100319426

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

 -v-

 QUALITY BAKERS AUSTRALIA LIMITED

RESPONDENT

CORAM MAGISTRATE WG TARR IM

DATE THURSDAY, 9 OCTOBER 2003

CLAIM NO M 131 OF 2003

CITATION NO. 2003 WAIRC 09637

_______________________________________________________________________________

Representation

Claimant Mr J Nicholas

Respondent Ms Z Weir (of Counsel) instructed by Freehills Barristers & Solicitors

_______________________________________________________________________________

Reasons for Decision

1         The Claimant in these proceedings is the named party to the Bakers (Metropolitan) Award No 13 of 1987 (the Award) and the Respondent is a named Respondent in the Award.

2         It is the Claimant’s allegation that the Respondent is in breach of the Award by failing to pay Wayne Delaney, a member of the Claimant and an employee of the Respondent, his entitlement in relation to the Australia Day public holiday which fell on 27 January 2003.

3         Clause 10 of the Award relevantly provides as follows:

10. - HOLIDAYS

(1)  The following day or days observed in lieu shall be granted as holidays for all employees without deduction of pay, namely:  New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Foundation Day, Sovereign's Birthday, Christmas Day and Boxing Day.

(2)  (a)  When Christmas Day or New Year's Day falls on a Saturday or Sunday, such holiday shall be observed on the next succeeding Monday, and when Boxing Day falls on a Sunday or Monday, such holiday shall be observed on the next succeeding Tuesday, in each case the substituted day shall be deemed a holiday without deduction of pay, in lieu of the day for which it is substituted.

(b)  …

4         Subclause (1) gives an employee a fundamental entitlement to a holiday on each of the ten days mentioned without deduction of pay.  In other words, ten paid public holidays each year.

5         Subclause (4)(a) provides for an employee, who accepts an offer to work or is rostered to work on any of those public holidays, to be paid at the rate of time and one half, in addition to the payment prescribed in subclause (1).  In other words, double time and one half, not considering for the moment any overtime worked on a public holiday.

6         Subclause (4)(b) reinforces the entitlement for public holidays by providing as follows:

(b)  At the request of an employee who works on any prescribed holiday, and with the agreement of the employer, paid time off in lieu of payment for the work done may be taken.  Such time off in lieu, when taken during ordinary hours, shall compensate for the penalty premium at which the time off in lieu accrued.  For example, two and one half ordinary hours compensates for one hour of double and one half time.

7         Subclause (6) further recognizes an employee’s entitlement to public (Award) holidays even while on annual leave by providing as follows:

(6)  If any award holiday falls within an employee's period of annual leave and is observed on a day which in the case of that employee would have been an ordinary working day, there shall be added to that period one day being an ordinary working day for each such holiday observed as aforesaid.

8         There is no doubt in my mind that the Award provides for that which applies to most employees and which has been accepted and applied during my forty five or so years in the workforce; that is, days off with pay for the prescribed public holidays.

9         The Respondent denies that the employee in this case is entitled to any penalty or compensation for the Australia Day public holiday and relies on the Buttercup Bakery Malaga (WA) Enterprise Agreement 2001 (the Agreement) which was registered pursuant to the provisions of section 41 of the Industrial Relations Act 1979 (the Act) on 22 February 2002.

10     The intent of the Agreement is set out in clause 3 as follows:

3. INTENT OF AGREEMENT

3.1                          It is the intention of this Agreement to maintain and foster improved industrial relations in Quality Bakers Australia Limited t/a Buttercup Bakeries – Malaga (the employer).

3.2                          This Agreement facilitates the parties’ aim of creating a harmonious industrial relations environment between the Unions and the employer by ensuring, inter alia, the consistent implementation of fair and practical procedures to manage change and resolve disputes.

3.3                          The objective of this Agreement is to develop and maintain a culture of trust, consultation and co-operation with the view to achieve a significant improvement in the competitive performance of the employer.

3.4                          From the outset it needs to be emphasised that the products of the Employer are perishable and the total operation must be geared to produce, transport and sell the product within a short time frame.

3.5                          A program of continual workplace review and reform is essential and all parties are committed to co-operate and participate fully in this endeavour.

3.6                          The general aim of this Agreement is to operate within flexible, responsible parameters to meet dynamic customer and market requirements.

3.7                          To foster a spirit of co-operation in achieving a reduction in workplace injuries.

11     It was the Respondent’s intention, according to its witness Mr David Jeffery, that there be a single agreement applying to all employee members of the three unions involved which provided for flexible shifts to meet the needs of its customers.  As a result employees were required to work three shifts on a rotating basis.  Each shift involved an employee working forty hours over four days of each shift which were as follows:

Shift 1 ran from Sunday through to Wednesday.

Shift 2, Sunday and Monday and Thursday and Friday.

Shift 3, Tuesday through to Friday.

12     When, for example, there was a public holiday on a Monday, those employees who were working shifts 1 and 2 worked on the public holiday (Monday) and had the day before off (i.e. the Sunday).  The effect of that was or is that the employee works three days and is paid for four.  Not quite as is required by clause 10(4)(a), but a clear acknowledgement that there is an entitlement with regards to public holidays.

13     Those employees who happen to be rostered on shift 3 are on a rostered day off on Monday and receive no compensation, benefit or acknowledgement for or of the public holiday.  They are paid ordinary hours for the four days they work and that, according to the Claimant, is in breach of clause 7(5) of the Award which provides:

(5)  In a week in which an award holiday/holidays falls on what would otherwise be an ordinary working day/days, the ordinary weekly hours shall be reduced by the number of hours that would have been worked on that day/days.

