[1] In July 2003 the Australian Municipal, Administrative, Clerical and Services Union (ASU) notified a dispute under s.170LW against Western Power Corporation (WPC) in relation to the eligibility of its members to extra annual leave due to working on shift work as Power Station Controllers at the Cockburn Power Station.

[2] In a hearing held in Perth on Wednesday, 18 February the ASU was represented by Mr. M. Kane and WPC by Mr. T. Lemmon.

[3] The union argued that its Controller members were shift workers who for a total of six months of each year regularly worked Sundays and public holidays. The ASU submitted that the workers involved warranted a proportion of the extra week's leave available to shift workers who are rostered to work regularly on Sundays and public holidays.

[4] WPC argued that the employees concerned were not eligible for any extra annual leave as they do not work a "continuous shift roster".

[5] Cockburn Power Station [CPS] was commissioned in April 2003. It employs 18 Production Officers under the Electricity Industry (Western Power Corporation) Award 2000, the WPC Certified Agreement 2002 and the CPS Annualised Salary Agreement.

[6] The CPS Production Officers work on a roster cycle of 18 weeks broken down into nine weeks of 12 hour day and night shifts over seven days and nine weeks of day shifts (9.77 hours) Monday to Friday. The 18 week roster cycle is repeated over a full year resulting, in effect, in the Production Officers working six months on continuous shifts and six months on a standard day shift.

[7] The Award for CPS Production Officers provides for an extra 37.5 hours of recreation leave for continuous shift workers. Clause 5.1.1(a) provides for 150 hours of annual leave for all persons covered by the Electricity Industry (Western Power Corporation Award 2000. Clause 5.1.1(b) of the Award provides:

"In addition to clause 5.1.1(a), an employee who works a continuous shift roster shall be entitled to 37.5 working hours extra leave or if part of a year on a proportionate monthly basis." (my emphasis)

[8] In submissions from Mr. Lemmon for Western Power he provided details of the average number of Sunday and Public Holiday shifts worked over a year in 2002. He stated in part:

"--- And therefore, adding all of that together - and this is in the right hand columns, they work 11.6 day and night Sundays and they work 6.2 day, night and morning shift public holidays, so that is a total of 17.8 shifts for the year, Sundays and public holidays all up. And just going on to a point that I am going to make shortly. I then converted that all into hours, just by multiplying things out, and for the year, Sundays and public holiday shift - sorry, days, nights and morning shift on Sundays and public holidays, 2002, 207.8 hours on average." [PN352]

[9] In answer to a question from myself Mr Lemmon went on to state that the essence of his argument was that the employees concerned did not work a continuous shift roster;

THE COMMISSIONER: "So, just to make sure I understand that, Mr Lemmon, you are saying that 5.1.1(B) has no application because the employees in question do not work a continuous shift roster?" [PN468]

MR LEMMON: "That is correct, sir, with the emphasis on the word roster, or a roster, one single roster." [PN469]

THE COMMISSIONER: "Well, if that is the case, Mr Lemmon, why would there be the provision - what application would justify the part of 5.1.1(B) which talks about: [PN470]

...or if part of year on a proportionate monthly basis. [PN471]

You would say, perhaps, that if a person is working a continuous shift roster for six months, in a genuine continuous shift roster situation, but then goes onto day work because he is transferred from one area to another, he gets a proportionate?" [PN472]

MR LEMMON: "Yes. And we did attempt to cover that in our written submissions. Again, in answer to that, take, for example, the Kwinana Power Station which is adjacent to the Cockburn Power Station, here, where we have two distinct groups of employees, maintenance employees and operations employees. The maintenance employees, generally, let us say for these purposes, are on during the day shifts, sometimes those employees may, it would be rare, but let us say they were selected for part of the year to work on the ongoing continuous shift roster for, say, six months, they would be entitled - that is the circumstance in which the part of a year comes into it. In other words from one roster to a continuous shift roster." [PN473]

[10] Mr Kane for the ASU agreed that the Production Officers worked approximately 18 Sundays and public holidays in 2002. However he also argued that for the purpose of any threshold test to establish an entitlement to payment the number of Sunday and public holiday shifts worked whilst on the continuous shift roster (effectively worked over a six month period) needed to be doubled to obtain the number which would have been worked over a full year. He also argued that the fact that the night and day shifts on the continuous shift part of the were of 12 hours duration needed to be taken account of.

