Federal Court of Australia|1989-09-25|Before: Wilcox J

Re John Fairfax & Sons Limited v the Australian Journalists Association [1989] FCA 394 (25 September 1989)

Industrial Law - Interpretation of award - Requirement for notification by employers of rostered days off duty - Whether employer required to specify hours of work on rosters - Inconsistency between subject clause and another clause in award.

Journalists (Metropolitan Daily Newspapers) Award cll. 8, 24, 30.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

This application has been made by John Fairfax & Sons Limited, a respondent to the Journalists (Metropolitan Daily Newspapers) Award 1986 as amended. The application seeks an interpretation of the provisions of that award and, in particular, of cl.24 of the award.

2. The background to the matter, as I am informed, is that there has been a dispute between the applicant and the Australian Journalists' Association ("AJA") which organisation is the respondent to the application, in connection with the question whether the applicant, as an employer, is required to specify in advance the hours which journalists are to work on particular days. It is apparently accepted that cl.24 of the award requires the employer to notify the days during a week upon which employees are not required. But the employer takes the view that it is free to adjust the particular hours of work at any time right up to the relevant day.

3. The AJA apparently holds the view that the so-called roster of days should also specify hours. I am informed that there was an industrial dispute on the matter which was settled upon certain terms, including an agreement that the matter would be referred for interpretation in this Court.

4. In May 1987 there was a substantial replacement of the words of the 1986 award. The amendments, as made in May 1987, were further amended pursuant to an order made on 8 September 1987 by Deputy President Keogh. I am, of course, concerned with the award as it now stands, and I have had the benefit of a consolidation of the various amendments which has been prepared by the applicant.

5. The critical provision of the award is cl.24, which relevantly reads as follows:

"(a) In this clause, unless the contrary

appears, the word 'day' means a period of

24 hours.

(b) The ordinary weekly hours of duty shall

be 38, provided that, in the fortnights

in which christmas Day and Good Friday

occur, the ordinary hours of duty shall

be 68 and the number of working days

shall be reduced by one.

(c) (i) Each classified member and cadet

shall be given two days off duty

each week. Provided that, in the

fortnights in which christmas Day

and Good Friday occur five days off

duty shall be given. Any day or

days not so given shall be given off

in the succeeding week in addition

to the days off for that week or be

paid for in accordance with

subclause 28(i).

(ii) Each member shall be notified of

such days off duty by the posting of

rosters at least seven days before

the beginning of the week in which

such days off duty are to be

granted, provided that an employer

may depart from such roster in case

of an emergency or a shortage of

staff through sickness or other

cause which cannot be reasonably

foreseen. In the case of such a

departure, the employer shall give

the member as much notice of such a

departure as possible and shall

within the same or the next

succeeding week grant to such member

days off duty in lieu of those days

off duty cancelled.

(iii) When a member is given a day off

duty, that day shall commence at the

expiration of twelve hours from the

time the member ceased duty.

(iv) When a member is given two or more

consecutive days off duty, those

consecutive days off duty shall

commence at the expiration of eight

hours from the time the member

ceased duty.

..."

6. It will be noted that para.(c)(i) requires each classified member and cadet to be given two days off duty each week. Paragraph (c)(ii) requires that each member shall be notified of such days off duty by the posting of rosters at least seven days before the beginning of the relevant week, with a proviso for change in the case of an unforeseen event. The word "day" is defined by para.(a) of the clause as meaning a period of 24 hours.

7. The natural reading of cl.24 is that the employer is to post rosters at least seven days before the beginning of a relevant week in which it notifies the days, that is to say the periods of 24 hours, during which particular employees will not be required to work. There is nothing in cl.24 which deals with the hours of work on particular days or which contains any requirement for the notification of hours. The purpose of the clause would appear to be to enable individual employees to plan their lives upon the basis that they will not be required to work during two 24-hour periods in the relevant week. To the extent that they are not notified of days off, so far as cl.24 is concerned, they must hold themselves available to work at such hours as they may be required. No doubt, in practice, there is a fairly regular routine for most employees; for example, a journalist working on a morning paper would normally expect to be working in the afternoons and evenings, although no doubt, there are circumstances under which such a person may be required to work during the morning in order to cover some event which is expected to occur in the morning.

