Australian Sugar Milling Association, Queensland, Union of Employers and Mulgrave Central Mill Company Limited v The Australian Workers' Union of Employees, Queensland [1994] QIRC 486 (1994) 147 QGIG 408

408 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [23 September. 1994 ####################################################### QUEENSLAND INDUSTRIAL RELATJONS COMi\HSSlON Industrial Relations Act /990 s. 3 i 9 -- notification of dispute Au~tralian Sugar Milling Association. Queensland. !Jmon of fmployers and Mulgrave Central M,H Company Limited AND The Austrnllan Workers' Cnion of Employees, Queei:sland (No. D4U7 of i994) SUGAR INDUSTRY A WARD-- STATE COMMlSSlONER BLOOMHELD 8 September l 994 Dispute Arbitrated Matter - Payment for Loco Crrw required tc, work into the follo,,ing shift · Employer's interpretation should stand. DECISION This matter was first notified to ,be Industrial Commission on 22 June 1994 when the Commission was advised of a dispute between members of The Australian Workers' Cnion of !employees. Qucenslar:d and the Malgrave Central Mill Limited n:gardmg the appropriate payment for loco crew "ho are required to work into the following shift. When tlw matter fir:;! c.m1e before tb:: Commission Mr Wa,'Te,1, of the Auslra!ian Sugar rv1iHing A.ssociation, Queensland. Union of bnployers (ASMA l representing the empk•yer, ad,:ised the Commission tha! the i;;,,ue wa, one tha! revolved around an interpretation of the provision of the Sugar Industf) A.v,ard- '>late in clause 28(4) which state,:-- ''\'/hen a shift \.vorker is required to continue ,vorking during the following shifl: he shall he granted a crib time of thirty minutes vvithin one hour after his ordinary ceasing ti1ne, aud a fi.ir,hcr crih ume of thirty minutes at the usual crib time p:;::.riod frn the !Ol lcr;ving shift , . ,:" Mr Warren also rut to the Cmirnisslon that he hoped that discussions between ASMA and the A \VU might achieve a s:.icces~fol resolution of ,he probkm or, if no succcssfol resohmon could be arrived at an agreed set of facts Plight be devdopcd which could assi:,t the C1,mmissiDn to resolve the dispute. The Commission was also informed by both Mr \Varren and Mr Brischke, who repre;enrcd the A WU al the initial conference. that the matter had been before the Commission previously as dispt.le number D384 of! 993. Atlc, hearing forthcr from lht, parties the Cc>mmis,ion requested that the A \\'U, in consultation \.vith the cmployets, and the ASMA should meet anJ atkrnpi to agn:e on the 1r.eaning of the wt,rd, i1: the A v,:ard. 111e Cornrnission v1ent on to say that if the n1eanin.g could nol be agreed between them the matter could he brought back to the Com;ni,sion for determination. (11 any e·,ent, it was indicated hv me. the posit!on of the etnplO)'CCs \VOuld not bt~ prciudiccd bccaus~ any detem,ination wonlJ be ·upp!icabk from ih~ st,!rl of the cru,hing season. A, it transpired the parties were unable to reach agreement on the meaning of the words and despite several other attempts to achieve a resolution of the difficulty. Consequently, I determined that the issue should be arbitrated pursuant to section 3 I 9(4) in the public interest on the basis that the issue was one of some duration and was not likely to he able to be resolved by the parties themseln:,J. l listed the matter for hearing on 15 July with the A WU to have the carriage c,f proceedings. \lvl,en the matter cmne or: fi.,r hearing Mr G. low appeared for The Australian \Vorkers' Union of Employees, Queensland with Mr P. Warren, of the Australian Sngar Milling Association, Queensland, Union of Emplo:ers again appearing on behalf of Mulgrave Central :\1ill Co. I .imited. 