Australian Meat Holdings Pty Ltd v Schostakowski [2002] ICQ 20 (2002) 170 QGIG 21

17 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Australian Meat Holdings Pty Ltd AND Anthony Schostakowski (No C1 of 2002) PRESIDENT HALL 8 May 2002 DECISION On 12 December 2001 the Queensland Industrial Relations Commission published a decision upon an application for the recovery of wages made by Mr A. Schostakowski of the Department of Industrial Relations on behalf of Ms Sharna Leigh Keogh against a former employer of Ms Keogh, viz Australian Meat Holdings Pty Ltd. The decision is now reported at 168 QGIG 396. On 3 January 2002, Australian Meat Holdings Pty Ltd filed an appeal against a decision of the Commission. Over time, the grounds of appeal have narrowed. It remains to determine one matter. The matter which remains to be determined is the ordinary time rate of pay of a clerical employee engaged under the Clerical Employees Award – State to perform work ancillary to the main business of the employer, in circumstances where the employees engaged in the main business of the employer have a spread of hours different from that found in the Clerical Employees Award – State. It is sufficient to reproduce cl. 4.1 of that Award. “4.1 Hours of Work (1)(a) Except as may otherwise be mutually agreed upon between the employer and the Branch Secretary of the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees and/or the Federated Clerks’ Union of Australia, North Queensland Branch, Union of Employees, and subject to subclause (2) (Implementation of 38 Hour Week), and to the exceptions hereinafter provided, the ordinary hours of work shall be an average of 38 per week, to be worked on one of the following bases: (i) 38 hours within a work cycle not exceeding seven consecutive days; or (ii) 76 hours within a work cycle not exceeding fourteen consecutive days; or (iii) 114 hours within a work cycle not exceeding twenty-one consecutive days; or (iv) 152 hours within a work cycle not exceeding twenty-eight consecutive days. (b) The ordinary hours of work prescribed herein may be worked on not more than five consecutive days in a week, Monday to Saturday inclusive, subject to the following: (i) Except as otherwise specifically provided herein, ordinary hours may be worked between 6.30 a.m. to 6.30 p.m. on Mondays to Fridays inclusive, and between 6.30 a.m. and 12.30 p.m. on Saturdays. Such spread of ordinary daily working hours may be altered as to all or a section of employees provided that there is agreement between the employer and the employee or the majority of employees involved. (ii) Ordinary hours worked by all employees, excluding casuals, on a Saturday between the hours of 6.30 a.m. and 12.30 p.m. shall be paid for at the rate of time and a-quarter. (iii) Any arrangement of hours which includes a Saturday as ordinary hours shall be subject to agreement between the employer and the majority of employees involved. (c) The ordinary daily hours of work prescribed herein shall be worked continuously, except for meal breaks and rest pauses. (d) The ordinary starting and finishing times of various groups of employees or individual employees, may be staggered, provided that there is agreement between the employer and the majority of employees in the enterprise or section(s) involved. (e) Notwithstanding the provisions of provisions (b) and (d) of this clause, the spread of ordinary working hours for employees employed under this Award whose work is ancillary to the main business of the employer, may be the same spread applicable for Award employees engaged in the main business of the employer. (f) The ordinary hours of work prescribed herein shall not exceed 10 hours on any day: Provided that where the ordinary working hours are to exceed 8 on any day, the arrangement of hours shall be subject to the agreement of the employer and the employee or the majority of the employees involved. (g) Employees are required to observe the nominated starting and finishing times for the working day, including designated breaks to maximise available working time. Preparation for work and cleaning up of the employee’s person shall be in the employee’s time. (h) For employees employed under this Award in any commercial establishment located in a retail complex trading to the public, and subject to the Order fixing Trading Hours – Non-Exempt Shops Trading by Retail – State, engaged in late night trading on the day permitted for late night trading and in extended trading on Saturday, the spread of ordinary working hours may be the same as those prescribed by the Awards for shop assistants for the time being in force in the respective divisions in respect of such establishment. All employees involved other than casuals shall be paid in addition to their ordinary rates of pay a loading of 25% for work within the ordinary spread of 38 hours which may be required to be performed after 6.00 p.m. on the day permitted for late night trading and on Saturday.”. The contention of the respondent is that it is the true effect of cl. 4.1(1)(b)(ii) and cl. 4.1(1)(e) that in the circumstances described ordinary time worked on the Saturday must be paid for at the rate of time and a-quarter. That, I should add, was the decision of the Commission. The contention of the appellant is that that construction gives no or inadequate weight to the word “notwithstanding” at cl. 4.1(1)(e). It is contended that the true effect of cl. 4.1(1)(e) is to liberate the employer from the obligation to pay clerical employees penalty rates for ordinary hours worked between 6.30 a.m. and 12.30 p.m. on Saturday and to the obligation to pay overtime rates thereafter. In the alternative, it is contended that if cl. 4.1(1)(e) leaves the employer with a -- 1 of 3 -- 22 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 May, 2002 residual obligation to pay out at and a-quarter time for ordinary hours worked on a Saturday, the obligation is limited to time worked between 6.30 a.m. and 12.30 p.m. The matter is not without difficulty. In making that observation I reflect not at all upon those who drafted cl. 4.1(1)(e). The purpose of the provision is to introduce an entirely desirable measure of flexibility into a whole range of industries by means of a common rule award. Inevitably, there is difficulty in anticipating all of the arrangements about spread of hours with which cl. 4.1 will be meshed. But at the end of the day cl. 4.1(b)(i)(ii) and cl. 4.1(1)(e) have been left in a form which gives rise to disputation about their true effect. On balance, it seems to me that the construction contended for by the respondent and adopted by the Commission is the construction which is correct. It seems to me that cl. 4.1(b)(i) is directed towards fixing the spread of