Geo. A. Bond and Company Ltd (In Liq) v McKenzie

Health and Research Employees' Association Mr A Moses of counsel SOLICITORS: Mr G Tyrell Health Services Union

LEGAL REPRESENTATIVES: Health Administration Corporation as intervenor and also on behalf of Northern Rivers Area Health Service Mr I Taylor of counsel SOLICITORS: Mr G Wallin Health Administration Corporation

JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : Staunton J DATE: 6/2/2004

Notification pursuant to s130 by the Health and Research Employees Association of New South Wales (now Health Services Union) of a dispute with the Northern Rivers Health Service re payment to part-time employees at Tweed Heads District Hospital Decision NSWIRComm 10

1 This longstanding matter arose originally out of a dispute notification filed by the Health and Research Employees Association of New South Wales (HREA). The Union is now registered as the Health Services Union but for the purposes of this decision I will refer to it as HREA. The matter has progressed beyond the initial dispute notification and is now before the Commission requesting the Commission to consider and, pursuant to s175 of the Industrial Relations Act (the Act), provide a statement of interpretation in relation to certain aspects of the following two awards: (i) The Hospital Employees Conditions of Employment (State) Award 1990: IG Vol 271 at 397 (the 1990 Award). (ii) The Health Employees Conditions of Employment (State) Award 1998: IG Vol 307 at 88 (the 1998 Award).

2 Oral submissions were heard on 18 September last. Because of issues raised in the course of those proceedings, leave was granted for further written submissions to be filed by both parties. The last of those submissions was received on 5 January last.

3 The initial dispute notification arose from the employment at the relevant time of approximately 14 wardspersons at Tweed Heads District Hospital by the Northern Rivers Area Health Service. Some considerable time ago, when this matter was in its infancy, the Health Administration Corporation (HAC) sought leave to intervene in these proceedings. That leave was granted.

4 While the dispute in hand is limited to those 14 persons, the respondents, particularly the HAC, believe that there are other health employees who could potentially be affected by the outcome of these proceedings. That issue became a point of some contention between the parties as the matter proceeded before me and I will return to it in due course later in this judgment.

5 It is agreed between the parties that the 14 wardspersons are considered to be part-time employees under both the 1990 and the 1998 Awards. In relation to the 1998 Award, the issue in dispute revolves around those employees engaged under Part 2 of Clause 6 who were engaged as part-time employees as at 20 September 1994 (as provided in subclause (i) of Part 2). For the purposes of this decision those employees are referred to as 'old' part-time employees.

6 At issue is the interpretation and consequential calculation of the hourly rate of pay for the part-time employees as identified under both Awards - particularly in the calculation of payment for shift work and overtime.

7 The relevant clauses for consideration in the first instance are:

The 1990 Award: 7. Part-time Workers (i) Persons employed on a part-time basis may be employed for not less than eight or more than thirty hours in any full week of seven days, such week to be coincidental with the pay period of each hospital respectively, and shall be paid for the actual number of hours worked each week an hourly rate calculated on the basis of one thirty-eighth of the appropriate rate prescribed plus 15 per cent thereof (in the case of Radiographers the calculation would be one thirty-fifth of the appropriate rate plus 15 per cent thereof). (ii) In an emergency part-time employees may be allowed to work more than thirty hours in one week and in such case will be paid for the hours actually worked at a rate calculated in accordance with subclause (i) of this clause. (iii) With respect to employees employed as part-time workers the provisions of clause 4, Hours, subclauses (v) to (x) and clause 10, Overtime, shall not apply.

