CATCHWORDS Industrial law - interpretation of award - penalty payable to employee in respect of work performed on a clear day rostered off — shift in respect of which penalty is payable. Conciliation and Arbitration Act 1904 5.110 Television Industry Award 1977 clauses 7, 8 10 and 11. - CANBERRA TELEVISION LTD. AND ORS. v. THE AUSTRALTAN THRATRICAL AND AMUSEMENT EMPLOYEES! ASSOCIATION No. 29 of 1978 Coram: Bowen C.J., Smithers and Northrop JJ. 14 June 1979 yon oee Sydney Ve aT Pathe tri ee cs Ntetan ta cot NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION IN THE FEDERAL COURT OF AUSTRAT, TA { No. 29 of 1978 ) IN THE MATTER of the CONCILIATIOY AND ARBITRATION ACT 1904 BETWEEN: CANBERRA TELEVISION LT). A™D ORS. Appellants AND: THE AUSTRALTAN TIPATRICAL & AMUSEMENT EMPLOYEES! ASSOCIATION Respondent ORDER JUDGES MAKING ORDER: Bowen C.J., Smithers and Northrop JJ. DATE OF ORDER: 14 June 1979 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The order appealed from be varied to read as follovws:- That on the true meaning and interpretation of the Television Industry Award 1977: \ "3 IN THE FEDSRAL COURT OF AUSTRALIA ) ) had _ NEW SOUTH WALES DISTRICT REGISTRY ) No. 29 of 1978 ) INDUSTRIAL DIVISION ) IN THE MATTER of the Conciliation and Arbitration Act, 1904 " BETWEEN: CANBERRA TELEVISION LTD. AND ORS. - Appellants AND: THE AUSTRALIAN THEATRICAL & AMUSEMENT EMPLOYEES' ASSOCIATION Respondent CORAM: Bowen C.J. Smithers J. Northrop J. 14 June 1979 REASONS FOR JUDGMENT BOWEN C.J. This 1s an appeal from an order of a single Judge of the Court. Application was made to his Honour by the Australian Theatrical and Amusement Employees' Association, the Respondent on this appeal, joining Canberra Television Limited and Others, the Appellants, seeking an interpretation of the Television Industry Award 1977. The facts and the terms of the relevant clauses of the Award are set forth in the Reasons for Judgment of Smithers J. In my opinion the Award applies in the following way:- 1. The ordinary hours of work must not exceed 40 SET ST TEE ERA FS PI TOMEI PN TM STII PRT RE RTM SY RL EP UR ak TI ST PPO TE EN RROOPSTR POAT [ae anes nace rae TE oe ted vmenit hours per week or 80 hours per fortnight or 120 hours in three consecutive weeks, to be worked wherever reasonably possible in shifts of 8 hours per day and in any event not exceeding 9 hours per day (exclusive of meal periods) (cl. 7(a)). There is provision dealing with an exception but this is not relevant for present purposes (cl. 7(b)). All employees under the Award must be rostered for their ordinary hours of work in accordance with cl. 8. The Award is constituted on the basis that it will be obeyed, that is to say, that such a roster will be prepared, that it will comply with the requirements of cl. 8 and that it will be posted at the place and within the time specified. One particular requirement should be noticed. All rosters must be such as to allow one clear day off in each roster week and to aggregate six days off in each three week cycle (cl. 8(j)). Some complication is introduced by a provision in cl. 8(j) that clear day shall in certain circumstances mean on any day not less than thirty hours, and shall in other circumstances mean on any day not less than thirty-six hours and in all cases where two or more days off are given consecutively the second and subsequent days shall comprise twenty-four hours. Clause 8 which deals with rosters and clause 10 which provides for overtime, countenance some flexibility in the roster:- (1) Where an employee receives seven clear pew ll te Oe tal eH at a a days notice or more of a change of roster then payment is made at ordinary rates (cl. 8(b)). (ii) Where an employee receives less than seven days but more than twenty-four hours notice of a change of roster, then pursuant to cl. 8(b) payment is made at the rate specified in cl. 10(a). (iii) Where an employee receives less than twenty- four hours notice of a change of roster which requires that employee to work on a day for which he would otherwise have been rostered off; he is entitled to payment under cl. 10(c). An employee who does not receive a clear day (or clear days) off as provided by cl. 8(j) must be paid in accordance with cl. 10(f). Cl. 10(f£) seems appropriately worded to cover the case where an employee does not receive his clear day (or clear days) off as provided in cl. 8(j) by reason of a change in his roster. The wording would be less appropriate to cover the case where his roster originally failed to provide such clear day (or clear days) off. It would in such a case be difficult to apply the method laid down for determining the tame For which he gets paid in accordance with cl. 10(£). The Award seems to be constructed upon the basis that this latter situation will not occur, perhaps, on the ground that it would be regarded as a breach of the Award. The provision made by cl. 10(f) may in some circumstances produce odd consequence and in all circumstances where it operates would appear to impose ~ a substantial burden upon the employer, but this seems to be deliberate. Whereas other provisions referred to appear to be designed to provide a proper recompense to the employee, cl. 10(f) appears to be designed primarily to bring down a sanction on the employer who deprives his employee of the minimum rostered days off provided for by cl. 8(j)). In other words it appears to be directed rather at ensuring that the employee will receive his minimum rest and recreation rather than to giving him recompense if he is deprived of it. I would vary the wording of the order made by the learned trial Judge so that it reads as follows:- "An employee who does not recetve a clear day (or elear days) off as provided in elause 8(7) of the Award because he performs vork on a elear day which was a rostered day off, trrespecttve of that work being overtime at the finish of the shift prtor to a rostered day off or vrtor to the eommencement of a shift following a rostered day off, ts entitled to payment at the vate of double lime for atl ordinary time actually worked in the next rostered shtft following the rostered day (or days) off." eI I certify that this audthe 'three. l preceding pages. . 