100526156

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES JOHN WILLIAM SWEET

CLAIMANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF AGRICULTURE

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE  THURSDAY, 18 NOVEMBER 2004

CLAIM NO M 159 OF 2004

CITATION NO. 2005 WAIRC 00012

_______________________________________________________________________________ 

Representation 

Claimant Ms SJ Thomas of the Civil Service Association of Western Australia Incorporated appeared as agent for the Claimant.

Respondent Ms R Hartley (of Counsel) instructed by the State Solicitors Office appeared for the Respondent

_______________________________________________________________________________

Reasons for Decision

Introduction

1         The Claimant employed the Respondent as a Quarantine Inspector from 10 January 1983 until 19 November 2003.  The provisions of the Public Service Award 1992 and the Public Service General Agreement 2002 (the Agreement) governed his employment.

2         In April 2003 (the material time) the Claimant worked as a shift worker rostered on duty an average of seventy-five hours per fortnight including regular work on weekends and public service holidays.  The roster for April 2003 dictated that the Claimant was to work on Good Friday (April 18) and Anzac Day (25 April) both of which were public service holidays.  However on 4 March 2003 the Claimant submitted an application for annual leave to cover the period 4 April 2003 to 4 May 2003 inclusive.  The application for leave was granted.  Accordingly the days that the Claimant was absent on approved annual leave were those days, which the Claimant would have worked, but for the taking of annual leave including 18 April 2003 and 25 April 2003.  It follows that the Claimant did not work the Good Friday public holiday and the Anzac Day public holiday because he was on annual leave.  If he had not been on annual leave he would have been required to work those days.  Subsequently and as a result of that the Respondent debited the Claimant’s annual leave entitlement for 18 and 25 April 2003.

3         The Claimant asserts that he should not have had annual leave deducted for those two days and that they should have been treated as public holidays or that he should have received two public holidays in lieu because he is entitled to public holidays in addition to annual leave.  The Claimant seeks to recover two days pay at the applicable rate, being that prevailing at the time the annual leave was taken.

Pivotal Issue

4         The pivotal issue requiring determination is whether it can be established on the balance of probabilities that the Respondent has breached clause 24(1)(a) of the Public Service Award 1992 (the Award) by not allowing the Claimant as a holiday with pay, Good Friday and Anzac Day 2003.  It is not disputed that the Award binds the parties and that the Agreement does not have relevance to the issue requiring determination.

Submissions

5         The Respondent submits that, given that the Claimant was a shift worker rostered to work regularly on Sundays and public service holidays, he is entitled pursuant to clause 21(2)(d) of the Award to one week’s leave in addition to his entitlement to annual leave.  Also, pursuant to clause 23(11) of the Award, the Claimant, being a shift worker was, when proceeding on annual leave, paid the greater of the shift and weekend penalties he would have received had he not proceeded on annual leave or a loading equivalent to twenty percent of normal salary for five weeks of leave.  Accordingly the Respondent argues that the Claimant’s annual leave entitlement, in respect of the public holidays not worked whilst on annual leave, should be reduced by two days.  If that were not so, a shift worker rostered for work on a public holiday could simply take annual leave on that day and receive payment without his annual leave entitlement being affected.  In other words, the shift worker would get a “free” day off.  It is submitted that there is no unfairness in this instance with what the Respondent has done because the Claimant was given an extra week of annual leave and was paid a twenty percent loading when on annual leave on account of the fact that because he was a shift worker he might be required to work public holidays as part of his ordinary hours of duty.

6         The Claimant on the other hand submits that clause 24(1)(a) of the Award, which provides:

(1)    The following days shall be allowed as holidays with pay:

(a)    New Year’s Day, Australia Day, Good Friday, Easter Monday, Christmas Day, Boxing Day, Anzac Day, Sovereign’s Birthday, Foundation Day, Labour Day, provided that the employer may approve another day to be taken as a holiday in lieu of any of the above mentioned days.

does not operate to exclude shift workers from receiving an entitlement of ten paid public holidays per year.  It is argued that if it was the intention of the parties to the Award to exclude public holiday entitlements for shift workers then the same would have been clearly stated as has occurred with respect to long service leave.  Relevantly in that regard clause 25(7) of the Award provides:

(7)  Any Public Holiday or days in lieu of the repealed public service holidays occurring during an officers absence on long service leave shall be deemed to be a portion of the long service leave and extra days in lieu thereof shall not be granted.

7         The “annual leave” provision (clause 23 of the Award) does not contain a similar provision.  Accordingly the Claimant asserts that public holidays falling during a period of annual leave are additional to that leave.

8         Relevantly clause 21(2)(d) of the Award relating to shift work allowance provides:

(d)  An officer engaged on shift work who is rostered to work regularly on Sundays and/or public holidays shall be entitled to one week’s leave in addition to the officer’s normal entitlement to annual leave of absence for recreation.

