Sullivan, Terence William v Comalco Aluminum Ltd

CATCHWORDS

Industrial laV7 - breach of award - custom and Fr3ctice to work less than normal hours of work - alleged change in normal hours - meaning of "normal hours" -

ward to be read as a whole

Clerks' (Comalco Group of Companies) Amrd 1981. cl. 9

Conciliation and Arbitration

Act 1904, 3.113

TERENCE WILLJAM 5TJLLIVA.N	v.	COMALCC) ALUMIfIIUM LTD.
V. No. 35 of 1984

IN THE	F DERAL	COURT	OF	AUSTRALIA	1
1

‘J’ICTORIA	D I S T R I C T R E G I S T R Y	)	V. No. 35 OS 15E4
I

D I V I S I O N

I N D U S T R I A L

)

I N THE I+ATZ’ER

the Conc i l i a t ion

and

Acb l t r a t lon Act

1 9 0 4

TERENCE WILLISM SULLIVAN

Applicant

‘I

- and -

COMALCO ALUMINIUM LTD.

Respondent

O R D E R

!	J U D G Z	MAKING	ORDER	:	Morling J.
i

I	ERTE OF ORGER	:	34 Apri l l9@5
I
WERE MADE	:	Sydnsy
1	I

T H E

COURT

ORDERS

AS FOLLOWS:

Appl ica t ion dismlsssd.

MO order as

t o c o s t s .

IPJ THE FEDEFGL 3OIJRT OF AUSTRALIA

VICTORIA DISFI

3T REGIST2Y

IPIDUCTFsIL9L D T ' I 5 I O N

IN THE MATTET, of the Concllistion and Arbitration Act 1904

-	TERENCE WILLIAM SULLIVMJ

Applicant

- and -

CC,t,'sILCO ALUMINIUM

LTD.

Respondent

Morling J.

24 April 1985

HEXSONS FOR JUDGMENT

This

1 s an

appllcatlon pursuznt to

119 of

the

Conclllation and Arbitration Pxt

1904. a5 amended, f o r the

imposition of 2

penalty upon the respondent

fo r an alleged

breach of the

c'l5rks' iCcnlalco G r x o of Comranies) .hard 1981.

The applicant 1 s the !>JatlGnal

Secretary of the Federated Clsrks

Union of .\ustralia.	aoth the Union And the respondent are
bound by the aGard.

less

t han

t hose

rov

ided

fo r

i n

c l .

?:a) of

the Award.

Clause

tha Amrd i s in

t h e f u l l o n i n g

cfrms:

" 3

(a)

Sub jec t

t he

t o

ep t ions

he re ina f t e r

provided,

th? ordinary hours

work

d a y c l e r t c a l

employees shall be 40

per we;.k

t o b e

worked I n f i v e

days of nGt !nore than eight hours

each cont

inuously

(except

For

meal

breaks a t

the d i s c r e t i o n

the

employer)

between

7.00

a.m.

and

5 .00

p.m.

o r 8 . 0 0

a.m.

and

6.00 p.m.

Monday

t o F r i d a y i n c l u s i v e .

(b)

The spread of hours

da i ly

o r

hours

p re sc r ibed by subclause

( a ) li?reof

may be altered as

t o

a l l o r

- sec t ion of

the

employees by

mutual

agreement between

an employer

and

the

r e p r e s e n t a t i v e

of the u n o n i n

that establishmmt.

( c ) ri)

Meal breaks s h a l l

be f o r a per lod of

not

less

than

30 minutes 2nd not

than 60 minutes.

Frovided

that

Employee

s h a l l be

r e q u i r e d

t o

work

f o r a

lonqer

par iod

than

f ive

hours

without

a mal break unless by mutual

sgreement

between

the employer

and

the employee concerned.

( i l l

Where

-t

t h a

i n s t r u c t i o n

t h e

employer an employee

works

than

5 hours

wlthout

a meal

b reak

t he

smployee

s h a l l be

paid a t t h e r a t e

tilne

and

one

half the

orli inary rate

pap

u n t i l

r e l e a s e d

f o r

meal

Sreak.

( d )

Fhsre

a t t h e

t i n e

making thls award

t h e

custom

and

p r a c t i c e

i n

par t iccl lar

establ ishment

t o work

normal

hours

l e s s t h a n t h a t

s e t o u t i n s u b c l a u s e	( a ) such custom and practice	1 s
t o con t lnue . 'I

es t ab l i shn~en t s a 36-1/2

or 40

hour r z e k i s

warked.

the

respondent’s

Vil

lawood

es tabl ishment

c1~rks

work

3 7 - 1 / 3

hours

per week.

