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[2019] ICQ 12
General information, not legal advice.
Industrial Court of Queensland
2019-08-29
Martin J
Original judgment source is linked above.
INDUSTRIAL LAW - QUEENSLAND - DEFINITIONS AND INTERPRETATION - OTHER MATTERS - where three State awards provided that certain full-time employees were entitled to annual leave, which included hours in lieu of extra payment for work done on the public holidays listed in the award - where the Industrial Relations Act 2016 and its predecessor provided that if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday - where the appellant contended that "entitlement to extra leave" depends upon an employee actually working on a public holiday - where the Full Bench of the Queensland Industrial Relations Commission disagreed - where the Full Bench said it was unnecessary to interpret any of the award provisions because their meaning was clear - whether the Full Bench misconstrued the legislation and the awards
INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - OTHER MATTERS - where three State awards provided that certain full-time employees were entitled to annual leave, which included hours in lieu of extra payment for work done on the public holidays listed in the award - where the respondent conceded that certain holidays were not covered by a statutory exemption concerning annual leave under the - where the appeal was dismissed - whether the Full Bench of the Queensland Industrial Relations Commission should nevertheless have made a declaration in respect of the concessions made by the respondent
Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2018] QIRC 050, related
C Dowling SC and C Massey directly instructed by the Queensland Nurses and Midwives' Union of Employees
J Murdoch QC and E Shorten instructed by McCullough Robertson for the respondent
[1] For over 100 years in this State there have been provisions dealing with the way public holidays should be managed within the employment relationship. Since 1916 there have been statutory or award provisions which have dealt with the way in which employees should be paid for working on public holidays and, from 1946, how public holidays which fell during an employee's annual leave should be treated.
[2] In both the Industrial Relations Act 1999 (the 1999 Act) and the Industrial Relations Act 2016 (the 2016 Act) an entitlement to annual leave was continued from earlier statutes.
[3] The relevant sections[1] provided that an employee was entitled to at least four weeks annual leave and, if a shift worker, five weeks. Each section also provided:
"However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday."[2]
[4] Pursuant to a reference, a Full Bench of the Queensland Industrial Relations Commission heard an application by the appellant (QNMU) for a series of declarations about the effect of three State awards:
(a) Queensland Health Nurses and Midwives Award - State 2011 (the 2011 Award)
(b) Queensland Health Nurses and Midwives Award - State 2012 (the 2012 Award)
(c) Nurses and Midwives (Queensland Health) Award - State 2015 (the 2015 Award)
[5] The Full Bench dismissed the QNMU's application.[3] This appeal concerns whether the Full Bench correctly construed the Acts and the awards, and whether any annual leave taken, which includes a public holiday, is inclusive of that public holiday. Although two statutes and three awards were the subject of the application, the questions to be answered were the same for each statute and the awards.
[6] For the application before the Full Bench, the parties prepared a Statement of Agreed Facts and Matters. It is convenient to repeat here the parts of the Statement relied upon by the Full Bench:
(a) by clause 12.6.1, all employees (other than casual employees) in public hospitals are entitled to 190 hours' (five weeks') leave on full pay in each year, 38 hours of such being in lieu of extra payment for work done on the public holidays in clause 12.7.1;
(b) by clause 12.7.1, all work done by an employee during their ordinary shifts on the following holidays must be paid at one and a half times the ordinary rate:
or any day appointed under the Holidays Act 1983 to be kept in place of any such holiday.
(a) by clause 12.6.1, all employees (other than casual employees) in public hospitals are entitled to 190 hours' (five weeks') leave on full pay in each year, 38 hours of such being in lieu of extra payment for work done on the public holidays in clause 12.7.1;
(b) by clause 12.7.1, all work done by an employee during their ordinary shifts on the following holidays must be paid at one and a half times the ordinary rate:
or any day appointed under the Holidays Act 1983 to be kept in place of any such holiday.
(a) by clause 19.1(a) that all full-time employees covered by the 2015 Award employed in a Public Hospital (excluding dental hospital and dental clinic) after 12 months' continuous service are entitled to 190 hours' or five weeks' annual leave which includes 38 hours in lieu of extra payment for work done on the public holidays listed at clause 23(c);
(b) by clause 23(c) that 'For the purposes of clause 23, all other public holidays include' the public holidays listed below:
(c) by clause 23(a) that an employee in a Public Hospital (excluding dental hospital and dental clinic) who performs work on a public holiday as part of ordinary rostered hours shall be paid for the holidays defined as 'all other public holidays' in clause 23(c) for all hours worked at one and one half times (150%) the ordinary rate of pay, with a minimum payment as for four hours' work.
