Transport Workers' Union of Australia-Queensland Branch v Suez Recycling and Recovery Pty Ltd T/A Suez

[2017] FWC 3108

[2017] FWC 3108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Transport Workers' Union of Australia-Queensland Branch
v
Suez Recycling and Recovery Pty Ltd T/A Suez
(C2017/648)

COMMISSIONER SPENCER BRISBANE, 6 JUNE 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] The Transport Workers' Union of Australia (the Applicant) made an application, pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute resolution procedure in the SUEZ environnement Australia - Recycling & waste recovery Brisbane Drivers Enterprise Agreement 2015 for Drivers engaged in SUEZ environnement Australia - Recycling & waste recovery operation of the Brisbane City Council's Contracts (the Agreement).

[2] The parties agreed on the following question for arbitration:

“What is the appropriate penalty rate payable to drivers employed by Suez Recycling and Recovery Pty Ltd T/A Suez (the Respondent) who worked on 27 December 2016?” 1

[3] The Respondent was a waste and recycling collection and transportation business, contracting on behalf of the Brisbane City Council. 2 The ordinary hours of work for the Respondent’s employees occurred between Monday and Friday.3 The Respondent’s employees who worked outside of these hours were entitled to overtime rates.4

[4] The Respondent’s employees who worked on 27 December 2016 were paid “for the public holiday that was observed on this day as well as receiving payment for the hours worked on this day at the rate of time and a half”. 5 The Applicant submitted that the applicable rate payable on this date was payment for ordinary hours normally rostered, and a rate of double time for all work performed.6

[5] The matter was subject to conciliation before another Member of the Commission, however could not be resolved. Accordingly, the parties sought that the matter be arbitrated.

[6] There were no questions of fact in dispute between the parties, and therefore it was not necessary to conduct a hearing on the evidence. 7 The parties sought for the matter to be determined on the papers.

[7] Whilst not all of the submissions have been referred to, all of such have been considered in the determination of this matter.

RELEVANT PROVISIONS

[8] The disputes settlement procedure is set out in Appendix 3 of the Agreement:

“Appendix 3 – Dispute Resolution Procedure

1) If a dispute relates to:

(a) a matter arising under the agreement; or

(b) the National Employment Standards;

(c) a matter pertaining to the relationship between SITA and the Employee.

this term sets out procedures to settle the dispute.

2) An Employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

3) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors and/or management.

4) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Commission.

5) Fair Work Commission may deal with the dispute in 2 stages:

(a) Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if Fair Work Commission is unable to resolve the dispute at the first stage, Fair Work Commission may then:

i. arbitrate the dispute; and

ii. make a determination that is binding on the parties.

Note: If Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.

A decision that Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

6) While the parties are trying to resolve the dispute using the procedures in this term:

(a) an Employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(b) an Employee must comply with a direction given by SITA to perform other available work at the same workplace, or at another workplace, unless:

i. the work is not safe; or

ii. applicable occupational health and safety legislation would not permit the
work to be performed; or

iii. the work is not appropriate for the Employee to perform; or

iv. there are other reasonable grounds for the Employee to refuse to comply
with the direction.

7) The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term.”

[9] The dispute concerned the application of clauses 9.1 and 10.1(c) of the Agreement as set out:

“9. PUBLIC HOLIDAYS

9.1 Payment for all Public Holidays worked shall be in accordance with the Penalty Rates provisions in the Award.

…

10. OVERTIME & PENALTY RATES

10.1 What are overtime rates for full time Employees?

The overtime rate payable to full time Employees depends on when the overtime is worked, for example:

…

(c) Public Holidays

Good Friday and Christmas Day will be paid at triple time. All other holidays will be paid at double time and a half. An Employee required to work on public holidays will be paid a minimum payment of four (4) hours.”

[10] Pursuant to clause 5 of the Agreement:

“5. RELATIONSHIP TO THE AWARD AND WRITTEN CONTRACT OF EMPLOYMENT

5.1 What is the relationship between this Agreement, the Waste Management Award 2010, the Transport Workers' (Refuse, Recycling and Waste Management) Award 2001 (the Award) and any written contract of employment?