7 €& copy of the | Reasons for cv. -n cf his Honour | the Chief Judge, tii h.gel Bowen | Marvaeret Allaws Assdcirate | Dated: IG -G-74 SRT RTT OG TGS ER IT INGE TET I NEI I EL EEE ATES TEE Oe eT LETTE ATE IS iv con gaia meee as It] THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY } N.S.W. No. 29 of 1978 INDUSTRIAL DIVISION ) IN THE MATTER of the COMCILIATION AND ARBITRATION ACT 1904 BETWEEN: CANBERPA TELEVISION LTD. & ORS. Appellants AN D: TRE AUSTRALIAN THEATRICAL & AMUSEMENT EMPLOY2&ES ! ASSOCIATION Respondent CORAM: Bowen C.J., Smithers and Northrop JJ. 14 June 1979 REASONS FOR JUDGYENT SMITHERS J.: This 1s an appeal from an order of @ single Judge of the Court made upon an application by the respondent for an interpretation of the Television Industry Award 1977 (the Award) under s.110 of the Conciliation and Arbitration Act 1904. The appeal is brought under s,.24(1)(a) of the Federal Court of Australis Act 1976. both the eppellants and respondent were parties to the Award, The interpretation of the Award sought by the respondent was that each employee being entitled to the benefits of clause 8(g3)'(set out below) 1n respect of each clear day (or clear days) off provided for therein, when: "such clear day (or days) is not granted the provisions of 10(f) apply where the employee performs any work on his rostered day off such work including overtime either at the end or commencement of a shift prior to or following a rostered day off where such overtime intrudes upon the rostered day off as defined. Accordingly the employee would in such a situation be ertitled to payment under clause 10(c)." The order made by the learned trial Judge which is appealed from is in the following tcorms:- "THE COURT ORDERS THAT: That on the true meaning of aminterpretation of the Television Industry Award, 1977: 'An employee who does not receive a clear day or days off because he works on a clear day rostered off, whether that work be overtime at the finish of the day prior to the rostered day off or prior to the commencement of the shift following a rostered day off, 1s entitled to payment for all ordinary time actually worked in the next rostered shift following the rostered day or days off't." The payment referred to is clearly payment at double time under clause 10(f). The application for an interpretation prancipally concernec clauses 7, 8, 10 and 11 of the Award. The relevant provisions ofclauses 7, 8 and 10 are set out:- dt HOURS OF WORK (a) The ordinary hours of work shall not exceed 40 hours ver week or 8&0 hours per fortnight or 120 hours in three consecutive weeks, to be worked wherever reasonably possible in shifts of 8 hours ner day and in any event not excceding 9 hours per day, (exclusive of meal periods)..." "8, = ROSTERS All employees under this award shall be rost- ered for their ordinary hours of work in accordance with the following provisions:- (a) All rosters shall specify the commencing and finishing times of the ordinary hours of work of the respective shifts for each employee. (b) The rosters shall be posted at the station concerned at least seven clear days before they come into operation, provided that a roster may be departcd from at short notice in cases of emergency over which the employer has no contrel. Provided further that an employee who receives less than seven clear days notice of a change of roster shall be vaid at the rate specified in Clause 10 sub-cleuse (e) of the award for all time worked during the first shift resulting from such change that falls outside his rostered shift ... (d) An employee is entitled to a minimun period of ten hours break between the finish of his work on one day and the start of his work on the next day. Provided that if an employee, on instructions from his employer resumes work without having such a break, ne shall be paid at the rate of double time for all the time worked until he has had a break of at least ten hours, (c) Rosters may be spread over one, two or three weeks of ordinary time. (f) Where a roster vrovides for less than four hours the shift shall be deered to be one of four hours ordinary time. (g) A roster shall not provide for more than one shirt of four hours in any roster week. ~— ihe (h) (3) (k) (a) if by agreement or otherwise an cmployee is rostered in any week of the roster to work not more than 24 ordinary hours, such hours shall be rostered in not more than three shifts and 1f he is so rostered to work not more than 32 ordinary hours shall be rostered in not more than four shifts. Except with the consent of the Union or Unions where members are concerned, rostered ordinary hours shall not exceed 48 in any week of the roster, All rosters shall be such as to allow one clear day off in each roster week end to aggregate six days off in each three week cycle. Employees of Schedule A respondents in the classification of Senior Director (number 1), Director Grade A (number 3), Director Grade B (number 11), and Director Grade C (number 19) shall be allowed one clear day off in each week and to aggregate six deys off in each three week cycle, but in all other respects Clause 8 does not apply to employees in those classifications. In this sub-clause a clear day shall mean:- (i) subject to the provisions of sub- paragraph (iit) hereof, in the case of an employee whose last preceding shift ended at or after 7 p.m. on any day, not less than thirty hours; (i2) Subject to the provisions of sub- paragraph (1i1) hereof, in the case of an employee whose last preceding shift ended before 7 p.m. on any day, not less than thirty-six hours; (iii) in all cases where two or more days off are given consecutively, the second and subsequent days shall comprise twenty-four hours. Where an employee's rostered day off falls on a public holiday, such employee shall be allowed an additional day off or have an additional day added to his Annual Leave or be paid an additional day's pay in lieu thereof asmay be agreed between the employer and the employee." "10. - OVERTIME All time worked by an employee in excess of the ordinary hours shall be overtime and shall be paid for as follows: -+ (b) (f) (g) (i) At the rate of time end a half for the first two hours and double time thereafter, Monday to Friday inclusive. (ii) At the rate of time and three quarters for the first two hours and double tine thereafter, on Saturdays. (iii) At the rate of double time for Sundays. (iv) At the rate of double time and one half for public holidays ..." In computing overtime each day's work shall stand alone, provided that where the overtime commences on one day and continues after midnight without interruption other than for meal breaks the overtime shall be paid as having been worked on @ continuous basis. Except in the case of a change of roster of which the employee hes had 24 hours notice, an