Sullivan, Terence William v Comalco Aluminum Ltd

[1985] FCA 183

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

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

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IN THE	F DERAL	COURT	OF	AUSTRALIA	1
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‘J’ICTORIA	D I S T R I C T R E G I S T R Y	)	V. No. 35 OS 15E4
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D I V I S I O N I N D U S T R I A L )

I N THE I+ATZ’ER of 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

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- and -

COMALCO ALUMINIUM LTD.

Respondent

O R D E R

!	J U D G Z	MAKING	ORDER	:	Morling J.
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I	ERTE OF ORGER	:	34 Apri l l9@5
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WERE MADE	:	Sydnsy
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1 T H E COURT ORDERS AS FOLLOWS:

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I	1.	Appl ica t ion dismlsssd.
2.	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

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IN THE MATTET, of the Concllistion and Arbitration Act 1904

- TERENCE WILLIAM SULLIVMJ

Applicant

- and -

CC,t,'sILCO ALUMINIUM LTD.

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Respondent

Morling J. 24 April 1985

HEXSONS FOR JUDGMENT

This 1 s an appllcatlon pursuznt to 5. 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 p rov ided fo r i n c l . ?:a) of the Award. Clause

3 of 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 ex t o ep t ions he re ina f t e r

provided, th? ordinary hours of work of 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 of the

employer) between 7.00 a.m. and 5 .00 p.m. o r 8 . 0 0

a.m. and 6.00 p.m. on 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 a - 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 more

than 60 minutes. Frovided that no

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.

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( i l l Where -t t h a i n s t r u c t i o n of t h e

employer an employee works more 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 of

tilne and one half the orli inary rate

of pap u n t i l r e l e a s e d f o r a meal

Sreak.

( d ) Fhsre a t t h e t i n e of making thls award

t h e custom and p r a c t i c e i n a par t iccl lar

establ ishment 1s 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

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es t ab l i shn~en t s a 36-1/2 or 40 hour r z e k i s warked. ;t 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 an arrangement

opera t ing a t Villawood whereby 3on1e c l e r i c a l employees :<er?

permi t ted to work additional t ime so as t o accrue Sn

en t i t l emen t t o be Labsent from work f o r ha l f a day a month. The

half day was used, by those who were e n t i t l e d t o a c c r u e i t , f o r

i 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

I 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. If a 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 to the respondent for the employee t o t a k e it .

Only iftmale clerks were permit ted to take advantage zf

the arrangzment. M m t of these c le rks warked in t he . kcoun t s

Department. Ther? were other clerks a t Villasooil who were not

permi t ted to accrue the ha l f day l a v e . Same of these were

~nales . In addi t ion . there were some four or f ive female Clerk3

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who were not permit ted to take advantage of the arrang?m;nt.

Some of thesz xork?d in t h e Fix-chasinq a1:d IistErials

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Eel;artinent, and :rr-;-,=>- . - ‘ L ~ ~ - ~ in the C2d.i; Gcp;.rr;lnect. -. 59E1119

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that employees in these departments were never perrtitzes t o

share	I n	the arrangement.
In or about J u l y l?E4 the rsspondent erminaied tne

arrangement. Mr Thompson. respondent ' th? S personnel

superv isor , said that he 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 of

1 work pract ices because i t took employees "out of the system on

half a day a month", thereby requiring them to be rep laced . It

was a lso thought t ha t t he re was an element of d i scr imina t ion

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between those female clerks who were p rmitted to ake

i	advantage	of	arrangement	the	and	those	who	were no t ,	and
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I	between	female	and	wale	clerks.
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i There is SONE c o n f l i c t in evid nce the as t o t h e

number of c l e r k s who were permi t ted to accrue the ha l f day

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I leavs. There 1 s som? evidence t o suqqes t tha t l though some 11

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i o r 12 female clzrks were pe rmi t t ed to :hare in 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
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were doing so. Hriving regirrd t o a l l t h e evidence. I t h i n k

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I t he rz were aboht 2 1 c l e r k s , mai? female, and mp loyed a t

Villa~qood in September 1982 (when the award was made) and that

of that number about 1 2 were en t i t l ed to t ake advan tage of the

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arrangement t o a c c r u e a half ~iay shopping leave per mmlth.

However. I do nct think anything turns on the exac t number of

c l e r k s who ;?ere permi t ted s i ra i l o thense lves of the

arrangement.

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5.

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

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mcluded the following:

Q.	'"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 a
xeek?---It is a management conslderation of
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

I	time accrued for a special purpose."
(Trsnscript p. 5.1)

arranT?ment would c o n s t i t u t s part of the terms and conditions

of 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:

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"Before you were mployed by 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.
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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 me 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 of the normal

s t a r t i n g tlms 09 8.30 Monday t o Tnursday and I

a i d e d by t h j t . "

( T r a n s c r i p t p. 1 0 )

I 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 of

c lause 9 ( d ) of 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

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evidence s tab l i shed tha t at the t ime of 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 of working normal hours l e s s t han those r e fe r r ed I

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 as a

custom or p r a c t i c e and fo r t ha t r ea son it 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.

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I t i s necessa ry to cons t rue c1 .9 (d ) i n i t s s e t t i n g as

p a r t of c1.9. Clause 9(a) provides tha t , s u b j e c t t o

except ions, the ordinary hours of work of day c l e r i c a l

employees shall be 40 per week t o be worked i n 5 days of not

more than 8 hours each between two d i f f e r e n t s p r e a d s of hours.

Clause 9 ( b ) provides t h a t the spread of hours prescribed by

c 1 . 9 ( a ) may be a l t e r ed as t o a l l o r a s ec t ion of t h e employees

by 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 in 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 a 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 In 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 40 per week. IMIlere the re 1s such a custom or

p rac t l ce . i t is to cont inue .

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The task i s t o d i s c o v e r the meaning of c 1 . 9 ( d ) ,

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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 of 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 ) v 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

of 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 to 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. "

It i s c l e a r that t h e r e was a 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 to work less than

the hours set out In 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 or

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 be accepted. In my opinion the

evidence estL&lishes that i-lfie11 the award :?as lnade the normal

hours of : JEL-~ f o r c l ? r i c a i * ztaff at 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 .

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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 of the special

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

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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.

I 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

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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

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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

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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.

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