Australian Licensed Aircraft Engineers Association v Glyndale Pty Ltd [2009] FMCA 188

1. Glyndale credit Mr Sanderson-Miller with annual leave debited to him contrary to the AWA/s between Glyndale and Mr Sanderson-Miller;[7] 2. Glyndale credit Mr Sanderson-Miller with public holidays not credited to him contrary to the AWA/s between Glyndale and Mr Sanderson-Miller;

1. penalties be imposed under s.719 of the WR Act for breach by Glyndale of the AWA/s between Glyndale and Mr Sanderson-Miller; and

1. alternatively, an order for damages under s.719(5) of the WR Act for breaches by Glyndale of the AWA/s between Glyndale and Mr Sanderson-Miller.
2. Glyndale opposes the making of the above orders and seeks an order that the application be dismissed.

1. The following affidavits were tendered in evidence for the ALAEA:
   1. Mr Sanderson-Miller's affidavit sworn 30 July 2008;[8] and
   2. Mr Sanderson-Miller's affidavit sworn 24 September 2008.[9]
2. Glyndale led no evidence.[10]

1. ALAEA was an organisation of employees registered under the WR Act; 2. Glyndale was a corporation carrying on the business of maintenance and servicing of aircraft; and

1. for the purposes of its business, Glyndale employed Mr Sanderson-Miller as an aircraft engineer.
2. The uncontested evidence of Mr Sanderson-Miller is that he is a member of the ALAEA.[11]
3. There is no evidence:
   1. that Mr Sanderson-Miller is eligible to be a member of the ALAEA; or
   2. of the rules relating to eligibility for membership of the ALAEA.
4. There is no dispute between the parties that each of the AWAs were entered into, but there appears to be a dispute about the operative date of the 2000 AWA and the 2002 AWA. The dispute concerning the operative date of the 2000 AWA is not material to the present matter and can be disregarded. The 2002 AWA was operative from 3 January 2002 being the day specified in it, namely, the day after approval by the Office of the Employment Advocate, which approval was granted on 2 January 2002.[12]
5. For present purposes nothing particularly turns on the dispute concerning the operative dates of the 2002 AWA and the 2006 AWA.
6. There appears to be no dispute between the parties that the 2006 AWA was entered into and operative from 24 July 2006 and remained in operation at the time of the hearing.
7. The parties agree that Part 2 of the 2002 AWA and clause 4 of the 2004 AWA excluded the application of the Aircraft Engineers (General Aviation) Award 1999,[13] an award of the Australian Industrial Relations Commission. The Award was tendered into evidence by the ALAEA.
8. The parties agreed that for the period 17 December 2001 until the date of the application, and continuing thereafter, Mr Sanderson-Miller worked 10 hour days on a continuous shift roster of six days on and six days off as determined by Glyndale, save, on Glyndale's case, for any absences on leave by Mr Sanderson-Miller.[14] However, the evidence of Mr Sanderson-Miller is that the 10 hour days, six days on, six days off roster arrangements commenced some time in 2004.[15] The difference is not however material.
9. Other relevant factual matters in relation to each issue are addressed below.

1. Section 718(5) of the WR Act provides as follows:
   • (5) An organisation of employees that represents an employee who is bound by an ITEA must not apply on behalf of the employee for a penalty or other remedy under this Division in relation to a breach of an applicable provision of the ITEA unless:
   • (a) the employee has requested, in writing, the organisation to apply on the employee's behalf; and
   • (b) a member of the organisation is employed by the employee's employer; and
   • (c) the organisation is entitled, under its eligibility rules, to represent the industrial interests of the employee in relation to work carried on by the employee for the employer.
2. There is evidence:
   1. of the required written request from Mr Sanderson-Miller;[16] and
   2. that Mr Sanderson-Miller is a member of ALAEA employed by Glyndale.[17]
3. There is no evidence of:
   1. the pleaded eligibility of Mr Sanderson-Miller to be a member of the ALAEA;[18] or
   2. any entitlement of the ALAEA, under its eligibility rules to represent the industrial interests of Mr Sanderson-Miller in relation to work carried on by him for Glyndale.

The rules of the ALAEA are not in evidence. No official of the ALAEA gave evidence. Mr Sanderson-Miller gave evidence that he was a member of the ALAEA, but not as to his eligibility to be so, either at all or by way of reference to the rules of the ALAEA.

