Shop Distributive & Allied Employees' Association v Woolworths Ltd

The Construction of the Agreement 24 The issue raised is one of the proper construction of an industrial agreement. I was referred to the relevant principles commencing with the reasons for judgment of Burchett J in Short v F W Hercus Pty Ltd (1993) 40 FCR 511. That case involved the proper interpretation of an award. The tenor of the discussion by Burchett J (at 516-520) is that context may be considered. Context consists not only of other parts of the document but also of the history of the provision. Furthermore, context should be considered even where there is no apparent ambiguity in the words used. In that case, the source of the words under consideration threw light on their proper meaning. Even though Burchett J was dealing with an award and I am dealing with a certified agreement, there is no reason to think that the principles of construction would be more narrowly confined in the latter case compared with the former (Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J). 25 In Kucks v CSR Limited (1996) 66 IR 182, Madgwick J, sitting as a judge of the Industrial Relations Court of Australia, was called upon to construe an award. His Honour reiterated a number of well known principles of construction. His Honour said that narrow or pedantic approaches to interpretation were to be avoided and that, in the case of an industrial award, it was to be borne in mind that such documents were prepared with a view to them being clearly understood in the context of the relevant industry. Meanings which avoided inconvenience or injustice may reasonably be adopted, but, at the same time, the Court was not free to give effect 'to some anteriorly derived notion of what would be fair or just, regardless of what [had] been written into the award' (at 184). 26 In Van Efferen v CMA Corporation Limited [2009] FCA 597, Tracey J was called upon to construe an Australian Workplace Agreement. He noted that the agreement had not been prepared by lawyers and was loosely drafted. The issue before Tracey J was whether a grievance procedure in the agreement was mandatory and that is quite different from the issue before me. Nevertheless, Tracey J said and I agree that the principles relevant to the construction of commercial contracts may also be relevant and of assistance in the construction of industrial agreements (at [37]). 27 Finally, I refer to the decision of the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241. In that case the Court was called upon to construe provisions of an industrial agreement. Gleeson CJ and McHugh J said that the issue turned upon 'the language of the particular agreement, understood in the light of its industrial context and purpose …' (at 246 [2]). Gummow, Hayne and Heydon JJ said (at 253 [30]): Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate. 28 I will now set out the history to which the respondent has asked me to have regard. 29 The starting point is the decision of the Full Bench of the Australian Industrial Relations Commission in Re Public Holidays ('Public Holidays Test Case') (unreported, AIRC, L4534, Hancock, MacBean SDP and O'Shea C, 4 August 1994) ('Public Holidays Test Case'). In that case, the Full Bench dealt with applications by various trade unions to vary provisions in awards dealing with public holidays. The principal application was for a minimum of ten public holidays plus one additional public holiday 'as a safety net standard for workers covered by federal awards'. The Union's application was for ten public holidays on the following days: Easter Saturday ANZAC Day New Year's Day* Queen's Birthday Australia Day* Labour Day Good Friday Christmas Day* Easter Monday Boxing Day*

30 The application included an application for substitute holidays where the days in the above list which I have marked with an asterisk fall on a Saturday or Sunday. There was no application for a substitute for ANZAC Day. 31 The Commission made an order in accordance with the application. In the course of its reasons the Commission said (at 19-20): Although the leave which employees enjoy under the broad characterisation of "public holidays" is a significant benefit and, as such, ought not to be excluded from the "safety net" concept, the safety net standard goes more, we think, to the quantum of leave than to the specification of days. There are, however, some days which have special significance in community mores - a significance which the awards may well reflect. These days are Good Friday, Anzac Day and Christmas Day. Otherwise, the specification of days should be seen as variable over time and between States, Territories and even localities. No arguments have been put to us which justify either an expansion or a contraction in the standards which had developed by the early 1990s. Though there are some variations between States, we think that a prescription of ten