Sibte, C. v Expandite (Australia) Pty Ltd

[1988] FCA 801

.

CATCHWORDS

INDUSTRIAL LAW - Interpretation of award - Provisions to enable worklng day off each week, fortnlght or four weeks sublect to prior agreement by malorlty of employees to work more than eight hours per day - Practice by employer to work four day week - Situation appllcable where public holiday falls on non-working day - Discretion of Court to refuse applicatlon because of prevlous unsuccessful applicatlon by Unlon for variation of award.

Conciliation and Arbitration Act 1904 5.110

N I 2 4 of 1988

COLIN SIBTE V EXPANDITE (AUSTRALIA) PTY	LIMITED
Wilcox J Sydney 19 December 1988

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT	REGISTRY	)	No. N I 2 4 Of 1988
)
GENERAL DIVISION	1

BETWEEN: COLIN SIBTE

Applicant

AND: EXPANDITE (AUSTRALIA) PTY

LIMITED

Respondent

CORAM :  WILCOX J

PLACE	:	SYDNEY
DATE :	19 DECEMBER 1988

MINUTES OF ORDER

THE COURT DECLARES THAT:

1.        On a true interpretation of clauses 18 and 26 of the

Rubber, Plastic and Cablemaklng Industry Award 1983

if employees normally work a 38 hour week over four days with one day regularly rostered off during the week Monday to Friday, that during a week where a

public holiday occurs between Monday to Friday, those employees are entitled to only work three days of the

L.

normal roster and be pald as i f they had worked for

38 hours, or alternatively, if they work for the

normal four days they shall be pald for one of those

days at the rate applicable for working on a public
holiday whether or not the publlc holiday falls on

their normal rostered day off.

Note :  Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. N I 24 of 1988
)
GENERAL DIVISION	)

BETWEEN: COLIN SIBTE

Applicant

AND: EXPANDITE (AUSTRALIA) PTY

LIMITED

Respondent

CORAM :  WILCOX J

PLACE	:	SYDNEY
DATE	:	19 DECEMBER 1988

EXTEMPORE REASONS FOR JUDGMENT

An application has been made to the Court by Colin

Sibte, an officer of the Federated Rubber and Allied Workers' Union of Australia, seeking an interpretation under 5.110 of

the Conciliation and Arbitration Act 1904 in respect of one
aspect of the Rubber, Plastic and	Cable-making Industry

Consolidated Award 1983. The dispute between the parties

arises out of a situation which has occurred at the works of

the respondent, Expandite (Australia) Pty Limited, a
respondent to that award.

It appears that the practice of that company is that

its employees work 38 hours per week, the work being spread

over four working days, upon each of which the employees work

nine and a half hours. On the fifth week day, which I

understand 1s usually a Frlday, the employees do not work.
The question between the parties is as to the situation which
ought to apply in those weeks when the Friday is a public
holiday. This, of course, is always the sltuatlon In regard
to Good Friday and it may be the sltuation I n respect of other
public holidays whose application is variable as between
particular days of the week.

It appears that the current regime of 38 hours per week was established by a declslon made by the Conclliation and Arbitration Commission on 4 August 1982 whereby the award

was varled so as to Insert certain new clauses. By a

subsequent consolidation of the award, the formulation of

those clauses has changed. The parties are agreed that the

matter has to be determlned upon the basis of the present

consolidated award, and I will therefore refer to the terms of

the consolidated award rather than to the terms of the

variation announced in 1982.

Clause 18 of the consolidated award deals with hours

of duty. Sub-clause ( a ) provides:

"(a) The ordinary hours of work from 15 August 1982, subject to the exceptions herein provided, shall be an average of 38 hours per week,

to be worked on one of the following bases:

(i) 38 hours within a work cycle not exceeding seven consecutive days; or

(ii)76 hours wrthin a work cycle not

exceeding fourteen consecutlve days; or

(lil)114 hours wlthin a work cycle not exceeding 21 consecutlve days; or

(iv) 152 hours within a period not exceeding

28- consecutlve days.

The method of worklng may be one of the

followlng:

(v) by employees working less than elght ordinary hours each day; or

(vi) by employees working less than elght
ordinary hours on one or more days each
week; or

(vii)by fixing one week day on which all employees will be off during a particular work cycle; or

(viii) by rostering employees off on various
days of the week during a particular work
cycle so that each employee has one day
off during that cycle.

The ordinary hours of work prescribed hereln

may be worked on any day or all of the days of the

week, Monday to Friday."

