« a AT t é ) IN THE FEDERAL COURT OF AUSTRALIA \ aA NEW SOUTH WALES DISTRICT REGISTRY N.S.W. No. 22 of 1984 INDUSTRIAL DIVISTON BETWEEN : PROFESSIONAL RADIO AND ELECTRONICS INSTITUTE OF AUSTRALASIA Applicant AND: QANTAS AIRWAYS LIMITED Respondent EX TEMPORE REASONS FOR JUDG JUDGE: GRAY J. DATE: 27TH NOVEMBER 1984 . A "yy ay\\ By application dated 7th June 1984, the Applicant seeks an interpretation of the Aircraft Industry (Qantas Airways Limited) Award 1980, ("the Award"). The Application 15 made Pursuant to s. 110 of the Conciliation and Arbitration Ack 1904, ("the Act"). The Applicant 1S an organization of employees registered pursuant to the Act and is bound by the Award. The Respondent is also bound by the Award. Service has been efferted - 2- on a number of other organizations of employees bound by the Award, but no party other than the Applicant and the Respondent has appeared. The precise provision of which interpretation 15 sought 1s the first sentence of cl. 21(a)(v) which 15 1n the following terms: "Ospy Should any of the public holidays fall ona day en which a shift worker 1s rostered off he shall be entitled to a day off at ordinary time therefore[sic.J3, which day off shall be available to him on application made to the company and by mutual arrangement." The question submitted for determination is: Whether upon a proper interpretation of the provisions of the Aircraft Industry (Qantas Airways Limited) Award 1980 an employee to whom the Award applies who 15 engaged to work his allotted span of hours, 7.00am_ to 3.00pm or 2.45pm to 10.45pm or 3.30pm to 11.30pm throughout Monday to Friday inclusive only and whose ordinary working hours do not require him to work on any public holidays, Saturdays or Sundays, is entitled to receive the benefit provided by cl. 21l(a)(v) of the said Award in respect of a public holiday which falls upon a Saturday or a Sunday. The facts have been agreed between the parties. Approximately 140 employees of the Respondent work in various - 3 - classifications in the Engineering Overhaul Centre and Aircraft Maintenance at Mascot Airport, nmear Sydney. Their terms and conditions of employment are governed by the Award. Some of them are members of the Electrical Trades Union of Australia; the rest are members of the Applicant. Approximately 49 amployees are day workers, whose ordinary hours of work are on Mondays to Fridays. Approximately 67 are five day shift workers; their shifts may be 7.900am £5 3.00pm, 2.45pm to 10.45pm, or 3.30pm t2 11.30pm. Their ordinary hours of work are restricted to Mondays to Fridays. Approximately 12 employees work ona seven day rotating day and afternoon shift, and a further 14 work on a seven day continuous shift, involving 24 hour operation. The focus of the application has been on the 67 five day shift workers. These employees rotate between the three relevant shifts. If required to work on a public holiday other than Christmas Day or Good Friday, they are paid overtime at the rate of double time. Indeed, they are paid at the rate of double time for all overtime worked. There has been no change in any relevant practice with respect to the five day shift workers since the relevant provision was first introduced by the Aircraft Industry (Qantas Airways Limited) Award 1970, made on 27th August 1971, and operative from the first pay period to commence on or after 15th August 1970. -~- 4 - It may be that the question which I am now required to determine 1s no longer a live one. The terms of the Award appear to have been affected by a memorandum of agreement, certified under s. 28 of the Act, and coming into operation from the first full pay period after lst December 1983. The Applicant and the Respondent and certain other organizations area bound by that agreement, which 1s to be read in conjunction with the Award, and overrides its terms to the extent of any inconsistency. Clause 5 of this agreement specifically provides: "A seven day shift worker who is rostered off on a prescribed Public Holiday shall be entitled toa day in lieu". Even if this provision does clarify the position for the future, however, it seems to me I am not prevented from giving an ainterpretation of the Award. Nothing in s. 110 of the Act requires that an award to he interpreted must still be in force. The rights of members of the Applicant to benefits in respect of past service depend upon the proper interpretation of the Award as it was at the time of that service. The Applicant contends that a five day shift worker is a "shift worker" for the purposes of cl. 21(a)(v) of the Award, and that a Saturday or a Sunday 1s a day on which such an employee is rostered off. The Respondent disputes that Saturdays and Sundays can be regarded as rostered days off, and contends that this expression 1s appropriate only for seven day shift workers, whose non-working days may fall at any time, by virtue of their rosters. -5- Mr. Phillips, who appeared for the Applicant, referred to a number of clauses in the Award for the purpose of showing that five day shift workers, along with seven day shift workers, were to be regarded as shift workers for all purposes of the Award, incuding cl. 2l(a)(v). These provisions were cl. 7(k), 1. a which prevents apprentices being required to work shifts, 15(d), which relates ta the process of transferring employees from day work to shift work, cl. 18, which deals with hours of work for day workers, cl. 19(a), which provides for payment at the rate of double time for all overtime worked by shift workers, compared