) it has regard to the objects of this Agreement;
b) the matters are set down for hearing as soon as possible;
c) the rules of natural justice and procedural fairness are applied and that relevant legislation is complied with;
d) at the Company, the relevant award and the relevant workplace Agreement; and
e) the hearing of the matter be concluded as soon as reasonably possible.”
[6] I note that the Enterprise Agreement was approved with undertakings and one of the undertakings relates to clause 24. The undertaking was as follows:
“Clause 24.2.2 shall be read as:
In the first instance, the dispute shall, wherever possible, be discussed by the affected team member and their team manager with the joint intent of achieving a satisfactory outcome. The team member may appoint another person to assist them at every stage of this procedure including a team member representative. (if the dispute relates to the team manager, the team member can approach the Shift Manager in the first instance).”
[7] The dispute was the subject of conciliation before the Commission on 14 December 2015. Ultimately, the matter was not resolved and the parties have now expressly agreed that the Commission should determine the dispute by arbitration in accordance with clause 24.6 of the Enterprise Agreement.
[8] The parties have followed the process required by clause 24 of the Enterprise Agreement and I am satisfied that the Commission is empowered 3 to determine this dispute as agreed by the parties. I have conducted the arbitration in accordance with the terms of clause 24.
3. What the dispute is about
[9] The dispute essentially concerns the application of clause 16 Public Holidays of the Enterprise Agreement, and in particular, subclause 16.5 Substitute Days.
[10] The parties have agreed the following question to be determined by the Commission:
“In the context of Proclamation Day 2015, do the words “actual public holiday” in cl.16.5.4 of the Edinburgh Parks DC Agreement (the Agreement) mean Saturday 26 December 2015 or the day to be “observed as the public holiday” provided for in cl.16.5.1 of the Agreement, namely Monday 28 December 2015?
[11] The SDA contended that the relevant words refer to Saturday 26 December 2015, whereas Coles contended that the proper application of the provision meant that Monday 28 December 2015 is the actual public holiday for present purposes.
[12] Clause 16 of the Enterprise Agreement provides as follows:
“16 PUBLIC HOLIDAYS
16.1 Entitlement to Public Holiday
Full-time and part-time team members shall be entitled to the following public holidays:
16.1.1 New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Adelaide Cup Day, Queen’s Birthday, Labour Day, Christmas Day, and Proclamation Day; and any other day, or part-day declared or prescribed under a law of the State to be observed in the State or a region of the State as a public holiday, other than a day or part-day that is excluded by regulations from counting as a public holiday.
16.2 Work on Public Holidays
16.2.1 In the event that the Company requires the DC to operate on a public holiday, the Company shall:
i) Call for volunteers to work at least two (2) weeks prior to the public holiday;
ii) Should the Company have sufficient volunteers, they shall select the team members to work from the pool of team members that have volunteered;
iii) Should the Company have insufficient volunteers, they may nominate team members to work on the public holiday;
iv) A team member so nominated may refuse to work on the public holiday provided they have reasonable grounds to do so as set out in clause 16.3 below.
16.2.2 A full-time or part-time team member who works on a public holiday shall be, by agreement between the Company and the employee, compensated by either:
i) The appropriate ordinary time rate of pay (exclusive of shift loading), plus an additional loading of 150%; or
ii) Their appropriate ordinary time rate of pay (exclusive of shift loading), plus an additional loading of 50% and another day being allowed off to the team member within twenty eight (28) days of the holiday; or
iii) Their appropriate ordinary time rate of pay (exclusive of shift loading), plus an additional loading of 50% and the addition of one day to the team member’s annual leave, provided that this additional day will be taken before any other annual leave and the leave loading prescribed by clause 15.4.1 (e) will not be payable for this day.
Provided that, where no agreement exists between the Company and the team member, compensation shall be in the form of clause 16.2.2 (iii).
16.2.3 A casual team member who works on a public holiday is entitled to the appropriate ordinary time rate of pay (exclusive of casual and shift loading) plus an additional loading of 150%.
16.2.4 The maximum rate payable for all team members who work on a public holiday will be 250% of the appropriate ordinary time rate of pay (exclusive of casual and shift loading).
16.2.5 The minimum engagement for work on a public holiday is 4 hours.
16.3 Reasonable Grounds to Refuse Work on a Public Holiday
A team member may refuse to work on a public holiday if the team member has reasonable grounds for doing so.
Reasonable grounds will be determined having regard to:
iv) the nature of work performed by the team member and their type of employment (full-time, part-time, casual or shift work);
v) the operational requirements of the Company;
vi) the team member's reason for the refusal;
vii) the team member’s personal circumstances (including family responsibilities);
viii) the amount of notice in advance of the public holiday given by the Company when making the request;
ix) the amount of notice in advance of the public holiday given by the team member in refusing the request;
x) whether an emergency or any other unforeseen circumstances are involved.
16.4 Public Holidays on Non-Working Days
16.4.1 When a public holiday falls on a day a full-time team member does not usually work, and the team member does not work, the team member shall be, by agreement between the Company and the team member, compensated by either:
i) payment of an additional days wages; or
ii) another day being allowed off to the team member within twenty eight (28) days of the holiday; or
iii) the addition of one day to the team member’s annual leave, provided that this additional day will be taken before any other annual leave and the leave loading prescribed by clause 15.4.1 (e) will not be payable for this day.
