The Theatre Proprietors & Entrepreneurs Association v Australian Theatrical & Amusement Employees Association

[1989] FCA 230

Re: THE THEATRE PROPRIETORS' AND ENTREPRENEURS' ASSOCIATION and
CAMERON MACINTOSH PTY LIMITED
And: AUSTRALIAN THEATRICAL AND AMUSEMENT EMPLOYEES' ASSOCIATION
No. NI 7 of 1989
FED No. 230
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Wilcox J.(1)

CATCHWORDS

Industrial Law - Industrial award - Interpretation - Theatrical employees - Casual employees - Meal break - Whether provision for meal break applies to casual employees engaged on performance basis - Availability of double time allowance if break not taken.

Industrial Relations Act 1988 s.51.

Theatrical Employees (Live Theatre and Concert) Award 1982 cll.8, 16, 38, 19.

HEARING

SYDNEY

#DATE 9:5:1989

Counsel for the Applicants: Mr D F Rofe QC with

Mr M R Gracie

Solicitors for the Applicants: Abbott Tout Russell Kennedy

Counsel for the Respondent: Mr J W Nolan

Solicitors for the Respondent: Jones, Staff & Co

ORDER

Upon the true construction of the Theatrical Employees (Live Theatre and Concert) Award 1982, cl.16(e) thereof applies to all casual employees whether or not engaged on a performance basis, but that cl.16(b) thereof has no application to such employees.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Application has been made to the Court, pursuant to s.51 of the Industrial Relations Act 1988, for an interpretation of certain provisions of the Theatrical Employees (Live Theatre and Concert) Award 1982. The applicants are the Theatre Proprietors' and Entrepreneurs' Association and Cameron MacIntosh Pty Limited, the latter applicant being the producer of a live entertainment known as "Les Miserables". The respondent is the Australian Theatrical and Amusement Employees' Association. It appears that a difference has arisen between the parties as to the entitlement of persons, engaged by Cameron MacIntosh in connection with the production of "Les Miserables" as casual employees, to meal breaks or to a payment in lieu thereof.

1. It is not necessary for me to set out in any detail the terms of the subject award. It is sufficient to refer to some of the provisions which have been mentioned in argument. Clause 8 of the award relates to terms of engagement. It deals firstly with weekly employees: see sub-cll (a), (b), (c), (d) and (e). It then proceeds to deal with casual employees, by sub-cll (f), (g), (h), (i), (j), (k) and (l). Some of the provisions regarding casual employees are couched in general language, so as to refer both to those casual employees who are engaged for a performance and those casual employees who are not so engaged. In other cases a distinction is made between these two categories of casual employees.

2. The evidence indicates that it is common in the theatrical industry for employees to be engaged on a performance basis. These employees are not persons, or not necessarily persons, who are actively engaged in the performance onstage; but they are people whose activities are related to a particular performance. They include people such as stage door keepers, stage hands, electricians, audio technicians, persons in the wardrobe department, ticket sellers, ticket takers, programme concession sellers and the like.

3. Clause 8(g) of the award provides that casual employees shall be engaged for a minimum of three and a half hours. A distinction is made between the rates of pay for casual employees "not engaged to work a performance" -- see sub-cl (j) -- and the rates applicable to casual employees generally: see sub-cl (f). The term "performance" is defined in cl.38 of the award in the following way:
   

"'Performance' shall mean one run through of any production during which an audience is present and/or an occasion when any video, film, audio-recording or broadcasting is undertaken."

1. Clause 16 is the clause directly relevant to the present dispute. It is headed "MEAL INTERVALS AND ALLOWANCES". sub-clause (a) commences "Meal intervals shall be as follows:" and then sets out certain intervals, being either of one hour or one half hour between particular hours of the day, during which each of the meals of lunch, dinner, supper and breakfast shall be allowed. sub-clause (b) provides:
   

"(b) If employees are required to work during the time when a meal interval should be allowed pursuant to this clause, they shall be paid for such time worked at the rate of double time. Provided that those employees working during the preparation of a stage production for the period of seven days preceding the opening of the production shall be paid at the rate of time and a half in lieu of the aforesaid double time except on Sundays when the double time rate shall be paid and public holidays when double time and a half shall be paid."

sub-clause (c) provides that:

"(c) No part of the time that should be allowed as a meal interval shall be counted as part of the ordinary hours of work within the meaning of clause 9."

sub-clause (d) deals with the position of an employee who has worked between 12 midnight and 8 am. sub-clause (e) provides:

"(e) Casual or part-time employees who work for more than four hours shall be entitled to a minimum meal break of 30 minutes."

sub-clause (f) provides for the provision of a meal or meal allowance for any employee who is required to work two performances back to back.

1. The principal submission made on behalf of the applicants is that sub-cl (e) does not apply to those casual employees who are engaged on a performance basis. This submission is not based upon the content of the award itself, but rather from what is said to be the absurdity of reading the award in such a way as to entitle a person who is engaged for the purposes of a performance to a meal break of 30 minutes during the course of that performance. It is pointed out that it would often be most inconvenient to, indeed possibly destructive of, the orderly presentation of a performance for a casual employee engaged on a part time basis to be given a meal break of 30 minutes during that period.