1. Glyndale did not admit the pleaded eligibility of Mr Sanderson-Miller to be a member of the ALAEA.[19] Further, it specifically did not admit whether ALAEA had standing to bring the application.[20] In Glyndale's written submissions filed on 20 September 2008[21] (more than two weeks prior to hearing) Glyndale submitted that the ALAEA "must establish ... it is entitled under its eligibility rules to represent the industrial interests of the employee [Mr Sanderson-Miller]."[22] The non-admissions constitute a traverse and operate as a denial of the claim.[23] These issues were therefore quite clearly in contest and required to be proved by the ALAEA, both because:
   1. they were contested, and the onus of proof in a claim in civil remedy proceedings is on the applicant,[24] in this case the ALAEA; and
   2. because there is a prohibition on the application being made unless the conditions in s.719(5) of the WR Act are met, the ALAEA must satisfy those conditions by proof, particularly where, as here, they are in contest.
2. The Court therefore concludes that the ALAEA has not proved that it was entitled to bring the application, because it has not proved that it is entitled under its eligibility rules to represent the industrial interests of Mr Sanderson-Miller in relation to the work he carried out for Glyndale. It follows that the application must be dismissed.
3. Lest the Court's conclusion in the preceding paragraph be wrong, and in deference to the submissions put by the parties, the Court has given consideration to the substantive issues, and sets out below reasons and conclusions with respect to those issues.

1. The ALAEA asserts that contrary to Part 4 of the 2002 AWA and clause 17 of the 2006 AWA, Glyndale has deducted two days from Mr Sanderson-Miller's accrued recreational leave for each working day of recreational leave actually taken. The ALAEA says that on the proper interpretation of the 2002 AWA and the 2006 AWA Glyndale should have deducted one, and not two, days recreational leave for each day Mr Sanderson-Miller was absent on recreational leave, and on which he would otherwise have been rostered to work. In the alternative, the ALAEA says that on the proper interpretation of the 2002 AWA and the 2006 AWA, Glyndale should have deducted 1.75, and not 2, days recreational leave from Mr Sanderson-Miller's entitlement for each day Mr Sanderson-Miller was absent on recreational leave. The ALAEA justifies this interpretation on the basis that 1.75 is the same ratio of working to non-working days in any period of 42 days commencing on the first day of any work cycle in the roster.
2. It is not in dispute that Glyndale has deducted two days recreational leave for each working day of recreational leave actually taken from Mr Sanderson-Miller,[25] but Glyndale disputes each of the interpretations of the 2002 AWA and 2006 AWA suggested by the ALAEA.

1. The parties agree that under Part 4 of the 2002 AWA and clause 17 of the 2006 AWA Mr Sanderson-Miller is entitled to 42 calendar days paid recreation leave for each completed year of service.

1. The provisions of the 2002 AWA and 2006 AWA are, in relevant respects, in the same terms with respect to recreation leave.
2. The effect of the 2002 AWA and the 2006 AWA is described as follows:
   • The Award will not apply to your employment.
   • The terms of this Agreement totally replace any previous Agreement or contract of employment that applied to your employment.[26]
3. The salary provisions of the 2002 AWA and the 2006 AWA are as follows:
   • "Annual salary" means the base salary relevant to your classification as set out in Schedule 1, ...
   • "Hourly rate" means your annual salary divided by 1824 hours.[27]
4. The annual salary and hourly rate are set out in Schedule 1 of each of the 2002 AWA and the 2006 AWA.
5. In relation to salary payments, allowances and penalties the 2002 AWA and 2006 AWA provide as follows:
   • Salary payments
   • Your salary will be paid in arrears by equal monthly installments (sic) into a financial institution nominated by you. ...
   • Allowances and penalties
   • Unless otherwise provided for in this Agreement, your salary has been calculated to incorporate award payments such as annual leave loading, shift loading, overtime penalties for extended shifts, public holiday loading and weekend penalties.[28]
6. The 2002 AWA and 2006 AWA define "Roster" as follows:
   • means a scheduled an (sic) arrangement of work days, non-work days and start and finish times for a specified period.[29]
7. The hours and rostering provisions of the 2002 AWA and 2006 AWA are as follows:
   • Basis of Employment
   • You will be employed in one of the following ways:
   • Full time employee
   • This means that you are working for us on an ongoing basis for an average of 152 hours per month in accordance with your roster.[30]
   • Rostering
   • Normal hours of work
   • Your normal hours of work will be an average of 152 per calendar month, Monday to Sunday inclusive.
   • We will determine the shift and roster patterns that best suit our operational needs. We will consult with you and take into account your personal preferences when determining rosters.[31]
8. The recreational leave provisions in the 2002 AWA and 2006 AWA are in the following terms:
   • Recreational leave
   • You are entitled to 42-calendar days paid recreational leave for each completed year of service. Entitlements will accrue on a pro-rata monthly basis.
   • We will maintain a leave roster system at each maintenance base to ensure that the outstanding leave liability does not exceed 42 calendar days. If you do not nominate a leave period within 3 months of the year's accrual becoming available we may roster you for leave providing we give you 30 days notice of the commencement date, unless otherwise agreed between you and us.
   • Recreational leave will commence on the first day following time off directly associated with your last rostered shift and will cease when you recommence work.
   • We prefer you take leave in completed shift cycle lots (ie eight days for a 4on/4off cycle). However, where we agree for you to take a lesser period as leave the application form will reflect non-accrual of days off for any rostered-on days not worked.
   • You will not receive any additional payment for recreation leave.
   • You may be recalled from recreation leave. If this occurs we will pay you at the "call-out" rate and re-credit you the appropriate number of days (i.e. 2 days off for 1 day worked on a 4 on\4 off shift cycle).
   • We will try wherever possible to minimise disruption resulting from recall from or cancellation of annual leave, and where you incur a loss of non-refundable costs, such as travel and accommodation, will re-imburse those costs provided that we have been advised prior to the recall.[32]