with a lesser rate for day workers, cl. Olfa)(v1), which requires that employees other than shift workers be paid at the rate of double time and a half for all time worked on public holidays, cl. 21(b), which provides that shift workers be paid at the rate of double time for public holidays, other than Christmas Day and Good Friday which are to be paid for at double time and a half, cl. 22/b), which makes specific extra provision for annual leave for seven day shift workers, cl. 22(k), which makes specific provision for annual leave Ilcading for shift workers, and cl. 24, which deals with shift work generally and provides for shift loadings. The argument put by Mr. Phillips was that five day shift workers are entitled to be regarded as shift workers whenever this expression is used in the Award. They have in practice been treated as entitled to the benefit of provisions of the Award dealing with shift workers since before the Award repeated the - 6 - provision which is now cl. 21(a)(v). Where the Award intends to single out seven day shift workers, 1t does 50 expressly. An example 1s cl. 22(b), which makes specific provision for extra annual leave for seven day shift workers. It follows, so 1b is said, that the expression "Shift worker" in cl. 21(a)(v) must include a five day shift worker. There 15 mo doubt that, for the purposes of most Provisions of the Award, five day shift workers are dealt with as shift workers, along with both categories of seven day shift workers. Mr. Phillips' argument, however, focusses attentien on the wrong phrase incl. 2l(a)(v). The question raised by that provision is not whether five day shift workers are "shift workers", but whether they are shift workers who have rostered days off, or, more precisely, whether a public holiday which falls on a Saturday or Sunday falls "on a day on which a shift worker 1s rostered off", where such a shift worker 15 a five day shift worker. Mr. Phillips invited me to adopt the ordinary and matural meaning of the words used in the Award. Using that approach, I find iat difficult to regard Saturdays and Sundays as rostered days off for a five day shift worker. The expression "rostered day off" an common use relating to shift workers 1s much more appropriate to a seven day shift worker whose nen-working days may fall irregularly, on weekdays or weekends, depending upon the provisions of the particular roster. - 7 - The ordinary and natural meaning of cl. Tllal(v), therefore, appears to be that a seven day shift worker 1s to receive a day off in lieu of a public holiday which falls on a rostered non-working day. Mr. Phillips was unable to direct me to anything in the context of the Award, or its history, or the usage of the parties, which would oust what I regard as the Proper construction of cl. Z2l1lf(at(v). The fact that I have reached this canclusion does not necessarily mean that I accept all the arguments put to me by Mr. Cullen 0.C., who appeared with Mr. West for the Respondent. I do not go so far as to hold that the interpretation contended for by Mr. Phillips is so absurd or unreasonable that it must ba rejected. I also leave open the question whether, in construing an award, 1t 15 permissible for the Court to look at the decision of the arbitrator who made the award, to see if that decision throws light on the subjective intention of the maker of the award. In this case, attention was directed toa decision of Commissioner Clarkson in 165 C.A.R. 298, at pages 302-2023, The present Applicant was not a party to the proceedings in which that decision was given, and did not intervene. There 15 no andication in the report that it was even aware of the Proceedings. The circumstances, therefore, do not constitute a proper case for determining whether resort may be had to the arbitrator's expressed decision in construing an award. The extent to which regard may be had to the acts of the -g- Parties under an award, as an aid in its construction, is limited. There 1s authority that 1t 1s not proper to look at the conduct of the parties after the making of an award: Seamen's Union of Australia v. Adelaide Steamship Co. Ltd. (1976) 46 F.L.R. 444, Re Hydro-Electric Commission (Tas.) Carpenters and Painters Award 1979, (1981) I.A.S.C.R. 549, at page 5&4. If the relevant provision of the Award is "re-enacted" after a history of consistent conduct by the parties, it may be permissible to have regard to that conduct as supporting the view that the parties and the arbitrator intended to continue aie settled interpretation of the provision: See Merchant Service Guild of Australia v. Sydney Steam Collier Owners and Coal Stevyedores Association (13958) 1 F.L.R. 248, at pages 251, 7254 and 257. If regard is had to the pre-history of cl. 21fa'(v), it does not disclose any settled practice of allowing five day shift workers an extra day's holiday 1n lieu of a public holiday falling on a Saturday or Sunday. History does not, therefore, detract from the ordinary and natural meaning of the clause. The interpretation I give 1s as follows: Upon the true interpretation of cl. 21lfa)(v) of the Aircraft Industr antas Airways Limited) Award 1980, an employee to whom the Award applies whose normal working hours are worked in shifts on five days per week, excluding Saturdays and Sundays, 1s not entitled to an extra day off in the event that a public holiday -9- falls on a Saturday or Sunday. I certify that this and the § preceding Pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Gray. Sey Yo ~ Associate Dated: G LL [ss