FEDERAL COURT OF AUSTRALIA Spastic Society of Victoria Ltd v Ardelle [2001] FCA 1457 INDUSTRIAL LAW – award – rates of pay – construction – ambiguity – new argument on appeal SPASTIC SOCIETY OF VICTORIA LTD v KIMRAY ARDELLE and GERELDINE ARDELLE V 223 of 2001 WILCOX, von DOUSSA AND FINKELSTEIN JJ MELBOURNE 18 OCTOBER 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 223 of 2001 On appeal from a single judge of the Federal Court of Australia BETWEEN: SPASTIC SOCIETY OF VICTORIA LTD Appellant AND: KIMRAY ARDELLE and GERELDINE ARDELLE Respondents JUDGES: WILCOX, von DOUSSA & FINKELSTEIN JJ DATE OF ORDER: 18 OCTOBER 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made below be set aside. 3. The originating 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 V 223 of 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SPASTIC SOCIETY OF VICTORIA LTD APPELLANT AND: KIMRAY ARDELLE and GERELDINE ARDELLE RESPONDENTS JUDGES: WILCOX, von DOUSSA & FINKELSTEIN JJ DATE: 18 OCTOBER 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT WILCOX J: 1 I have had the advantage of reading in draft form the reasons for judgment of von Doussa J and Finkelstein J. 2 It is unfortunate that there should be room for a difference of opinion between my two colleagues (and even between Finkelstein J, who would dismiss the appeal, and the primary judge) in relation to a matter so prosaic as the correct method of calculating employees' wages entitlements under an industrial award. Provisions such as these are intended to be understood and applied in the workplace by non-lawyers. They ought to be drafted in clear terms. I agree with the comments made by Finkelstein J in the opening paragraph of his reasons. 3 I have come to share the view of von Doussa J that the appeal must be allowed, and for the reasons he gives. Analysis of the entirety of cl 2 of the State Award seems to negate the view that the final sentence of sub-para (f)(xiv ) imposes an obligation to increase by two-sevenths the wage rate stipulated in cl 2(a) and 2(b) for seven day 24 hour employees. I agree with von Doussa J that the subject of compensation for the sixth and seventh days is intended to be covered by cl 6(a). 4 It is true, as Finkelstein J points out, that the compensation provided by cl 6 is not at a time and a half rate, as is the case for 8 hour employees. However, as von Doussa J observes, 24 hour employees enjoy higher wage rates than 8 hour employees. The difference may well be ascribable, at least in part, to the difference in compensation for additional hours worked. Moreover, such is the nature of their employment that it seems likely many 24 hour employees will live in the same premises as their charges and have board and lodging supplied by the employer. Having regard to these considerations, there is not such a clear anomaly, as between 24 hour employees and 8 hour employees, as to justify departure from the natural meaning of cl 2. 5 I agree with the orders proposed by von Doussa J. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 18 October 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V223 OF 2001 BETWEEN: SPASTIC SOCIETY OF VICTORIA LTD APPELLANT AND: KIMRAY ARDELLE FIRST RESPONDENT GERALDINE ARDELLE SECOND RESPONDENT JUDGES: WILCOX, von DOUSSA & FINKELSTEIN JJ DATE: 18 OCTOBER 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT von DOUSSA J 6 This is an appeal from a decision of a single judge of this court concerning the interpretation of two awards which governed the employment by the Spastic Society of Victoria Ltd (the Society) of the respondents as residential care workers. The first award is the Residential Child Care Workers Award made by the Industrial Relations Commission of Victoria under the Industrial Relations Act 1979 (Vic) (the State Award) which was applied to govern the respondents' employment from 20 December 1993 to 2 August 1995 by cl 3 of the Health Services Union (Private Sector) Interim Award 1993 (the 1993 Interim Award) made by the Australian Industrial Relations Commission. The second award, which governed the respondents' employment from 3 August 1995 to 1 July 1998, when they ceased to be employed by the Society, was the Health (Residential Care – Victoria) Award 1995 (the 1995 Award) also made by the Australian Industrial Relations Commission. 7 The proceedings at first instance were brought by the respondents who alleged that the Society had failed to pay them correctly in breach of these awards. Pursuant to s 178 of the Workplace Relations Act 1996 (Cth) (the Act) the respondents sought penalties and payment to them of alleged shortfalls in the wages which the Society had paid them. 8 The trial judge upheld the respondents' claim and made a declaration that the Society had committed breaches of both awards. After receiving further submissions from the parties, penalties were imposed and orders made under s 178(6) of the Act in favour of the first respondent for $53,774.58 and in favour of the second respondent $49,576.91 for underpaid wages. 