1. Since sometime in 2004 Mr Sanderson-Miller has worked a six days on - six days off continuous shift roster, which operates uninterrupted through week days, weekends and public holidays. Each shift is 10 hours long. The six days on shifts comprise:

1. two days commencing at 4.30am; and 2. two days commencing at 2.00pm; and

1. two days commencing at 6.40pm.[33]
2. Mr Sanderson-Miller says that on 11 February 2006 he applied for single day recreational leave absences for the following days:
   1. 24 February 2006; and
   2. 18 March 2006.[34]
3. On the Application for Leave for 24 February 2006 Mr Sanderson-Miller has ticked "Type of Leave ... Annual" and entered "8" against "Total working hours". Mr Sanderson-Miller has done likewise on the Application for Leave for 18 March 2006.[35]
4. On the Application for Leave for 24 February 2006 the following entry appears:
   • Date of first working day off: 24/2/06 Date of last working day off: 24/2/06.[36]
5. Likewise, the Application for Leave for 18 March 2006, where the first and last working day off are entered as "18/3/06".[37]
6. It is not disputed that in relation to each of the single day recreation leave absences Mr Sanderson-Miller has been debited two days recreational leave.[38] For the recreational leave on 24 February 2006 the Leave History Record shows:

Annual Leave 24/2/2006 25/2/2006 2.00[39]

1. For the recreation leave on 18 March 2006 the Leave History Record shows:

Annual Leave 18/3/2006 19/3/2006 2.00[40]

1. there is no requirement for Glyndale to promulgate a roster giving equal time for days on and days off or shift banks of a particular length or always the same length, save only that there is a requirement to have an average of 152 hours per month and to have regard for occupational health and safety considerations; 2. the entitlement is to 42 calendar days paid recreational leave on completion of a years service irrespective of the shift system;

1. the recreational leave may be taken at any time within three months of it accruing;

1. the entitlement brings with it an ability in Mr Sanderson-Miller to nominate the commencement date of the recreational leave, however that must be the first day in a work cycle; 2. the recreational leave entitlement cannot be affected by Glyndale's choice of roster system and the AWAs do not relate the recreational leave entitlement to any particular roster system being worked; 3. it is only by agreement that an entitlement to take a period of recreational leave less than 42 days arises; 4. a calendar day of paid recreational leave is a day which, if Mr Sanderson-Miller is not on recreational leave, is a day that he would have worked, and that rostered days off are not relevantly paid days; 5. Mr Sanderson-Miller cannot be on recreational leave on a day on which he would not have worked in any event; 6. Glyndale's treatment of the entitlement to 42 days of recreational leave as being composed of an equal number of days that would have been worked and days that would not have been worked according to the roster has no foundation in the 2002 AWA or the 2006 AWA, which when it speaks of "calendar days paid" makes it clear that the counting of days for recreational leave purposes is to have regard to paid working days only; 7. when by agreement an employee takes less than 42 days recreational leave, for example one days recreational leave, the period of recreational leave is one calendar day and not two calendar days as debited by Glyndale; 8. the phrase "non-accrual of days off for any rostered-on days not worked" is not capable of meaning that for every single working day of recreational leave allowed Mr Sanderson-Miller is to be debited with two days recreational leave;

1. the meaning of the phrase "where we agree for you to take a lesser period as leave the application form will reflect non-accrual of days off for any rostered-on days not worked" simply means that the application form will contain certain figure work and that the substantive entitlement to recreational leave is not affected; and

1. there is nothing in the recreational leave clause or the hours clause which provides that rostered days off accrue as a function of days worked, but rather, there is a roster determined, and according to that roster, some days are worked and some are not.