The 1998 Award: 6. Permanent Part-time and Part-time Employees Part 1 - Permanent Part-time Employees This Part is not repeated as it is not relevant to the issue before me in relation to part-time employees. Part 2 - Part-time Employees (i) Employees engaged as part-time employees as at 20 September 1994 shall be entitled to exercise the option of receiving the benefits of employment specified in Part 1 of this clause. The election may be exercised within six months of the beginning of the first full pay period to commence on or after 2 March 1998 and, following that period, no election will be available. (ii) Persons employed on a part-time basis, other than on a permanent part-time basis as outlined in Part 1 of this clause, may be employed for not less than eight or more than 30 hours in any full week of seven days, such week to be coincidental with the pay period of each hospital respectively, and shall be paid for the actual number of hours worked each week an hourly rate calculated on the basis of one thirty-eighth of the appropriate rate prescribed, plus 15 per cent thereof (in the case of Radiographers the calculation would be one thirty-fifth of the appropriate rate, plus 15 per cent thereof). (iii) In an emergency part-time employees may be allowed to work more than 30 hours in one week and, in such case, will be paid for the hours actually worked at a rate calculated in accordance with subclause (ii) of this Part. (iv) With respect to employees employed as part-time workers, the provisions of subclauses (vi) to (xi) of clause 3, Hours, shall not apply. (v) All time worked by part-time employees in excess of the total rostered daily ordinary hours of work prescribed for the majority of full-time employees employed on that shift in the ward or section concerned shall be paid for at the rate of time and one-half for the first two hours and double time thereafter, except that on Sundays such overtime shall be paid for at the rate of double time. (vi) Time worked up to the total rostered daily ordinary hours of work prescribed for a majority of the full-time employees employed on that shift in the ward or section concerned shall not be regarded as overtime but an extension of the contract hours for that day and shall be paid at the ordinary rate of pay. (vii) With respect to employees employed as part-time workers, the provision of clause 9, Overtime, except where provided in subclauses (v) and (vi) of this Part, shall not apply. (viii) Temporary employees called to work on an ad hoc basis in base grade positions shall, at the completion of 12 months continuous service, be given priority one for appointment to permanent part-time or permanent full-time positions with the employing Health Service. For the purpose of this subclause, continuous service shall be where an employee has worked a minimum of one shift per week.

8 The issue in dispute between the parties requires a determination as to the true construction of relevant provisions of the 1990 and 1998 Awards.

9 There is a longstanding and settled approach to the task of considering the true construction of the provisions of an award. I refer in the first instance to the decision of Glynn J in Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123 at 125 where her Honour adopted the view expressed by Street J, as he then was, in Geo. A. Bond and Company Ltd (In Liq) v McKenzie (1929) AR (NSW) 498 at 503 - 504 as follows: Now generally speaking, awards are to be interpreted as any other enactment is interpreted. They lay down the law assisting employers and employees in their relations as such and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draftsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award . (emphasis added)

10 In referring with approval to the above passage, the settled approach to the true construction of an award has also been extensively dealt with by a Full Bench of the Commission in Bryce v Apperley (1998) 82 IR 448 particularly at 452 where the Commission stated: In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops (1961) AR (NSW) 312 at 314: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light. See also Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks Union of Australia, NSW Branch (2001) 106 IR 217.

11 The principles enunciated in Bryce v Apperley and Kingmill were reaffirmed by the decision of a Full Bench of the Commission in State Rail Authority Firefighters Award 2001 (2002) NSWIRComm 159 particularly paras [63] to [70] inclusive.

12 As is often the case, and the one before me is no exception, there are strongly competing interpretations in relation to a particular provision. The approach to be taken where such a dilemma arises was expressed by Olney J in Norwest Beef Industries Ltd v Australian Meat Industry Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 thus: 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 at 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.

13 On that point it is clear that the above approach as enunciated by Olney J is consistent with the statement made by Mason J, as he then was, in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 321 as follows: 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.

14 At the commencement of proceedings before me, the parties tendered draft agreed facts. Those draft facts add nothing to what I have already detailed by way of background to this matter and I do not propose to repeat them at this point.

15 It was agreed between the parties that there are three questions that require my consideration and determination. Those three questions are: (i) firstly, whether or not part-time employees employed at Tweed Heads Hospital were entitled to be paid what was described as a 15% loading on all hours worked by those employees other than on Saturdays, Sundays and on public holidays; (ii) secondly, whether, when such employees worked shift work between Monday and Friday of any week which work attracted a shift penalty, that shift penalty was to be calculated on an hourly rate which included the 15% loading or on an hourly rate excluding the 15% loading; and (iii) thirdly, whether, where part-time employees worked overtime, the overtime was to be calculated on the basis of an hourly rate including the 15% loading or on the basis of an hourly rate which excluded the 15% loading.