Sub-clause (g) is relied upon on behalf of the

respondent. It reads as follows: 

" ( g ) The employer and the malority of

employees in the plant or section or sections
concerned, may agree that the ordinary working
hours are to exceed eight on any day, thus enabling
a week day to be taken off more frequently than

would otherwise apply. (Not to exceed ten hours in

any day) . 'I

Clause 26 deals with hollday and Sunday work.

Sub-clause (a) opens in the following way:

"(a) Subject to thls clause, all weekly wage

employees shall be granted the following holldays

without deduction of pay:"

There follows a list of public holidays includlng, for

example, Good Friday. After thls list certain provlslons in

relation to particular States are set out.	It 1 s not
necessary to consider those provisions. Sub-clause	(b) reads:

"(b) Subject to the provlslons of subclause

(i) hereof, lf any of the above holidays occur on a
Saturday or a Sunday and are not observed on any
other day, then employees shall not be paid for any

such Saturday or Sunday."

Sub-clause (l) reads as follows:

"(l) In the case of an employee whose

ordinary hours of work are arranged in accordance
with paragraph 18(a)(vii) or 18(a)(vili), the
weekday to be taken off shall not coinclde with a

public holiday flxed in accordance with subclause

(a) hereof. Provided that, in the event that a

public holiday is prescribed after an employee has
been given notice of a weekday off in accordance
with subclause 18(i) of this Award and the publlc
holiday falls on the weekday the employee is to
take off, the employer shall allow the employee to

take the day off on an alternative weekday."

The argument put on behalf of the applicant is a

short and simple one, namely, that the matter is concluded by the application to the case of sub-c1.26(1). Counsel for the applicant argue that the arrangement which is in force at the premises of the respondent is an arrangement which falls

within para.l8(a)(vii) of the award, whereby the employer has fixed a particular week day, usually the Friday, on which all employees will be off during a partlcular work cycle, that IS,

the relevant week. Paragraph 18(a)(i) contemplates a work

cycle as short as a single week. Counsel then say that, in such a situation, sub-c1.26(1) puts beyond doubt that whlch might otherwlse have been open to some questlon, namely,

whether the employer is entitled to so arrange ordinary hours

of work that the day off coincides with the publlc holiday.

Counsel for the resondent put two maln arguments.

First, they submit that, as a matter of discretion, the Court should not deal with the present application. Secondly, they say that, if the matter is dealt with, then it should be

concluded that the arrangement which applies at the works of the respondent is not one falling within para.lE(a)(vii), and therefore not subject of sub-c1.26(1).

The argument based upon discretion is founded upon the fact that in March 1986 an application was made on behalf

of the Union	to the Conciliation and Arbitration Commission
for a variation of the relevant award.	There was apparently

an amendment of the application prior to its disposal by Mr

Commissioner Grimshaw on 19 August 1986. As amended, the

application made on behalf of the Union was in the following
form:

"l. By deleting sub-clause (1) of clause 2 6 -

Holiday and Sunday Work and lnserting In lieu thereof the following:

'When an employee's rostered day o f f in

accordance wlth 18(a)vll or viii as the case
may be including a rostered day o f f In
accordance wlth a system of work further
permitted under clause 18G falls on a holiday
prescribed by sub-clause (a) of thls clause,
the day upon which the holiday falls shall be
observed.as a holiday and the employee's next
ordlnary worklng day shall be observed as the

employee's rostered day off."'

The reference to "clause 18G" appears to be an erroneous

reference to sub-cl.l8(g). It is to be noted that the

assumption underlying the form of the application is that,
where agreement is reached in accordance with sub-cl.l8(g) for
the employees to work more than eight hours per day so as to
enable a weekday to be taken off more frequently than
otherwise would apply, this 1 s implemented by rostering In

accordance with paras.lE(a)(vii) or (vili).

The application which was made by the Union was

refused by Mr Commissioner Grimshaw. With respect to the

Commissioner, It is not easy to understand the reasonlng which

underlay his conclusion. In his reasons for decision, the

Commissioner drew a distinction	between what he called a
"banking" system which,	as I understand it, 1s really a system

under which there is variable time worked each week so that
additional days o f f could be rostered in accordance with an

averaging system, and a system whereby	the same hours are
worked each week, or indeed each day.	The crltlcal paragraph

of the Commissloner's reasons is as follows:

"Had the method of payment at Expandlte Pty.
Ltd. been of a banking system or an averaging
system, my declsion in this matter may have
been different, however, I am satlsfied on the
evidence, that the employees at Expandite Pty.
Ltd. work a 4 day working week of 38 hours in
total and are paid for as such, therefore, the
Friday of each week at that Company, which was
reached by agreement, 1s a non working day in

much the same way as Saturday and Sunday is

not as such a rostered day off."

