Tempo Services Ltd v Robinson - [2005] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
TEMPO SERVICES LTD v ROBINSON AND ANOR
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)
29 April 2005
INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL INSTRUMENTS - MAKING AND INTERPRETATION OF INDUSTRIAL INSTRUMENTS - MAKING OR INTERPRETATION OF PARTICULAR AWARDS OR AGREEMENTS
Respondents were employed by appellant - Industrial award provided that employees receive additional payment if required to work permanently on afternoon or night shift - Award provided for lesser additional payment if employees worked permanently on afternoon or night shift at their own request - First respondent stated preference for night shift in application for employment - Second respondent indicated that he was available to work night shifts, so as to fit in with requirements of employer - Second respondent had been offered afternoon shift but declined, preferring the night shift - The words "employees required to work permanently" mean "employees who do work permanently" - A requirement to work permanent night shift does not require resistance by the employee or an imposition against the will of the employee - Both respondents were required to work permanently on night shift - The words "at their own request" require a specific and identifiable solicitation by employee - Neither respondents' allocation to permanent night shift was "at their own request" - Respondents entitled to higher additional payment - Appeal dismissed
Industrial and Employee Relations Act 1994 ss 94, 191, referred to.
Commissioner for Public Employment v Dunk and Australian Liquor Hospitality and Miscellaneous Workers' Union (1999) 66 SAIR 401; Geo A Bond & Co Ltd (in Liq) v McKenzie [1929] AR (NSW) 498; City of Wanneroo v Holmes (1989) 30 IR 362; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, applied.
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, discussed.
Re Rates of Pay for Work Performed on Saturdays and Sundays (1947) 58 CAR 610, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"required to work permanently" - "at their own request"

TEMPO SERVICES LTD v ROBINSON AND ANOR
[2005] SASC 161
Full Court: Doyle CJ, Vanstone and White JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by White J. There is nothing that I wish to add.
VANSTONE J: I agree with the orders proposed by White J and with the reasons he has given.
WHITE J
Introduction
This is an appeal from a decision of the Full Bench of the Industrial Relations Court.
The respondents, Mr Robinson and Mr Kaeding, have been employed by the appellant. The business of the appellant includes the employment of staff to perform work in hospitals conducted by others. Each of the respondents carried out work at the Queen Elizabeth Hospital.
On 11 March 2003, an Industrial Magistrate dismissed applications by each of the respondents seeking orders for payment to them of monies said to be due to them under the Private Contractors (Public Hospitals) Award (“the Award”). The Award was made by the Industrial Relations Commission of South Australia under the Industrial and Employee Relations Act 1994 (“the IERA”).
Each of Mr Robinson and Mr Kaeding appealed against the dismissal of their claims. On 7 November 2003, Judge McCusker, sitting as a single Judge of the Industrial Relations Court, allowed those appeals.
The appellant then appealed to the Full Bench of the Industrial Relations Court. One Notice of Appeal only was lodged with both Mr Robinson and Mr Kaeding being named as respondents to that appeal. On 6 October 2004, the Full Bench of the Industrial Relations Court dismissed the appeal.
Leave to appeal to this Court, pursuant to s 191(1)(b) of the IERA, was granted by a Judge of this Court on 11 November 2004. One Notice of Appeal, naming each of Mr Robinson and Mr Kaeding as respondents, was filed.
The question on the appeal concerns the entitlement of each of the respondents to payment of a penalty rate prescribed by the Award for employees required to work permanently on night shift. The resolution of this question turns principally on the construction of Clause E4 of the Award and, in particular, of Clause E4(c).
The Award Provisions
The Award applies to the performance of ancillary health services by employees of contractors in hospitals, health units or health centres incorporated under the South Australian Health Commission Act (Clause A3). The Award governs the employment of persons engaged in a wide range of occupational callings (Clause A3(b)). Each of Mr Robinson and Mr Kaeding worked in occupations governed by the Award. It was common ground that the Award applied to their employment.