However,

p r i o r

t o

J u l y 1984 the re was

arrangement

opera t ing

a t Villawood

whereby

3on1e

c l e r i c a l

employees

:<er?

permi t ted

work

additional

t ime

as t o accrue Sn

en t i t l emen t t o be

Labsent from work

f o r ha l f

day a month.

The

half

day was

used,

those who

were

e n t i t l e d t o a c c r u e

i t , f o r

shopping

purposes

or t o pursue

other

personal

interests .

The

p rac t i ce

f o r

those

c le rks

who

enjoyed

the

arrangement

F J ~ S

t h a t

t h e y s t a r t e d

15 minut?s

ear ly

each

Mcnday to Thursday

( that

i s

t o say,

a t 8.15 ?..m.

rz ther

than

a t 8.30 a.m.1

and

tool;

t h e

half day

leave

once

each

calendar

moxith.

The half

day

w?.~

normally

taken

i n the

month fo l lowing

the

month iJhen

it had

been

accrued,

bu t

no t

in f requent ly

it xas taken

two o r

t h rze

months a f t e r i t

hcd been

accrued.

c l e r k had accrued two

half

days,

they

were

taken e i the r

s epa ra t e ly

o r

a s

one

f u l l

day.

The half day w25 only

pern i t ted

t o be

taken when

it xas

convenient

the

respondent

for

the

employee

t o t a k e

it .

Only

iftmale clerks

were

permit ted to take advantage

the

arrangzment.

M m t of these

c le rks

warked

t he

. kcoun t s

Department.

Ther?

were

other

clerks

a t Villasooil who were not

permi t ted

accrue

the

ha l f

day

l a v e .

Same

of these

were

~nales .

addi t ion .

there

were some four or

f ive female Clerk3

who were not

permit ted

take

advantage

the

arrang?m;nt.

Some

thesz

xork?d

t h e

Fix-chasinq

a1:d

IistErials

- c

Eel;artinent, and

:rr-;-,=>-

. - ‘ L ~ ~ - ~

in the C2d.i; Gcp;.rr;lnect.

-. 59E1119

that employees in

these

departments

were

never

perrtitzes

t o

I n

the arrangement.

about

J u l y

l?E4 the

rsspondent

erminaied

tne

arrangement.

Thompson.

respondent '

th?

personnel

superv isor , said

that

arranqement

d i d

n o t

l e n d

i t s e l f

t o

e f f i c i e n t

o p e r a t i o n s .

He.also

s a i d

t h a t

i t was

d i s r u p t i v e

work pract ices

because

i t took employees

"out

the

system

half a day a month",

thereby

requiring

them

to be

rep laced .

was

a lso

thought

t ha t t he re

was

element

d i scr imina t ion

between

those

female

clerks

who

were

p rmitted

ake

i	advantage	of	arrangement	the	and	those	who	were no t ,	and
I

I	between	female	and	wale	clerks.
I I I

There

is SONE

c o n f l i c t

evid nce

the

as t o

t h e

number

of c l e r k s

who were

permi t ted

accrue

the

ha l f

day

leavs.

There

1 s som? evidence t o suqqes t

tha t

l though

some 11

o r 12 female clzrks were pe rmi t t ed to

:hare

the arrsngement,

I	t h e re were	only E such c l e rks	a t any given	point	of time > f i m
I

were

doing so.

Hriving

regirrd t o a l l

t h e evidence.

I t h i n k

t he rz

were

aboht

2 1 c l e r k s ,

mai?

female,

and

mp loyed

a t

Villa~qood

September

1982

(when the award was made) and that

that number about 1 2

were en t i t l ed

t ake advan tage

the

arrangement

t o

a c c r u e

half

~iay

shopping

leave

per mmlth.

However. I do nct

think

anything

turns

the

exac t

number of

c l e r k s

who

;?ere

permi t ted

s i ra i l

thense lves

the

arrangement.

14r Tholrpson said that

h? regarded the normal work

hours at Villawootl 2 s 3.30 a.m. to 4.30 p.m.

It was put to him

that thos; were not the normal work hours of the clerks who

enjoyed

thz bensfit

of the arrangement, but with respect to

these clerks he said:

"I would consider that they work their normal hours

between the normal start time and the

norlnal finish

time	and the extra quarter of an hour they work

prior to 8.30 was

an additional amount of time that

was worked to provide them with a

half

day's

shopping per month.

