. > \* rere on ae me in THE FEDERAL COURT OF AUSTRALIA V. No. 19 of 1980 INDUSTRIAL DIVISION VICTORIA DISTRICT REGIST RY V. No. 20 of 1980 IN THE MATTER of the Conciliation and Arbitration Act 1904 IN THE MATTER of the Australian Telecommunications Commission (General Conditions of Employment) Award 1975 and IN THE MATTER of an Application by Hubert Francis Slootjes for an Interpretation of the above Award REASONS FOR JUDGMENT 27 November 1980 KEELY J. These are two applications by Hubert Francis Slootjes (the applicant) for an interpretation of several provisions of the Australian Telecommunications Commission Employees (General Conditions of Employment) Award 1975 (the General Conditions Award). On the return of the summons for directions and at the hearing of both matters the applicant appeared in person and Dr C. Jessup of counsel appeared for ae mn ee ee ee ee eee ote ee ete ae Oe sae nes ° 2. the Australian Telecommunications Commission (the Commission). At the hearing the parties sonsented to the two matters being heard together. A third application (Matter V. No. 21 of 1980) by the applicant was for an interpretation of the Australian Telecommunications Commission Clerical, Manipulative and Other Grades (Salaries and Specific Conditions of Employment) Award 1977 (the Specific Conditions Award). At the request of the applicant and with the consent of the Commission the third application was stood over to enable the applicant to consider his position after the Court has given judgment on these two applications (Matters Nos. v.19 and V.20 of 1980). It was admitted by the Commission in relation to both Matters that: (a) the applicant is a member of an organisation bound by the Ger.2ral Conditions Award; (b) the Commission is bound by the General Conditions Award; (c) the General Conditions Award applies according to its terms to the employment by the Commission of the applicant. In Matter V. No. 19 of 1980 the applicant 1s seeking an interpretation of sub-clause 9(4) and sub-clause 9(6) of the General Conditions Award. Sub-clause 9(4) provides: re ere ae nore eet men ee ate eter oe . - - eee: das tad eat ine Oe See ep A= seme = ene eee . - . -—~ a ee ee ed 3. "(4) The hourly rate for overtime payment shall be ascertained by applying the following formulae: (a) Time and a half rate - Annual Salary x 6 x 3 313 Prescribed weekly 2 hours before overtime is payable (b) Double time rate - Annual Salary x 6 x 2 313 Prescribed weekly I hours before overtime is payable Provided that the maximum hourly rate shall be the rate ascertained by regarding annual salary as shown as Code A of Schedule A. Provided further that the rate so ascertained shall be not less than single time based on the employee's znnual salary." The application set out certain statements of fact relied upon in support of the application. Mr Slootjes was first employea by the Postmaster General's Department on 13 June 1961 as a labourer, grade 1, on cleaning duties at the Benalla Telephone Exchange. His employment by the Post Master General's Department continued until he was transferred to Telecom on 1 July 1975. Details of his hours of work are set out in the application. Put briefly, he worked a six day week until November 1972, then a five day week until March 1977 and since then a nine day fortnight. The application drafted by Mr Slootjes submitted that sub-clause 9({4) of the General Conditions Award should wee Ea Ree = age es i be interpreted as follows: "Employees whose annual salary is less than the express figure promulgated in Schedule A - Code A when reguired to work overtime, shall be paid at the rate resulting from the figure so promulgated because of the direct communication of that figure in relation to the formulae's A and B of sub-clause 4. There is express mention of Schedule A - Code A and therefore any figure not mentioned shall be excluded. Expressum facit cessare tacticum is a truism in law." (sic) I have already set out the terms of the first proviso to sub-clause 9(4) which provides "that the maximum hourly rate shall be the rate ascertained by regarding annual salary as shown as Code A of Schedule A". The applicant's contention is that the first proviso means that the annual salary to Le used in the two formulae in calculating the hourly rate for overtime payments should be the figure "as shown in Code A of Schedule A" of the award. It was agreed between the parties at the directions hearing that the annual salary in Code A of Schedule A was somewhat more than $14,000. The basis of Mr Slootjes' argument is that, as the first proviso to sub-clause 9(4) expressly mentions "annual salary as shown as Code A of Schedule A", that annval salary should be inserted in the two places where the words "Annual Salary" appear in the two formulae as set out in sub-clause 9(4)(a) and (b) respectively - instead of the actual annual salary of the employee concerned. However, in my opinion the FR ee eS et ee ee nate eS ee eee eee ~—- —-. wee = see eee - - ie tee we ee wees oe ee - 8 bet ene ae ene te net ae ~ has tim 5. intention manifested in the first proviso is simply to fix a maximum hourly rate, i.e. an hourly rate which must not be ' exceeded by any "hourly rate for