1 o assist the Commission ihe parties had prepared an ag;eed statemem of fac:.s. The agreed statement included reference to previous practices adopted by the parties after negotiations at variuus points in time, which had been required as a result of their inability to agree on the meaning s.,f the Award provi,inns. During the course of his subimssion~ Mr Low made extensive reference to the dispute which had occurred on site in 1993 in relatior: to the same issue, and tbe resolution lo that dispute which had then been negotiated. H was said that employees were seeking the same resolution to be eom;nued into ,he future. viz. that loco crews engaged on shi tl. who work more than thirty minutes overtime past the normal finishing time of their shifl shall he entitled to a paid thirty minute crib break. Mr Low impressed upon the Commission that it was being asked to deal riot witb an interpretation issue, but a dispute issue. ~'ir Warren, in arguing Mulgrnve Mill's position, put that the employer·s position was that where a shiflworker was required to continue working for up to an hour after their ordinary finishing time there is no payment for a crib break, nor any provision of a meal. However, where the ,hiftworker was required to continue working tt,r more than an hour after the ordinary finishing time the shift worker would he entitled to a thirty minute: crib break and provision of a mcai or payrncnt of the meal al.hnvunce, Mr Wnrrcn p1;t that this position was being applied by the cmph,ycr w all other employees. except loc0 cn:ws. bcc;rnse loco cn,,ws had been covered by a compromise ;irrangemenl entered into in 1993 for the 1993 season only. I11e current di,pntc had arisen because of the intention of thc employer to apply ns general practices to the loco crews in addition ttJ al! the nthcr employees to whom tb,;; pf()vi,ion applied already. The members of the AV,TJ engaged as loco drivers, and their assi,tants, stated that they wish the status quo p'lsition as applied for !he 199.3 season t,, be maintained m: that a ruling on the issue be mad,; by the lndusirial Relation;, Commiss1,,n. 111c Commission has examined !he Award history file held wi!hin thi: Commission precincts. r have discO\crcd that the prm·ision which is now unJer qnery was first inserted into the Award operati;-e from 2 June 1958. The clause then appearing is identical in all respects to Lhat \Vhich no\V appears in the .r\ \\'ard, The inclusion of subdause (4.J is interesting in a number of ways. The variation to the Award followed proceedings before Commissioners Bennett and Taylor as a result of applications lodged by !he -\WU and FEDFA. (No. 353 and 5!5 of 1957 respectively). Tht Gazetted decision states that one of the items in the clairri was as follows -- '~!tern 27 Clause 33 -- Ovcnin1e 2'.\ September, 1994] QUEENSLAND GOVERNMENT lNTIUSTRlAL GAZETTE 409 Thfa claim was for the addition of four new subdaus1:s to the overtime clause, such subclauses requiring, briefly:-- (al Payment of (fouble time for working during a meal time; (b) Granting of a rr.e::il time when working overtime in excess of one hour alter ceasing time; (<;) Payment for a meal or provision of a meal when working as in (b) above and not having been notified the previous day; (d) Payment when a meal is provided by the employee and overtime cancelled. The claim restricted the application of the subclatis,.:s to day \.vorkers, ~). In handing dowTJ their decision ths; Commissioners s;1id:-- ''As we see i! lhere arc two sel, of circumstances which can arise when day workers are required to work overtime ····· the first being where a day worker is required to work overtime on his ordinary duties and the second being where a da:i worker is required to work overtime to provide relief because a shitlworker fails to report for duty. In the first case we see no reason why such an employee should not receive conditions as favourable as those already provided for other workers under another award, such ;~ fitters. ln the second case we believe that the day worker is entitled to a crib at some time fi:illowing the conclusion of the days work and also a crib at or about the middle of the shift. We have no doubt that arrangements are at present made frir employ•~::, to have the second crib referred to. In these circumstances, we propme to vary the Award io provide for the general provisions re/erred to to apply where a daywork employee continues on overtime at his regular daily work and to include a provision which ,,ill cntille a dayworker called on to work ovenime as a relief shiftworkcr to a crib in the early part of the shift and a second crib at the time when a crib would be 1aken h:i a shiftworker performing the work. I'hese provisiom will, of eourss:. apply only to daywurker:, ,;ml nu! da;'c,bifl worke,s." There were