CONSIDERATION
81 A literal reading of the definition of "day shift" in Clause 26.1.1, when read with Clause 26.1.7, renders each of the relevant employees a shift worker working the day shift. As a day shift worker each was entitled to a paid crib time of 20 minutes in accordance with Clause 26.13(a).
82 Support for a literal reading of the relevant provisions is to be found in the decision of Moore J in Australian Liquor Hospitality and Miscellaneous Workers' Union v Broadlex Cleaning Australia Pty Ltd (1997) 78 IR 464. He held that an employee who regularly commenced work at 6.00 am and finished work at 2.30 pm each weekday satisfied the definition of "shift work" in the relevant award. The term was defined to mean "a shift on which an employee is rostered to commence before 6.30 am or rostered to finish after 8.00 pm." His Honour found that, not only did the employee satisfy the temporal elements of the definition: he was also to be regarded as someone who was rostered on a "shift". In the context of the award rostering did not imply movement between different periods of work. It comprehended a regular period of work each day from week to week.
83 Some further support for the Union's construction may also be derived from Wilcox J's decision in Durnford v Allen Taylor and Company Limited (1990) 34 IR 423. His Honour was called on to determine whether workers who were required to work, on a regular basis, during the span of ordinary working hours, were "shift workers". Although the relevant award contained definitions of "afternoon shift" and "night shift", it did not contain a definition of "day shift". Notwithstanding the absence of such a definition, his Honour was prepared to treat day workers as "shift workers". As such their entitlement to a meal break was regulated by the clause of the award which dealt with shift work rather than that which dealt with ordinary hours of work.
84 In Duncans Holdings Limited v Cross (1997) 76 IR 261 Wilcox J dealt with a claim by three boilermakers that they were entitled to a one hour lunch break which the relevant Award prescribed (in Clause 30(h)(i)) for those performing "non-continuous shift work". Each of the workers attended a boiler which operated continuously over five days per week. They worked five 12 hour shifts each week. His Honour held that they could not be regarded as non-continuous shift workers. Rather, they fell within the award category of those performing "continuous shifts" who were entitled under Clause 30(h)(ii) to a 20 minutes paid crib break. His Honour said (at 263-4) that:
"Policy reasons support the view that the work done by the present respondents fell within cl 30(h)(ii) rather than cl 30(h)(i). Where cl 30(h)(i) applies, the employee is entitled to a one hour, unpaid 'lunch break'. Where cl 30(h)(ii) applies, a one hour meal break is not provided, merely a 20 minute crib break. The difference between the two breaks extends beyond duration. A 'lunch break' is a period of time during which employees are free, not only to eat a meal, but to leave their immediate workplace - in this case the boiler room - and socialise with other workers elsewhere in the establishment, or even leave the employer's premises altogether on business of their own. A 'crib break', in contrast, is a period during which the employee may 'down tools' and eat but must remain in the immediate workplace and available in case of any emergency …"
85 Each of the award provision in issue in these cases bore some similarity to those which presently fall for consideration. There were, however, contextual differences. The purpose served by the crib break provision, which was considered in Duncans Holdings, for example, took account of the need for the boilermakers to remain close by the boilers which they attended, during the break period. No similar purpose is served by the crib break provision in Clause 26.13(a) of the 2004 Award. Although the time is limited there would be no reason why a truck driver could not leave his or her vehicle parked securely for 20 minutes whilst he or she attended to personal business such as banking or shopping.
86 The broader context is also significant. In none of these cases was attention directed to the development of the provisions in question with a view to ascertaining whether or not a common understanding of the meaning of the provision could be discerned from its origin and its subsequent application.
87 The evidence in the present case establishes that the benefit of a crib break was, historically, made available to shift workers, as was and is the case in many industrial instruments. It was not made available to those working within the ordinary span of hours provided for in the 2004 and 2010 Awards and their predecessors. Plainly, it was a benefit which had implications for the way in which employers organised working arrangements within their businesses. The 2004 Award, like its predecessors, contains many provisions which distinguish between "day workers" and "shift workers". Clause 26.4, for example, makes provision for a day worker to transfer to shift work. Clause 26.5 deals with the problem created where a shift worker fails to report for duty and it is necessary for a day worker to replace that shift worker on the shift. Separate provisions are made, in Clause 29.3, for the payment of annual leave loadings to day and shift workers. Each of these provisions carried with them financial consequences for the employer. Workers engaged on afternoon and night shifts were, pursuant to Clause 26.7, paid at a higher rate than other workers.
