BROMBERG J:
60 Both Christmas Day and Boxing Day fell on a weekend in 2010. In 2011, New Year's Day fell on a Saturday. Later in 2011, Christmas Day fell on a Sunday. In 2012, New Year's Day also fell on a Sunday. As these were the days on which each of those particular religious or other occasions were celebrated, for ease of identification I shall call them the "Celebration Days".
61 This appeal raises an issue about the public holiday entitlements some of the appellant's ("Woolworths") Western Australian employees had in relation to the Celebration Days. The determination of that issue requires consideration of the Fair Work Act 2009 (Cth) ("the FW Act"); the Public and Bank Holidays Act 1972 (WA) ("the WA PBH Act"); and an industrial agreement made between Woolworths and its employees known as the Woolworths National Supermarket Agreement 2009 ("the Agreement").
62 The reasons for judgment of Buchanan J set out the relevant facts, the relevant legislative provisions and the relevant clauses of the Agreement. I need not repeat that exercise.
63 I respectfully agree with Buchanan J, for the reasons he has given, that the primary judge correctly concluded that the WA PBH Act had the effect of designating an additional (rather than a substituted) public holiday in relation to each of the Celebration Days ("the Additional Days"). I also agree that the Additional Days were each recognised "public holidays" for the purposes of the public holiday entitlements of the National Employment Standards ("the NES") prescribed by the FW Act. Those conclusions dispose of grounds 8 and 9 of Woolworth's appeal.
64 There is then left, as the reasons for judgment of Buchanan J recognise, a single practical issue between the parties. That issue is whether Woolworth's Monday to Friday employees in Western Australia ("the WA Monday to Friday employees"), who were not rostered to work on a Celebration Day, were entitled to the benefits of sub-cl 7.7.1 of the Agreement in relation to such a day. The respondent union ("the SDA") claimed on behalf of each of those employees that as well as the entitlement to an Additional Day (recognised either by time off or payment), the employee was, in relation to each of the Celebration Days, entitled under sub-cl 7.7.1 of the Agreement to:
- another day off in lieu to be taken either within 28 days after the holiday falls or during the week prior to the holiday; or
- the addition of an equivalent day's pay; or
- 1 extra day added to annual leave.
65 The answer to that question in relation to each of the Celebration Days depends on whether, in respect of the WA Monday to Friday employees, the day fell on a public holiday recognised as such for the purposes of sub-cl 7.7.1 of the Agreement.
66 The primary judge rejected Woolworth's contention that the benefits afforded by sub-cl 7.7.1 are limited to public holidays recognised expressly by the terms of the Agreement. In arriving at that view, the primary judge construed the word "prescribed" as used in sub-cl 7.7.1 to mean "referred to". His Honour reasoned that as each of the Celebration Days was referred to in sub-cl 7.1, a WA Monday to Friday employee was entitled to claim the benefit of sub-cl 7.7.1 in respect of a Celebration Day that fell on a non-working day.
67 By grounds 3 and 4 of the grounds of appeal, Woolworths contests those findings. Woolworths contended that the expression "prescribed under" has the meaning of "designated by" such that each of sub-cls 7.1, 7.2 or 7.3 of the Agreement is to be given operative effect. It further contended that, in the circumstances postulated, cl 7.2 "worked an automatic substitution in accordance with its terms and accordingly sub-cl 7.7.1 had no application".
68 Clause 7 is a badly drafted clause. It is not a clause to which a technical or literalist approach to construction should be adopted because, if there is one thing which is clear, it is that the clause was not drafted by a technician.
69 The eligibility criteria for the benefits which sub-cl 7.7.1 affords is found in the opening words of sub-cl 7.7.1 as qualified by the provisos which appear at the foot of the sub-clause. The relevant opening words extend the benefits of sub-cl 7.7.1 to employees "whose non-working day falls on a public holiday prescribed under sub-cls 7.1, 7.2 or 7.3 (but not 7.10.3)". Those words and the provisos later found in the sub-clause, must be considered in the context of cl 7 as a whole and also by reference to the nature of the Agreement.
