DUNCANS HOLDINGS LIMITED v DESMOND KEITH CROSS, KEVIN CHARLES TYLER and MICHAEL ANTHONY McLEOD

REASONS FOR JUDGMENT WILCOX J: This appeal raises issues of construction of an award, the Timber Industry Consolidated Award 1990, made by the Australian Industrial Relations Commission under the Industrial Relations Act 1988 ("the Act"). The appellant, Duncans Holdings Limited ("Duncans") is a party to that award and the operator of a timber mill at which it employed the three respondents, Desmond Keith Cross, Kevin Charles Tyler and Michael Anthony McLeod. The three men worked at various times as boiler attendants, tending a boiler operated continuously over five days per week. Their working weeks comprised five twelve hour shifts. They were paid the wages prescribed by the award but not allowed a one hour "lunch break", as provided by cl 30(h)(i) of the award, or paid wages in lieu of that break. Each of the respondents laid a complaint in the Local Court at Murwillumbah against Duncans, pursuant to s 179 of the Act. They alleged the company's failure to provide a lunch break constituted a breach of the award and sought payment for the time not granted. At the magistrate's hearing there was no dispute about the facts. The only question was whether or not cl 30(h)(i) applied to the case. If the paragraph did apply, it was agreed the respondents were each entitled to succeed and to recover a particular amount. If the paragraph did not apply, it was agreed the complaints ought to be dismissed. The learned magistrate, Mr B J Bright SM, held cl 30(h)(i) did apply and made orders for payment of each of the agreed amounts. Duncans was dissatisfied with that ruling and filed an appeal to the Industrial Relations Court of Australia pursuant to s 412 of the Workplace Relations Act 1996, as the Act had then become. This appeal remained pending on 25 May 1997, the date of transfer of jurisdiction from the Industrial Relations Court to the Federal Court of Australia. So it must be disposed of by the latter Court. Clause 30 of the award is headed "Hours - Shift Work". The clause opens with some definitions. One of them is a definition of "continuous work" (sub-clause (b)): "'Continuous work' means work carried on with consecutive shifts of persons throughout the 24 hours of each of at least six consecutive days without interruptions except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer." Subclause (c) deals with "payment of ordinary shifts". It provides for payment at ordinary rates for employees on day shift, payment at ordinary rates plus 15% for employees on "afternoon shift" (defined as a shift finishing between 6pm and midnight), and extra allowances for "night shift" (defined as a shift finishing between midnight and 8am) the amount of which depends on whether or not that shift rotates with another shift. Sub-clauses (d), (e), (f) and (g) deal with matters relating to shifts. None of them is material to the present issue. Sub-clause (h) reads as follows: "(h)(i) In the working of non-continuous shift work one hour or such other time as may be agreed upon shall be allowed for an unpaid lunch break provided that an employee shall not be required to work for more than five ordinary hours without a break for a meal. All work done during an employee's lunch break shall be paid for at double time rates of pay. For work performed thereafter until a lunch break is allowed time and one half rates shall be paid. (ii) Where a shift roster provides for continuous shifts over 24 hours of the day a 20 minutes paid crib break shall be allowed to shift workers each shift which shall be counted as time worked. Such crib shall be taken at a time and in a method agreed upon between the employer and the employee or majority of employees concerned so as to meet the needs of the establishment." The remainder of clause 30, sub-clauses (i) to (n), is not presently relevant. As I have mentioned, the three employees rely on cl 30(h)(i). They say the definition of "continuous work" does not apply to their work, which was carried on with consecutive shifts throughout the 24 hours of only five consecutive days. If this definition does not apply, they argue, their work was "non-continuous work"; and, as it was performed in shifts, it was "non-continuous shift work". It follows, they say, that cl 30(h)(i) applied and entitled them to a one hour unpaid lunch break. I think this argument is not correct. A legislative definition should be applied directly to a substantive provision only where the substantive provision uses the very words that are the subject of the definition. A definition may cast light on the meaning of a similar or cognate term, but it should not be applied automatically. The substantive provision should first be carefully considered, in order to determine whether the change in terminology reflects a change in concept. Sub-clause (h) of cl 30 seems to be the only provision of the award dealing with meal breaks. This suggests its two paragraphs were intended to cover, between them, all situations in which it would be reasonable to allow time for meals. If so, and to do so does not do violence to the words used, the two paragraphs should be approached on the basis that they were intended to be complementary and exhaustive. On that approach, par (ii) casts light on par (i) and vice versa. Paragraph (ii) is limited to situations where it is decided in advance that work will extend over 24 hours of the day. I say this because the paragraph only applies where there is a shift roster. It does not cover situations where working hours are suddenly extended, for example to cope with an emergency. But advance decision is the only limitation inherent in the paragraph. There is no requirement that the continuous period of work extend over any particular number of days. As I read the paragraph, it applies to continuous shifts over as short a period as only two days; that is, 48 hours continuous work. Relevantly