State Energy Commission of W.A. v Municipal Offices Association of W.A

[1982] FCA 187

Re: STATE ENERGY COMMISSION OF WESTERN AUSTRALIA
And: MUNICIPAL OFFICERS' ASSOCIATION OF WESTERN AUSTRALIA
No. WA 1 of 1982
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Toohey J.

CATCHWORDS

Industrial law - interpretation of award - transfer of employee to shiftwork - employer obliged to notify union - consequence of non-compliance.

HEARING

DARWIN

#DATE 31:8:1982

JUDGE1

In this application the State Energy Commission of Western Australia seeks an interpretation of c.12B.1 of the Municipal Officers' (State Energy Commission Western Australia - Salaried Officers') Award 1978 which reads:

"1. The Commission may work any part of its operation on shift work but before doing so, shall advise the Association in writing stating the hours and roster to be worked.".

The name of the award is a guide to its scope. It applies to salaried officers in the employ of the State Energy Commission of Western Australia.

The circumstances giving rise to the application concern Roger Anthony Hunter, the coal plant foreman at the Muja power station near Collie. That power station works on a continuous shift basis, 7 days a week and 24 hours a day, broken into three daily shifts. Part of the power station consists of a coal plant which works on a two shift basis, 15 1/4 hours from Monday to Thursday and 12 3/4 hours on Friday broken into two daily shifts. The coal plant is basically automated and until August 1981 the coal plant foreman worked day shift only unless overtime was necessary.

On 18 August 1981 the Commission wrote to Mr. Hunter to say that, due to abnormal circumstances in the coal plant operation, it had been decided to appoint an additional temporary coal plant foreman for a period of up to two months. The letter told Mr. Hunter that during this period he would be required to work on a two shift roster, "day shift being 0645 hours to 1415 hours Monday to Friday and afternoon shift being 1400 hours to 2200 hours Monday to Thursday and 1400 to 1930 hours Friday, rotating each week.". The letter added that the arrangement would begin on 24 August and that during the relevant period Mr. Hunter would be classed as a shift worker and would be paid shift allowances in accordance with the award.

A question has arisen whether during the period of the arrangement Mr. Hunter was entitled to be paid at overtime rates for all time worked outside the day work spread of hours defined in the award or whether the Commission was justified in paying him shift allowances.

The answer to that question is the product of answers to several other questions that may be asked.

1. In requiring Mr. Hunter to attend on a two shift roster, was the Commission working part of its operation on shift work in terms of cl.12B.1?

2. If so, was the obligation to give prior notice to the Association a condition precedent to working part of the operation on shift work or was failure to give such a notice no more than a breach of the award?

3. If the giving of such notice was a condition precedent, on what basis was Mr. Hunter entitled to be paid during the period of 2 months during which he attended on the two shift roster?

Underlying these questions are two assumptions, accepted by the parties as correct, that the letter of 18 August to Mr. Hunter was not a compliance with cl.12B.1 and that there was in fact no such compliance.

The material before the Court included a statement of claim filed by the applicant and a defence admitting the allegation in that document. This was a device sensibly agreed by counsel to obviate oral testimony. For all practical purposes the statement of claim may be regarded as a statement of agreed facts. The document recites that at Muja the power station consists of six generating units, two in each of three stages. The operations involve

"(a) Operating sections in Stages 1 and 2 and Stage C.

(b) A mechanical maintenance section.

(c) An electrical maintenance section.

(d) An instrument section.

(e) An efficiency section.

(f) A coal plant.

(g) A training section.

(h) An administration section.".

In the Commission's submission, when cl.12B.1 speaks of "any part of its operation", it is concerned with a breakup of the sort just described. In particular a requirement that one identified officer work shift work cannot be regarded as the Commission working a part of its operation. If cl.12B.1 had been intended to apply to individual employees, it might easily have said so.