days (excluding Easter Saturday) gives reasonable effect to the criterion of minimum change. With that standard in mind, we think that award provisions at this time should normally provide: • that holidays (or payment in lieu) be observed in respect of New Year's Day, Good Friday, the Monday thereafter, Anzac Day, Christmas Day and Boxing Day; • that holidays (or payment in lieu) be observed also in respect of the days specified in the relevant States and Territories as Australia Day, the Queen's Birthday and Labour Day; • for an additional holiday (or payment in lieu) which may be a day identified by a governmental prescription (for example, Melbourne Cup Day) or a day otherwise specified (for example, for a union picnic); and • that when a prescribed holiday, other than Anzac Day, falls on a Saturday or Sunday, a substitute day is provided. An effect of the above provisions is that the amount of leave is reduced by one day in those years wherein Anzac Day falls on a Saturday or Sunday. This accords with current practice in most States and, with respect to those States, is accepted by the unions. In some States, the provisions which we have outlined fall below existing "State" standards. The unions propose that the additional leave should be provided in the Commission's awards. This implies that the States and Territories may add to but not subtract from the safety net leave provisions. Upon consideration we have decided to accede to this proposal, notwithstanding its inconsistency with the safety net principle. We do so because it is not open to us to prevent a State or Territory from creating "extra" public holidays. Where it does so, the existence of a lesser standard in the Commission's awards would be a likely source of industrial unrest. We do not, however, accede to the union request that where "extra" public holidays - above the safety net standard - have existed in the past but are eliminated by a State or Territory, their continued observance should be enforced by the Commission. The Commission's commitment is to the safety net, not the status quo (however defined). In effect, our decision allows for State or Territory autonomy, subject to meeting, as a minimum, the safety net standard. We do not intend our accommodation of State-determined holidays above the safety net standard to be the basis of double-counting, achieved by identifying the additional day in some other manner. For example, we envisage that in Victoria the additional day which is part of the safety net standard will normally be Melbourne Cup Day or a local equivalent. If the additional day is a union picnic day, this will be in lieu of Melbourne Cup Day. 32 The respondent put forward a number of certified agreements between Woolworths and various unions for various areas including New South Wales and the Australian Capital Territory, South Australia and the Northern Territory, Victoria, Western Australia, Queensland and Tasmania. 33 The provisions of the first Certified Agreement in time, the Retail Supermarket Industry - Woolworths - NSW/ACT Agreement 1995, nominated the same days as public holidays as those set out at [29] above, and nominated the same days within the class as days to which the substitution provisions applied. In addition to one other public holiday, the Agreement provided for Additional Holidays in the following terms: 21.3 Additional Holidays Weekly employees shall be entitled without loss of pay to an additional public holiday where in a State, Territory or locality, public holidays are declared or prescribed on days other than those set out in subclauses 21.1 and 21.2, those days shall constitute additional days for the purpose of this Agreement. 34 Although the precise wording changed, the broad structure of the public holidays provision was continued in subsequent agreements in New South Wales and the Australian Capital Territory. The agreements to which I was referred were as follows: Retail Supermarket Industry - Woolworths Meat - NSW/ACT Agreement 1997 Woolworths Supermarkets - NSW/ACT Agreement 1998 Woolworths Supermarkets - NSW/ACT Agreement 2001 Woolworths Supermarkets - NSW/ACT Agreement 2004 Woolworths Supermarkets - NSW/ACT Agreement 2007 35 I was also taken to the prior agreements in the case of the South Australia, Northern Territory and Broken Hill area, being the following agreements: Woolworths (SA & NT) Certified Agreement 1997, Woolworths (SA, NT and Broken Hill) Certified Agreement 2000 and Woolworths (SA, NT and Broken Hill) Certified Agreement 2003. 