This Agreement shall be read and interpreted in conjunction with the Transport Workers' (Refuse, Recycling and Waste Management) Award 2001 to the extent permitted by law.

Where this Agreement covers or deals with a matter referred to in the Award, this Agreement shall take precedence in relation to the matter. Where this Agreement is inconsistent with the Award, this Agreement shall take precedence over the Award to the extent of the inconsistency.

Whilst this Agreement remains in operation, the Waste Management Award 2010, which may cover Employees under this Agreement, will not apply, unless specifically provided for in this Agreement.

This Agreement shall take precedence over any written contract of employment to the extent of any inconsistency.

Nothing in this Agreement is intended to provide an Employee with a lesser entitlement than the minimum legal entitlements allowed by the National Employment Standards. Where this Agreement does provide an Employee with a lesser entitlement than allowed by the National Employment Standards, the Employee shall be paid or provided with the higher entitlement in the National Employment Standards.”

[11] It was not disputed that the reference to “the Award” in clause 9.1, was a reference to the Transport Workers' (Refuse, Recycling and Waste Management) Award 2001 (the Award). Accordingly, clauses 38.1.4, 38.4 and 38.5 of the Award provide:

“38.1.4 In relation to full time workers whose ordinary hours are regularly rostered to be worked on a Saturday or Sunday, when substitution occurs because Christmas Day falls on a weekend, ordinary hours worked on 25 December will attract additional loading of half a normal day’s wage for a full day’s work in addition to the Saturday/Sunday rate and the employee will also be entitled to the benefits of the substituted public holiday.

…

38.4 For all time worked by a weekly employee on such holidays, payment shall be made at the following rates:

On Good Friday and Christmas Day - double time;

On any other holiday - ordinary time and a half.

The minimum payment shall be as for four hours' work.

38.5 Payment for work on a holiday shall be in addition to any amount payable in respect of the weekly wage. Provided that, if an employee is required to work on a holiday other than Good Friday and Christmas Day during hours which, if the day were not a holiday, would be outside the range of ordinary working time as mentioned in clause 35 - Overtime of this award, he/she shall be paid for such hours at double time and a half instead of the ordinary time and a half as herein before provided in this subclause. Provided further that he/she shall be paid treble [sic] time for all overtime worked on Good Friday and Christmas Day.”

[12] The Holidays Act 1983 (Qld) sets out:

“2 Public holidays

(1) A public holiday is to be observed on the days set out in the schedule.

(2) Subsection (1) applies subject to section 3.

…

Schedule Public holidays

…

27 December

A public holiday is to be observed on 27 December only if 25 December is a Saturday or Sunday.”

SUMMARY OF THE APPLICANT’S CASE

[13] The Applicant submitted that the penalty rate payable to drivers, who worked on 27 December 2016, was the same rate that was payable to drivers who worked on 25 December 2016. 8

[14] It was not disputed that 25 December fell on a Sunday in 2016, giving rise to the operation of the Schedule of the Holidays Act 1983 (Qld). It was therefore, accepted that 27 December 2016 was a public holiday.

[15] The Applicant submitted that in reading clause 38.4 of the Award, together with the first sentence of clause 38.5 of the Award, the applicable rate on 27 December 2016 was “payment for ordinary hours normally rostered; and double time for all work performed, minimum of four hours”. 9

[16] The Applicant relied on clause 38.1.4 of the Award, and submitted that 27 December 2016 was a substitute public holiday for Christmas Day, and the penalty rate payable on 25 December 2016 would therefore, also apply on 27 December 2017. 10

[17] The Applicant argued that this interpretation was consistent with the Public Holidays Test Case, 11 where it was found that when Christmas Day fell on the weekend, it was appropriate to substitute a later weekday. The Applicant submitted that this was also consistent with the approach in clause 38.1.4 of the Award.