hours, inter alia, on Saturday. Clause 4.1(b)(ii) is directed towards fixing a rate of pay for ordinary time worked on a Saturday. The purpose of cl. 4.1(e) is to fix a spread of hours inter alia, for work performed on a Saturday which is to apply “notwithstanding the provisions of (b) and (d) of this clause . . . ”. In its natural and grammatical meaning cl. 4.1(e) does not relieve the employer of the obligation to pay penalty rates for ordinary time worked on a Saturday. Notwithstanding the scrutiny to which the history of cl. 4.1(e) has been subject in these proceedings, there is nothing to indicate that the purpose of the provision was wider than its natural and grammatical meaning. The respondent’s alternative argument was initially attractive. However, upon reflection, it seems to me that the intention was that when the spread of hours applicable to those engaged in the employer’s main business was substituted for the spread of hours at cl. 4.1(b)(i), it was to be substituted also for the spread at cl. 4.1(b)(ii). The purpose of the reference to “6.30 a.m. to 12.30 p.m.” in cl. 4.1(b)(ii) seems to be by way of repetition and avoidance of doubt, rather than by way of the assertion of an independent rule. In the circumstances, the proper course is to dismiss the appeal and I propose to do that. However, in the course of searching for the true object and purpose of cl. 4.1(1)(e) an issue has arisen as to the correct construction of the word “Award” where it secondly appears in that provision. The Clerical Employees Award – State was made under the Industrial Relations Act 1990. The Award itself does not define “Award” but the Act of 1990 defined “Award” to mean– “An Award of the Industrial Commission made or continued in force under this Act an Award is varied from time to time being by the Commission and includes any variation of an Award.”. Schedule 5 of the Industrial Relations Act 1999 now defines “Award” as follows:– “ (a) generally, means– (i) an award made under chapter 5 or continued in force under this Act; or (ii) an award as amended under chapter 5; and (b) for chapter 6, part 1, division 3 and part 2, division 6 – includes an award under the Commonwealth Act, part VIE.”. For completeness, without setting out the clause, I add that the definition in the Workplace Relations Act 1997 was comparable to schedule 5 of the current Act. In those circumstances, in reliance upon the decisions in Clark v Cann (1936) 35 AR (NSW) 10 at 13 per Cantor J and The Australian Workers' Union of Employees, Queensland v Watson (1959) 44 QGIG 1320 at 1321 is contended that, prima facie, when a word is used in an award it bears the meaning which it bears in the Industrial Act under which it was made. There being nothing to suggest the prima facie rule should not be applied, it is argued that “Award” in cl. 4.1(1)(e) should be taken to refer to an award of the Queensland Industrial Relations Commission with the consequence that cl. 4.1(1)(e) has no application where the main business of the employer is, as here, governed by a Federal award. There is room for argument that the rule that an expression used in an award which is defined by the Industrial Act under which the award is made is to be read in the sense in which it is used in the Act is consistent with more recent authorities upon the interpretation of awards. Here, it is sufficient to say that the history of cl. 4.1(1)(e) does give an indication to the contrary. What is now cl. 4.1(1)(e) was first inserted in the (then differently numbered) Clerks and Switchboard Attendants Award – State on 11 September 1990 (date of operation 10 September 1990). In its original form the provision provided:– “Notwithstanding the provisions of paragraphs (a) and (b) of this sub-clause, the spread of ordinary working hours for employees employed under this Award whose work is ancillary to the main business of the Employer, may be the same spread applicable for employees engaged in the main business of the Employer.”. (On 24 September 1990 there was a further variation, connected with a re-arrangement and re-numbering of the Award, effective from 5 November 1990. The amendment is of no present consequence.) It is plain that in its original form the clause applied whether the spread of hours in the main business of the employers was set by a Queensland award, a Commonwealth award, a common law contract or a gentlemen’s agreement. On 11 September 1991 the Clerks and Switchboard Attendants Award – State was amended by deleting the provision previously described and inserting in lieu thereof the following provision:– “(5) Notwithstanding the provisions of subclauses (2) and (4) of this clause, the spread of ordinary working hours for employees employed under this Award whose work is ancillary to the main business of the Employer, may be the same spread applicable for Award employees engaged in the main business of the Employer.”. A search of the transcript in the proceedings leading up to that variation reveals that the Industrial Advocate who appeared for the applicant explained the variation to the Commission as follows:– “And by way of explanation, at the time this clause was inserted into the Award at the second structural efficiency hearing, that the intention by the parties was that where clerks were ancillary to the main business their hours could be the same as Award employees, not other employees, and it is open to exploitation if there are other people working in the main business that are not covered by an Award. So that just seeks to tidy that up.”. The evident purpose of the amendment was to withdraw the flexibility now vested by cl. 4.1(1)(e) where the main business activity of the employer was award free. There is no indication that the purpose was to confine the flexibilities made available by cl. 4.1(1)(e) to situations in which the main business activity of the employer is regulated by an award of the Queensland Industrial Relations Commission. In Kucks v CSR Limited (960 141), unreported, 19/4 1996, decision number 141/96, Madgwick J observed:– -- 2 of 3 -- 17 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 “It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document.”. In the circumstances the proper course seems to be to ignore the use of the higher case and treat “Award” at cl. 4.1(1)(e) as if it were the generic adjective “award”. I dismiss the appeal. D.R. HALL, President. Released: 08 May 2002 Appearances:– Ms J. Sharp of Australian Meat Holdings Pty Ltd and later Mr A. K. Herbert of Counsel directly instructed for the appellant. Mr C. Murdoch instructed by Crown Law for the respondent. ########################################################################################################################### -- 3 of 3 --