The Award prevailed over the contracts of employment between the appellant and Mr Robinson and Mr Kaeding respectively to the extent that the Award was more beneficial to them than those contracts (s 94 of the IERA).
It was common ground that the hospitals to which the appellant was supplying employees were engaged in a 24 hour service. By contract with the hospitals and other institutions, the appellant had contracted to provide employees 24 hours per day and seven days per week. Accordingly, the performance of shift work was a necessary incident of the work. The Award contains a number of provisions stipulating the entitlement of employees of the appellant working in such circumstances.
Of particular significance in the present case are the provisions for penalty rates for those working afternoon and night shifts.
Clause E4 of the Award provides as follows:
(a)     Afternoon and Night Shift
(i)    An employee whilst working on any afternoon or night shift from Monday to Friday inclusive, except on a public holiday, shall for such shift be paid an additional payment calculated at the rate of 15 per centum of the appropriate ordinary rate of pay prescribed by clause B2 of this award.
(ii)     For the purpose of this clause afternoon and/or night shift shall mean a complete rostered shift of eight continuous hours which commences not earlier than 12 noon and finishes not later than 8.00 am.
(iii)    The additional payment prescribed by this cause shall not form part of the employee’s ordinary rate of pay for the purposes of this award.
(b)    Casual/Part-time Employees
For the purposes of this clause, a shift worked by a casual or part-time employee (other than the time worked in accordance with the employee’s own request) may be of a shorter duration than that prescribed by subclause (a)(ii).
(c)     Permanent Afternoon or Night Shift
Employees required to work permanently on afternoon or night shifts (as defined) shall be paid 30 per cent more than the ordinary rate prescribed in clause B2 of this award, provided however, that employees who work permanently on such afternoon or night shifts at their own request, shall be paid the penalty rate prescribed in subclause (a)(i) hereof.
(d)Early Morning Workers
All employees who commence work prior to 6.00 am Monday to Friday inclusive, except on a public holiday shall receive an additional payment for all hours worked up until 7.00 am calculated at the rate of 15 per centum of the appropriate ordinary hourly rate of pay prescribed by clause B2 of this award.
(e)     Eight Hour Break
An employee shall wherever practicable have at least eight hours free from duty between the completion of one rostered shift and the commencement of the next rostered shift, provided however, that where the ordinary hours of work on a rostered shift have exceeded eight hours the period free from duty shall be at least equal to the number of ordinary hours of the shift.
It can be seen that the Award requires an additional payment to be made to an employee working on the afternoon or night shift on any weekday (other than on a public holiday) (Clause E4(a)(i)). However, it requires a higher additional payment to be made to employees who are required to work permanently on afternoon or night shifts unless their working permanently on the afternoon or night shifts is at their own request (Clause E4(c)). If it is at their own request, those employees are entitled only to the additional payment at the rate of 15 per cent of the appropriate ordinary rate of pay for which Clause E4(a)(i) provides. It seems to be implicit in these award provisions that the award-maker considered that working permanently on the afternoon or night shift involves greater disadvantage to an employee than does the working of rotating shifts.
The appellant’s submission was that each of Mr Robinson and Mr Kaeding had not, in the sense contemplated by Clause E4(c), been required to work permanently on night shift or, in the alternative, if they had, that each had worked permanently on night shift at his own request.
The Circumstances of Mr Robinson
Mr Robinson commenced his employment with the appellant on 30 July 1999. With the exception of a short period during which he was recuperating from an injury, Mr Robinson worked on night shift throughout his employment.
Mr Robinson obtained his employment by approaching the appellant and inquiring whether it had any vacancies. He was then interviewed. The interviewer, a Mr Mann, used a pro forma questionnaire sheet, recording Mr Robinson’s answer against printed questions contained in the questionnaire. Mr Mann recorded Mr Robinson’s response to the question “What hours are you available?” as “Afternoon, night shift. Prefer late shift overnight. Weekends no problem”.
