· Seven day residential care workers are unable to take their two days off each week so their only alternative is to take time off in lieu at some later occasion in addition to time off for annual leave and in lieu of public holidays.
14 Mr Lacy submitted that cl 6 of the State Award only applied to 5 day residential care workers. He contended that it was simply not possible for the two days off to be allocated to 7 day residential care workers and that it would be anomalous if 7 day residential care workers received two days off when they were on duty seven days per week.
15 In my view, the interpretation of the State Award contended for by Ms Richards is the correct one. Clause 6 makes no exception for 7 day residential care workers. The opening words, in parenthesis under the heading, show that the clause was intended to provide for time off in addition to other accrued time off. The reference in cl 6(a) to "(e)ach employee" being allowed time off is a reference to each residential care worker. In the case of a 7 day residential care worker, it was not possible for time off to be allowed. In the case of such employees, this had the consequence of bringing into immediate operation the sentence, "(t)he employer shall pay one-fifth of the employee's wage rate for each such day that is not allowed". If the employer preferred to not make that payment, the equivalent time off was entitled to be taken "at a time and for a period agreed upon by the employer and the employee".
16 There is nothing on the face of cl 6 or any other provision in the award which demonstrates that cl 6 was not intended to apply to 7 day residential care workers. There is no reason to suggest that a literal interpretation of the clause would produce absurd results. Each time a 7 day residential care worker worked seven days per week, cl 6 operated to accrue to such employee one-fifth of her or his normal weekly wage for a two day period in each week. Alternatively, time off could have been given in lieu of such entitlement with that time being added to accrued annual leave and public holidays so that a block of time off could be taken.
17 As was stated by French J in City of Wanneroo v Holmes (1989) 30 IR 362 at 378:
· an interpretation of an award begins with a consideration of the ordinary meaning of the words used;
· the words are read as a whole and in context; and
· ambiguity may be resolved by consideration of the history and subject matter of the award.
18 I received no evidence which was relevant to the task of determining why the clause was drafted in the way it was. It remained only to consider the ordinary meaning of the words used by the draftsperson in the context of the remainder of the award. Having so considered cl 6, I am in no doubt that it should be interpreted as having provided weekly time off or time off in lieu for all 24 hour care workers.
19 The fact that an interpretation of an award clause may produce odd, anomolous or unusual consequences does not justify that interpretation being departed from when the ordinary meaning of the words compel a particular result and no relevant extrinsic material exists to gainsay that result.
20 In Toyota Motor Corporation Australia Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1999) 93 IR 95, [1999] FCA 1471, the majority of the Full Court of this Court (Moore and Marshall JJ) said (at [17] and [18]):
"The preceding analysis of cl 17 is based on the language and structure of the clause when read with cl 21. It is consistent with the conclusion of the primary judge and the preferable interpretation having regard to the natural and ordinary meaning of the relevant provisions: see City of Wanneroo v Holmes (1989) 30 IR 362 at 378. It is true that it would result in an afternoon shift worker who works a shift concluding in the morning of the holiday being paid the holiday rate for the entire shift even if the shift worker received as a paid break from work the time that would otherwise be worked in the afternoon shift commencing on the public holiday. It is also true that a shift worker who worked on a shift commencing after 10.45 pm on the holiday would not receive payment at the holiday rate for a maximum of one and a quarter hours worked on a holiday even if no other work was performed on the public holiday. This latter effect of cl 17 tends against a conclusion that the clear purpose of the clause is to recompense an employee for working at any time on a public holiday which would explain the payment of holiday pay for the hours worked into the early morning of a holiday (as well as the remainder of the shift worked on the evening of the preceding day) on the construction of cl 17 advanced by the Union. However this anomaly does not, in our opinion, justify a construction of cl 21 and consequently cl 17, that treats the entitlement conferred by cl 21 as limited to a period other than the whole day.
Nor does one further anomaly identified by Toyota justify a construction of cl 17 that is contrary to what we view as the comparatively clear language of both that clause and cl 21. Toyota submitted that if it insisted that afternoon shift workers work on both the afternoon shift commencing on the day preceding the holiday but continuing into the afternoon shift commencing on the holiday then the cost to it would be the same as allowing the afternoon shift workers to absent themselves from the afternoon shift commencing on the holiday."
21 As in Toyota, it was within the power of the employer in this case to revise working arrangements so that the relevant payment did not accrue to residential care workers or to seek a variation of the award. See also Canberra Television Ltd v Australian Theatrical and Amusement Employees Association (1979) 24 ALR 529 at 532, per Bowen CJ, at 535, per Smithers J, and at 545, per Northrop J.