16 As the matter initially proceeded before me, the parties were content for me to consider this matter within the narrow confines of the relevant clauses of the two Awards placed before me, the facts agreed upon and the questions for me to answer. That approach was muddied somewhat when counsel for the HAC submitted that whatever view I came to in this matter would have currency and relevance beyond the Awards before me and the 14 wardspersons at the Tweed Heads District Hospital. As somewhat of a corollary to that submission I raised with the parties the possibility that the provisions in dispute in relation to part-time employees under the specific HREA awards may have counterpart provisions in other health industry awards. If that was the case, I further raised with the parties whether consideration should be given to the Commission taking steps to effect the intervention of other parties who would clearly have an interest in the determination of the matter before me.

17 As well as the above issues, it was necessary, in my view, to have regard to the history of the relevant Awards to which I was being taken in order to ascertain whether that history threw any light on the matters I was being required to determine.

18 All of the above matters gave rise to the additional submissions filed by both parties. 19 The subsequent written submissions by the HAC stated that an examination of various health awards revealed that there are other health industry awards with terms that are very similar or the same as the terms in dispute and as such there is potential for flow on.

20 It is clear on the material submitted on behalf of the HAC that the relevant Award provisions before me appear in other awards in the health industry - particularly in relation to some casual and/or part-time classifications in the nursing awards and, in relation to part-time employees, in some of the allied health awards. As a consequence, I can only assume the implication is that, quite apart from any ongoing provisions in HREA awards, whatever view I come to in this matter would also be seen as relevant to those other health industry awards. I say that somewhat advisedly bearing in mind the rather unique factual circumstances concerning the employment of the 14 wardspersons at the Tweed Heads District Hospital. In other words, while the parties agree that they are to be considered part-time employees under both the 1990 and 1998 Awards, there was sufficient information before me to suggest that that agreed position was reached more to resolve what I would describe as the confusing employment status of those particular employees rather than accurately reflecting conformity with the relevant award provisions at that time.

21 In addition to the above and to the limited extent of the information provided, the history of those other awards may be somewhat different to the Awards before me. In addition, the background and factual circumstances in relation to the employment history of the 14 wardspersons at Tweed Head District Hospital at the relevant time is unlikely to have been precisely replicated within other health industry awards. As well, the factual workplace circumstances giving rise to the initial dispute notification refers to a period that commenced during the currency of the 1990 Award and while it extended to the period embraced by the 1998 Award, the particular circumstances no longer prevail having been superseded by subsequent award and workplace provisions.

22 Quite apart from general assertions as to potential wider relevance, it is hard to accept that, if there were or are other precise factual circumstances involving specific employees relevant to other health industry awards giving rise to the same issues as the matter before me, the HAC would not have unearthed them by now. This matter has been on foot for some three years or more.

23 As earlier indicated, the matter before me started life as a dispute notification pursuant to s130 of the Act. While it has now progressed to seeking a statement of interpretation pursuant to s175 of the Act, there has been no formal application pursuant to s175 made. Nor is there before me any application to vary any award relevant to the issue in dispute.

24 While there is material that indicates a possible potential for flow on arising from the decision I come to on the substantive issue, I do not consider the potential sufficiently strong enough to warrant dealing with this matter other than between the parties to the original dispute notification.

25 In researching the history of the relevant Awards as requested, both parties submitted considerable documentation consisting of relevant copies of HREA Awards concerning the introduction of the part-time employee classification commencing in 1940. For example, the Hospital Employees (State) Award: IRC No 59 of 1940: IG 30 November 1941, Vol 63 at 489 makes provision in clause 4 for the creation of casual and part-time employees. No loading was payable or any exclusion to other award provisions were identified.

26 In the Hospital Employees (State) Award: IRC No 188 of 1948: IG 31 October 1948 Vol 91 at 161, provision is made for the first time in relation to part-time and casual employees and that they should be paid: …for the actual number of hours worked each week an amount of wages which bears the same proportion to the wages prescribed in clause 4 of this award as the hours worked bear to forty-hours, with an additional payment of 15 per cent of such amount.

