Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Queensland Rail [2003] QIRC 22 (2003) 172 QGIG 1229

14 March, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1229 ############################################################################################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 284 – application for interpretation Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Queensland Rail (No. B1385 of 2002) QUEENSLAND RAIL AWARD – STATE COMMISSIONER BECHLY 24 February 2003 DECISION An application has been made by the Automotive Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) and Queensland Rail for an interpretation of clause 3.2(2)(b) which is in the following terms: “Should any employee be required to work on any night or afternoon shift for less than five full afternoon or night shifts in succession, they shall be paid for such work at overtime rates. This provision shall not apply to any week in which an employee is prevented from working five full night or afternoon shifts owing to the appearance of a holiday, or owing to such employees sickness or where the roster does not provide for five ordinary shifts for the week in accordance with clause 4.1(2).”. The question put is what payment should be made to an employee working the following shifts at the Traveltrain maintenance Depot at Mayne: Shift 1 Monday 17 December 0600 – 1430 Shift 2 Monday 17 December 2130 – Tuesday 18 December 0600 Shift 3 Tuesday 18 December 2130 – Wednesday 19 December 0600 Shift 4 Wednesday 19 December 2130 – Thursday 20 December 0600 Shift 5 Thursday 20 December 2131 – Friday 21 December 0600. A statement of Agreed Facts has been filed by the parties. The issue between them is whether overtime should be paid for shifts 2 through to 5 because of the operation of clause 3.2(2)(b) i.e. the working of a night shift for less than five nights in succession. I am informed that the shifts referred to in this matter are part of a thirteen week roster cycle and no alteration to that roster has been made with respect to the shifts referred to during the currency of the roster. The AMEPKU argues that there is no ambiguity or uncertainty which requires the Commission to look further than the plain ordinary meaning of the words in clause 3.2(2)(b) and that the Commission need look no further than the fundamental rule of interpretation that the language of the document is to be given its ordinary and plain meaning. It further argues that the operation of the clause to date is not relevant to a consideration of the issue and cites Seaman’s Union of Australia v Adelaide Steamship Co (1976) 46 FLR 444 and L Schuler Ag v Wickham Machine Tool Sales Ltd [1974] AC235 in support. In contention between the parties are interpretations of the Award given by the “Railway Award Interpreter”, a designation which has been provided in the Award since at least 1920 until it was removed by the Commission in 1996. The provision about the payment of overtime where less that five full afternoon or night shifts in succession has also been contained in the Award since 1917 in very similar terms. Except for removal of gender specific language the entitlement has remained the same, but exceptions to the entitlement have been inserted to include holidays, sickness, extension of ordinary hours up to twelve hours per day or shift and factors surrounding the implementation of a 38 hour week. The AMEPKU argues that the interpretation of the Railway Award Interpreter are not authorative and provide only an indication of the usage of the provisions rather than any assistance in examining the historical development of the provision. The AMEPKU also proposed that the interpretations given by the Railway Award Interpreter do not outline the reasoning used or the Award provisions relied upon and should be given only limited reliance. Queensland Rail have provided extensive historical material about the Award content and the manner in which it has operated, and in part propose that the principles of construction applicable to awards rather than to those applicable to commercial contracts should be applied in that extrinsic materials which assist in establishing the surrounding circumstances should be available as an aid to construction. It further proposes that, even if the language of the clause is distinctively clear when read alone and free of ambiguity, the commission is required to look at the wider context of the provision to understand the nuances of the language. It further proposes that it is legitimate to look at the historical development of a provision, the usage of that provision over time, the occurrence of the provision in a series of awards or agreements over time and the adoption by the parties of practices based on -- 1 of 2 -- 1230 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 March, 2003 previously accepted interpretations. (Short v Hercus (1993)[s13 of 1992] 40 FLR). Relevance of the Railway Award Interpreter As earlier indicated the provision relating to the Railway Award Interpreter has been prescribed in the Award since 1920. That Award was made by McNaughton J following conferences and hearings. The Award provided at the then clause 87 for Interpretation of the Award in the following terms: “87(1) When a question arises as to the interpretation of this award, the matter may be referred by the union concerned to an officer specially designated by the commission. (2) If the commission or any union considers the decision erroneous, such officer, at the commission or of the union, shall within one week after such request, refer the question to the court for interpretation. (3) Such officer may, at his own initiative refer any question to the court for determination, whether he has or has not given any decision thereon. (4) The reference may be in the form of a case stated setting out the facts, the respective contentions, and the question for determination; or in such bother form as may be convenient. (5) All interpretations by such officer shall be given within fourteen days form the time applied for. (6) All interpretations by such officer shall be published in the “Weekly Notice” and also in the “Industrial Gazette.”