Arthur Gorrie Correctional Centre – Correctional Officers Certified Agreement [2002] QIRC 184 (2003) 172 QGIG 11

3 January, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 284 – interpretation of industrial instruments Arthur Gorrie Correctional Centre – Correctional Officers Certified Agreement (No. B1871 of 2000) COMMISSIONER SWAN 12 December 2002 DECISION This application calls for an interpretation of a section of a clause contained within the Arthur Gorrie Correctional Centre – Correctional Officers Certified Agreement. The application was made by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (the Union) on behalf of one of its members. The clause in question is as follows with the relevant sections highlighted in bold: Clause 4.1.11 “(1) All employees shall be entitled to a ten (10) hour break between the end of an ordinary rostered shift and the beginning of another ordinary rostered shift, except where in emergency situations the minimum may be less than ten (10) hours. (2) Where the time between an ordinary rostered shift and the next ordinary rostered shift is less than ten (10) hours the next ordinary rostered shift will be paid at overtime rates, provided that ten hours shall be read as eight hours where the overtime is worked: (i) by arrangement between employees (ii) owing to the unforseen absence of a relief employee (iii) for the purpose of changing shift rosters (3) Where an employee works by request an overtime shift or part shift which results in there being less than ten (10) hours from the end of that overtime shift and the beginning of the next ordinary rostered shift, that next ordinary rostered shift will be paid at ordinary rates. (4) Where an employee is directed to work an overtime shift or part shift which results in there being less than ten (10) hours from the end of that overtime shift and the beginning of the next ordinary rostered shift, the next ordinary rostered shift shall be paid at overtime rates until the employee is released from duty and then shall be entitled to be absent until ten (10) consecutive hours duty has occurred without loss of pay for ordinary working time occurred during such absence.”. The Statement of Agreed Facts between the parties is as follows: (1) Bob Carter is a Correctional Officer employed at the Arthur Gorrie Correctional Centre under the terms and conditions of the Arthur Gorrie Correctional Centre – Correctional Officers Certified Agreement. (2) Bob Carter and other employees worked in accordance with a roster that provided for breaks between shifts of less than 10 hours. That roster is as follows: WEEK MON TUES WED THUR FRI SAT SUN 1 0600-1400 0630-1830 - 0630-1830 - - 0700-1500 2 1400-2200 1400-2200 1400-2200 0600-1400 0600-1400 - - 3 - 0600-1400 0600-1400 1400-2200 1400-2200 0700-1500 - The commencement times of the shifts in which a 10 hour break has not been received are highlighted in bold. (3) Relates to the clause in contention (cited above). (4) It is the view of the Union that the roster contravenes the said clause and that Bob Carter would be entitled to overtime until such time as he did receive a 10 hour break by virtue of sub-clause (4). (5) It is the view of the employer that the shift pattern described in paragraph (2) hereof is contemplated by “for the purpose of changing shift rosters” prescribed by sub-clause (2) placita (iii). The Union asks that the Commission do no more than consider the plain meaning of the words incorporated within the clause in question. Were one to do that, then it is submitted that during week 2 (Thursday) and week 3 (Saturday) the break for the employee in question was of eight hours duration. That being so, clause 4.1.11 (2) should apply: -- 1 of 2 -- 12 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 January, 2003 “4.1.11 (2) Where the time between an ordinary rostered shift and the next ordinary rostered shift is less than ten (10) hours the next ordinary rostered shift will be paid at overtime rates, provided that ten hours shall be read as eight where the overtime is worked: (i) by arrangement between employees (ii) owing to the unforseen absence of a relief employee (iii) for the purpose of changing shift rosters.”. The Union states that none of the criteria in (i) (ii) or (iii) are applicable in this case. For the employer, it states that clause 4.1.11(2) (iii) applies in these circumstances. It specifically states that: “It is clear that the wording there is intended to refer to that very prevalent situation in continuous shift working industries whereby it is just not possible to roster people throughout 20 – over 21 shifts out of 28 days without them only having the non-worked intervening shift occurring on at least a couple of occasions.”. The Union states that the roster cycle in the agreed set of facts covers a three week period. It further states that there is no change of roster within that cycle. What has occurred is that there is a change from one shift onto another within a roster which covers the three week cycle. The Union states that when considering the employer’s perspective: “…we would say that those provisions would apply when that roster was changed, not when a person was predeterminedly rostered onto a shift within the roster….”. On a plain reading of the section in question, the Union’s contention is correct. There was no change of rosters as such, but rather a “change from one shift onto another within a roster which covers the three week cycle”. I see no ambiguity in the clause. From the Union’s perspective and, belatedly but relevantly in the respondent’s submissions, nor did they. On that point, the advocate for the employer stated that: “….whether the drafting was clumsy or not, I don’t know, but that was the draft that was adopted on a universal basis and that’s the way it’s been interpreted and the agreement applying at Arthur Gorrie, in my view, the way it’s worded fully supports that, without you being required to examine whether or not there’s any ambiguity whatsoever, that is, it is quite plain as far as I’m concerned.”. In The Clothing Trades Award 1950 Commonwealth Conciliation and Arbitration Court 66 CAR at 495 the following was stated: “The Court wants to make it clear that it regards, and has always regarded, the matter before it as one clearly of interpretation – a power which is conferred on the Court by section 29(d) of the Act – and in these proceedings, it proceeds as any other Court of law does when it is called upon to interpret a written document. It needs to ascertain what the words are; what they mean in their ordinary natural significance; and if they find ambiguity, would be guided by the well known rules of law which are called in aid in those circumstances, but if they find no ambiguity, then there is no need to call in those rules which assist the Court in circumstances where ambiguity is present.” (Commission emphasis). The only question relevant in this whole matter is whether any of the exclusions stated in 4.1.11(2)(i), (ii) or (iii) apply. In the Agreed Facts it is stated that “That roster is as follows”. The roster had been set for the three week period. That being the case, none of the criteria set out in 4.1.11(2)(i), (ii) or (iii) apply. The Union’s understanding of the clause, in the particular circumstances of this matter, is correct. Order Accordingly, D. A. SWAN, Commissioner Hearing Details 2002 14 October Appearances: Mr J. Spreckley, for the Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch, Union of Employees. Mr R. Bryce, of Mateside Pty Ltd, for Australasian Correctional Management. -- 2 of 2 --