9         The Claimant asserts that clause 21(2) provides for an extra week of recreational leave as compensation for the requirement for shift workers to work regularly on Sundays and/or public holidays but such entitlement is not in lieu of the public holiday entitlement.  The Claimant argues that his contention is supported by clause 21(2)(b) which provides:

(b)  Work performed during ordinary rostered hours on Saturdays or Sundays shall be paid for at the rate of time and one-half and on public holidays at double time and one-half.  These rates shall be paid in lieu of the allowance prescribed in paragraph (2)(a) of this clause.

Provided that in lieu of the foregoing provisions of this subclause and subject to agreement between the employer and the officer, work performed during ordinary rostered hours on a public holiday shall be paid for at the rate of time and one-half and the officer may, in addition, be allowed a day’s leave with pay to be added to annual leave or to be taken at some other time within a period of one year.

10     The Claimant says that clause 21(2)(b) recognises the entitlement to public holidays by the payment of double time and one-half for working on public holidays and that such is in addition to the extra week of recreational leave provided by clause 21(2)(d) of the Award.

11     Further it is argued that clause 21(2)(c) of the Award recognises the entitlement to public holidays by granting a day in lieu should the public holiday fall on a day that the employee is rostered off.  Again that is in addition to the extra week of recreational leave provided by clause 21(2)(d) of the Award.  Clause 21(2)(c) provides:

(c)  An officer rostered off duty on a public holiday shall be paid at ordinary rates for such day or, subject to agreement between the employer and the officer, be allowed a day’s leave with pay in lieu of the holiday to be added to the officer’s next annual leave entitlement or taken at a mutually convenient time within a period of one year.

12     The Claimant contends that he is entitled to the ten paid public holidays provided for under clause 24(1) in addition to the five week’s recreational leave provided for under clauses 21(2)(d) and 23 of the Award.  The Award contains no provision for the forfeiture of public holidays nor does it provide that any possible forfeiture is to be compensated by the provision of one week’s extra recreational leave.

Determination

13     The relevant facts set out in the introduction are not in dispute.  Nor is it in dispute that the Award binds the parties.  Accordingly it follows that the only issue requiring determination is one of law being; whether the Respondent has breached clause 24(1)(a) of the Award by failing to pay the Claimant the 2003 Good Friday and Anzac Day public holidays which occurred whilst he was on annual leave.

14     In determining this matter it is important to start by recognising that there are certain minimum conditions of employment that apply.  Indeed section 5 of the Minimum Conditions of Employment Act 1993 (the MCE Act) provides:

Minimum conditions implied in awards etc.

5.   (1) The minimum conditions of employment extend to and bind all employees and employers and are taken to be implied — 

[(a) deleted]

(aa)   in any employer‑employee agreement;

(b)    in any award; or

(c)    if a contract of employment is not governed by an employer‑employee agreement or an award, in that contract.

(2) A provision in, or condition of, an employer‑employee agreement, an award or a contract of employment that is less favourable to the employee than a minimum condition of employment has no effect.

(3) A provision in, or condition of, an agreement or arrangement that purports to exclude the operation of this Act has no effect, but without prejudice to other provisions or conditions of the agreement or arrangement.

(4) A purported waiver of a right under this Act has no effect.

(5) This section has effect subject to sections 8 and 9(1).

15     Section 8 and 9 of the MCE Act provide for limited contracting out of annual leave and minimum wage entitlements.  No similar such provision is to be found within the MCE Act appertaining to public holidays.  The minimum conditions provisions with respect to public holidays are found in Part 4 of the Act entitled “Minimum leave conditions”.  Within that Part, Division 5 headed “Public holidays” provides in section 30:

Public holidays, entitlement to pay for

30.    An employee, other than a casual employee, who in any area of the State is not required to work on a day solely because that day is a public holiday in that area, is entitled to be paid as if he or she were required to work on that day.

16     “Public holiday” is defined in section 29 of the MCE Act for the purposes of section 30 by reference to Schedule 1 of the MCE Act to include both the Good Friday and Anzac Day public holidays; being consistent with the designated public holidays set out in the Second Schedule to the Public and Bank Holidays Act 1972.

17     The entitlement to paid public holidays as provided for in the MCE Act must have been foremost in the mind of my brother Mr WG Tarr IM when he said in Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Quality Bakers Australia Limited (2003) 83 WAIG 3673 that the entitlement to paid public holidays is a “fundamental right”.  At page 3675 of that decision he said:

“It is my view that if it was the intention of either party to an agreement that employees are to forfeit such a fundamental right as public holidays, the agreement must clearly provide for such a forfeiture and if it was intended by a party, as is claimed in this case, that the forfeiture is to be compensated by five days extra annual leave, the agreement should reflect that.”

18     There he was referring to the effect that the relevant enterprise agreement, registered pursuant to section 41 of the Industrial Relations Act 1979, had upon the applicable award provisions.  Notwithstanding that, my brother’s view has equal application to the construction of the Award in this instance.  I say that because in that matter he was being asked to do the same as I am being asked to do here, that is to construct the provisions that confer entitlements upon employees.  It matters not whether the provisions conferring entitlements are found within one instrument or more than one instrument.  Accordingly I reject the Respondent’s contention that the aforementioned decision ought to be distinguished because it related to the construction of an award in the light of an agreement.  Indeed the ordinary rules of construction apply whether there be one or more instruments governing the conditions of employment.