36 I was also referred to the following agreements: Safeway Supermarkets (Victoria) Enterprise Agreement 1998 Safeway Supermarkets (Victoria) Enterprise Agreement 2003 Safeway Supermarkets Agreement 2006 Woolworths Supermarkets (WA) Agreement 1997 Woolworths Supermarkets (WA) Agreement 2001 Woolworths Limited (WA) Agreement 2004 Woolworths Limited (WA) Agreement 2008 Woolworths Queensland Supermarket Certified Agreement 2001 Woolworths Queensland Supermarket Certified Agreement 2004 Woolworths Queensland Supermarket Agreement 2007 Woolworths Tasmanian Retail Operations Enterprise Agreement 2003-2006 37 As far as I can see, with one exception, ANZAC Day is not the subject of any substitution provision in any of the agreements. In Western Australia it is, but the clause goes on to provide that 'the day for which it is substituted shall not be a holiday'. Otherwise the structure is broadly the same in the case of each agreement: ten public holidays plus a particular public holiday for the State concerned; substitution provisions for some of the identified days; no provision for two public holidays in recognition of the one occasion; and ANZAC Day is not included within the substitution provision. 38 I turn now to a case which was at the forefront of the respondent's submission. The respondent submitted that the case provided an interpretation of a related clause which supported its interpretation of subclause 48.5.4 and that the fact that there were no material changes to any of the agreements after the case meant that the interpretation it advances should be adopted. 39 In Shop Distributive and Allied Employees Association v Woolworths Ltd [2000] FCA 206, Marshall J was asked to give an interpretation of the public holiday provisions of the Woolworths Supermarkets - NSW/ACT Agreement 1998. Marshall J set out (at [7]) the relevant provisions of the 1998 Agreement and, for the purposes of dealing with an argument advanced in the case, the relevant provisions of the 1995 Agreement. (I have already set out clause 21.3 of the 1995 Agreement in [33] above.) I set out the former: 21. PUBLIC HOLIDAYS 21.1 Holidays A weekly employee shall be entitled to holidays on the following days:- 21.1.1 New Year's Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and 21.1.2 The following days, as prescribed in the relevant States, Territories and localities: Australia Day, Anzac Day, Queen's Birthday and Eight Hours' Day or Labour Day; and 21.1.3 In the Australian Capital Territory, Canberra Day. 21.2 Holidays in lieu 21.2.1 When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December. 21.2.2 When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 28 December. 21.2.3 When New Year's Day or Australia Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on the next Monday. 21.3 Additional Holidays Weekly employees shall be entitled without loss of pay to an additional public holiday or half day within the State or Territory or Locality, when such public holiday or half day public holiday is proclaimed or gazetted, and is to be observed generally by persons through the State, Territory or Locality. Provided that such additional public holiday or half day public holiday shall be treated as additional paid time off or pay in lieu, but work performed on these days or half days shall not attract public holiday penalty rates. Where the State government proclaims multiple locality days or half days not generally observed throughout the state the parties will confer to nominate one day or two half day additional public holidays to be observed as set out above. 21.4 Substituted Days Where a store opens for trade on an actual public holiday which has had the substitution provision of subclause 21.2 applied, the following shall apply:- 21.4.1 If a weekly employee is ordinarily rostered to work on the actual public holiday and the substituted day, then that employee and the Store Manager shall by mutual agreement determine which day shall be the public holiday and receive the standard public holiday benefits on that day. The other day shall then be a normal rostered day subject to paragraph 21.4.4 below. 21.4.2 If a weekly employee is rostered to work on the actual public holiday and not the substituted day, the employee shall receive the standard public holiday benefits on the actual day. 21.4.3 If a weekly employee is rostered to work on the substituted day and not the actual Public Holiday, the employee shall receive the public holiday benefits on the substituted day. 21.4.4 In the case of Christmas Day where substitution occurs, work on the 25th December will attract an additional loading of half a normal day's wage for a full day's work in addition to the Saturday/Sunday rate and the employee will also be entitled to the benefits of the substituted public holiday. 21.4.5 Casual employees employed on the actual day of the prescribed holiday shall be paid at the normal rate for the day and be paid the relevant holiday rate for the substituted day. 21.5 Payment for Holidays not traded Where a store does not open for trade on a public holiday and an employee would have been rostered to work on such a day but is not required to work, the employee shall be entitled to payment for the day based upon their ordinary single hourly rate of pay for the hours normally rostered to work. 40 The dispute before Marshall J concerned the application of clause 21 to public holidays proclaimed by the Governor of New South Wales on 1 October 1999 pursuant to s 19(1) of the Banks and Bank Holidays Act 1912 (NSW) with respect to 28 December 1999 and 3 January 2000. In 1999 Christmas Day fell on a Saturday and in 2000, New Year's Day fell on a Saturday. 