Provided that, where no agreement exists between the Company and the team member, compensation shall be by the additional day of annual leave in clause 16.4.1 iii).
16.4.2 When a public holiday falls on a day a part-time team member does not usually work, the team member will have the opportunity to nominate one of the options in clause 16.4.1 on a pro-rata basis.
16.4.3 Where an additional public holiday for a public holiday specified in clause 16.1.1 or a part-day public holiday is legislated or declared, the non-working day provisions in clause 16.4 shall not apply to the additional public holiday or any part-day public holiday.
16.5 Substitute Days
16.5.1 When New Year’s Day, Australia Day, Christmas Day or Proclamation Day fall on a Saturday, the following Monday shall be observed as the public holiday.
16.5.2 When New Year’s Day, Australia Day or Christmas Day fall on a Sunday, the following Monday shall be observed as the public holiday.
16.5.3 When Proclamation Day falls on a Sunday, the following Tuesday shall be observed as the public holiday.
16.5.4 When the above substitutions occur, work on the actual public holiday shall be voluntary and payment for work on such days shall be in line with clause 16.2.2, 16.2.3 and 16.2.4.
16.6 Cultural Days
Where leave is required for a team member to observe a cultural or religious day, all reasonable efforts will be made by the Company to accommodate the team member’s wishes.
16.7 Night Shift
When a regular rostered Sunday night shift works into a Monday gazetted public holiday, the public holiday rate will be paid from 00.00 (midnight).”
[13] The dispute resolution provisions set out earlier require, at clause 24.10(a), that in exercising its powers the Commission is to have regard to the objects of the Enterprise Agreement. The “objects” are set out in clause 5 in the following terms:
“5 OBJECTIVES OF THE AGREEMENT
a) The parties to this Agreement acknowledge that the objective of this Agreement is to work collectively to improve the working environment and to increase the productivity, flexible operation, efficiency and prosperity of the Company.
b) The terms of this Agreement are aimed at providing, in a competitive market place, a Supply Chain that aligns with the vision and goals of the Company. The Company and the Union recognise the contribution of all parties to this Agreement in setting a framework for increased productivity and profitability, and to the long-term security for team members.
c) The parties further agree that in order to improve its competitive position, Coles Group Supply Chain requires its Supply Chain to operate on a twenty- four hour, seven day per week basis around the needs of stores, suppliers and customers.
d) The provisions of this Agreement are aimed at providing the basis for continued flexibility and security of employment through:
i) All team members, including managers at all levels and elected Union representatives, working co-operatively as a team.
ii) Continuous monitoring of performance, behaviour and results to ensure that the Company continuously improves productivity with the aim of meeting and/or exceeding world best practice.
iii) Ensuring that all team members are committed to quality of product, personal and workplace safety and meeting or exceeding customer needs.
iv) Ensuring all team members benefit from the improved competitiveness and prosperity of Coles Group Supply Chain.
e) To assist in achieving the desired objectives, the Company will carefully select the best people available to work in its operation and to create a safe work environment that fosters teamwork and co-operation amongst team members at all levels.
f) Team members will perform the full range of tasks, required by the Company limited only by their skills, knowledge, training, capability, and safety considerations.
g) The parties further agree that the Company has the ability to maximise the efficiency of its operations through flexibility in the assignment of appropriately skilled team members.
h) The Company will endeavour to rotate team members across a range of tasks throughout the Distribution Centre and endeavour to train team members to enable them to maximise the duties that they can perform. Training and rotation will be carried out as far as reasonably practicable taking into account the selection criteria as agreed between the Company and the SDA.”
[14] In approaching this matter it is also important to have regard to the operation of the National Employment Standards (NES) in Part 2-2 of the FW Act, and in particular, sections 114 and 115 as follows:
“114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b) the employee’s personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
(f) the amount of notice in advance of the public holiday given by the employer when making the request;
(g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;
(h) any other relevant matter.
115 Meaning of public holiday
The public holidays
(1) The following are public holidays:
(a) each of these days:
(i) 1 January (New Year’s Day);
(ii) 26 January (Australia Day);
(iii) Good Friday;
(iv) Easter Monday;
(v) 25 April (Anzac Day);
(vi) the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);
(vii) 25 December (Christmas Day);
(viii) 26 December (Boxing Day);
(b) any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday.
Substituted public holidays under State or Territory laws
(2) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part-day is substituted for a day or part-day that would otherwise be a public holiday because of subsection (1), then the substituted day or part-day is the public holiday.
Substituted public holidays under modern awards and enterprise agreements
(3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).
Substituted public holidays for award/agreement free employees
(4) An employer and an award/agreement free employee may agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).
Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)).”
[15] The relationship between the NES and the Enterprise Agreement is set, in part, by s.55 of the FW Act in the following terms:
“55 Interaction between the National Employment Standards and a modern award or enterprise agreement
National Employment Standards must not be excluded
(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.