employee who is required to work on any day for which he is rostered off duty pursuant to sub-cleuse (j) of Clause 8 of this Award shall be entitled to payment at the rate of double time for all time worked or double time and one half for public holidays with a minimum payment as for four hours worked. Except in the case of overtime worked in accordance with 10(c) above, where an employee having completed his work and having left his place of work is recalled for work not continuous with his next rostered shift he shall te paid for that call two hours at double time and in addition overtime at the rate of double time for all time worked on that call. ... An employee wno does not receive a clear day (or clear days) off as provided in clause 8 sub-clause (j) rosters shall be paid at the rate of double time for all ordinary tine actually worked 1n the next rostered shirt following the rostered day (or days) off. When requested by the employer an employee shall work such overtime as 1s necessary to moet the reasonable needs of tne employer," tae Ww The application raises difficult questions of construction of clauses of the Award making complicated provisions with respect to employment, rosters and overtime. Ina set of provisions dealing with such complicated matter it would not be surprising that what appear to be anomalies might lurk whatever interpretation 1s adopted. Accordingly it appears to me that if an overall objective of the Award, rational end fair in content and without significant anomalies, can be perceived that objective should be given considerable weight in the construction of andividual clauses of the Award. To my mind it 1s possible to perccive the objective of the Award relevant to the questions raised. That general objective is to provide one clear day in each week and six clear days in each three week cycle as days for rest and recreation but to permit invasion of all rostered rest days subgect in certain circumstances to payment of penalty rates in respect of the time actually worked when such rest days are anvaded and penalty rates for an additional shift worked in ord- inary time where the clear day off in each week or the six days off in each three week cycle are not received. According to the Award, the ordinary hours of work shall not exceed 40 hours per week or 80 hours per fortnight or 120 hours in three consecutive weeks, to be worked wherever reasonably possible in shifts of eight hours per day and in any . event not more than nine hours per day exclusive of meal periods (Clause 7(a)). All time worked by an employee in excess of ordinary hours shall be overtime and paid for at time and a half for the first two hours and double time thereafter Monday to Friday, at the rate of time and three quarters for the first two hours and double time thereafter on Saturdays, double time Sundays and the rate of double time and one half on public holidays (clause 10(a)). In computing overtime each day' work shall stand alone, but where the overtime cxtends over midnight it will be treated as continuous (clause 10(b)). The ordinary hours of work are to be rostered in accordance with the following provisions of clause 8:- (a) commencingand finishing time to be stated; (b) rosters may spread over one, two or three weeks of ordinary time; (c) a roster may provide shifts shorter than eight hours, but if less than four hours shell be deemed to be four hours; (d) not more than one shift of four hours in any roster week shall be provided; (e) the rosteris to be posted up at least seven clear days before it comes into operation, but it may be departed from on short notice in cases of emergency over which an employer has no control. (Hereafter I refer to such an emergency merely as an emergency). It is said by the appellant that the intervretation declared in the judgment under appeal operates in so anomalous wae ht ate ee * a manner in certain situations that it 1s not to be thought that the Award on its proper interpretation could so provide, Exemplifying one anomaly it is pointed out that the interpretation adopted in the gudgment appealed from contemplates that in 4 situation in which with less than twenty-four hours notice an employee 1s reouired to work for a period, no matter how short, on a day which is his rostered off day he will, pursuant to clause 10(c) of the Award, be entitled to double time as for four hours work, and also pursuant to clause 10(f) to double time for all ordinary time actually worked in the next rostered shift following the rostered day off. It is said also that according to the interpretation adopted in the judgment under appeal an employee who enjoyed one clear day off, where in a particular week he worked on each of two non-consecutive days in that week which were days in respect of which he had been rostered off, may be paid for each day at rates prescribed by clause 10(c) and also reccive two payments at the penalty rates provided in clause 10 (f). It would seem that the interpretation adopted in the judgnent under review would entitle an cmployee who works on one only of two or more rostered days off in any week to a payment in accordance with penalty rates. provided in clause 10(£). The general submission of the appellant was thet cleuse 10(f) should be interpreted as having application only in cases where in respect of time worked on a rostered day off penalty rates were not payable pursuant to clause 10(c), or it would seem under some other provision of the Award. aa However, it was submitted for the respondent that the so-called anomalies were not such as to require that the plain meaning of clause 10@)should be qualified or modificd. It was said that what are called anomalies are in reality merely what some persons might regard as provisions for high penalties for loss of rest and recreation. It was said thet the provisions did not involve any internal contradiction between terms of the Award or any incongruity. It was argued that so far as the degree of burden on the employer arising from the provisions was relied upon, that vas a matter for the judgment of the Award making authority. It appears to me that there is much force in these submissions. The questions arising in this case are to be determined by ascertaining the meaning of the Award upon ordinary principles. Qualification of the meaning of the provisions of the Award according to the ordinary and natural Inganing thereof in response to the suggested anomalies could only be gustified were there some ambiguity in