[18] The Applicant submitted that in applying the ordinary principles on the construction of statutory instruments, 12 the Respondent’s position was indefensible, as it would render clause 9.1 “superfluous, void or insignificant”,13 as its operation would be made redundant by clause 10.1.

[19] The Applicant submitted that clauses 9.1 and 10.1 of the Agreement were in conflict, 14 and that clause 9.1 should prevail as the relevant provisions in the Award are consistent with the approach taken in the Public Holidays Test Case.15

[20] The Applicant referred to s.9 of the Holidays Act 1983 (Qld), which provided that in 2010, when a similar instance occurred, it was declared by Gazettal that 28 December 2010 was to be “a public holiday for Christmas Day”.

[21] The Applicant argued that the introduction of the Schedule into the Holidays Act 1983 (Qld) “resulted in 27 December 2016 becoming… the substitute public holiday for 25 December 2016”. 16 The Applicant referred to the Explanatory Memorandum to the Holidays and Other Legislation Amendment Bill 2011 (Qld) where it was stated that:

“Under the current public holiday arrangements when Christmas Day, Boxing Day or New Year's Day fall on a weekend the day ceases to be a public holiday and a substitute public holiday is appointed (usually on the following Monday).

Workers working on the original date of the public holiday receive only their usual weekend payment for the day and do not have the right of refusal to work on the day. It is considered unfair that weekend workers do not receive public holiday penalty rates for working on the most important public holidays in the year.

Community comments received in response to the discussion paper indicates that there is wide support for changing public holiday arrangements in line with the proposals.” [emphasis added]

[22] It is noted, however that in its later submissions, the Applicant submitted that Parliamentary speeches and Explanatory Memorandum are of limited relevance, in these circumstances. 17 The Applicant argued that the substance of the dispute did not concern a semantic interpretation of the Explanatory Memorandum and Parliamentary speeches,18 as “[t]he language used simply reflected the pragmatic fact that whenever "substitution" occurred, the public holiday status of the actual day disappeared and a group of workers could be called upon to work on days like Christmas day with no penalty rates payable. The [Holidays Act] was amended so that both the actual day and additional day would take the character of the same public holiday”.19

[23] In summary, the Applicant submitted that “one cannot sever the relationship between Christmas Day and the weekday selected by the Parliament to observe it when it falls upon a weekend. Both are regarded as the one and the same and ss.9-10 reflect this fact”. 20

[24] Mr Gregory Wood, Driver employed by the Respondent, provided an affidavit in this matter. 21 Mr Wood stated that the last time 25 December had fell on a Sunday, he and other drivers were paid at a rate of double time for all work performed on 27 December.22

[25] The Applicant submitted that its reading of the Agreement “does not result in one clause having to be discarded as if it didn’t exist”, 23 as the result in applying clause 9.1 or clause 10.1 is effectively the same.

SUMMARY OF THE RESPONDENT’S CASE

[26] The Respondent submitted that pursuant to clause 9.1 of the Agreement, the function of the Award, is such that it “provides for the interpretation of what should be paid to employees that work on Public Holidays”. 24

[27] The Respondent submitted that clause 10 of the Agreement, pertains to work performed outside of ordinary working hours, and that the work performed by employees on 27 December 2016 occurred during ordinary working hours. 25

[28] The Respondent argued that clauses 9 and 10 of the Agreement apply in differing circumstances; clause 9 to be applied for work performed on public holidays within the range of ordinary working hours, and clause 10 to be applied for work performed outside of the range of ordinary working hours. 26

[29] The Respondent submitted that to interpret these clauses without taking into account the respective headings, “provides for a narrow and convenient interpretation, clearly not what was intended when the agreement was made”. 27 The Respondent therefore, submitted that clause 10.1(c) had no bearing on the rate payable to employees who worked on 27 December 2016.28

[30] The Respondent submitted that the intention of clause 9.1 of the Agreement was clear in its reliance on the relevant provisions in the Award. The Respondent referred to the Public Holidays Test Case, 29 where it was found that the States may prescribe other public holidays outside of those in the Award. It was argued that these days were intended to be “extra” or “additional” public holidays, and not substitutes for prescribed public holidays provided for in the Award.30

[31] The Respondent referred to the Explanatory Reading and the Explanatory Notes of the Holidays and Other Legislation Amendment Bill 2011 (Qld), which amended the Holidays Act 1983 (Qld). The notes provided that:

“Replacement of schedule

Clause 6 omits the current Schedule and replaces it with a new Schedule that sets out the days on which holidays are to be observed and provisions for substitute and additional public holidays.