Terms expressly permitted by Part 2-2 or regulations may be included
(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:
(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or
(b) by regulations made for the purposes of section 127.
Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.
(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).
Note: See also the note to section 63 (which deals with the effect of averaging arrangements).
Ancillary and supplementary terms may be included
(4) A modern award or enterprise agreement may also include the following kinds of terms:
(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;
(b) terms that supplement the National Employment Standards;
but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.
Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:
(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or
(b) that specify when payment under section 90 for paid annual leave must be made.
Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:
(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or
(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).
Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.
Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards
(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).
Effect of terms that give an employee the same entitlement as under the National Employment Standards
(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:
(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and
(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.
Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.
Terms permitted by subsection (4) or (5) do not contravene subsection (1)
(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).
Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).”
[16] Given the location of the workplace in South Australia, the relevant State law referred to in s.115 of the FW Act is the Holidays Act 1910 (SA) (the Holidays Act). Section 3 of the Holidays Act provides as follows:
“3—Days fixed as holidays
(1) The days mentioned in Schedule 2 will be public holidays and bank holidays but—
(a) when a day mentioned in Part 2 of Schedule 2 falls on a Saturday, the following Monday will be a public holiday instead of that day and that day and the following Monday will be bank holidays; and
(b) when a day mentioned in Part 2 of Schedule 2 falls on a Sunday, that day and the following Monday will be public holidays and bank holidays.
(2) 26 December will be a public holiday and a bank holiday but—
(a) when 26 December falls on a Saturday, the following Monday will be a public holiday instead of that day and that day and the following Monday will be bank holidays; and
(b) when 26 December falls on a Sunday or a Monday, that day and the following Tuesday will be public holidays.”
[17] Proclamation day is a defined public holiday in South Australia, and subject to the operation of s.3(2) of the Holidays Act, is nominated to fall on 26 December 2015.
[18] It is common ground between the parties that the concept of a “bank holiday” as referred to in the Holidays Act is not relevant to this matter.
4. The detailed positions of the parties
4.1 Shop, Distributive and Allied Employees Association
[19] The SDA contended that the proper application of clause 16.5 means that Saturday 26 December 2015 is the actual public holiday for present purposes. In substance, the position of the SDA is built upon the following propositions:
● Subclause 16.1 of the Agreement defines an entitlement to employees to named Public Holidays, including Proclamation Day;
● Subclause 16.5. provides that when Proclamation Day falls on a Saturday, the following Monday shall be observed as the public holiday;
● That in the context of Proclamation Day 2015, the words “actual public holiday” in clause 16.5.4 of the Enterprise Agreement means Saturday 26 January 2015, not the day to be “observed as the public holiday” provided for in clause 16.5.1 of the Enterprise Agreement, namely Monday 28 December 2015; and
● That by operation of clause 16, work performed on Proclamation Day (26 December 2015) shall be voluntary and shall be paid in accordance with sub-clauses 16.2.2, 16.2.3 and 16.2.4.
[20] In terms of the FW Act and the NES, the SDA relied upon the following:
● Section 114 of the FW Act provides that employees are entitled to be absent on public holidays;
● Section 115 provides the meaning of “public holiday” and provides by virtue of s.115(1)(viii) that 26 December (Boxing Day) is a public holiday;
● In addition to the eight public holidays provided by s.115(1), s.115(1)(b) provides for further Public Holidays being “any other day, or part day, declared or prescribed by or under a law of a State or Territory …”;
● Subsection 115(2) provides that if a law of a State substitutes a day that would otherwise be a Public Holiday (in this case Boxing Day) then the substituted day or part day is the Public Holiday; and
● Subsection 115(3) provides that: “A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part day for a day or part day that would otherwise be a public holiday because of subsection (1) or (2).”
[21] In terms of the relevant modern award that covers the employees, the SDA contended that the Storage Services and Wholesale Award 2010 provides, by virtue of clause 29, as follows:
“29. Public Holidays
29.1 Public holidays are provided for in the NES. These provisions are in addition to those provided for in the NES.
29.2 Substitution of certain public holidays by agreement at the enterprise:
(a) An employer and their employees may agree to substitute another day for any prescribed in the NES. For this purpose, the consent of the majority of affected employees will constitute agreement.
(b) An agreement pursuant to clause 29.2 must be recorded in writing and be available to every affected employee.
29.3 Rostered day off falling on a public holiday. …”
[22] The SDA contended that pursuant to the power in s.115(3) of the FW Act and consistent with clause 29 of the relevant modern award, the employer and employees in this case have agreed to substitute another day. Subject to (the) agreement to change, by operation of the NES (s.115(2) of the FW Act) and by reference to s.3 of the Holidays Act in respect of 26 December 2015, the following Monday is now the Public Holiday. 4
[23] The SDA submitted that there is a distinction, or binary system, between the actual day and the substituted day in that subclause 16.5.1 draws a distinction between the actual days i.e. New Year’s Day, Australia Day, Christmas Day or Proclamation Day and another day, being the following Monday which shall be “observed” as the public holiday.5 This distinction continues in subclause 16.5.4 with a distinction between the “substitutions” and, on the other hand “the actual public holiday”.