After the interview the appellant sent a written offer of employment to Mr Robinson, specifying the conditions upon which he was offered employment. The position offered was stipulated to be that of “Support Services Attendant”. Mr Robinson was told that he would be employed “on a permanent full-time basis”. Although he was told that his hours would be at least 38 hours per week, nothing was said in the offer of employment about shift work, or any particular shift. In his oral evidence, Mr Robinson said that he had received another letter telling him that he had been successful in securing full-time permanent night shift. That letter was not put before the Industrial Court. After commencing employment he was, with the exception of a short period whilst recuperating from an injury, always allocated night shift work. Mr Robinson admitted, in his evidence, that he did have a preference for night shift work and that he had never sought placement on a different shift.
The Circumstances of Mr Kaeding
Mr Kaeding commenced employment with the appellant on 23 August 1999. It was common ground that, with the exception of some eight to ten occasions upon which Mr Kaeding said he had worked day or afternoon shift, Mr Kaeding had always worked permanent night shift.
Mr Kaeding obtained the job by responding to a newspaper advertisement. He completed a written application for employment. In that application, he indicated that he was available to work on any of the three shifts, day, afternoon and night, and that he was available to work weekends and public holidays as well as weekdays. Mr Kaeding said that he had filled in the application in this way to indicate to the appellant that he would fit in wherever required so as to maximise his chances of obtaining employment. He agreed that he had indicated that he was prepared to work at any time.
After the interview, Mr Kaeding too was sent a written offer of employment of work on “a permanent full-time basis”. The letter offering him employment said nothing about the shift or shifts upon which he was required to work. He said that he learned from Mr Mann, at the conclusion of his training, that he would be rostered on the night shift.
Mr Kaeding also agreed that during the course of his employment he had been offered afternoon shift but had refused that offer. He explained the reasons for his refusal as being that he was happy with night shift work and because he thought that there was more work to carry out on the afternoon shift.
The appellant did not call evidence at the trial. Its then counsel told the Industrial Magistrate that the appellant accepted that each of the respondents had given his evidence honestly.
Decisions in the Industrial Court
The reasons of the Industrial Magistrate focussed on the words “required to work permanently” appearing in Clause E4(c). The Industrial Magistrate considered that those words connoted circumstances in which the employee was compelled by the employer to work permanently on afternoon or night shift. He held that neither Mr Robinson nor Mr Kaeding had been required, in this sense, to work permanently on night shift. Neither, in his view, had had no alternative but to comply with the employer’s direction that he work permanently on night shift.
On appeal at first instance, Judge McCusker took a different view. His Honour held that an employee was required to work permanently on afternoon or night shift within the meaning of Clause E4(c) if he or she did so by reason of an actual request by, or demand from, the employer.
Judge McCusker held that neither respondent was performing work permanently on the night shift as a result of his own request. He referred to a previous decision of the Full Court of the Industrial Relations Court in Commissioner for Public Employment v Dunk and Australian Liquor Hospitality and Miscellaneous Workers’ Union[1]. In that case, the Full Court had considered a proviso expressed in similar terms to the proviso contained in Clause E4(c). The Full Court held in Dunk that a request attracting the operation of the proviso occurred where a worker, having a genuine opportunity to participate in a different shift arrangement or cycle, requested, for his or her own reasons, to be allowed to commence or continue on the permanent night shift.
[1] (1999) 66 SAIR 401.
On appeal to the Full Court of the Industrial Relations Court, the Full Bench, in substance, upheld the decision of Judge McCusker. As the manner of expression of its reasons gave rise to one of the submissions of Mr Quick QC for the appellant, it is convenient to set out two paragraphs of the judgment of the Full Court concerning the words “employees required to work permanently on … night shifts”:
39.The non-standard and fixed nature of the engagement and its long-term consequences upon the quality of life of the employee strongly supports the construction that the payment of the higher penalty rate is triggered by the employee’s contractual obligation to the employer and does not require some further explicit direction by the employer.