27 There is nothing external to the award provision that sheds any light in ascertaining the meaning of the provision as expressed. On behalf of the HAC, it was submitted that because the extra 15% was described as 'an additional 15%' that strongly suggests it was in the nature of an additional payment on top of the rate, rather than 'the rate.'

28 I have to say I cannot agree with that submission. On any view, the rate became the hourly rate calculated as expressed with the additional 15%. As I understand its position, the HAC does not dispute this assertion but rather whether that loading, once incorporated, is retained for the purposes of calculating relevant shift penalty and overtime payments.

29 There are changes in expression in relation to the 15% loading for part-time employees in the history of the Award up to the present. For example, the words 'an additional payment of 15 per cent' was changed in the 1973 Hospital Employees (State) Award: IG Vol 191 at 803 to read (in clause 8(i)) 'plus 15 per centum thereof.' Again, there is nothing to which I have been taken that would assist in ascertaining what implication, if any, arises from the minor change of expression in relation to the 15 per cent loading. In my view, in whatever way it has been expressed, it becomes and is an integral component of the ordinary hourly rate for part-time employees under the Awards in question.

30 I turn now to the questions raised for determination.

Question (i) Whether or not part-time employees employed at Tweed Heads District Hospital were entitled to be paid a 15% loading on all hours worked by those employees other than on Saturdays, Sundays and on public holidays.

31 The answer to that question as agreed by the parties, and with which I concur, is yes.

32 On that issue it is appropriate to note in the first instance that question (i) is limited to work done other than on a Saturday, Sunday or public holiday. It should be added that under the 1990 Award and the 1998 Award there were specific provisions for calculating appropriate rates for working on Saturdays, Sundays or public holidays. I do not have to consider that issue as the question is directed to work done by those employees other than on those days. As the HAC contends, what is relevant to the issue before me in relation to work performed on weekends and public holidays is that the award provisions relating to those days specifically excludes the payment of what is described as 'the allowance of 15 per cent prescribed' to the part-time employees under consideration. I will deal with that issue in more detail in relation to questions (ii) and (iii).

33 There is no dispute between the parties as to the proper exclusion of the 15% loading when calculating payment in relation to weekends and public holidays for the defined categories of part-time employees identified in this matter.

Question (ii) Whether, when such employees worked shift work between Monday and Friday of any week which work attracted a shift penalty, that shift penalty was to be calculated on an hourly rate which included the 15% loading or on an hourly rate excluding the 15% loading;

34 To start with, it is agreed between the parties that under clause 11 of the 1990 Award, with respect to shifts worked on a Monday to Friday that were not a public holiday, part-time employees were only entitled to the additional shift rates where their shifts commenced prior to 6am or finished subsequent to 6pm. Likewise, under clause 11 of the 1998 Award, with respect to shifts worked on a Monday to Friday that were not a public holiday, part-time employees who worked less than 38 hours per week were only entitled to the additional shift rates where their shifts commenced prior to 6am or finished subsequent to 6pm.

35 The real issue between the parties revolves around the proper approach to be taken to the incorporation of the 15% loading when calculating the hourly rate of shift work payment for part-time employees under both Awards as well as calculation of the hourly rate of overtime payment for 'old' part-time employees under the 1998 Award.

36 The parties agree that the proper hourly rate for part-time employees under the 1990 Award and 'old' part-time employees under the 1998 Award for hours worked excluding shift penalties, overtime payments, weekends or public holidays is 115% of the ordinary rate for full-time employees. To put it another way, the hourly rate is arrived at by calculating one thirty-eighth of the appropriate weekly rate and then adding a 15% loading. By way of example and assuming an initial ordinary hourly rate of $10 for a full-time employee, a part-time employee under the 1990 Award and an 'old' part-time employee under the 1998 Award who works his/her hours between 8:30am and 4:30pm Monday to Friday (excluding public holidays) would be paid an hourly rate of $11.50 (i.e. $10 plus the 15% loading). Whether the 15% is called an 'allowance' or a 'loading' or simply expressed as 'plus 15%' seems to me to be irrelevant to the real issue. That is, the 15 per cent loading is an integral part of the ordinary rate for those categories of part-time employees. As I would characterise it, it becomes the adjusted ordinary hourly rate.

