MITSUBISHI MOTORS AUSTRALIA LIMITED (P & A WAREHOUSE,

FORD MOTOR COMPANY (VEHICLE INDUSTRY) - CONSOLDIATED

MITSUBISHI MOTORS AUSTRALIA LTD (SUPERVISORY AND

MITSUBISHI MOTORS AUSTRALIA LTD (CLERKS) AWARD 1998

MITSUBISHI MOTORS AUSTRALIA LTD (VEHICLE INDUSTRY) AWARD 1998

VEHICLE INDUSTRY - NISSAN CASTING AUSTRALIA (PARTS

Application to vary awards; section 107 reference to Full Bench; public holiday penalty rates; payment for shift commencing before midnight on day before public holiday; judicial construction of award provisions; whether open to vary award to avoid effect of construction; well established construction of provision since 1979 consistent with general industry approach to similar provisions; award made; issues about retrospective application of award.

[1] The matters before the Commission are applications lodged on 23 December 1999 and 11 February 2000 to vary the following awards:

• Mitsubishi Motors Australia Limited (P & A Warehouse, New South Wales) Award 1998.

• Ford Motor Company (Vehicle Industry) - Consolidated Award 1998.

• Mitsubishi Motors Australia Ltd (Supervisory and Technical Employees) Award 1998.

• Mitsubishi Motors Australia Limited (Clerks) Award 1998.

• Mitsubishi Motors Australia Limited (Vehicle Industry) Award 1998.

• Vehicle Industry - Nissan Casting Australia (Parts Manufacture) - Award 1998.

[2] In substance, the applications seek variation of each of those awards by inserting provisions that will cause:

1. public holiday penalty rates to apply only to the public holiday shift designated as such, and not to working time within the shift preceding the public holiday that extends into it;

2. the award variation to apply retrospectively to 3 December 1993 notwithstanding any contrary award provision applicable to the work.

The applications are brought by the employer respondents to the respective awards: Mitsubishi Motors Australia Limited (Mitsubishi), Toyota Motor Corporation Australia Ltd (Toyota), Ford Motor Company (Ford), Holden Limited (Holden), and Nissan Castings Australia Pty Ltd (Nissan). On 22 February 2000, the President referred the matters to a Full Bench established under section 107 of the Workplace Relations Act 1996 (the Act).

Background to Matters and Issues to be Determined:

[3] Effectively the questions that arise for our determination are whether the awards should be varied at all, and if so, whether the variation should be retroactive.

[4] The variation sought in each case is a provision in terms that correspond to the proposed variation of the Toyota Australia Vehicle Industry Award 1988, making such changes as are necessary. We have set in bold against the full text of the relevant clause the changes sought by the application to vary:

(a) An employee who works on a holiday shall be paid therefor at the rate of two and one-half times the ordinary rate.

(b) A shift commencing before 10.45 p.m. on a holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate.

(c) Except as provided in subclause (e) hereof, a shift commencing at 10.45 p.m. or between 10.45 p.m. and midnight shall not be regarded as a holiday shift and work done thereon shall not entitle an employee to the holiday rate.

(d) Except as provided in subclause (e) and subclause (f) hereof, a shift commencing before midnight on the day preceding a holiday and extending into the holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate.

(e) Notwithstanding subclauses (c) and (d) hereof, where an employee is rostered for a shift which terminates on a holiday and a shift which commences on the same holiday, one shift only shall be regarded as the holiday shift and such shift shall be the one, the major portion of which falls on the holiday.

(f) Subclause (d) shall not apply to an employee who is granted a holiday without deduction of pay in respect of a shift which commences on a public holiday prescribed by clause 21."

(g) An employee, other than on shift work, required to work on a holiday shall be paid for a minimum of four hours' work at the appropriate rate.

(h) (i) An employee working on a holiday for more than nine and one-half hours shall, at the end of eight hours, be allowed a crib break of twenty minutes which shall be paid for at ordinary rates.

(ii) An employee working on a holiday for more than eight hours shall be allowed a crib break of twenty minutes without deduction of pay after each four hours worked beyond eight hours, providing the employee continued to work after such crib break.

(iii) The Company and the employee may agree to a variation of this subclause to meet the circumstances of the work in hand, provided that the Company shall not be required to make any payment in respect of any time allowed in excess of twenty minutes.

(i) (i) An employee required to work on a holiday for more than ten hours without being notified on the previous day or earlier that the employee will be so required to work shall either be supplied with a meal by the Company or paid $6.60 for each meal.

(ii) Unless the Company advises an employee working on a holiday on the previous day or earlier that the amount of time to be worked on the holiday will necessitate the partaking of a second or subsequent meal (as the case may be), the Company shall provide such second and/or subsequent meals or make payment in lieu thereof as prescribed in paragraph (i) hereof.

(iii) If an employee pursuant to notice has provided a meal or meals and is not required to work less than the amount advised, the employee shall be paid as prescribed in paragraph (i) hereof, for meals which he/she has provided but which have become superfluous.

(j) An employee (other than a casual employee) not engaged on continuous work, who works on a holiday and (except for meal breaks) immediately thereafter continues such work shall, on being relieved from duty, be entitled to be absent until he/she has had ten consecutive hours off duty, without deduction of pay for ordinary time of duty occurring during such absence.

(k) For the purpose of this clause "holiday" means a day referred to in clause 21 of this Award.

(l) Payments prescribed by this clause shall stand alone and shall not be included for any other purposes of this Award."

[5] The genesis of the issues requiring our determination was a disputed interpretation of an award provision that has applied to vehicle manufacturers in almost identical terms to those set out since at least 1974. The provision has twice been subject to decisions of the Federal Court.

[6] In the first decision, Jarrad v Nissan[1], Smithers ACJ in 1979 construed clause 20 of the Vehicle Industry Award 1982[2] (the 1982 Award). He did so for the purpose of determining an application brought by an employee member of the Vehicle Builders Employees Federation (the VBEF) for breach of the award in relation to payments for the 1979 Good Friday holiday. The relevant clause was not materially different from the provisions with which the applications in these matters are concerned.

[7] So far as relevant clause 20 of the 1982 Award read:

(a) An employee who works on a holiday shall be paid therefore (sic) at the rate of two and one-half times his ordinary rate.

(b) A shift commencing before 10.45 p.m. on a holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate.

(c) Except as provided in sub-clause (e) hereof a shift commencing at 10.45 p.m. or between 10.45 p.m. and midnight on a holiday shall not be regarded as a holiday shift and work done thereon shall not entitle an employee to the holiday rate.

(d) Except as provided in sub-clause (e) hereof a shift commencing before midnight on the day preceding a holiday and extending into the holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate.