overtime payment ... ascertained by applying" either of the formulae in sub-clause 9(4) (a) or sub-clause 9(4)(b). If the effect of the first proviso is that the words "Annual Salary" in the formulae in paragraphs (a) and (b) are to be read as if they mean the "annual salary as shown as Code A of Schedule A" then it would be quite unnecessary for the first proviso to use the word "maximum". At the hearing of the summons for directions Mr Slootjes' attention was drawn to the question of whether the provision was intended to have the effect for which he contended. It was pointed out that on that basis persons on annual salaries varying from $8,000 to $12,000 would ail receive the same hourly rate for any overtime work performed by them - notwithstanding that in respect of all ordinary time performed an employee whose annual salary is $12,000 would be entitled to an hourly rate 50% higher than that of an employee receiving an annual salary of $8,000. Mr Slootjes obviously gave consideration to this aspect in preparing his arguments for presentation at the hearing. He relied upon certain statements made by the Public Service Arbitrator ((1958) 38 C.P.S.A.R. 67) in dealing with an application by the Public Service Board to vary a number UPR RET en emenyen * - one -——— - -~ -- - eens -- pee in TN ree mane ee of determinations, including Determination No. 32 of 1956 (General Conditions of Service). Since the completion of the hearing in these matters I have had the opportunity to study the official print of that decision supplied by Mr Slootjes. I can appreciate the significance which he attaches to the passages which he read to the Court in putting his argument - and in particular the passages there cited from the earlier decision in Determination No. 91 of 1951 of Mr Arbitrator Castieau ((1951) 31 C.P.S.A.R. pp.486-7). Nevertheless, for the reasons which I have given, in my opinion the clear intention of the first proviso is to fix a maximum hourly rate - which must not be exceeded by the hourly rate for overtime. Until that maximum is reached, the hourly rate for overtime payment shall be ascertained by applying the appropriate formula to the actual annual salary of the employee. Perhaps I should add that the second proviso to sub-clause 9(4) (which is set out earlier) simply provides that the hourly rate for overtime payment, ascertained in accordance with either of the two formulae in sub-clause 9(4), shall not be less than the single time rate based on the employee's annual salary. The application for the interpretation of sub-clause 9(4) is dismissed. Sub-clause 9(6) of the General Conditions Award provides: "(6) Except with the approval of the Commission, the occupant of positions, the ce ee me en ee ee me -- = ~ - ~ hab ne ONC A ee ee ee eee - eee wee te lew - ee ee ret te ee ne et ee te ban di. 7. minimum salary of which exceeds the salary shown as Code C of Schedule A shall not be eligible to receive overtime payment." ' The application drafted by Mr Slootjes submitted that sub-clause 9(6) should be interpreted as follows: "Sub-clause 6, at June 1980, prescribe a specified annual salary of $20952 dollars in accordance with Schedule A - Code C, and is commonly referred to as Overtime Salary Barrier. Employees earning in excess of $20952 dollars per annum are not eligible for overtime payment in accordance with Claus 9(4) unless approved by the Commission. My interpretation is that employees, on a 36.75 Hour a week, whose annual salary is more as the 'Salary Barrier' of $20952 dollars are still eligible for overtime in accordance with the formulae's A and B because the rate so ascertained is not less than single time based on the employees annual salary." (sic) The applicant contends that, despite the wording of sub-clause 9(6), a person occupying a position with a minimum Salary in excess of Code C of Schedule A is nonetheless entitled to receive overtime payments. He describes sub-clause 9(6) in his application as being "totally mischievous and designed to confuse parties" and adds "it is presumptuous and incorrect, therefore (it) should be removed" from the award. Mr Slootjes conceded that sub-clause 9 (6) does not apply to his position. His application in respect of the provision seems to arise from his claim that the superintendents to whom he has taken his other complaints METER prepeene nee eS eee wee ee - + - : - - - weet pibedie alae 8. from time to time have terded to answer him by saying that he should not be complaining because they do not receive any overtime payment at all. In my opinion sub-clause 9(6) is quite clear and lays down, aS an overriding provision, that the occupants of positions in respect of which the minimum salary "exceeds the salary shown as Code C of Schedule A shall not be eligible to receive overtime payment" - except with the approval of the Commission. The purpose of the provision is plainly to prescribe a minimum salary level above which the occupant of the position is not eligible to receive payment for overtime - unless the Commission approves the paynent. The interpretation sought indicates that Mr Slootjes relies upon the second proviso to sub-clause 9(4) which provides that: "Provided further that the