9 The background facts were agreed between the parties. At all material times the Society has been a party bound by the awards. The respondents had been employed by the Society from the early 1980's, but the dispute over their entitlement concerns only the period from 20 December 1993 to 1 July 1998. The first respondent throughout this time was employed as a 24 hour supervisor, and the second respondent was employed as a 24 hour care worker in the respondent's Glen Waverley House at Glen Waverley caring for four severely disabled young people who lived at Glen Waverley House. The respondents also lived there. In February 1992 the respondents agreed with the Society upon certain conditions of employment. In the document which recorded the agreement, the conditions were described as "the position". "The position" was relevantly described as follows: "This is a live-in position with conditions of employment under the Residential Care Workers Award – 24 Hour section. However, by mutual agreement certain conditions exist outside this award. · Annual leave is 28 days as the normal working week is 7 days. · Annual Leave, Public holidays, Stand Downs and accumulated time off are accumulated and taken in groups of 4 times per year at 2 weeks each time. · A ten day fortnight is not adhered to …" 10 The agreed statement of facts states that at all times during the period in dispute the respondents "were engaged on a regular basis for seven days per week". Their usual working pattern was that they worked seven days per week for periods of eleven weeks at a time, without a day off; and at the end of each eleven week period they took a combination of annual leave, days off in lieu of public holidays and accrued days off for a period of two weeks. 11 Relevant provisions of the State Award, as applied by the 1993 Interim Award are set out below. The dollar amounts shown are as they appeared in the State Award at the date of commencement, 5 February 1988. Those figures are cited to show the comparative prescribed rates of wages per week for 8 hour care workers and 24 hour care workers. Those figures were, however, subject to periodic increase, before and during the period in dispute. The clauses central to the dispute between the parties are cl 2(f)(xiv) and cl 6(a). "2. WAGES (a) … (b) Adult Employees Wages Per Week Classification 8 hour care worker 24 hour care worker (i) … (ii) Child Care Worker - 1st year of experience as such 300.40 401.00 2nd year of experience as such 303.80 405.50 3rd year of experience as such 308.10 411.10 Thereafter 312.00 416.60 (iii) Supervisors - (1) In charge of 2 to 6 Child Care Workers - 1st year of experience as a Supervisor 330.30 441.60 2nd year of experience as a Supervisor 334.30 446.90 3rd year of experience as a Supervisor 337.90 451.90 Thereafter 342.20 457.40 … (c) Service Payments [Provision is made for increments on completion of periods of continuous service.] (d) Additional Payment for Child Care Certificate Course [Provision is made for additional payments for employees who have completed prescribed qualifications.] … (f) Definitions (i) '8 Hour Care Worker' means an employee who is engaged on the basis that the normal working week will consist of 38 hours. (ii) 'Residential Worker' means an employee who is engaged to care for children and whose responsibilities extend over 24 hours in each working day. … (xiv) The wage rate payable shall be calculated at the rate of the classification of the employee, plus the relevant payments applicable in (c) and (d) of Clause 2. The definition of a week shall mean five days, except when the employee is engaged on a regular basis up to seven days per week. Wage rates should be applied pro rata in order to calculate the rate payable per five or seven day week, per half day, or per hour as applicable according to the classification. … 6. WEEKLY TIMES OFF (24 HOUR CARE WORKERS ONLY) (The days off provided by this clause are in addition to the Annual Leave prescribed by Clause 14, and the Public Holidays prescribed by Clause 15.) (a) Each employer shall be allowed two consecutive days of 24 hours off per week or four days off every fortnight, but shall only be required to work ten days by mutual agreement between the employer and employee without a break. The employer shall pay one-fifth of the employee's wage rate for each such day that is not allowed. Provided that by mutual agreement between an employer and an employee, such days off may be worked and the equivalent time accumulated, to be taken by the employee at a time and for a period agreed upon by the employer and the employee. Provided further that no more than 30 days may be accumulated at any one time. (b) …" 12 Clauses 7, 8 and 9 make provision for penalty rates, an additional payment for an employee required to sleep over, and for overtime, but these provisions apply only to 8 hour care workers. 13 The provisions in cl 14 for annual leave and in cl 15 for public holidays referred to in the words in parenthesis at the commencement of cl 6 relevantly provide: "14. ANNUAL LEAVE Clause A (1) Except as otherwise provided in this Award every employee shall at the end of each year of his employment by an employer become entitled to an annual holiday of four weeks on ordinary pay. … Clause C (1) For the purposes of the two last preceding clauses – 'Ordinary pay' in relation to any employee means remuneration for the employee's normal weekly number of hours of work calculated at the ordinary time rate of pay and where the employee is provided with board or lodging by his employer, includes the cash value of that board or lodging. 