Toyota Motor Corp Australia Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union

Federal Court of Australia|1979-06-26|Before: Smithers ACJ, Ryan J, Finkelstein JJ, Marshall JJ

REASONS FOR JUDGMENT MOORE & MARSHALL JJ: 1 This is an appeal against a judgment of Ryan J of 19 April 1999: see (1999) 88 IR 136, declaring the true meaning of cl 17 of the Toyota Australia Vehicle Industry Award 1988 ("the Award") in an application under s 413 of the Workplace Relations Act 1996 (Cth) ("the Act") by the Automotive Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union"). The appeal is brought by Toyota Motor Corporation Australia Ltd ("Toyota"). 2 The application before the learned primary judge sought the following relief: "1. A Declaration and Orders that, on its true meaning and intent, sub-Clause 17(d) of the Toyota Australia Vehicle Industry Award 1988 applies to an afternoon shift worked in the circumstances set out in Paragraph 5 of the accompanying Affidavit. 2. A Declaration and Orders that, on its true meaning and intent, sub-Clause 17(e) of the Toyota Australian (sic) Vehicle Industry Award 1988 does not apply to an afternoon shift worked in the circumstances set out in Paragraph 5 of the accompanying Affidavit. …" 3 The evidence before the primary judge consisted of an affidavit of Paul DiFelice, the Regional Assistant Secretary of the Victorian region of the Vehicle Division of the Union. Paragraph 5 of that affidavit was in the following terms: "A dispute has arisen between the applicant and the respondent as to the proper interpretation of sub-Clauses 17(d) and 17(e) of the Award in the following circumstances. Where a public holiday, for example, Anzac Day, falls during a working week, no shifts are rostered on that day. Employees working on the day and afternoon shifts are granted the holiday without deduction of pay, under Clause 21 of the Award. However, employees are rostered to work the afternoon shift which starts at 5.30 p.m. on the day preceding the public holiday and finishes at 2.00 a.m. on the holiday. Those employees may also work overtime on that afternoon shift." 4 Clause 17 of the Award concerns holiday work and rates of pay for holiday work. The factual background against which the application for interpretation of cl 17 was brought was described by the primary judge as follows (supra, at 137): "[Toyota] employs its manufacturing workforce on two shifts from Monday to Friday each week. The day shifts start at 7.00 am and finishes at 3.30 pm and the afternoon shift starts at 5.30 pm and finishes at 2.00 am on the following day. Employees on both shifts are regularly required to work overtime. When a public holiday falls during a working week, employees are not required to work on either the day shift which would begin and finish on that day or the afternoon shift which would begin on that day and finish early in the morning of the following day. However, afternoon shift employees are rostered and required to commence work at 5.30 pm on the day preceding the holiday so that their shift intrudes by two hours into the day of the public holiday." The issue raised in the application was whether an employee on an afternoon shift which concludes two hours into a public holiday is entitled to be paid two and one half times the ordinary rate of pay for work on that shift. In order to understand the competing constructions of cl 17 it is necessary to set out various provisions in the Award. Clause 21 entitles an employee to take specified public holidays without deduction of pay. It provides: " 21-HOLIDAYS (a) Employees shall be granted the following holidays without deduction of pay: New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day or Eight Hours' Day, Anzac Day, Queen's Birthday, Melbourne Cup Day (Victoria only), Christmas Day, Boxing Day, August Bank Holiday (New South Wales only), Exhibition Day (Queensland only), The third Monday in May (South Australia only) or such other day as is generally observed in a locality as a substitute for any of the said days, respectively. Provided that: (i) In South Australia, Commemoration Day shall be observed as a holiday in lieu of Boxing Day. (b) Provided that when any of the holidays listed above falls on a Saturday or Sunday (with the exception of Easter Saturday) such holiday shall be observed on the next succeeding Monday and when Boxing Day falls on a Sunday or a Monday the holiday will be observed on the succeeding Tuesday. In each case the substituted day shall be a holiday without deduction of pay and the day for which it is substituted shall not be a holiday. By agreement between the Company and the majority of its employees in a particular workplace, other days may be substituted for the said days or any of them as to that workplace. (c) Where, in a State or Territory or locality within a State or Territory, an additional public holiday is proclaimed or gazetted by the authority of the Commonwealth Government or of a State or Territory Government and such proclaimed or gazetted holiday is to be observed generally by persons throughout the State or Territory or locality thereof, other than by those covered by Federal awards, or when such a proclaimed or gazetted day is, by any required judicial or administrative order, to be observed, then such day shall be deemed to be a holiday for the purposes of this Award, for employees covered by this Award who are employed in the State, Territory or locality in respect of which the holiday has been proclaimed or ordered as required. (d) (i) Provided the local Secretary or Branch Secretary of The Vehicle Builders Employees Federation of Australia shall have given written or printed notice of the intention of the Federation to hold a trade union picnic, the day such picnic is held shall be a local holiday (without pay if such day is a day other than one mentioned in subclauses (a), (b) or (c) hereof), in the city or town where the picnic is held. (ii) The notice referred to in paragraph (i) hereof shall be sent by prepaid letter to the Company not less than three weeks nor more than six weeks prior to the date on which the picnic is to be held. (e) Where an employee is absent from his or her employment on the working day before or the working day after a holiday referred to in subclauses (a), (b) or (c) hereof without reasonable excuse (proof whereof shall lie upon the employee) or without the consent of the Company, the employee shall not be entitled to payment for such holiday. (f) An employee whose rostered off shift falls on a holiday referred to in subclauses (a), (b) or (c) hereof shall, unless that day is a Saturday or a Sunday, be paid for that day at his ordinary rate." If an employee is required to work on a public holiday then the manner in which the employee is to be paid is prescribed by cl 17. It provides: "17 - HOLIDAY WORK AND RATES THEREFOR (a) An employee who works on a holiday shall be paid therefor at the rate of two and one-half times the ordinary rate. (b) A shift commencing before 10.45p.m. on a holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate. (c) Except as provided in subclause (e) hereof, a shift commencing at 10.45p.m. or between 10.45p.m. and midnight shall not be regarded as a holiday shift and work done thereon shall not entitle an employee to the holiday rate. (d) Except as provided in subclause (e) hereof, a shift commencing before midnight on the day preceding a holiday and extending into the holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate. (e) Notwithstanding subclauses (c) and (d) hereof, where an employee is rostered for a shift which terminates on a holiday and a shift which commences on the same holiday, one shift only shall be regarded as the holiday shift and such shift shall be the one, the major portion of which falls on the holiday. (f) An employee, other than on shift work, required to work on a holiday shall be paid for a minimum of four hours' work at the appropriate rate. Crib Time (g) (i) An employee working on a holiday for more than nine and one-half hours shall, at the end of eight hours, be allowed a crib break of twenty minutes which shall be paid for at ordinary rates. (ii) An employee working on a holiday for more than eight hours shall be allowed a crib break of twenty minutes without deduction of pay after each four hours worked beyond eight hours, providing the employee continued to work after such crib break. (iii) The Company and the employee may agree to a variation of this subclause to meet the circumstances of the work in hand, provided that the Company shall not be required to make any payment in respect of any time allowed in excess of twenty minutes. (h) (i) An employee required to work on a holiday for more than ten hours without being notified on the previous day or earlier that the employee will be so required to work shall either be supplied with a meal by the Company or paid $6.60 for each meal. (ii) Unless the Company advises an employee working on a holiday on the previous day or earlier that the amount of time to be worked on the holiday will necessitate the partaking of a second or subsequent meal (as the case may be), the Company shall provide such second and/or subsequent meals or make payment in lieu thereof as prescribed in paragraph (i) hereof. (iii) If an employee pursuant to notice has provided a meal or meals and is not required to work less than the amount advised, the employee shall be paid as prescribed in paragraph (i) hereof, for meals which he/she has provided but which have become superfluous. (i) An employee (other than a casual employee) not engaged on continuous work, who works on a holiday and (except for meal breaks) immediately thereafter continues such work shall, on being relieved from duty, be entitled to be absent until he/she has had ten consecutive hours off duty, without deduction of pay for ordinary time of duty occurring during such absence. (j) For the purpose of this clause "holiday" means a day referred to in clause 21 of this Award. (k) Payments prescribed by this clause shall stand alone and shall not be included for any other purposes of this Award." 5 It can seen that subcl 17(j) declares that the word "holiday" in cl 17 is to be treated as a reference to a day identified in cl 21. Ordinarily that would be one of the days identified in subcl 21(a). The Award provides for shift work and cl 13 specifies hours of work for shift workers engaged on either continuous work shifts or shifts other than continuous work shifts. Subcl 13(d) deals with the manner in which the hours of a shift worker are to be identified. It provides: " Commencing and finishing times (d) Shift rosters shall specify the commencing and finishing times of ordinary working hours of the respective shifts." 6 Rosters are also dealt with in another industrial instrument, the Toyota Australia Workplace Agreement (Altona) 1995, which provides: "25.13 Rosters will be prepared three months in advance and will take into account- · the commitment that all employees have access to four of the rostered days immediately prior to, or subsequent to weekends; and · the ability for employees to exchange rostered days with other employees within the same group by mutual agreement provided the exchange is endorsed by supervision taking into account operating requirements." 7 The primary judge concluded that cl 17, properly construed, entitled an afternoon shift worker, who worked a shift that commenced in the afternoon preceding a public holiday but which concluded in the early morning of the public holiday, to payment for that shift at a rate of two and one half times the ordinary rate of pay. The employee was entitled to payment at that rate even if the employee did not work an afternoon shift that would have commenced in the afternoon of the public holiday and was paid ordinary pay as if it had been worked. The primary judge said (supra, at 139): "In my view, the primary function of cl 17, read as a whole, as indicated by subcl (a), is twofold. In its first aspect it is to discourage the employer from requiring work to be done on public holidays. Secondly, it is to provide correspondingly generous penalty rates for employees who are required, contrary to the policy evinced by the Award, to work on those days. The following subcll (b), (c) and (d) effectuate that function by defining what shifts are to be regarded as requiring the performance of work on a public holiday. Thus, subcll (b) and (c) exclude the liability to pay penalty rates when no more than the first one and a quarter hours of a shift are required to be worked on a public holiday. Somewhat curiously, if any time at all is required to be worked at the end of a shift beginning before a public holiday where the shift intrudes into a public holiday, the penalty rate is attracted for the whole shift; (subcl (d)). Subclause (e) is framed, I consider, to prevent an employee from receiving penalty rates for each of two successive shifts which intrude respectively into the beginning and the end of a public holiday. Only the shift, the major portion of which so intrudes, is to attract the penalty rate of double time and a half. In other words, the scheme of the early part of cl 17, as I perceive it, is that employees either get the whole day off work on a public holiday or receive two and a half times the ordinary rate." 8 In the proceedings before the primary judge, attention was not drawn to the judgment in Jarrad v Nissan Motor Manufacturing Co. (Australia) Ltd (1979) (unreported, Federal Court, 26 June 1979, Smithers ACJ). Smithers ACJ was called upon to construe the Nissan Australia Vehicle Industry Award 1976 ("the Nissan Award") in proceedings brought under s 119 of the Conciliation and Arbitration Act 1904 (Cth) seeking a penalty for contravention of that award. In those proceedings there was an agreed statement of facts concerning the entitlements of shift workers working for Nissan Motor Manufacturing Co. (Australia) Ltd ("Nissan") on 23 and 24 March 1978 and 24 and 25 April 1978. The following is a summary of the salient agreed facts. Good Friday fell on 24 March 1978 and 25 April 1978 was Anzac Day. Over a period which included both days, the relevant employees were rostered for duty on an afternoon shift commencing at 6 pm on each weekday and concluding at 2.10 am the following morning. The employees in question were not required to work during the shifts commencing at 6pm on 24 March 1978 and at 6pm on 25 April 1978 having been granted such shifts as the Good Friday and Anzac Day holidays without deduction of pay. The employees resumed work on the next rostered shift, namely at 6 pm on 27 March 1978 and at 6pm on 26 April 1978. No additional payment was made under cl 20 of the Nissan Award, the equivalent of cl 17 of the Award in these proceedings, for the shifts which concluded at 2.10 am on 24 March 1978 and 25 April 1978. 