ween te pe wate fudus -Lel law - alleged Preach of avard ~ Jérutifieatron of keladay shift - payment for work oa siift «stenéing unre holiday put outside the holiday shiie - Couci2 etic. « o Vtewaom Bet 7 30f 38,175, Mae wloesan Austialia Veluci Junustey Award 1¢76 . PT eR NW IOTOR "AMUTACTUN THIG o Smithers A.C.d. OQ fa) be is) Nc Lbourns 26 dune 4979 IN THE FEDERAL GOURT OF AUSTRALIA) INDUSTRIAL DIVISION V No. 9 of 1979 VICTORIA DISTRICT REGISTRY BETWEEN: CLIFFORD JARRAD Claimant AND: NISSAN MOTOR MANUFACTURING CO. (AUSTRALIA)LTD. Respondent ORDER JUDGE MAKING ORDER: Smithers A.C.dJ. DATE OF ORDER: 26 June 1979 WHERE MADE: Melbourne a THE COURT ORDERS THAT: 41. The summons herein be dismissed. 'IN THE FEDFRAL COURT OF AUSTRALIA INDUSTRIAL DIVISION VICTORIA DISTRICT REGISTRY V. No. 9 of 1979 IN THE MATTER of the Conciliation «nd Arbitration Act 1904 BETWEEN: CLIFFORD JARRAD Claimant AND: NISSAN MOTOR MANUFACTURING CO. (AUSTRALTA) LTD. Respondent Smithers A.C.J. 26 June 1979 REASONS FOR JUDGMENT Before the Court 1s a summons to answer a claim for penalty issued under s.119 of the Conciliation and Arbitration Act 1904. The claim 1s based upon the allegation thet the respondent committed a breach of The Nissan Australia Vehicle Industry Award 1976 (the Award) by failing to pay to certain of its named employees being members of the Vehicle Builders Employees! Federation of Australia the rates prescribed by clause 20 of the Awerd for work perforred by sum employees on 23 and 24 March 1978 and 24 and 25 April 1978, In an affidavit accompanying the summons the secretary of the Victor1an branch of the organization alleges that the relevant employees commenced work on a shift extending from 6 p.m. on 23 March 1978 and ending at 2.10 a.m. on 24 March and also commenced work on a shift commencing at 6.00 p.m. on 24 April 1978 and ending at 2.10 a.m. on 25 April 1978. He states that in respect of the work performed on such shifts the employees were entitled to be paid at the rate of two and one-half times the ordinary rate pursuant to clause 20 of the Award, the terms of which are set out below. A docunent entitled "Agreed Statement of Fects" has been filed in the matter and the parties have not attorpted to go beyond its terms, The terms or this docuncnt are as follows:- "4, That the Vehicle Builders Employees' Federation of Australia is an organization of employees registered under the Conciliation and Arbitration Act 1904. 2. That Nissan Motor Manufacturing Company (Australia) Ltd. is and was at all material times a company duly incorporated pursuant to the Companies Acts of the State of Victoria. That on the 23rd and 24th March 1978 and on the 24th and 25th April 1978 the persons named in the Summons out of which these proceedings arise (the relevant employees) were employed by Nissan Motor Manufacturing Company (Australia) Ltd. pursuent to an award of the Australian Conciliation and Arbitration Commission entitled the Nissan Austrelia Vehicle Industry Award 1976 (the Award). That each of the relevant employees was on the 2rd March 1978 and the 24th March *978 and on tne 74tn April 1978 and 25th April 1978 a full-time weekly wage employee employed on shift work. That Good Friday and Anzac Day, hclidays pursuant to Clause 23 of the Award, were granted on the 24th March 1978 and the 25th April 1978 respectively. From the 4th July 1977 until the 27th November 1978, and including the period covering the 23rd March 1978 and the 24th April 1978, each of the relevant employees was rostered for duty on an afternoon shift commencing at 6.00 p.m. on Monday, Tuesday, Wednesday, Thursday, and Friday of each week and finishing at 2.10 a.m. on the following morning. The relevant employees were not reouired to work by Nissan Motor Manufacturing Company (Australia) Ltd. during the shifts commencing at 6.00 o.m. on the 24th March 1978 and 25th April 1978, they being granted such shifts as the Good Friday and Anzac Day holidays without deduction of pay and the relevant employees resumed work on the next rostered shift, namely at 6.00 p.m. on the 27th March 1978 and the 26th April 1978 respectively. . That an respect of e11 work performed on the afternoon shifts commencing on the 24rd March 1978 and on the 24th April 1978 and finishing on the 24th March and 25th April 1978 respectively, each of the relevant employees was paid his ordinary rate of pay together with the appropriate shift penalty and was not naid at the rate of two and one-half times his ordinary rate of pay, except that for all time worked during shuch shifts, namely from midnight to 2.10 a.m. on the 24th March 1978 and 25th April 1978 the relevant employees' pay was made up to a rate of two and one-half times his ordinary rate py without prejudice payments made by Nissan Motor Manufacturing Company (Australia) Ltd. on 21st