41 As can be seen, clause 21.2 of the Woolworths Supermarkets - NSW/ACT Agreement 1998 provided for a holiday in lieu on 27 December where Christmas Day fell on a Saturday or Sunday. 42 In the case before Marshall J, 28 December 1999 and 3 January 2000 were substitute public holidays by reason of the provisions of the Woolworths Supermarkets - NSW/ACT Agreement 1998 and clause 21.4 contained provisions as to how the employee was to be paid in those circumstances. Marshall J decided that 28 December 1999 and 3 January 2000 were not additional public holidays within clause 21.3 of the Agreement. His Honour said (at [15]-[17]): … In truth 28 December and 3 January are not additional public holidays within the meaning of cl 21.3 of the Agreement but in the context of cl 21, when read as a whole, they are public holidays for which provision has already been made by cl 21.2 of the Agreement. I can discern no significance in the alteration in the wording of cl 21.3 of the 1995 Agreement when compared to cl 21.3 of the Agreement. I accept Mr Hatcher's submission that the change appears to involve a different drafting approach to achieve the same end. One might legitimately ask when cl 21.3 refers to an entitlement to 'an additional public holiday', additional to what? In my view the true construction of the sub-clause requires the following answer - 'additional to those provided for in cl 21.1 and cl 21.2, in circumstances where cl 21.2 embraces substitute public holidays'. In my opinion 28 December and 3 January were not additional public holidays when cl 21 is considered as a whole and in proper context. Consequently the interpretation sought by SDA must be rejected. 43 That case deals with a different point from that before me. The issue in the case was whether the 'Additional Holidays' provision could operate in circumstances where a day said to fall within the clause was already a public holiday by virtue of the substitution provisions in the preceding subclause. That is not the issue here. ANZAC Day was not subject to the substitution provisions in the Agreement and Monday 26 April 2010 was not a public holiday by virtue of any earlier provision in the Agreement. 44 Mr Carr said that in negotiating further agreements, Woolworths sought to preserve the operation of the public holiday provisions in the manner interpreted by Marshall J. As I think the decision of Marshall J was dealing with a different point from that before me, this submission does not advance the respondent's case. 45 In the ANZAC Day Holiday Test Case 2004 (2004) 134 IR 270, the Australian Industrial Relations Commission rejected an application by various unions for variations of awards seeking to provide a public holiday in lieu of ANZAC Day (25 April) for Federal award covered employees on the Monday following ANZAC Day when ANZAC Day fell on a Saturday or Sunday. The Commission set out the background to the applications (at 271-272): 1 This decision concerns applications (35 in total) by various unions for variation of the awards listed above seeking to provide a public holiday, in lieu of ANZAC Day (25 April), for Federal award covered employees on the Monday following ANZAC Day when ANZAC Day falls on a Saturday or Sunday. The applications are made in the context of ANZAC Day in 2004 falling on a Sunday. They are directed to providing the substituted public holiday in the States of Victoria and Tasmania in circumstances where a substituted or additional day has been proclaimed for 2004 by the Government of each State and Territory other than Victoria and Tasmania. The terms of the proposed orders are more general in that they provide for a substitute public holiday on an ongoing basis where ANZAC Day falls on a Saturday or Sunday in any State or Territory in which the awards apply. 2 The applications have practical relevance in respect of ANZAC Day 2004 and thereafter, when ANZAC Day next falls on a Saturday or Sunday. The next such occurrences are 2009 in respect of Saturday and 2010 in respect of Sunday. 3 On 26 March 2004, each of the applications was referred to this Full Bench by the President, pursuant to s 107 of the Workplace Relations Act 1996 (Cth) (the Act). Various unions have filed applications in similar terms to the 35 applications before us. There were, at the time of the hearing, in excess of 250 such applications filed. Accordingly, the present applications have been dealt with as a Test Case, with leave to intervene being afforded to parties to any of the applications not referred to this Full Bench. 