Ophel, Sue v Yarra City Council [1998] FCA 101

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - interpretation of award and certified agreement - entitlement of payment of wages on "days observed as a public holiday" - meaning of the words "viz.", "public holiday". Workplace Relations Act 1996, ss 178, 179 Industrial Relations Act 1988 Public Service Act 1974 (Vic) Bank Holidays Act 1958 (Vic) Local Government Act 1989 (Vic) Public Sector Management Act 1992 (Vic) Public Holidays Act 1993 SUE OPHEL v YARRA CITY COUNCIL VG 394 of 1997 NORTHROP J MELBOURNE 23 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 394 of 1997

BETWEEN: SUE OPHEL

Applicant

AND: YARRA CITY COUNCIL

Respondent

COURT: northrop j

DATE OF ORDER: 23 february 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 394 of 1997

BETWEEN: SUE OPHEL

Applicant

AND: YARRA CITY COUNCIL

Respondent

COURT: NORTHROP J

DATE: 23 FEBRUARY 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT The question raised by this application is the proper construction and application of Clause 8 of the City of Richmond (Officers) Agreement 1993, a certified agreement under s 134C of the Industrial Relations Act 1988 ("the Agreement"). The Agreement, which was certified on 19 March 1993 was entered into between two organisations of employees and the Mayor, Councillors and Citizens of the City of Richmond ("the City of Richmond"). At the time the Agreement was certified, the City of Richmond was a municipality under the Local Government Act 1989 (Vic). It was a statutory body created under legislation passed by the Parliament of the State of Victoria. It formed part of the third arm of government in Victoria, namely, local government. It was a Victorian Local Government authority. These facts are of importance in the resolution of the issue raised by this application. The Agreement is ancillary to the Victorian Local Authorities Interim Award 1991 ("the Interim Award") made under the provisions of the Industrial Relations Act. The parties to the Agreement are parties to the Interim Award. Clause 4 of the Agreement provides that except as otherwise provided in the Agreement, the conditions of employment of officers shall be those conditions that are contained in the Interim Award. As from 22 June 1994, the City of Richmond became merged with other municipalities to constitute the Yarra City Council ("Yarra City") which became a local government authority under the Local Government Act. Yarra City is the successor in law to the City of Richmond and is bound by the Agreement and the Interim Award. At all material times the applicant was a member of one of the organisations party to the Agreement and the Interim Award. At all material times she was employed by Yarra City which was bound to apply the provisions of the Agreement and the Interim Award in relation to her employment. The applicant was absent from work on Tuesday 9 April 1996. That Tuesday was Easter Tuesday. Clause 33 of the Interim Award provided that salaries of officers employed by Yarra City be paid periodically. On 9 April 1996, Cl 33(ii) provided that where an employee was absent from work, other than on paid leave, the employee should be paid for the hours worked only. Relying on this provision, Yarra City did not pay the applicant for the time she was absent from work on Easter Tuesday 1996. The applicant claimed she was entitled to be paid for that day despite her absence from work. She was not absent on paid leave but relied upon Cl 8 of the Agreement. Clause 8 is set out in full:- "8 - HOLIDAYS (a) All officers shall be entitled to be absent on the days observed as public holidays without any deduction of pay, viz: New Year's Day, Australia Day, Labour Day, Good Friday, Easter Saturday, Easter Monday, Easter Tuesday, Anzac Day, Queen's Birthday, Show Day, Cup Day, Christmas Day, Boxing Day and any other day or days which may from time to time be proclaimed as public holidays. Further, all officers shall be entitled to be absent without any deduction of pay on a day to be observed within the municipality as Union Picnic Day, which shall be treated as a public holiday for the purposes of this Agreement. (b) Where any officer is required to be on duty on any holiday or holidays prescribed in subclause (a) hereof he/she shall be paid in accordance with subclause 7(c) of this Agreement." Clause 7(c) of the Agreement provides for payment on overtime rates for time worked on public holidays. The sub-clause is not relevant to the question raised by this application. The issue between the parties is whether Easter Tuesday 1996 was a public holiday under Cl 8(a) of the Agreement. The opening words of the sub-clause confer a benefit on an officer which, under cl 4 of the Agreement, takes precedence over sub-clause 33(ii) of the Interim Award. The structure of Cl 8(a) of the Agreement gives rise to some difficulty. The opening words of the sub-clause prescribe in general form the nature of the benefit namely that all officers shall be entitled to be absent on the days observed as public holidays without any deduction of pay. Questions could arise under this general provision whether any particular day was a day observed as a public holiday. Where this occurred it would be necessary to construe the words "days observed as public holidays", to determine the relevant facts, and to apply the words as construed to the facts found. The essence of the submissions made by counsel for the applicant was that no matter what was meant by the words "days observed as public holidays", the identification of specific days after the word "viz", by