no provisions applying to shiflworker, along tlie,e lines and it is unclear why the appitcation, and the decision, were restricted lo dayworkers. rhc llnion(s) al,o sought (as ilem 29 Jealt with by the full Bench) the i.nclusion of a provision to the effect that any employee requited ro work two consecntive ;iULl..t, ~hou!d be supplied with a meai bv the employer. This claim was granted and was the only one applicabi,: to shittworkers <insofar as these proceedings an; concerned)_ \\:hen the variations were made to the A\\ard tu reflect these decisiocs the wording which was inserted ~y reflected what are (now) ~ubc!auses (3)fa). (3)(bJ, (3)(c). (3\(d), ,md (3)(e) l!;;~£lLa01 ~Jll!,se 0.l. Th,;re i, nothing: in !h..: dccision, the variation which foiiowed it. nor the consolidati<,n of the Award which immediately then ,,ccum:d, to indicate why the actual wording had gone bc:yond that ,vhich was detennined by the Commission. It would appear that the wording was arrived at by the parties themselves ail.er discussion as to the bes, means to implement the Commission's decision. Having regard to the background to the Award variation made in 1958 it could be argued (and it seems to m,: to be highly likely) that subclause (4) is only intended to apply to the situation where a shift employee is required to work two consecutive shifts. Should such be ,he case the clause wouid have clear meaning and relevance and siL, perfectly well with such a situation. For example: the wording of "and a further crib time" could oniy appiy if a second crib was contemplated. lf !t had not been so contemplated the Award would have included words such as "if applicable". further, the use of plurals for "times", "meals" and "cribs" in ,he second sentence of 28(4) is further reinforcement that the Jraftpersons of the Award provision contemplated that the shiftworker would work for (at the very lea31) an extended period into the foliowing shift. The passing of time, and the passing on of those involved in the case, has led to both employers and employees .in more modem times looking at the actual words and struggling to ascertain their meaning, !n my view, the meaning pushed by Mr Low, on behalf of the locomotive crews at Mulgrave Central Mill, is clearly wrong. No matter ho,,· I try to "fit" his argument with the Award ctause as it stands, the argument fails. rn a similar vein Mr Warren's argument also Joes not sit completely in accord with the Award. However, it has aspect, to it which go closer to fitting than anylhing advanced hy Mr Low. For example: It is difficult to contemplate how the tem1 "within one hour" would fit unless it was expected that the overtime would continue frir at least that period. ln tht circumstances of the case, where I believe that the clause is designed to cover the ,ituation of a shillworker working for the ,·ntirii_ foH(lwing shift and where thi: empl<Jyer is proposing a more favourable meaning than that w!uch l would give, I detennine in respect of the dispute at the Mulgrave Central Mill Co. Limited that the employer's interpretation shpuld ~tand and bt apphed to ,he v;orking of oveitime by locomotive crews ern;aged on shiitwork during the l 994 season and hereafter. in iighl of what my research has n:vealed as to the possible tme meaning of the clause, given its history, it would seem to me desirable for the parties at the award level to review tJie v..-ording of ,ubc!aus1;; 28(4) to clarify its meaning. However, given that the clause has operated since l 958, and that the part.ies are aware of only this dispute having arisen, it may be !.hat the parties are prepared to leave the Award provision unchanged on the ha.sis !hat the industrv seems to h,,ve had an accepted p~1ctice al all mills other than ,h:, Mulgrave Central Mill. That position has now been made uniform by virtue of my decision in this matter. AL BLOOMFIELD, Commissioner Apvcarances:--· Mr P. Warren for the Australian Sugar Milling As,ociation, Queensland, Union of Employees. with him Mr G. Shaw for Mui grave Centr;;l tv!ill Company Limited. Mr G Low and Mr F. l3rischke for The Australian WorKers' Union of[mployees. Quccnslru7d. Operative Date: NIA Decision -· Payment for loco cre·w Reka,ed. S September ! 994 ....... -- 1 of 1 --