[11] Mr Kane went on to argue that clause 5.1.1(b) had application to the Production Officers due to them working continuous shifts for a proportion of the year;

THE COMMISSIONER: "But, Mr Kane, Mr Lemmon is basing his entire reply to your argument on the proposition that 5.1.1(B) only applies to employees who work a continuous shift roster, and if you are not working a continuous shift roster, and he argues that the members you are representing are not working continuous shift rosters because they work a roster which includes continuous shift and normal day shift." [PN520]

MR KANE: "Well what Mr Lemmon is actually saying, he is adding in extra words, he is reading it as, an employee who works a continuous shift roster over 365 days of the year shall be entitled to 37.5 working hours. That is what he is effectively doing. Because what we are saying is, there is one roster and part of that roster, it is part a continuous shift roster and everyone concedes, there is no disagreement here, that part of the time is worked as continuous shift work. So what we then say, very clearly, and it is not that there is two rosters, there is one roster. What we say, is, that roster has two components, has two characteristics. A part of the year that roster is a continuous shift roster." [PN521]

[12] There are three substantive issues which need to be considered;

(i) Is there a threshold number of Sundays and public holidays required to be worked before shift workers become eligible for extra recreation leave?

(ii) How does any threshold apply to the Cockburn Power Station?

(iii) Are the rosters/roster a continuous shift roster and if so what application does clause 5.1.1(b) have to the Production Officers?

[13] A Full Bench of the Commission considered the issue of entitlements to extra leave for shift workers in a matter considered in 1995 Media, Entertainment and Arts Alliance [MEAA] and Theatrical Employees (Sydney Convention and Exhibition Centre) Award 1989 Print M7325. In this matter the MEAA made application for an extra week's leave for workers who regularly worked Sundays and holidays.

[14] The Full Bench examined the arbitral history of the entitlement of shift workers to an extra week's leave. In considering the basis on which extra leave was awarded the Full Bench noted:

"In the decision of the NSW Industrial Commission in the 1976 Annual Leave Case many of the issues which require careful consideration in applications of the nature before us, are examined. In relation to the test of 7 day shift workers `regularly' working Sunday, that Commission stated, after reviewing relevant authorities:

"It is clear from the extract from his Honour's judgment which we have cited that the reason for the additional week's holiday for 7-day shift workers is the regular incidence of ordinary hours of work on Sundays and public holidays. In the Firemen and Deckhands Case that concept was confirmed by Beattie J when, in speaking of a claim for the awarding of a period of annual leave longer than that prescribed by the Annual Holidays Act, his Honour said this:

The case for extension of the period of annual leave must be based on the fact that the employees are called upon regularly to work on Sundays and public holidays. There is no other ground.

It was further confirmed in the Shift Workers Case 1972 itself when, in deciding that the rate of double time and half should be prescribed for work performed by shift workers on public holidays, the Commission said:

We make our decision bearing in mind that the true 7-day shift worker usually receives 1 week's annual leave in addition to the standard prescription of 3 weeks in the Annual Holidays Act. This additional week's leave primarily is part of the compensation for the requirement that they should work on most Sundays during the year although it also covers the requirement that they work on the majority of public holidays." [Page 9]

[15] The Full Bench went on in its judgement to consider a range of decisions which related to what constituted "regularly working on Sundays". It noted that;

"The most expansive decision is the 1976 Annual Leave Case in which the NSW Industrial Commission established the formula for 7-day shift workers who work an "equal number of shifts on each of the seven days of the week": the resultant formula producing a requirement to work a minimum of 34 Sunday shifts and 6 public holidays - this test was accepted by both parties before us as an applicable guideline to apply to 7-day continuous shift workers." [Page 14]

[16] The Bench adopted the threshold of 34 Sunday shifts and six public holiday shifts as the guideline to apply to seven day shift workers. It then went on to deal with the MEAA application for a number of members who worked between one and twenty five Sunday shifts a year where is stated, in regard to a pro-rata entitlement;

"In our view a distinction can be made between granting an application based on working 34 Sundays with a pro rata provisions for working between 7 and 34 Sundays, where the evidence demonstrates that many, if not most, employees actually work the 34 Sundays and will receive the additional week's leave, and, the evidence which demonstrates not a single employee works 34 Sundays, but some employees work between 7 and 34 Sundays. The latter claim becomes effectively a claim for an additional leave entitlement for any employee working more than 7 Sundays per year, regardless of whether the overriding arbitral test of "regularly working Sundays" is met by any employees covered by the application. To grant the application on this basis would discredit the integrity of the provision." [Page 16]

[17] The threshold for establishing an entitlement to an extra week's annual leave through regularly working Sundays and public holidays whilst on shift work is that employees work 34 Sundays on a normal (not an overtime) shift in a year.

