ALHMWU v Manilla RSL & Ex-Servicemens' Club Limited

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."

Clause 9 of the Award 11 Clause 9 of the Award has as its title "Existing Employees" and provides that "existing employees" means those employed in the appropriate category in the Award prior to the commencement of the Award on 2 July 1999. 12 Part A of cl 9 applies to full time employees. Part A deals with: 9.1 Normal Hours of Work; 9.2 Alternative Hours of Work; 9.3 Full Sporting Club; 9.4 Rosters; 9.5 Penalty Payments; 9.6 Meal Periods and 9.7 Limitations on Hours of Work. 13 The immediately relevant provisions of sub-cl 9.2 are as follows: "9.2 Alternative Hours of Work 9.2.1 Where the employer and either

a) an individual full-time employee with at least 4 weeks service; OR b) a two-thirds majority of full-time employees within a club or a section of a club freely agree in writing (using the form in Clause 19) to adopt an alternative method of working the 38 hour week, then that agreed method shall apply provided that: c) ……….. d) ………. e) ……….. f) ……….. g) ……….. h) ……….. i) ……….. j) if it is agreed to work more than 5 hours without a meal break, no penalty applies; k) where no meal break is agreed upon, the employee shall receive 1 x 20 minute paid crib break if the shift is 10 ordinary hours or less and 2 x 20 minute paid crib breaks if the shift exceeds 10 ordinary hours. At no time shall the employee be required to work more than 6 hours without a crib break." 14 Subclause 9.4 Rosters, provides that:

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.

19 The immediately relevant provisions of sub-cl 9.9 are as follows:

"9.9 Alternative Hours of Work 9.9.1 Where the employer and a part-time employee with at least 4 weeks service freely agree in writing (using the form in Clause 19) to adopt alternative hours arrangements, the following can be modified: a) Shifts of up to 12 ordinary hours duration may be worked. b) Where shifts are of more than 10 ordinary hours duration, 2 x 20 minute paid crib breaks are substituted for the unpaid meal break." 20 Subclause 9.10 Rosters, provides that: "9.10.1 A roster shall be posted in a place accessible to all employees at least four weeks in advance. Such rosters shall be accessible, on request, for inspection by an officer of the Union.

9.10.2 A roster shall show the starting times, finishing times, meal breaks and rostered days off for the four week cycle.

9.10.3 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 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." 21 Subclause 9.12 Meal Breaks, provides that: "9.12.1 An employee shall be entitled to a meal break after each 5 hours of work;

9.12.2 The meal break shall be between 30 and 60 minutes and shall be unpaid;

9.12.3 Where the meal break is not given, then a penalty of 1/2 times additional to the ordinary hourly rate shall apply for all time worked beyond 5 hours (or 6 in an emergency);

9.12.4 Where the club employs less than 10 people covered by this award, then the break prescribed by subclause 9.12.2 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, in which case the penalty prescribed by subclause 9.12.3 shall not apply. " 22 Paragraph 9.13.1 provides that: "9.13.1 Subject to subclause 9.12.4 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." 23 The respective contentions of the ALHMWU and the Club about the interpretation of 9.10.2 and 9.12.4 were the same as each of them put in relation to 9.4.2 and 9.6.4, namely that the ALHMWU argued that paid crib breaks must be shown on the relevant work roster whereas the Club disagreed and said that it was only unpaid meal breaks that need to be shown.

24 Clause 10 is titled "New Employees" and applies to employees employed after the commencement of the Award.

25 Part A of cl 10 deals with full time employees and has only one sub-cl, namely, 10.1 Hours of Work.

26 Paragraph 10.1.6 provides that: "10.1.6 Subject to subclause 10.1.7 and 10.1.8 of this award, an employee shall be entitled to an unpaid meal break of not less than 30 minutes or more than 60 minutes after each 5 hours of work." 27 Paragraph 10.1.7 provides that: "10.1.7 Where an unpaid meal break is not to be given, the employee shall be entitled to a 20 minute paid crib break." 28 Paragraph 10.1.8 provides that:

"10.1.8 Where the shift the employee is required to work exceeds 10 ordinary hours, the employee shall, instead of receiving an unpaid meal break, receive two 20 minute paid crib breaks." 29 Paragraph 10.1.9 provides that: "10.1.9 A roster showing starting and ceasing times for the ordinary hours of duty together with meal periods for full-time employees shall be posted four weeks in advance in a place accessible to all employees and shall not be changed except: a) by mutual consent at any time; b) when such a change is necessary because of absences or shortages of staff-12 hours notice; c) for any other reason - 7 days notice." 30 Part B of cl 10 deals with part time employees and has only one sub-cl, namely, 10.2 Hours of Work. 31 Paragraph 10.2.6 provides that: "10.2.6 Subject to subclauses 10.2.7 and 10.2.8 of this award, an employee shall be entitled to an unpaid meal break of not less than 30 minutes nor more than 60 minutes after each 5 hours of work." 32 Paragraph 10.2.7 provides that: "10.2.7 Where an unpaid meal break is not to be given, the employee shall be entitled to a 20 minute paid crib break." 33 Paragraph 10.2.8 provides that: "10.2.8 Where the shift the employee is required to work exceeds 10 ordinary hours, the employee shall, instead of receiving an unpaid meal break, receive two 20 minute paid crib breaks."

