The Australian Workers' Union v Zoom Personnel & Training Pty Ltd US Group Pty Ltd T/A CMR Personnel

[2013] FWC 5181

[2013] FWC 5181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Zoom Personnel & Training Pty Ltd
US Group Pty Ltd T/A CMR Personnel
(C2012/6638)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 JULY 2013

Alleged dispute in relation to employee entitlement for ‘Picnic Day’.

Introduction

[1] The Australian Workers’ Union (the AWU) made an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedures of the Zoom Recruitment and the Australian Workers’ Union Regional Rail Link Work Package C Alliance Agreement 2012 1 (the Zoom Agreement) and the US Group Pty Ltd and the Australian Workers’ Union Regional Rail Link Work Package C Alliance Agreement 20122 (the US Agreement).

The matter in dispute

[2] The AWU and Zoom Personnel & Training Pty Ltd (Zoom) and CMR Personnel (CMR) (the Respondents) are in dispute as to whether casual employees are entitled to be paid for picnic day.

The industrial instruments

[3] Clause 18 of the Agreements provides for the resolution of disputes. Clause 18 provides that if disputes are not able to be resolved by agreement between the parties, the Fair Work Commission can arbitrate the dispute.

[4] Clause 12 of the Agreements provides for an entitlement to public holidays as follows:

“12.1 Entitlement public holidays

Employees other than casual employees will be entitled to the following public holidays subject to preceding clauses:

New Year’s Day

Australia Day

Labour Day

Good Friday

Easter Saturday

Easter Monday

Anzac Day

Queen’s Birthday

Melbourne Cup

Christmas Day

Boxing Day

Any other day declared by or under a law of the State of Victoria to be observed generally within the State is a public holiday.

An additional day (Picnic Day) shall be taken on the first Monday in December each year.

An employee may be requested to work on a public holiday. The employee may refuse the request if the employee has reasonable grounds to do so.

12.2 Public Holiday Work

All work performed on any of the public holidays in this Agreement shall be paid for at the rate of double time and a half.

An employee required to work on a public holiday shall be afforded at least four hours work or paid for four hours at the appropriate rate.

An employee required to work on the Saturday following Good Friday shall be afforded at least four hours work or paid for four hours at the appropriate rate.”

Evidence of the Applicant

[5] Mr Sam Wood gave evidence for the AWU. It was his evidence that the AWU became aware that casual employees were not paid by the Respondents for the 2012 Picnic Day. He was told by a representative of the Respondents that casual employees were not entitled to picnic day and would not be paid for the picnic day as the head contractor, Thiess would not reimburse them for that cost.

[6] It was his evidence that the Agreements made with the Respondents were in identical terms to the agreement made between Thiess and the AWU (the Thiess Agreement). It was his evidence that Thiess Agreement was based on the M80 agreement made between the CFMEU, the AWU and Thiess (the M80 Agreement) and in relation to picnic day the terms were identical.

[7] It was his evidence that during the negotiations for the M80 Agreement, Thiess agreed to an additional day off for picnic day but were reluctant to use the word picnic day. Consequently it was agreed that there would be a reference to the picnic day in the public holiday clause. It was his evidence that there had never been any suggestion that casual employees under the Thiess agreement or the M80 Agreement would be not entitled to be paid if they did not work on picnic day.

[8] Clause 12 of the M80 Agreement is in the same terms as the disputed clauses in the Agreements.

[9] Mr Wood gave evidence that in 2010 and 2011 casuals employed by Thiess under the M80 Agreement were paid for picnic day.

[10] Mr Wood gave evidence that casual employees were always paid a day’s pay for not working on picnic day in the construction industry and that an examination of construction agreements made with both the CFMEU and the AWU support such a finding.