1. the 2002 AWA and 2006 AWA were made in the knowledge of the previous agreements, their content and their application in practice; 2. Mr Sanderson-Miller's agreement to the 2002 AWA and the 2006 AWA was with knowledge of Glyndale's approach to recreational leave and public holidays, and that it was in that context that an offer was made which was formally accepted;

1. that it would be reasonable to assume that the parties were aware of the industrial history in respect of compensating employees with additional recreational leave for working shift work over weekends and public holidays, and that the maximum in this regard was the equivalent of five weeks recreational leave per year;

1. all of the indicators are that there was no intention to change the application of recreational leave or provision in respect of the 2006 AWA by making radical departures from the 2000 AWA or 2002 AWA;[41] 2. the reference to "42 calendar days paid recreational leave" does no more than distinguish that this leave is a form of paid leave, and does not require calculation against only those days that would ordinarily have been worked by Mr Sanderson-Miller; 3. the effect of the interpretation advanced by Mr Sanderson-Miller is to allow an employee 12 weeks recreational leave, being six weeks of rostered days on and six weeks of rostered days off, and that there is nothing within the AWA to support this position which is an extraordinary increase over the Award and industry standard; 4. Mr Sanderson-Miller's position requires the Court to ignore the word "calendar", and to replace it with the word "working";[42] 5. the phrase "calendar days" has a plain and ordinary meaning that is not consistent with the position taken by Mr Sanderson-Miller, and the same observation can be made in respect of the reference to commencement being at the start of the latest roster, as this only makes sense if it is continuous; 6. it is apparent that recreational leave includes days that would not ordinarily be worked, and this is also indicated by the re-crediting arrangements; 7. the use of the specific phrase "work days" as distinct from "calendar" days in the definition of "rosters" and "sick leave" clearly indicates a different meaning for the phrase "calendar days"; 8. the reference in the AWA to a period of eight days leave to describe an example four days on, four days off roster is contrary to an intention to only account for work days in the taking of leave;

1. there has been no specific breach on a specific occasion of the 2002 AWA or the 2006 AWA, and in particular no demonstration that Mr Sanderson-Miller has been wrongly refused recreational leave and no identification of an actual breach at a particular time;

1. two days of recreational leave are deducted when an employee applies for a single work day of recreational leave, this being necessary to ensure that the employee's "ordinary hours of work do not exceed 152 hours per month";[43] 2. during a period of recreational leave each work day is matched by a non-work day and this is why the recreational leave commencement and end dates are prescribed with precision so as to include a whole roster block of work days and matching non-work days; and 3. if an employee did not take leave in whole roster blocks consisting of work days and non-work days the employee would either work more or less than an average of 152 ordinary hours a month where a ten hour roster period is employed.

The Court notes that there is no evidence to support sub-paragraphs (a)-(d), or the "industry standard" referred to in sub-paragraph (f) above.

Proper interpretation of annual leave provisions of AWAs

1. The parties were in general agreement concerning the principles to apply to the interpretation of the AWAs, and it is unnecessary to deal with them at any length.
2. AWAs are to be interpreted in accordance with ordinary principles having regard to the words used and any relevant context.[44]

1. This is a case in which the affidavit evidence particularises the claim, notwithstanding that a statement of claim was filed.[45] In this case the claim is limited by the evidence. That evidence proves that Mr Sanderson-Miller applied for single days of recreational leave to be taken on each of 24 February 2006 and 18 March 2006, and that in respect of those two single days applied for and taken, that on each occasion two days recreational leave was deducted or taken from his recreational leave entitlement. The evidence does not establish what type of "day" the second day deducted from the entitlement was: that is, in terms of the definition of "Roster" whether it was a work day or a non-work day. For present purposes it is however sufficient to note that the second day was a "calendar day".
2. Mr Sanderson-Miller was entitled to "42-calendar days paid recreational leave", accruing on a pro rata monthly basis, for each completed year of service. There was some discussion concerning the meaning of "paid", but the Court considers that the words mean what they say, that is that for each calendar day of recreation leave taken, it will be paid, that is, paid for by Glyndale. There is no dispute that Mr Sanderson-Miller was entitled to take single days of recreational leave where, as here, that was agreed to by Glyndale.
3. The question is whether, in those instances, for each single day of recreational leave applied for and taken, Glyndale was entitled to deduct two days of recreational leave from Mr Sanderson-Miller's recreation leave entitlement.
4. On the face of the Recreational Leave Provision there is nothing which expressly allows Glyndale to deduct more days of recreational leave than those applied for by Mr Sanderson-Miller.
5. Glyndale places significant reliance on the following paragraph of the Recreation Leave Provision, and in particular, the words emphasised:
   • We prefer you take leave in completed shift cycle lots (ie eight days for a 4on/4off cycle). However, where we agree for you to take a lesser period as leave the application form will reflect non-accrual of days off for any rostered-on days not worked. [emphasis added]