40.In this instance the evidence is that Mr Robinson and Mr Kaeding accepted employment as permanent full-time employees who had signified their availability for shift work on their respective employment applications. Once they had commenced employment they were consistently allocated night shift with no further discussion on the topic. Such allocation by Tempo and Mr Robinson’s and Mr Kaeding’s compliance with the allocation provides the evidence to support the finding that each of them was required to work permanently on those shifts as part of their respective contracts of employment.
In relation to the proviso, the Full Bench held that the words “at their own request” contemplated a specific and identifiable solicitation by the employee. It considered that there had been no such solicitation by either respondent.
“Required to Work Permanently”
The approach to be taken to the interpretation of an industrial award is well settled. An award is to be construed in the same way as a statute or a written contract, ie, by reading the document as a whole and giving the words used in it their ordinary and grammatical meaning. It is necessary to bear in mind that many award provisions are inserted by the consent of the parties and have been drafted by laypersons without attention to the niceties of form and drafting. In some cases, the award terms have been drafted in circumstances not conducive to attention to those niceties. Furthermore, many awards are framed in the light of the parties’ own understanding of the particular customs and work conditions in the industry to which the award relates. These considerations suggest that it is often appropriate to avoid a too literal adherence to the strict technical meaning of the words used, and instead to view the matter more broadly.[2]
[2]Geo A Bond & Co Ltd (in Liq) v McKenzie [1929] AR (NSW) 498 at 503-4, per Street J; City of Wanneroo v Holmes (1989) 30 IR 362 at 378-9 per French J; Commissioner for Public Employment v Dunk & Australian Liquor Hospitality and Miscellaneous Workers’ Union (1999) 66 SAIR 401 at 406-7.
It was not suggested in this case that resort should be had to extrinsic evidence or to the history of the Award provisions for assistance in resolving the uncertainties of meaning said to exist in Clause E4(c).
The appellant contrasted the wording of Clause E4(a)(i) with the wording of Clause E4(c). Although the subject matter of both subclauses is the entitlement to an additional payment in certain circumstances, the language used in each is different. Clause E4(a)(i) entitles an employee “working on any afternoon or night shift” to an additional payment of 15 per cent, whereas Clause E4(c) (ignoring for the moment the proviso) entitles an employee who is “required to work permanently on afternoon or night shifts” to an additional payment of 30 per cent. In the former case it is the fact of working on afternoon or night shifts which gives rise to the entitlement. In the latter case, it is a requirement to work permanently on afternoon or night shifts which is expressed to give rise to the entitlement. As the Award did not use the same language in Clause E4(c) as it used in Clause E4(a)(i) the latter must, so it was submitted, entitle the employee to the additional payment in more limited circumstances.
The appellant argued that the use in Clause E4(c) of the phrase “required to work” meant that the entitlement arose only where there was “an element of real or at least perceived compulsion” on the employer’s part. That element of compulsion could arise and exist only after the employment relationship had commenced. Accordingly, if a person entered into a contract of employment, a term of which was that he or she would work permanently on night shifts, that person would have no entitlement to the additional payment for which Clause E4(c) provides. The argument was that in that circumstance, the employee was not required to work permanently on night shift or afternoon shift but had chosen voluntarily to enter into a contract of employment on that basis.
Mr Quick QC argued further that the expression “required to work” contemplated an imperative issued by the employer, ie, a direction issued against the employee’s resistance. Such an imperative did not exist, it was submitted, when all the employer had done was to allocate, by rostering, the employee to a particular shift and the employee had acquiesced in that allocation. Mr Quick also submitted that such an imperative did not exist where the employee had entered into a contract of employment, a term of which required the performance of work permanently on a night shift.
I do not accept the appellant’s submission. In my opinion, despite the difference in wording used, the words in Clause E4(c) “employees required to work permanently on afternoon or night shifts” have the same meaning as “employees who do work permanently on afternoon or night shifts”.

