Robinson and Kaeding v Tempo Services Ltd [2003] SAIRC 82

"Clause E4. Penalty Rates for Afternoon and Night Shift

i) An employee whilst working on any afternoon or night shift from Monday to Friday inclusive, except on a public holiday, shall for such shift be paid an additional payment calculated at the rate of 15 per centum of the appropriate ordinary rate of pay prescribed by Clause B2 of this award.

ii) For the purpose of this clause afternoon and/or night shift shall mean a complete rostered shift of eight continuous hours which commences not earlier than 12 noon and finishes not later than 8.00 a.m.

iii) The additional payment prescribed by this clause shall not form part of the employee's ordinary rate of pay for the purposes of this award.

For the purposes of this clause, a shift worked by a casual or part-time employee (other than the time worked in accordance with the employee's own request) may be of a shorter duration than that prescribed by subclause (a)(ii).

Employees required to work permanently on afternoon or night shifts (as defined) shall be paid 30 per cent more than the ordinary rate prescribed in Clause B2 of this award, provided however, that employees who work permanently on such afternoon or night shifts at their own request, shall be paid the penalty rate prescribed in subclause (a)(i) hereof."

3 As Mr Manuel counsel for the respondent has indicated, the available evidence on the critical issue is somewhat sparse (tr 30). In the case of John Robinson it includes the notes of interview (AB 81) and the following:-

Afternoon Night Shift. Prefer late shift overnight. Weekends no problem."

4 The letter of appointment recording the terms and conditions agreed includes the following, (AB 83, 86):-

"I am pleased to confirm the following offer of employment with Tempo Health Support Services (hereinafter referred to as the Company) under the following conditions:

Your position will be Support Services Attendant. You will be employed on a permanent full-time basis.

Would you please confirm your acceptance of this offer and agreement to these conditions by signing both copies of this letter and your Position Description and then returning one copy of each to me within the next week.

I have read, understood and accept the above conditions of employment.

5 In testimony which was not disputed, Robinson states as follows (AB 27):-

"Q Do you recall when you discovered you would be working night shift.

A Afterwards I did receive some paperwork in the mail and I received also a cover letter which was joined to the contract here, stating I had been successful in securing full-time permanent night shift and also stated on the cover letter the actual gross earnings, on the letter.

Q What penalty rate did you receive during your employment with the respondent.

Robinson acknowledges that night shift was in fact his preferred shift (AB 28). That was so for personal reasons (AB 29). But no request to work permanently on night shift was ever made either expressly or impliedly, such as would conform with the terms of cl E4(c). On the other hand he never approached his employer about changing shifts, (judgment par 11).

6 Kaeding's application for employment (AB 87) had a question asking him to indicate which shift was preferred. Kaeding ticked all boxes. He received a letter of appointment in similar terms to Robinson's (AB 89). It includes the following, (AB 89, 92):-

"I am pleased to confirm the following offer of employment with Tempo Health Support Services (hereinafter referred to as the Company) under the following conditions:

Your position will be Emergency Department Attendant. You will be employed on a permanent full-time basis.

Your wage will be $12.44 per hour plus 15% afternoon loading exclusive of Superannuation and will be paid fortnightly into a recognised banking institution of your nomination.

I have read, understood and accept the above conditions of employment.

"Q When did you become aware you would be working permanent night shift.

A Actually it was during training and it would have been probably the last day. I checked with Steve Mann during training just to confirm what shift I would be working and obviously he told me night shift.

Q During your evidence, Mr Kaeding, you referred to being given the opportunity to work afternoon shift but that you refused that offer. Is that right.

Q Can you explain to the court why you refused the offer.

A I refused that offer because I was used to night shift. I was quite happy there and basically afternoon shift is a lot - there's a lot more I guess increased workload.

Q You made an informed decision that you were better off on night shift than on afternoon shift. Is that right.

8 The Industrial Magistrate stated as follows in his reasons, (pars 71 - 77, 79):-

"71 The factual issues relating to the two applicants and their contracts of employment have been set out above. I find that Robinson (Exhibit A2) was employed on a permanent full-time basis. Similarly Kaeding was employed on a permanent full-time basis (Exhibit A4).

72 Prior to the applicants reading, signing and accepting their letters of appointment there was no direction from the respondent that they were to work permanent night shift.

73 The respondent made an offer to Kaeding of night shift work for which he had indicated on his application for employment (Exhibit A3) that he was available to perform. He accepted that position.