9 Smithers ACJ viewed the provisions of the Nissan Award as operating in a way consistent with the way Nissan had remunerated its employees. That is, the shift workers whose shift concluded early in the morning of each of the public holidays were not entitled to additional payments for that shift. His Honour said (supra, at 5): "Clause 20 is obviously intended to lay down guidelines with respect to the implementation, in respect of shift workers, of the requirements of clause 23 [a provision equivalent to cl 21 of the Award in the present proceedings] that the employees shall be granted a holiday on each of certain specified days. Such guidelines were essential because particular shifts may and apparently frequently do extend from one day into the next. For a day worker it is clear that he is to be granted the day off. That means in substance that he will not work during the hours in respect of which he was rostered on for that day but will be paid ordinary rates in respect of those hours. The day of a day worker does not extend beyond midnight on any particular day. He is to be granted the day off and if he is required to work on that day clause 20(a) will entitle him to payment at two and one-half times the ordinary rate. Similarly the shift worker must be allowed a day off. The obvious way to do this is to designate a shift, all or part of the duration of which falls in the holiday, as the shift in respect of which the holiday entitlements shall apply. Once it is identified the employer's obligation is to pay ordinary rates for that shift although no work is done or to pay two and one-half times his ordinary rate if the employee is required to work therein. That clause 20 contemplates that the holiday pay of a shift worker who takes his holiday will be for one shift is supported by clause 23(e). Thereby the shift worker whose rostered off shift falls on a holiday shall, unless it falls on a Saturday or Sunday, be paid "for that day" at his ordinary rate. In other words his rostered shift for that day, although a rostered off shift, is his paid holiday. I would also note, as Mr Brown, counsel for the respondent contended, and I think correctly, that there was considerable significance in that clause 20(e) is, in contrast with sub-clauses (b), (c) and (d), silent as to whether work is done on any particular shift and concerns itself only with whether or not the relevant employee was rostered for a particular shift." 10 Clauses 20 and 23 in the Nissan Award were in terms virtually identical to cll 17 and 21 respectively of the Award in these proceedings. 11 In this appeal the submissions of Toyota accorded substantially with the reasons of Smithers ACJ while the Union supported the interpretation of the primary judge. 12 The Award creates in cl 21 a prima facie entitlement to a day off work on days specified as public holidays for which an employee will be paid but, in the event that the employee is required to work on that day, the employee will be compensated by additional payments. The approach adopted by Smithers ACJ was to treat this entitlement as an entitlement not to attend for work for a period during which the employee would ordinarily work. The primary judge treated the entitlement as being to a day off which was a period of twenty four hours. 13 Wewill generally refer to the clauses considered by Smithers ACJ by reference to the numbering used in the Award in these proceedings. In our opinion there is no warrant for treating, as Smithers ACJ did as a starting point in construing cl 17, the entitlement conferred by cl 21 to a period off as limited, for a day worker, to the period the employee would otherwise be likely to have worked. The language of cl 21 indicates fairly clearly that the entitlement relates to the entire day and not just that part of it that otherwise would have been worked even if the practical effect of the operation of cl 21 is that the day worker is entitled to be absent from work for that period. The day worker is excused from working at any time that day. There is no reason to treat the position of a shift worker as any different. That is, a shift worker is entitled to be absent from work for the entire period of 24 hours constituted by the days identified in cl 21. At least seven of the days identified in subcl 17(1) are days of some religious (Good Friday, Easter Saturday, Easter Monday and Christmas Day) or cultural (Australia Day, Anzac Day and Queen's Birthday) significance. While cl 17 may be intended, in part, to give an employee a respite from working on these days it can also be viewed as a recognition, at least as to some of the days, of the significance of the days themselves. It would be consistent with that view of the purpose of cl 17 to treat the clause, consistent with the language used, as conferring on an employee an entitlement to take the entire day of 24 hours as a holiday. 14 However the entitlement to the day off is not absolute. A qualification to the entitlement is implied by cl 17. Indeed subcll 17(f) and (h) expressly refer to a worker, other than a shift worker, being required to work on a holiday. Toyota can, notwithstanding the entitlement created by cl 21, require an employee to work on a holiday but if that occurs payment is to be made in accordance with cl 17. If additional payments are made under cl 17 they are generally made at a rate of two and one half times the ordinary rate. Wewill, for convenience, refer to that as the "holiday rate". 