The Association's answer is that cl.12B.1 must be read in the context of the entire award and that it is apparent from the scope clause that the award applies only to salaried officers. Clause 7 identifies the classification of those officers by reference to groups. Group 13 is headed Power Station Shift Staff, expressly acknowledging that there is a range of officers concerned with shift work. The word "operation" simply refers to an activity, a performance or the discharge of a function. There is no justification for reading cl.12B.1 as applying only to a defined segment of the Commission's activities. There are many and varied areas of work at the Muja power station and if the Commission chooses to assign to shift work someone in a supervisory capacity such as a coal plant foreman, the Commission is then working a part of its operation on shift work.

I find the Association's arguments persuasive in this regard. While undoubtedly the position would have been clearer if cl.12B.1 spoke of the Commission working employees on shift work, the phrase "any of its operation" envisages any subdivision of activities including, in my view, the employment of an officer such as a coal plant foreman whose duties are of a supervisory nature. That is not to say that cl.12B.1 applies only to those who supervise; it is enough for the purposes of the present application to conclude that it does apply to those persons.

The reference in the clause to "the hours and roster to be worked" is quite consistent with that interpretation. Clause 12B.2(g) speaks of a roster cycle as meaning "a sequence of shifts in a roster to be normally worked by an officer in his ordinary working hours and arranged so as to form a recurring cycle". I see no difficulty in treating the reference to hours and roster as applicable to one officer or to more than one.

Clause 12B.1 provides that the Commission "may work" part of its operation on shift work. The Commission argues, and I think correctly, that these words do not create a legal right that would otherwise not exist. They merely recognise or restate something which the Commission as an employer is empowered to do. The Commission then argues that the requirement to inform the Association in advance is simply so that the Association may have the necessary information for it to determine whether a shift worker has been paid the appropriate allowances required by cl.12B.3. With some hesitation, counsel for the Commission acknowledged that a failure to comply with cl.12B.1 constituted a breach of the award. Whatever the purpose of the notice required by cl.12B.1, I am of the opinion that a failure by the Commission to give such a notice is a breach or non-observance of a term of an award and so renders the Commission liable to penalty pursuant to s.119 of the Conciliation and Arbitration Act.

But no penalty is sought in this application. All that the Court is asked to do is to interpret a provision of the award. I am not persuaded that a failure to give the required notice does more than amount to a breach of the award. The Commission is engaged in an undertaking which operates on a continuous shift basis, where the need to require an officer or officers to work shift work will arise from time to time and without much warning. That, I think, is emphasised by the fact that no period of notice is required by cl.12B.1.

In my view notice is prescribed so that the Association may, on behalf of its members, be informed when shift work is to take place, and the hours and roster to be worked. It may then, on behalf of its members, assess the amounts properly to be paid and perhaps consider any other action it may wish to take. If the intention of cl.12B.1 was that notice was a condition precedent to shift work in the sense that without notice the shift work provisions of the award would simply not apply, I would expect this to have been spelt out more clearly. It is significant that cl.12B.6 provides a penalty entitlement to an officer who is transferred to shift work without 72 hours notice. Thus the distinction is drawn between notice to the Association and notice to the officer, different notices with different consequences.

In my view, when the Commission called upon Mr. Hunter to attend on a two shift roster between August and October 1981, it was in breach of the award by failing to notify the Association in advance. But, so far as Mr. Hunter is concerned, the Commission's obligation was to pay him, in respect of that period, according to the shift work provisions of the award. In particular cl.12B.3 prescribes the shift allowances to be paid; this must be read along with other provisions relating to hours of duty and salaries.

Having in mind the language employed in the application itself, I deal with the questions asked as follows

1. On 24 August 1981 the applicant, in requiring Mr. Hunter to attend on a two shift roster, did work part of its operation on shift work.

2. The failure of the applicant to notify the respondent that Mr. Hunter was to work shift work constituted a breach of the award but did not entitle Mr. Hunter to be paid other than in accordance with the appropriate salary and allowances for an officer undertaking shift work.