70 As to the nature of the Agreement, the primary judge found that the parties may be taken to have made the Agreement accepting the operation and force of the FW Act. He determined that cl 7 should be construed in the knowledge that it operates in the context of the NES provided by the FW Act. I agree with that approach to the construction of cl 7. That seems to me to be a consideration of some importance.
71 A second consideration of some significance is that cl 7 is dealing with public holiday related benefits which may flow to an employee when, on the one hand, the public holiday falls on a working day for that employee (sub-cls 7.1, 7.2 and 7.3) and, on the other hand, the public holiday falls on a non-working day for that employee (sub-cl 7.7.1). All of those sub-clauses specify eligibility for a benefit by reference to a criteria which poses two essential questions. First, whether the day in question is a working or non-working day for the employee. Secondly, whether or not the day is recognised as a public holiday for that employee.
72 It would ordinarily be expected that an Agreement dealing with public holiday benefits across a number of different provisions, would consistently across all of those provisions, recognise a day as a public holiday in respect of a particular employee, unless it expressly provided to the contrary. That scheme seems to be adopted by clause 7. The reference to "sub-cls 7.1, 7.2 or 7.3" in the eligibility criteria for sub-cl 7.7.1 reflects that approach and the three provisos contained in sub-cl 7.7.1 expressly identify the extent to which consistency was not intended.
73 The first proviso excludes Anzac Day and Easter Saturday for employees employed in New South Wales, the Australian Capital Territory, South Australia and the Northern Territory. The second proviso excludes Anzac Day for employees in Victoria and Tasmania. The third states:
Provided that the above will not apply to additional holidays legislated, proclaimed or gazetted by a State or Territory as provided in cl 7.10.3.
74 The third proviso reflects the words in parenthesis "but not 7.10.3" found in the opening words of sub-cl 7.7.1. The two references to sub-cl 7.10.3 should be viewed as dealing with the same single exclusion. That exclusion identifies the nature of the days to be excluded as "additional holidays legislated, proclaimed or gazetted by a State or Territory". That description applies also to the nature of the days recognised by sub-cl 7.3. However, rather than referring to sub-cl 7.3, the proviso ends with "as provided in cl 7.10.3". That reference and the identification in paragraphs (a) to (e) of sub-cl 7.10.3 of particular "additional" public holidays, makes it clear that only the "additional" holidays legislated, proclaimed or gazetted by a State or Territory which are specified in paragraphs (a) to (e) are to be excluded.
75 The terms of sub-cl 7.10.3 acknowledged that the parties to the Agreement understood that the requirement to recognise a day as a public holiday may be sourced in the FW Act. Those terms together with the third proviso in sub-cl 7.7.1 suggest that the parties operated on the understanding that despite such a requirement, the benefits afforded by sub-cl 7.7.1 were supplemental to the benefits required by the FW Act (through the NES) and could be excluded in relation to a day that the FW Act required be recognised as a public holiday. On that understanding, sub-cl 7.10.3 shows that the parties selected some days ("additional days") for such exclusion but not others. They did so in the knowledge that pursuant to the WA PBH Act, other days such as New Year's Day, Christmas Day and Boxing Day were recognised public holidays.
76 All of that, together with the inclusion in sub-cl 7.7.1 of the first two provisos, shows that a considered approach was taken by the parties to the Agreement in selecting those recognised public holidays to which the benefits of sub-cl 7.7.1 would or would not flow. New Year's Day, Christmas Day and Boxing Day for WA employees were not expressly selected.
77 The benefits provided by sub-cl 7.1 of the Agreement are, by reference to the terms of the Agreement, subject to the substitution provisions of sub-cl 7.2. However, as the primary judge determined, the provisions of sub-cl 7.2 are inconsistent with the FW Act in relation to Western Australian employees and insofar as those provisions reduce, alter or affect the entitlement of a Western Australian employee under the NES, are of no effect.