as justifying the deduction of two days recreational leave where a single day is applied for.

1. The underlined words above do not provide for any form of deduction of days of recreational leave entitlement. Rather, they are directed to a different end, namely the non-accrual of days off for any rostered-on days not worked, including those not worked by reason of recreational leave. Thus, in Mr Sanderson-Miller's case, when he took a single day of recreational leave on 18 February 2006, he did not accrue a day off for that day. Thus, if he was on a full ten day roster cycle at that time by reason of the fact that only nine days were actually worked, only nine "non-work days"[46] would accrue. The deduction of an additional day's recreation leave where a single day is applied for confuses the entitlement to recreational leave, and in this particular case single days of recreational leave, with the non-accrual of days off (of "non-work days") where a rostered-on day is not worked for any reason, including recreational leave.
2. In the circumstances of this case nothing turns on the paragraph in the Recreational Leave Provision which provides that:
   • Recreational leave will commence on the first day following time off directly associated with your last rostered shift and will cease when you recommence work.
3. Mr Sanderson-Miller submitted, and Glyndale conceded, that the above paragraph can have no application in circumstances where, as here, single days of recreational leave are taken.
4. Consistent with the view expressed by the Court above, if an employee applied for an entire work day roster block of six days as recreational leave it would follow that there would be no accrual of six days off (non-work days) because of the taking of those days of recreational leave. There would not be an entitlement to deduct 12 days recreational leave from the employee's entitlement.
5. Such an interpretation does no violence to the use of the word "calendar" (as opposed to "work" or "working") days in Part 4 of the 2002 AWA, when compared with the definition of "Roster" and the requirement for sick leave to be taken in relation to work days. That argument is really usurped by the Recreational Leave Provision itself providing, as outlined above, that rostered-on days not worked do not accrue days off. That, as explained above, is a specific expression of how recreational leave worked on a rostered-on day results in the non-accrual of a day off, not the deduction of an additional day of recreational leave. If, as submitted by Glyndale, each single day of recreational leave taken requires the deduction of two days recreational leave, it would have been easy for the 2002 AWA or 2006 AWA to so provide.[47]
6. Glyndale also submitted that two days of recreational leave are deducted when an employee applies for a single work day of recreational leave so as to ensure that the employee's ordinary hours of work do not exceed 152 hours per month.
7. The hours and rostering provisions of the 2002 AWA and the 2006 AWA both however speak of "an average of 152 hours per month"[48] or "per calendar month".[49] The provisions do not speak of "152 hours per month" or "exactly" or "only" that amount of hours. They speak of an "average", that is, not an exact amount but an arithmetic mean or medial average.[50] If it was intended that exactly or only 152 hours per month be worked there would have been no necessity to refer to "an average" and use of those words would have been otiose. Thus it is that less or more hours may be worked in a month provided the average hours are 152 per month, and whilst exactly 152 hours may also be worked, it is not, on a proper interpretation of the relevant provisions of the 2002 AWA and the 2006 AWA, a necessity. Further, even if exactly 152 hours per month are being worked, that, and the relevant roster arrangements do not, on the plain and unambiguous meaning of the relevant provisions of the 2002 AWA and the 2006 AWA and for reasons outlined above, justify the deduction of two days recreational leave for every day of recreational leave applied for and otherwise taken. To do so is to take away recreational leave in breach of the relevant provisions of the 2002 AWA and the 2006 AWA.
8. Finally, the Court notes that the limited evidence before it would only enable it to provide relief in relation to the recreational leave applied for, and taken, on 24 February 2006 and 18 March 2006, that is recreational leave applied for under the provisions of the 2002 AWA.
9. Absent the dismissal of the application for the reasons related to standing, the Court would have been prepared to make a declaration that Glyndale breached an applicable provision of the 2002 AWA in relation to the recreational leave applied for and taken on:
   1. 24 February 2006; and
   2. 18 March 2006,

by deducting two days instead of one day from the recreational leave entitlement of Mr Sanderson-Miller in relation to each of 24 February 2006 and 18 March 2006.