The result of that

1 s if you

average it they work	37-112 hours per week.''
(Transcript p.53)

He also said that on Friday

of every week

the

entire staff

started at 8.30 a.m. (Transcript p.54). His evidence

also

mcluded the following:

'"kat

I am trying to understand i s the basis on xhich ysu decide that something 13 normal. I mean 1s there some custom in the industry;

xhat

i s pour

reference point give

( s i c ) that

the majority of

thz clerical employees do not

starc at that

particular

tlme

four

days

xeek?---It is a management conslderation

what the normal hours of sork are as the manauement sets the hours of normal t n e belng

a.30

to 4 . 3 0 .

The

time worked before is

additional

t i r e and not normal time. Where

th?y work the extra fifteen minutes. I do not consider that as being normal work time: it is

time accrued for a special purpose."

(Trsnscript p.

5.1)

arranT?ment

would

c o n s t i t u t s

part

the

terms

and

conditions

t x i r employment,

For i n s t ance ,

I4rs Old,

who ha3

been

employed by the

respondent at Villawood

since

July

1382. gave

the fol

lowing evidence:

"Before

you

were

mployed

the

company

d id you

have

occas ion to d i scuss

the

hours during which

I	you would	be	r e q u i r e d t o	work?---Yes.
I I

With whom did

those

discussions

occur?---With

the

I	personnel of f icer .

And what was agreed as t a the hours that you were t o work?---Normal

s t a r t i n s time

he said was

8.30 bu t

as the female c le rks

have

half

a day

shopping

per

nlanth

t o s t a r t

a t

8.15

and

f i n i s h

a t

4.30

Monday

t o F r i d a y .

And once

you

commenced employment w i t h the

company

were	those the hours that you	worked?---Yes,	I
did.

(T ransc r ip t pp.

14-15)

Another

f5male

clerk,

Mrs

T i l l e y , Gjas asked

how she

came

t o 9 a i n

ths b e n e f i t of

the arrangement.

She

said:

"Well i t b7a5 p u t t o

that i f I was t o have a

half

day

shopplng

off

I would have t o commence

a t

qua r t e r Fast

eight i n s t e a d

the normal

s t a r t i n g tlms

8.30 Monday t o Tnursday

and

a i d e d by

t h j t . "

( T r a n s c r i p t p.

1 0 )

Counsel

for

th? appl icant

submit ted

thzt

the above

ev idence e s t ab l i Jhed tha t

the

respondent had acted

i n breach

c lause 9 ( d )

tha award vhen

i t d iscont inwd

the

a r rangement

xhet-zby some of

the

f5msle c l e r k 3 w?'L'e perrnittsd t o z c c r u e

the

ha l f day ShFFi:i?- l?~-.-*

p?i- month.

I t >??.S

3ub1nitted t h a t t!E

1 .

evidence

s tab l i shed

tha t

at the

t ime

the making

of %he

award there was a custom

and

p r a c t l c e

a t

t h t

V l l l i ; ~ ~ : ~ O d

es tabl ishment

working

normal

hours

l e s s

t han

those

r e fe r r ed

t o i n c l .

9(a) of

the

award.

It was

fu r the r

submi t t ed

t ha t

t he

p a r t i e s t o t h e

award

themselves considered

the arrangement

custom

or p r a c t i c e

and fo r

t ha t

r ea son

was proper

30 t o

regard i t:

see

Merchhnt Serv ices G u i l d v

Svdney

S t e m C o l l i e r

Owners &

Coal Stevedore3 Association

(1958) 1 F.L.R.

248.

I t

i s necessa ry

cons t rue

c1 .9 (d )

i n

i t s s e t t i n g as

p a r t

c1.9.

Clause

9(a)

provides

tha t ,

s u b j e c t

t o

except ions,

the

ordinary

hours

work

day

c l e r i c a l

employees shall be 40 per week

t o be worked i n 5 days

not

more than 8 hours

each

between

two

d i f f e r e n t s p r e a d s

hours.

Clause

9 ( b ) provides

t h a t the

spread

hours

prescribed

c 1 . 9 ( a ) may

be a l t e r ed

t o

a l l o r a

s ec t ion of

t h e employees

mutual

agreement between the employer and the representative

of the

union.

Clause

9rd)

makes

provis ion

for

an exception of

t he k i n d where, a t the

r e fe r r -d

t o

c l . U ( a ) .

The exception

i s the

cas?

t ime

of t he maklng of the axard, "the custsm

and

p r a c t i c e

i n

par t icu lar

es tab l i shment

i s t o work normal

hours

l e s s

t han

that

subc lause

ou t

se t

i n

(a)".