[11] Mr Wood exhibited a number of agreements to support this submission. For example the Think Civil and CFMEU agreement 3 at clause 43 provides that all employees shall, as far as practicable, be given and shall take this day as a picnic day without deduction of pay. The ABC Civil Group and AWU agreement4 provides at clause 36.2 that the Building Industry Day will continue to apply for the life of the agreement and at 36.2 (b) provides that all permanent employees shall, as far as practicable, be given and shall take this day as an Industry day without deduction of pay. The BRC Piling & Foundations and CFMEU agreement5 provides at clause 43 for a Building Industry Picnic Day and provides that all employees shall, as far as practicable, be given and shall take this day as picnic day without deduction of pay. The Mataniel Laurate and AWU agreement6 provides at clause 12 for public holidays in the same terms as the agreements in this dispute. The Sergi Group and CFMEU agreement7 provides at clause 43 for a Building Industry Picnic Day and it provides that all employees shall, as far as practicable, be given and shall take this day as picnic day without deduction of pay as do the Kannenieks and CFMEU agreement8 and the Melbourne City Concrete and CFMEU agreement.9

[12] Despite the different words used in these agreements, Mr Wood gave evidence that it was common practice in the building and construction industry that all employees get paid for picnic day. 10

[13] Mr Wood submitted that many casuals working on the regional rail project were paid for picnic day.

[14] The AWU submitted that the use of the term “additional day” in clause 12 makes it clear that the picnic day is not a public holiday and therefore the opening sentence of clause 12 does not apply to the additional day. 11

[15] It was submitted that the National Employment Standards make it clear what public holidays are, and picnic day is not a public holiday. 12

[16] It was submitted that picnic day was not a day declared by the State government as a public holiday.

[17] The AWU submitted that I must interpret the agreement in the industrial context in which the agreement exists. 13

[18] The industrial context, it was submitted, was that an agreement was made with the head contractor (Thiess), and the terms of the agreement flowed to the subcontractors without change. Therefore it was submitted that the intentions of the head contractor and the union are relevant. The AWU submitted that when Thiess and the AWU negotiated their agreement for the regional rail link it was their intentin that casuals would get a paid day’s leave for picnic day. It was submitted that because the agreements before me are pattern agreements, the parties to those agreements are taken to have the same intention. 14

[19] The AWU accepted that in 2011 Zoom did not pay casual employees, on the M80 Agreement, picnic day. 15

[20] The AWU support their contention that picnic day is not a public holiday by reference to the casual loading test case 16 which held that the casual loading compensated employees for not getting paid for public holidays. In calculating loss for casual employees of unpaid public holidays, it was accepted that employees in Victoria receive 11 public holidays. It was submitted that the casual loading does not compensate employees for not getting paid for picnic day.17 The difficulty with this submission is that casual employees get no additional compensation if a State government declares an additional public holiday. If work is not performed on an additional public holiday casual employees do not get paid.

[21] The AWU rejected the contention that the reference in clause 18 in the US agreement is a reference to Victorian Code Implementation Guidelines.

Submissions of the Respondent

[22] The Respondents did not call any evidence in support of their contentions.

[23] The Respondents submitted that while the Commission could arbitrate the disputes, in relation to the US dispute, any decision of the Commission could not be inconsistent with the Code Implementation Guidelines. It was submitted that because this was a Victorian government funded project the code implementation guidelines referred to in clause 18 of the US Agreement was the Implementation Guidelines to the Victorian Code of Practice for the Building and Construction Industry (Victorian IR Guidelines). These guidelines took effect from 1 July 2012. 18

[24] The Respondents accepted that there was no negotiation associated with these agreements. That being said, it was submitted that the Respondents were entitled to read the agreements and assume the agreements meant what they said. 19

[25] The Respondents submitted that there was no universal practice in the construction industry of paying casual employees a day’s pay for picnic day and that this is evidenced by the very agreements that the AWU tenderedd in the proceedings. Some of the agreements provided that all employees were entitled to picnic day; some of the agreements dealt with picnic day in a separate clause to public holidays; some agreements limited the entitlement to paid leave to permanent employees. It was submitted that there was insufficient evidence on which the Commission could conclude that there was a practice in the construction industry that casual employees were paid for not working on picnic day.