37 Is that adjusted ordinary hourly rate incorporating the 15% to be used as the basis for calculating shift penalties and overtime payments? The HAC says it should not be whereas HREA says it should. Having said that, it does not mean that the HAC excludes the 15% in such calculations. It is more the way the HAC undertakes such calculations taking account of the 15%.

38 To use an example, the approach taken by the HAC is as follows: Assume the hourly rate of pay for the award classification that covers employee X, a part-time worker is $10. Assume employee X's shift commences at 3pm Monday afternoon and finishes at 11pm (i.e. subsequent to 6pm) thereby entitling employee X to a shiftwork penalty of 12.5% for all ordinary hours worked during that shift. Employee X's shift work penalty rate and his/her 15% allowance are calculated independently in the following manner: (i) $10 per hour (award classification rate) $10.00

plus (ii) $10 x 15% (allowance) $1.50

plus (iii) $10/hour x 12.5% (shift penalty) $1.25 Total: $12.75 per hour

39 Relying on the same assumptions HREA would calculate the hourly rate in the above example as follows: (i) $10 per hour (award classification rate) $10.00

plus (ii) $10 x 15% loading $1.50 giving an adjusted ordinary hourly rate of $11.50

plus (iii) $11.50 x 12.5% (shift penalty) $1.4375 Total: $12.9375 per hour

40 Rounding off the above calculation for the purposes of the example to $12.94 as the all up hourly rate, the difference between the approach adopted by the HAC and the HREA as to the incorporation of the 15% loading represents a difference in outcome of 19 cents per hour.

41 The rationale for the approach taken by the HAC to the calculation of the ultimate hourly rate relying on the above example in para [38] was never explained except by reference to the word 'allowance' in other clauses of the Awards. In other words, the HAC contends that by referring to the 15% loading as an 'allowance' in subclause (iii) of clause 11 of the 1990 Award (likewise clause 11(iv) of the 1998 Award) when dealing with penalty rate payments for weekend work, such a reference is intended to mean that the 'plus 15%' referred to in clause 7 of the Award must be construed as an allowance and accordingly not intended to be included as part of the ordinary hourly rate. In my opinion, no such obvious rationale arises in any proper consideration of the wording in clause 7 nor the exclusion of the 15% howsoever described in clause 11 of both Awards. The same conclusion arises, in my view, in relation to public holiday payments in clause 14(iii) of the 1990 Award and clause 15(iii) of the 1998 Award where the word 'allowance' is used to refer to the 15% loading.

42 The basis for the approach adopted by HREA in calculating the hourly rate in relation to shift penalties for part-time employees in the two Awards is referable in the first instance to the provisions that are the starting point for part-time employees. In the 1990 Award, it is clause 7 as set out in full in para [7] above. Relevantly, in sub-clause (i) it states that a part-time employee's hourly rate is to be calculated 'on the basis of one thirty-eighth of the appropriate rate prescribed plus 15 per cent thereof.'

43 In relation to the 1998 Award and particularly the 'old' part-time employees, the provisions are expressed in the exact same words.

44 Clearly 'one thirty-eighth of the appropriate rate' is arrived at by dividing the appropriate weekly rate as prescribed in the Award by thirty eight. To that figure one adds 15 per cent to arrive at what I have characterised as the adjusted ordinary hourly rate for those part-time employees.

45 Whether the adjusted ordinary hourly rate becomes the basis for calculating the hourly rate for part-time employees where shift penalties are involved (outside of Saturday, Sunday and public holidays) must begin, it seems to me, by considering clause 11 of the 1990 Award and clause 11 of the 1998 Award. The relevant provisions are the same in both Awards.