(e) Notwithstanding sub-clauses (c) and (d) hereof where an employee is rostered for a shift which terminates a holiday and a shift which commences on the same holiday, one shift only shall be regarded as the holiday shift and such shift shall be the one, the major portion of which falls on the holiday.

(f) An employee, other than one on shift work, required to work on a holiday shall be paid for a minimum of four hours' work at the appropriate rate.

(j) For the purposes of this cause 'holiday' means a day referred to in clause 23 of this award.

(k) Payments prescribed by this clause shall stand alone and shall not be included for any other purposes of this award."[3]

[8] Smithers ACJ concluded that the relevant subclause should be read in conjunction with the public holidays provision. He held that the clause was intended to identify which shift is the public holiday shift. He held that subclause 20(e) applied to work performed on the actual day of the public holiday only if the relevant employee was not in fact accorded a full period of paid time off corresponding to the holiday shift. The substantive conclusion was expressed in the following passages:

"Having regard to the discussion above concerning the identification of the holiday shift, the provisions of cl. 20 are seen not only to identify the shift which is the holiday shift, for which special rates apply if work is done therein, but also to provide that work done in any other shift, although on that day, is not work to which the holiday obligations apply. Pursuant to cl. 20(e) there is, in the circumstances of the employees concerned in this case, only one such shift. Sub-clause (e) is therefore in conflict with the literal terms of sub-cl. (a) so far as its terms would extend to work done on the holiday but in a shift which according to sub-cl. (e) is not a holiday shift. As a matter of construction it appears to me that in this conflict sub-cl. (a) of cl. 20 must be regarded as qualified by the other sub-clauses of cl. 20 and in particular by the particular provision for shift workers for whom sub-cll. (b) to (e) are specially designed and in respect of whom they provide a degree of equity in a complicated situation.

It follows that in a case such as that of the employees concerned in this case their Anzac Day holiday started at 2.10 a.m. on 25th April and continued until 2.10 a.m. on 26 April, a period of twenty-four hours. Had their shifts been different the duration of the actual hours of holiday would have varied as indicated above. But the rosters appear to be established well in advance, by reference one would think, to considerations other than the holiday entitlements which they may affect and the time slot of shifts which may, as demonstrated, favour the employer or the employee. But this does not throw doubt on the essential validity of the conclusion to which I have done. The adjustments to the length of the holiday are merely a consequence of other practical considerations by which rosters are established. So far as shift workers are concerned their holiday shifts are those designated in sub-cll. (b) to (e) of cl. 20. The work performed on a holiday in any shift not designated as a holiday shift is not performed during a holiday shift. Within the meaning of cl. 20(a) work performed by shift worker in a shift other than a holiday shift is not work performed on a holiday. With respect to shift workers sub-cll. (b) to (e) must be regarded as particular provisions concerning the holiday benefits of shift workers. For work performed by a shift worker on a holiday other than in rostered on shift time sub-cl. (a) would be applicable and the employee would be entitled to the rates provided for therein. But that is not this case.

Clause 20(b) raises some questions not answered in the discussion herein, but for present purposes, it is unnecessary to endeavour to cope with them."[4]

[9] In April 1999, Ryan J in AFMEPKIU v Toyota Motor Corporation[5] gave an interpretation of clause 17 of the Toyota Australia Vehicle Industry Award 1988 (the Toyota Award). As can be seen from text set out in paragraph 4 above, that clause is in very similar terms to clause 20 of the 1982 Award. Ryan J's judgement was given pursuant to an application under section 413 of the Act. Although it is common ground that the relevant award provisions were not materially different from those considered by Smithers ACJ in Jarrad, that case was not cited to Ryan J. Ryan J declared that:

"… on its true meaning and intent cl 17 of the Award obliges Toyota to pay two and a half times the ordinary rate for the whole shift to an employee who is required to work for any part of a shift commencing before 10.45 pm on a public holiday or who is required to work a shift which commences before midnight on the day preceding a public holiday and which intrudes to any extent into the public holiday. I shall qualify the interpretation by a proviso which gives effect to the mechanism erected by cl 17(e), as I have construed it, to prevent an employee from receiving double time and a half for two shifts which both intrude into the same public holiday."[6]

[10] That declaration was effectively confirmed by majority decision of a Full Court of the Federal Court on appeal. Moore and Marshall JJ in their judgment summarised the issue and their conclusion in the following passages:

"11 In this appeal the submissions of Toyota accorded substantially with the reasons of Smithers ACJ while the Union supported the interpretation of the primary judge.

12 The Award creates in cl 21 a prima facie entitlement to a day off work on days specified as public holidays for which an employee will be paid but, in the event that the employee is required to work on that day, the employee will be compensated by additional payments. The approach adopted by Smithers ACJ was to treat this entitlement as an entitlement not to attend for work for a period during which the employee would ordinarily work. The primary judge treated the entitlement as being to a day off which was a period of twenty four hours.

13 We will generally refer to the clauses considered by Smithers ACJ by reference to the numbering used in the Award in these proceedings. In our opinion there is no warrant for treating, as Smithers ACJ did as a starting point in construing cl 17, the entitlement conferred by cl 21 to a period off as limited, for a day worker, to the period the employee would otherwise be likely to have worked. The language of cl 21 indicates fairly clearly that the entitlement relates to the entire day and not just that part of it that otherwise would have been worked even if the practical effect of the operation of cl 21 is that the day worker is entitled to be absent from work for that period. The day worker is excused from working at any time that day. There is no reason to treat the position of a shift worker as any different. That is, a shift worker is entitled to be absent from work for the entire period of 24 hours constituted by the days identified in cl 21. At least seven of the days identified in subcl 17(1) are days of some religious (Good Friday, Easter Saturday, Easter Monday and Christmas Day) or cultural (Australia Day, Anzac Day and Queen's Birthday) significance. While cl 17 may be intended, in part, to give an employee a respite from working on these days it can also be viewed as a recognition, at least as to some of the days, of the significance of the days themselves. It would be consistent with that view of the purpose of cl 17 to treat the clause, consistent with the language used, as conferring on an employee an entitlement to take the entire day of 24 hours as a holiday.

14 However the entitlement to the day off is not absolute. A qualification to the entitlement is implied by cl 17. Indeed subcll 17(f) and (h) expressly refer to a worker, other than a shift worker, being required to work on a holiday. Toyota can, notwithstanding the entitlement created by cl 21, require an employee to work on a holiday but if that occurs payment is to be made in accordance with cl 17. If additional payments are made under cl 17 they are generally made at a rate of two and one half times the ordinary rate. We will, for convenience, refer to that as the 'holiday rate'.

16 … subject to subcl 17(e). … subcl 17(d) … declares that a shift commencing before a holiday but extending into the holiday is a holiday shift. Work on such a shift attracts the holiday rate. Again the operation of subcl 17(a) is extended so that some work not done on a holiday is paid for at the holiday rate. Subclause 17(e) provides a mechanism for identifying which shift is a holiday shift when two shifts (or parts of them) are worked on a holiday. Subclause 17(e) does not itself confer or deny an entitlement to payment at the holiday rate but modifies the operation of subcl 17(c) which denies an entitlement to payment (subcl 17(a)) and also modifies the operation of subcl 17(d) which creates an entitlement to a payment. The operation of subcl 17(c) is modified by subcl 17(e) in this way. A shift commencing between 10.45pm and midnight is not to be treated as a holiday shift, if worked. But if that shift is one of two shifts (or parts of shifts) worked on the holiday and is the longer (in terms of time actually worked on the holiday itself), then that shift is to be treated as the holiday shift and work on it is, by clear implication, paid at the holiday rate. The operation of subcl 17(d) is modified by subcl 17(e) in this way. When a shift commencing before the holiday but continuing into the holiday is one of two shifts worked (in whole or in part) on the holiday, that shift is to be treated as the holiday shift only if it is the longer of the two shifts (in terms of the time worked on the holiday itself). If it is not the longer then it is not to be treated as the holiday shift notwithstanding subcl 17(c). Work on that shift is, by clear implication, not to be paid at the holiday rate. Subclause 17(e) operates to ensure that if an employee works on a shift which finishes on a holiday and again works on the next shift which starts on the holiday only one working shift is remunerated at the holiday rate.

17 The preceding analysis of cl 17 is based on the language and structure of the clause when read with cl 21. It is consistent with the conclusion of the primary judge and the preferable interpretation having regard to the natural and ordinary meaning of the relevant provisions. …"[7]

[11] Finkelstein J in a dissenting judgment gave his principal reasons in the following passages;

"40 The question that has arisen, the answer to which depends upon the proper construction of sub-cl 17(e), is whether the afternoon shift that commences on the day before a holiday and extends into the holiday is a holiday shift in respect of which the holiday rate is payable. The Union contends that it is. Toyota argues that when a worker is granted a holiday by not being required to work the afternoon shift on the holiday, and is paid for that shift, sub-cl 17(e) applies so that the employee who works the afternoon shift on the preceding day does not work a holiday shift.

41 The answer to the question, and the proper construction of sub-cl 17(e) should take account of the payment of holiday pay, and the payment of the holiday rate, to employees who do not work shifts that are subject to regulation or potential regulation by sub-cl 17(e). If a particular pattern for taking paid holidays, or for the payment of the holiday rate, is disclosed as regards those employees then, prima facie at least, the same pattern should be applied to shift workers whose holiday shifts are regulated by sub-cl 17(e), in so far as the language of that clause permits.

42 The case of the day worker is straightforward. …

43 The position of the shift worker is more complex. …

51 The difficult case is where the worker is rostered for, but is not required to work, the afternoon shift which commences on the holiday. Toyota contends that in that event sub-cl 17(e) then applies with the consequence that the shift which intrudes less into the holiday is not a holiday shift for which the holiday rate is payable. The paid holiday to which the worker is entitled is taken when the worker does not work the afternoon shift that begins on the holiday and is paid for that shift. The Union argues that the reference in sub-cl 17(e) to 'rostered for a shift' means rostered for a shift that the employee is required to work and because the employee is not required to work the shift that commences on the holiday, the second condition in sub-cl 17(e) has not been satisfied.

52 It may be accepted without further ado that the ordinary meaning of the phrase 'rostered for a shift' is rostered for a shift that the employee is required to work. In the first place the purpose of a roster is to inform shift workers when and for what period they are required to work. In the second place the award itself proceeds upon the basis that this is the function of the roster: see eg sub-cl 15(f) which provides that 'where a shift worker's normal 38 hour roster requires the employee to work [certain] shifts on a Saturday, Sunday or public holiday' (my emphasis) the employee is to be paid a certain sum over and above his ordinary rate; see also sub-cl 22(b) which provides that 'seven day shift workers, that is shift workers who are rostered to work regularly on Sundays and the holidays referred to in clause 21' (my emphasis) shall be allowed additional annual leave.

53 However, while 'rostered for a shift' will usually mean "rostered for a shift that the employee is required to work", when the phrase is used in sub-cl 17(e) it does not mean rostered for and required to work a shift that is a holiday shift. I have identified that one object of cl 17 is to designate what is and what is not a holiday shift. Once a shift has been designated as a holiday shift sub-cl 21(a) can be applied to it. As Smithers ACJ said in Jarrad v Nissan Motor Manufacturing Co (Aust) Ltd [1979] LBC Current Review 323 at 325 in regard to an identical provision in the Nissan Australia Vehicle Industry Award 1976_:_

'[A] shift worker must be allowed a day off. The obvious way to do this is to designate a shift, all or part of the duration of which falls in the holiday, as the shift in respect of which the holiday entitlements shall apply. Once it is identified the employer's obligation is to pay ordinary rates for that shift although no work is done or to pay two and one-half times his ordinary rate if the employee is required to work therein.'

54 There is another reason why I would reject the construction put forward by the Union. In their submissions both Toyota and the Union have assumed that whether or not the afternoon shift that commences on the day preceding a holiday is a holiday shift, workers who are not required to work the afternoon shift that commences on the holiday are to be paid for that shift. It is not clear whether this assumption is fairly based on the award, especially where the afternoon shift commencing on the day preceding the holiday is a holiday shift. A contrary construction was not argued and, because it is an important point, I am loath to resolve it. Accordingly, proceeding upon the same assumption as the parties, if the argument of the Union is accepted shift workers in the second group would receive both the holiday rate for the afternoon shift that commences on the day preceding the holiday and payment in respect of the afternoon shift that commences on the holiday although no work is performed on the shift. As I have shown other workers, in particular day workers and certain shift workers, would not receive the same benefits. A construction of the award that produces this result, that is discrimination between workers for no apparent reason, should be avoided. It could truly be described as an irrational and therefore an unintended result."[8]

[12] In summary, the construction that prevailed in the Full Court held that part of the rationale of the holiday rate provision was to confer an entitlement to take the entire 24 hours of the day on which a public holiday falls as a holiday. In default of such observance, the penalty of double time for the intruding shift should be applied. The declaration gave effect to a construction consistent with that rationale. The judgment opened the way to other proceedings instituted in the Federal Court for a representative action claiming breach of the Toyota Award or awards from 1993 onwards.