those provisions which called for resolution by reference tothe anomalies. I do not think that this 1s the case in relation to this Award. As will be seen in what follows it 1s my view that by reason of the terms of the Award,particularly clauses 8(b) and 10(c), an original roster which may be for one, two, or three weeks may be changed at short notice after being posted. If it is changed in such a manner that notwithstanding the chtnge the employee receives his one clear day off then he will have received his one clear day off "as provided in clause 8(3)" although the day received is not the day which was a rostered off day according to the original roster. When the first part of clause 10(f) is applied the question 1s not whether the emplcyee worked on a dey or days in respect of which he was previously rostered off but whether he had received one clear dey off in a particular week or six days off in a particular three week cycle. What I cali the first part of clause 10(f) lays down the conditions under which the penalty rates referred to are payable. That part of clause 40(f£) which specifies the rates and the relevant shifts in respect of which they -.are payable, I call the second part. Where the answer to the enguiry referred to above is that in respect of the particular week or the particular cycle the employee did not receive one clear day off in the week or six clear days off in the three week cycle 1t becomes necessary to consider what shift it is that is comprenended by the words in clause 10(f) "the next rostered shift following the rostered day (or days) off". Of course if it has happened in a week that the employee was originally rostered off for the last day or the last two days of a particular weck but by departure from or change of the roster at late notice he was required to work on that day or those days, then that day or those days become days in respect of which according to the roster as amended, he was rostered on. Accordingly to find the shift SN eee referred to in the second part it 1s necessary to ascertain with respect to which roster the rostered day(or days) off are to be identified according to the final words of clause 10(f). It appears to me that on the proper inter- pretation of that sub-clause the rostered day referred to at the end thereof 1s a day on which the employee actually worked and which until the final change of roster whereby he was reauired to work on that day, was a rostered day off either according to the original roster or that roster as amended. Where there is more than one of such days in any week or three week cycle the relevant rostered day off will be the last of such days. No doubt repeated changes of roster would be exceptional and the relevant rostered day off would usually be a rostered day off according to the original roster. The shift in respect of work om which the penalty rates provided in clause 10(f) are payable 1s the first shift after that day on which the work done is ordinary work, Ordinary work means work performed at - ordinary rates. It appears to me that, although it is not critical to this decision to so hold, the first proviso to clause &(b) permits an emergency departure from the roster without the employer being subjected to any penalty thereunder in respect of the work done on the relevant rostered off day. But from time to time it would no doubt be necessary or at least desirable for the employer to depart from the roster in circumstances other than an emergency. It would seem that the second proviso is intended to cover such cases. What it envisages is that the roster may be changed with seven days notice or less than seven days notice. The amplication is that a change of which seven days notice is given attracts no penalty, but a change on less than seven days notice involves payment for the hours worked on the day which had originally been a rostered off day at the overtime rates provided in clause 10(a). Where the notice is of less than twenty-four hours clause 10(c) takes the matter up and provides higher rates of payment. If a change of roster 1s permissible, on terms of course as to penalty rates where applicable, then for the purpose of the construction of clauses 8 and 10 two or more rosters may be aunvolved. First the roster as originally posted and second that roster as amended. Thus, for instance, if a roster for a week provided for a particular clear day off, the employee may be required to work on that day as if 1t were a rostered day on. In such a case he would probably have received notice of the change less than seven days before the day affected by the change. Therefore subgect to clause 10(c), he would receive clause 10(a) rates for the appropriate period of ordinary work performed on the day originally rostered off. From the very terms of clauscs 8(b) ard 10(c) it 1s clear that theprinciplethat a roster may be changed is accepted. The penalty orovisions therein are consequential on this. Tt 1s involved 1n thas concept that gust as a rostercd day off may become an amended rostered day on, so a day originally rostered on may be converted to a rostered day off. Accordingly, where even apart from an emergency, there 1s a change of roster on seven days notice as contemplated by clause 8(b) there 1s no penalty thcreunder merely because of the change. But if the change were such as to cause the employee not to "receive" one clear day off in any week, or less than six days off in three weeks, then there would be a penalty pursuant to clause 10(f). But the change of roster need not necessarily cause the employee not to "receive" the prescribed clear day, orsix days off, in any week or cycle of three weeks. For the purposes of clause 10(f) at as only one clear day in each particular week end six clear days for each three week cycle which arecritical, so that if clear days originally rostered off are rostered on and the employee works on such days, those days may, 1f time permits, be made up by appropriate amendment of the roster to provide alternative clear days off. There is no penalty provided for raostering off a day originally rostered on. The penelties attach to work performed on days previously rostered off. In the cvent of notice of change of roster pursuant to which an employee is reguired to work on a day for which he wes originally rostered off, then, 1f that notice is less than seven days the penalty is that provided for in the second proviso to clause 8(d), subject to the aualification that if the notice be of less than