46 Clause 11(i) of the 1990 Award states: 11. Penalty Rates for Shift Work, Weekend Work and Special Working Conditions Shift workers working afternoon or night shift shall be paid the following percentages in addition to the ordinary rate for such shift , provided however, the laundry staff working afternoon or night shift shall be paid 20 per cent in addition to the rates prescribed for employees of the corresponding classifications working day shift; provided further that part-time workers shall only be entitled to the additional rates where their shifts commence prior to 6am or finish subsequent to 6pm. (emphasis added)

47 Clause 11 (iii) of the same Award states: Employees whose ordinary working hours include work on a Saturday and/or Sunday shall be paid for ordinary working hours worked between midnight on Friday and midnight on Saturday at the rate of time and one-half and for ordinary hours worked between midnight on Saturday and midnight on Sunday at the rate of time and three-quarters. These extra rates shall be in substitution for and not cumulative upon the shift premiums prescribed in the preceding subclause (i) of this clause. The foregoing paragraph shall apply to part-time workers but such workers shall not be entitled to be paid in addition the allowance of 15 per cent prescribed in subclause (i) of clause 7, Part-time Workers, in respect of their employment between midnight on Friday and midnight on Sunday.

48 Clause 11(i) and 11(iv) of the 1998 Award are in the same terms save only for clause 11(iv) specifically identifying 'old' part-time employees in Part 2 of clause 6 of the Award.

49 In my view, the crucial words that guide the appropriate payment rate for shift work generally are those in subclause (i) of clause 11. That is, shift workers shall be paid certain percentages 'in addition to the ordinary rate for such shift.'

50 Is the 'ordinary rate' for the identified part-time employees working shift work under the 1990 and 1998 Awards inclusive of the 15% loading? I believe so. On behalf of the HAC much was made of the fact that clause 11(iii) of the 1990 Award and clause 11(iv) of the 1998 Award specifically exclude its incorporation for work performed on Saturday and/or Sunday, referring to it as 'the allowance of 15 per cent.' A similar exclusion operates in relation to public holidays: See clause 14(iii) of the 1990 Award and clause 15(iii) of the 1998 Award.

51 No provision operates to exclude it in relation to shift work outside weekends and public holidays. The HAC submits that because it is referred to as an allowance and excluded for weekend and public holiday purposes, that the 15% should be seen as an allowance for all purposes and not part of the 'ordinary rate' for Monday to Friday purposes. I have to say I am not convinced as to that approach.

52 To start with, the 15% loading as provided for in clause 7(i) of the 1990 Award and clause 6, Part 2, subclause (ii) states that the hourly rate shall be calculated as being 'one thirty-eighth of the appropriate rate plus 15% thereof.' In applying what I would consider to be the plain and ordinary meaning of those words when read together, it seems to me, that the ordinary rate for part-time employees under the 1990 Award and 'old' part-time employees under the 1998 Award is arrived at by determining one thirty-eighth of the appropriate weekly rate and adjusting it by 15%. As I have already stated, it becomes the adjusted ordinary hourly rate. That the HAC agrees with that approach is clear given their agreement to the affirmative answer for question (i) above. There is nothing in clause 7 of the 1990 Award or clause 6 of the 1998 Award that suggests that, once calculated, that the adjusted ordinary hourly rate for part-time employees is in any way divisible - except in relation to work on weekends and public holidays and that is expressly provided for in the relevant clauses of the Awards.

53 That the '15% allowance,' as it is there expressed, is excluded on weekends and public holidays is conclusive only of a consistency of approach in those particular clauses in that full-time employees under both Awards also have normal shift and overtime provisions excluded on weekends and public holidays and replaced by the specific entitlements provided for in the relevant award provisions: see for example clause 11(iii) of the 1990 Award and clause 11(iv) of the 1998 Award in relation to shift penalty payments on weekends and clause 14(i)(a) of the 1990 Award and clause 15(i)(a) of the 1998 Award in relation to public holiday payments. In short, in the Awards before me or elsewhere, there is no rationale that I can determine that would support the HAC's approach when calculating the proper hourly rate for shift penalty payments for those defined categories of part-time employees.

54 Having regard to all of the above I am of the view that the answer to question (ii) as framed is that: In relation to those part-time employees under the 1990 Award and 'old' part-time employees under the 1998 Award, when such employees worked shift work between Monday to Friday (exclusive of public holidays) and which work attracted a shift penalty, that shift penalty was to be calculated on an hourly rate that included the 15% loading. Adopting that approach, a demonstration of the calculation is as set out in para [39] above.

