ALHMWU v Manilla RSL & Ex-Servicemens' Club Limited

ALHMWU v Manilla RSL & Ex-Servicemens' Club Limited - [2000] NSWIRComm 122 - NSWIRComm 2000 case summary — Zoe

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Matter No IRC 159 of 2000 NOTIFICATION UNDER SECTION 130 BY THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, LIQUOR AND HOSPITALITY DIVISION, NEW SOUTH WALES BRANCH v MANILLA RSL & EX - SERVICEMENS' CLUB LIMITED Dispute re: failure to roster employees in accordance with the award DECISION 1 This matter involves a dispute between the Australian Liquor, Hospitality and Miscellaneous Workers' Union, Liquor and Hospitality Division, New South Wales Branch ("ALHMWU") and the Manilla RSL and Ex-Servicemens' Club Limited ("the Club"). 2 The dispute is over an interpretation of the provisions of the Club Employees (State) Award ("the Award") relating to the time for the taking of paid crib breaks during a shift and whether the taking of such breaks should be recorded on a roster, along with working hours, for a relevant period of work. 3 The dispute was notified pursuant to s 130 of the Industrial Relations Act 1996 ("the Act") by the ALHMWU on 17 January 2000. Kavanagh J convened a Compulsory Conference pursuant to s 132 of the Act for 20 January and the matter came on before her Honour again on 29 January and 29 February. On 13 March 2000, the Registered Clubs' Association of New South Wales ("RCA"), which represents the Club in these proceedings, wrote to Kavanagh J indicating that it wished to exercise its rights under s 173 of the Act and, therefore, requested that the matter be referred to the President for re-allocation. Given that conciliation had not occurred in relation to the matters in dispute, the notification came on before Kavanagh J again on 17 March and 5 April. On 5 April conciliation before her Honour was unsuccessful and the file was re-allocated to me. 4 Directions in the matter were issued on 19 April 2000 and the matter was listed for hearing on 28 June 2000. 5 Mr J Barry appeared for the ALHMWU and Mr R J Morgan appeared for the RCA on behalf of the Club. 6 Affidavits were filed and served by both parties in the proceedings and these were admitted into evidence without objection. Neither party sought to cross examine on the affidavits. 7 It was common ground between the parties that the Club is covered by the Award, an award made by Patterson C on 2 July 1999. It was also accepted by both parties that pursuant to s 175 of the Act the Commission may, for the purposes of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). The Award is an industrial instrument within the meaning of s 8 of the Act. It appears, therefore, that in order to resolve the dispute I should proceed to interpret the Award, which I should say, because of its structure and terms, is not an easy instrument to interpret. Issue in Dispute 8 Manilla is a small country town of 2800 people in New South Wales. Manilla RSL employs 18 people. 9 In December 1999 a representative of the ALHMWU visited the Club and a meeting was held between the representative, the ALHMWU's delegate at the Club and the Club's Secretary-Manager. The issue discussed was the rostering of part time employees engaged under the terms of cl 10 of the Award and the ALHMWU's concern that the employees were being required to work for more than five hours without a break for a meal. [cl 10 applies to employees employed after 2 July 1999, when the Award commenced operation. Clause 9 applies to employees employed prior to the commencement of the Award]. The Club apparently advised the ALHMWU representatives that its advice from RCA was that it was not required to observe the five hour break provision in relation to part time employees taking a paid crib break under cl 10 and, further, that it was not required to show on any roster, the times for taking a paid crib break, either under cl 9 or cl 10. The ALHMWU disagreed and hence these proceedings. In the course of proceedings Mr Barry alleged that the Club was not only not showing crib breaks on a roster but also was not allowing employees to whom par 10.2.7 applies, to take the crib break. Mr Morgan did not understand this to be the case and believed that where there was an entitlement to a crib break, employees were taking the break. 10 The Club Employees (State) Award took effect from 2 July 1999. The Award applies to all persons employed in clubs in the State of New South Wales, excluding the County of Yancowinna, within the jurisdiction of the Club Employees (State) Conciliation Committee. Mr Morgan deposed in his affidavit that the intent of the parties when making the Award was to provide "increased operational flexibility within clubs."