'Week' in relation to any worker means the employee's ordinary working week. … 15. PUBLIC HOLIDAYS (a) An employee who is rostered to work on any of the public holidays prescribed in sub-clause (b) of this clause or who is required to take a day off on any of the public holidays prescribed in sub-clause (b) of this clause: shall be entitled to receive an additional day's leave to be taken in addition to their annual leave entitlements or, in lieu, at the employee's written request receive an additional day's pay. (b) Public Holidays for the purposes of this Award shall be New Year's Day, Australia Day, Labour Day, Good Friday, Easter Monday, Anzac Day, Queen's Birthday, Melbourne Show Day, Christmas Day and Boxing Day." 14 It is also material to refer to cl 18 of the State Award which provides as follows: "18. SICK LEAVE (a) In the event of an employee becoming sick and certified as such by a qualified medical practitioner approved by the employer the employee shall be entitled to sick leave on full pay as follows: (i) During the first year of service – one day (other than a rostered day off) for each month of service. (ii) During the second, third and fourth years of service – two weeks in each year. (iii) Thereafter – three weeks in each year." 15 The 1995 Award contained terms that correspond to those set out above in the State Award, and although differently numbered, they are not materially different. The parties are agreed that the determination of the proper construction of the relevant provisions of the State Award will also determine the proper construction of the corresponding provisions in the 1995 Award. It is therefore sufficient to note that the clauses of the 1995 Award which correspond with clauses 2(b); 2(f)(xiv); 6(a); 14; 15; and 18 of the State Award are clauses 17(b); 3(g), (h) and (i); 23(e); 28; 29; and 30 respectively, and to confine the following discussion to the State Award. 16 The statement in the document recording the conditions of "the position" that "a ten day fortnight is not adhered to" becomes meaningful in the context of cl 6(a) of the State Award. The Society did not grant the respondents two consecutive days off per week or four days off every fortnight, and it did not grant them equivalent time off for days which were in fact worked (save for those days off taken during the two weeks break each quarter which were not part of annual leave or days off in lieu of public holidays). 17 To understand the differing positions contended for by the parties, and the interpretation adopted by the trial judge, it is helpful to consider the result in money terms which flowed from each interpretation. It is convenient for this purpose to use the first respondent's wage rate applicable under the State Award at 20 December 1993 for the purposes of illustration. In accordance with the first sentence in cl 2(f)(xiv) that wage rate is arrived at by taking the rate for the classification of the first respondent as a supervisor and adding to it the relevant payments applicable to him under clauses 2(c) and (d) to reflect his length of service and qualifications. His wage rate so calculated at 20 December 1993 was $551.22. 18 During the period in dispute for the times when the respondents worked seven days in a week, and did not take time off in lieu, the Society paid them their wage rate as determined under the first sentence of cl 2(f)(xiv) plus an additional one fifth of that rate for each of the sixth and seventh days. By way of illustration, in the week ending 26 December 1993, the first respondent received his wage rate of $551.22 for the first five days and an additional $110.24 for each of the sixth and seventh days, giving a total of $771.71 (after adjusting for fractions). 19 The respondents contended that as they were engaged on a regular basis of seven days per week the application of the second and third sentences of cl 2(f)(xiv) had the effect that their "wage rate" for a seven day week was to be calculated by taking a pro rata daily rate for a five day week, and multiplying that rate by seven. The "wage rate" in the case of the first respondent for the week ending 26 December 1993 therefore became $771.71. Clause 6(a) then required that one fifth of that sum, namely $154.34, was to be paid for each of the sixth and seventh days. On this construction of the State Award the first respondent contended that he had been underpaid in that week by the sum of $308.68. It was this construction of the State Award which the trial judge accepted. 20 The appellant has advanced a number of different possible constructions of the State Award to justify the basis upon which it paid the respondents. Before the trial judge, it was suggested that the State Award drew a distinction between five day 24 hour care workers and seven day 24 hour care workers, and the appellant contended that cl 6(a) had no application at all to 24 hour care workers who were engaged on a regular seven day week. Not surprisingly the trial judge rejected that submission. However, the case was differently presented to this court, and the appellant finally settled upon the contention that cl 2(f)(xiv) is merely a definitional clause, and not one that imposed substantive rights and obligations. The appellant contended that the substantive obligation arose under cl 6(a) which it conceded applied to all 24 hour care workers. On this approach, the "wage rate" is that calculated under the first sentence of cl 2(f)(xiv), and the Society correctly paid the respondents. 