15 It is clear from subcl 17(j) that each of the days referred to in cl 21 are to be treated as a holiday for the purposes of cl 17. That is, any one of the 24 hour periods constituting the days nominated in cl 21 is a holiday for the purposes of cl 17. The following is apparent from the language and structure of cl 17. Subclause 17(a) creates an entitlement to payment at the holiday rate for employees, whenever they work, who work on a holiday unless their circumstances are dealt with in a particular provision in the remainder of cl 17. Subclauses 17(b), (c) and (d) identify shifts which are or are not to be treated as a holiday shift. Those subclauses are drafted on the assumption that it is only for shift work worked on a holiday shift that a shift worker is paid the holiday rate. Subclause 17(b) declares that a shift commencing before 10.45pm on a holiday is a holiday shift. A shift worker who works on such a shift is entitled to be paid at the holiday rate. This extends the operation of subcl 17(a) by providing for the payment of the holiday rate for some work that might not be done on the holiday. Subclause 17(c) is to opposite effect. While that clause does not speak of a shift commencing on a holiday, it is relatively clear that subcll 17(b) and 17(c) are intended to be complementary and subcl 17(c) should be read as if the words "on a holiday" appear after the word "midnight". Thus subcl 17(c) declares that a shift commencing on or after 10.45pm but before midnight on a holiday is not to be treated as a holiday shift and work done on that shift does not attract the holiday rate. Subclause 17(c) modifies the operation of subcl 17(a) in relation to the maximum period of one and a quarter hours that might be worked in the holiday. It is not clear why 10.45pm is chosen as the commencing time at which, for the purposes of attracting a special rate of pay, the nature of the shift changes though 10.45pm as a commencing time is used in cl 16 to define what is or is not a shift worked on a Sunday. 16 Subclause 17(c) is subject to subcl 17(e). So is subcl 17(d) which declares that a shift commencing before a holiday but extending into the holiday is a holiday shift. Work on such a shift attracts the holiday rate. Again the operation of subcl 17(a) is extended so that some work not done on a holiday is paid for at the holiday rate. Subclause 17(e) provides a mechanism for identifying which shift is a holiday shift when two shifts (or parts of them) are worked on a holiday. Subclause 17(e) does not itself confer or deny an entitlement to payment at the holiday rate but modifies the operation of subcl 17(c) which denies an entitlement to payment (subcl 17(a)) and also modifies the operation of subcl 17(d) which creates an entitlement to a payment. The operation of subcl 17(c) is modified by subcl 17(e) in this way. A shift commencing between 10.45pm and midnight is not to be treated as a holiday shift, if worked. But if that shift is one of two shifts (or parts of shifts) worked on the holiday and is the longer (in terms of time actually worked on the holiday itself), then that shift is to be treated as the holiday shift and work on it is, by clear implication, paid at the holiday rate. The operation of subcl 17(d) is modified by subcl 17(e) in this way. When a shift commencing before the holiday but continuing into the holiday is one of two shifts worked (in whole or in part) on the holiday, that shift is to be treated as the holiday shift only if it is the longer of the two shifts (in terms of the time worked on the holiday itself). If it is not the longer then it is not to be treated as the holiday shift notwithstanding subcl 17(c). Work on that shift is, by clear implication, not to be paid at the holiday rate. Subclause 17(e) operates to ensure that if an employee works on a shift which finishes on a holiday and again works on the next shift which starts on the holiday only one working shift is remunerated at the holiday rate. 17 The preceding analysis of cl 17 is based on the language and structure of the clause when read with cl 21. It is consistent with the conclusion of the primary judge and the preferable interpretation having regard to the natural and ordinary meaning of the relevant provisions. See City of Wanneroo v Holmes (1989) 30 IR 362 at 378. It is true that it would result in an afternoon shift worker who works a shift concluding in the morning of the holiday being paid the holiday rate for the entire shift even if the shift worker received as a paid break from work the time that would otherwise be worked in the afternoon shift commencing on the public holiday. It is also true that a shift worker who worked on a shift commencing after 10.45 pm on the holiday would not receive payment at the holiday rate for a maximum of one and a quarter hours worked on a holiday even if no other work was performed on the public holiday. This latter effect of cl 17 tends against a conclusion that the clear purpose of the clause is to recompense an employee for working at any time on a public holiday which would explain the payment of holiday pay for the hours worked into the early morning of a holiday (as well as the remainder of the shift worked on the evening of the preceding day) on the construction of cl 17 advanced by the Union. However this anomaly does not, in ouropinion, justify a construction of cl 21 and consequently cl 17, that treats the entitlement conferred by cl 21 as limited to a period other than the whole day. 18 Nor does one further anomaly identified by Toyota justify a construction of cl 17 that is contrary to what we view as the comparatively clear language of both that clause and cl 21. Toyota submitted that if it insisted that afternoon shift workers work on both the afternoon shift commencing on the day preceding the holiday but continuing into the afternoon shift commencing on the holiday then the cost to it would be the same as allowing the afternoon shift workers to absent themselves from the afternoon shift commencing on the holiday. 19 Even so, the Award creates a clear entitlement to the holiday and this anomaly simply reflects the way cl 17 is framed to provide that a penalty is paid by Toyota if, with one exception mentioned earlier, it requires its employees to work on any part of that holiday. 20 Toyota initially sought to contend that Jarrad constituted evidence of a settled interpretation of a provision substantially the same as cl 17 of the Award that should be recognised and adopted by this Full Court in this appeal. However the judgment of Smithers ACJ was ultimately not relied on in this way but rather only relied on as a judgment of the Court which demonstrated an approach to the interpretation of a like provision which differed from the approach of the primary judge. In the absence of detailed and reasoned

submissions, we are not prepared to determine whether the law which applies to commercial agreements referred to by Finkelstein J applies to the interpretation of industrial awards which are often the product of arbitration and not agreement and are amenable to variation: see Re Brack; Ex p Operative Painters and Decorators Union of Australia (1984) 51 ALR 731; though we have reservations about whether concepts concerning commercial agreements are apt to apply, without qualification, to the interpretation of industrial awards. This is especially so in this case where what is suggested to be a settled interpretation appears not to have been known to the parties at the time of the hearing before the primary judge and, one might reasonably infer, even perhaps not known when the Award was made. 21 The appeal should be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore and the Honourable Justice Marshall.