1. The ALAEA says that under Part 4 of the 2002 AWA and clause 17 of the 2006 AWA Mr Sanderson-Miller was entitled to leave for public holidays occurring during his employment, and that the respondent has failed to allow or credit Mr Sanderson-Miller with any leave in respect of public holidays. Glyndale denies the ALAEA's assertions with respect to public holidays for Mr Sanderson-Miller.

1. With respect to public holidays the 2002 AWA and 2006 AWA provided as follows:
   • Public holidays are those prescribed in the applicable state Public Holidays Act.
   • If you are rostered to work a public holiday, you will receive no additional payment as the working of these days has been provided for in your salary. In instances where you are normally rostered on, but not required to work a public holiday you will suffer no loss of pay.[51]

1. The ALAEA submits that the public holidays clause confers an entitlement to the prescribed public holidays. It is submitted that the prescription of the public holidays in the overall leave clause together with the additional payment for working public holidays (aggregated into the annual salary) together give rise to the entitlement to an additional days leave for each public holiday as it falls due. This is said to be particularly so in view of clause 21.14 of the Award which provides for additional payment for eight hours or an additional days leave in lieu if agreed.

1. Glyndale submits that the arguments contended for by Mr Sanderson-Miller are contrary to the express words of the 2002 AWA and 2006 AWA, and that no breach of the public holiday provision has been identified. Glyndale says that employees are required to work on public holidays if their rostered day falls on a public holiday, which it sometimes will, and that that position is specifically provided for and dealt with expressly by the 2002 AWA and 2006 AWA. Glyndale says that there is no basis for the implication for additional terms in the 2002 AWA and 2006 AWA as contended for by the ALAEA, and that because the AWAs are statutory instruments they do not permit the implication of terms, but that in any event there is no basis for such implication. Further, it is said that the conduct of the parties does not support the implication of the term advanced by the ALAEA.

1. The 2002 AWA and 2006 AWA say what the public holidays are for the purposes of Mr Sanderson-Miller's employment. The provisions are descriptive, and are not framed so as to give rise to a right to the public holidays so described. The 2002 AWA and 2006 AWA do not however prescribe that public holidays are to be:
   1. taken as days off work; or
   2. the subject of specific additional payment, if they are worked.

1. no additional payment is to be made if a public holiday is worked because the working of the days has been provided for in Mr Sanderson-Miller's salary; and
2. no loss of pay is suffered if Mr Sanderson-Miller is rostered on a public holiday, but is not required to work on that public holiday.

Instead of providing for public holidays to be taken as days off, or for specific additional payment to apply to them if worked, there is provision in the 2002 AWA and 2006 AWA for payment for public holidays (whether worked on or not) to be aggregated into Mr Sanderson-Miller's salary. It is not apparent on the face of the 2002 AWA or the 2006 AWA, and the evidence does not disclose, whether the aggregation has incorporated public holiday payment into salary at a particular rate, but, in any event, that is immaterial: the aggregated salary is paid to Mr Sanderson-Miller whether or not a public holiday is worked. That is the effect of the relevant express terms of the 2002 AWA and the 2006 AWA.

1. Assuming, for present purposes, that a term can be implied into the 2002 AWA or the 2006 AWA no terms can be implied into those AWAs for public holidays if they are:

1. not necessary to give them business efficacy;[52] 2. not so obvious as to go without saying;[53] or