[18] Mr Kane argued that the Production Officers at CPS worked 14 Sundays and Public Holidays in the six month period within which they were on a seven day shift roster and on each of these days they worked a total of 12 hours (four extra public holidays were worked on straight day shift). To compare the 34 Sunday guideline to the CPS rosters Mr Kane argued that the 12 hour shifts should be regarded as 1.5 days of a "normal" eight hour shift, therefore the 14 days should be accepted as the equivalent of 21 and then that number should be doubled to 42 to obtain the number of equivalent Sunday and Public Holiday shifts required to be worked in a year by Production Officers at CPS. If this reasoning is accepted the Production Officers pass the "34 Sundays" guideline and prima facie Production Officers may be eligible for pro rata application of the extra weeks leave.

[19] The submissions put by Mr Kane regarding 12 hour shifts being the equivalent of 1.5 days have some superficial attraction however they need to be considered against the rostering arrangements which result in a significantly greater number of leisure days by comparison to a five day worker. In submissions by Mr Lemmon he highlighted the number of days worked by Production Officers in a year compared to Monday to Friday straight day workers. He stated;

MR LEMMON: "The roster - in our oral submissions, we have set out the question of the days off and the advantageous nature of this roster. If I could take the Commission to annexure 2, the pink one that I handed up again this morning, there is a lot of facts and figures there, but really in this context, the key one is the figure on the bottom line of that - of annexure 2 is - shows that the employees worked on average in 2002, 179.7 shifts per year. There is 365 days in a year so it is less than the number of - they actually have to come to work less than half the number of days in a year because the hours are compressed and therefore there is a lot of leisure and days off advantages to the employees under this roster. And of course we set out the patterns" - - - [PN398]

[20] In Western Power's Outline of Submission it stated;

"The Employees in question are only rostered to work Sundays and public holidays approximately 17.8 times per year, as shown by the Statistical Summary Table in Annexure 2. This is well short the 35 Sunday and public holidays worked contemplated in the Theatrical Employees decision as a minimum number for entitlement to additional leave. The employees do not, therefore, do "continuous shift work" and are not rostered on a "continuous shift roster". As a consequence they are not entitled to an additional week's leave pursuant to clause 5.1.1(b) of the Award. This result is entirely equitable and fair. As mentioned above, employees are paid an annualised salary based on working the whole of the Roster. In calculating the annualised salary, a component was included in respect of shift loadings applicable to work on Sundays and public holidays. While the Roster does involve employees rostered for some work on Sundays and public holidays, the Roster also provides for:

(a) an average of 2.9 blocks per year of 11 days without the Employee being rostered to work;

(b) an average of 2.9 blocks per year of 6 days without the Employee being required to work; and

(c) an average of 20 blocks per year of 4 days without the Employee being rostered to work.

Annual leave entitlements are, of course, in addition to these rostered breaks. The Employees are rostered to work an average of 179.9 days per year (compared to 230 for a person who is rostered to work 5 days a week, with 10 days public holidays.[Exhibit L1, PN19]

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

[22] The outcome of a twelve hour shift roster is that employees have a greater number of hours away from family when they are rostered to work but also (as the figures in PN20 demonstrate) they have the availability of many extra day's of leisure over the course of the year. For that reason I do not consider it appropriate to accept the submissions of Mr Kane to regard a twelve hour shift as the equivalent of 1.5 days for the purpose of estimating whether the employees exceed the 34 Sundays and public holidays guideline threshold set out in the Full Bench decision in the Theatrical Employees case dealt with earlier.

[23] The rostering at CPS involved individual Production Officers working around twelve Sundays in their six months on the shift roster. In addition on both shift work and straight day work they worked on six public holidays, a total of around 18 days worked in a year on Sundays and public holidays.