21 The parties are agreed that the interpretation of the State Award depends on the proper construction of the language of the award itself. No evidence was led at trial to show that extrinsic materials were available to aid in the interpretation of the State Award in its application to the circumstances of the respondents. 22 The State Award draws a clear distinction between 8 hour care workers and 24 hour care workers, the latter classification covering those people whose 24 hour employment requires them to be available on a continuous basis to meet the needs of disabled young people as and when they arise. The notion that the State Award draws a further distinction between five day and seven day 24 hour care workers is not expressed in any of the provisions of the award. Clause 6(a) recognises that 24 hour care workers may be required to work more than five days per week, either for six or seven days, but the terms of that clause apply whether the 24 hour care worker usually works five, six or seven days per week. 23 A consequence of the distinction which the State Award does draw between 8 hour care workers and 24 hour care workers is that no provision is made in the award for additional payments to 24 hour care workers over and above the wage rate calculated under cl 2 for penalty rates, sleepovers or overtime. The award compensates 24 hour care workers for those matters by prescribing significantly higher wages per week than are payable to 8 hour care workers. 24 The critical question arising under cl 6(a) is to determine "the employee's wage rate", one fifth of which is to be added for each day off which is not allowed to the employee. The expression "wage rate" is the subject of cl 2(f)(xiv). Whilst the paragraphs of cl 2, other than par (f) prescribe wage rates and by implication impose the obligation upon the employer to pay those rates, par (f) is headed "Definitions". Each of the preceding thirteen sub-paragraphs of cl 2(f) state meanings to be ascribed to expressions used within the award and are plainly definitional in nature, and impose no substantive obligations. It would therefore be surprising if cl 2(f)(xiv) departed from this pattern, and under the guise of a definitional clause imposed a substantive obligation. 25 The first sentence of cl 2(f)(xiv) can only serve a definitional purpose. It provides that the wage rate payable shall be calculated by aggregating the substantive obligations otherwise imposed by the preceding paragraphs of cl 2. By its opening words the second sentence is in the form of a definition: "[t]he definition of a week shall mean …". Treated as a definition only, that clause has a purpose in relation, for example, to the clauses dealing with annual leave and sick leave. To construe the sentence in a way that deems the "wages per week" as an entitlement accruing over seven days is untenable. Such a construction would have the effect of reducing the entitlement of a worker for a "day's pay" on a public holiday. The sentence is not one that is intended to alter substantive entitlements and obligations imposed under the earlier paragraphs of cl 2. 26 The final sentence of cl 2(f)(xiv) is that upon which the respondents' construction of the State Award primarily rests. The opening words, "[w]age rates should be applied pro rata …", assume that relevant wage rates are otherwise determined under the award, and that the sentence is not itself one which will fix wage rates. Whilst it is difficult to comprehend what is intended by the notion that wage rates should be applied pro rata in order to calculate the rate payable "per five or seven day week", it would be contrary to the opening words of that sentence, and to the definitional nature of cl 2(f) to construe them as constructing a new weekly wage of six-fifths or seven-fifths of that prescribed in the earlier paragraphs of cl 2. 27 In my opinion, the "employee's wage rate" within the meaning of cl 6(a) is the wage rate calculated according to the first sentence of cl 2(f)(xiv), namely the wages per week specified for adult employees in cl 2(b) together with the relevant payments applicable under clauses 2(c) and (d) for service payments and additional qualifications. In the case of the first respondent for the week commencing 20 December 1993 that figure was $551.22. For each day not allowed under cl 6(a) the respondents were entitled to one fifth of that wage rate. In my opinion, the Society was correct in its calculation of the remuneration paid to the respondents. 28 The parties were agreed that a 24 hour care worker who usually worked only five days per week, if required in an unusual situation to work six or seven days, would be paid for each additional day one fifth of the wage rate calculated in accordance with the first sentence of cl 2(f)(xiv). On the construction which I have proposed, any 24 hour care worker, regardless of the days usually worked, would receive the same rate of remuneration for working on entitled days off under cl 6(a). The terms of the State Award suggest no reason why there should be any differentiation in the remuneration paid in respect of days off not allowed under cl 6(a) between 24 hour care workers who usually work five days per week, and those who usually work six or seven days per week. 29 Further, on the proposed construction, should a 24 hour care worker request payment in lieu of a public holiday under cl 15, "an additional day's pay" would be the same regardless of whether the 24 hour care worker was usually engaged to work five days or seven days per week. On the construction contended for by the respondent, a 24 hour care worker usually working five days per week would receive less than a 24 hour care worker usually engaged on a seven day week for a paid public holiday. Again the award suggests no reason why there should be such a difference. 