74 Similarly Robinson having expressed a preference for night shift was, after his appointment to the full-time position, offered permanent night shift. Robinson accepted the offer. In my view, neither of the applicants were directed to work permanent night shift. The evidence was that both applicants were available to work night shift. No evidence was adduced to suggest that there weren't any other shifts available.

75 I have set out above the relevant parts of cl E4. Cl E4(a)(i) states that an employee whilst working on any afternoon or night shift from Monday to Friday inclusive except on a public holiday shall be paid an additional payment calculated at the rate of 15 per centum of the appropriate ordinary rate of pay. The penalty is paid by virtue of working on the designated shifts.

76 Turning then to the clause in question namely cl E4(c). Due to the words "required to work" I consider there is introduced an element of compulsion on the part of the employer giving the employee no alternative but to work permanently on afternoon or night shift.

77 With respect I do not accept the approach taken by the applicants as to how the words in the clause should be construed. On the factual basis referred to above I find the applicants were not required within the meaning of cl E4(c) to work afternoon or night shift.

79 The applicants herein accepted permanent full-time positions. It was the case that each of the applicants held themselves out as available to work night shift (specifically Kaeding indicated `all shifts', Robinson `afternoon, night shift - prefer late shift overnight - weekends no problem'). For whatever personal or economic reasons, the applicants were volunteers for night shift work. They were not `required' to work night shift. The word `required' in Cl E4(c) is not ambiguous. There must exist `an element of the mandatory or imperative'."

9 Mr McRae, of counsel for the two appellants Robinson and Kaeding, disputes the Industrial Magistrate's understanding of how the Award is meant to operate and in particular the meaning of "required to work" and "at their own request" taken in context. He submits the words have an ordinary and natural meaning (tr 11). That ordinary and natural meaning is reinforced by the context. He relies on Hancock v. Sanctuary Farm Child Care Centre [2000] SAIRC 30 pars 48 - 52 and Meat Industry (South Australia) Award [2003] SAIRC 30 pars 10 - 12.

10 Mr McRae also referred McDonald v Building Workers Industrial Union (NSW) (1991) FCA 443 to support his submission that "required to work" means an obligation to work by reason of the contract of employment. That case involved the interpretation of cl 15.11(j) of the National Building and Construction Industry Labourers (On Site) Award 1986. That clause dealt with travel allowances. The provision examined gave entitlement to certain monies where the employee was, "required by the employer to travel". Einfeld J. referred to the reasoning of Bennett C. in Girvan Bros Pty Ltd v Civic Constructions Pty Ltd and The Building Workers' Industrial Union of Australia (20 October 1988) Print H5215 and the decision of Maidment J in Master Builders' Association of New South Wales Interpretation of the Building and Construction Industry Labourer's on Site (State) Award (6 November 1989, 1003 of 1989). In Girvan, Bennet C. concluded the words "required by the employer" were a reference to the normal incidents of the employment contract, ie, required by the terms of the agreement. In Master Builders Maidment J. took the same view namely it was the requirement created by the contract and the obligation to comply with it. Enfield J. agreed with these views. He stated his conclusion, (par 61):-

"... The sub-clause says simply that the additional allowance is payable where the employee's obligation to turn up for work in accordance with the employer's instructions, require him to travel, inter alia, from one of the three counties to another of them. For this purpose, the relevant area is the county where he lives and which he must leave to enter the county where he is `required' to work."

11 The result in McDonald on appeal is to be compared with the conclusion reached by the Chief Industrial Magistrate at first instance. There a narrower view was taken to the meaning of the words. In particular the Chief Magistrate disagreed with the view that by employing a person residing outside the county where the job was to be performed, "by the application of the normal incidence of the employment contract" the allowance became payable. In other words the phrase "required by the employer" in the context of the sub-clause meant "an actual request or demand from the employee to work outside the county in which he is normally employed to work by his employer". It was that conclusion that Enfield J. rejected.

12 In my view so much of Mr McRae's argument must be accepted. His argument has the support of the ordinary and natural meaning of the words taken in context as well as the persuasive weight of Enfield J.'s decision in McDonald. However Mr Manuel has argued the meaning of "required" is given context and colour by the subsequent phrase "at their own request". I disagree with this contention. The words "required to work" are self contained in meaning in these circumstances. And moreover it is one step back even from the words under consideration in McDonald's case, "required to work by the employer".