34 Paragraph 10.2.9 provides that: "10.2.9 A roster showing starting and ceasing times for the ordinary hours of duty together with meal periods for part-time employees shall be posted two weeks in advance in a place accessible to all employees and shall not be changed except:

a) by mutual consent; b) when such a change is necessary because of absences or shortages of staff-12 hours notice; c) for any other reason - 7 days notice; d) such roster shall be accessible, on request, for inspection by an officer of the Union. 35 The ALHMWU contended that by virtue of 10.1.9 and 10.2.9 an employer was required to show any crib break taken by an employee in accordance with 10.1.7 or 10.2.7 on a roster for the relevant period. Further, the ALHMWU contended that by virtue of 10.1.6 and 10.2.6 an employer was required to provide a paid crib break "after each 5 hours worked." The Club, on the other hand, contended that there was no requirement to show the paid crib break on the relevant roster and further, that a paid crib break may be given and taken at any time during the shift and that the five hour break provision did not apply to the taking of paid crib breaks. Issues to be Determined 36 In summary, the issues to be determined are: 1) 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, and; 2) 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, and;

3. Whether the provisions of 10.1.6, 10.1.7 and 10.1.8 of the Award in respect of "new employees" require that paid crib breaks be taken after each five hours of work; and

4. Whether paid crib breaks under par 10.2.7 must be allowed by the employer. Principles applying to Interpretation of Awards 37 The starting point in construing the Award is the terms of the Award itself and the interpretation of such instruments is to be the same as any other instrument of legal force.

38 In Geo A Bond & Co. Ltd (in liquidation) v McKenzie [1929] 28 AR 498 at 503 Street J said: "Now speaking generally, awards are to be interpreted as any other enactment is interpreted." 39 In Short v F W Hercus Pty Ltd (1993) 46 IR 128 at 136 Burchett J said: "The principles of statutory interpretation referred to are not inapplicable to an award which seeks, in a way, to legislate for the terms and conditions of employment of a number of persons engaged in a particular industry." 40 It seems clear that in approaching the task of interpreting an award the starting point is the words of the award itself and their plain, ordinary English meaning: Bryce v Apperley (1998) 82 IR 448 at 452.

41 In Bryce v Apperley the Full Bench of the Commission in Court Session referred with approval to the approach proposed to award interpretation by Olney J in Norwest Beef Industries Ltd v Australasian Meat Industries Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 where his Honour said: "If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd, 30 WAIG 539, at 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said:

'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.

45 Sub-clauses 9.4 and 9.10 are identical except for the way in which the right is expressed for an officer of the Union to inspect the roster. Both sub-clauses require that the roster show "meal breaks" for a four week cycle.

46 Sub-clauses 9.6 and 9.12 refer to "meal breaks" which are to be unpaid and between 30 and 60 minutes duration. An employee is entitled to a "meal break" after each five hours worked. If the "meal break" is not given a penalty applies for all time worked beyond five hours or beyond six hours in the case of an emergency. 47 A crib break, which is also referred to in sub-cll 9.6 and 9.12, is different to a "meal break." A crib break is a paid break which may be taken in substitution for a meal break in certain circumstances. That is, where a club employs less than 10 people covered by the Award the crib break can be taken, as trade permits, at any time within a day's shift and the penalty applicable where a "meal break" is not given does not apply. It seems to me that on the plain meaning of the words, sub-cll 9.4 and 9.10 only require that "meal breaks" and not "crib breaks" are to be shown on the relevant roster. 48 In this regard, I note that the title of sub-cll 9.6 and 9.12 is "Meal Periods." This term embraces both meal breaks and crib breaks appearing in the sub-clauses and adds weight to the view that meal breaks and crib breaks are to be given different meanings. This construction does not, in my opinion, lead to any absurdity. I can understand that there might be some concern on the part of the ALHMWU that it is not able to ascertain whether an employee has been given the required crib break because neither the time and wages record as required to be produced by cl 5 of the Award, nor the roster required by sub-cll 9.4 and 9.10, will show the break. But that is more a matter to be remedied by an award variation if the parties consider that to be necessary "not by a judicial construction of the Awards which would affect the meaning of the plain, ordinary meaning of the words used so as to disturb retrospectively the rights and liabilities of the parties": Bryce v Apperley at 454.