30 Under the annual leave clause, cl 14, there are specific definitions of "ordinary pay" and "week". On either the construction of the State Award which I favour, or on that advanced by the respondents, a 24 hour care worker usually working a seven day week would receive an amount which reflected the actual remuneration received each week. The terms of the annual leave clause do not assist in resolving the matter of construction now before the Court. 31 In my opinion, the construction contended for by the appellant is correct. It follows that the Society paid the respondents on the correct basis, and they have received their full entitlement. 32 In these circumstances the appeal must be allowed, the declaration and other orders made at first instance should be set aside and the respondents' application should be dismissed. I certify that the preceding twenty-seven numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa. Associate: Dated: 18 October 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 223 of 2001 On appeal from a single judge of the Federal Court of Australia BETWEEN: SPASTIC SOCIETY OF VICTORIA LTD Appellant AND: KIMRAY ARDELLE and GERELDINE ARDELLE Respondents JUDGES: WILCOX, von DOUSSA & FINKELSTEIN JJ DATE: 18 OCTOBER 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT FINKELSTEIN J 33 This appeal yet again raises for consideration the proper construction of an industrial award prescribing rates of pay. It is to be regretted that these instruments are often expressed in language that is difficult for those they bind to understand and apply. Greater care should be taken in the formulation of awards before they are made. The money spent in bringing an ambiguous award before a court of construction would be better allocated to more productive areas. In this case, however, the difficulties with regard to the construction of the awards in question are capable of resolution to produce a fair result, as I will attempt to show. 34 The question at issue is what wage must the appellant pay to a 24 hour care worker who regularly works a seven day week. The appellant says that it is only obliged to pay the worker's weekly wage, as specified in the applicable award, together with one fifth of the weekly wage for each additional day's work. The respondents, who are 24 hour care workers regularly employed by the appellant to work seven days per week, contend that in addition to the amount conceded by the appellant, (their weekly wage plus two days' pay) they should be given an extra two days' pay each week by way of penalty because they have not been allowed two days off per week. 35 There are successive awards that prescribe the wages the appellant must pay its workers. The first is the Residential Child Care Workers Award made under State legislation and the second is the Health Services Union (Private Sector) Interim Award made under federal legislation. In all relevant respects each award uses the same language. It is therefore possible to resolve this case by reference to the first award. 36 Clause 6 of the State award is the genesis of the present dispute, though it only incidentally provides the answer. Clause 6 reads: "WEEKLY TIMES OFF (24 HOUR CARE WORKERS ONLY) (The days off provided by this clause are in addition to the Annual Leave prescribed by Clause 14, and the Public Holidays prescribed by Clause 15). (a) Each employee shall be allowed two consecutive days of 24 hours off per week or four days off every fortnight, but shall only be required to work ten days by mutual agreement between the employer and employee without a break. The employer shall pay one-fifth of the employee's wage rate for each such day that is not allowed. Provided that by mutual agreement between an employer and an employee, such days off may be worked and the equivalent time accumulated, to be taken by the employee at a time and for a period agreed upon by the employer and the employee. Provided further that no more than 30 days may be accumulated at any one time. (b) For the purpose of payment of wages and determining time worked an employee who is required to work between the hours of midnight and noon or noon and midnight will be deemed to have worked half a day." It will be necessary later to look at this provision in some detail. Presently it is sufficient to make the following observations. The respondents' claim for an extra two days' pay is based on cl 6. At trial the only defence which the appellant put forward to this claim was that on its proper construction, cl 6 did not apply to a 24 hour care worker who worked a seven day week. Even a cursory examination of cl 6 shows this argument to be hopeless, and it was properly rejected by the trial judge. When it came to oral submissions on the appeal, the appellant abandoned this argument, as it abandoned most of its grounds of appeal and the contentions contained in its written outline of argument filed in support of the appeal. It relied upon a new argument which, to a substantial extent, was developed in running. The respondents did not object to this course. Perhaps because