1. contrary to any of their express terms.[54]
2. In this case there is nothing which indicates that "the reasonable or effective operation" of the 2002 AWA and the 2006 AWA "in the circumstances of the case"[55] necessitates the implication of a term or terms requiring that public holidays be days off work or be the subject of specific additional payment, if they are worked, so as to give those AWAs business efficacy.
3. The obviousness of a term or terms such as those suggested immediately above is not apparent to the Court, particularly in circumstances where the parties have provided, in the 2002 AWA and the 2006 AWA, how it is that public holidays, whether worked or not, are to be remunerated.
4. Finally, the suggested term or terms are inconsistent with the existing express terms, as they would provide an additional benefit (time off) or additional payment, when the 2002 AWA and 2006 AWA already have express terms as to public holiday payment.
5. Mr Sanderson-Miller submits that regard might be had to a provision of the Award providing for additional payment or time off in lieu in respect of public holidays. However, the public holiday provisions of the 2002 AWA and the 2006 AWA are not ambiguous. Further those AWAs provide that the terms of the Award "will not apply to your employment".[56] There is therefore no basis to resort to the Award for assistance with context in interpreting the public holiday provisions.
6. The Court notes that there was no evidence of the detail of actual public holidays worked or not worked, or of relevant roster or leave arrangements at any relevant time, and had the ALAEA's interpretation been persuasive, which it was not, the Court would have had significant, and perhaps insuperable, difficulty in framing any declaration or order.
7. For the above reasons the Court would have dismissed the application for alleged breach of an applicable provision of the 2002 AWA or 2006 AWA related to public holidays.

1. Because the ALAEA did not prove that it was entitled to bring the application, the application must be dismissed.
2. Had the application not been dismissed for the reasons set out above,[57] the Court would otherwise have concluded that Glyndale:
   1. had breached Part 4 of the 2002 AWA by deducting two days recreational leave for each one day of recreational leave applied for and taken by Mr Sanderson-Miller on 24 February 2006 and 18 March 2006; and
   2. had not breached the public holiday provisions of either the 2002 AWA or the 2006 AWA,

and would have made a declaration and orders as follows:

1. The Court declares that the respondent breached an applicable provision, namely Part 4 of the Australian Workplace Agreement entered into by Mr Sanderson-Miller and approved by the Office of the Employment Advocate on 2 January 2002 in relation to the recreational leave applied for and taken on:

(a) 24 February 2006; and

(b) 18 March 2006,

by deducting two days instead of one day from the recreational leave entitlement of Mr Sanderson-Miller in relation to each of 24 February 2006 and 18 March 2006.

2. The Court orders that:

(a) except as to:

(i) penalties and damages arising from the declaration in (1) above; and

(ii) costs,

the application be dismissed; and

(b) the matter be adjourned to a directions hearing at a date and time to be fixed in relation to penalties and damages arising from the declaration in (1) above, and costs.

1. The Court will hear the parties as to costs, if any.[58]

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Lucev FM

[5] Respectively, the "2000 AWA", the "2002 AWA" and the "2006 AWA".

[6] Workplace Relations Act, 1996 (Cth), s. 718(1) ("WR Act").

[7] Although the application says "annual leave" the matter was conducted throughout as if that was a reference to "recreational leave". The AWAs themselves exhibit a confusion of terms: see fn.32 below.

[8] "Mr Sanderson-Miller's First Affidavit".

[9] "Mr Sanderson-Miller's Second Affidavit".

[10] An affidavit of Michael Haynes sworn 26 August 2008 ("Mr Haynes' Affidavit") was filed, but was not tendered in evidence. Mr Sanderson-Miller's Second Affidavit replies to matters raised in Mr Haynes' Affidavit, which, as indicated, was filed but not relied upon Glyndale.

[11] Mr Sanderson-Miller's First Affidavit, Annexure 1.

[12] Mr Sanderson-Miller's First Affidavit, Annexure 3, being the approval letter dated 2 January 2002, and the 2002 AWA, as to which see Part 1.

[14] Statement of Claim, para.6; Defence, para.4.

[15] Mr Sanderson-Miller's First Affidavit, para.6. See also para.7 attesting to a different roster arrangement until some time in 2004.

[16] WR Act, s.718(5)(a), Mr Sanderson-Miller's First Affidavit, Annexure 1.

[17] WR Act, s.718(5)(b), Mr Sanderson-Miller's First Affidavit, para.1.

[22] Glyndale's Submissions, para.5 and sub-para.5.3. The Court indicated to the parties that it had read the submissions filed by each of them: Transcript at page 2.

[23] Federal Court Rules, O.11 r.13; Warner v Sampson & Anor [1959] 1 QB 297 at 319 per Hodson LJ ("there is no effective line to be drawn between non-admission ... and denial") and 324 per Ormerod LJ (the two forms - denial and non-admission - have "a similar effect"); In re R.G.P Constructions Pty Ltd (In Liquidation) (1982) 31 SASR 170 at 171 per Walters J ("there is no difference in effect between denying and not admitting an allegation").

[25] Mr Sanderson-Miller's First Affidavit, para.8.

[26] 2002 AWA, Part 2; 2006 AWA, Part 1, clause 4.

[27] 2002 AWA, Part 1; 2006 AWA, Part 1, clause 2.

