EMMETT J:
34 This appeal is concerned with whether employees of the appellant, Woolworths Limited (Woolworths), who worked afternoon shifts, night shifts and on Sundays are entitled to be paid, when taking long service leave, at a rate that includes additional hourly amounts which they are paid when working.
35 Section 849 of the Workplace Relations Act 1996 (Cth) (the Workplace Act) provides that the Court may give an interpretation of a collective agreement on application by an organisation or person bound by the agreement. The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the agreement and the employees whose employment is subject to the agreement that have been given an opportunity of being heard by the Court. The respondent, the Shop Distributive and Allied Employees Association (Queensland Branch) Union of Employees (the Union), commenced a proceeding in the Court claiming a declaration interpreting a written agreement between Woolworths and the Union. The agreement is described as Woolworths Limited Supermarkets Distribution Centres (South East Queensland) Certified Agreement 2004 (the 2004 Certified Agreement). The 2004 Certified Agreement is a collective agreement within the meaning of the Workplace Act.
36 On 6 May 2009, the Court made declarations interpreting the 2004 Certified Agreement in the manner contended for by the Union. By notice of appeal of 27 May 2009, Woolworths appeals from those orders.
37 The 2004 Certified Agreement was made in pursuance of the Industrial Relations Act 1999 (Qld) (the Queensland Act) on 21 December 2004. The 2004 Certified Agreement was certified by the Queensland Industrial Relations Commission pursuant to the Queensland Act on 9 March 2005 to operate from 24 October 2004 until 23 October 2007. Under clause 1.6, the 2004 Certified Agreement is to apply to Woolworths Distribution Centres in South East Queensland. The parties bound by it are Woolworths, the employees of its distribution centres and the Union. Clause 7.6 of the 2004 Certified Agreement deals with long service leave. Clause 7.6 provides that the entitlement of an employee to long service leave "shall be as described" in the provisions of Part 3 of Chapter 2 of the Queensland Act "as amended from time to time".
38 Part 3 of Chapter 2 of the Queensland Act, which includes of ss 42 to 57 inclusive, deals with long service leave. Section 43(2) provides that an employee is entitled to long service leave on full pay of 8.6667 weeks for the first ten years continuous service. If the employee has completed at least a further five years continuous service, the employee is entitled to long service leave on full pay of another period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to ten years. Under s 43(6), an employee who is entitled to long service leave elsewhere than under the Act is entitled to leave that is at least as favourable as the entitlement under s 43.
39 Section 46(1) of the Queensland Act provides that the employer must pay the employee for long service leave at the ordinary rate being paid to the employee immediately before the leave is taken. Under s 46(2), if the employee is, immediately before taking the leave, being paid at a higher rate than the ordinary rate, the employer must pay the employee at that higher rate. Section 46(3) provides that an employer must not, with the intent to avoid the employer's obligation under 46(2), reduce an employee's usual rate before an employee starts long service leave. Section 46(12) provides that usual rate means the rate at which the employee is being paid for ordinary time, being a rate that is higher than the ordinary rate.
40 Section 4 of the Queensland Act provides that the Dictionary in Schedule 5 defines particular words used in the Queensland Act. Under the Dictionary, the following terms are defined:
· full pay means payment in full for the time that an employee is absent from work.
· ordinary rate, for an employee under a certified agreement, means the rate that the certified agreement states is payable for ordinary time.
The term ordinary time is not defined in the Dictionary.
41 Clause 5.2.1 of the 2004 Certified Agreement provides that the ordinary weekly adult rates of pay are as set out in the table set out in that clause. Clause 5.2.5 provides that the ordinary hourly rate of wages for weekly employees is to be calculated by dividing the appropriate rate by 38.
42 Clause 6.2 of the 2004 Certified Agreement deals with rostering arrangements. Under clause 6.2.1(a), every full-time and part-time employee is to be given a regular commencing and ceasing time for each day. Under clause 6.2.2(a) the ordinary time hours of all weekly employees may be rostered on up to five days within the following constraints:
· Monday to Friday for all employees.
· Monday to Saturday for all employees engaged after 1 January 1989.
· Monday to Sunday for all employees engaged after 23 September 1993.
43 Clause 6.3 deals with shift provisions. Clause 6.3.1 provides that no part of the 2004 Certified Agreement is to preclude the operation of shifts commencing at varying times or at times that vary from the majority of employees working on such shift, whether they be on day shift, on afternoon shift or on night shift. Clauses 6.3.3(c) and 6.3.3(d) deal respectively with non-rotating afternoon shift and non-rotating night shift. Each provides that all employees who, by direction of Woolworths, work ordinary working hours on afternoon shift or night shift, as the case may be, without rotation, are to be paid, in addition to the appropriate weekly rate prescribed in clause 5.2, an amount per ordinary time hour equal to the amounts stated in the tables in the respective clause.
44 Clause 6.8 deals with Sunday work. Clause 6.8.1(a) provides that all weekly employees who work a roster which includes Sunday as ordinary hours of work are to be paid for all work performed on Sunday at a rate of 175% of their ordinary rate, that is to say, 75% in addition to the ordinary time rate.
45 The question is whether the employees of Woolworths who work on non-rotating afternoon shifts, on non-rotating night shifts or on rosters that include Sundays as ordinary hours are entitled to be paid, when on long service leave, at the rates specified in clauses 6.3.3(c), 6.3.3(d) and 6.8.1(a) respectively. Woolworths contends that they are not so entitled and, in that regard, places reliance on the definition of ordinary rate in the Dictionary. It says that, when s 46(1) refers to the ordinary rate it imports a reference to clause 5.2.1 of the 2004 Certified Agreement, thereby limiting the entitlement of the employee to the ordinary weekly adult rate of pay applicable to that employee as set out in the table in clause 5.2.1.
46 Woolworth's contention cannot be sustained. The contention ignores the reference to ordinary time in the definition of ordinary rate in the Dictionary. The term ordinary time is not defined in the Queensland Act. The term must be understood in the light of the provisions of a particular certified agreement. That is to say, the definition in the dictionary of ordinary time assumes that a certified agreement will state a rate for ordinary time in relation to a particular employee. That is clearly the function of clauses 6.3.3(c), 6.3.3(d) and 6.8.1(a).
47 Clause 5.2.1 of the 2004 Certified Agreement provides for an ordinary weekly adult rate of pay for different categories of employee. It says nothing about ordinary time. That topic is dealt with in clause 6.3 and in clause 6.8.l so far as relevant to the present question. Thus, each of clause 6.3.3(c) and clause 6.3.3(d) deals with ordinary working hours. Clause 6.8 deals with ordinary hours of work. It is those clauses that state the rate that is payable for ordinary time for those employees to whom those clauses relate. The rates determined in accordance with those clauses therefore are the ordinary rates for the employees to whom those clauses apply. Further, by the operation of s 46(2), if an employee to whom one of those clauses applies is, immediately before taking long service leave, being paid at a higher rate than that provided for in the relevant clause, that employee is to be paid for long service leave at that higher rate.
48 The conclusion reached by the primary judge as to the operation of s 46 is correct. The appeal must be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.