the resolution of the principal issue under consideration will affect many workers, not only in relation to past, but also in respect of future wages, this was a reasonable stance for the respondents to take. The respondents may even have anticipated the court's likely reaction. But it should not be assumed that even in circumstances such as the present an appellant will necessarily be permitted to argue that the trial judge fell into error by failing to adopt a position that was not put in issue at the trial. In most cases if an appellant were allowed to take that course, and he succeeded on the appeal, it is unlikely that the appellant would recover his costs, and he may even be ordered to pay those of the respondent. However, s 347 of the Workplace Relations Act 1996 (Cth) prevents the court from making orders to that effect in this type of case. 37 Let me now return to the issues at hand. Two unstated assumptions lie behind the submissions both parties made at trial. The first assumption is that, subject to certain adjustments in appropriate circumstances, when the State award makes provision for the payment of a weekly wage, the week comprises five working days. This assumption is well-founded, as I will demonstrate in a moment by reference to the relevant provisions of the State award. The second assumption is that a worker who works overtime is entitled to be paid for the additional time worked. Having regard to the nature of the arguments below, it was not necessary for the trial judge to explore the correctness of the second assumption. That it is also well-founded cannot be doubted. It could hardly be supposed that a worker who works, say, a seven day week should receive the same pay as a worker who works for five days. That said, in order to resolve this appeal it is necessary to identify the source of the entitlement to be paid overtime. The reason why this must be investigated is because the appellant now contends that in the case of a 24 hour care worker the provision that both requires the payment, and fixes the rate, of overtime is cl 6 of the State award. If that is correct, then cl 6 could not also impose a further obligation to pay the extra amount that the respondents say they are entitled to receive. 38 The State award prescribes rates of pay for two categories of care worker. One category is referred as an "8 hour care worker". In cl 2(f)(i) of the award an "8 hour care worker" is defined as "an employee who is engaged on the basis that the normal working week will consist of 38 hours". The second category is a "24 hour care worker". In the award this worker is usually referred to as a "residential worker". The definition of a "residential worker" is "an employee who is engaged to care for children and whose responsibilities extend over 24 hours in each working day". 39 The wages to be paid to care workers are set out in cl 2. There is a table of rates for junior employees (cl 2(a)) and a table of rates for adult employees (cl 2(b)). Each table comprises a list of the different classifications of employees engaged by the appellant, and the "Wages per week" payable to them. In each classification there is a different rate of pay for an "8 hour care worker" and a "24 hour care worker". Unsurprisingly, a 24 hour care worker is paid more than an 8 hour care worker, the difference being in the order of 33 per cent, which seems just enough to account for the increased duties. 40 The resolution of the competing claims depends upon the effect of cl 2(f)(xiv). In particular it is necessary to decide whether this provision, which is one of a number of paragraphs listed under the heading "Definitions", has the effect of providing for the payment of a different wage to that mentioned in the tables, in circumstances which apply to the respondents. 41 Clause 2(f)(xiv) provides: "The wage rate payable shall be calculated at the rate of the classification of the employee, plus the relevant payments applicable in (c) and (d) of Clause 2. The definition of a week shall mean five days except when the employee is engaged on a regular basis up to seven days per week. Wage rates should be applied pro rata in order to calculate the rate payable per five or seven day week, per half day, or per hour as applicable according to the classification." 42 The first sentence is not relevant to the issue under consideration. It does, however, confirm what I said earlier, namely that the tables in cl 2(a) and cl 2(b) prescribe the rate at which wages are to be paid to the appellant's employees. The second sentence is of some significance, though its construction is not without difficulty. It is necessary to determine when the definition of "week" that is found in cl 2(f)(xiv) is to apply. In most cases there will be no difficulty. Take for example the annual leave provision (cl 14) and the sick leave entitlements (cl 18). In the case of annual leave, every employee is entitled to "an annual holiday of four weeks". As regards sick leave, there is an entitlement to paid leave for either "two weeks in each year" or "three weeks in each year", dependent upon the number of years worked. If an employee works a five day week, each week of annual leave and each week of sick leave is a five day week. On the other hand, when an employee is required to work longer than a five day week "on a regular basis", the definition of "week" will produce a longer week so that the employee will receive longer annual leave and sick leave. That is, the word "week" in cl 14 and cl 18 means a five day week except when an employee regularly works more than a five day week, in which case the week will be the period which the employee is regularly engaged to work in each seven day period. There are other provisions that will be given the same construction. 