2. I do not accept the submission that sub-cl (e) does not apply to casual employees engaged on a performance basis. I can appreciate that, in the case of some such employees, it would be well nigh impossible for them to leave their work for a period of 30 minutes during the course of the performance; at least, impossible without disrupting the performance. On the other hand, as is conceded by counsel, there are many performance based casual employees who could find a period of half an hour during the period of a performance for a meal break. An obvious example is a ticket collector, who would be likely to have a quiet time during the middle of the performance.

3. I see no reason for reading down the word "casual" in sub-cl (e) so as to confine the application of that word to casual employees who are engaged otherwise than on a performance basis. Where the draftsman of the award wished to make a distinction between casual employees engaged on a performance basis and casual employees not so engaged, this was made clear: see the examples in cl.8. I see no reason why similar words could not have been used in cl.16(e), had this been the intention. I reject the primary position taken on behalf of the applicants that cl.16(e) has no application to casual performance based employees.

4. On behalf of the respondent it is submitted that, if cl.16(e) applies, it follows that those employees who do not take a meal break within the period of their casual employment are entitled to double time pursuant to cl.16(b). I have difficulties with this proposition.

5. It seems to me that cl.16(a) is intended to relate to permanent employees, not to casual employees. It is true that cl.16(a) is not, in terms, limited to permanent employees and that it does not, in terms, exclude an application to casual employees. However, the express provision for casual employees in sub-cl (e) indicates that this was the intention. It is a general canon of construction that, where specific reference is made to a category of persons or to a particular situation, more general provisions, which may or may not apply to such persons or such a situation, will be read down so as to avoid repetition or inconsistency.

6. Furthermore, there seems to me to be some improbability about the draftsman intending to confer, for example, a one hour lunch break between defined hours upon a casual employee who may be called in for a very short period and paid for the minimum period of three and a half hours. I add to this the fact that sub-cl (c) takes the trouble to guard against the time allowed for a meal interval being counted as part of the ordinary hours of work -- within the meaning of cl.9, and this being a clear reference to permanent employees -- without making any similar provision in regard to casual employees.

7. I think that the better view is that sub-cl (a) was intended to deal with permanent employees and sub-cl (e) with casual employees. I add the further observation, upon which I do not put a great deal of weight as consistency of language is not a notable feature of many industrial awards, that sub-cl (a) speaks of "meal intervals"; whereas in sub-cl (e) the term used is "meal break".

8. The next question is whether sub-cl (b) is intended to apply to a casual employee who has not in fact been allowed the minimum meal break of 30 minutes. The better view is that sub-cl (b) does not so apply. sub-clause (b) commences by referring to a situation under which employees are required to work "during the time when a meal interval should be allowed pursuant to this clause". The use of the word "time" suggests that the draftsman had in mind the particular times nominated in sub-cl (a), not the 30 minute break referred to in sub-cl (e). I think that sub-cl (b) was intended to relate directly to sub-cl (a), and only to sub-cl (a). It was designed to cover the situation where a person was forced to work through a stipulated period of the day during which a meal interval was to be allowed. This situation occasions an element of hardship; consequently, it is not surprising that it was thought appropriate to provide pay for such work at a penalty rate.

9. Rejection of the view that sub-cl (b) applies to casual employees entitled to a meal break under sub-cl (e) does not deprive the latter provision of utility. As I have said, there would no doubt be many casual employees, whether employed on a performance basis or otherwise, who are able to take a meal break of 30 minutes during the period of their casual engagement. Where it happens that the period which would otherwise be the totality of the period of casual engagement is so busy that no meal break can be taken, I see no difficulty with the proposition that, at the time when the engagement would otherwise come to an end, the employer is forced to continue the engagement for a further period of 30 minutes in order to give to the employee that period as a meal break. It may be, of course, that, in practice, the employer is happy to allow the employee to go home at that time but, if that course is taken, the employee would be entitled nonetheless to payment, but at ordinary rates, for the 30 minute period. It seems to me that this position makes sense of the provisions.

10. It is not for me to comment as to whether the construction which I favour leads to a reasonable result, in terms of what ought to be granted to employees in this particular situation. One of the matters which was listed in cl.39 of the award, in respect of which leave was reserved to the parties to apply to vary the award, is, and I refer to sub-cl (m) of that clause:
    

"(m) The provisions of clause 16 - Meal Intervals and Allowances insofar as they relate to casual employees."

As counsel for the applicants points out, the very existence of this reservation rather suggests that cl.16 was not seen as making comprehensive provision for casual employees. But, in terms of the result, its present importance is that it allows either party to take the issue up again before the Industrial Relations Commission. It may be that one or other of the parties will wish to take advantage of the leave reserved in order to have a variation of cl.16 which will more nearly approach its view as to the desirable position. All that I can do is to construe the award as it presently stands and, in my view, the construction which I have set out above is the proper construction of the words which have been used.

1. It follows that neither party has been successful in its primary submission. I think that the course that I should take is to make a declaration as follows: I declare that, upon the true construction of the Theatrical Employees (Live Theatre and Concert) Award 1982, cl.16(e) thereof applies to all casual employees whether or not engaged on a performance basis, but cl.16(b) thereof has no application to casual employees. I make a declaration in those terms.