13 Turning to the phrase "at their own request", Mr McRae examined Commissioner for Public Employment v Dunk and ALHMWU (Print I 89 of 1999) in support of his submissions. That decision concerned the South Australian Government Health Etc Ancillary Employees Award. The facts are instructive. The worker by letter was offered the position of permanent night shift to which penalty rates applied. He accepted this offer. Thereafter he was paid a 30% shift loading. Sometime thereafter the employer sent a letter to the worker advising rates of pay had been reviewed and the correct rate for night staff had been paid incorrectly at 30% instead of at 15%. Moreover the employer asserted the worker having continued to work night shift voluntarily was doing so in effect by his own request. This was bolstered by evidence that during his employment the worker had worked other shifts but on those occasions had asked to be returned to the night shift. On another occasion the worker had advised management that he was happy working nights. The Award provision (in cl 6.1.6.3(iii)) contained the provision that the rate was 30% "except where an employee continues to work night shift, at their own request".

14 The Full Court stated their opinion as to the correct meaning to be given to the provision in the following terms:-

"It was in the context of the proviso which reduces the penalty rate from 30% to 15% that Exhibit A4 was raised. It was the Board Award (Exhibit A4) which introduced the concept of a higher penalty rate for employees working permanent night shift. A higher rate applied unless the employee was working the permanent night duty at his own request in which case a lower penalty rate was applicable. A shift allowance is a form of compensation for the disruption and inconvenience to an employee who has lost the advantage of working ordinary hours. Exhibit A4 provided that a higher rate for night duty worked on any occasion attracted an allowance but recognised a higher rate for the additional inconvenience and disruption occasioned by permanent night duty. The differential night penalty rates in that award demonstrated that the higher penalty was tied to inconvenience to the employee, the underlying assumption being that if the employee requested to work the permanent night duty, then it followed that such shift work warranted a penalty rate but not at the higher rate because it was not as disruptive and hence not as unfair to that particular employee.

To the extent that the current award makes a similar distinction this history is helpful in determining the intention of the award maker as to shift allowances. This is not altered by the additional sophistication in the identification of employees to whom the higher rate applies. There is, however, one significant difference between the earlier clause and the current clause and that is the phrase `continues to work' in the passage `except where an employee continues to work night shift at their own request'. Reading that passage in context suggests that those words are pitched at persons working on night shift which attracts the higher allowance, who have a genuine opportunity to participate in a rotating or alternate shift cycle but for their own reasons request that they be able to continue on permanent night shift. In other words something happens to change the status quo.

Applying that interpretation to the facts established in the instant matter the first respondent was working night shift in one of the categories of subclause 6.1.6.3 which attracted the higher penalty rate. He was engaged in a position which had, as a condition, that it was permanent night shift. As this remained a condition of his contract of employment it cannot be said that he continued to work night shift at his own request. Furthermore no event occurred at any time after he commenced permanent night shift in accordance with his contract from which it could be said that he requested to continue to work permanent night shift. The evidence of the first respondent's dealings with Mr. Woodman and Ms. Hutt does not provide such evidence. The fact that he may have told Ms. Hutt in casual conversation that he was `quite happy' to work permanent night shift does not establish that he requested that he continue to do so particularly in the light of the terms of his contract of employment."

15 The approach taken in Dunk's case is clearly applicable to the provisions in the Award before me. Therefore for the respondent to gain the advantage of the proviso, there must be proof of the relevant request. That is the employee was working permanently on night shift consequent upon or following his or her own request. If placed on permanent night shift without proof of any request by the worker, the entitlement is 30% additional to the ordinary rate. Taking for example application for employment of Kaeding (AB 87), an indication of being prepared to work any shifts could not amount to a request to work night shift. Preparedness to work any shift indicates no more than that. It does not amount to a request. In the case of Robinson, he has indicated a preference to work the later shifts (AB 81). At the time of the interview he was not an employee and the Clause E4(c) is only concerned with "an employee", making such a request. The request by a prospective employee does not trigger the operation of the proviso. Moreover the evidence fails to establish the rostering to permanent night shifts was as a result of a request by him. The circumstances show that whether or not the requisite request has been made and its causal relevance, depends in each case on the circumstances. The circumstances necessary to trigger the proviso are not established in either case.

16 Both appeals are allowed. Counsel has asked that the matter be resolved without referral back (tr 30, 31). I will publish these reasons and hear counsel as to the orders that flow from these reasons and conclusions given counsel's advice that there is no issue between the parties as to quantum (tr 4).