twenty-four hours -the overvime rates provided in clause 10(c) are applicable. From the terms of clause 10(c) it ais to be gathered that when on noticc of twenty-four hours or more an employee is required to work on a day originally rostered as a day off, the concept is that a change of roster has occurred. The same must be true where less than twenty-four hours notice has been given, But in the latter case the overtime rates pruvided by clause 10(c) are payable rathcr than the rates provided for payment in clause 8(b). Accordingly subject to penalties, under clauses 8(b) and 10(c), a great deal of flexibility is accorded to the employer as to the actual days and times on which the employee may be rostered on or rostered off. Recognising that this flexibility may result in the employee not receiving proper days off for rest and recreation, cleuse10(f) provides for a penalty designed to discourage roster changes that might have that effect. That sub- clause takes up the clear day provisions of clause 8(g3) that the roster shall allow one clear day off in each roster week and six clear days off in each three week cycle and provides that if the employee does not receive a clear day (or clear days) off as so provided then Act ten, the penalty rates for a designated shift shall be payable. It 1s to be observed that clause 10(#) doves not provide that the penalty shall apply if a day or2zginally rostered off is a day when in fact the employee was required to work. It is concerned only with the position as observed at the end of each week and at the end of each cycle. The enquiry is not whether the employee worked for some period on any day in respect of which he was originally rostered off. The enquiry at the week's end 1s: did he receive one clear day off? Of course in obedience to clause 8(3) all rosters, originel or amended, must provide for the one clear day off each week and for six clear days off in each three week cycle. The relevant clauses are constructed on the basis thet this provision will be observed. An original roster which did not comply with this provision would be a breech of the Award. Accordingly an employee who worked for a whole week 1n accordance with a roster which originally did not roster him off for at least one day, must be considered as having failed to receive one clear rostered day off. He 1s certeinly an employee wno did not receive a clear day off "as provided by cleuse 8(j)". There 1s some difficulty in the application of clause 10(f) in such a situation beceuse there 1s no rostered day off by reference to which to identify the shift in respect of which the penalty rates provided for in clause 10(f) are to be paid. i1t may be that in such a case an implication arises that the end of the week or of the three week cycle is to be regarded as the rostered off day by reference to wnich the penalty shift should be ascertained. But 1t 1s unlikely thet any original roster would fail to provide for the rostered off days prescribed by clause 8(j) and it 1s not necessary for present purposes to detcrmine finally what the consevuences of such a breach of the Award would entail. It may be noted that the provisions of s.119 of the Conciliation and szrbitriation Act 1904 would be applicable, But an amended rostor may well be such that the rostered off day or days in any week may become a rostered on day or days without any of the originally rostered on days being changed to rostered off days. In that case 1t would follow that in that week the employee had not received his one clear day off and so had qualified for the penalty payment provided by clause 10(f), The relevant shift with respcet to the work on which the paymcnt would be calculated would,és indicated above be the last dey on which work was done, which prior to the employee being required to work thereon was a rostered off day. It is to be noted that although an amended roster, like the original roster, must provide for at least one rostered day off in the week, the Award does not require that there be more than one rostered day off in any particular week, Ina case, where for instance, during a week, work was performed on one of two rostered off days and less than twenty-four hours notice to work during that day was received by the employee, it would be true to say that the employee had worked on a rostered dey off. But 1f during that weck he "received" his other rostered day off, then at the end of that week it also would be true to say that he had received one clear day off as provided in clause 8(j3) and clause i0(f) te would not apply. The fact that the roster of any particular week actually allowed two clear days off, and that one of these was not "received" does not mean that at the end of the week the employee had not received a clear day off as provided in clause 8(9g) Clause 10(f) provides venalties if the employee does not "receive" a clear day (or clear deys) off as provided in clause 8(j). The words "or clear days" where they appear in brackets in clause 10(f) are clearly a reference to the six days of the cycle as opposed to the one day of the week specified in clause 8(j). The expression "clear day (or clear days) off" in clause 10(f) sits comfortably with clause 8(3) and of course that clause is expressly referred to therein, But of course the loss of one of the clear days off provided for in the roster might mean that unless five days had been rostered off during the later weeks, if any, of the cycle, or steps were taken to provide such days off by changing the original roster for those weeks, then at the end of the three week cycle, the employee would not have received the six days off as provided by clause 8(j). In thet event cleuse 10(f) would come into operation and the penalty payment provided therein would be paid for the shift designated in clause 10(f), The intention of clause 10(f) is not to preserve the inviolability of the roster, but to ensure that the basic rest and recreation requirements of clause 8(j3), namely at least one day off each week or six days off in each three week cycle are enjoyed. In applying clause 10(f) at the end of each three week cycle the criterion 1s whether the employee has received six rostered days off. If by being called upon to work during that cycle on any rostered day off, for no mattor how short a time, the employee has not, at the end of the three week cycle received in full, six rostered days off, then he would be within the terms of clause 10(f) an employee,who had not received "clear days