June 1978 and 12th July 1978. That Clifford Jarrad is an officer of the Vehicle Builders Employees' Federation who is authorized under the Rules of the organization to sue on behalf of the organization. LN 10. That on the 23rd March 1978 and the 24th March 1973, 24th April 1978 and the 25th April 1978 each of the relevant employees was a member of the Vehicle Builders Employees! Federation." The Award provides for two classes of employees, namely, day workers and shift workers. The normal, ordinsry hours of day workers are 40 per week, to be worked in five days and not more than eight hours per day Monday to Friday inclusive and not more than four hours on Saturday, or, in five days on Monday to Friday inclusive of eight hours each.(Clause 15(a)(i)) Shift workers work in consecutive shifts of employees throughout the twenty-four hours of each of at least six consecutive days, such work being referred to as continuous work. (Clause 16(a)(ii)). The ordinary hours of work of a shift worker may not exceed, eight in any one day, 48 in any one week or an average of 40 per week during the period of employment or 160 in twenty-eight consecutive days. (Clause 16(a}(22i)) A shift 1s to consist of eight hours inclusive of crib time. (Clause 16(@) (1v)(1). Except at the regular changeover of shifts, an cmployee shall not be recuired to work more than one shift 1n each 24 hours. (Clause 1€(2) @v)(2)). Shift rosters shall specify the commencing and finishing times of ordinary working hours of the respective shifts (Clause 16(2)). Rates for shift workers are provided by clause 18 of the Award. Such rates include additions to the employee's ordinary rate according to various circum- stances,such as the secuence of night shifts and afternoon shifts worked. It as provided by clause 18(g) that where s shift worker's normal forty hour roster requires the employee 4, to work afterneon or night shift on a Saturday, Sundey or public holiday, the employee shall be paid an additional $3 for each such shift provided he works a complete shift. Afternoon shift is a shift commencing not later than 6.00v0.m. on any day. Night shift is a shift commencing at any time after 6.00 p.m. on any day (Clause 18(a)). It 1s provided by clause 23(a) of the Award that a weekly wage employee shall be granted certain specified holidays without deduction of pay. Good Friday and Anzac Day are specified holidays. In 1978 Good Friday fell on March 24 and Anzac Day on April 25. Clause 20 of the Award is headed: "Holiday Work and Rates Therefore (sic). " The relevant parts are in the following terms:- "(a) An employee who works on a holiday shall be paid therefore (sic) at the rate of two and one-half times his ordinary rate (b) A shift commencing before 10.45pm on a holiday shail be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one- half times the ordinary rate. (c) Except as provided in sub-clause (e) hereof a shift commencing at 10.45 pm or between 10.45 pm and midnight on a holiday shall not be regarded ag a holiday shift and work done thereon shall not entitle an employee to the holiday rate, (da) Except as provided in sub-clause (e) hereof a shift commencing before midnight on the day preceding a holiday and extending into the holiday shall be regarded as a holiday shift and all work done thereon shall be paid for at the rate of two and one-half times the ordinary rate. (e) Notwithstanding sub-clauses (c) and (dad) hereof where an employee is rostered for a shift which terminates on a holiday and a shift which commences on the same holiday, one shift only shall be regarded as the holiday shift and such shift shall be the one, the major portion of which falls on the holiday. (f) An employee, other than one on shift work, required to work on a holiday shall be paid for a minimus of four hours' work at the appropriate rate. 5. (3) For the purposes of this clause 'holiday' means a day referred to in clause 243 of this award. (k) Payments prescribed by this clause shall stand alone ana shall not be included for any other purposes of this award." It was said by Miss Hickey, counsel for the claimant, that the shifts which commenced at 6.00 p.m. on 22 March and 24 April, being shifts which commenced before midnight on those deys enc extended into the holidays, the rate of vay for the work performed in those shifts was that provided for such shifts in clause 20(d). But of course if it be that the employees in question were rostered for the shiftswhich commenced at 6.00p.m. on 24 March and 25 April then by reason of clause 20(eé), those shifts only were to be regarded as holiday shifts. The presence of the word "only" in clause 20(e) removes any ambiguity 1n that respect, The agreed statement of facts records that the employees were rostered for duty for the shift commencing at 6.00p.m,. on Monday, Tuesday, Wednesday, Thursday