[13] The construction that did not prevail, the Jarrad construction, treated the words used in subclause (e) as intended to denote or designate the shift that is to be observed as the holiday shift. In circumstances where a shift that would otherwise be worked is observed as the public holiday shift, subclause (e) is construed as designating that shift, (the major portion of which falls within the holiday) as the public holiday shift. Only if that shift is worked, would the penalty loading to all work in it apply.

[14] Toyota, and the employers respondent to the vehicle manufacturing awards generally seek by the variation of the awards in this matter to establish in the award a basis to update the Jarrad construction. The effect will be to supplant the interpretation of the existing provisions that now prevails by reason of the Full Court order. In addition, the applicant employers seek to have the awards varied to erect in effect a shield against causes of action based upon their respective applications since at least 1993 of the Jarrad construction. Although that construction may have been disputed, it had not been effectively challenged or supplanted until Ryan J's decision in April 1999.

[15] We issued directions in this matter on 17 May 2000, in response to which the applicants and respondent unions lodged contentions and supporting affidavits. At the hearing of the matter on 28 June 2000, Mr M. McDonald, of counsel, by leave appeared for the applicant employers. Mr M. Belfield appeared by leave for the Australian Industry Group (AiG), intervening on behalf of members who are employer respondents to the 1982 Award. We note that although that is the award that effectively supercedes the award construed in Jarrad, it is not one of the awards subject to the applications to vary in this matter. Mr A. Lawrence, of counsel, was granted leave to appear for the AFMEPKIU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). After the conclusion of the hearing, written submissions were lodged under leave reserved. The last of those submissions was received on 26 July 2000.

[16] In the presentation of the applicants' case, Mr McDonald sought to establish that the Jarrad construction gave rise to a settled and generally operative understanding of how the provision should be applied, consistent with industrial practice since the making of the relevant award in 1974. For that purpose, Mr McDonald presented evidence from witnesses able to give a detailed account of each employer's practice, based on the employer's knowledge of and participation in the Jarrad proceedings. The evidence also gave estimates of the potential cost of compliance with the construction declared by the Federal Court, and the detail of shift and work roster arrangements relevant to application of the current award provision applying to the respective companies. Those witnesses were:

1. Mr John Edward Barlow, Director Personnel, Holden Limited.

2. Mr Steven Grapsas, Former Manager - Personnel and Industrial Relations, Ford Motor Company of Australia Limited.

3. Mr Geoffrey Lamb, Former Labour Relations, Ford Motor Company of Australia Limited.

4. Mr David Lloyd, Manager Human Resources and Administration, Nissan Castings Australia Pty Ltd.

5. Mr Robert Agg, Human Resource Co-ordinator, Ford Motor Company of Australia Limited.

6. Mr Steven Barrett, Employee Relations Manager, Mitsubishi Motors Australia Limited.

7. Mr Phillip Elkins, Workforce Relations Manager, Toyota Motor Corporation Australia Limited.

8. Mr John Finlayson, Former Industrial Relations Manager, Nissan Castings Australia Pty Ltd.

9. Mr Bruce Worcester, Payroll and General Accounting Co-ordinator, Ford Motor Company of Australia Limited.

[17] In summary, the evidence, and Mr McDonald's submissions developed the following grounds upon which the applicants seek relief:

• The vehicle companies generally jointly funded the defence of the breach of award action in Jarrad. The decision in that case gave rise to a general acceptance of the approach and application of the provisions as endorsed by Smithers ACJ. The Full Bench should find on the evidence that it was thereafter the intention of the parties to the awards that the provisions regulating them in respect of public holidays would operate consistently with the interpretation given by Smithers ACJ.

• The construction and practical operation of the clause endorsed in Jarrad was consistent with past practice. That interpretation was consistent also with rulings about the intention of a similarly worded provision in the Metal Trades Award 1952 when it was made. The construction was also consistent with a ruling given about the latter provision by a Board of Reference[9].

• The relevant unions must be taken to have been aware of the decision in Jarrad. No claims or demands inconsistent with observance of it were advanced prior to the relevant awards being made. No relevant application to vary awards was initiated by the unions. The employer companies put aside an application to vary that had been prepared for lodgment, contingent upon the position advocated to Smithers ACJ in Jarrad not having prevailed.

• The operational practice has been to provide a public holiday shift on paid time off and not make payment at public holiday rates for afternoon shifts preceding the public holiday that intrude into the 24 hour period of the public holiday. That practice had been observed by all vehicle manufacturers from at least 1979 up to the time of Ryan J's decision in April 1999. Only in the case of Ford was any payment other than normal shift rate ever added. That exception was not deliberate. On the evidence, the payment arose from a computer programming error that applied time and a quarter to the portion of the shift that fell within the public holiday.

• Failure to grant the application would expose each of the employers to substantial cost liability for claims for payment or award breach in circumstances where such claims could not reasonably have been anticipated of the time the potential liability was concerned.

• Any of the available means for avoiding exposure to costs in future would involve difficulties and disruptions to established working, shift and production patterns.

[18] Each company witness, other than Messrs Finlayson and Worcester, was cross-examined. The substantial thrust of Mr Lawrence's cross-examination was to establish points to the following general effect:

• The pattern of shift usage, shift starting and finishing times, and exposure to cost effects of the prevailing construction of the public holiday shift rate provision vary between each of the employers, and from time to time within each employer's enterprise.

• Potential cost effects of applying the prevailing construction would need to take account of opportunities to avoid or minimise any prospective cost impact.

• Even if the overall cost estimates were to be accepted, for the periods calculated, the monthly cost effect is relatively minimal when measured against the overall level of production and output.

[19] The unions' evidential case was comprised of some evidential material about the history of the award and the affidavit of Mr Alex Sachinidis. Mr Sachinidis traced the translation of the 1982 Award into the individual company safety net awards, each of which incorporates provisions identical to or substantially the same as Holiday Work and Rates clause of the 1982 Award. In 1978 the VBEF made claim against Nissan in respect of failure to pay holiday loading for a shift which extended into Good Friday. Despite the decision of Smithers ACJ on that claim, the union had persisted in its belief that the purpose of the clause was to compensate employees who are rostered on an afternoon shift preceding a public holiday. In late 1994, disputes arose with Toyota about issues that included the payment for such shifts. A dispute notified by Toyota came before Gay C in May 1995. In late 1996, another dispute arose and a grievance raised in relation to it gave rise to a dispute notified to Foggo C in May 1997. In later discussions a Toyota representative had stated that if the union wished to pursue the matter it should take it to the Federal Court. The union filed application in December 1997 for an interpretation under section 413 of the Act. The application was heard by Ryan J on 7 April 1998, decision delivered on 19 April 1999, and the appeal determined by the Full Court on 28 October 1999. At no stage during the award simplification proceedings from 1996 to 1998 had the companies sought to alter the relevant award provisions. In Mr Sachinidis' opinion, it would be practicable for the companies to make arrangements to ensure that they would not need to make the penalty rate payments. Such arrangements might include use of Programmed Days Off, and Shift Flexibility Facilitation. The union would be willing to negotiate the matter in the context of enterprise bargaining negotiations. The flexibilities available to the companies, if implemented, would reduce to minimal cost levels any future liability to penalty rates.