The problem I have wlth this paragraph is that it

does not relate the conclusion to the terms of the award. If
the Commissioner was of the opinion that the result of an
agreement under sub-c1.18(9) was that the 38 hour week was

implemented otherwise than in accordance with one of the

methods set out in sub-cl.l8(a), he did not say s o . Moreover,

it was a conclusion which was opposed to the assumption by virtue of which the matter was before him. One would have thought that, in that situation, the Commissioner would have

pointed out the flaw in the application, in order that the

matter might have been reconsidered. If, on the other hand,

the Commissioner was of the view that an agreement under

sub-cl.lE(g) was a method of implementing paras.lE(a)(vli) or

(viii), then it is not easy	to understand why sub-c1.26(1)
would not apply.	The Commissioner was aware of the exlstence

of sub-c1.26(1), that sub-clause was referred to during
argument, but the sub-clause is not discussed at all in his
reasons for decision.

a .

The Union filed a Notice of Appeal agalnst the

Commissioner's declslon, but it appears that the appeal was withdrawn before any conslderation of the appeal. Under these circumstances, the submlssion put on behalf of the respondent

is that the Court should not deal wlth the matter. It is said

that there 1s no relevant continuing controversy, the Unlon
having elected, in effect, to accept Mr Commissioner

Grimshaw's decision.

With respect to counsel, it seems to me that this

submission confuses two dlfferent functions. It is the

function of the Conclliatlon and Arbitration Commission to
conciliate and arbitrate industrial disputes. One method of

the Commission exercising this functlon is by it making an

award. The Union chose to make an application to the

Commission, which was heard by MC Commissioner Grimshaw, for an amendment of the award to resolve an industrial dispute between the Union and Expandite In respect of the matter of

payment for days not worked.	That application failed, and so
far as this Court is concerned, that is the end of the matter.

However, in addition to that industrial dispute,

there is a dispute between the parties, which might perhaps be

called a legal dispute,	as to the proper interpretation of
what the Commission has in fact done	by way of award making.
It is that dispute which comes	before this Court. I see no

reason why this court should not deal wlth what 1s undoubtedly
a genuine legal dispute between the parties as to the proper

lnterpretation of the award, simply because the Union failed

in an appllcation to have the award varled. The award, as it

presently stands, governs the rights and obllgations of the parties until such time as It may be varied in the future. There is a difference between the Union, on the one hand, and

the respondent, on the other, as to the effect of the award in a situation where a public hollday falls on a Friday. That is a situation which will inevitably occur in the future and,

u n l e s s there is some resolution of the present problem, it is likely to give rise to friction between the parties. It seems to me that, under those circumstances, it would be an

abdication of the Court’s responsibility to decline to deal

with the interpretation question.

Turning to the merit of the matter, counsel for the

respondent concede, as they must, that if paras.l8(a)(vli) or

(viii) govern the present situation -- that 1s to say, if

those are the provisions by virtue of which the arrangement

operating at Expandite Pty Limited has been implemented --

then sub-c1.26(1) applies; so as to preclude the company from

nominating a public holiday as a rostered day off. However,
they submit that sub-cl.(g) of cl.18 operates quite separately
to paras.l8(a)(vii) and (viii), and as sub-c1.26(1) does not

refer to sub-c1.18(g), then the rule which it establishes has

no application to the present case. The argument on behalf of

the respondent, as I understand it, 1s that sub-cl.l8(a)
merely nominates, in paras.(v) to (vlii) lncluslve, various
methods of working by which the 38 hour regime may be
implemented. The clause does not purport to state
exhaustively all of the possible permutations.

I think that this submission is correct, as a matter of English; although I have great difficulty in finding any other possibility other than those set out in paras.(v) to

(viii), and none were suggested in argument. However, it does
not follow that sub-cl.(g) provides for something which is
different from that envisaged by paras.l8(a)(vii) or (viii).
In the first place, the subject matter of sub-cl.(g) is an
agreement between the employer and the majority of employees
"that the ordinary working hours are to exceed eight on any
day". The substance of any such agreement must be that the
employees shall be bound to work more than eight hours. That
a weekday may be taken off more frequently than would

otherwise be the case, is simply a consequence of that

agreement.

It is not itself the subject of the agreement.

It seems to me that the explanation of sub-cl.(g) is

that the Commission was concerned to ensure that thrs new
flexibility of working, which it was prepared to adopt and
which it inserted in sub-cl.l8(a), would not have the result
of employees being forced, against their will, to work more

than eight hours per day.

whilst it might be assumed that

employees would be in favour of having a greater number of

days off work, it may well be that, in a particular works, the

majority of employees would not	be prepared to work more than
eight hours per day In order to obtaln thls benefit.	I think

that sub-cl.lE(g) was deslgned merely to ensure that a
decision to move in the direction of more than eight hours a

day would have the support of a malority of the employees.