[24] The SDA contended that if there was no distinction to be drawn between the substituted day and the actual public holiday, subclauses 16.5.1, 16.5.2 and 16.5.3 would be unnecessary. That is, providing for a substituted day would be unnecessary because of the operation of the Holidays Act and s.115(2). Furthermore, the parties, by clause 16.5, have made alternative arrangements in respect of public holidays and the substitution thereof, which alternative arrangements the Commission has found, in the context of the Enterprise Agreement, to satisfy the Better Off Overall Test. 6 The alternative arrangements made by clause 16.5 of the agreement depend upon a clear distinction being drawn between the public holidays referred to in subclause 16.5.1 and the observation of the public holidays in circumstances where they fall on a Saturday or Sunday.7
[25] The observance of the Public Holiday on a different day does not change the definition or description of the public holidays first mentioned in subclause 16.1 and replicated, relevantly, by subclause 16.5.1. Public holidays and the manner in which they are defined or described are not ambulatory within the meaning of this clause. They remain public holidays albeit in this circumstance the following Monday is observed as such.
[26] Furthermore, the “actual public holiday”, referring to the non-ambulatory description and definition of public holidays remains the same but with the provision of a substituted day on which that public holiday is observed. In that regard, the SDA contended that the “observation” of a day as a public holiday does not go so high as to create a new public holiday. The observance of a day as a public holiday refers only to the properties of such observance.
[27] Absent the provisions of subclause 16.5, as contended above, the effect of the Holidays Act s.3 and s.115(2) of the Act supports the employer’s proposition that the actual holiday for the Proclamation Day Holiday in 2015 is the Monday following Proclamation Day. However, as the parties have made an agreement, which has been held to satisfy the BOOT, it was argued that the specific provision of the Agreement overrides any express or contradictory provisions of the NES (and by that the Holidays Act).
[28] The SDA contended that it is the words of the Enterprise Agreement to which regard must be had in determining this dispute. The clause is plain in its meaning and has no ambiguity. That is, the Enterprise Agreement makes a clear distinction between public holidays and substitute days for those public holidays. That distinction arises from:
● The heading of clause 16.5 “Substitute Days”;
● The definition of public holidays and description of public holidays in subclause 16.1 and repeated, relevantly, in subclause 16.5.1 (which names specific days as public holidays);
● The use of the word “observed” as a public holiday in contradistinction to the express words used for example, in s.3(2) of the Holidays Act 1910 (eg “will be a public holiday instead of that day”), in s.115(2) of the Act where a substituted day “is the public holiday”; and
● The textual distinction between substitutions referred to in subclause 16.5.4 and the actual public holiday also referred to in subclause 16.5.4.
[29] The SDA further contended that the parties have conducted themselves, if not completely in accordance with the interpretation that it proposes, certainly consistently in the sense that work on the “actual public holiday” has attracted a penalty and work on the substituted day has been treated as a public holiday.
[30] According to the SDA, the surrounding circumstances record a history of conduct where benefits akin to public holidays have been provided for work performed on the “actual public holiday” (other than for the absence of pay if an employee does not work on that day) and for the application of the public holiday entitlements in full to the substituted day. Furthermore, not only is the Enterprise Agreement plain in its meaning but is consistent with the surrounding circumstances relating to the making of the Agreement. So much can be supported by the evidence of the prior negotiations including by the log of claims submitted by Coles in the negotiation of this agreement where it claimed – “Public holidays substitute days (clause 16.5): remove double counting”. 8 That claim was not agreed to by the SDA and was ultimately not pursued by the company.
[31] The SDA also contended that the parties could have clearly stated the result sought by Coles within clause 15.5 but did not do so. In that regard it contrasted the language of other enterprise agreements such as the Coles Store Team Enterprise Agreement 2014-2017. 9
[32] The SDA relied upon the evidence of Mr Blairs, a lawyer engaged by the union.
4.2 Coles Group Supply Chain Pty Ltd
[33] Coles contended that the plain meaning of clause 16.1.1 when read with clause 16.5 is that, when Proclamation Day (26 December) falls on a Saturday (as it does in 2015), the following Monday (28 December) is the public holiday and 26 December is not a public holiday. This is clear from two things:
● Clause 16.5 does not say that the Monday is to be a public holiday, it uses the singular expression the public holiday; and
● Clause 16.5 is headed ‘Substitute Days’ and clause 16.5.4 refers to ‘when the above substitutions occur’, which evidences a clear intention to substitute one day for the other and not to preserve the public holiday on the Saturday and create an additional public holiday on the Monday.
[34] Coles contended that the concept of ‘substitution’ must be understood in the broader context of legislative regulation of public holidays. The distinction between a ‘substituted’ public holiday and an ‘additional’ public holiday to deal with the situation when an event warranting a public holiday falls on a weekend, is well-recognised. If substitution occurs the substituted day is the public holiday and the date of the event that is celebrated is not a public holiday.10 The alternative approach is to provide a public holiday for the date of the event that is to be celebrated, notwithstanding that it is on a weekend, and provide for a second public holiday on the Monday so that there are two public holidays for the one event. This it argued was not objectively intended.