Whether Crib Break to be Shown on Roster under Clause 10

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.

57 I note that the predecessor Award contained the following provision in relation to meal periods and rosters: "Clause 6 Hours Section A - Standard Hours - Except where an alternative pattern of working hours is adopted pursuant to Section B of this clause, the following terms shall apply:

(i) …… (ii) …… (iii) …… (iv) …… (v) …… vi) …… (vii) …… (viii) …… (ix) …… (x) …… (xi) Meal Period - An employee, including a part-time employee, shall not be required to work more than five hours without being given a meal interval. Such meal interval shall not be less than 30 minutes, nor more than 60 minutes; however no penalty shall be payable where due to emergency, such meal period is varied by not more than 60 minutes; provided that where it is not possible to grant the meal interval in any shift the said meal interval shall be treated as time worked and paid at the rate of half time additional at the ordinary weekly rate until released for a meal; provided further that the crib break provided for in subclause (iii) of clause 15, Overtime, shall count as a meal interval for the purposes of this subclause. (xii) . . . . (xiii) . . . . . (xiv) . . . . . . (xv) A roster showing starting and ceasing times for the ordinary hours of duty of weekly and part-time employees and meal periods four weeks in advance shall be posted in a place accessible to all employees and shall not be changed except as follows: (a) in respect of the consecutive days off referred to in paragraph (b) of subclause (x) of this clause - by two weeks notice or by mutual consent; (b) in respect of other matters, by seven days notice, or by mutual consent, or when such change is rendered necessary by the absence of other employees from duty or shortages of staff, in which case 12 hours notice shall be sufficient.

Every employer shall, by legible notice, which shall bear the date when it is affixed, exhibit and keep exhibited in a place accessible to employees the commencing times, ceasing times and off duty time of all weekly and part-time employees for each day of the week and the rostered days off duty each week. Such notice shall be accessible for inspection on request by the Secretary, or other officer of the Union authorised to inspect such notice."

58 Having regard to my earlier reasoning, the interpretation of sub-cl (xi) and (xv) would be that a crib break is to count as a meal interval for the purpose of sub-cl (xi), that a meal interval is a meal period and that sub-cl (xv) requires meal periods to be shown on a roster. Hence a crib break should have been shown on a roster under the predecessor Award.

59 No material was brought by either party to show what the industry practice had been under the predecessor Award in relation to the showing of crib breaks on rosters and no material was put as to how the provisions under the predecessor Award influenced the drafting of the terms of the Award under consideration in these proceedings. 60 I am, therefore, left the words themselves and the context in which they appear in the Award. I have attributed to them what I consider to be their plain, ordinary meaning.

Whether Crib Breaks are to be taken after five hours work under Clause 10

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.

Whether Crib Breaks under Paragraph 10.2.7 are to be allowed by the Employer 72 As mentioned earlier, Mr Barry alleged that employees of the Club were not receiving their paid crib beaks in accordance with par 10.2.7. Mr Barry relied on Annexures '1' to '5' of his affidavits to support his allegation. These annexures are work rosters for various periods of time at the Club and they do not show, as part of the roster, times for the taking of paid crib breaks. The fact that the rosters do not show the times for taking paid crib breaks does not necessarily mean they were not taken. There is really no evidence before me one way or the other on this issue. 73 In any event, the entitlement of an employee to a 20 minute paid crib break under par 10.2.7 is unambiguously clear. Where an unpaid meal break is not to be given , the employee shall be entitled to a 20 minute paid crib break and on my interpretation of sub-cl 10.2, an employee shall receive that crib break after each five hours of work. 74 I note that sub-par 10.1.9 (a) enables a roster showing meal periods to be changed by mutual consent at any time. With respect to crib breaks, sub-par 10.1.9 (a) only allows the employer and employee to agree to changing the time for the taking of the crib break during a particular shift. It does not mean that it may be agreed between an employer and employee to forego altogether the taking of a crib break on a shift. Orders

75 I make the following orders: 1. That the true meaning and intent of sub-cll 9.4 and 9.10 of the Award in respect of "existing employees" is that these provisions do not require that the paid crib break prescribed by par 9.6.4 be shown on a roster for a relevant period of work, and; 2. That the true meaning and intent of pars 10.1.9 and 10.2.9 of the Award in respect of "new employees" is that these provisions require that paid crib breaks be shown on a roster for a relevant period of work, and;

3. That the true meaning and intent of pars 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" is that these provisions require that paid crib breaks are taken after each five hours of work; and

4. That the true meaning and intent of par 10.2.7 is that paid crib breaks must be given by the employer and taken on the shift in respect of which the entitlement accrues.

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