[24] The submissions of Mr Kane seek that the number of Sunday and public holiday shifts worked by Production Officers in their six months on shift work be doubled in order to test whether they meet the threshold of 34 Sundays and public holidays. It should be noted that in the Theatrical decision the Full Bench was dealing with employees who worked up to 25 Sundays in a year and it disallowed their claim for a proportionate amount of extra leave. The Full Bench stated "To grant the application on this basis (where no employee worked 34 or more Sundays) would discredit the integrity of the provision" [decision PN16]

[25] The submission of Mr Kane that the actual number of Sunday and shifts worked at CPS should be doubled to determine whether the 34 day threshold had been satisfied is not endorsed. The threshold is not related to the total number of shifts worked over a full year in a workplace; it is instead the average number of normal (not overtime) Sunday and public holiday shifts worked by individual employees - in this case the number is around 18. The number of Sunday shifts worked by Production Officers, i.e. around 12, falls considerably short of the threshold number of 34 and this needs to be taken account of in my decision.

[26] The third issue for consideration is the submission of Mr. Lemmon that, as the Production Officers are not rostered on "continuous shifts", the relevant clause in the Award (5.1.1(b))has no application.

[27] In his submissions regarding the roster at CPS Mr Kane stated;

THE COMMISSIONER: "There is a roster which has day work elements to it." [PN213]

THE COMMISSIONER: "And Monday to Friday elements to it, and seven day work elements to it." [PN215]

MR KANE: "Yes, and that seven day element is effectively a continuous shift. It is a continuous shift roster." [PN216]

MR KANE: "Though it chops and changes, and what we are saying is you just cannot view the roster as being a single - having a single characteristic. What we are saying is, like the weather you can have seasons that go from winter to summer. It is still the weather, but it is drastically different, and what we are saying is effectively this roster is one - in some respects it is two rosters, because it is part of two cycles, but it is being drawn up as one roster and we don't have a problem with it drawn up as one roster and we don't see that it needs to be - any decision in favour needs to, you know, separate the roster into two different rosters." [PN218]

[28] In the submissions from Mr Lemmon he stated;

MR LEMMON: "Right. Well, we believe that the substantive issue the pre-condition to the extra annual leave in clause 5.1.1(B) of the award and that is an employee who works a continuous shift, that is one continuous shift roster; and a key word there, of course, is roster. It is not just works continuous shifts, it is continuous shift roster; and certainly that noun "roster" is important. Mr Kane suggested that we were placing too much emphasis. I think we need to place that emphasis in order to properly interpret this matter. Macquarie Dictionary definition of roster, "a noun", and it is "a list of persons or groups with their turns or periods of duty", "a list". That roster, in this case, is covering continuous shift work." [PN450]

"Now I read the ASUs submissions to say that - to the effect that continuous shift work was synonymous with a continuous shift roster. We suggest that roster is, as I have defined, and that is a list of persons and that it is covering work, the physical nature of things that have got to be done in order to run the power station. And, of course, the clause 135 definition of continuous shift work has three elements to it; it is work carried out by shift employees, importantly, and what I have alluded to, already; second element is that they are rostered to work ordinary shifts, regularly, on Sundays and public holidays and then, in accordance with the, only one, relevant roster cycle." [PN451]

"We are saying that the roster, as in appendix 2, is not a continuous shift roster that covers work that is defined as I have there." [PN452]

[29] Clause 5.1.1(a) in the Award provides for 150 hours of annual leave for all employees and this is supplemented by 5.1.1(b) which states;

"In addition to clause 5.1.1(a), an employee who works a continuous shift roster shall be entitled to 37.5 working hours extra leave or if part of a year on a proportionate monthly basis."

[30] The argument from Mr Kane was that the Award provision "--- or if part of a year on a proportionate monthly basis" provided the justification for the Production Officers at CPS to have extra pro rata leave as for six months of the year they are on a "continuous shift roster".

[31] CPS is a 365/24 workplace where staff are rostered to be on duty every hour of every day of the year. There is a continuous shift roster required for the power station however it is not staffed through a single team of employees who are continually working seven days over a 24 hour cycle. The shifts for CPS which Production Officers rotate through are essentially as follows;

[32] As stated earlier the cycle occurs over 18 weeks with nine weeks consisting of the continuous shift operation of 12 hour days and 12 hour nights followed by nine weeks of day work Monday to Friday. Whilst there may be one roster for the workplace it is obviously not a continuous shift roster. The roster extends over a period of 54 weeks to complete three full cycles. During the 54 weeks the workplace is staffed 24 hours a day, seven days a week however, as can be seen, individual Production Officers spend 27 weeks on the seven day continuous shift roster and 27 weeks on Monday to Friday day duty.

[33] I find that the working arrangements at the CPS therefore involve;

(i) A continuous shift roster of 12 hour day and night shifts.

(iii) Production Officers working part of the year on a continuous shift roster and part of the year on a "standard" day shift roster.