On appeal from a single justice of the Federal Court

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION

FINKELSTEIN J: 22 There is a long standing dispute between the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union") and Toyota Motor Corporation Australia Ltd ("Toyota") as regards when an employee is entitled to be paid his holiday rate. The resolution of this dispute depends upon the proper construction of cl 17 of the Toyota Australia Vehicle Industry Award 1988. The two cases that have considered the meaning of this, or a similar clause, are in conflict. Accordingly it is necessary to look at the question afresh. 23 Toyota employs day workers and shift workers. The award provides that the ordinary hours of work of a day worker shall be an average of 38 hours per week to be worked in five days, Monday to Friday inclusive, of 8 hours each: sub-cll 11(a) and (b)(i). In the case of non-clerical employees, these hours are to be worked between 6.00am and 6.00pm unless otherwise agreed and, in the absence of agreement, unless seven days notice is given for a different spread of hours: sub-cll 11(b)(ii) and (iii). The hours of duty for clerical workers are between 8.00am and 6.00pm subject to certain immaterial exceptions: sub-cl 11(b)(v). 24 There are two types of shift worker, those who work continuous work shifts and those who work other than continuous work shifts. Continuous work is defined to mean work carried on with consecutive shifts or employees throughout 24 hours of each of at least six consecutive days: sub-cl 13(a)(i). The ordinary hours of work for an employee on continuous work shifts are to average 38 hours per week: sub-cl 13(a)(iii). An employee working on continuous work shifts may be required to work up to six shifts per week with no shift exceeding 8 hours (sub-cl 13(a)(ii)) and shall not be required to work more than one shift in each 24 hours except at a regular change-over of shifts: sub-cl 13(a)(iv). The non-continuous shift worker is to work an average of 38 hours per week and is not required to work more than one shift in each 24 hours except at a regular change-over of shifts: sub-cl 13(b). 25 The award makes provision for three shifts: an early morning shift which commences after 4.00am and before 6.00am, an afternoon shift which commences not later than 6.00pm and a night shift which commences after 6.00pm: see sub-cl 15(a). In accordance with these definitions, both an afternoon shift and a night shift can begin on one day and end on the following day. For clerical workers, the afternoon shift and night shift are defined differently: see sub-cl 15(h). Only the night shift can extend into the following day. The shift roster must specify the commencement and finishing time of each shift: sub-cl 13(d). 26 The reason for distinguishing shifts is that different penalty rates are paid to shift workers dependent upon the shift worked. The rates are found in cl 15. Only two need be mentioned: first, the rate that is payable for work performed between midnight on Friday and midnight on Saturday is time and one quarter: sub-cl 15(e); second, where a shift worker's normal 38 hour roster requires the employee to work an afternoon, night or early morning shift on a Saturday, Sunday or public holiday, the employee is to be paid an additional sum for each such shift: sub-cl 15(f). 27 According to the award, every employee is entitled to paid holidays. Sub-clause 21(a) provides that "[e]mployees shall be granted [specified] holidays without deduction of pay." The holidays are then set out. If a holiday, other than Easter Saturday, falls on a Saturday or Sunday then it is to be taken on the next Monday, except in the case of Boxing Day which, if it falls on a Sunday or Monday, is to be observed on the next Tuesday: sub-cl 21(b). What is contemplated is that a worker, who would ordinarily work on a weekday (Monday through Friday), which by reason of sub-cl 21(b) is the day upon which a holiday is to be observed, will not be required to work on that day, but will nevertheless be paid his wage as if he had worked on the holiday. The day worker who works Monday through Friday can take the benefit of sub-cl 21(a) as can the shift worker who is rostered to work on a holiday; here I refer to a shift worker whose spread of hours falls within a day. What of the shift worker who has not been rostered to work on the weekday upon which a holiday is to be observed? He cannot be granted the holiday without deduction of pay, because he is not scheduled to work on the holiday and will receive no pay for that day. Special provision is made for this worker by sub-cl 21(f) which provides that "an employee whose rostered off shift falls on a holiday … shall, unless that day is a Saturday or a Sunday, be paid for that day at his ordinary rate." Thus, although he cannot receive the holiday without deduction of pay, to ensure that he receives an equivalent benefit, the rostered off shift worker is actually paid for the holiday. 28 Workers on continuous work shifts can be required to work six consecutive shifts. It is likely that these workers will work a shift which falls, or part of which falls, on a Saturday or Sunday and in some cases on both days. When an employee "works on a Sunday the work done shall be paid for at the rate of two and one-half times the ordinary rate": sub-cl 16(a). No difficulty arises in the application of this subclause to a day worker who elects to work on Sunday if work is available or to a shift worker who is rostered to work a shift that falls wholly on a Sunday. But there are shift workers whose shift falls to be worked partly on a Sunday and partly on the day preceding or the day following the Sunday. Speaking strictly, sub-cl 16(a) seems only to apply to work that is performed on the Sunday. To meet this difficulty sub-cll 16(b) and (d) define those shifts, where work is done partly on a Sunday and partly on the day before or the day after the Sunday, that are to be treated as a Sunday shift in respect of which all the work done is to be paid at the Sunday rate. Not all Sunday work will attract the Sunday rate. Sub-clause 16(c) deals with a shift where some work is performed on a Sunday yet none of the work attracts the Sunday rate. Sub-clauses 16(b) to (d) read: "(b) A shift commencing before 10.45pm on a Sunday shall be regarded as a Sunday shift and all work done thereon shall be paid for at the rate of double ordinary time. (c) A shift commencing at 10.45pm or between 10.45pm and midnight on a Sunday shall not be regarded as a Sunday shift and all work done thereon shall not entitle an employee to the Sunday rate. (d) A shift commencing before midnight on Saturday and extending into Sunday shall be regarded as a Sunday shift and all work done thereon shall be paid for at the rate of double time." 29 One effect of these provisions should be noted. It is possible that a worker may be employed on two Sunday shifts and be paid the Sunday rate for each shift. For example, if a worker commences a shift on Saturday that extends into Sunday and also works a shift that commences before 10.45pm on the Sunday, the Sunday rate is payable for each shift. Two successive afternoon shifts might produce this result, if each shift commences after 4.00pm. 30 I can now turn to cl 17. So far as is relevant it provides: "(a) An employee who works on a holiday shall be paid therefor at the rate of two and one-half times the ordinary rate. (b) A shift commencing before 10.45pm on a holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate. (c) Except as provided in subclause (e) hereof, a shift commencing at 10.45pm or between 10.45pm and midnight shall not be regarded as a holiday shift and work done thereon shall not entitle an employee to the holiday rate. (d) Except as provided in subclause (e) hereof, a shift commencing before midnight on the day preceding a holiday and extending into the holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate. (e) Notwithstanding subclauses (c) and (d) hereof, where an employee is rostered for a shift which terminates on a holiday and a shift which commences on the same holiday, one shift only shall be regarded as the holiday shift and such shift shall be the one, the major portion of which falls on the holiday." 