to the present case, however, it also applies to continuous work over five days; that is, 120 hours continuous work. The question then arises whether there is anything in par (i) that militates against this construction of par (ii). Putting aside, for the moment, the definition of "continuous work" in sub-cl (b)(iv), there clearly is not. The term "non-continuous shift work" is apt to describe a situation where one or more shifts is worked each working day but there is some lack of continuity of work; that is, there is a gap between shifts. The working day might comprise only one shift, with a break in continuity of work between the end of one day's single shift and the commencement of the next day's shift. It might comprise two shifts; but not two twelve hour shifts, otherwise the work would not meet the description "non-continuous shift work". The last mentioned situation is that which arose in this case. As there was continuity of work throughout shifts that occupied 120 hours each week, it would not be an ordinary use of language to call this work "non-continuous shift work". However, it is necessary to consider whether the definition in par (d)(iv) affects these conclusions. Does it apply at all? I think not. The first thing to note is that the definition is concerned with "continuous work", not "continuous shifts" or "non-continuous shift work". It is designed to address the situation where work is planned to extend over the whole of, at least, six days; that is, at least 144 hours. It is not totally clear to me why it was thought necessary to build into the award the concept of "continuous work", as distinct from "continuous shifts", but this concept is neither novel nor peculiar to this award. The history of the term "continuous work" was discussed in a decision of a Full Bench of the Industrial Relations Commission, Reference re Theatrical Employees (Sydney Convention and Exhibition Centre) Award 1989 (Decision 2617/1995, 1 December 1995). In that decision the Full Bench noted the term "continuous work" had evolved from "continuous process". According to a 1936 decision of the Commonwealth Court of Conciliation and Arbitration, "the term has gradually been extended so as to mean continuous working around the clock for at least six successive days and nights to cope with pressing demands for products ... even where such products are not such as would suffer because of a cessation of work". The evidence in the present case does not contain the whole of the award. So I am unable to determine exhaustively the use of the defined term "continuous work". But I have clause 36, dealing with overtime payments to shift workers. I note that extra benefits are given to employees "on continuous work". Policy reasons support the view that the work done by the present respondents fell within cl 30(h)(ii) rather than cl 30(h)(i). Where cl 30(h)(i) applies, the employee is entitled to a one hour, unpaid "lunch break". Where cl 30(h)(ii) applies, a one hour meal break is not provided, merely a twenty minute crib break. The difference between the two breaks extends beyond duration. A "lunch break" is a period of time during which employees are free, not only to eat a meal, but to leave their immediate workplace - in this case the boiler room - and socialise with other workers elsewhere in the establishment, or even leave the employer's premises altogether on business of their own. A "crib break", in contrast, is a period during which the employee may "down tools" and eat but must remain in the immediate workplace and available in case of any emergency: see, generally, a case involving an earlier version of the Timber Industry award, Durnford v Allen Taylor and Company (1990) 34 IR 423 at 428. Clause 30(h)(i) provides for an unpaid one hour lunch break. No doubt that is because the employee is then off-duty. In contrast, the crib break provided by cl 30(d)(ii) is paid time; that is because the employee remains on duty throughout. When these concepts are considered, it will readily be seen it would be incongruous to allow a one hour unpaid lunch break to an attendant who is required constantly to monitor a boiler. Acting conscientiously, the employee would not feel able to take the break. On the other hand, there would be no difficulty about the employee taking a short break to eat a meal, while remaining in, or close to, the boiler room. The concept of "crib break" perfectly fits the situation's requirements. The magistrate upheld a submission put to him on behalf of the employees that "simply by working overtime outside of the normal shifts, the applicants do not create a process of continuous shifts"; they may be "working non-continuous shifts with overtime payments". I agree with that. It is irrelevant whether the shifts were composed of ordinary hours, overtime hours or a mixture of both. The magistrate also said that, "for (Duncans) to succeed it is necessary for this Court to find that the twenty-four hour shifts worked by these men over a five day period may properly be categorised as continuous work", within the definition of that term in cl 30(d)(iv). It will be apparent I am of the respectful opinion that this was a misunderstanding of the situation. Duncans had no onus of proof. The correct position was that, for the three employees to succeed, they had to satisfy the Court that their relevant work constituted "non-continuous shift work". Given that they were working twelve hour shifts that extended over a continuous period of 120 hours, this was impossible unless some artificial definition applied. The definition relied on, that of "continuous work", does not apply. Accordingly, the claims ought to have been dismissed. I propose to order that the appeal be allowed, the orders made by the Local Court in relation to each of the respondents be set aside, and in lieu thereof, it be ordered that each Complaint and Summons be dismissed. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox