Sydney Night Patrol and Inquiry Company Limited t/as SNP Security v Pulleine

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION NSD 1672 of 2013

BETWEEN: SYDNEY NIGHT PATROL AND INQUIRY COMPANY PTY LIMITED T/AS SNP SECURITY

JUDGE: KATZMANN J DATE OF ORDER: 17 APRIL 2014 WHERE MADE: SYDNEY

1. The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION NSD 1672 of 2013

BETWEEN: SYDNEY NIGHT PATROL AND INQUIRY COMPANY PTY LIMITED T/AS SNP SECURITY

JUDGE: KATZMANN J DATE: 17 APRIL 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Noel Pulleine is a security officer. Since late March 2011 he has been employed by the respondent ("Sydney Night Patrol"). At all relevant times he worked on a fortnightly roster and was paid overtime when he worked a shift of more than 10 continuous hours or when he worked more than 76 hours in any two-week roster cycle. 2 In December 2011 Mr Pulleine filed an application in the Chief Industrial Magistrate's Court of New South Wales alleging that Sydney Night Patrol was in breach of the Security Services Industry Award 2010 ("Award") by failing to pay him, for the period between 21 April 2011 and 14 August 2011, both a first aid allowance and overtime. He sought orders for the recovery of money under ss 545 and 547 of the Fair Work Act 2009 (Cth) and for a pecuniary penalty under s 546. 3 After the case was heard but before it was determined, the Chief Industrial Magistrate passed away. With the consent of the parties, a Local Court magistrate decided the application on the papers. The magistrate upheld the claim and ordered that Sydney Night Patrol pay an agreed sum of $1,178.02 (less tax), together with interest on the sum from 15 June 2011. She then stood the proceeding over to a date to be fixed for argument on pecuniary penalties and costs. 4 The appeal is concerned only with the findings in relation to the overtime claim. It turns on the interpretation of cl 21.4 of the Award. Despite the fact that the notice of appeal (as amended) contains six grounds, the only question for determination is whether the "long break" provisions in the clause apply to employees like Mr Pulleine who are employed on a fortnightly roster. 5 The appeal comes to this Court because s 565(1) of the Fair Work Act confers jurisdiction on the Court to hear appeals from "eligible State or Territory court[s]" exercising jurisdiction under the Act. Both the Chief Industrial Magistrate's Court and the Local Court of New South Wales are included within the definition of an eligible State or Territory court in the Dictionary to the Act.

The relevant provisions of the award 6 Hours of work, penalty rates and overtime are covered by Part 5 of the Award. 7 Clause 21 relevantly provides: 21.1 Ordinary hours and roster cycles (a) The ordinary hours of work are 38 hours per week or, where the employer chooses to operate a roster, an average of 38 hours per week to be worked on one of the following bases at the discretion of the employer: (i) 76 hours within a roster cycle not exceeding two weeks; (ii) 114 hours within a roster cycle not exceeding three weeks; (iii) 152 hours within a roster cycle not exceeding four weeks; or (iv) 304 hours within a roster cycle not exceeding eight weeks. (b) The following time is ordinary working time for the purposes of this clause and must be paid for as such: (i) crib breaks; (ii) time occupied by an employee in filling in any time record or cards or in the making of records (other than time spent checking in or out when entering or leaving the employer's premises); (iii) time spent attending a court in the interest of the employer or any client of the employer in relation to any matter arising out of or in connection with the employee's duties; (iv) time spent fitting the employee's own vehicle with any equipment or markings required by the employer (in relation to which the cost of any such equipment and markings must be met by the employer) unless the installation is required by reason of the employee choosing to change vehicles within three years of an initial fitting of equipment or markings; and (v) time spent at the direction of the employer attending training courses (other than any course undertaken by an employee in order to obtain a security licence where the employee does not already hold a security licence under licencing legislation). 21.2 Shift duration (a) Ordinary time shifts must be limited in duration to: (i) for casual employees - a minimum of four and a maximum of 10 ordinary hours; … (b) Notwithstanding clause 21.2(a), by agreement between the employer and the majority of employees concerned in a particular establishment, ordinary working hours exceeding 10 but not exceeding 12 hours per shift may be introduced subject to: (i) proper health monitoring procedures being introduced; (ii) suitable roster arrangements being made; (iii) proper supervision being provided; (iv) adequate breaks being provided; and (v) an adequate trial or review process being implemented where 12 hour shifts are being introduced for the first time. (c) Employees are entitled to be represented for the purposes of negotiating such an agreement. Once agreement is reached it must be reduced to writing and kept as a time and wages record. [21.2(d) varied by PR994514 from 01Jan10] (d) Clause 21.2(b) is not intended to prevent an employer implementing 12 hour rosters through the use of regular rostered overtime (subject to the requirements in s.62 of the Act in relation to the right of an employer to require reasonable overtime) or individual flexibility agreements made pursuant to clause 7 - Award flexibility. 21.3 Break between successive shifts Each ordinary time shift must be separated from any subsequent ordinary time shift by a minimum break of not less than eight hours. 21.4 Long breaks (a) An employee must be given separate long breaks of continuous time off work in each roster cycle as follows: Length of roster cycle Minimum number of breaks 3 weeks 3 breaks of 2 days (48 continuous hours) 4 weeks 3 breaks of 3 days (72 continuous hours);or 4 breaks of 2 days (48 continuous hours) 8 weeks 6 breaks of 3 days (72 continuous hours);or 9 breaks of 2 days (48 continuous hours)