11. The case studies attach the following documents:
i. the treatment of the payment on public holidays;
(a) For a single day of annual leave on a public holiday[5] ('one-off' days), the practices in the units and the business rules of hospitals and hospital and health services varied from unit to unit, over time and from public holiday to public holiday. The following general practices have been identified:
(i) For a period, the general practice was that employees were told by their line manager, usually the NUM,[6] that they had to be on standby to be deployed to another area of work at the public hospital on the public holiday but, if the employee wanted to know in advance that they would not be working, the employee was to advise the NUM that the employee did not wish to be available to be deployed. The employee was told that if they did not want to be available to work on the 'one-off' day, the employee had to use annual leave (or some other form of leave eg TOIL) to be paid for the day.
(ii) Employees who did not take a leave day and were required to be available to be deployed but then not required were 'stood down' at any time prior to the start of work and paid ordinary time for the public holiday.
(iii) Variations to the practice were that NUMs told employees that they had the choice to either work or take annual leave on a 'one-off' day or NUMs told employees that they were stood down for that day, in which case the employee was paid ordinary time for the public holiday.
(iv) A more recent practice is for the NUM to roster or assign employees or employees nominate themselves to be available to be deployed on certain public holidays throughout the year and to advise the other employees that they were 'stood down' for the public holiday and paid ordinary time for the day.
(v) The more or less standard practice for initiating the recording of the payment for the public holiday was for the NUM to record the day on an AVAC form as annual leave (or other form of leave). Generally, the AVAC form recorded roster changes on multiple days for a number of employees.
(vi) Nurses did not ordinarily see the AVAC form before it was submitted but were aware that a process would be put in place for the NUM to record annual leave on the 'one-off' day.
(vii) The applicable process for the 'one-off' day was discussed at staff meetings, including Leadership Meetings, and often set out in emails to nurses prior to the public holiday.
(b) When an extended annual leave[7] period in a Leave Application form included a public holiday or public holidays, the payroll system recorded the public holiday or public holidays as annual leave.[8] The nurse applied for extended annual leave in advance and the application was required to be approved by the relevant person in the hospital or health service or unit.
(c) The recording of TOIL on a public holiday on the payroll system was initiated by an AVAC form.
(2) For each completed year of employment with an employer, an employee is entitled to -
(a) if the employee is not a shift worker - at least 4 weeks annual leave; or
(b) if the employee is a shift worker - at least 5 weeks annual leave.
(3) Annual leave is exclusive of a public holiday that falls during the leave.
(4) However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday.
(1) For each completed year of employment with an employer, an employee is entitled to -
(a) if the employee is not a shift worker - at least 4 weeks annual leave; or
(b) if the employee is a shift worker - at least 5 weeks annual leave.
(2) Annual leave is exclusive of a public holiday that falls during the leave.
(3) However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday.
[9] At the hearing before the Full Bench the respondent conceded that the exemption provided for in s 31(3) of the 2016 Act did not apply to Labour Day, Show Day, Easter Saturday or (after the commencement of the 2016 Act) Easter Sunday. Thus, the contest is about the applicability of the exemption to: New Year's Day, 26 January, Good Friday, Easter Monday, ANZAC Day, the Birthday of the Sovereign, Christmas Day and Boxing Day (the 8 public holidays).
[10] The cases mounted before the Full Bench may be confined to the following brief description:
- (a) The appellant argued that the purpose of the award provision of one week's additional annual leave a year is not "compensation for working on a particular public holiday".
- (b) The respondent says, so far as the 8 public holidays are concerned, it is.
- (c) The appellant argues that for the exemption in s 31(3) to be satisfied the entitlement to the extra leave depends upon an employee actually working on the public holidays.
- (d) The respondent says that the award provision of an extra week's leave, whether the 8 public holidays are worked or not, also engages the exemption.
[11] At [68] of its reasons, the Full Bench identified the issue for it in the following way:
"the question to be answered by the Full Bench is whether the additional annual leave for public hospital nurses and midwives at clause 19.1(a) of the 2015 Nurses Award (see Appendix 1) is 'compensation for working on a particular public holiday' as provided in s 31(3)."
[12] At [69] of its reasons the Full Bench held that the answer to that question was "yes". In the remainder of that paragraph the Full Bench explained its reasoning:
"● while the extensive history, referred to by Mr Dowling and summarised above, provides some context in relation to the matter, our task is to interpret the disputed words in s 31(3) and to give them meaning in terms of the relevant legislation, awards, and factual matrix - as recorded in the AFM. In doing so, it is not necessary to interpret any of the Award provisions - their meaning is clear;
[13] Put simply, the gist of the appeal is that the Full Bench misconstrued the legislation and the awards. The appellant identifies the errors of which it complains by reference to [69] of the Full Bench's reasons.
[14] First, it says that in the first bullet point the Full Bench erred in holding that it was unnecessary to interpret any of the award provisions.
[15] Secondly, it argues that in the sixth bullet point the Full Bench erred in holding that it was not to the point that the additional leave conferred by the awards was afforded irrespective of whether work was performed on a public holiday.
[16] Those two matters cover the first four grounds of appeal.
[17] The fifth ground concerns whether the Full Bench should have made a declaration about Labour Day, Show Day, Easter Saturday and Easter Sunday.
[18] The appellant contends that the Full Bench should have approached the question before them in the following manner:
- (a) determine the proper construction of s 11 of the 1999 Act and s 31 of the 2016 Act, then
- (b) determine the proper construction of the entitlement conferred by the awards, and
- (c) consider whether the entitlement conferred by the awards answered the description of the exception contained in s 11(4) of the 1999 Act and s 31(3) of the 2016 Act.
[19] The appeal revolves around the operation of, for these purposes, relevantly identical sections in the 1999 and 2016 Acts. I will refer only to the 2016 provision:
"(2) Annual leave is exclusive of a public holiday that falls during the leave.
(3) However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday."
[20] Section 31(2) deals with the situation where a public holiday falls during a period of annual leave. The effect of it is that annual leave pauses at midnight before the day of the public holiday and then recommences at midnight of the public holiday. Thus, for example, an employee who takes 4 weeks annual leave from Monday 1 October will have the benefit of the Queen's Birthday public holiday and will not return to work until Tuesday 30 October.
[21] The next subsection commences with the word "however ..." which serves to announce that there is an exception to the previous rule. It will only apply where a public holiday falls within a period of annual leave. Under this exception such a public holiday is included in the annual leave and, so, using the previous example, the employee would be required to return to work on Monday 29 October.
[22] The question at the base of this consideration is: when does the exception apply? The Act does not provide the necessary entitlement for this exception to apply, so one must consider the relevant awards. If an award provides for "additional annual leave as compensation for working on a particular public holiday" then the exception applies.
[23] To determine whether an award provision brings the exception into effect the requirements for the exception must be identified.
[24] First, there must be an entitlement to additional annual leave. In other awards, the award must prescribe the entitlement to annual leave and then provide for additional leave if certain conditions are met. It is those conditions which are at the heart of the argument.
[25] Secondly, the award must prescribe that the annual leave is "compensation for working on a particular public holiday". The appellant is correct when it says that there is no condition related to payment - the minimum that need be shown is that an employee worked on a particular public holiday.
[26] The appellant argues that the exception can only "sensibly be understood on the basis that compensation has been made already on the assumption that work will be carried out on that day but that assumption has not proved true because the employee is on annual leave". With respect, that can't, for the reasons that follow, be the basis for understanding the section.
[27] Thirdly, there is a need to identify the meaning of the expression "particular public holiday" where it is used twice in the subsection.
[28] One may commence by noting that "public holiday" is defined in the 2016 Act to include 11 identified days with allowance for others to be proclaimed. At this point it is also helpful to recall that the relevantly identical provision in the 1999 Act (s 11(4)) was inserted by way of amendment to preclude the possibility of "double-dipping".[9]
[29] The appellant submits that the provision is dealing with the circumstance where one day is worked on a public holiday in return for an additional whole day being given for annual leave. While that may be the way in which a provision under an award could work it is not essential that it be created in that way. Section 31(3) only requires that there be an entitlement to "additional annual leave as compensation". It allows for the situation where a fixed number of extra days of annual leave is prescribed no matter how many public holidays are worked.
[30] The better way to read the exception is by reading it subject to s 32C of the Acts Interpretation Act 1954 which provides:
[31] In that light, s 31(3) refers to compensation for working on particular public holidays and the use of "particular" allows for the identification in an award of the public holidays to which the compensation applies. Thus, it would be open for an award to provide that compensation applies to some but not other public holidays. There is nothing in the section which requires that compensation be quid pro quo. Thus an award could set a fixed number of days as compensation no matter how many public holidays were worked.
[32] Section 31(3) does not require that an employee actually work on a particular public holiday or holidays. The test is whether an employee is "entitled to additional annual leave for working on a particular public holiday" not whether an employee has actually worked on a public holiday.
[33] The correct construction of s 31(3) is that where compensation is provided for working on a particular public holiday or holidays, then "the particular public holiday" (or holidays) referred to in s 31(2) is inclusive of annual leave.
[34] It follows, then, that the Full Bench reached the correct conclusion on the interpretation of the legislation.