. Given that the role of the Railway Award Interpreter was established within that Award and that decisions of that interpreter were appealable to the Court, it is difficult to accept that such decisions, initial or on appeal, should be considered to be extrinsic material. On the material provided by Queensland Rail there have been some 12,800 interpretations, many of which have been dealt with on appeal to the Court and later Commission. The AMEPKU has sought such interpretations in the past and has later appealed to the Court. I find that it is appropriate to consider such processes in arriving at a decision in this matter. Usage of clause 3.2(2)(b) In general terms it appears that this clause has been applied in a fashion which excludes overtime payment for ordinary hours when less than five afternoon or night shifts are worked as part of an extended roster period but which applies the payment of overtime rates in other circumstances where there is an unforeseen change to a roster where an employee may be placed in a position where less than five afternoon or night shifts are worked. That is, where an employee’s roster for a work cycle is changed, or “broken”, by Queensland Rail management after the roster has been posted and/or agreed, and the employee is required to work a “broken arrangement” not originally contemplated on the roster, that the employee is paid at overtime rates. I was referred to several decisions of the Interpreter and, on appeal, by the court, which are said to support this contention. Early interpretations were referred to by McNaughton J as early as 1919 and later to the Court and Commission acting as a full bench. Their interpretations support the contention of Queensland Rail. It is inappropriate for a single member of this commission to depart from a decision of a full bench. See Amalgamated Society of Carpenters and Joiners and Ors v QCCI [1996]152 QGIG at 595; Ackary v MPDG Investments Pty Ltd PR924226 and Christie v Austotel Management Pty Ltd 1998 QGIG 159 at 109. However, a concern legitimately raised by the AMEPKU is that earlier decisions on this matter have not provided any reasons for the conclusion reached. To a large extent, this is so. However, there is sufficient detail contained in the Interpreters outline to easily understand the issue being dealt with. The decision of Court members Bennett and Taylor in 1958 in the Queensland Government Gazette 103 of Wednesday 9 July 1958 comments upon the lack of clarity in clause 3.2(2)(b) in the following terms: “Although the language of the clause is far from clear the court is of the opinion that the more reasonable interpretation is that advancement by the union. The court decides that in this particular case the employee was prevented from working the night shift, but not owing to the occurrence of a holiday and that he is entitled to be paid in terms of clause 5.2(2)” In this matter Queensland Rail changed rostered shifts because of the occurrence of a holiday. In dealing with a question raised by the then Australian Railways Union about the clause in the 1960 Award the Interpreter found, with respect to the working of less than five full night shifts in succession in a roster that “There are recognized working hours and the employees concerned are given sufficient notice of their commencing time” when rejecting the application for overtime rates. That decision refers to a decision by McNaughton J reported in the Queensland Government Gazette 159 of 2 November 1921 which determined that the clause now in contention, but in the form existing in the 1920 Award, enabled Queensland Rail to fix shift length at a lesser number of hours than eight in each shift without giving the employee forty-four (44) hours in each week. The question submitted to the court by the Interpreter sought some identification as to what a “full” shift meant. The Railway Award – State of 1920 provided hourly rates of pay rather than weekly rates of pay and, as to hours of work, simply provided that ordinary hours for both day workers and night shift workers shall not exceed forty-four in any one week, nor exceed eight hours on a Monday to Friday, nor four hours on a Saturday and for day workers, be worked between 7:30 a.m. and 5:00 p.m. from Monday to Friday and 7:30 a.m. to noon on Saturdays. An option was available to the Commission for Railways to require the hours to be worked between Monday and Friday and not exceed eight and three quarters each day. It would seem that the clause now before me provided, in its history, an ability for Queensland Rail to work employees for less than “full” shifts and pay only for time worked. For shift workers, where less than five “full” shifts were worked, then overtime rates were payable. It is inappropriate, in the circumstances, for me to take any action to alter practices conforming with earlier decisions of the Interpreter or on appeal, by the then Court or Commission acting as a full bench. The application of this clause as applied by Queensland Rail in conformance with such decisions should remain. Some attempts have been made during Enterprise Bargaining processes to clarify this matter. It is recommended that the parties jointly remove any uncertainty which arises from the wording of this provision during the next round of negotiations. R.E. BECHLY, Commissioner. Hearing Details: 2002 13 and 23 December Appearances: Mr E. Moorhead for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland Mr J. Young for the Electrical Trades Union of Employees of Australia, Queensland Branch -- 2 of 2 --