Clause E4(c) has to be construed as a whole. The structure of the Clause is to create an entitlement subject to a proviso. In the context of Clause E4(c) the proviso operates to qualify that which precedes it. It indicates that there are some circumstances otherwise within Clause E4(c) in which the entitlement to the additional payment of 30 per cent is not to apply. Employees who work permanently on afternoon or night shift “at their own request” are excluded from the entitlement to the additional payment. To be so excluded, such employees must otherwise have been within the opening words of Clause E4(c). If the expression “required to work” had the meaning of a direction issued by the employer against the will of the employee, as was submitted by the appellant, it is difficult to see how it could ever be said, in that circumstance, that the employee was working on permanent afternoon or night shift at his or her own request. In short, acceptance of the appellant’s submission would, in my view, deprive the proviso to Clause E4(c) of any practical effect.
The expression “required to work” or its analogue appears often in other Clauses of the Award. It does not appear to be used always with a consistent meaning. However, there are a number of instances where the expression is used to mean simply “an employee who works”. Examples include Clause E3(f)(ii) concerning work on Christmas Days, Clause E11 concerning work in cold places, Clause E12 concerning the entitlement to the patient contact allowance, and Clause E13 concerning the entitlement to the VDU allowance. As the expression is not always used in the Award with a consistent meaning, determination of the meaning of the expression by reference to other provisions is of limited utility. However, the use elsewhere in the Award of the expression with the same meaning which I consider Clause E4(c) to bear, does indicate that this was a meaning which the draftsperson considered the words could appropriately bear.
Adoption of the construction proposed by the appellant would mean that an inquiry as to the employee’s subjective state of mind at the time of acceptance of the allocation of permanent afternoon or night shift would be required before the entitlement to the additional payment of 30 per cent could be determined. This would be necessary in order to determine whether the working of afternoon or night shifts was contrary to the employee’s will, ie, whether the employer’s direction had overcome the employee’s resistance. Such an approach would, in my opinion, be productive of uncertainty. The construction of Clause E4(c) which I consider appropriate, and which I will elaborate below, permits more certainty in the application of the Clause.
I do agree that the expression “required to work” in Clause E4(c) does seem to contemplate some element of compulsion. However, in my opinion, an element of compulsion is present whenever an employee works permanently the afternoon or night shift. That element of compulsion may arise from an express term of the contract of employment that the employee work permanently on afternoon or night shift or from a direction of the employer.[3] An employer who calls on the employee to work the permanent night shift to which the employee expressly agreed as part of the contract of employment requires, in the sense contemplated by Clause E4(c), the employee to work night shift in the same way as does an employer who issues a direction to the employee that he or she is to work the night shift. The two circumstances to which I have referred will, for practical purposes, encompass all of the circumstances in which an employee works permanently on the afternoon or night shift. That being so, the expression “required to work” can quite naturally be understood as meaning the same as “an employee who works”.
[3]It is not necessary in the context of the present appeal to consider the circumstance where the employer’s direction is given unlawfully, as, for example, when it was not authorised by the contract of employment.
Mr Quick QC sought to draw support for his submission that an obligation to work permanently on afternoon and night shifts accepted by the employee as a term of the contract of employment was excluded from the reach of Clause E4(c) by reference to the well-understood purposes of penalty payments of the kind provided for in Clause E4(c). Depending on context, such penalty payments are commonly prescribed either to operate as a deterrent to the employer against employing employees in the defined circumstances, or to compensate the employees for the perceived disadvantages of working in those circumstances, or both.[4] Whichever of those rationales underlay Clause E4(c), Mr Quick’s submission was that neither should reasonably be understood to be applicable where an employee had chosen, by the entry into a contract of employment requiring permanent afternoon or night shift work, to work on that basis. Such an employee was not “required” in the requisite sense to work afternoon or night shifts permanently. Hence, as I understood the submission, Clause E4(c) should be understood as referring only to an existing employee whose contract of employment did not bind him or her to perform afternoon or night shift work permanently.