Once that support has been gained,	the employer has the
opportunity of implementing	the 38 hour regime by one of the
alternatives set out in paras.lE(a)(v) to (viil);	for
example, by fixing one day on which	all employees will be off
work during a partlcular work cycle of a week, a fortnight,	or
four week period, or by rosterlng employees so that varlous employees are off on different days.

Attentlon has been drawn to c1.33 of the award. This

clause deals with payment of wages. Counsel for the

respondent suggest that c1.33 assists thelr argument because

of its reference to average pay in a situation where a	person
ceases to be employed during	the term of the relevant work

cycle. I doubt that it has much application in a case where the work cycle is only one week, but I do not think that, In

any event, it assists the argument for the respondent. I

think that it is significant that it was thought necessary to

make special provision	only in cases covered by
paras.lE(a)(vii) and	(viii); thus suggesting that a situation

arising under sub-cl.lB(g) was not seen as a separate
situation lacking implementation under paras.lB(a)(vii) or

(viii).

A further matter which was referred to was the

history of the award. It appears that when the orlglnal award

was made in 1983 the clauses were numbered differently.

Particular reference was made in sub-c1.26(1) to the

equlvalent of the present sub-cl.l8(g).	The original form of
c1.26(1) was thus:

"(1) In the case of an employee whose

ordinary hours of work are arranged in accordance
with paragraphs (b)(iii) or (b)(iv) or subclause
(e) of clause 18A, the weekday to be taken off

shall not coincide with a public holiday fixed in

accordance with subclause (a) hereof. Provided

that, in the event that a public holiday is
prescribed after an employee has been given notice
of a weekday off in accordance with subclause
18A(g) of this award and the public holiday falls
on the weekday the employee is to take off, the
employer shall allow the employee to take the day

off on an alternative weekday."

Paragraph b(1ii) corresponded with the present

para.lE(a)(vii).	Paragraph b(iv) coincided with the present
para.la(a)(viii).	Sub-clause (e) coincided with
sub-cl.la(g).

Counsel f o r the respondent rely upon the fact that,

in the consolidation, the separate reference to what 1s now

sub-cl.l8(g) was dropped. They suggest, therefore, that this

indicated a view that the rule which was provided by
sub-c1.26(1) should not apply to the separate method of

implementation which was constituted by sub-cl.l8(g).

r

Under some circumstances, I would have thought that this argument would have had force. For example, l f the

change had occurred as a result of an application made by one party where there had been an opportunity for the other party to put contrary submissions and the Commission had reached a

view on the merits, one might have inferred a deliberate

decision to cut down the effect of sub-c1.26(1). However, so

far as appears, the consolidation was in fact merely a
consolidation. Counsel were not able to give me any
indication that the consolidation took place as a result of a

review at whlch the parties were represented and where issues

were considered on their merits. It seems to me that what

happened was that somebody, being concerned to consolidate the

various variations in the award in a comprehensible manner,

took the view, I think correctly, that the reference to

sub-cl.(e) of c1.18A in the original sub-c1.26(1) was an

unnecessary and, indeed, misconceived reference and that this

person thereupon eliminated it in the consolidation. It would

be surprising indeed if the consolidator deliberately set out

to reduce the benefit of a provision such as sub-c1.26(1)
without reference to the Union and without an opportunity	for
the Union to put submissions on such	a matter. In the absence

of an indication that there was any hearing, or opportunity
for a hearing, in regard to this matter, the appropriate
inference is that the change occurred merely as a result of a
tidying up of the form of the award.

i

.--

.v - 14.

It seems to me that the matter is clearly covered by

sub-c1.26(1); the form of whlch is unambiguous. I see no

reason to doubt that what	has happened at the respondent's
premises is in accordance with one	of the methods set out in
sub-cl.l8(a):	namely that provided in para.(vii).

Consequently sub-c1.26(1) applies, and the applicant is

entitled to relief.	I propose to make a declaration in terms
of the Application.

I certify this and the thirteen (13)

preceding pages to be a true copy of
the Reasons for Judgment of

his Honour Justice Wilcox.

Associate:

Date :	2 February 1989
Counsel for	the Applicant:  M C J W Shaw QC with

Hr B D Hodgkinson

Solicitors for the Applicant:  Jones Staff h CO

Counsel for the	Respondent:	M T B C Hungerford QC with
M T L V Stapleton

Solicitors for the Respondent: Clayton Utz

Date(6) of hearing:  19 December 1988