and Friday of each week during a period extending from 4 July 1977 until 27 November 1978 and including the period covering 23 March 1978 and 24 April 1978. Prima facie therefore clause 20(e) wes applicable to these employees. However, Miss Hickey contenas that in clause 20(e) of the Award and para.6 of the agreed statement of facts the reference to an employee being rostered for a shift 1s to be construed as a referenc? to an employee who is both rostered for and required to work on that shift. It follows, so she argued, that because the employees were not required to work on the shifts commencing at 6.00 p.m. on 24 March 1978 and 25 April 1978,as stated in para.7 of the agreed Statement of facts, they were not rostered for those shifts within the meaning of clause 20(e). I am unable to accept this argument. Clause 20 is obviously intended to lay down guidelines with respect to 6. the implementation, in respect of shift workers, of the requirements of clause 23 that the employces shall be granted a holiday on each of certain specified days. Such guidelines were essential because particular shifts may and apparently frequently do extend from one day into the next. For a day worker it is clear that he 1s to be granted the day off. That means in substance that he will not work during the hours in respect of which he was rostered on for that day but will be paid ordinary rates in respect of those hours. The day of a day worker does not extend beyond midnight on any particular day. He 1s to be granted the day off and if he is required to work on that day clause 20(a) will entitle him to pay- merttat two and one-half times the ordinary rate, Similarly the shift worker must be allowed a day off. The obvious way to do this is to designate a shift, all or part of the duration of which falls in the holiday, as the shift in respect of which the holiday entitlements shall apply. Once it 1s identified the employer's obligation is to pay ordinary rates for that shift although no work is done or to pay two and one-half times his ordinary rate if the employee 1s required to work therein, That clause 20 contemplates that the holiday pay of a shift worker who takes his holiday will be for one shift is supported by clause 23{e). Thereby the shift worker whose rostered off shift falls on a holiday shall, unless it falls on a Saturday or Sunday, be paid "for that day" at his ordinary rate. In other words his rostered shift for that day, although a rostered off shift, 1s his paid holiday. I would also note, as Mr. Brown, counsel for the respondent contended, and I think correctly, that there was considerable significance in that clause 20(e) is, in contrast with sub-clauses (b), (c) and (d), silent #s to whether work is done on any varticular shift and concerns itseif only with whether or not the relevant employee was rostered for a particular shift. It would have been a conceivable way of providing a holiday for shift workers on specified holidays to state simply that there should be a paid resoite from work, or naynent at two and one-half times ordinary rates for work done, during that part of a holiasy which fell within shifts for which the employees were rostered on. But such simplicity was apparently regarded as unsatisfactory no doubt because of the way shifts might fall on a holiday. According to the time slots of various shifts 1t could occur that the holiday paid time off of a shift worker would be less than one whole shift. Thus if a shift ended at 2,00 a.m. on the morning of the holiday and the next did not commence until say 8.00 p.m. on the evening of the holiday the shift workers' holiday would be only six hours long. But day workers recelve pay in resp*ct of eight hours off work on the holiday. It would be unfair that shift workers should receive less and in any event the holiday concept 1s that of a "day off". A provision therefore, that the shift worker should receive a full shift holiday was rational 'and fair. In addition ending and commencing shifts at midnight so as to allow a strict twenty-four hour holiday for shift workers could well have been inconvenient both for employer and employee. Accordingly the basis of the concept of a holiday shift can be seen. But if the holiday was to be for a shift, that shift had to be identified so that employers and employees would know which shift the employees were to take off. The result was that for shift workers a particular shift 1s svecified to bre the holiday shift. The system instituted by clause 20 has some advantages for the employee. Thus for an employee working for instance on a shift commencing before 10.45p.m. on a holiday the time during which holiday benefits are applicable on the basis that he may possibly work on the holiday outside any other rostered shift may extend from gust after midnight