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9.4.1 A roster shall be posted in a place accessible to all employees at least four weeks in advance. 9.4.2 The roster shall show the starting times, finishing times, meal breaks and rostered days off for the four week cycle. 9.4.3 The roster shall only be changed: a) by mutual consent at any time; b) in respect to the two consecutive rostered days off (which occur one in every four weeks) by two weeks notice; (c) when such a change is necessary because of absences or shortages of staff -12 hours notice; (d) for any other reasons - 7 days notice. 9.4.4 The roster shall be accessible for inspection on request by an officer of the Union." 15 Subclause 9.6 Meal Periods, provides that: "9.6.1 An employee shall be entitled to a meal break after each 5 hours of work. 9.6.2 The meal break shall be between 30 and 60 minutes and shall be unpaid. 9.6.3 Where the meal break is not given, then a penalty of ½ time additional to the ordinary hourly rate shall apply for all time worked beyond 5 hours (or 6 as the case may be). 9.6.4 Where the club employs less than 10 people covered by the award, then the break prescribed by subclause 9.6.2 can be substituted by a paid twenty minute crib break which can be taken, as trade permits, at any time within that day's shift, and the penalty prescribed by subclause 9.6.3 shall not apply." 16 Paragraph 9.7.1 provides that: "9.7.1 Subject to subclause 9.6.4, no employee shall be required to work more than 5 hours without a meal break except in an emergency when the meal break may be varied by up to 60 minutes." 17 The ALHMWU contended that in the light of par 9.4.2, whenever a full time employee takes a "paid twenty minute crib break" in accordance with par 9.6.4, this break must be recorded on the roster. Mr Morgan, for the Club, disagreed. He contended that the requirement to show a meal period on the relevant roster was confined to unpaid meal periods and that there was no requirement to distinguish a paid crib break from any other paid time on the roster. He further contended that it would be impracticable for the time of taking a paid crib break, which was intended to be taken at a time when trade permits on a particular shift, to be known four weeks in advance to allow for it to be rostered as the ALHMWU contends should occur. 18 Part B of cl 9 applies to part time employees employed prior to the commencement of the Award, namely, 2 July 1999. Part B deals with: 9.8 Hours of Work; 9.9 Alternative Hours of Work; 9.10 Rosters; 9.11 Penalties; 9.12 Meal Periods and 9.13 Limitations on Hours of Work.

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'It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties.' In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless." 42 The Full Bench in Bryce v Apperley went on to say: "The approach there stated, with which we agree, is consistent with that applied to the construction of instruments generally, such as in statutory construction. For instance, in Cooper Brookes (Wollongong) Pty. Limited v. Commissioner of Taxation (Cth.) (1981) 147 CLR 297 Mason J., as he then was, and Wilson J. made the following comment (at 321) : "Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended. Gibbs C.J. similarly referred in that case to the object in interpreting a statute as being "to see what is the intention expressed by the words used" (at 304) and then his Honour said (at 305): However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of the acts of the Legislature', as Lord Moulton said in Vacher & Sons Ltd. v London Society of Compositors ([1913] A.C. 107, at p.130); it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied." 43 In Kucks v CSR Ltd (1996) 66 IR 182, after eschewing a "narrow or pedantic" approach to the interpretation of awards and saying that "…it is justifiable to read the award to give effect to its evident purposes…" and that "meanings which avoid inconvenience and injustice may be strained for", Madgwick J at 184 said: "But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair and just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning." Whether Crib Breaks to be Shown on Roster under Clause 9 44 In the light of these principles I turn to the first issue for determination, namely, whether the provisions of 9.4 and 9.10 of the Award in respect of "existing employees" require that paid crib breaks be shown on a roster for a relevant period of work.

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49 The second matter for determination is whether the provisions of 10.1.9 and 10.2.9 of the Award in respect of "new employees" require that paid crib breaks be shown on a roster for a relevant period of work. 50 Paragraphs 10.1.9 and 10.2.9 are in similar terms except that 10.1.9 refers to full time employees and a four week roster and 10.2.9 refers to part time employees and a two week roster. 51 Both paragraphs require that "meal periods" be shown on the relevant roster. This is different to the requirement under sub-cll 9.4 and 9.10 which referred to "meal breaks." The use of the term "meal periods" would suggest that what is to be recorded on the roster is something different to "meal breaks." 52 Obviously a "meal break" of between 30 and 60 minutes may fall within the meaning of "meal period." Can a crib break be regarded as a meal period? I believe it can. A crib is usually a meal eaten at the workplace rather than in a place set aside for the eating of meals. Because the meal is taken at the workplace (and depending upon the applicable award and custom and practice at the workplace, an employee may also perform some work while taking the crib), the period during which the crib break is taken is usually paid time. It is to be noted that a crib break under the Award is a period of 20 minutes. 53 The term "meal period" in 10.1.9 may therefore be interpreted to encompass "meal break" referred to in 10.1.6, 10.1.7, 10.1.8 and "crib break" in 10.1.7 and 10.1.8. A similar conclusion may be reached in relation to the parallel provisions in sub-cll 10.2. I so find. 54 On this reasoning, any roster under 10.1.9 and 10.2.9 in relation to "new employees" should show both meal breaks and crib breaks for the relevant period of the roster. This is a different result to the one I arrived at in relation to "existing employees" under sub-cll 9.4 and 9.10 where I found that it was only meal breaks that were required to be shown on the roster. The question, therefore, arises as to whether the approach I have taken in interpreting the language of the Award has been too literal, leading to inconvenience, injustice or absurdity and that the most convenient or commonsense outcome should be that either both rosters show crib breaks or both rosters do not show crib breaks. 55 For example, Mr Morgan submitted that it would be impossible to roster crib breaks two or four weeks in advance in circumstances where they could be taken at any time during a shift in order to provide operational flexibility and that I should interpret cl 10 in the same way I have interpreted cl 9, that is, crib breaks need not be shown on the roster. However, it is to be noted that sub-pars 10.1.9 (a) and 10.2.9 (a) allow rosters to be changed by mutual consent at any time. 56 While consistency and ease of administration might be desirable objectives, to interpret cl 10 in the way Mr Morgan proposes would require me to give a meaning to plain ordinary, English words that is simply not available. I have searched the Award and its predecessor and have had careful regard to what the parties have put to determine whether I can produce a consistent outcome in relation to the showing of crib breaks on the rosters but there is nothing that would lead me to a conclusion different to the one I have reached.