prescription, made those days "days observed as public holidays". Easter Tuesday was identified and thus Easter Tuesday 1996 came within the general prescription of the opening words of sub-clause 8(a). In other words, the identified days constituted a definition of days observed as public holidays while the last part of the first paragraph of sub-clause 8(a) permitted additional days to become days observed as public holidays. The essence of the submissions made by counsel for Yarra City was that the prescription of the Agreement was contained in the opening words of sub-clause 8(a) only and that the identified words after the word "viz" were merely examples or illustrations of what, in 1993, were observed as public holidays. The identified days were not prescribed as "days observed as public holidays". Thus it was contended particular days may cease to be "observed as public holidays" while other days may be proclaimed to be public holidays. The latter part of sub-clause 8(a) makes specific reference to additional days but this of itself does not prevent an identified day ceasing to be a public holiday. The submissions of counsel were directed primarily to the construction and effect of the word "viz" contained in sub-clause 8(a). Less attention was directed to the proper construction of the phrase "days observed as public holidays". Any meaning to be given to the phrase "days observed as public holidays" was not, in the submissions of counsel for the applicant, of great importance since in any event Easter Tuesday was prescribed as a day observed as a public holiday. Neither counsel was able to refer the Court to any authority of assistance in determining the proper construction of the words. Before turning to consider the word "viz", it is desirable to consider the meaning of the phrase "days observed as public holidays". This is a composite phrase or a concatenation of words. It is not to be construed by reference to the meaning of each separate word. It must be construed as a composite phrase. Even then it can be helpful to look at the meaning to be given to the individual words. The phrase appears in an agreement made in an industrial context but the general rules of construction of a contract or statute apply. Some general comments are made. The Interim Award and the Agreement were made under the provisions of a Commonwealth Act. For present purposes, the Agreement is made by one employer being a State instrumentality with activities limited to an area within the State of Victoria and in fact within the Melbourne metropolitan area. The word "holiday" has a well known and understood meaning. A holiday is different from leave. In its context, the word "holiday" is not used in the sense of a vacation. It is used in the sense of a day fixed by law or custom on which ordinary business is suspended in commemoration of some event or in honour of some person, being a day of exemption from labour, a religious feast, or holy day: see The Macquarie Dictionary. The word derives from the word "holy-day" being a day set apart for religious purposes. But not all "holy-days" of all religions observed in Victoria are holidays for all but are restricted to those persons observing the particular religion concerned. Even within different denominations of the Christian religion, Easter is observed at different times. The use of the word "public" suggests a limitation or restriction on the word "holidays" which otherwise would come within the meaning of holidays. The use of the word "public" is used as an adjective meaning pertaining to or affecting the people as a whole or the community, state or section; see The Macquarie Dictionary. The same dictionary defines the words "public holiday" as an official holiday for members of the public generally throughout Australia or throughout the whole of a particular State. The present case involves public holidays within the State of Victoria. Finally, reference is made to the word "observed" as used in the phrase "observed as public holidays". The word "observed" is used also in the second paragraph of Cl 8(a). In its context, where appearing in each of the paragraphs, the word "observed" should be given the same meaning. The verb "observe" has many different meanings. The most appropriate meanings attributed to it by the Macquarie Dictionary are "6. to obey; comply with; conform to: to observe a law. 7. to show regard for by some appropriate procedure, ceremonies, etc.: to observe a holiday." Many more meanings are attributed to the verb "observe" by the Shorter Oxford English Dictionary. The most appropriate meanings are: "I. 1. To adhere to or abide by in practice (anything prescribed or fixed) ...... 3. To celebrate duly (a religious rite, fast, festival etc.)" To this list included as examples, it is noted the word "holiday", legitimately, could be included. In its context, the phrase "days observed as public holidays" should be understood to mean those days which, within the State of Victoria, or parts of that State, are prescribed or fixed by an appropriate authority to be celebrated as a holiday for members of the public generally throughout the State of Victoria or parts of Victoria. In this context, the appropriate authority would include the Parliament of Australia or of Victoria or by executive action taken by the Executive of Australia or of Victoria. The executive action could include a proclamation or other prerogative action. The Agreement does not adopt the form of providing that officers shall be entitled to be absent on specified days such as New Years Day, Australia Day etc., without deduction of