[4] Re Rates of Pay for Work Performed on Saturdays and Sundays (1947) 58 CAR 610 at 615.
I do not consider that resort to the underlying rationale of penalty payments provides assistance as contended by Mr Quick. Considerations of policy are not always useful as an aid to construction, especially where differing policy considerations point either way.[5] Furthermore, it is not readily to be supposed that the consideration of deterrence has a great part to play given that this Award applies to work which, by its very nature, has to be worked 24 hours per day seven days a week. But even if it is applicable, it is difficult to see why the deterrent function of penalty payment should not apply with the same force at the time of offering terms of employment to a prospective employee, as it does at the time of the employer issuing a direction to a current employee. Indeed, if it did not apply at both times, the deterrent could be easily avoided. As to the second rationale, the absence of need for compensation where an employee chooses voluntarily to work permanent afternoon or night shifts is the subject matter of the proviso to Clause E4(c). Having provided for that aspect in the proviso, it is not readily to be supposed that the draftsperson also sought to incorporate the same consideration into the first part of Clause E4(c).
[5]Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 129 per King CJ.
For these reasons, I do not consider that consideration of the purpose of penalty payments points to the construction for which the appellant contends.
In my opinion, the difference in manner of expression in Clause E4(a)(i) and Clause E4(c) is immaterial. Each refers to an employee who does as a fact work in the defined circumstances. It is not necessary to identify a reason for the difference in the language used in each sub-clause. It may result from an inattention to the desirability of the use of the one expression where the same meaning is intended. It may be that Clause E4(c) (or a predecessor of it) was inserted into the Award (or a predecessor) after the insertion of Clause E4(a)(i) and was drafted by a different draftsperson.
Mr Quick QC submitted that the Full Bench had found that a requirement to work permanently on the afternoon and night shifts existed if it was a term of the contract of employment that the employee work permanently on one or other such shifts but that such a requirement could not be found in a direction given by the employer after the commencement of the employment relationship. Mr Quick referred, in particular, to paragraphs 39 and 40 of the judgment of the Full Bench, which I have quoted above.
I agree that the passage from the Full Bench judgment is capable of bearing the meaning for which Mr Quick contends, but I am not sure that the Full Bench intended that meaning. It is not necessary to consider the submission further as I have already expressed my own view that Clause E4(c) applies to all employees who do work permanently on afternoon or night shifts. If the Full Bench intended in paragraphs 39 and 40 to indicate otherwise, then, in my respectful opinion, it was wrong.
“At Their Own Request”
Mr Quick QC submitted that the proviso applied where a request made by the employee was, at the least, a substantial reason why the particular employee had been required to work permanently on night shift. Such a request could be made by the employee, on his submission, either at the time of entering into the contract of employment or after the contract had commenced. It may be express or implied from conduct.
Mr Stanley, counsel for the respondents, supported the view taken by the Full Bench of the Industrial Relations Court, namely, that the words “at their own request” required a specific and identifiable solicitation by the employee. The proviso operated, in his submission, to relieve the employer from the obligation to pay the higher additional payment in circumstances in which it could be said that the requirement of the employer that the employee work permanently on afternoon or night shift resulted from a request by the employee. That is to say, where the employee caused the employer, by his or her request, to have him or her work permanently on afternoon or night shift, the employee was not entitled to the additional higher payment. Mr Stanley submitted further that such a request did not exist where all the employee had done was to indicate a willingness to work whenever rostered, or to fit in with whatever arrangements the employer required, or even where the employee had stated a preference for a particular shift.
In my opinion, the words “at their own request” in Clause E4(c) do have the meaning for which Mr Stanley contended. That is the natural and ordinary meaning of the words used in Clause E4(c). Read as a whole, that Clause provides that employees who do work permanently on afternoon or night shifts are to receive the additional payment of 30 per cent of the ordinary rate but they are not entitled to that additional payment if the reason they are working permanently on afternoon or night shift is that the employer has allocated those shifts to accommodate a request of the employee himself or herself.