[26] The Respondents submitted that picnic day was a public holiday for the purposes of clause 12 of the Agreements and it is clear from the first paragraph of clause 12 that casual employees are not entitled to be paid for public holidays. 20

[27] The Respondent submitted that the decision of other contractors to pay casuals for picnic day is an irrelevant consideration in this matter. 21

[28] It was submitted that there was no evidence that the AWU raised the issue of casuals’ entitlement to a paid picnic day during the negotiations for the agreements. 22

[29] It was further submitted that there is no provision in the agreements which entitle casuals to be paid the picnic day if they do not work.  23

[30] The Respondent submitted there was no ambiguity or uncertainty about the agreements. 24

Principles of construction

[31] Vice President Lawler set out detail in Watson v ACT Department of Disability Housing and Community Services the legal principles to be adopted when construing awards and agreements. 25 A Full Bench in The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited26 cited Vice President Lawler with approval and made reference to the decision of Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited.27 Logan J said:

“The starting point must always be the language employed by the parties to an industrial agreement but industrial context and purpose are always relevant when construing that language.”

[32] The Full Bench concluded that “the extract from Watson and the approach of Logan J, inform the manner in which we approach the test of construing the agreement and leads to the conclusion that regard must be had to extrinsic material in order that the meaning of the clause in question may be properly understood.”

[33] I adopt the approach endorsed by the Full Bench.

Conclusion

[34] To support its submission that there was a universal practice in the construction industry for casual employees to be paid for picnic day the AWU referred to various agreements. However those agreements themselves evidenced a variety of approaches to picnic day. Some of the agreements deal with picnic day in isolation however even then, there are differences. Some clauses provide that all employees can take picnic day without deduction of pay whereas others limit this entitlement to permanent employees. The AWU itself entered into an agreement with ABC Civil Group in 2012 which limited the entitlement to picnic day without deduction of pay to permanent employees. It is therefore not possible to conclude on the evidence before me that it is the industrial practice in the construction industry that casuals are entitled to a day’s paid leave for picnic day.

[35] I accept generally the submission of the AWU that a contractor who enters into a pattern agreement accepts the common industrial understanding of the provisions of the agreement. It cannot subsequently complain that it did not understand what it was signing. However in this case there is insufficient evidence before the Commission to establish what the common understanding about picnic day was.

[36] I accept the submissions of the AWU that picnic day is not a public holiday as the term public holiday is generally understood and as it is defined in the National Employment Standards. However for the purposes of these agreements picnic day is treated as a public holiday. So much was accepted by the AWU when it conceded that if the casual employees worked on picnic day they would be paid at double time and a half. 28

[37] In any event if the AWU is correct and picnic day is not a public holiday then there is no other provision in the Agreements that requires casuals to be paid for a day they do not work and unless picnic day is a public holiday for the purpose of these agreements, casual employeeswould be paid single time for working on picnic day.

[38] I therefore conclude that under these agreements, casual employees are not entitled to a paid day off for picnic day.

[39] Because of this conclusion, it is not necessary to determine whether the reference in the US Agreement to the code is a reference to the Victorian code.

DEPUTY PRESIDENT

Appearances:

S Wood for the Applicant

A Dalton for the Respondents

Hearing details:

2013.

Melbourne:

16 April.

 1   [2012] FWAA 2870

 2   [2012] FWAA 4054

 3   [2012] FWAA 1622

 4   [2012] FWAA 1691

 5   [2012] FWAA 5785

 6   [2012] FWAA 5122

 7   [2012] FWAA 29

 8   [2012] FWAA 5966

 9   [2012] FWAA 6904

 10   Transcript PN 210

 11   Ibid at PN 516-521

 12   Ibid at PN 530

 13   Ibid at PN 529

 14   Ibid at PN 553-556

 15   Ibid at PN 584-92

 16   Print T4991

 17   Transcript PN 683-684

 18   Exhibit R1 at [6]-[8]

 19   Ibid at 744- 745

 20   Exhibit R1 at [17]

 21   Ibid at [27]

 22   Ibid at [28]

 23   Ibid at [29]

 24   Ibid at [30]

 25 [2008] AIRC 29 at [7]-[15]

 26   [2010] FWAFB 4801

 27 [2010] FCA 591 at [39]

 28   Transcript PN 500

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