The Schedule includes the following new arrangements regarding observance of public holidays:

the Queen's Birthday public holiday to be on the first Monday in October from 2012,
an additional public holiday in the following week when Christmas Day, Boxing Day or New Year's Day public holidays fall on a weekend (commencing from Christmas 2011/New Year 2012).” [emphasis added]

[32] The Respondent submitted that it was clear from the intention of the amendment to “prescribe an additional public holiday when Christmas Day fell on a weekend”. 31 The Respondent argued that the situation in 2010, whereby pursuant to the Holidays Act 1983 (Qld) s.9, the Minister by Gazettal substituted 28 December 2010 for a public holiday for Christmas, can be distinguished as the effect of the 2011 amendments to the Holidays Act 1983 (Qld) (that is, the insertion of the Schedule) removed such a requirement.32

[33] The Respondent argued that 27 December 2016 should not, be treated as a substitution for 25 December 2016, and as such should be treated as “any other holiday” pursuant to clause 38.4 of the Award. 33 Accordingly, it was submitted that the appropriate penalty rate for work performed on this day was ordinary time and a half.34

[34] The Respondent submitted that clause 38.1.4 of the Award has no bearing on the dispute, stating that there were no “full time workers whose ordinary hours are regularly rostered to be worked on a Saturday or Sunday”. 35

[35] The Respondent accepted that any penalty rate, should be made in addition to any amount payable in respect of the weekly wage. 36

[36] It was submitted that the evidence of Mr Wood was irrelevant, as custom and practice should not be considered in the interpretation of the Agreement and the Award in these circumstances. 37

CONSIDERATION

[37] The question for arbitration, as agreed between the parties, was: what is the appropriate penalty rate payable to drivers employed by the Respondent who worked on 27 December 2016?

[38] Accordingly, the matter in dispute concerned the treatment of 27 December 2016; and whether it is to be regarded as either public holiday that has been substituted for 25 December 2016, or as an additional public holiday.

[39] The relationship between the Agreement and the Award, pursuant to clause 5.1 of the Agreement, is such that the Agreement is to be “read and interpreted in conjunction” with the Award, however to the extent that the Agreement deals with a matter in the Award, or if the two are otherwise inconsistent, the Agreement is to take precedence.

[40] It is therefore, necessary to consider whether there is any actual inconsistencies between the Agreement and the Award, in respect of the provisions in dispute. This relationship, has been considered concurrently whilst dealing with the substance of the relevant provisions of the Award and the Agreement.

[41] The Applicant submitted that the extrinsic evidence relied on by the Respondent, the Explanatory Reading and Explanatory Notes to the Holidays Act 1983 (Qld), was not relevant to the treatment of 27 December 2016. Further, it submitted that:

“…there is no force in the point about the alleged distinction between “substitution” and “additional”. It could also lead to absurd results. For example, what does one designate 27 December in a year when the Schedule to the [Holidays Act] makes it a public holiday? "The additional public holiday due to Christmas day falling on a weekend that has no relationship to Christmas Day?" or just “The additional public holiday for 27 December” in shortened form?” 38

[42] Whilst the Applicant referenced the Explanatory Reading and Explanatory Notes to the Holidays Act 1983 (Qld), it later submitted their irrelevance.