78 In relation to the Celebration Days, that is because each of those days was recognised as a public holiday by s 115(1) of the FW Act and there has been no substitution of the day made by a law of a State or Territory pursuant to s 115(2). For Western Australian employees substitution of the kind contemplated by sub-cl 7.2 would be inconsistent with the NES and rendered ineffective by ss 55(1), 55(4) and 55(7) of the FW Act.
79 The Agreement was made in the knowledge that it would operate in the context of the FW Act and the NES. The Agreement was also made in circumstances where a considered approach was taken to which days recognised as public holidays by the FW Act would be excluded from the benefits accorded by sub-cl 7.7.1. The chosen exclusions were identified expressly. The terms of the Agreement support the conclusion that the likely intent of the parties was that a public holiday recognised in respect of a particular employee would be so recognised consistently across cl 7 for all purposes, unless the contrary intent was expressly stated. In that context, it seems to me that sub-cl 7.7.1 intends that if by operation of the Agreement in accordance with the FW Act, a day is recognised as a public holiday for a particular employee for the purposes of sub-cl 7.1, 7.2 or 7.3, is also to be recognised under sub-cl 7.7.1 unless expressly excluded by a proviso in that sub-clause.
80 For the Western Australian Monday to Friday employees, each of the Celebration Days were recognised as public holidays by sub-cl 7.1 and not excluded by the operation of sub-cl 7.2. Those days were brought into sub-cl 7.7.1 by the reference in that sub-clause to sub-cl 7.1. None of those days were excluded by the provisos in sub-cl 7.7.1.
81 If, despite the construction which I prefer, sub-clause 7.1 is to be construed as subject to sub-clause 7.2, the result would nevertheless be the same. On that basis, the Celebration Days were not days recognised as public holidays for Western Australian employees by the terms of sub-clauses 7.1 and 7.2. As such, the Celebration Days were "additional" public holidays for Western Australian employees within the meaning of sub-clause 7.3 and by that route brought into sub-cl 7.7.1.
82 I have come to that conclusion appreciating that there are two competing constructions open as to the meaning of the word "additional" in sub-cl 7.3. On one construction, "additional" is to be read to mean a day recognised as a public holiday by a State, Territory or locality which is additional to a day already referred to by sub-cls 7.1 and 7.2. If the day in question is already referred to by those sub-clauses (whether recognised by them as a public holiday or not) it is not to be regarded as "additional". The alternative construction, which I prefer, is that a day recognised as a public holiday by a State, Territory or locality is to be regarded as "additional" when the day has not already been recognised as a public holiday by sub-cls 7.1 and 7.2.
83 Sub-clauses 7.1 and 7.2 do not contain a list of public holidays which have universal application to all employees across Australia. The recognition of many of the public holidays referred to varies from place to place and is, in that respect, location specific. Many of the public holidays referred to and in particular those that are locality specific are not 'core' pubic holidays in the sense that the use of the word "additional" in sub-cl 7.3 should be regarded as intending to indicate a day additional to the ordinary or, in other words, an 'extra-ordinary' public holiday. In my view, the word "additional" in sub-cl 7.3 is used in its ordinary sense of 'added, extra or supplemental' to what is already provided for. The word "additional" or the phrase "in addition" is clearly used in that sense in sub-cl 7.1.1. The clause is dealing with the provision of an additional benefit. In that context, it seems to me that a limitation based on what has already been provided for is more consistent with the purpose of the clause than a limitation based simply on what has earlier been referred to.
84 Unlike the use made of "additional" in sub-cl 7.10.3, the use of the word "additional" in sub-cl 7.3 is not confined to days characterised as "additional" by the State, Territory or locality which has proclaimed the public holiday.
85 Although my reasoning differs from that preferred by the primary judge, it follows that in my view the primary judge was right to conclude that a WA Monday to Friday employee was entitled to claim one or other of the benefits provided by sub-cl 7.7.1 in respect of a Celebration Day which fell on a non-working day for that employee.
86 The respondent was entitled to the declarations made by the primary judge. I would dismiss the appeal.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.