(b) An employee must not be required to work more than a total of 48 hours of ordinary time between long breaks. … 8 Overtime is covered by cl 23. It provides: 23. Overtime 23.1 Reasonable overtime is provided for in the NES [the National Employment Standards as contained in sections 59 to 131 of the Fair Work Act]. 23.2 An employee must not be required to work more than 14 hours (including breaks to which the employee is entitled under this award). 23.3 Overtime rates Where an employee works overtime the employer must pay to the employee the ordinary time rate for the period of overtime together with a loading as follows: For overtime worked on Loading payable in addition to ordinary time rate % Monday to Friday - first 2 hours 50 Monday to Friday - thereafter 100 Saturday - first 2 hours 50 Saturday - thereafter 100 Sunday 100 Public holiday 150

23.4 Where a period of overtime commences on one day and continues into the following day, the portion of the period worked on each day attracts the loading applicable to that day. 23.5 Minimum break following overtime (a) An employee should have a break off duty of at least eight hours between: (i) the conclusion of a shift or, if the employee worked overtime following the end of the shift, at the conclusion of such overtime; and (ii) the commencement of work on the next shift or, if there is any pre-shift overtime before the commencement of the next shift, the commencement of that pre-shift overtime. (b) Where an employee has not had at least eight hours off duty between those times, the employee must, subject to this subclause, be released after completion of such overtime until the employee has eight hours off duty without loss of pay for ordinary time occurring during such absence. If on the instructions of the employer such an employee resumes or continues work without having had such period off duty the employee must be paid at 200% ordinary time until released from duty for such period and such employee is then entitled to be absent until the employee has had such period off duty without loss of pay for ordinary working time occurring during such absence.

The case below 9 Mr Pulleine's argument in the court below was that it was a contravention of cl 21.4(b) of the Award to require him to work more than 48 hours of ordinary time without giving him a long break and that if he was required to do so, his employer was obliged to pay him at overtime rates. Sydney Night Patrol denied that the clause applied to an employee on a fortnightly roster and contended that, in the alternative that it did apply, it did not require the payment of overtime in the event of a breach. The alternative submission found its way into the notice of appeal (as ground 5), but was later abandoned.

The reasons of the magistrate 10 The magistrate approached her consideration of this issue on the basis of some statements made by Cowdroy J in Manildra Flour Mills (Manufacturing) Pty Limited v National Union of Workers [2012] FCA 2010 at [50]-[52] ("Manildra Flour Mills"), which she extracted in full in her reasons for judgment. As a result of those statements her Honour first asked herself whether cl 21.4 was ambiguous. She found that there was no ambiguity. She said that cl 21.4(a) set out the length and number of long breaks required for three particular roster cycles, not including a fortnightly roster, and described cl 21.4(b) as a "blanket provision" which applied to employees regardless of whether they were on one of the roster cycles referred to in cl 21.4(a). She considered that the construction urged by Sydney Night Patrol would produce the "absurd result" that employees on a fortnightly or weekly roster would not be entitled to a long break after 48 hours of ordinary time, unlike employees on a roster of three, four or eight weeks. 11 Her Honour stated that she was satisfied that "for the purpose of clause 21.4(b) a long break is a minimum of 48 continuous hours". 12 On this construction her Honour found that Sydney Night Patrol was in breach of the award by requiring Mr Pulleine to work more than 48 ordinary hours without giving him a long break. 13 Her Honour also accepted Mr Pulleine's argument that the hours worked in excess of 48 hours of ordinary time should have been paid at the overtime rate. As Sydney Night Patrol does not now dispute that overtime is payable in the event that cl 21.4 of the Award applied to Mr Pulleine, it is unnecessary to refer to her Honour's reasons for this conclusion.

The appellant's arguments 14 Sydney Night Patrol argued that the magistrate erred by ascribing a meaning to cl 21.4, which, it submitted, conflicts with its text in circumstances where she had found the words to be unambiguous. 15 Sydney Night Patrol argued that the clause does not prescribe a separate entitlement to receive a long break regardless of the roster cycle worked by an employee. Simply put, its case was that an employee on a fortnightly roster is not entitled to a long break because a fortnightly roster cycle is not mentioned in the list in cl 21.4(a). It submitted that paragraph (b) cannot be read in isolation from paragraph (a) and does no more than provide a limit on when the long break must be taken; it does not entitle all employees to a long break. It submitted that paragraph (b) does not speak in terms of an entitlement to a long break or stipulate the length of the break. It contended that the construction for which Mr Pulleine contended and which the magistrate accepted, leads to uncertainty and should therefore be rejected.