[20] Mr Lawrence submitted that the applications should be dismissed. The main grounds upon which he relied may be summarised as follows:

• The Full Court's construction gives proper priority to observance of the public holiday. It constitutes a determination of the scope and content of an important safety net award. It does so in a way that accepts the intent of the provision is to compensate employees who are required to work on a public holiday. The Commission should allow that construction to prevail. The approach in Brack's Case[10] is distinguishable because circumstances here are not the same. The background circumstances and industrial merits were understood by the Full Court. No evidence has been presented as to the basis upon which the public holiday provision was included in the award at its inception. There is no sound industrial reason to now give the safety net provision a scope aligned with the interpretation placed on it by the employer applicants.

• The unions have since 1979 intermittently contested the failure to allow penalty rates for work on a public holiday. Most notably in Toyota in 1994, and in 1997 disputes were raised about the operation of the provision.

• There is no significant prospective cost to the employers if the applications are dismissed. There is no evidence as to substantial prospective cost impact. At highest, the cost impact will be minimal. The estimates do not factor in the considerations of flexibility and avoidance.

• There is no appropriate "one-fit" award provision suited to requiring payment for work in the actual shift times disclosed for particular public holidays. The evidence shows the companies have different practices. Rearrangement of shift starting and finishing times, and use of rostered day off or programmed days off, are among the steps that could be taken readily to avoid the cost effects of programming work on the public holiday.

• Granting the application will extinguish the rights of several classes of employees to the fruits of the unions' victory before the Full Court.

• The adjustment of shift arrangements and payment for holiday duty should properly be left to the bargaining process. Similarly, flexibility and cost considerations could be dealt with by that process. It is consistent with the objects of the Act not to intervene by making a fresh award provision.

• Retrospectivity should not be awarded. It is not contested that for almost the whole period, from 1993, at least from 1994, the unions were generating disputes in support of a construction of the provisions that ultimately prevailed when the unions took it to the Federal Court in 1997. The employers' case on the industrial merits of their applications is thin. The notion of incapacity to pay is devoid of merit. No effective answer has been made to the union evidence about capacity to change shift times and patterns of work to avoid the cost impact of having to meet public holiday penalty rates. No action by any company to file an application for award variation was ever completed. Some of the awards sought to be set aside are no longer extant[11].

[21] In our consideration of the merits of this matter we have given weight to what we consider to be the rationale of the award provisions made. It is not our purpose to contrast that rationale with the reasoning reflected in the Full Court's decision. That decision, and the construction of clause 17 of the Toyota Award that it adumbrates is a necessary premise of any determination we make in this matter. However, the Full Court itself recognised, and the decision in Brack's Case makes clear, that our task in determining an application under section 113 will not be a mere reflection of the judicial proceeding to interpret the existing award provision. Rather, determination of an application to vary allows consideration to be given to industrial principles and general industrial merit considerations for the purpose of making or refusing to make an award provision that may displace the provision upon which the Full Court's decision was predicated. Moreover, in that task, an important consideration in our view is to test, as far as practicable, the competing approaches to payment for shift work intruding into a public holiday. We are free to examine which approach most conforms with arbitral precedent and practice, and to determine the provision that should prevail in future.

[22] We consider that a relatively consistent line of reasoning, indeed of arbitral principle, was applied by the Commission's predecessors to determining issues and disputes about shift work and duty on Sundays and public holidays in both the metal trades and motor body manufacturing industries. Moreover, we would expect that a relatively consistent approach to such issues would be reflected in the Commission's drafting of awards. To the extent that there is a similarity of wording in the provisions of different awards dealing with the entitlements of shift workers, we consider that there is industrial merit in determining the issues before us in this matter in a manner that is consonant with any settled approach to such issues. If no such settled approach is manifest from past determinations, we consider that the industrial merits of the matter should be declared in a way capable of being applied to similar circumstances. Nothing that has been put to us by the respondents discloses unusual circumstances or grounds peculiar to vehicle manufacturing for an award entitlement to double time on "public holiday shifts" in circumstances where a paid day off for the holiday is also allowed and where continuous shift workers in other areas of manufacturing production have no such entitlement.

[23] We were referred by Mr McDonald to several early cases about such entitlements. We have ourselves examined the antecedents of the provisions referred to in those cases. It may be necessary to emphasise that the patterns of award making and interpretation until recent years often bore the imprint of the Member of the Court or Commission responsible for the particular set of industry awards. Thus Galvin C, Winter C, Hood C, O'Mara J, Beeby J and Higgins J were each at various times heavily identified with the administration and determination of the Metal Trades Award or its counterpart. The associated motor body and coachbuilding awards may be taken, in the ordinary course, to have been influenced by the approach determined for the Metal Trades Award and vice versa. However, for much of the last century the Metal Trades Award was generally held to be an award that set the standard for minimum rate award conditions.

[24] The relevant provisions of the current awards appear to have been derived with some changes along the way from the "Sunday and Holiday Rates" and "Shift Work" - clauses 12 and 16(f) of the Vehicle Industry Award 1953 (the 1953 Award) made by Galvin C. The Vehicle Industry Award was created as a new award in 1953[12]. Its origin appears to have been the Motor Body and Coach Building Award 1943 (the Coach Building Award) originally made as an interim award on 15 December 1939[13]. The Vehicle Industry Award was arbitrated in April 1953 as the outcome of a complex dispute. It resolved an issue about whether motor vehicle manufacturing award coverage should be merged within the Metal Trades Award coverage or should retain separate industry status under single award coverage through a modernisation of the Motor Body and Coachbuilding Award 1947[14].

[25] The relevant clauses of the 1953 Award read as follows:

12. (a) Where an employee works on a Sunday, the work done shall be paid for at the rate of double ordinary time. …

(c) Where an employee works on any of the holidays (including overtime) specified in sub-clause (b) of clause 13 of this award, the work done shall be paid for at the rate of double ordinary time.

(d) Employees, other than on shift work, or engaged in maintaining the continuity of electric light or power, required to work on a Sunday or a public holiday shall be paid for a minimum of four hours work at the appropriate rate.