pay. The form adopted is to confer the benefit by reference to days coming within a general description namely "days observed as public holidays". Where a specific day is to be included it is achieved by a fiction, namely the specified day is to "be treated as a public holiday for the purposes of " the Agreement. Having construed the meaning to be given to the phrase "days observed as public holidays", it is necessary to determine whether Easter Tuesday 1996 constituted a day observed as a public holiday within Yarra City. The Court was not referred to any statute whether of the Commonwealth or of the State of Victoria, which prescribed that day a public holiday in Victoria generally or in Yarra City specifically. The Public Service Act 1974 (Vic) contained provisions relating to holidays in public offices. In this respect, specified days were, by legislation, directed to be observed as holidays within the public service of the State of Victoria. Other State Acts adopted the same provisions. Many other State Acts made specific provisions for holidays in specified industries or with respect to particular locations. Reference can be made to the Local Government Act and the Bank Holidays Act 1958. Awards made under the provisions of the Conciliation and Arbitration Act 1904 (Cwth) and the Industrial Relations Act 1988 (Cwth) could contain, in an appropriate case, prescriptions for holidays without loss of pay but these holidays would be limited to the persons having the benefit of the awards. Similar provisions could be included in State awards and determinations. Subject to any specific provisions contained in Commonwealth Legislation or by Commonwealth proclamations, within Victoria the holidays specified in the Public Service Act 1974, were treated as public holidays in Victoria. In this respect s 71 provided:- "71 (1) The following days shall be observed as holidays in the public offices:- (a) Good Friday and the day after Good Friday, and Easter Monday and Easter Tuesday; (b) New Year's Day: Provided that when New Year's Day falls upon a Sunday the day after New Year's Day shall be a holiday; (c) Christmas Day and the day after Christmas Day: Provided that when Christmas Day falls upon a Sunday the following Monday and Tuesday shall be holidays and that when the day after Christmas Day falls upon a Sunday the following Monday shall be a holiday; (d) The 26th day of January and the second Monday in March: Provided that when the former day falls on any day other than a Monday the following Monday shall be a holiday instead thereof; (e) The anniversary of the birthday of Her Majesty - which shall be observed on a day appointed annually by the Governor in Council by proclamation published in the Government Gazette; (f) The 25th day of April - Anzac Day; (g) The fourth Thursday in September so far only as regards the public offices situate within any of the municipalities mentioned in Schedule Five." It is noted that Melbourne Cup Day is not included. This holiday was provided for in other legislation. Paragraph (g) refers to Melbourne Show day and the municipalities set out in Schedule 5 are within or close to the Melbourne Metropolitan area. Other subsections of s 71 contain provisions for the proclamation of other "public holidays" and the deletion of public holidays for the whole or part of the State of Victoria. On the facts of this case, the Court concludes that "days observed as public holidays" contained in the Agreement refer to those days specified in the Public Service Act. The "public holidays" themselves do not apply directly to officers employed by Yarra City, but are incorporated by the general words contained in the opening part of Cl 8 of the Agreement. Other provisions may have made other days public holidays but they are not relevant to the issue before the Court. On this construction of Cl 8, Easter Tuesday was a day observed as a public holiday and thus came within the general description of that clause. The Public Sector Management Act 1992 (Vic) however repealed the Public Service Act 1974. The purpose of the Public Sector Management Act, broadly, was to reform the management of the Victorian Public Service with an object that officers and employees of the Public Service, including public authorities, which as defined, were not local government authorities, be brought under the general industrial framework established under the Employee Relations Act 1992 (Vic). Under s 84 and Schedule 4 of the Public Sector Management Act, public holidays to be observed in the public service were, for present purposes, identical with those specified in s 71 of the Public Service Act. The Public Holidays Act 1993 came into operation on 7 December 1993. Its stated purpose was to make new provisions with respect to public holidays. By s 4, the Public Holidays Act is expressed to apply to all persons not covered by a federal award who, in substance, are employed under a Victorian Act or a contract of employment in Victoria. Section 6 is set out in full:- "6. The following days are appointed as public holidays - (a) New Year's Day or the day after New Year's Day when New Year's Day is a Sunday; (b) 26 January (Australia Day); (c) the second Monday in March (Labour Day); (d) Good Friday; (e) Easter Monday; (f) 25 April (Anzac Day); (g) the second Monday in June (the day on which the anniversary of the birthday of the Sovereign is observed); (h) the first Tuesday in November (Melbourne Cup Day ) but only in metropolitan municipal districts; (i) Christmas Day; (j) The day after Christmas Day (Boxing Day) or the following Monday when Boxing Day is a Sunday."