Does the award provide for long breaks for employees on a fortnightly roster cycle? 16 The employer's argument has the virtue of simplicity and is superficially attractive. It is, however, flawed. 17 First, the starting proposition and its implicit premise (that absent ambiguity, the literal meaning must prevail and it is unnecessary to look at the context and purpose of the clause) are wrong. The statements in Manildra Flour Mills about the principles to be applied in interpreting awards are out of step with authority. In Manildra Flour Mills Cowdroy J said: [50] Interpreting an industrial award requires an approach focusing on the actual words used and their plain, ordinary English meaning: see Bryce v Apperley (1998) 82 IR 448 at 452. If the words of the award have an unambiguous meaning, then that is the meaning that should be ascribed to them and there is no need for the Court to consider the expressed or supposed intention of the drafters of the award: see Norwest Beef Industries Ltd v Australasian Meat Industries Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331. [51] If there is a degree of ambiguity, then the Court must consider the relevant clauses of the award in their context. The principles in this respect are set out in Kucks v CSR Ltd (1996) 66 IR 182 at 184: It is true that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. 18 Despite what his Honour said in the opening clause of [51], the statement of principle in Kucks was not predicated on the existence of ambiguity. 19 Cowdroy J did go on to acknowledge the importance of considering context and purpose in the interpretation of awards, but if the import of his earlier remarks suggests that he regarded context and purpose as relevant only in the case of ambiguity, then he was, with respect, wrong. 20 In Geo A Bond & Co Ltd (in liquidation) v McKenzie [1929] 28 AR (NSW) 498, Street J (with whom Cantor J agreed) said at 503-4 (in relation to an award made by consent): Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.' 21 This statement of principle has been cited with approval in a number of cases involving the construction of awards: see, for example, Lane v Arrowcrest Group Pty Limited (1990) 27 FCR 427 at 452; Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 520. 22 For a very long time the High Court has made it clear that "[t]he fundamental object of statutory construction in every case is to ascertain the legislative intention …": Cooper Brookes (Wollongong) Proprietary Limited v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 ("Cooper Brookes") at 320 (Mason and Wilson JJ). In that case the majority held that the draftsperson was mistaken and the intention of the legislature was sufficiently clear for it to be permissible to depart from the literal meaning of the words used in a section of the Income Tax Assessment Act 1936 (Cth) in order to give effect to that intention. 23 That is not to say that the words of the text are not important. The process of interpretation must always begin with the text: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813 at [53] ("City of Wanneroo"); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. The point, however, is that from the outset of the exercise of statutory construction, the text must be read in context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ("Project Blue Sky") at [69]. 24 As the plurality put it in CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408: [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. (Footnotes omitted.) 25 Context includes the text and operation of the award as a whole and by reference to other provisions in it and to the legislative background against which the award was made and in which it was to operate: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [30] (Gummow, Hayne and Heydon JJ). 26 Furthermore, as French J (as his Honour then was) explained in City of Wanneroo at [51]-[52], an award made under the Workplace Relations Act 1996 (Cth), as this one was, has the force of a law of the Commonwealth and attracts the operation of the Acts Interpretation Act 1901 (Cth). It follows that in working out the meaning of a provision of an award the interpretation that would best achieve the purpose or object of the award (whether or not that purpose or object is expressly stated) is to be preferred to each other interpretation: Acts Interpretation Act, s 15AA. That means that a court construing the award must always identify its purpose or object and not only in the event of ambiguity. As French J recognised in City of Wanneroo at [56]: The attribution of purpose by reference to context in the wide sense does not await the discovery of an ambiguity in the text. 27 Moreover, as French J observed at [57], there is a long tradition of generous construction of awards over a strictly literal approach. 28 Of course, the search for purpose or intention is not a search for the actual purpose or intention but what it is to be inferred was intended: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 293 ALR 412; [2012] HCA 56 at [25] (French CJ and Hayne J). In other words, the question is to be resolved objectively. The case upon which Cowdroy J in Manildra Flour Mills relied for the proposition that, if the words in an award are unambiguous, there is no need to resort to the "expressed or supposed intention of the drafters of the award" (Norwest Beef Industries Limited v Australian Meat Industry Employees Union of Workers (WA Branch) (1984) 12 IR 314) was a decision of the Western Australian Industrial Appeal Court. The particular passage his Honour cited appeared in the judgment of Olney J (at 331). There, Olney J approved of a statement by the majority of the Full Bench that it was "trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties". To the extent that these cases stand for the proposition that it is impermissible or unnecessary to consider objective intention unless there is some ambiguity in the meaning of the words, they are inconsistent with High Court and other, later authority and should not be followed. 29 The question, then, is what meaning should be ascribed to cl 21.4, having regard to its context and purpose, eschewing a "trite or pedantic" approach. 