(iv) Production Officers working on around 18 Sundays and Public Holidays through their rostered normal hours involving shift and day work.

[34] Mr Lemmon submitted that Award clause 5.1.1(b) requires employees to work exclusively on a continuous shift roster to become eligible for the extra annual leave even if the claim is for "part of a year on a proportionate monthly basis."

MR LEMMON: " Right. Well, we believe that the substantive issue the pre-condition to the extra annual leave in clause 5.1.1(B) of the award and that is an employee who works a continuous shift, that is one continuous shift roster; and a key word there, of course, is roster. It is not just works continuous shifts, it is continuous shift roster; and certainly that noun "roster" is important. Mr Kane suggested that we were placing too much emphasis. I think we need to place that emphasis in order to properly interpret this matter. Macquarie Dictionary definition of roster, "a noun", and it is "a list of persons or groups with their turns or periods of duty", "a list". That roster, in this case, is covering continuous shift work." [PN450]

THE COMMISSIONER: "So, just to make sure I understand that, Mr Lemmon, you are saying that 5.1.1(B) has no application because the employees in question do not work a continuous shift roster?" [PN468]

MR LEMMON: "That is correct, sir, with the emphasis on the word roster, or a roster, one single roster." [PN469]

THE COMMISSIONER: "Well, if that is the case, Mr Lemmon, why would there be the provision - what application would justify the part of 5.1.1(B) which talks about: [PN470]

...or if part of year on a proportionate monthly basis. [PN471]

You would say, perhaps, that if a person is working a continuous shift roster for six months, in a genuine continuous shift roster situation, but then goes onto day work because he is transferred from one area to another, he gets a proportionate?" [PN472]

MR LEMMON: "Yes. And we did attempt to cover that in our written submissions. Again, in answer to that, take, for example, the Kwinana Power Station which is adjacent to the Cockburn Power Station, here, where we have two distinct groups of employees, maintenance employees and operations employees. The maintenance employees, generally, let us say for these purposes, are on during the day shifts, sometimes those employees may, it would be rare, but let us say they were selected for part of the year to work on the ongoing continuous shift roster for, say, six months, they would be entitled - that is the circumstance in which the part of a year comes into it. In other words from one roster to a continuous shift roster." [PN473]

[36] It is of significance to note an arbitral reference to the allowing of a proportionate amount of extra annual leave in the Annual Leave case of 1976 in the NSW Industrial Commission (re Hospital Employees Conditions of Employment 1976 AR PN275) when the Full Bench was considering the definition of regularly working Sundays workers it said in part;

"We will also provide that employees who, in a qualifying year of employment, work less than that number of shifts on Sundays and public holidays should be entitled to a proportionate amount of additional leave."(my emphasis) (Decision PN283)

[37] In effect the Full Bench accepted that for those employees who worked fewer Sunday and public holiday shifts than the threshold in a particular year when they were qualifying for the full extra week of leave they should receive a proportionate amount of extra leave. This concession, when read with those parts of the Theatrical and Annual Leave decisions which set out the requirement to work 34 Sundays on a continuous shift roster, is intended to relate to employees who are on a continuous shift roster for part of the year which would, if it continued, have resulted in them working more than the required number of Sundays and public holidays enables those employees taken off the roster to receive a proportionate amount of the extra week's annual leave. The reference is supportive of the submission of Mr Lemmon that the entitlement of employees to the "proportionate" provision in 5.1.1(b) of the Award essentially relates only to individuals who work regularly on Sundays and Public Holidays on a continuous shift roster which, if had been continued for a full year, would have entitled them to an extra weeks leave.

[38] I find that for employees to be eligible to proportionate extra leave clause 5.1.1(b) of the Award it requires that they be continuous shift workers for the whole of the time that eligibility is claimed for the extra one week's leave or a proportionate part of it.

From the submissions and evidence presented in this matter I find as follows;

(i) For employees at CPS to be eligible for an extra week's annual leave it is required that they normally work on a continuous shift roster and regularly work on Sundays and public holidays as part of that roster.

(ii) Should an employee normally work solely on a continuous shift roster but for part of a year be transferred to a five day, day duty, roster he may be eligible for a proportionate amount of an extra week's leave.

(iii) As Production Officers at CPS do not usually work on a continuous shift roster and also fall considerably short of 34 Sundays and public holidays worked while on such a roster they are not eligible for an extra week's annual leave nor are they eligible for a proportionate amount of extra annual leave.

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