Question (iii) Whether, where part-time employees worked overtime, the overtime was to be calculated on the basis of an hourly rate including the 15% loading or on the basis of an hourly rate which excluded the 15% loading.

55 In the first instance, consideration of the question applies only to 'old' part-time employees under the 1998 Award.

56 Once again, the approach of the HAC to the incorporation of the 15% loading for such employees in relation to overtime payment is best demonstrated as follows: Assume the hourly rate of pay for the award classification that covers employee X, a part-time worker is $10. Assume employee X's shift commences at 3pm Monday afternoon and finishes at 11pm (i.e. subsequent to 6pm) thereby entitling employee X to a shiftwork penalty of 12.5% for all ordinary hours worked during that shift. Assume employee X worked 1 hour in excess of the total rostered daily ordinary hours of work prescribed for the majority of full-time employees employed on that shift (i.e. 3pm to 11pm). That is, employee X worked 1 hour of overtime (i.e. finished at 12am). Employee X's rate of pay for the 1 hour of overtime would be calculated in the following manner: (i) $10 x 15% (allowance) $1.50 plus (ii) $10 x 1.5% (overtime) $15.00 Total: $16.50 per hour

57 Relying on the same assumptions as above, the approach taken by HREA to the incorporation of the 15% loading would be demonstrated as follows: (i) Adjusted ordinary hourly rate $11.50 plus (ii) $11.50 x 50% (overtime rate) $5.75

58 Under clause 6, Part 2 of the 1998 Award the provisions in relation to overtime for 'old' part-time employees is to be found in subclauses (v), (vi) and (vii) as follows: (v) All time worked by part-time employees in excess of the total rostered daily ordinary hours of work prescribed for the majority of full-time employees employed on that shift in the ward or section concerned shall be paid for at the rate of time and one-half for the first two hours and double time thereafter, except that on Sundays such overtime shall be paid for at the rate of double time. (vi) Time worked up to the total rostered daily ordinary hours of work prescribed for a majority of the full-time employees employed on that shift in the ward or section concerned shall not be regarded as overtime but an extension of the contract hours for that day and shall be paid at the ordinary rate of pay . (emphasis added) (vii) With respect to employees employed as part-time workers, the provisions of clause 9, Overtime, except where provided in subclauses (v) and (vi) of this Part, shall not apply.

59 In relation to the general provision for overtime payment, clause 9 Overtime of the 1998 Award provides in subclause (iii): All time worked by employees outside the ordinary hours in accordance with clause 3, Hours, and clause 4, Roster of Hours, shall be paid for at the rate of time and one-half up to two hours each day and thereafter at the rate of double time: provided, however, that all overtime worked on Sunday shall be paid for at the rate of double time and all overtime worked on public holidays shall be paid for at the rate of double time and one-half.

60 I have to say, nothing in relation to the relevant provisions of the 1998 Award persuades me to the view that the correct approach to incorporating the 15% loading for overtime payments for 'old' part-time employees is as contended by the HAC. Indeed, if anything, the test of the incorrectness of that approach is, it seems to me, exemplified by the provisions of subclause (vi) of Part 2 of clause 6 of the 1998 Award set out in para [58] above, particularly where emphasised. Where the provisions of that subclause apply and an 'old' part-time employee is to be paid 'at the ordinary rate of pay,' it would be clear in my view that that ordinary rate of pay would include the 15% loading as provided for in subclause (ii) of Part 2 of clause 6. To suggest otherwise would render the outcome industrially nonsensical. Again, the point can be illustrated by reference to the following example: (i) Assume that the ordinary hours of work for the majority of full-time employees in Ward X on a specified shift were 8:30am to 4pm Monday to Friday (excluding a public holiday). (ii) Assume an 'old' part-time employee was rostered to work on that shift from 8:30am to 1pm. (iii) The adjusted ordinary hourly rate of pay for that 'old' part-time employee is $11.50 per hour. The HAC agrees with that given the answer to question (i). (iv) Assume that that same employee is requested and agrees to work until 4:30pm i.e. he/she has worked up to the total rostered daily ordinary hours of work prescribed for a majority of the full-time employees employed on that shift in the ward or section concerned.