[35] The relevant provisions in the awards are set out in the Agreed Facts and Matters. In each case the award contains a provision which entitles employees to the equivalent of an extra week's leave. In each case the extra leave is identified as being "in lieu of extra payment for work done on [identified] public holidays". Something which is granted "in lieu" of something else is properly described as "compensation".
[36] The entitlement in the relevant clauses is very broad. It does not purport to deal with the circumstances of each individual - it is in the traditional sense of an award able to be applied broadly. It does this (in clause 19.1(a) of the 2015 Award) by granting the extra leave to all "full-time employees covered by the 2015 Award". It does not require that each such employee work on a public holiday or some or all public holidays before the entitlement arises. This can be distinguished from the entitlement in clause 23(a) which refers to an employee who does perform work on a public holiday being paid at a higher rate.
[37] The Full Bench said, in the first dot point in [69], that it was unnecessary to interpret any of the award provisions because "their meaning is clear". The appellant says that is an error because the nature of the entitlement needed to be construed so as to ascertain whether it answered the description in s 31(3) of the 2016 Act. The members of the Full Bench may have been able to express their decision a little better at this point. But, it is not merely an exercise in semantics to observe that by saying that the awards' meaning is clear means that the Full Bench did interpret the awards in order to arrive at that conclusion. In any event, the Full Bench went on to do what they were required to do -consider whether the award provisions came within the statutory description. They did do that - in the sixth, ninth and tenth dot points in [69] of their reasons.
[38] The appellant had sought, among other things, a declaration that s 11(4) of the 1999 Act and s 31(3) of the 2016 Act do not apply to the Labour Day, Show Day, Easter Saturday and Easter Sunday public holidays.
[39] Mr Murdoch QC (for the respondent) conceded that the Labour Day, Show Day, Easter Saturday and Easter Sunday (from the commencement of the 2016 Act) public holidays were not covered by the exemption in s 31(3) of the 2016 Act.
[40] The effect of that concession was noted by the Full Bench in [5] of their reasons when they said:
"Consequently, in light of the above concession, the issues in dispute between the parties are relatively narrow and concern ..."
[41] Apart from saying, at [77], that: "For the foregoing reasons we refuse QNMU's application for Declaratory relief", the Full Bench did not refer to that part of the appellant's case again.
[42] The appellant contends that the Full Bench did not give any consideration as to whether the declarations in respect of the conceded matter should be made and did not express any conclusion in respect of it.
[43] Section 463 of the 2016 Act provides:
"Power to make declarations about industrial matters
(1) The commission may, on application by an entity mentioned in section 464, make a declaration about an industrial matter.
(2) The commission may make the declaration whether or not consequential relief is or could be claimed.
(3) Subject to chapter 11, part 6, a declaration made by the commission under this section is binding in a proceeding under this Act."
[44] Section 32CA(1) of the Acts Interpretation Act 1954 makes it clear that the Commission has a discretion in these matters:
"In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion."
[45] The Full Bench recognised that the concession by the respondent narrowed the issues between the parties, that is, there no longer was an issue between them about those four holidays, and they went on to deal with the matters about which there was disagreement.
[46] The respondent argues that, notwithstanding the concession, there was a dispute as to whether a declaration should be made.
[47] The power to make a declaration should not be exercised lightly. A declaration, once made, binds not just the parties but all the employees. The discretion to make a declaration should, as a general proposition, be confined to the resolution of genuine disputes. Where an employer makes a formal concession of that kind (which, in this case, was affirmed on appeal) it will be bound by it in any other proceedings. A declaration is unnecessary. The Full Bench was correct when it recognised that the concession narrowed the issues before it. While it could have gone on to specifically deal with, and dismiss, that particular part of the application it is implicit in its expression at [4] and [5] of the reasons that it had done so.
[1] Section 11 of the 1999 Act and s 31 of the 2016 Act.
[2] Section 11(4) of the 1999 Act and s 31(3) of the 2016 Act.
[4] Note: The 'case studies' referred to above concern the treatment of certain public holidays for six nurses or midwives, two of whom are continuous shiftworkers and four of whom are Monday to Friday day workers, between April 2011 and April 2017. The parties agree the six employees are typical of the nurses and midwives who work in public hospitals and that the way the public holidays recorded in their history has been treated is an accurate reflection of the way public holidays have been treated for the workforce generally.
[5] Public holidays that did not fall during an extended period of leave.
[7] Extended leave period refers to a period of annual leave other than a "one-off" day.
[8] However, in some cases, employees were paid or reimbursed for the public holiday during a period of extended leave.
[9] Industrial Relations Amendment Bill 2001, Second Reading Speech, 1 November 2001, 3343; Industrial Relations Act Amendment Bill 2001 Explanatory Notes, 6.
Queensland Nurses and Midwives' Union of Employees
State of Queensland