[35] As Commissioner Whelan noted in SDA v Coles Myer Pty Ltd [Print R2876], “the State legislature does not attempt to regulate, for example, what day Christmas Day shall be but to regulate what day shall be observed as a public holiday in celebration of the event”. The practice of ‘substitution’ whereby a State legislature will require the observance of a public holiday on a Monday or Tuesday when the event in question falls on a weekend is more apposite in this case.
[36] Coles further contended that the distinction between the ‘substitution’ approach and the ‘additional public holiday’ approach is well recognised in the cases. In the case at hand the ‘law makers’ are the parties to the agreement. While they had no say in Proclamation Day being 26 December, it was their agreement which created the public holiday.
[37] In most years the public holiday is on the day of the event being celebrated that is 26 December. But when the date is a Saturday or Sunday the parties have agreed via clause16.5 that the public holiday will be observed on either a Monday or Tuesday. The effect of clause 16.5 is that the public holiday for Proclamation Day this year is Monday 28 December. There is no public holiday on 26 December.
[38] Furthermore, Coles submitted that when read in this context the SDA’s interpretation of clause 16.5.4 is not sustainable for the following reasons:
● Clause 16.5 is concerned with substitution not additional days – the clause is headed ‘Substitute Days’ – the mechanism in 16.5.1 is to determine that ‘the following Monday is to be observed as the public holiday’ – clause 16.5.4 is prefaced by the words ‘when the above substitutions occur’;
● The plain ordinary meaning of the words ‘actual public holiday’ cannot support the SDA’s interpretation. This is because the actual public holiday as determined by clause 16.5 is Monday 28 December – as far as the Agreement is concerned Saturday 26 December is not a public holiday – thus for the words ‘actual public holiday’ to apply to 26 December they would have to be read to mean ‘the day that is not a public holiday, but is the event associated with the holiday’ – that is the opposite of the plain meaning of the words; and
● On an objective assessment there is nothing in clause 16 which would indicate an intention to confer a duplicate entitlement to public holidays for certain days – given the accepted distinction between substitution and additional days the only objective conclusion open is that the parties’ mutual intention was to provide for one public holiday for each of the events, including Proclamation Day and clause 16.5.4 should be read accordingly. On its plain reading clause 16.5.4 does no more than make it clear that when substitution occurs the actual public holiday, namely the substitute day (in this case Monday 28 December), is to be subject to the same rules as any other public holiday – that is, work on the day is voluntary and when worked the usual penalties are to apply.
[39] Coles contended that in identifying the objective mutual intention of the parties in agreeing to clause 16.5.4 the Commission must have regard to the objectives of the parties in making the agreement as a whole so that where the meaning of a provision is disputed an interpretation that is more likely to meet the objectives of the agreement as a whole ought be preferred, all other things being equal.
[40] Under clause 24.10(a) of the Agreement the Commission is required to have regard to the objects of the Agreement in exercising its powers, functions and discretions, including in arbitrating disputes. The objects of the Agreement are set out in clause 5. They include:
● to increase productivity, flexible operation and prosperity of the Company;
● increased productivity and profitability;
● recognition that Coles Supply Chain is required to operate twenty-four hours per day 7 days per week around the needs of stores, suppliers and customers; and
● maximise the efficiency of its operations through flexibility in the assignment of appropriately skilled team members.
[41] In this case, there is a critical need for Coles to maximise its output from the Edinburgh Parks Distribution Centre over the Christmas/New Year period and it runs counter to the stated objectives of the agreement. That is, for the parties to have agreed to adding to the inflexibility and cost of operations by duplicating the public holiday provisions for each of the key public holidays (Christmas, Proclamation Day and New Years Day) when they fall on a weekend would not be consistent with clause 5 of the Enterprise Agreement.
[42] Coles submitted that the source of the entitlement to public holidays is clause 16.1 of the Enterprise Agreement itself and not the Holidays Act. That is, clause 16.5 relies on s.115(3) of the FW Act to, in effect, replicate the substitution of Proclamation Day under the Holidays Act. In any event the SDA position misrepresents the nature of the distinction between the date of Proclamation Day Saturday 26 December and the public holiday on Monday 28 December. It is not a distinction between two public holidays as the SDA asserts, but rather a distinction between the anniversary of an historic event on 26 December and a public holiday on 28 December in recognition of that event granted by subclauses 16.1 and 16.5 of the Agreement.
[43] In addition, Coles submitted that the SDA incorrectly assumes that the event being celebrated (Proclamation Day) is inherently a public holiday. What the Agreement, the NES and the Holidays Act all say is that the public holiday for Proclamation Day is 26 December except where that day falls on a weekend in which case the public holiday is the following Monday or Tuesday. There is nothing in any of those instruments, and importantly in the Enterprise Agreement, which ‘preserves’ 26 December as a public holiday when substitution occurs. Clause 16.5.4 does not have this effect even on the SDA’s interpretation. The SDA says the terms of clause 16.5.4 apply on 26 December because it is the ‘actual public holiday’, but the SDA does not assert that clause 16.5.4 operates as a deeming provision to make 28 December a public holiday (it would be untenable to do so).