Employees required to work on a Sunday or a public holiday in connection with the maintenance of the continuity of electric light or power shall be paid for a minimum of one hour at the appropriate rate in addition to the time reasonably occupied in getting to and from work which shall be counted as time worked except where the work occupies more than two hours.

This sub-clause shall not apply in cases where, by mutual consent, it is customary for an employee to return to his employer's premises to perform a specific job outside his ordinary working hours, nor where such work is continuous with overtime, commenced on the previous day.

(e) An employee, other than a casual employee, not engaged in continuous work, who works on a Sunday or a public holiday and (except for meal breaks) immediately thereafter continues such work shall on being relieved from duty, be entitled to be absent until he has had eight consecutive hours off day, without deduction of pay for ordinary time of duty occurring during such absence.

(f) For all work done on a shift commencing before 10.45 p.m. on a Sunday or a holiday shift workers shall be paid at the rate of double time.

Where a shift commences at 10.45 p.m. or between 10.45 p.m. and midnight on a Sunday or holiday, the time so worked before midnight shall not entitle the employee to the Sunday or holiday rate.

On a shift which commences before midnight on the day preceding a Sunday or a holiday and extends into a Sunday or a holiday, the time so worked before midnight shall be regarded as time worked on such Sunday or holiday.

Notwithstanding the foregoing, where an employee is rostered for a shift which terminates on a holiday and a shift which commences on the same holiday, one shift only shall be observed as the holiday shift: Provided that the shift, the major portion of which falls on the holiday shall be regarded as the holiday shift." [15]

[26] In relation to those clauses, Galvin C in his 1953 decision observed:

I think it undesirable to fuse existing clauses 12 and 13 as claimed by the V.B.F. Taking old clause 12 as it stands, its provisions are in line with Federal standards generally, and they will therefore be re-enacted, except that sub-clause (d) will be altered from a minimum of 3 hours to 4 hours, as the employers were prepared to concede this.

I do not propose to accede to the claim of the V.B.F. for the abolition of the distinction between continuous and non-continuous shifts. The provisions in this award relating to shift work, taken as a whole, are already more liberal to the employees than is the case with those under the Metal Trades award.

Having regard for past agreements, the only claims I propose to comment on are those relating to shift workers working on Sundays and holidays and the prohibition of females and juniors from working on shifts. … As to the Sunday and holiday aspect, the existing provisions in sub-clause (f) were agreed to in 1947, but apparently have been found unsatisfactory as both the unions and the employers seek alterations. I propose to alter the first and second paragraphs of that sub-clause as to the commencing time, from 11 p.m. to 10.45 p.m. in order to cope, where necessary, with transport difficulties of the nature mentioned during the hearing. There then remains the vexed question of how properly to provide for those cases where employees are rostered for a shift which terminates on a holiday and a shift which commences on the same holiday. I have had regard for the varying points of view expressed, and I think the employers' suggested clause ,if analysed calmly and free of bias, will be found to meet the position properly and fairly, and I have decided that it should be given a fair trial."[16]

[27] Distinction of subject matter between shift work and holiday entitlements in the provisions of the 1953 Award appears to have been removed by merger in successor awards. Thus subclauses 17(a) and (i) of the Toyota Award more or less correspond to subclause 12(c) and (e) of the 1953 Award about holiday work and rates. In contrast, subclauses 17(b) and (c) of the Toyota Award correspond to the first two sentences of subclause 16(f) of the 1953 Award concerned with shift work. Subclauses 17(d) and (e) of the Toyota Award correspond with the last two sentences of subclause 16(f) of the 1953 Award.

[28] The earliest of the cases drawn to our attention was Re Cockatoo Docks and Engineering Company[17]. O'Mara J, who had recently made the Metal Trades Award 1941[18], dismissed a dispute about a claim for work under it on a shift commencing at 11.00 pm on Australia Day. He pointed out that the relevant employees had not in fact been deprived of enjoyment of the holiday, having had three complete periods of 24 hours away from work:

"The observance of a holiday as a non-working day is in my opinion a real advantage to a worker although it may not involve a reduction of ordinary working hours. The principle of the award is that holidays are to be allowed without reduction of pay, and as that principle was not infringed in the present case, I see no reason for considering any alteration in this instance."[19]

[29] That decision and approach was in marked contrast to O'Mara J's decision two weeks earlier when he construed the same clauses of the Metal Trades Award in relation to a shift worker not on continuous work, in relation to the same holiday:

"This is the case of an employee who was not engaged on continuous work and as such, having started a shift on a public holiday, he should have been paid at the rate of double time until he was relieved from duty, which means he should have been paid at the rate of double time for the whole shift.

The generality of clause 14 is not cut down by the use of the words 'for all time worked.' in clause 11(3)(e) as clause 14 purports to apply to shift work in other than continuous work and its provisions, unless inconsistent with express provisions in clause 11, apply to such work.

The object of the clause undoubtedly is to discourage and penalize any encroachment upon Sundays and public holidays in the case of those not employed on continuous work."[20]

[30] Those rulings are part of the background arbitral principle which affords some insight into what the arbitration in 1953 may have been intended to bring about. A more important guide is that Galvin C had addressed and determined upon a similar issue about payments to shift workers for holiday shifts in relation to the Metal Trades Award in a major decision in January 1952. He dealt with applications to vary that award in several respects in the following passages:

The employers seek an alternation to the shift work clause relating to Sundays and holidays, by altering the time of 11 p.m. stated therein, to 10 p.m.

It was stated that it was not unusual to find shifts being worked such as 6 a.m. to 2 p.m., 2 p.m. to 10 p.m., and 10 p.m. to 6 a.m. yet for certain reasons not qualifying as continuous shifts within the meaning of the award. A public holiday occurring, say, on a Wednesday, may require that a group of employees should work on the holiday; the position arises under the award of the group starting on the Tuesday night at 10 p.m. and working until 6 a.m., and being paid for that shift at double time, then resuming again at 10 p.m. on the Wednesday night and receiving an additional eight hours at the holiday rate - 16 hours' overtime rates being paid in respect of what should be only one holiday shift. The employer's log attempted to remedy the position, but it appeared to be expressed in rather complex language, hence their amended suggestion to alter 11 p.m. to 10 p.m., and by expressing the exception in the Sunday and holiday clause.

The attitude of the unions was, I thought fair; they did not want to see the employee disadvantaged by losing an additional hour, but that apart they said quite frankly that they did not think it was envisaged by the unions that an employee would get the additional impost both whilst working into and out of the holiday.