Thus.

the

exceptional case contemplated

i s

on?

where

i t 1s t he custom

and

prac t ice

the

par t icu lar

es tab l i shr i len t

t o

work

normal

hours

l e s s

t h a n

per week.

IMIlere

the re 1s such a custom or

p rac t l ce .

i t

to cont inue .

The

task

i s t o

d i s c o v e r

the

meaning

c 1 . 9 ( d ) ,

reading the

award as a C7hOlE:

see Aus t i a l l an Tlmber Workers'

v M.

Ancrliss

G Co. Ftv.

Limited (1924) 19

C . 4 . R .

1 7 2 *

bhilst

the

o rd ina ry

p r inc ip l e s

l e g d

i n t e r p r e t a t i o n

i n

general

govern

the

i n t e r p r e t a t i o n of

awards,

as S t r e e t J.

said

i n Georse

A. Bond G

Co. Limited ( i n

L i q u i d a t i o n )

Mackenzie

(1929) A . R .

499 a t 503-4:

"Awards

are made f o r

the v a r i o u s

i n d u s t r i e s

i n

t he l i gh t of

the

customs

and

working

conditions

each indus t ry ,

and

t h e y f r e q u e n t l y r e s u l t

...

from an

agreement

between

the

p a r t i e s ,

c a s t

i n

terms

i n t e l l i g i b l e

hemselves

bu t

o f t e n

framed

without that

c a r e f u l a t t e n t i o n

t o form

and draf tmanship vhich one expects in an Act of

Parliament.

i s c l e a r that

t h e r e was

custom o r p r a c t i c e

a t the

Vi l lawood

p lan t

for

day

c le r ica l

employees

work

less than

the

hours

set out

subc lause

? ( a ) of

the award.

That custom

o r

p r a c t i c e

was

t o work 37-1 /2

hours

only.

But

the ques t ion

r w a i n s whether

i t can

properly

be said that

t h s arrangement

f o r

t h e

half

day

shopping

leave

was tantamount

t o a custom

p r a c t i c e t o work l e s s than 40 hours Fer week. The a p p l i c a n t

says that i t was, because i n t he week i n which the half day wzs

taken .by an employee only 34-1/2 hours were worked by that

amployee.

Whilst this argument has some s u p e r f i c i a l

a t t r a c t i o n

I do

not

hink

that i t should

accepted.

my opinion the

evidence

estL&lishes

that i-lfie11 the award :?as lnade the normal

hours

: JEL-~ f o r

c l ? r i c a i * ztaff

V i l l ~ w o o d wi-5 37- l l l i

hours

per week.

m r k e d

frorr, Z.30 ~ . I I I *

t o 4-20 2.m.

'The

f a c t tha t .

3 .

each Friday,

all the clerical staff commenced work at

3.30 h.m.

pointed to that time

as being

the normal starting time.

The

normal starting time was observed by all clerical staff other

than

the

group

who

enjoyed

the

benefit

the

special

arrangement. When this group started work 15 minutes ezrly on startmg time.

I have alrrady referred to the evidence of Hrj @ld xho

s&ys

that when she was first employed

by the

respondent at

Villawood she was informed by

the

Personnel Officer that

"normal starting time

... was 8.30" and to the evidence of Mrs

Tilley who said that she was told that if she wished to have the benefit of the arrangement she would have to commence at

8.15 "instead of the normal time of

8.30 Monday to Thursday".

This

evidence

suqgests

that

those

clerks

who

enloyed

ths

benefit of the arrangement themselves regarded	their normal
starting time as 8.30 a.m.

If it be correct to say, as

I think it is

that at the

time of the making of

the award the normal work hours

of clerks

at Villawood were

37-11:!

per week spread bstween

8.30 2.111.

and

4.30 p.m.

Mondays to Fridays, It was not a breach of

cl. 9(d)

of th? award for the respondent to rxluire those clzrks who

formerly had the

baefit of the arrangement

to work thme

hours. That is what the employees

w w e r-qllired to

d3.

I do

not th ink

that the m?re

fact that solw

:lerkY w?re permitted

10.

fo r a po-lod

t o take

advantage

of an abnormal arrangement

d i s e n t i t l e d

the respondent

froln

r e q u i r i n g them

to work

the

normal hours at

the Villawood

es t ab l i s lmen t .

Accordlnqly,

the

a p p l i c a t i m

i s dismissed.

[1985] FCA 183

24 Apr 1985