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61 I turn to the third issue for determination, that is, whether the provisions of 10.1.6, 10.1.7, 10.1.8 and 10.2.6, 10.2.7, 10.2.8 of the Award in respect of "new employees" require that paid crib breaks be taken after each five hours of work. 62 These provisions are capable of two meanings. They may mean that an employee shall receive a crib break after each five hours of work or they may mean that the five hour requirement only applies to unpaid meal breaks. The provisions are ambiguous. 63 It was put by Mr Morgan that the provisions should be construed so that the crib breaks may be taken at any time of the shift and not be subject to the five hour provision. He said this construction is justified on the basis that cl 10 was designed to increase the operational flexibility of clubs and that this objective should be recognised by a liberal interpretation of the provisions. 64 The predecessor Award provided that an employee shall not work more than five hours without being given a meal interval, whether or not the meal interval was an unpaid meal break or crib break: cl 6 (xi). However, cl 6 (xxv) provided that as part of an alternative arrangement by mutual consent, an employer and an individual full time or part time weekly employee who had been employed for not less than four weeks could agree that, where no unpaid meal break was to be taken, the employee shall receive a 20 minute paid crib break to be taken at an agreed time during the shift. In relation to shifts greater than 10 hours the predecessor Award allowed for an agreement to be reached so that two 20 minute paid crib breaks were taken provided the employee was not required to work more than six hours without receiving a break: cl 6 (xxvi). 65 The scheme provided for in cl 6 of the predecessor Award, which allows for alternative arrangements to be made by agreement in relation to the taking of meal periods, was incorporated into the current Award in cl 19. 66 A reading of the current Award would suggest that, as a general proposition, the intent of the parties in respect of "existing employees" under cl 9 was that meal breaks and crib breaks should be taken after each five hours worked. Exceptions to this are where there is a written agreement on alternative working hours (see for example, sub-cl 9.2 and cl 19) and pars 9.6.4 and 9.12.4 where special provision is made for small clubs. 67 No doubt there are sound health and safety reasons for meal and crib breaks to be taken within a specified time. The five hour provision is not uncommon in awards generally. 68 It was submitted by Mr Morgan, however, that cl 10 in respect of "new employees" has to be read more liberally because it was the intention to achieve more operational flexibility. If I were to accept this submission it would mean, for example, that under par 10.1.8 an employer could determine unilaterally that the two 20 minute crib breaks could be given towards the end, or even the beginning, of a twelve hour shift. I cannot see that such an outcome was intended by the parties to the Award. On the other hand, 10.1.8 and 10.1.6 can easily be read to mean that on a shift that exceeds 10 hours an employee is to receive a 20 minute paid crib break after five hours work and a further 20 minute break after a further five hours of work. 69 Further, I consider it appropriate to regard pars 10.1.7, 10.1.8 and 10.2.7, 10.2.8 as beneficial provisions and to interpret them accordingly, that is to construe them in a beneficial way in the interests of the health and safety of employees, of course, within the confines of the actual language employed and what is fairly open on the words used: Khoury (M&S) v Government Insurance Office of NSW (1984) 54 ALR 639 at 650. To interpret the words in the manner proposed by Mr Morgan, that is, that the crib breaks under cl 10 can be given by the employer at any time during the shift, would, I think, require specific words such as those in 9.6.4 and 9.12.4. 70 In adopting the interpretation that I have of pars 10.1.7, 10.1.8 and 10.2.7, 10.2.8 is not to deprive Mr Morgan altogether of his flexibility because the alternatives available to an employer under cl 10 of the current Award in relation to the arrangement of working hours are considerably greater than under the predecessor Award. This is where the true flexibility lies, not in the time for taking crib breaks. 71 I note, of course, that if an employer found it necessary to achieve the extra flexibility in the taking of crib breaks, provision is made under cl 11 to do so by a "voluntary exemption agreement" for full time employees. Furthermore, under paragraph 10.1.9 it is my opinion that by mutual consent the time of taking a crib break by a full time or part time employee could be changed at any time.

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