Although neither side referred to it, this matter appears to me to have been simply and adequately provided for in the Motor Body and Coachbuilding award, which contains the following prescription:-

'Where shifts fall partly on a holiday and partly on another day, duty on which is payable at ordinary rates, one shift only shall be observed as the holiday shift, provided that the shift, the major portion of which is performed on the holiday, shall be regarded as the holiday shift.'

I intend, therefore, to import that provision into this award, with the necessary consequential alteration to sub-clause (b) of the holidays and Sunday clause."[21]

[31] Within a few months of the variation of the Metal Trades Award to give effect to that decision, a Board of Reference gave consideration to an issue about entitlement under it to payment at public holiday penalty rates for a shift in Easter Thursday. The employees had been booked off duty for a shift that would otherwise have been worked from 5.00 pm on Good Friday to 1.30 am on Easter Saturday. The only available report of the case sets out the decision of the Board of Reference in August 1952 the following passages:

"In giving the Board's decision on the matter in which the claim was refused on 18/8/52, the Chairman (Mr A.E. O'Brien) said:-

'The matter submitted to the Board for determination is dependent on the shift which is to be regarded as the 'Good Friday' holiday shift, namely, whether the shift rostered to commence at 5 p.m. on Thursday or the shift normally rostered to commence at 5 p.m. on Friday.

Being a shift which extends from one day into another day, I am of the opinion that the final paragraph of cl. 12(i) defines which of the said shifts is to be regarded as the holiday shift. As the greater portion of the shift falling on the said Friday is that which would have commenced at 5 p.m. on Friday, this is to be regarded as the holiday shift. The employer apparently applied that award in this manner, as it is understood that said employees were released for a shift without loss of pay.

Having determined that the shift, which was to commence at 5 p.m. on Friday, is to be regarded as the holiday shift, it must necessarily follow that the shift commencing at 5 p.m. on Thursday, and extending by 1 1/2 hours into the Friday, is not a holiday shift within the meaning of the award, and accordingly employees who worked such shift are not entitled to the penalty prescribed by cl. 15 of the said award for such shift or any portion of such shift.

For the foregoing reasons the Board by a majority decides that employees of Frost's Engineering Co., Hamilton, working afternoon shifts commencing at 5 p.m. on Thursday, 10th April, 1952, and extending until 1.30 a.m. on Friday, 11th April 1952, are not entitled to payment for such shifts at the rate of double time as prescribed by cl. 15 of the said award.'[22]

[32] That determination may be taken to be a relatively definitive ruling about the operation of the Metal Trades Award. The significance and weight to be accorded to it is increased by its place in a sequence of decisions and award adjustments that relate to issues that arose about claims for work on shifts overlapping public holidays under the awards which we consider to be the most relevant antecedents to the now existing provisions. Galvin C had formulated the wording of subclause 12(i) of the Metal Trades Award in his decision of January 1952. He had intended to align subclauses 12(i) and 15(b) of the Metal Trades Award with the effect of the Motor Body and Coach Building Award. It follows in our view that the Board of Reference determination we have just quoted reflected a more or less contemporary statement about the intended operation of the relevant subclauses of each of those awards. The determination may have little weight in the formal legal construction of the relevant award provisions, but it can and should be given considerable weight as pointer to the intended application of arbitral principle in 1952. Moreover, we can find almost no basis in the research or precedents we have examined which would justify a conclusion that the provisions of the 1953 Award were intended to deviate from that interpretation of arbitral principle. There is no indication that Galvin C found industrial merit in a provision which would require penalty payment for any shift which came within the 24 hours of a public holiday for which employees were entitled to time off work in respect of another shift observed as the holiday shift.

[33] In that context, we note that the same edition of the Industrial Information Digest noted in 1966:

"Difficult questions arise under most awards as to the method of payment in the case of night shifts (and sometimes, afternoon shifts) which commence prior to a holiday and extend into it, and of such shifts which commence on the holiday and extend into the following day. Award prescriptions differ widely on this point. Where it is desired to allow employees to take the holiday off, it would appear that the practice in many cases is to allow them to take off the shift, the greater portion of which falls on the holiday, and to treat the whole of the other shift which extends into such holiday as an ordinary shift. In the absence of provision in the relevant award, or an authoritative ruling empowering such action, it would appear that the legality of this practice is doubtful, as the prescription of penalty rates for all time worked on a holiday would appear to mean that penalty rates must be paid for all time worked in the 24 hours between midnight and midnight on the holiday. In view, however, of the difficulties of working broken shifts (which would be necessary if work ceased at midnight on the shift coming before the holiday and recommenced at midnight on the succeeding shift), the practice referred to above has developed in a number of industries, and has been given express recognition in several awards. ..."[23]

[34] The learned authors illustrated that proposition by citing several awards, and the refusal of an appeal by a New South Wales Industrial Commission Full Bench against a first instance decision that the overlapping shift actually worked should be paid at ordinary time rates, including shift penalty[24]. The illustrations that followed include the reference to the Metal Trades Award Board of Reference determination we have just quoted. It follows in our view that there was by 1966 at least a relatively well established refusal by the Commission's predecessor to accept that continuous shift workers in the metals industries panel of awards were entitled to holiday penalty for a shift overlapping a public holiday in respect of which time off was granted for observance of a designated public holiday shift.

[35] We can find no consideration or dicta going against the industrial merits of that position having been effectively carried over to the contemporary awards. The relationship between vehicle industry manufacturing awards and metal trades awards may have been troubled, but some congruencies are relatively well established. In recent years, motor vehicle manufacturing has been covered by single employer awards, "house awards", in the case of the major production companies. Those awards were first created in 1974 from the provisions of the Vehicle Industry Award 1972. The applicants lodged two folders of historical material on 6 July 2000 which extract the history of the house awards. At some stage, most of the house awards were formulated on a market rate basis, although the status of the awards as paid rates awards may not have been constant. None the less, many of the core provisions of the vehicle industry awards had origins in metal trades awards or were based upon reasoning that was influenced by the prevailing standard provision in those awards.

[36] We have had regard to the antecedents of the provisions, and to the circumstances that go to the merits of the applications before us. We are satisfied that the industrial merits weigh in favour of granting the applications. In particular, we consider that to refuse the applications would allow continuing effect to a provision that, as construed by the Federal Court, would be relatively anomalous and contradictory of a well established line of arbitral principle. We are not persuaded that we should leave unchanged in the award a provision that has now been given a new and perhaps unexpected life. The merit considerations of cost and complexity of alternative arrangements weigh less with us than the considerations based on the accretion of operational practice more or less uninterrupted between 1952 and 1999.

[37] Accordingly, we will vary the relevant awards to give effect to an amendment of the kind proposed in the application set out in paragraph 4 above.