31 It is instructive to compare cl 17 with cl 16. Before doing so, it should be mentioned that it was common ground that certain words were inadvertently omitted from sub-cl 17(c). The phrase "on a holiday" should appear immediately following the word "midnight". If sub-cl 17(c) is not read with these words included it would have no sensible operation. That the omission was inadvertent is clear when regard is had to sub-cl 16(c). There the equivalent phrase is "on a Sunday". 32 Clause 17 follows the structure of cl 16. Sub-clause 17(a) is concerned principally with the position of a day worker who will work on a holiday, but it might also cover the case of the shift worker whose shift falls to be worked wholly on a holiday as does sub-cl 16(a). An example would be an employee who works an early morning shift. These employees are to receive the holiday rate for all work performed on the holiday. Sub-clauses 17(b) to (d) are concerned with the shift worker whose shift is worked partly on a holiday. These subclauses define which shift, when work is performed partly on a holiday, is or is not a holiday shift. In the case of a holiday shift all work, whether performed on the holiday or not, attracts the holiday rate. Where the shift is not a holiday shift, none of the work is to be paid at the holiday rate. 33 There is an important difference between cll 16 and 17. I have mentioned that it is possible for a worker to work on two Sunday shifts and be paid the Sunday rate for each shift. Clause 17 seeks to avoid this result with regard to the holiday rate although it is not clear whether it does so in all circumstances. 34 The mechanism employed to prevent more than one shift being treated as a holiday shift is found in sub-cl 17(e). This subclause has been drafted on the assumption that the only occasion upon which a shift worker would work two holiday shifts each attracting the holiday rate is when at least one shift falls only partly on the holiday. For this reason it is the shift "the major portion of which falls on the holiday" that is the holiday shift. It may be theoretically possible, however, for a worker to be rostered for two shifts each commencing and ending on the same holiday. This could only occur, if at all, on a change-over of shifts. Where both shifts commence before 10.45pm, as they must in the example given, each would be a holiday shift demanding the payment of the holiday rate by reason of sub-cl 17(b). It does not seem that sub-cl 17(e) would avoid that result. However, this is an issue that need not be determined. 35 Sub-clause 17(e) has two functions. First, it limits to one the number of shifts that can be treated as the holiday shift: it provides that "one shift only shall be regarded as the holiday shift". Second, it specifies which of the possible competing shifts is to be the holiday shift: it is "the one, the major portion of which falls on the holiday". The sub-clause only comes into operation if the two conditions therein mentioned are satisfied. The first condition is that an employee is rostered for a shift which terminates on a holiday and the second condition is that the same employee is also rostered for a shift which commences on that holiday. 36 Before turning to consider further the meaning and effect of sub-cl 17(e), it is necessary to set out the nature of the dispute between the parties. Any declaration that is made should resolve that dispute. It is not the function of a court merely to give advice. Nor should a court give speculative opinions on hypothetical questions. The "facts" are to be found stated in two short paragraphs of an affidavit sworn by the assistant secretary of the Union. Those paragraphs read: "The respondent operates two shifts, a day shift and an afternoon shift, Monday to Friday. The day shift starts at 7.00am and finishes at 3.30pm, and the afternoon shift starts at 5.30pm and finishes at 2.00am the following day. Employees working on both shifts regularly work overtime. … Where a public holiday, for example, Anzac Day, falls during a working week, no shifts are rostered on that day. Employees working on the day and afternoon shifts are granted the holiday without deduction of pay, under Clause 21 of the Award. However, employees are rostered to work the afternoon shift which starts at 5.30pm on the day preceding the public holiday and finishes at 2.00am on the holiday. Those employees may also work overtime on that afternoon shift." 37 It is not clear what this evidence means. The assistant secretary says that if a holiday falls during the working week (he seems not to be referring to a holiday that falls on a Saturday or Sunday that must be observed during the working week) no shifts are rostered on that day. So far so good. Then the assistant secretary says that "employees working on the day and afternoon shifts are granted the holiday". Does this mean that workers who would ordinarily be rostered to work the day shift or afternoon shift that commences on the holiday are not rostered to work on that day, because it is a holiday? This is certainly the natural meaning of the evidence given. 38 However, this was not the meaning adopted by the trial judge or by Toyota during the hearing below. They took the assistant secretary to be saying that day shift and afternoon shift workers had been rostered to work a shift commencing on the holiday, but by reason of cl 21 had not been required to work that shift. On appeal the Union also adopted this construction of the evidence at least in respect of certain of its submissions. 39 It is unfortunate when the dispute that brings the parties to court is not stated with precision. Generally, it is only when the facts are known, or if they are in contention when the trial judge has made a finding in respect of them, that a court can declare what is to be the proper construction of an instrument which can then be applied to the facts. In this way the Court will not go beyond what is necessary for its decision. Be that as it may, I do not think that the Court is precluded from making an appropriate declaration, that is to say a declaration that does not extend to some hypothetical dispute. 40 The question that has arisen, the answer to which depends upon the proper construction of sub-cl 17(e), is whether the afternoon shift that commences on the day before a holiday and extends into the holiday is a holiday shift in respect of which the holiday rate is payable. The Union contends that it is. Toyota argues that when a worker is granted a holiday by not being required to work the afternoon shift on the holiday, and is paid for that shift, sub-cl 17(e) applies so that the employee who works the afternoon shift on the preceding day does not work a holiday shift. 41 The answer to the question, and the proper construction of sub-cl 17(e) should take account of the payment of holiday pay, and the payment of the holiday rate, to employees who do not work shifts that are subject to regulation or potential regulation by sub-cl 17(e). If a particular pattern for taking paid holidays, or for the payment of the holiday rate, is disclosed as regards those employees then, prima facie at least, the same pattern should be applied to shift workers whose holiday shifts are regulated by sub-cl 17(e), in so far as the language of that clause permits. 42 The case of the day worker is straightforward. The day worker is required to work Monday through Friday. Every holiday, apart from Easter Sunday, either falls or is to be taken on one of those days. Accordingly, a day worker will not be required to work his normal 8 hour day on a holiday, but he must receive his pay for that day. The amount he will receive is the amount that he would have received had he worked his 8 hours. On the other hand, if the day worker in fact works on a holiday he will be paid the holiday rate for the hours actually worked, subject to sub-cl 17(f) which provides that the employee shall be paid for a minimum of 4 hours work. Thus, if a day worker performs any work on a holiday he will receive at least 10 hours' pay at his ordinary rate. 43 The position of the shift worker is more complex. The award assumes, as common sense would suggest, that every shift worker will work in accordance with a roster that is prepared in advance: see eg sub-cll 13(d), 15(f) and 21(f). (By a certified agreement made subsequent to the award, express provision is made for rosters to be prepared three months in advance: see sub-cl 25.13). The roster will specify the shifts that the shift worker is required to work and the spread of hours for those shifts. The roster may require a shift worker to work on a Saturday, Sunday or a public holiday: sub-cl 15(f). For an employee working continuous (that is six consecutive days) work shifts the roster would normally specify that a shift be worked on one or more of those days. However, a shift worker on continuous work shifts need not be rostered to work on a holiday especially when the holiday falls on the day following the completion of six days of shift work. Non-continuous shift workers may, but need not be, rostered for work on a Saturday, Sunday or a holiday. 