[44] Coles further contended that clause 16.5.4 is intended to make it clear that the same conditions apply on a substituted day as apply to a public holiday where there is no substitution. This is a reasonable interpretation. Whether or not it is strictly necessary is not to the point. It is not uncommon for agreements (and other legal documents) to reiterate key terms and conditions when on a strict reading of the document it is unnecessary to do so. The phrase, ‘for avoidance of doubt’ is frequently employed for this purpose.
[45] Coles relied upon the evidence of Ms Jayme Lake, Human Resource Manager for the Distribution Centre concerned.
5. Consideration
5.1 The approach to the interpretation of enterprise agreements
[46] In general terms, there was no dispute about the approach to be adopted.
[47] A Full Bench of the Commission has outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. In The Australasian Meat Industry Employees Union v Golden Cockeral Pty Limited11 the Full Bench summarised the position in the following terms:
“[41] From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act. 12
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
[48] I have applied this approach in determining this dispute.
[49] In Geo A Bond & Co Ltd (In Liq) v McKenzie,13 Street J said:
“...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.”
[50] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:
“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.”14
[51] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd15 in the following terms:
“6. No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.
… …
8. That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. “Sometimes”, McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation “can be discerned only by reference to the history of the legislation and the state of the law when it was enacted”. Awards must be in the same position.”
[52] These observations are consistent with the approach taken in Golden Cockeral. In the end result, my present task is to ascertain the common objective intention based upon the language and terms of the Enterprise Agreement, when read as a whole, and considered having regard to its context and purpose.
5.2 The context
[53] For reasons outlined above, it is important to consider the context in which the Enterprise Agreement was made and is to operate. That context is potentially relevant to the assessment of whether there is any ambiguity about a provision as well as to how any ambiguity should be resolved.
[54] Context in this present matter includes the operations of the Distribution Centre, the history of the provision, the other provisions of the Enterprise Agreement and the earlier approaches to public holidays taken by the Courts, the Commission and its predecessors more generally.
5.2.1 The operations of the Coles Distribution Centre
[55] The Edinburgh Parks Distribution Centre (EP DC) employs a total of 327 permanent team members and a number of casual team members. The number of casual team members employed fluctuates across the year, dependent on workforce planning and volumes processed through the DC.
[56] The EP DC supplies ambient groceries and chill and freezer products to 66 Coles supermarkets stores in Victoria, New South Wales, South Australia and Northern Territory. This is a combination of “fast” and “slow” product. Products are deemed to be fast or slow based on a number of criteria, including product turnover (ie their rate of sale).
[57] During peak trade periods such as Christmas/New Year, Easter and school holidays, EP DC volumes can grow from processing 1.1 million cartons per week to 1.5 million cartons.
[58] The ability to process the additional volumes at the EP DC during peak periods is directly linked to ensuring Coles stores are appropriately stocked. That is, the ability of the EP DC to process the forecasted volumes during peak trade periods has a direct link to whether stores have sufficient and appropriate stock levels.
[59] The evidence 16 reveals that whether or not a day is a voluntary work day, creates increased uncertainty and will impact upon the number of team members that the EP DC must roster in advance to meet the daily volumes processed at the site. The EP DC experiences a significant peak in ad-hoc absenteeism and casuals, and there are also some limits upon the capacity to use casual labour given certain skill mix requirements. There is however little evidence to suggest that previous “voluntary” work days have been particularly problematic given the cooperation that exists at the workplace.17
[60] The evidence does confirm that it was important that this dispute be resolved so that Coles and the employees were clear when the public holiday provisions of the Agreement apply, particularly in relation to when work is voluntary and when it may be rostered.
5.2.2 The history of the particular public holiday provision
[61] The public holiday provision in this Enterprise Agreement was initially contained in an enterprise agreement operating at the EP DC from 2009.
[62] Mr Blairs gave evidence 18 about the treatment of Proclamation Day that took place in 2009 and in relation to other days where the substitute provisions may have operated. The admission, or consideration of, this evidence was opposed by Coles on the basis that the conduct of the parties after the making of an instrument should not be relied upon as a guide to its proper construction.19
[63] Mr Blairs’ evidence about events under the previous agreement is relevant because it sets the context for the making of the present Enterprise Agreement. It reveals that the day on which the originally scheduled public holiday (when a substitution has occurred) has often been treated as a day attracting some special arrangements and/or payments. However, the evidence does not reveal a common objective intention that the originally scheduled day has been treated as a public holiday for the purposes of the predecessor instrument or that work performed on the original day has been paid at public holiday rates. In fact, it reveals that the status of those days was (and is) in dispute.
[64] Mr Blairs also gave evidence about the negotiations leading to the present Enterprise Agreement including that Coles had raised a claim that there should be no “double dipping” arising from clause 16.5. This evidence is also potentially relevant, but not of particular assistance. There is no evidence as to why the claim was advanced or ultimately not pursued. More importantly, there is no evidence that would suggest a common objective intention arose as a result of those events. To speculate about such matters would not be consistent with the approach to surrounding circumstances adopted by the Full Bench in Golden Cockerall. 20
5.2.3 Other provisions of the enterprise agreement
[65] The Enterprise Agreement is to be applied having regard to the entire instrument. For reasons advanced earlier, the objectives of the instrument are relevant and must be considered under the terms of the dispute resolution procedure.