[38] In the ordinary course, any such variation should operate prospectively. The Commission must weigh carefully the effect of any retrospective operation. The Commission's capacity to grant retrospective operation must also be considered. Section 146 provides that:

(1) An award shall be expressed to come into force on a specified day.

(2) Unless the Commission is satisfied that there are exceptional circumstances, the day specified in an award for the purposes of subsection (1) shall not be earlier than the date of the award."

[39] To give effect to that provision by making an award with retrospective operation, it is necessary that there be exceptional circumstances, within the meaning of section 146, pertaining to the award made. The categories of exceptional circumstances allow room for the Commission to exercise a wide discretion in relation to the particular award.

[40] The more general of those circumstances applicable to all of the awards covered by the applications are:

• the merits considerations that we have outlined in the first four points of paragraph 17 above;

• an overall general consistency of approach to entitlements in the industry, and taken in conjunction with the absence of any evidence of individual or collective action to challenge actual entitlements as they fell due from 1979 until the judgment in 1999.

[41] The circumstances applicable to Toyota are less readily categorised as exceptional. However the resolution of the dispute that was pressed by the unions from 1994 to 1999 was pursued mainly by industrial dispute procedures and not fully prosecuted. We consider it is reasonable to now seek to finally resolve the dispute through industrial arbitration. Granting a measure of retrospectivity will reduce the necessity or risk that further Court decisions will be needed to work out through litigation an issue that has essentially been a matter of award negotiation, and will also avoid the consequences of the superimposition of a new version of the award safety net on future enterprise agreement negotiations.

[42] We are satisfied that the circumstances of the case are sufficiently rare and singular to justify a conclusion that they are exceptional for purpose of section 146. The main grounds of employers' applications have been made out. The intention of the Commission in making the primary antecedent award may be inferred from past history, from the decision in Jarrad and from the consistent application of an industrial standard approach prior to challenge in Federal Court. That finding is subject to Ford's minor departure from the general rule. However, that departure does not reflect an acceptance of what has been described as a "double dipping" principle to allow in effect a public holiday and a penalty rate for a full shift. We could find nothing in industrial arbitral precedent to support the introduction of such a principle in relation to any of the awards covered by the applications. The submissions of the AiG point to the desirability of acting to ensure that the scope of the award provision is consistent with the industry standard as it has been understood since at least 1952.

[43] However, we are not persuaded that it would be appropriate to grant retrospectively beyond the life of awards we are asked to vary. In the circumstances, we will not award retrospectivity beyond the date that the relevant house award now in force came into operation. Should it be established that there is an expressed intention and an apparent right to enforce provisions of award that have by now been superseded or set aside, we reserve leave to apply.

[44] Accordingly, we determine that the respective awards shall be varied in the manner proposed. The variations shall take effect from the date on which each of the relevant house awards was made. The variation shall remain in force for a period of six months. The applicants shall submit draft orders within seven days to Foggo C who will settle any issue about the particular order for each relevant award, with recourse if necessary to the Full Bench.

M. McDonald, of counsel, for Mitsubishi Motors Australia Limited, Toyota Motor Corporation Australia Ltd, Ford Motor Company, Holden Limited, and Nissan Castings Australia Pty Ltd.

M. Belfield for the Australian Industry Group, intervening on behalf of members who are employer respondents to the Vehicle Industry Award 1982.

A. Lawrence, of counsel, for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Lodged within a timetable that expired on 26 July 2000.

Wage rates - award variation - public holiday penalty rates -judicial constuction of award provisions - retrospective application of award - s107 Workplace Relations Act 1996 - full bench - various employees, - shift workers - vehcle industry - application that public holiday penalty rates to apply only to the public holiday shift designated as such and not to working time within the shift preceeding the public holiday that extends into it - variation to apply retrospectively to 3 December 1993 notwithstanding any contrary award provisions applicable to the work - employers submitted that since the decision of Smithers ACJ in Jarrad v Nissan [1979 LBC Current Review June 323] there has been a long standing industry practice to provide paid time off for shifts scheduled on public holidays at normal rate and not at holiday rates for afternoon shifts preceeding the holiday that intrude into the 24 hour period of the holiday - failure to grant the application would expose each employer to substantial costs and involve difficuties and disruptions to established working,shift and production patterns - unions submitted that despite decision in Jarrad purpose of clause in award was to compensate employees rostered on to afternoon shift preceeding a public holiday - companies could use programmed days off and shift flexibility to avoid paying penalty rates - union position affirmed by Full Court in AFMEPKIU v Toyota [(1999)88 IR 136] - held - no need to follow Full Court as this matter is a determination of industrial principles and general industrial merit that may displace the provision on which the Full Courts decision was predicated - no evidence from unions to establish unusual circumstances or grounds peculiar to vehicle manufacturing in circumstances where a paid day off for the holiday is allowed and where continuous shift workers in other manufacturing areas have no such entitlements - antecedents of the provisions and the industrial merits favour granting application allowing contiuance of long standing industry practice - variations to operate prospectively unless exceptional circumstances under s146 - special circumstances made out - variation retrospective to take effect from date of each house award for period of six months - applicants to draft orders within seven days.

Printed by authority of the Commonwealth Government Printer.

[1] [1979] LBC Current Review June 323**.**

[3] Ibid Jarrad: Current Review at 324-325.

[5] (1999) 88 IR 136.

[6] AFMEPKIU v Toyota ibid 88 IR at 141**.**

[9] Industrial Information Digest: "Shift Work: Holiday Payments to Shift Workers" at pp. 1191-1192: "The Law Book Company's Industrial Arbitration Service": Editors E.G. Lambert and J.F. Dey: Law Book Company 1948-1973.

[10] Re Brack and Others; Ex parte Operative Painters and Decorators Union [1984] 51 ALR 731 at 732-733.

[11] Eg Foggo C Print N9128, Nissan, 21 February 1997.

[14] Galvin C's decision is to be found at (1953) 76 CAR 280; the predecessor award, the Motor Body and Coachbuilding Award 1943 appears to have first been made as an interim award in 1939: (1939) 41 CAR 449 and was consolidated in 1943. At that time the relevant shift work provision for continuous work allowed employees on continuous shift, working any holiday or Sunday shift time and a half for such shift, whereas generally an employee working on those days would receive double time: see clauses 12, 13, and 17(f) of the award: (1943) 49 CAR 376 at 397.

[21] Re Metal Trades Award 1952 (1952) 73 CAR 325 at 401-402.

[22] Industrial Information Digest ibid at 1191-1192.

[23] Industrial Information Digest ibid at 1190.

[24] In Re Boiling Down and By Products Employees (Cumberland) Award [1948] A.R. 518 at 523.