[28] 2002 AWA, Part 4; 2006 AWA, Part 4, clause 16. In the 2002 AWA the "Allowances and penalties" provision precedes the "Salary payments" provision.

[29] 2002 AWA, Part 1; 2006 AWA Part 1, clause 2.

[30] 2002 AWA, Part 4; 2006 AWA, Part 4, clause 14.

[31] 2002 AWA, Part 4; 2006 AWA, Part 4, clause 15. The headings are different in the 2002 AWA and the 2006 AWA but the material provisions are the same.

[32] 2002 AWA, Part 4; 2006 AWA, Part 4, clause 17 ("Recreational Leave Provision"). The 2002 AWA:

(a) is slightly differently formatted and worded in relation to the penultimate paragraph, but there is no material difference in the provisions; and

(b) does not appear to contain the final paragraph (which is not relevant for present purposes).

The Court notes that the Recreational Leave Provision refers to "recreational", "recreation" and "annual" leave, but ultimately nothing turns on the different words used. See also fn. 7 above.

[33] Mr Sanderson-Miller's First Affidavit, para.6.

[34] Mr Sanderson-Miller's First Affidavit, para.8 and Annexure 5. Annexure 5 comprises the two Applications for Leave for 24 February 2006 and 18 March 2006 (individually "Application for Leave" and together "Applications for Leave").

[35] Mr Sanderson-Miller's First Affidavit, Annexure 5.

[36] Mr Sanderson-Miller's First Affidavit, Annexure 5.

[37] Mr Sanderson-Miller's First Affidavit, Annexure 5.

[38] Mr Sanderson-Miller's First Affidavit, para.8 and Annexure 6 ("Leave History Record").

[41] Reference was made to Barlow v Qantas Airways (1996) 72 IR 194.

[42] Reference was made to Prowse v McIntyre (1961) 111 CLR 264; Re Electricity Commission (General Salaried Staff and Administrative Staff) Award & Other Awards (1989) 27 IR 294.

[44] Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 at 352 per Mason J; Short v FW Hercus Pty Limited [1993] FCA 51; (1993) 40 FCR 511 at 518 per Burchett J.

[45] There was no application to strike out the statement of claim which is remarkable for its lack of particularisation. In this Court it is not unusual to have to discern the particulars of a claim from the affidavit evidence (even when a statement of claim has been filed) and to do so is entirely consistent with the Parliamentary intention which was to establish a Court that was relatively inexpensive, able to provide expeditious justice, and which proceeds without undue formality so as to be sure that proceedings are not protracted. See O'Neill v Medical Benefits Fund of Australia Ltd [2002] FCAFC 188; (2002) 122 FCR 455 at 462 per Carr, Moore and Marshall JJ; [2002] FCAFC 188 at para.16 per Carr, Moore and Marshall JJ; Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at 349 per Lander J; [2004] FCA 559 at para.34 per Lander J; Sterling Commerce v Iliff [2008] FCA 702; (2008) 173 IR 378 at 387-388 per Gordon J; [2008] FCA 702 at paras.21-23 per Gordon J; Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at para.21 per Lucev FM.

[46] See definition of "Roster". Hence, at some point in time, Mr Sanderson-Miller will probably have to make up that single day.

[47] The AWA could have provided for recreational leave to consist of 21 work days and 21 non-work days.

[48] 2002 AWA, Part 4; 2006 AWA, Part 4, clause 14.

[49] 2002 AWA, Part 4; 2006 AWA, Part 4, clause 15.

[50] The Shorter Oxford English Dictionary on Historical Principles, Vol. 1 (Oxford: Oxford University Press, 1973) at page 137.

[51] 2002 AWA, Part 4; 2006 AWA, Part 4, clause 17. The provision as set out is from the 2006 AWA where the relevant provisions appear as part of clause "17. Leave". In the 2002 AWA the relevant provisions appear as part of "PART 4. YOUR WORKING CONDITIONS" under the sub-heading (in the form of a question): "What conditions apply to public holidays?" The relevant provisions are however identical in the words used to describe the entitlement.

[52] BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 283 per Lord Simon of Glaisdale ("BP Refinery").

[53] BP Refinery at 283 per Lord Simon of Glaisdale; Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 442 and 444 per McHugh and Gummow JJ ("Byrne & Frew").

[54] BP Refinery at 283 per Lord Simon of Glaisdale.

[55] Byrne & Frew at 442 per McHugh and Gummow JJ.

[56] 2002 AWA, Part 4; 2006 AWA, Part 1, clause 4.