on the morning of the holiday until some hours into the next day. But where he does work on the holiday on another rostered shift, as did the employees in this case,it is a consequence of sub-clause (e) that he shall work therein and work at ordinary rates. This other shift 1s not a holiday shift. When sub-clause (e) declares that the other shift 1s not a holiday shift the implication is that it is a shift in respect of which holiday entitlements, such as, not to work and yet be paid, or to work et two and one-half times ordinary rates, do not apply. This aspect of clause 20 1s a natural incident of the concept of the holiday shift. It means that from sub-clause (e@) there arises a provision that the holiday benefits do not epply to work performed in the shift which intrudes into the noliday but which is not the holiday shift. When sub-clause (e) provides that that shift, the magor portion of which falls on the holiday be regarded as the holiday shift and that one shift only shall be so regarded it is saying that the employee must work the other shift on ordinary terms, There is little point in saying that the other shift is not a holiday shift unless it means that the employee must work therein at ordinary rates, The only distinction between holiday shifts and shifts that are not holiday shifts is that in respect of a non-holiday shift the employee must work to be paid his ordinary pay. Clause 20(e) is identifying the shift in respect of which according to sub-~ clauses (b}(c) and (d) two and one-half times ordinary rates are to be paid 1f work is performed therein, It is an essential quality of a holiday shift identi- fiable in accordance with clause 20(e) that it be a shift in respect of which the employee is rostered on according to a previously established roster. It is apparent from the agreed statement of factsthat, as would be expected, rosters are established well in advance. And in this case looking at the roster it was clear that the holiday shift according to sub-clause (e) was that commencing at 6.00 p.m. on the evening of each holiday. That holiday shift was treated as paid time off by both employers and employees. This was the inevitable result of clauses 20 and 23 of the Award. That shift could not cease to be the rostered on shift for the purposes of sub-clause (e) by reason of that sub-clause being implemented by the employees not being required tc work therein in accordance witn the Award. It was suggested by Miss Hickey, at least impliedly, that the eaditional benefits which "would @cscrmeto a shift worker if the construction of clause 20 for which she contends were adopted should be viewed as benefits compensating for the 1nconvenience and burdens of working or taking a holiday at unusual hours. But such compensation is already provided in the higher 10. rates for shift work and the differential rates for various shifts. So far as holidays are concerned such compensation is reflected in the retes payable an respect of the employee's time off or the higher penalty rates in respect of time worked on the holiday shift. I am satisfied therefore that for the purpose of the Award,in respect of the employees who worked on the shifts commencing at 6.00p.m. on 23 March and at 6.00 p.m. on 24 April 1978, the relevant holiday shifts were those commencing at 6.00 p.m. on 24 March and 25 April respectively. Accordingly their holiday benefits pursuant to cleuse 20(b) and (e) were those applicable to those shifts. It remains to consider whether in the events that happened those employees were entitled to payment 1n respect of the time worked by them from midnight to 2.10 a.m. on 24 March and 25 April 1978 at two and one-half times ordinary rates pursuant to clause 20(a). They certainly were employees who worked on a holiday. Accordingly pursuant to the literal meaning of sub-clause (a) they were entitled to payment in accordance therevith., But sub-clause (a) must be read in the context of the other provisions of the Award. And so far as shift workers are concerned I think the context requires that the literal meaning of sub- clause (a) give way in respect of time worked by shift workers on a holiday but in a shift which pursuant to sub- clause (e) is not a holiday shift. 11. Clause 20(a) applies clearly enough to a day worker. According to the Award he would not ordinarily do any work on the day designated as a holiday. The result is that he receives two and one-half times rates for any work he Goes do at any time on *hat day. But the shift worker's holiday is in a sense a shifting affair. It 1s clear that an identified holiday shift may, and frequently will, either commence before the day of the designated holiday begins or extend into the following day. It follows that, depending upon the time- slot and duration of the holiday shift, the period during which the shift worker will be off work or entitled to two and one-half times ordinary rates, that 1s the period in respect of which holiday obligations of the employer and entitlements of the employee will persist,will vary. Thus in the case of the employees the subject of these proceedings the last shift which commenced before the holiday ended at 2.10 a.m. on the holiday. After a lapse of almost sixteen hours the holiday shift commenced 1.