[43] Regardless of these observations, the ordinary principles of the interpretation of Agreements should be applied to this dispute. When considering whether extrinsic material may be used to interpret the provision of agreements, the Full Bench in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited stated that:

“[30] Regard may therefore be had to evidence of the surrounding circumstances before the existence of ambiguity in an agreement is identified as an aide to interpreting the agreement for the purposes of determining whether an ambiguity exists. If thereafter ambiguity is not identified extrinsic material cannot be used to contradict the language of the instrument. If ambiguity is identified the material may be used as contextual material to aide in the interpretation of the instrument…

…

[58] In our view the provisions of the Agreement at issue have a plain meaning and the extrinsic material does not make good any of the propositions advanced by the Appellant and nor does that material identify any ambiguity in the relevant provisions of the Agreement. The dispute was capable of being resolved, by reference to the plain language of the Agreement.” 39

[44] It is similarly the case in the present dispute. On the plain reading of the Agreement, clause 10.1(c) pertains to penalty rates paid to full time employees who work overtime, that is outside of their ordinary working hours. Therefore, it has no bearing on the rate payable to employees who worked during ordinary working hours on 27 December 2016.

[45] The plain meaning of clause 9.1 is clear and uncontested, in that it provides the Award as the starting point to calculate public holiday penalty rates. The question then turns on the application of clause 38.4.

[46] The plain and ordinary interpretation of clause 38.4 is that work performed on Good Friday and Christmas Day attracts a penalty rate of double time, in addition to the ordinary amount payable by operation of clause 38.5. There is nothing to suggest that Christmas Day means anything other than 25 December 2016, for the purposes of interpreting this provision. There is no ambiguity in this regard, and therefore it is not necessary to consider any extrinsic material. It is the case however, that 27 December 2016 can be described as “any other holiday”, by operation of the Schedule in the Holidays Act 1983 (Qld).

[47] The final question to be determined is whether clause 38.5 applies to work performed on 27 December 2016. Similarly to the reasons set out in relation to the application of clause 10.1 of the Agreement, this clause has no bearing on work performed during ordinary working hours on public holidays; with the exception of the first sentence of the clause, which provides that payment for work on any holiday, should be made in addition to the weekly wage.

CONCLUSION

[48] The rate payable to drivers employed by the Respondent who worked on 27 December 2016, was ordinary time and a half, provided that the work was performed within the ordinary working hours of those employees, but for the fact that it was a public holiday. This rate applies, in addition to any amount payable in respect of the weekly wage.

COMMISSIONER

 1 Submissions of the Applicant dated 28 April 2017 at [1]; Submissions by the Respondent dated 19 May 2017 at [1].

 2 Submissions by the Respondent dated 19 May 2017 at [2].

 3 Ibid at [4].

 4 Ibid at [5].

 5 Ibid at [6].

 6 Submissions of the Applicant dated 28 April 2017 at [8].

 7   Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 at [14].

 8   Applicant’s Form F10 – Application at 3.1.

 9 Submissions of the Applicant dated 28 April 2017 at [8].

 10 Ibid at [19].

 11   4 August 1994, Print L4534.

 12   See for example Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.

 13 Ibid at [71]; Submissions of the Applicant dated 28 April 2017 at [16].

 14 Submissions of the Applicant dated 28 April 2017 at [18].

 15 Ibid at [19].

 16 Ibid at [22].

 17   Submissions of the Applicant in Response dated 26 May 2017 at [4]-[6].

 18 Ibid at [9].

 19 Ibid at [10].

 20 Ibid at [12].

 21   Affidavit of Gregory David Wood dated 28 April 2017.

 22   Ibid at [4]-[5].

 23 Submissions of the Applicant dated 28 April 2017 at [28].

 24 Submissions by the Respondent dated 19 May 2017 at [11].

 25   Ibid at [10], [13].

 26 Ibid at [15].

 27 Ibid at [16].

 28 Ibid at [19].

 29   Print L4534.

 30   Submissions by the Respondent dated 19 May 2017 at [23]-[29].

 31 Ibid at [38].

 32 Ibid at [46].

 33 Ibid at [57].

 34 Ibid at [67].

 35 Ibid at [32].

 36 Ibid at [28].

 37 Ibid at [60].

 38 Submissions of the Applicant in Response dated 26 May 2017 at [11].

 39   [2014] FWCFB 7447 at [30].

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