30 For the reasons that follow, contrary to the submission made on behalf of Sydney Night Patrol, the learned magistrate did not err because, having found that there was no ambiguity, she did not read cl 21.4 in such a way as to exclude a roster cycle not appearing in the list in paragraph (a). 31 I start with the text. 32 The first point to make is that paragraph (b) is not elegantly worded. At first blush, it does not appear to confer an entitlement to a long break. Indeed, it does not appear to be concerned with long breaks at all, but with hours of work between long breaks. Yet, its undeniable effect is to preclude employers from requiring any employee to work more than a total of 48 hours of ordinary time without being given a long break. That is also its evident purpose. 33 Secondly, as Mr Fagir, counsel for Mr Pulleine, put it, there is nothing in the text which indicates that paragraph (b) is "interdependent [with] or subordinate to" paragraph (a). The reference to "employee" in paragraph (b) is not qualified by reference to an employee on a roster cycle mentioned in paragraph (a). On one view, at least, there is a conflict between the unqualified language of paragraph (b) and the text of paragraph (a). In Project Blue Sky, the High Court said at [70]: A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. (Footnotes omitted.) 34 So how should the apparent conflict between paragraphs (a) and (b) be reconciled? Which is the leading provision and which should give way to the other? What are the harmonious goals? 35 It is no answer to say that, as (b) follows (a), (a) necessarily prevails. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 Dixon CJ said that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". 36 Sydney Night Patrol argued that the obvious purpose of cl 21.4(a) is to give employees on roster cycles mentioned in that paragraph a long break during the roster cycle. But why should employees on a fortnightly roster be excluded? There is no logical reason that I can discern and Sydney Night Patrol was unable to suggest one. There is force in Mr Pulleine's description of the employer's approach as productive of "unfair and capricious results" - unfair in that employees may be required to work an excessive number of days consecutively without any compensation and without any right to refuse work and capricious in that there is no sensible reason why employees on a fortnightly roster cycle should be denied the protections given to employees on other roster cycles. The learned magistrate said that the result of Sydney Night Patrol's submission (that an employee on a three, four or eight weekly roster would be entitled to a long break after 48 hours but not an employee on a fortnightly roster) was "absurd". Reading paragraphs (a) and (b) together in the way the learned magistrate did, that is, by concluding (in effect) that (b) was the leading provision, avoids such a result. 37 It is a principle of statutory construction that a construction which would produce an absurd result should be avoided because such a result is unlikely to have been intended. "Absurd" in this context has a very broad meaning. It refers to "virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief": O Jones, Bennion on Statutory Interpretation, 6th ed, LexisNexis, 2013, s312; Paul Noel Dale v R (2012) 272 FLR 275; [2012] VSCA 324 at [132]; see also R (on the application of Edison First Power Ltd) v Central Valuation Officer [2003] 4 All ER 209; [2003] UKHL 20 at [116]-[117] (Lord Millett). I take the learned magistrate's use of the word "absurd" to pick up the extended meaning and, in this context, to mean anomalous or illogical. I do not consider that in coming to this view her Honour fell into appealable error. To the contrary, I am persuaded that she was right. 38 Moreover, if Sydney Night Patrol's construction were correct, it would be open to employers to circumvent the award's requirements for long breaks by rostering everyone on a fortnightly cycle. It is unlikely that such an outcome was intended. In my opinion the purpose of cl 21.4 (read in its context by reference to the other provisions in the Award and the Award as a whole) is, as Mr Pulleine submitted, to ensure that no employee is required to work an excessive number of consecutive days without an extended period away from the workplace unless the employee is paid the appropriate penalty rate. The purpose of paragraph (a) is to stipulate the minimum number of breaks for those employees on roster cycles of more than two weeks' duration. In these circumstances, it is likely that the omission from paragraph (a) of a reference to a two-week roster cycle was either an oversight or its inclusion was regarded as unnecessary. 39 The operation of an award is not irrelevant to the ascertainment of its meaning: cf. Cooper Brookes at 320. In Cooper Brookes, which was concerned with the interpretation of words in a statute, Mason and Wilson JJ said: Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute. 40 Where a court is required to choose between "two strongly competing interpretations", their Honours said (at 321): [T]he advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended. 41 In my opinion, the interpretation given to cl 21.4 by the learned magistrate is reasonably open and is to be preferred because it more closely conforms to the intention of the award. 