off" as provided in clause 8(3),and the provisions of clause 10(f) would apply. It 12s to be observed that in respect of time worked on any day which was a rostered off day the employee receives higher rates in accordance with clauses 8(b) and 10(c) unless the work was performed on that day as a result of an emergency or upon seven days notice of change of roster. The penalty rates are the consideration for a change whether or not it causes the employce not to receive his one day off in a week or his six days off in a three week cycle, If the change does involve either of those deprivations of time off, clause 10(f) applies and imposes another penalty. When an employee is required to work on a rostered day off the time he works, notwithstanding clause 10(a), is not overtime. Certainly there is no suggestion that it is overtime in the case of a change on less than seven days and more than tventy-Sour hours notice. Clause 10(c) is in the overtime section of the Award, but it is clear from its very terms that even time worked on an originally rostered day off is time worked according to a changed roster, It is essentially a changed roster and not overtime whether there was seven days notice or 24 hours or less notice, but in the latter case the additional penalty akin to an overtime rate, is payeble under clause 10(c). Of course if the change of roster occurs in the last week of the cycle, it will be very likely that it will be impossible to give the employee his six days off and accordingly clause 10(f) will epply. Accordingly, I consider that according to the true meaning of clause 10(f) the penalty therein imposed is applicable where in respect of any roster week the employee has not "received", that is enjoyed, one clear rostered off day and in respect of each three week cycle referred to in clause 8(j) an employee has not "received", that 1s engoyed, six clear rostered off days off, and that in respect of any 'week in which one clear day off was not received, double time for all ordinary time actually worked in the next rostered shift following the day rostered off but which was not "received!" is payable, and in respect of any cycle of three weeks referred to in clause 8(j), double time for all ordinary time actually worked in the next rostered shift following the last day orzginally rostered off but which was not "received" 1s payable. If at the end of a three week cycle the employee has not received six clear days in the cycle and also has not received one rostered off day off in that last week then two occasions for imposition of the clause 10(f) penalty payment will have occurred, If at the end of a cycle clause 10(f) imposes a penalty for non-receipt of one clear day off in the last week and a penalty for non-receipt of six clear days off in the three week cycle the penalty rates pursuant to clause 10(f£) 1n respect of each occasion may, according to that clause, both be payable in respect of the same shift when ordinary time is worked. sn such case clause 11 will apply. it provides that the retes prescribed as payments additional to minimum ordinary weekly rates, shall not be cumulative so as to exceed the maximum of double time except on public holidays when the maximum shall be double time and one helf. It 1s not contemplated by the Award that any three week cycle shall overlap with any other such cycle. The commencing time of the three week cycle in respect of any employee will be de- termined as a matter of fact according to the circumstances of his employment including the commencing date and its continuity. The order appealed from should be varied to read:- "That on the true meaning and interpretation of the Television Industry Award 1977: tAn enployee who does not receive a clear day (or clear days) off as provided in clause 8(J3) of the Averd because he performs work on a clear day which was a rostered day off irrespective of that work being overtime at the finish of the shift prior to a rostered day off or prior to the commencement of a shift following a rostered day off, 1s entitled to payment at the rate of double time for all ordinary time actually worked in the next rostered shift following the rostered day (or days) off." set 0 chy aoa { sy ue Cu Peres ova 4 toue copy of the te Teaco s for Judgment herein of his Honour "rr, gustice DSmith#rsS — th "ep A bn / wmor Associa. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 29 of 1978. INDUSTRIAL DIVISION BETWEEN: CANBERRA TELEVISION LTD. & ORS. Appellants and THE AUSTRALIAN THEATRICAL AND AMUSEMENT EMPLOYELS' ASSOCIATION Respondents NORTHROP J. REASONS FOR JUDGMENT 14 dune, 1979. This 1s an appeal from an order under s.110 Conciliation and Arbitration Act 1904 as amended, made by the Federal Court of Australia constituted by a single Judge and raises for consideration the interpretation of the Television Industry Award 1977, the Award, made under the Act. Clause 10 of the Award is headed "Overtime" and clause 10(f) is as follows:- 7 "An employee who does not receive a clear day (or clear days) off as provided in clause 8 sub-clause (3) rosters shall be paid at the rate of double time for all ordinary time actually worked 1n the next rostered shift following the rostered day (or days) off." The order appealed from was made on 14 November 1978 and is as follows: "That on the true meaning of and interpretation of the Television Industry Award 1977: '~. 'An employee who does not receive a clear day or days off because he works on a clear day rostered off, whether that work be overtime at the finish of the day prior to the rostered day off or prior to the commencement of a shift following a rostered day off, 1s entitled to payment for all ordinary time actually worked in the next 2. rostered shift following the rostered day or days off'." At the outset it is noted that there appears to be a typographic mistake in the form of the order in that the rate of payment is not specified, but this does not affect the issue to be decided on this appeal. The award 1s binding upon a number of organizations, including the Australian Theatrical and Amusement Employees' Association, the respondent, and a large number of employers, the appellants. The Award binds the appellants with respect to all employees, whether Members of the organizations or not, employed by them in the classifications specified in the Award, The Award makes provision for conditions of employment, including wage rates, to be observed by the appellants, Clause 7 of the Award is headed "HOURS OF WORK" and is as follows:- "7. - HOURS OF WORK. (a) The ordinary hours of work shall not exceed 40 hours per week or 80 hours per fortnight or 120 hours in three consecutive weeks,to be worked wherever reasonably possible in shifts of 8 hours per day and in any event not exceeding 9 hours per day, (exclusive of meal periods)..." Clause 7(b) provides for an exception which is not relevant for present purposes and need not be set out. From what appears in other clauses of the Award, in Clause'7(a) the word "day" is to be calculated from midnight to midnight while the word "shift" refers to the period of the ordinary hours of work an any one day. Clause 8 is headed "ROSTERS" and I set out the relevant sub-clauses: "8. 