61 On any view, the hourly rate for that 'old' part-time employee for the hours worked from 1pm to 4:30pm would be, as subclause (vi) states, the 'ordinary rate' for that employee. That is, $10 plus the 15% loading or $11.50 per hour. In other words, the adjusted 'ordinary rate' is the ordinary rate for that part-time employee and is so for all purposes except where expressly excluded.

62 Strictly speaking, the hours from 1pm to 4:30pm are overtime for the 'old' part-time employee but, because of the provisions of subclause (vi) of Part 2 of clause 6 of the Award, they are paid at the 'ordinary rate of pay.' The 'ordinary rate of pay' for those 'old' part-time employees working the additional hours would clearly be the adjusted ordinary hourly rate incorporating the 15% loading. To suggest otherwise would clearly be a nonsense.

63 Assume that that same employee then works one additional hour until 5:30pm. Is it to be said that the 15% loading is then incorporated in the way the HAC would suggest, that is, separating it from the prior adjusted ordinary rate for the purposes of one hour of overtime payment? I can observe no logical justification in that approach nor is there anything in the overtime provisions of the 1998 Award that would suggest that the ordinary rate of pay for 'old' part-time employees is anything other than as stated in clause 6 Part 2 subclause (ii) of the 1998 Award, that is, one thirty eighth of the appropriate (weekly) rate plus 15 per cent thereof.

64 Having regard to all of the above, I am of the view that: In relation to question (iii) as expressed, and specifically in relation to the 1998 Award in relation to 'old' part-time employees, where such employees worked overtime, the overtime was to be calculated on the basis of an hourly rate including the 15% loading.

The correct approach is as demonstrated in para [57] above.

65 The HAC has raised the issue of possible overpayment to the 14 wardspersons at Tweed Heads District Hospital in relation to the question of overtime under the 1990 Award - noting that there was no obligation to pay overtime to part-time employees under the 1990 Award. The HAC's submission on this issue is expressed thus: Where the Northern Rivers Area Health Service has paid any of the relevant employees payments for overtime during the period that the 1990 Award applied or otherwise has overpaid them, then to the extent to which there has otherwise been any underpayment in respect of those employees arising from this interpretation of the Award, such underpayment is to be offset against any overpayments.

66 At this point I do not propose to make any decision in relation to that issue. In the light of my determination, it behoves the parties to have discussions to determine what adjustments or payments need to be made. I would only add that I would hope, given the passage of time and the relatively small number of employees seemingly affected, the parties would be able to sensibly negotiate a fair and reasonable outcome for all concerned.

67 Having regard to the questions raised for my determination I am satisfied that the proposed statement included as part of the submissions on behalf of HREA properly reflects the decision I have come to. It also reflects the relevant employment time frame for the 14 wardspersons employed at Tweed Heads District Hospital whose employment provisions became the catalyst for the initial dispute notification. Accordingly, the proposed statement as submitted on behalf of HREA is included as Schedule A to this decision.

Statement by Commission 1. Subject to the statements below at paragraphs 2 and 3, part-time workers and part-time employees engaged pursuant to the terms of the Hospital Employees' Conditions of Employment (State) Award 1990 and the Health Employees' Conditions of Employment (State) Award 1998 employed at Tweed Heads Hospital were, at all times between 12 December 1990 and until their employment status was varied to that of full-time employees, entitled to be paid at a rate which was equivalent to 115% of the hourly rate applicable to full-time employees for all hours worked by those employees between Monday to Friday other than public holidays. 2. When such employees worked shift work between Monday to Friday other than public holidays, of any week during the period 12 December 1990 and until their employment status was varied to that of full-time employees where such work attracted a shift penalty, that shift penalty was to be calculated on an hourly rate which was a rate equivalent to 115% of the ordinary hourly rate applicable to full-time employees. 3. When such employees worked overtime pursuant to the terms of the Health Employees' Conditions of Employment (State) Award 1998 during the period 2 March 1998 and until their employment status was varied to that of full-time employees, the rate payable for such overtime was to be calculated on the basis of an hourly rate which was a rate equivalent to 115% of the ordinary hourly rate applicable to full-time employees.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.