¢, at 6.00 p.m, ard continued for eight hours and ten minutes. In that case the holiday obligations and entitlements persisted for twenty-four hours. Had the situation been that the earlier shifts had ended at 12.10 a.m. on the holiday and the next shift had started at 8.10 p.m. on the holiday, the holiday obligations and entitlements would have continued during twenty hours and eight hours thereafter, namely for twenty-eight hours in all. Had the earlier shift ended at 12. 4,00 a.m. on the holiday and the next shift started fourteen hours later at 6,00 p.m. and continued for eight hours until 2.00 a.m. the next morning, the holiday obligations would have persisted for only twenty-two hours. This period would vary similarly, if for instance, as Miss Hickey suggests in relation to this last example, the four hours worked on the morning of the holiday were included in the holiday period. Having regard to the discussion above concerning the identification of the holiday shift, the provisions of clause 20 are seen not only to identify the shift which is the holiday shift, for which special rates apply 1f work is done therein, but also to provide that work done in any other shift, although on that day, is not work to which the holiday obligations apply. Pursuant to clause 20(e) there is, in the circumstances of the employees concerned in this case, only one such shift. Sub-clause (e) is therefore in conflict with the literal terms of sub-clause (a) so far as its terms would extend to work done on the holiday but in a shift whach according to sub-clause (e) is not a holiday shift. As a matter of construction it appears to me that in this conflict sub-clause (a) of clause 20 must be regarded as qualified by the other sub-clauses of clause 20 and in particular by the particular provision for shift workers for whom sub-clause (b) to (e) are specially designed and in respect of whom they provide a degree of equity in a complicated situation. the aneeeasenenetienion tn. Snmettm tien penee * is rr 13, It follows that 1n a case such as that of the employees concerned in this case their Anzac Day holiday started at 2.10 a.m. on 25 April and continued until 2.10 a.m. on 26 April, a period of twenty-four hours. Had their shifts been different the duration of the actual hours of holiday would have varied as indicated above, But the rosters appear to be established well in advance, by reference one would think, to considerations other than the holiday entitlements which they may affect and the time slot of shifts which may, as demonstrated, favour the employer or the employee. But this does not throw doubt on the essential validity of the conclusion to which I have come. The adjustments to the length of the holiday are merely a consequence of other practical considerations by which rosters are established, So far as shift workers are concerned their holiday shifts are those designated in sub-clauses (b) to (e) of clause 20. The work performed on a holiday in any shift not designated as a holiday shift is not performed during a holiday shift. Within the meaning of clause 20(a) work performed by a shift worxer in a shift other than a holiday shift is not work performed on a holiday. Wath respect to shift workers sub- clauses (b) to (e) must be regarded as particular provisions concerning the holiday benefits of shift workers. For work performed by a shift worker on a holiday other than in rostered on shift time sub-clause (a) would be applicable and the employee would be entitled to the rates provided for therein. But that is not this case. . 14, Clause 20(b) raises some questions not answered in the discussion herein, but for present purposes, it 1s unnecessary to endeavour to cope with them, It 1s to be observed that the relevant employees are said in para. 7 of the agreed statemert of facts to have resumed after Easter at 6.00 p.m. on 27 March 1978, That day was Easter Monday, one of the specified days 1n clause 23(a) of the Award. It would seem possible therefore that this statement as to the time of resumption may be in error. Even so however, the result of these proceedings would not be affected. For those reasons the summons must be dismissed. meri _ a T certify that this and the 13 preceding pages ale a tiue copy of the Reasons for. Judgment herein of the Honourable Mr. Justice Sms AkeL Tie Hinman NO cy ee Dated: 26 Tank 1914, ne j =~. a