19     In this matter the Award makes no provision for the forfeiture by shift workers of the entitlement to be paid for public holidays not worked.  Nor does it specifically state that one-week’s extra recreational leave and the extra leave loading are granted in compensation for forfeited annual leave.  Indeed it is silent on the issue.  If it were the intention of the parties that the entitlement to paid public holidays be forfeited and compensated for by other award provisions, then the same would have clearly been expressed within the Award itself.  An illustration of such is found in clause 25(7) of the Award, which clearly expresses the forfeiting of paid public service leave during periods of long service leave.  The failure to expressly provide for forfeiture supports the Claimant’s contention, which is consistent with what was said in Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Quality Bakers Australia Limited (supra).  As Commissioner Beech (as he then was) said in The Media, Entertainment and Arts Alliance of Western Australia (Union of Employees) v Western Australian Sports Centre Trust (2000) 80 WAIG 1674 at 1675:

“. . . I am not persuaded that where an industrial agreement is silent regarding a particular issue, the absence of a provision is taken as being ambiguous.”

20     There is no ambiguity falling from the Award which would require this Court to construe the Award in the manner suggested in Norwest Beef Industries Ltd and Another v WA Branch, Australian Meat Industry Employees Union (1984) 64 WAIG 2124. 

21     There is nothing before the Court which would indicate that the Claimant is not entitled to the ten public holidays provided for under clause 24(1) in addition to the five week’s recreational leave provided for in clause 21(2)(d) and leave loading as provided for in clause 23(11) of the Award.  Such is consistent with the view expressed by Commissioner Mansfield in his determination of the application made pursuant to section 170LW of the Workplace Relations Act 1996 in the matter of Australian Municipal, Administrative, Clerical and Services Union – Western Australian Branch v Western Power Corporation delivered on 16 March 2004 (Print No 944613) in which he said at paragraph 21:

“The basis for the awarding of extra annual leave for continuous shift workers was, in a large measure, to provide an opportunity for greater leisure time with their families to compensate for those days when they were absent from home because of being required to work on Sundays and public holidays.”

22     In any event clause 21(2)(d) does not make the entitlement to one week’s annual leave in addition to the normal entitlement contingent upon working on public holidays.  The provision itself is expressed in the alternative and could well apply to a shift worker who only regularly works Sundays.  In other words, the entitlement to an extra week’s leave is not contingent upon the worker working on public holidays.  Indeed the entitlement may arise exclusively of any public holiday consideration.  It is foreseeable therefore that if an officer was rostered to work every Sunday but not public holidays then his entitlement to an extra week’s leave would remain.  It seems to me therefore that clause 21(2)(d) of the Award cannot be read to limit the benefits conferred by clause 24(1) of the Award as the Respondent seems to have done.  It is clear that clause 21(2)(d) can operate quite independently and without any correlation to clause 24(1) of the Award.  I agree therefore with the Claimant’s contention that the entitlement to an extra week of annual leave should not be taken to be in lieu of the public holiday entitlement and, or for that matter, in lieu of the additional leave loading payable pursuant to clause 23(11) of the Award.  That approach is consistent with what Commissioner Mansfield said in Australian Municipal, Administrative, Clerical and Services Union – Western Australian Branch v Western Power Corporation (supra).

23     Furthermore clause 21(2)(b) of the Award recognises the entitlement to public holidays by the payment of double time and one-half and that such payment is in addition to the extra week of recreational leave and extra leave loading.  In the alternative and only by agreement between the officer and his or her employer, the officer may be paid at the rate of time and one-half plus be allowed a day’s leave with pay to be added to annual leave or to be taken at some other time in lieu of being paid at double time and one-half.  There is therefore within that provision the express recognition of the entitlement to paid public holidays irrespective of any other entitlement payable to a shift worker.

24     Clause 21(2)(c) of the Award also recognises the entitlement to public holidays by granting a day in lieu should the public holiday fall on a day that the employee is rostered off.  Accordingly the public holiday entitlement is not lost but rather it is preserved.  It begs the question: Why should it be lost when an employee proceeds on annual leave?

25     It seems to me that the Claimant’s situation was at the material time no different to a shift worker who was rostered off duty.  Indeed it could be argued that the Claimant had in fact been rostered off duty as a consequence of his leave application being approved.  In those circumstances clause 21(2)(c) of the Award has application.  With all due respect to the Respondent, it appears to me that the position taken in rejecting the claim is somewhat fallacious.  I say that because the Respondent’s position is that if the Claimant were not on annual leave he would have worked Good Friday and Anzac Day in 2003.  However the intervening event of the approval of annual leave meant that he was never going to work those days.  In effect the roster was changed and the Claimant was no longer rostered on duty.  He was off duty.  It cannot be said in those circumstances that if he had not been on annual leave he would have been required to work.  The fact is that he was not required to work those days.  Given that he was not required to work those days, the Claimant’s position was no different to any other person who was off duty.  He was entitled to be paid at ordinary rates, but was not.  The Respondent’s failure in that regard constitutes a breach of the Award.

26     The claim is proved.

G Cicchini

Industrial Magistrate

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