[66] As if often the case, the objectives of this Enterprise Agreement contain a series of desired outcomes, some of which provide a degree of tension. I have had regard to these objectives and in particular, the desire of the parties to work collectively to improve the working environment and to increase the productivity, flexible operation, efficiency and prosperity of the Company.21
[67] The objects of the Enterprise Agreement, on balance, favour the construction proposed by Coles, particularly given that having two voluntary work days arising from the Proclamation Day holiday in that period creates additional uncertainty and cost at a critical time of year for its operations.
[68] There were no other provisions of the Enterprise Agreement cited by the parties in support of their respective positions and none would appear to shed any direct light on the immediate issue to be determined.
5.3 The earlier approach to public holidays taken by the Courts and Tribunals
[69] There is a long history of arbitrated claims related to the establishment of public holiday entitlements and arrangements in awards and other instruments.
[70] There is some support in those authorities for the notion that the expression “actual” when used in connection with public holidays has been used to refer to the originally scheduled day and to differentiate it from the additional (and in some limited cases – substitute) day.22 However, each of these cases has been determined in a different context having regard to the particular wording of the instrument concerned.
[71] There is a distinction between additional public holiday provisions – where for example an additional public holiday is established when the day in question falls on a weekend – and a substitute day provision – where for example the day in question is, in effect, transferred to an alternative day. There is also a general, but rebuttable presumption, against double dipping – having, in effect, two public holidays – under substitute public holiday arrangements.23
[72] The arbitrated outcomes are often particular to their facts and to the precise terms of the instruments being considered.
5.4 The proper meaning of clause 16.5 when considered in context
[73] As outlined earlier, my present task is to ascertain the common objective intention based upon the language and terms of the Enterprise Agreement, when read as a whole, and considered having regard to its context and purpose.
[74] Having considered the natural and ordinary meaning of clause 16 when read as a whole and in the context in which it was made and is to operate, I consider that it is objectively intended to operate as set out below.
[75] Clause 16.1 establishes the public holidays for the purposes of the Enterprise Agreement 24 and these operate subject to any contrary provisions with the instrument. Those public holidays are the days that are specified and include any other days (or part-days) that are declared or prescribed under a (relevant) law to be observed in the State (or region) concerned. This provision is consistent with s.115 of the FW Act and relies upon the Holidays Act. The subclause does not, of itself, include substitute public holidays and these are dealt with elsewhere. It would however directly include any additional days that are declared or prescribed under the Holidays Act.
[76] Subclause 16.2 sets out the arrangements that are to apply on public holidays including that such involves volunteers (subject to the capacity for Coles to nominate team members in certain circumstances) and the additional payments and time off provisions that apply on such days.
[77] Subclause 16.3 codifies the reasonable grounds for an employee to refuse to work on a public holiday.
[78] Subclause 16.4 establishes certain entitlements that operate when a public holiday falls on a non-working day.
[79] All of the above arrangements set the context for the operation of subclause 16.5 and are uncontroversial, or at least are largely agreed, as the intended operation by the parties in this matter.
[80] In light of the various considerations set out above and to appropriate principles to be applied, I turn now to the focus of this dispute. I consider that subclause 16.5 is objectively intended to operate as follows:
● This provision is intended to provide arrangements for the substitution of certain days that are defined by the Enterprise Agreement and the NES as public holidays;
● Under subclause 16.5.1, where (relevantly) Proclamation Day – which under the Holidays Act is established as being on 26 December in each year – falls on a Saturday, the following Monday is to be observed as the public holiday;
● This substitution is consistent with the Holidays Act and s.1115 (2) of the FW Act;
● “Observed as the public holiday” means that the following Monday becomes the public holiday for the purposes of the Enterprise Agreement; and
● Where that substitution occurs, work on the actual public holiday (being the day established by subclause 16.5.1) attracts the arrangements provided by subclauses 16.2.2, 16.2.3 and 16.2.4.