88 In order to make good its contention that workers who performed duties within the ordinary hours of work prescribed by the Awards were shift workers, the Union relied on a literal construction of the definition of "day shift". There can be no doubt that, if a literal construction is applied, a consequence will be that workers in this category whose normal working days start about 5.30 am will be taken to be day shift workers. An examination of the history of the provision, however, suggests that it was never intended by the parties to have this effect.
89 The concept of a "day shift" was introduced into the 1983 Award for the first time in August 1987: see Print G8355. The variation was proposed jointly by the Union and the relevant employer organisation. Had it been intended that employees, who had hitherto been treated as day workers who performed their duties in the ordinary span of hours, were thereafter to be treated as being shift workers, to whom specific provisions of the Award were to apply, it would have been necessary for the parties to so advise the Commission in order that it could be satisfied that the proposed variations complied with the wage fixation principles. No such advice was provided.
90 It might also have been expected that, immediately after the revised Award came into force, the respondent employers would have provided the workers, whose status had changed to shift workers, with the enhanced benefits which that status attracted. Had they failed to do so it would also reasonably be expected that the Union would have sought to enforce the performance of the obligations. Neither the employers nor the Union reacted in this way. It was not until March 2012 when the present demands were made that the Union, for the first time, advocated the construction for which it now contends. Not surprisingly the employers reacted with bemusement.
91 Had matters rested there, it may have been possible to argue that both the Union and the employers (including Linfox) had failed to appreciate the significance of the changes and that their inaction resulted from "common inadvertence". Subsequent events, however, render such an argument unsustainable.
92 Almost a decade later the Union served a log of claims which clearly drew a distinction between day workers, who worked within the ordinary range of hours, and shift workers in respect of whom separate claims were made. The dispute created by this log led to the making of the 1996 Award which contained clauses in the same terms as those which are centrally relevant in the present proceeding. The parties again assured the Commission that the terms of the proposed Award satisfied the then applicable wage fixation principles (including the "no extra claims" commitment) and no intimation was given that a consequence of the making of the Award would be that the majority of workers covered by it would cease to be day workers and become shift workers. Indeed, the Union's representative informed the Commission that the Union did not consider that the proposed Award effected any change to the then extant terms and conditions of employment.
93 When the 2004 Award was made it incorporated the same provisions relating to crib time entitlements for shift workers as had appeared in the 1996 Award. This latter award, in turn, incorporated similar provisions which had previously been found in an appendix to the 1983 Award. The fact that the parties had, at each stage, agreed on the terms of the relevant provision which had consistently been applied in the manner contended for by Linfox in the present proceeding, supports its argument that a common understanding existed. That common understanding should inform the construction of the relevant provisions of the 2004 Award.
94 It is also to be borne in mind that the relevant provisions were incorporated in successive instruments during a period in which changes to awards and agreements were constrained by principles which restricted the granting of wage increases to employees and, more generally, additions to the cost of labour. To this end, it was necessary that parties, who sought adjustments to wages and conditions, satisfy the Commission that such adjustments could be made consistently with the principles. Had the Commission been advised, during the currency of the principles, that successive amendments had the effect of converting the bulk of the workforce covered by the 2004 Award and the Linfox Agreement from day workers to day shift workers with the attendant financial and other consequences, it may be doubted that the Commission's imprimatur would have been forthcoming.
95 This review supports the conclusion that, between the advent of the 1983 award and, in particular, since the introduction into it in 1987 of the shift work provisions, and March 2012, the parties had, by their conduct, demonstrated that they held a common understanding that the provisions relating to crib time applied only to shift workers and that the large majority of workers who were treated as "day workers" were not "day shift" workers within the meaning of the award. In such circumstances the literal construction of Clause 26 must give way to the common understanding, over almost a quarter of a century, of the parties whose conduct it regulated.