46 The Commission noted the decision in the Public Holidays Test Case and said (at 279-280): 27 The present applications are directed to amending the 1994 Public Holidays Test Case provision determined by the 1994 Full Bench. As noted above, having regard to the decision of that Full Bench the safety net standard for public holidays is ten days (excluding Easter Saturday), with no substitution for ANZAC Day, such that the amount of leave is reduced by one day in those years where ANZAC Day falls on a Saturday or Sunday. … 32 An additional day on the following Monday is created as a public holiday, where ANZAC Day falls on a Sunday, in Queensland, South Australia, and Western Australia. Sunday 25 April is retained as a public holiday. In New South Wales the Northern Territory and the Australian Capital Territory the following Monday is substituted as the public holiday, but Sunday the 26th is not recognised as such. In Victoria and Tasmania ANZAC Day (25 April) is set as a holiday, with no automatic substitution where it falls on a Saturday or Sunday. The Governments in those States have historically not proclaimed a substitute holiday in either case. Only in Western Australia does legislation automatically substitute a public holiday on Mondays in respect of ANZAC Day when it falls on a Saturday. 33 We are not satisfied that there exists a national consensus or national custom and practice in respect of the substitution of a public holiday for ANZAC Day, where it falls on a Sunday. Whilst presently and for some considerable period, a majority of States and Territories (six of eight) provide for a substitute or alternate public holiday in that circumstance, we are not satisfied that there exists a national consensus which supports the intervention of the Commission, contrary to the approach of the 1994 Public Holidays Test Case Full Bench, warranting an overriding of the historical rights of the Governments of Victoria and Tasmania not to proclaim a substitute public holiday for ANZAC Day where it falls on a Sunday. 47 The significance of this decision is that the Commission refused to vary the principles laid down in the Public Holidays Test Case and, in particular, that there be no substitute day where ANZAC Day falls on a Saturday or Sunday. 48 The proper construction of clause 48 is not clear and there are substantial arguments on both sides. 49 For the applicant it may be said that the terms of subclause 48.5.4 are clear, and that once every five or six years 26 April is a public holiday under the Holidays Act and it is a day other than ANZAC Day which is 25 April. The payment and entitlement provisions set out in clause 48.10.1 only apply where the public holiday is the subject of a substitution provision and s 3A of the Public Holidays Act is not a substitution provision. It may have been in its earlier form but that probably turns on whether 'as in subclause 48.6 above' in subclause 48.10.1 means 'in' subclause 48.6 or 'like' subclause 48.6. In the end it probably does not matter very much because it is the operation of s 3A of the Holidays Act in its present form which is relevant. 50 For the respondent it may be said that the applicant's construction would have surprising consequences. There are no substitution provisions in the Agreement for ANZAC Day, and, in terms of benefits to the worker, ANZAC Day is less favourable than days like Christmas Day and New Year's Day. Once every five or six years it becomes more favourable from the worker's point of view than even Christmas Day. In essence, the respondent's contention is that when in subclause 48.5.4 there is reference to 'Additional Holidays' and 'other' days that reference is to holidays unrelated to the occasion which is the subject of the identified holidays, that is to say, unrelated to ANZAC Day. 51 In my opinion, the respondent's construction of the relevant provisions of clause 48 of the Agreement is the correct one. It seems to me that the words 'additional' and 'other' should be read, in the context in which they appear, as referring to not simply a different day but to a different occasion. In other words, the additional holidays referred to in subclause 48.5.4 are additional to the holiday or holidays for ANZAC Day. The additional holidays must be quite separate and distinct from the identified holidays in clause 48.5.1. This construction of the Agreement is open and ought to be taken. The contrary view would mean that when ANZAC Day fell on any day other than Sunday there would be no substitute day and when it fell on a Sunday there would be two public holidays and, in that event, the employee would receive greater benefits than those provided in a case where Christmas Day falls on a Sunday. I cannot think that that was the intention of the parties to the Agreement.

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Judgment (11 paragraphs)

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Cases Cited (7)