42 I accept that there is an advantage, however, in the interpretation for which Sydney Night Patrol contends. Its interpretation would provide certainty and there is some uncertainty in how the clause would operate if the learned magistrate's interpretation is upheld. That uncertainty arises in part because there is no definition of "long break" in the award. So if employees on a fortnightly roster are to have a long break, how long should it be? And how many breaks are they entitled to? But the uncertainty may be resolved by a process of construction. The conclusion the learned magistrate reached - that a long break means a minimum of 48 continuous hours - is an obvious one, derived, no doubt from the terms of cl 21.4(a). The number of long breaks is more difficult to resolve. But that question, too, may be determined by a process of construction. It is reasonable to infer from the text of cl 21.4(a) that an employee on a two-week roster is entitled to two breaks, each of two days (48 continuous hours). Clause 21.4(a) requires employees on three-week rosters to be given three breaks, each of two days, and employees on four-week rosters four breaks, each of two days. It follows that employees on two-week rosters are to be given two breaks each of two days' duration. True it is that employees on eight-week rosters are entitled to nine (rather than eight) breaks of the same duration. I am not, however, persuaded that this minor discrepancy is sufficient to undermine the pattern established by the shorter roster cycles and that, for the shortest - the two-week cycle - the inference I have drawn is not the appropriate one. 43 There are also some important contextual reasons favouring this interpretation. 44 First, cl 21.4 should be seen against the background of the industrial struggles for shorter working hours and the declarations by the Commonwealth Arbitration Court and its successors of standard working weeks, beginning with the 48-hour week recognised in Australian Builders' Labourers' Federation v Archer (1913) 7 CAR 228 and culminating in the legislative recognition of a 38-hour week. 45 Second, in Australia most working people have long worked a five-day week and have enjoyed a two-day break on the weekend. Those who do not generally receive time off in lieu. Most, if not all, awards provide for penalty rates for working over the weekend. This award is no different. Clause 22.3 provides for the payment of a 50% penalty rate on top of the ordinary time rate for working ordinary hours on a Saturday and 100% for working on a Sunday. 46 Third, the Award is a modern award made under the Workplace Relations Act and varied from time to time thereafter. In making an award, s 576B of the Act (which appears in Div 2 of Part 10A) required that the Australian Industrial Relations Commission have regard (amongst other things) to: (f) the need to assist employees to balance their work and family responsibilities effectively, and to improve retention and participation of employees in the workplace; [and] (g) the safety, health and welfare of employees[.] 47 These considerations are reflected in the time limits for "ordinary time shifts" and the requirements for health monitoring, suitable roster arrangements and adequate breaks if those limits are to be exceeded by up to two hours (cl 21.2). They are also reflected in the requirement for breaks between successive shifts (cl 21.3) and the prohibition against working for more than 14 hours (cl 23.2). And they are reflected in the requirement for long breaks in cl 21.4. The statute treats work/life balance and safety, health and welfare for all employees as mandatory considerations in the making of a modern award. The statute does not discriminate between employees based on the length of their roster cycles. It may reasonably be inferred that in making the award neither did the Commission. 48 Indeed, Sydney Night Patrol pointed out that the Full Bench of the Commission in its award modernisation decision [[2008] AIRCFB 1000] said that it had paid "close attention" to the requirements in Part 10A of the Act. 49 Third, the Award is to be read with the National Employment Standards ("NES"), which came into effect on 1 January 2010, the same day the Award commenced. Clause 6 of the Award provides that the minimum conditions of employment for employees covered by it are contained in the NES and the Award. "NES" is defined in cl 3.1 to mean the National Employment Standards contained in ss 59-131 of the Fair Work Act. Section 62(1) provides that, unless the additional hours are reasonable, an employer must not request or require a full-time employee to work more than 38 hours a week or an employee who is not a full-time employee the lesser of 38 hours a week and the employee's ordinary hours of work in a week. Section 63 permits a modern award to contain terms providing for the averaging of hours of work over a specified period, but those hours are not to exceed the above-mentioned hours unless they are reasonable. In determining in each case whether additional hours are reasonable, s 62(3) provides that certain matters be taken into account. Those matters include: (a) any risk to employee health and safety from working the additional hours; (b) the employee's personal circumstances, including family responsibilities; (c) the needs of the workplace or enterprise in which the employee is employed; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; … 50 These provisions tend to reinforce the notion that all employees can expect to receive a long break or, as the learned magistrate put it, "a weekend", at the end of an ordinary working week or compensation (here, overtime payments) in lieu, and that that notion lies behind cl 21.4(b). 51 Fourth, s 576S of the Workplace Relations Act (compare s 153 of the Fair Work Act) provides that "[a] modern award must not include terms that discriminate against an employee because of, or for reasons including … family responsibilities". If Sydney Night Patrol's interpretation were correct, this award might discriminate indirectly against sole parents, if not all parents. In other words, while neutral on its face, cl 21.4 could have a discriminatory effect (see, for example, the discussion in Waters v Public Transport Corporation (1991) 173 CLR 349). It is highly unlikely that the Commission would have made an award which contained a term that contravened the statutory prohibition against discrimination. 52 In view of these considerations, there is no good reason to conclude that the Award was intended to deny a long break to employees working a fortnightly roster or to deprive those who work beyond the 48 hours of the appropriate overtime rate.

Conclusion 53 It follows that the appeal should be dismissed. Having regard to the constraints imposed on the Court in awarding costs in relation to a matter arising under the Fair Work Act (see s 570), there should be no order as to costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.