14     The Respondent argues that clause 7. - Hours of the Award does not apply because the Agreement provides for hours of work in clause 17 as follows:

17. HOURS OF WORK  (ALHMWU - Breadline only - Bakers)

17.1  Ordinary hour shifts can commence on any day Sunday to Friday inclusive.  The ordinary hours of work (excluding casuals and part time employees) must be an average of 38 hours per week with a minimum of 6 hours and a maximum of 12 hours on any one day.

17.2  The ordinary daily working hours must be worked continuously exclusive of any meal breaks.

17.3  The rotating shift structure is 3 Teams working up to 10 hours per day over 6 days with each team working 4 shifts.  Each employee must have a minimum of 2 consecutive days off (or a minimum of 48 hours) every week (i.e. a week = Sunday to Friday).

17.4  Rosters once set may be changed with consultation and agreement between the company and the employee/s concerned.  After consultation and in the absence of agreement the changes may take effect after 1 months notice.

17.5  The 27.88% penalty structure applies between 6:00am Sunday and 6:00am Saturday.

17.6  No employee is to exceed a maximum of 12 hours continuous duty.  In cases of emergency and then only with the agreement of all of those employees affected can the hours worked exceed a total of 12 hours but cannot exceed a total of 16 hours.  If any employee feels fatigued during such extended hours of work to such an extent that their continued presence in the workplace may be a health and safety matter then the employer must ensure they be relieved from their duties.  The employer is to ensure appropriate transport is arranged for the employee to get home.  At all times the employer must ensure that, especially in circumstances of ‘extended hours’ there is a safe work environment and sufficient staffing to ensure a safe working environment.

17.7  An employee temporarily transferred to the breadline must receive pro-rata annual leave entitlements for the time they are on the breadline.

17.8  All time worked in excess of 12 hours on any shift must stand alone and be overtime paid for at the rate of double time.

17.9  Each of the breadline employees have an annual entitlement to 5 weeks (190 hours) annual leave.

15     Nowhere in the Agreement is there mention of public holidays and it would appear from the evidence that the parties did not particularly turn their minds to the issue of public holidays.  Mr Shane O’Reilly, a union official and witness for the Claimant, gave evidence that public holidays were not mentioned during negotiations for the Agreement and there was no need to discuss them.  Mr Jeffery said in his evidence that public holiday penalties would stay the same and confirmed that public holidays were not discussed.  He went on to say all employees get ten public holidays a year.

16     Mr Jeffery represented the Respondent at a meeting held on 26/27 March 2001 and presented slides including one which made a comparison of the current and proposed days off (see exhibit G).  The slide (which was probably an overhead projection) showed the following:

Days Off

●  Current                                                         ●  Proposed

96 days/Yr off (2 days/wk)                                      141 days/Yr off (3 days/wk)

10 days Public Hols.                                             10 days Public Hols.

20 Days A/L                                                          25 Days A/L                    

126 days off pa (18 wks)                                         176 days off pa (25.14 wks)

17     As I understand the evidence, what was proposed was put into effect.

18     It was conceded by the Respondent that its employees are entitled to ten days public holidays each year and it argues that they get those holidays either by the method used for the shift 1 and 2 workers or by having the Monday public holiday off if working shift 3, for example.

19     The Respondent also argues that while there may be some apparent discrimination in any one week, overall the rotating shift system compensates by all employees having the same number of public holidays on which they work and have off.

20     It follows, of course, that even if that were the end result, and I doubt that it would be, all employees would be off on a number of public holidays for which there would be no compensation.  I have been asked to accept that the five days extra annual leave was to compensate for the missed public holidays but, from the evidence, that was never the intention nor provided for in the Agreement.

21     Section 41(1) of the Act provides that:

An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organisation or association of employees and any employer or organisation or association of employers.

22     Section 41(9) reads:

To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise.

23     The Agreement provides in clause 6 that it is to be read and interpreted wholly in conjunction with the four awards mentioned including the Award in this case.  Subclause (2) of that clause is similar to section 41(9) of the Act and reads:

Where there is any inconsistency between the Award(s) and this Agreement, this Agreement will take precedence to the extent of the inconsistency

24     As I have mentioned, there is nothing in the Agreement which is inconsistent with the Award in relation to public holidays.  The Agreement is silent on the question of public holidays.

25     I have been referred to a number of authorities by the Respondent which deal with the question of interpretation of awards and agreements, including Norwest Beef Industries Limited and Another v WA Branch, Australian Meat Industry Employees Union 64 WAIG 2124 which is often referred to where ambiguity is raised and an interpretation is required.  My attention has not been directed to any alleged ambiguity in the Award or any clause where the ordinary meaning of the words used causes any difficulty.  As Commissioner Beech (as he then was) said in The Media, Entertainment and Arts Alliance of Western Australia (Union of Employees) v Western Australian Sports Centre Trust 80 WAIG 1674 at 1675:

“… I am not persuaded that where an industrial agreement is silent regarding a particular issue, the absence of a provision is taken as being ambiguous.”

26     It is my view that if it was the intention of either party to an agreement that employees are to forfeit such a fundamental right as public holidays, the agreement must clearly provide for such a forfeiture and if it was intended by a party, as is claimed in this case, that the forfeiture is to be compensated by five days extra annual leave, the agreement should reflect that.  The Agreement in this case makes no mention of public holidays and, therefore, the Award entitlement applies.

27     To argue that Mr Delaney, in this case, was rostered off on 27 January 2003 and, therefore, enjoyed the benefit of the public holiday is inconsistent with the intention of the Award in clauses 10 and 7(5).

28     I find, therefore, that there has been a breach of the Award and the employee, Wayne Delaney, is entitled to be paid the amount claimed.

WG Tarr

Industrial Magistrate