This construction is consistent with that adopted by the Industrial Relations Court in Commissioner for Public Employment v Dunk and Australian Liquor Hospitality and Miscellaneous Workers’ Union to which I have already referred.[6] In that case, the Full Bench considered an award provision which entitled an employee working on night shifts which did not rotate with other shifts to an additional payment “except where [the] employee continues to work night shift at their own request”. The Full Bench held that the exception referred to those employees otherwise entitled to the additional payment who have “a genuine opportunity to participate in a rotating or alternate shift cycle but for their reasons request that they be able to continue on permanent night shift”. (Emphasis in original.)
[6] (1996) 66 SAIR 401.
In my opinion, some assistance as to the proper construction of the proviso can also be obtained from decisions of the former Australian Industrial Relations Court concerning the definition of “termination of employment” in the Convention Concerning Termination of Employment at the Initiative of the Employer. Article 3 of that Convention defines “termination of employment” to mean “termination of employment at the initiative of the employer”. In relation to that definition, the Full Court of the Industrial Relations Court in Mohazab v Dick Smith Electronics Pty Ltd (No 2)[7] said:
Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.
Later, the Full Court said, in relation to the same expression:
[P]lainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.[8] (Emphasis added.)
In the context of Clause E4(c) employees will work permanently on afternoon or night shifts “at their own request” if their request is the principal contributing factor to the decision of the employer requiring that they do work permanently on afternoon or night shifts. Whether that is so will be a question of fact in each case. In most cases, the resolution of that question of fact in the employer’s favour will require evidence from the employer as to the reasons why the employee was allocated permanently on afternoon or night shifts.
[7] (1995) 62 IR 200 at 205.
[8] Ibid.
Mr Robinson’s Claim
In Mr Robinson’s case, there was no evidence that he had made any request at all to be allocated on night shift, let alone permanently on night shift. At its highest, his response to the question “What hours are you available” was no more than a statement of availability for afternoon and night shift work and a statement of preference for the latter over the former. The evidence did not disclose that Mr Robinson had made a request to be allocated permanently to one of those shifts. The absence of any protest by Mr Robinson to the continual allocation to night shift work cannot, in my opinion, realistically be construed as a request for continued night shift work. In short, the Full Bench was correct, in my opinion, in holding that Mr Robinson’s acquiescence in the work allocated to him did not constitute “a specific and identifiable solicitation” by him of permanent night shift work.
Mr Kaeding’s Claim
In his written application, Mr Kaeding did no more than indicate that he was available to work at any of the times required by the employer. His written application cannot sensibly be construed as containing a request for any particular shift, let alone permanent placement on one particular shift.
It is true that during the course of his employment Mr Kaeding had refused an offer of afternoon shift work. In my opinion, the refusal to accept an alternative does not constitute a “specific and identifiable solicitation” for continued employment on the night shift. It is just as consistent with being an expression by Mr Kaeding of his preference. That is to say, faced with the alternatives, he expressed a wish for one rather than the other, but that is not the same thing as specifically requesting permanent night shift work.
I observe that even had Mr Kaeding accepted the offer to be placed on afternoon shift, he would still have been entitled to the additional payment referred to in Clause E4(c).
Finally, in relation to the claims of both Mr Robinson and Mr Kaeding, I note that no evidence was adduced from the employer. There was, therefore, no evidence before the Industrial Relations Court as to the reasons of the appellant for the allocation of each of Mr Robinson and Mr Kaeding to permanent night shift. In those circumstances it would have been difficult, in my opinion, for the Industrial Relations Court to conclude that the “principal contributing factor” to the placement of Mr Robinson and Mr Kaeding permanently on the night shift was something which they themselves had said or done.
Conclusion
Accordingly, for the reasons which I have given above, my opinion is that the appeal should be dismissed.