8. Clause 30 is entitled "Duty Book". It reads as follows:

"(a) The employer shall keep a duty book

which in an evening paper office shall be made up

by 9.30 a.m. at the latest on each day and in a

morning paper office as far as possible not later

than 5.30 p.m. each day. Unless he or she has been

notified before 5.30 p.m. on the preceding day by

entry in the duty book, or otherwise notified in

reasonable time beforehand, a member employed on a

morning paper shall not be required to attend the

office before 2.00 p.m.

(b) If an engagement is assigned to a member

or an alteration is made in the duty book after the

times respectively prescribed in the preceding

subclause the member shall not be held responsible

for covering such engagement or alteration of

engagement unless the member has been notified in

reasonable time."

9. It will be noted that para.(a) deals with the time of making up the duty book in relation to an evening paper and a morning paper. However, the provision for notification is limited to a morning paper. It is not clear to me why there is not a corresponding provision in regard to an evening paper, but this is not a presently material matter. What does emerge from cl.30 is that this is the clause which was intended to cover notification of the time of commencement of duty. It may well be that cl.30 is regarded as inadequate by the AJA; but I think that the clear intent was that, at least in the case of a morning paper, the employer could vary the time of commencement of work by notifying the employee by an entry in the duty book made prior to 5.30 pm on the preceding day, or otherwise notifying in reasonable time beforehand. The flexibility envisaged by this provision is inconsistent with the notion that hours must be specified seven days in advance as is contended to be the implication of cl.24(c).

10. In support of the argument advanced on behalf of the AJA Mr Ryan has drawn attention to cl.8(b)(iv) of the award. Clause 8 is concerned with rates of pay. It specifies certain minimum rates of payment, calculated on a weekly basis and then sets out certain special allowances. Subpara.(iv) provides:

"(iv) A member who is rostered to perform and

performs ordinary duty on a shift where

the greater part of the shift falls

between the hours of midnight Friday and

midnight Sunday shall be paid an

additional 10% of his base salary for

that shift."

11. Mr Ryan calls attention to the language used in the subparagraph, namely "rostered to perform and performs ordinary duty on a shift". As he says, this language is consistent with the notion that a roster will specify a particular shift, and not merely the day upon which an employee is to work, or perhaps stating the matter more accurately under the present cl.24, is not stated not to work.

12. There is substance in Mr Ryan's argument, but I do not think that the reference to rostering for a shift can be allowed to affect the natural interpretation of cl.24. As I have said, in my opinion cl.24 is not concerned with hours at all; but rather with days off. I suspect that clause 8(b)(iv) is a relic of earlier times when the award provided for employees being rostered for either day-work or night-work. Provisions to this effect were contained in the form of the award as amended in May 1987; see, for example, cl.25 of the award as it stood after those amendments. These provisions have been eliminated in the amendments made in July 1987.

13. It seems to me that there was a conscious decision to get rid of the notion of rostering for shifts, in favour merely of informing employees of the 24-hour periods which they would have off duty in a particular week. At the time that the relevant amendments were made, no amendment was made to cl.8(b)(iv). This may have been an oversight.

14. In the light of the provisions of the award as they now stand, the purpose envisaged by cl.8(b)(iv) would be achieved if the reference to "rostered to perform ... duty" was eliminated and the subparagraph was read as simply directed to members performing ordinary duty on any shift falling between particular hours.

15. It is not an uncommon event to find inconsistencies between particular provisions in an industrial award, especially where there have been amendments. I do not think that the inconsistency to which I have referred can be allowed to affect the intention, which appears to be clearly expressed in cl.24. Consequently, I am of the view that the argument advanced on behalf of the applicant is correct.

16. In its application the applicant seeks a declaration that upon its proper interpretation:

"(a) The rosters referred to in Clause

24(c)(ii) of the Journalists

(Metropolitan Daily Newspapers) Award

1986 are rosters of journalists' days off

duty only.

(b) Clause 24(c)(ii) of the Journalists

(Metropolitan Daily Newspapers) Award

1986 does not require employers to notify

any journalist by roster of his or her

daily starting and finishing times.

(c) The Journalists (Metropolitan Daily

Newspapers) Award 1986 permits starting

and finishing times to be altered by an

employer subject to the provisions of

Clause 30."

17. I am of the opinion that declarations to that effect ought to be made and I so order.

Re John Fairfax & Sons Limited v the Australian Journalists Association [1989] FCA 394

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Re John Fairfax & Sons Limited v the Australian Journalists Association [1989] FCA 394 (25 September 1989)

Parties