3 ROSTERS All employees under this award shall be rostered for their ordinary hours of work in accordance with the following provisions:- (a) All rosters shall specify the commencing and finishing times of the ordinary hours of work of the respective shifts for each employee, 3. - 3. ¥ . (b) The rosters shali be posted at the station concerned at least seven clear days before they come into operation, provided that a roster may be departed from at short notice in cases of emergency over which the employer has no control. Provided further that:an employee who receives less than seven clear days notice of a change of roster shall be paid at the rate specified in Clause 10 sub-clause (a) of the award for all time worked during the first shift resulting from such change that falls outside his rostered shift ... (a) An employee is entitled to a minimum period of ten hours break between the finish of his work on one day and the start of his work on the next day. Provided that if an employee, on instructions from his employer resumes work without having such a break, he shall be paid at the rate of double time for all the » time worked until he has had a break of at least ten hours. (e) Rosters may be spreadover one, two or three weeks of ordinary time. (£) Where a roster provides for less than four hours the shift shall be deemed to be one of four hours ordinary time. (g) A roster shall not provide for more than one shift of four hours in any roster week. (h) If by agreement or otherwise an employee is rostered in any week of the roster to work not more than 24 ordinary hours, such hours shall be rostered in not more than three shifts and if he is so rostered to work not more than 32 ordinary hours shall be rostered in not more than four shifts. (i) Except with the consent of the Union or Unions where members are concerned, rostered ordinarv hours shall not exceed 48 in anv veek of the roster. (j) Ll rosters shall be such as to allow one clear day off in each roster week and to aggregate six days off in each three week cycle. Employees of Schedule A respondents in the classification of Senior Director (number 1), Director Grade A (number 3), Director Grade B(number 11), and Director Grade C (number 19) shall be allowed one clear day off in each week and to aggregate six days off in each three week cycle, but in all other respects Clause 8 does not apply to employees in those classifications. srynnp erence ae + » —-- ee we ee Se nee oe nea ER tine = ne ce RO SE ee ba} 4, In this sub-clause a clear day shall mean:- (i) subject to the provisions of sub- paragraph (i11) hereof, in the case of an employee whose last preceding shift ended at or after 7 p.m. on any day, not less than thirty hours; (ii) Subject to the provisions of sub- paragraph (111) hereof, in the case of an employee whose last preceding shift ended before 7 p.m. on any day, not less than thirty-six hours; (iii) in all cases where two or more days off are given consecutively, the second and subsequent days shall comprise twenty-four hours. (k) Where an employee's rostered day off falls on a public holiday, such employee shall be allowed an additional day off or have an additional day added to his Annual Leave or be paid an additional day's pay in lieu thereof as may be agreed between the employer and the employee." Some general comments should be made with respect to some of these sub-clauses, Under sub-clause (b) the words "clear day" do not have the special meaning referred to in sub-clause (j) but the time is to be reckoned by excluding both the day of posting and the first day of the roster. The first proviso to sub-clause (b) allows a departure from a roster at short notice in cases of emergency over which the employer has no control. The second proviso is in the nature of a penalty imposed upon ah employer who is required to pay overtime rates to an employee working ordinary hours during his first shift resulting from the change that falls outside his rostered shift as ordinarily rostered. Sub-clauses (f),(g),(h) and (i) are designed to ensure an even spread of ordinary hours and shifts over a three week period while sub-clause (j) 1s designed to ensure clear days off as defined. This sub-clause 1s to be read as being complementary to the other sub-clauses relating to ordinary hours and shifts. Clause 9 is headed "SHIFT DUTY ALLOWANCES" and provides for additional rates to be paid for shifts which finish after 7 p.m. on any day or at or before 7 a,m. on any day or which begin before 7 a.m. on any day. The clause provides for additional rates to be paid for atl ordinary time worked 5. — fear ee NE Nee ee a RN A A ee | PT A oe mg mene mere ne ee eee ee i ee - a ear 5. on rostered shifts between midnight and 6 a.m, and for all ordinary time worked on a rostered shift after 10 hours from the commencement of that shift. The last provision imposes a penalty on an employer requiring broken shifts where the meal period is extended, see Clause 7(a) and Clause 15. Clause 10 is headed "OVERTIME" and I set out the relevant sub-clauses: "10, ~ OVERTIME (a) All time worked by an employee in excess of the ordinary hours shall be overtime and shall be paid for as follavs. (i) At the rate of time and a half for the first two hours and double time thereafter, Monday to Friday inclusive. (ii) At the rate of time and threequarters for the first two hours and double time thereafter, on Saturdays. (iii) At the rate of double time for Sundays. (iv) At the rate of double time and one half for public holidays ..." A proviso to sub-clause (a) makes special provision with respect to employees called back for the purpose of working overtime on a Saturday, Sunday or a Public Holaday. "(b) In computing overtime each day's work shall stand alone, provided that where the overtime commences