[81] My reasons for adopting that construction are as follows:
● The subclause is, on its face, ambiguous and uncertain;
● The import of the term “actual” must be seen in the broader context in which it operates and in particular, the full terms of clause 16;
● A narrow and technical approach to the provision is not appropriate and care should be exercised in applying a too literal adherence to individual words; 25
● There are competing considerations arising from the context in which the Enterprise Agreement was made and is to operate – including that the (original day) has been treated differently. However, the approach I have determined is more consistent with the balance of those considerations including the general approach adopted by the Courts and Tribunals;
● The objects of the Enterprise Agreement, on balance, favour the construction proposed by Coles, particularly given that having two voluntary work days arising from the Proclamation Day holiday (and other nominated days at that time of year if falling on a weekend) in that period creates additional uncertainty and cost at a critical time of year for its operations;
● The alternative proposition would lead, in effect, to two public holidays being provided in connection with Proclamation Day – the concept of the day being voluntary and the additional penalty being paid for any work on those days would apply to both days - and whilst this was clearly available to the parties as an option, this is not consistent with the general operation of substitute public holidays and is not clearly provided by the terms of the agreement. That is, subclause 16.5 does not suggest that the arrangements provided by 16.2.2, 16.2.3 and 16.2.4 are to also apply to the actual day and given that subclause 16.5.1 establishes Monday as the public holiday, the clause is not consistent with an intention that there would be two days that are, for the most part, 26 subject to the public holiday provisions arising from Proclamation Day;
The concept of the public holiday being “observed” does not, in this context, mean that it is somehow only celebrated on the Monday – rather it means that the Monday becomes the public holiday. That is, the Enterprise Agreement is defining what days will be public holidays and the expression “observing” the day when used in the context of subclause 16.5.1 means that the original public holiday is to substituted for the Monday, which becomes the public holiday for the purpose of this agreement. This is to be contrasted with the different context in which the concept of “observing” a public holiday was considered by the Federal Court in Ophel v Yarra City Council; 27and
● There is some substance in the SDA proposition that subclause 16.5 is otiose in the approach urged by Coles however, the provisions of the Enterprise Agreement duplicate the provisions of the NES in many respects and objectively the subclause should be seen as the parties attempt (albeit in less than clear terms) to confirm that the substitution of the public holiday would operate in practice.
[82] The overall approach I have adopted also does not strain the language of the Enterprise Agreement, it is logical and follows the natural meaning of the provision when read as a whole, and does not involve either reading words into the provision or ignoring words and provisions which must all be given effect to.
6. Conclusions
[83] The parties agreed the following question to be determined by the Commission:
“In the context of Proclamation Day 2015, do the words “actual public holiday” in cl.16.5.4 of the Edinburgh Parks DC Agreement (the Agreement) mean Saturday 26 December 2015 or the day to be “observed as the public holiday” provided for in cl.16.5.1 of the Agreement, namely Monday 28 December 2015?”
[84] For reasons set out above, I have determined that the common objective intention based upon the language and terms of the Enterprise Agreement, when read as a whole, and considered having regard to its context and purpose is as follows:
The words “actual public holiday” in clause 16.5.4 of the Enterprise Agreement in the context of Proclamation Day 2015 mean Monday 28 December 2015.
COMMISSIONER
Appearances:
E White, of Counsel (with permission) with D Blairs, for the Shop, Distributive and Allied Employees Association.
R West, from Minter Ellison (with permission) with K Llewellyn, for Coles Group Supply Chain Pty Ltd.
Hearing details:
2015
Adelaide
23 December.
1 [2015] FWC 8833.
2 AE415237 Approved 19 August 2015.
3 In accordance with s.739 of the FW Act.
4 SDA written submissions at 11 and 12.
5 SDA written and oral submissions - as to “observed” see Northrop J in Ophel v Yarra City Council (1998) 80 IR 183 at 185.
6 Section 193 of the FW Act – considered as part of the approval process for the Enterprise Agreement.
7 SDA submissions - see for example the distinction drawn in Public Holidays Test Case, Print L9178, described by Whelan C in Shop, Distributive and Allied Employees Association v Coles [1998] AIRC 1713 as a distinction between the actual day and the substitute day.
8 Item 21 of the employer’s log of claims.
9 AG2015/1164.
10 Coles submissions - see, for example, s. 115(2) and (3) of the Fair Work Act 2009 (Cth) (FW Act); and the decision of Woolworths Ltd v Shop Distributive and Allied Employees’ Association [2013] FCAFC 151 at [31] – [37].
11 [2014] FWCFB 7447.
12 Reference to the AI Act is to the Acts Interpretation Act 1901.
13 [1929] AR (NSW) 498 at 503 See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].
14 Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17. See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.
15 (1993) 40 FCR 511. See also Codelfa Constructions Pty Ltd v State Rail of New South Wales (1982) 149 CLR 337 and 352.
16 Statement of Ms Lake – exhibit Coles 1.
17 Evidence of Ms Lake – transcript PN56.
18 Statement of Mr Blairs – exhibit SDA 1.
19 The Community and Public Sector Union v Telstra Corporation Ltd (2005) 139 IR 141.
20 At [41] – point 6.
21 Clause 5(a) of the Enterprise Agreement.
22 See for example Public Holidays Test Case, Print L9178 and Shop, Distributive and Allied Employees Association v Coles [1998] AIRC 1713.
23 See: Woolworths v SDA [2013] FCAFC 151 per Greenwood J at [16]-[17] and Buchanan J at [31] and [37]; SDA v Woolworths SA Pty Ltd [2011] FCAFC 67 at [18]; SDA v Harris Scarfe Australia Pty Ltd [2014] FCA 283 at [11]-[14]; Modern Awards Review 2012 – Public Holidays [2013] FWCFB 2168 at [83]; and Shop, Distributive and Allied Employees Association v Woolworths [2000] FCA 206.
24 Consistent with the approach in Shop, Distributive and Allied Employees Association v Woolworths [2011] FCAFC 67.
25 Geo A Bond & Co Ltd (In Liq) v McKenzie.
26 Albeit that an employee who does not work on the original day may not be entitled to lost pay – transcript PN139 – PN142.
27 (1998) 80 IR 183.
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