rate so ascertained shall be not less than single time based on the employee's annual salary." However, the second proviso is dealing with the amount of the rate where an hourly rate is to be paid for overtime. Sub-clause 9(6) overrides the terms of the proviso by expressly providing in an unqualified and unambiguous way that the occupants of certain positions "shall not be eligible to receive overtime payments", i.e. any overtime payment (unless approved by the Commission). It follows there is no "rate so ascertained" and the second proviso Oe ee ee ek Ae ete ne a De ~~ - - ~~ toe ree ee - we alte walls. Te ee eee ee ee - - - oe oe eee ee te therefore does not apply. Accordingly, the application for the interpretation of sub-clause 9(6) is @ismissed. In Matter V. No. 20 of 1980 the applicant is seeking an interpretation of Clause 15 of the General Conditions Award. Clause 15 of the award provides that: "15. SHIFT DUIY 1. An employee who is rostered to perform and performs ordinary duty on a shift, any part of which falls between the hours of 6 p.m. and 6.30 a.m., shall be paid an additional fifteen per centum of his salary for that shift. 2. Where an employee is required to work his ordinary hours continuously for a period exceeding four weeks on a shift falling wholly within the hours of 6 p.m. and 8 a.m., he shall be paid with respect to that shift an additional thirty per centum of his salary for that shift. 3. The maximum rate of payment under this clause shall be computed on a salary rate shown as Code A in Schedule A. 4. The additional payment prescribed by this clause shall not be taken into account in the computation of overtime or in the determination of any allowance based upon salary, nor shall it be paid with respect to any shift for which any other form of penalty Payment is made under this Award or under the provisions of the Telecommunications Act 1975, Regulations or By-Laws as amended from time to time. 5. The period for which the additional payment prescribed by this clause shall be paid, shall be calculated to the nearest quarter of an hour of the total amount to be claimed in each fortnightly period. 6. Additional payment for ordinary duty, as provided by this clause, shall be made in We ON IR ere oe Cae mere eS canon e ere or ee coe - 5 - ~ woe eee = - - wow Fe ne ne en ee ee ee ee 10. respect of any such duty which an employee would have performed had he not been on approved recreation leave." The applicant submits that Clause 15 should be interpreted in the following manner: "I am eligible for a 15% percent shift duty allowance because of the word "ANY" in the context of the sub-clause (1) which include 06.30 Hour, the time I commence rostered duty each working day." (sic) Sub-clause 15(1) of the General Conditions Award provides, inter alia, that an "employee who ... performs ordinary duty on a shift, any part of which falls between the hours of 6 p.m. and 6.30 a.m., shall be paid an additional fifteen per centum" as a shift penalty. The applicant regularly commences work at 6.30 a.m. The applicant contends that part of his period of duty "falls between the hours of 6 p.m. and 6.30 a.m.". Mr Slootjes supported his argument by referring to cases cited in "Words and Phrases Legally Defined" (Second Edition - 1969) showiny that the word "any" is a word of very wide meaning. I accept that submission. However, it is still necessary for the applicant to show that "any part of" the shift fell "between the hours of 6 p.m. and 6.30 a.m.". The applicant's argument relies heavily upon the word "any"™ and gives insufficient weight to the word "between". The applicant also relied upon a Telecom document headed "Instructions on Industrial Procedures". Mr Slootjes er neers mee ene ne ee me tee - en or -- ~ tote te = AR ke met ee ee ee em ee ee en tee ere et ll. made express reference in his written statement, dated 17 November 1980 in support of his application, to item 12/7/10. However, that item in the document, in referring to duty commenced at 6.30 a.m., is directed to the case of "late attendance" for a shift rostered to commence before 6.30 a.m. and does not assist the applicant's case. Mr Slootjes' argument appears to be based simply upon the fact that one specified point of time (6.30 a.m.) is common both to the period referred to in sub-clause 15(1) and to the period of work regularly performed by the applicant. However, in my opinion that fact is not sufficient to bring the applicant's period of duty within sub-clause 15(1). The matter may be tested in this way. If continuous shifts were regularly worked and one employee worked from 6 p.m. to 6.30 a.m. and another employee took over the performance of that duty and commenced doing so at 6.30 a.m., then it could not be said as a matter of ordinary language that he was performing duty "any part of which (fell) between the hours of 6 p.m. and 6.30 a.m.". No part of 1t would be "between" those hours because the second employee, by starting work at 6.30 a.m., commenced to perform his work at the point of time when the previous period of work is completed. I am unable to uphold Mr Slootjes' argument and accordingly the application for the interpretation of clause 15 is dismissed.