on one day and continues after midnight without interruption other than for meal breaks the overtime shall be paid as having been worked on a continuous basis, (c) Except in the case of a change of roster of which the employee has had 24 hours notice, an employee who is required to work on any day for which he 1s rostered off duty pursuant to sub-clause (j) of Clause 8 of this Award shall be entitled to payment at the rate of double time for all time worked or double time and one half for public holidays with a minimum payment as fox four hours worked. (ad) Except in the case of overtime worked in accordance with 10(c) above, where an 6. employee having completed his work and haying left his place of work is recalled for work not continuous, with his next rostered shift he shall be paid for that call two hours at double time and in addition overtime at the rate of double time for all time worked on that call ... (f) An employee who does not receive a clear day (or clear days) off as provided in clause 8 sub-clause (Jj) rosters shall be paid at the rate of double time for all ordinary time actually worked in the next rostered shift following the rostered day (or days) off, (g) When requested by the employer an employee shall work such overtime as 1s necessary to meet the reasonable needs of the employer," Some general comments should be made with respect to some of these sub-clauses, Sub-clause (a) specifies the general penalty rates to be paid to employees working in excess of the ordinary hours. Normally overtime rates are with respect to the hours in any one day between midnight and midnight but sub-clause (b) applies when an employee works past midnight. Sub-clause (c) is to be contrasted with Clause 8(b). In cases of an emergency, a roster may be departed from and in that event the second provision to Clause 8(b) applies to impose a penalty on an employer irrespective of work being done on a day or day off. A further penalty is imposed by Clause 10(c) where an employee, on less than 24 hours' notice,1s required to work on any day for which he was rostered off duty. Under Clause 11 penalties, being in the nature of extra rates, are not cumulative. Sub-clause (f) is the sub-clause with respect to which the interpretation is sought. Finally reference is made to Clause 11 which provides that extra rates should be cumulative so as not to exceed a specified maximum amount and Clause 12 provides for additional special rates to be paid to employees working ordinary hours on shifts at weekends. Clause 10(f) refers to "a clear day (or clear days) off as provided in clause 8(j) rosters." The word "rosters" refers to the heading to Clause 8. The provision for a clear day (or clear days) off must be contained in the roster prepared and posted pursuant to Clause 8. 7. The provision for clear days off is complementary to the provisions in Clause 8 ensuring an even spread of ordinary hours of work and shifts over a three weeks' period. Clause 10(£) is designed to ensure that an employee actually receives the clear day or clear days off as appearing in the roster. An employee should not be required to work on such a day or days. The words in'clause 10(f) "next rostered shift following the rostered day (or days) off" make it clear that those days do appear in the roster which has been posted either with or without the required notice. An employee is required to work overtime, Clause 10(g) but the total of extra rates payable to an employee under Clause 8 and Clause 10, apart from Clause 10(f), may be limited by Clause 11. Clause 10(f) requires the extra rate to be paid with respect to the ordinary time worked in the next rostered shift. Subject to any shift duty allowances, Clause 9, and weekend shift work, Clause 12, the extra rates payable under Clause 10(f) are not to be taken into account with other extra rates payable with respect to time worked on the rostered day or days off and therefore are not subject to the limitation contained in Clause 11. As a result, where an employee does not actually receive the clear day(or days) off as provided in the roster and calculated according to Clause 8(j), the employer incurs a greater pecuniary penalty while the employee receives a greater pecuniary benefit. Clause 8(b) is expressed in a similar way in that the extra rates thereunder are paid with respect to the ordinary time worked during the first shift resulting from a change of roster, again thereby minimising any limiting effect arising under Clause ll. It follows that in applying Clause 10(f), it does not matter whether the employee fails to receive the clear day (or days) off because he works overtime at the finish of the shift prior to the rostered day off or prior to the commencement of the shift following a rostered day off. Senior Counsel for the appellants submitted that anomalous results would follow such an interpretation. That may be so, but that does not detract from the policy of Clause 10(f) which 1s to ensure that an employee receives the benefit of the rostered day off. The Award is designed to achieve a particular purpose and if that purpose is not aciuieved, the employer must suffer the financial 8 consequences. Incidentally, the employee gains a financial penefit. Senior Counsel for the appellants submitted further that Clause 10(f) applied where an employee does not receive a clear day or days off in his roster. This submission is rejected since the very words of Clause 10(f) "following the rostered day or days off" show that the roster must have included that day or days off. Clause 10(f) operates when for any reason an employee does not, in fact, receive the benefit of that day or days off. Accordingly, I would dismiss the appeal but vary the order to read as follows: "That on the true meaning and interpretation of the Television Industry Award 1977: 'An employee who does not receive a clear day (or clear days) off as provided in clause 8(3) of the Award because he performs work on a'clear day which was a rostered day off irrespective of that work being overtime at the finish of the shift prior to a rostered day off or prior to the commencement of a shift following a rostered day off, 1s entitled to payment at the rate of double time for all ordinary time actually worked in the next rostered shift following the rostered day (or days) off' ". Assocyfate Feasons for Judgment herein of his Honour Mr. Justice WV rabny is] S Pp Le} a xy @ iced d Sh ~p ~ & G es P> S4 at p i ¢ oO H preceding pages are a true copy of the