44 As regards holiday work, the shift worker who works a shift that does not extend beyond the day (eg the early morning shift) is in the same position as the day worker. If he is rostered to work and works on a holiday (I need not decide whether he may be required to work on that day) he will be paid the holiday rate: that is the effect of sub-cll 17(a) or 17(b). If the shift worker is not rostered to work on a holiday or if he is rostered to work on that day, but is not required by Toyota to carry out any duties, then the shift worker must nevertheless be paid for the day. Where the worker is not rostered to work a shift on the holiday, that is where the worker has been rostered off, the entitlement to be paid for the day arises from sub-cl 21(f). Where the shift worker has been rostered to work on the holiday, but is not required to perform any work the entitlement to be paid for the holiday will arise from sub-cl 21(a). The shift worker who is rostered off and the shift worker who is not required to work his roster, will receive the same entitlement for the holiday: in one case because the worker will receive a day's pay and in the other case because there is no deduction of pay. The result is that the worker is paid or retains 8 hours' pay although the 8 hours are not worked. 45 It is now necessary to consider the shift worker who works a shift that commences on the day before the holiday and terminates on the holiday. Those workers may be divided into two groups: shift workers who are not rostered to work a shift that commences on the holiday and those who are rostered to commence a shift on the holiday. 46 With regard to the first group, one possible consequence of cl 17 is that having defined the shift that commences on the day before the holiday as the holiday shift (sub-cl 17(d)) the result is that this is the shift by reference to which the employee's holiday entitlement is to be determined. Accordingly, if the employee wishes to take the holiday he will not work the shift and Toyota cannot deduct any pay though no work is performed. In this way the employee will have been granted a paid holiday. If the shift is worked the holiday rate must be paid. On this analysis a shift worker in the first group is put in the same position as regards holiday work as the day worker and the shift worker whose shift falls within a day. Each of them will receive full pay for their respective weekly periods of employment; five days in the case of the day worker who only works four days; six consecutive shifts for the shift worker who only works five shifts. Each will also receive the holiday rate if a holiday or a holiday shift is worked. 47 This analysis assumes that a shift worker in the first group is not entitled to receive any further pay in consequence of not having been rostered to commence a shift on the holiday. Is this assumption correct? The only basis upon which pay could be claimed is sub-cl 21(f). That clause applies to an employee "whose rostered off shift falls on a holiday" other than Saturday or Sunday and requires the shift worker to be paid for that day. Here the question is whether an employee who is rostered to work on a shift that extends into the holiday, but is not rostered to work the shift that commences on that day, satisfies the description of an employee "whose rostered off shift falls on a holiday". In my view the answer is in the negative. I will explain why. 48 I have already drawn attention to the two ways cl 21 operates. First it requires employees to be granted holidays without deduction of pay: sub-cl 21(a). That obligation can only be satisfied in the case of a worker who would ordinarily work on a defined holiday or on a day on which the holiday is to be observed. Second, sub-cl 21(f) requires a shift worker to be paid for any holiday he is rostered off. Take then a shift worker who has worked a shift that is a holiday shift by reason of sub-cl 17(d) and has been paid the holiday rate. Is that worker also entitled to a payment under sub-cl 21(f) because he was not rostered to commence a shift on the holiday? If that was the effect of sub-cl 21(f) it would unreasonably prefer the group one shift worker over the day worker and the shift worker whose shift is to be worked wholly within the holiday. The group one shift worker would receive a benefit (in addition to the holiday rate for one shift he would receive the ordinary rate for the shift not worked) denied to the other workers. But that is not the effect of the provision. Properly construed, sub-cl 21(f) only comes into operation when the rostered off shift falls wholly on a holiday. That is to say, a "rostered off shift [that] falls on a holiday" does not include a shift

that falls only partly on a holiday. That is both a natural reading of the provision and one that is required to avoid an irrational result. 49 The second group can now be considered. It will be recalled that these are workers who are rostered to work a shift that commences on the day before the holiday and are also rostered for a shift that commences on the holiday. To simplify matters, I will assume that these employees work an afternoon shift. 50 No difficulty arises when the worker is required to work each shift. In that event sub-cl 17(e) is brought into operation, because both conditions are satisfied: the employee has been rostered for a shift that terminates on a holiday and has been rostered for a shift that commences on the holiday. The result is that the shift, the major portion of which falls on the holiday, is the holiday shift in respect of which the holiday rate is payable. So much was not in dispute. 51 The difficult case is where the worker is rostered for, but is not required to work, the afternoon shift which commences on the holiday. Toyota contends that in that event sub-cl 17(e) then applies with the consequence that the shift which intrudes less into the holiday is not a holiday shift for which the holiday rate is payable. The paid holiday to which the worker is entitled is taken when the worker does not work the afternoon shift that begins on the holiday and is paid for that shift. The Union argues that the reference in sub-cl 17(e) to "rostered for a shift" means rostered for a shift that the employee is required to work and because the employee is not required to work the shift that commences on the holiday, the second condition in sub-cl 17(e) has not been satisfied. 52 It may be accepted without further ado that the ordinary meaning of the phrase "rostered for a shift" is rostered for a shift that the employee is required to work. In the first place the purpose of a roster is to inform shift workers when and for what period they are required to work. In the second place the award itself proceeds upon the basis that this is the function of the roster: see eg sub-cl 15(f) which provides that "where a shift worker's normal 38 hour roster requires the employee to work [certain] shifts on a Saturday, Sunday or public holiday" (my emphasis) the employee is to be paid a certain sum over and above his ordinary rate; see also sub-cl 22(b) which provides that "seven day shift workers, that is shift workers

who are rostered to work regularly on Sundays and the holidays referred to in clause 21" (my emphasis) shall be allowed additional annual leave. 53 However, while "rostered for a shift" will usually mean "rostered for a shift that the employee is required to work", when the phrase is used in sub-cl 17(e) it does not mean rostered for and required to work a shift that is a holiday shift. I have identified that one object of cl 17 is to designate what is and what is not a holiday shift. Once a shift has been designated as a holiday shift sub-cl 21(a) can be applied to it. As Smithers ACJ said in Jarrad v Nissan Motor Manufacturing Co (Aust) Ltd [1979] LBC Current Review 323 at 325 in regard to an identical provision in the Nissan Australia Vehicle Industry Award 1976: "[A] shift worker must be allowed a day off. The obvious way to do this is to designate a shift, all or part of the duration of which falls in the holiday, as the shift in respect of which the holiday entitlements shall apply. Once it is identified the employer's obligation is to pay ordinary rates for that shift although no work is done or to pay two and one-half times his ordinary rate if the employee is required to work therein." 54 There is another reason why I would reject the construction put forward by the Union. In their submissions both Toyota and the Union have assumed that whether or not the afternoon shift that commences on the day preceding a holiday is a holiday shift, workers who are not required to work the afternoon shift that commences on the holiday are to be paid for that shift. It is not clear whether this assumption is fairly based on the award, especially where the afternoon shift commencing on the day preceding the holiday is a holiday shift. A contrary construction was not argued and, because it is an important point, I am loath to resolve it. Accordingly, proceeding upon the same assumption as the parties, if the argument of the Union is accepted shift workers in the second group would receive both the holiday rate for the afternoon shift that commences on the day preceding the holiday and payment in respect of the afternoon shift that commences on the holiday although no work is performed on the shift. As I have shown other workers, in particular day workers and certain shift workers, would not receive the same benefits. A construction of the award that produces this result, that is discrimination between workers for no apparent reason, should be avoided. It could truly be described as an irrational and therefore an unintended result. 55 Further, if the approach of the Union is correct it would place Toyota in the position where it could prevent shift workers receiving both the holiday rate for the afternoon shift that commences before the holiday and payment for the shift which commences on the holiday, but is not worked, by simply requiring the worker to work the second shift. The cost of labour to Toyota would be the same. This would be a curious result, to say the least. 56 The Union argues that the irrational or unusual consequences to which I have referred should not be taken into account in construing the award. It relies upon a dictum of Northrop J in Canberra Television Ltd v Australian Theatrical and Amusement Employees Association (1979) 24 ALR 529. That case was also concerned with the construction of a provision in an award. It seems to have been accepted that whatever construction was to be applied anomolies would result. In relation to how the issue of construction should be approached in those circumstances Smithers J said (at 535): "In a set of provisions dealing with such complicated matters it would not be surprising that what appear to be anomalies might lurk, whatever interpretation is adopted. Accordingly it appears to me that if an overall objective of the award, rational and fair in content and without significant anomalies, can be perceived that objective should be given considerable weight in the construction of individual clauses of the award." Northrop J said (at 545): "Senior counsel for the appellants submitted that anomalous results would follow such an interpretation. That may be so, but that does not detract from the policy of cl 10(f) which is to ensure that an employee receives the benefit of the rostered day off. The award is designed to achieve a particular purpose and if that purpose is not achieved, the employer must suffer the financial consequences. Incidentally, the employee gains a financial benefit." 57 I do not find any assistance in the observations of Northrop J. His Honour was not considering a case where on one construction of an award there would be discrimination between workers and on another all workers would be treated in the same way. Nor was he considering a case where a particular construction would result in employees receiving the same benefits whether they worked or did not work on a holiday. In my opinion, unless it is clear and unequivocal that an award was intended to produce an unreasonable or unfair result I regard myself as bound to construe the language in a way as will result in a meaning that is sensible and realistic. I cannot see in this award any indication that it is intended to operate in an absurd fashion. 58 The trial judge considered that "rostered for a shift" should convey its ordinary meaning. He did not accept, as I do, that the ordinary meaning should give way to the context. In fairness to his Honour, I should mention that he was not referred to the decision in Jarrad where the contrary view was expressed. For the reasons that I have given, I am unable to agree with the construction that found favour with the trial judge. 59 Before leaving this case there is one final matter I wish to address. On appeal Toyota sought to argue that the Court should not depart from Jarrad, because it represented "a settled interpretation of an industry award provision which was made some twenty years ago in identical terms to the Toyota award." In support of this submission Toyota sought to tender other awards governing the terms of employment of employees in the motor vehicle industry which it was said contained a provision that was identical or substantially identical to cl 17. Leave to tender the evidence was not obtained. I reluctantly agreed with this course, because the Union indicated that it might put in issue whether the decision in Jarrad was known to the parties bound by the later awards when those awards were made. It was not appropriate, in my opinion, for the Court to be asked to consider and perhaps resolve contested questions of fact on the appeal. 60 In the result, the argument was not developed. However, I must say that it holds some attraction. The ideal at which courts should aim in construing an instrument is to produce certainty (A/S Awilco of Oslo v Fulvia SpA di Navigazione of Calgari ("The Chikuma") [1981] 1 WLR 314) although not, of course, at the expense of justice. Accordingly, in most cases an appropriate principle to follow is that if an instrument is given a particular construction by a court, and another instrument in the same form is brought into existence, that construction should apply to the later instrument unless the construction is plainly wrong or the context requires a different meaning. The parties who bring the second instrument into existence are to be taken to have made it on the faith of the construction previously laid down. That is the rule that is applied in the case of standard form commercial agreements: see eg Dunlop & Sons v Balfour, Williamson & Co [1892] 1 QB 507; The Annefield [1971] P 168; Federal Commerce and Navigation Co Ltd v Tradax Export SA [1978] AC 1; Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724. There is no reason why the same rule should not apply to awards. 61 I would allow the appeal and in lieu of the declaration made by the trial judge I would declare that on the true meaning of cl 17 of the award Toyota is not obliged to pay the holiday rate to an employee for a shift commencing before midnight on the day preceding a holiday and extending into the holiday if the employee is also rostered for, but is not required to work, a shift which commences on the same holiday provided the shift commencing on the holiday is the shift the major portion of which falls on the holiday. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate: Dated: 28 October 1999 Counsel for the Appellant: Mr P Jopling QC with Mr M McDonald

Solicitor for the Appellant: Freehill Hollingdale & Page

Solicitor for the Respondent: Maurice Blackburn Cashman

Workplace Relations Act 1996(Cth)s 413

Conciliation and Arbitration Act 1904(Cth)

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