43 However, it is not always possible to apply the definition of the word "week" where the word appears in the award. Take cl 6 itself. Each employee is to have "two consecutive days of 24 hours off per week or four days off every fortnight". It is plain that the word "week" in this phrase refers to a seven day week, and this meaning will be unaffected by the definition in cl 2(f)(xiv). As one might expect, the definition of "week" is to be applied whenever the context admits, but not otherwise. 44 A difficult question is whether the definition changes the length of the "week" referred to in the headings "Wages per week" to the tables in cl 2(a) and cl 2(b). If that was the effect of the definition then a week would mean, say, six days in the case of a worker who was engaged on a regular basis to work a six day week, but would mean five days for a worker who was engaged to work for six days on an irregular basis. However, unless some provision is made to change the weekly wage payable to a worker who works more than five days, the wage that is payable to a person who works for six days will be the same as that payable to a person who works for five days. Of course this would be absurd. The function of the third sentence of cl 2(f)(xiv) is to avoid this result. It requires the "wage rates" to be "applied pro rata" to calculate the actual wage that is payable to an employee who does not work a five day week. In effect, there are two circumstances in which "wage rates should be applied pro rata". One is when an employee works longer than a five day week, and the other is when an employee works a shorter week. In each case the employee is not to receive five days' pay. According to the third sentence the appropriate rate of pay for that worker must be determined proportionately to the number of days worked. The worker will then be entitled to the amount calculated in substitution for the rate mentioned in the table. 45 The appellant says that the third sentence cannot produce this result because it is only a "definition". This submission seems to proceed upon the mistaken assumption that unless the third sentence uses the language of obligation, it could not alter the effect of the tables. That is not correct, especially in the case of a provision that operates as a definition. The third sentence lays down both the circumstances in which there will be a change to the quantum of the wages that appear in the tables, and what that change will be. Then cl 2(a) or cl 2(b) will be the operative provision pursuant to which the adjusted wage becomes payable. Put another way, the true question is not whether the third sentence creates an obligation, but what is its effect as a "definition". In my opinion, it has the effect that I have described. 46 The result is that 24 hour care workers such as the respondents, who work seven days per week, are entitled to the wage in the table appropriate to their classification adjusted pro rata (ie by the addition of one fifth of that rate) for each of the two extra days worked. 47 This conclusion may be verified by considering the position of an 8 hour care worker who is required to work overtime. Clause 9 provides that if an 8 hour care worker works more than 40 hours per week, the worker "shall be paid at the rate of time and a half for each hour in excess of 38". It is not necessary to consider whether, and if so why, no penalty rate is payable to an 8 hour care worker who only works overtime for two hours. It is sufficient to note that when working more than 40 hours in a week, an 8 hour care worker will be paid a penalty rate for his overtime. If, as the appellant says, cl 6 is the provision that entitles a 24 hour care worker who works a seven day week to receive seven days' pay, that worker will receive no penalty payment. He will either work two days on no pay, and receive two days off later, or he will be paid his ordinary rate for the additional days. The first possibility (work but no pay) is an extraordinary one (indeed despite my researches I have not found a single award that has this effect), and the second possibility (ordinary pay for the extra days) will result in unfair discrimination between categories of worker. I would only give effect to a construction that produced this result if it was required by clear language. In this case, clear language is lacking. Moreover, each result will be avoided if cl 2(f)(xiv) operates in the way that I have described, for, in that event, the worker will be paid for the additional days worked at a penalty rate. True it is that the rate is double time, whereas an 8 hour care worker's penalty rate is time and a half. Common sense indicates that this difference is justified having regard to the number of hours worked. 48 I can now return to cl 6. How does it operate? First, although the body of the provision does not explicitly say so, the heading indicates that the benefits it provides are only available to 24 hour care workers. Second, the principal benefit given by the clause is that a 24 hour care worker is "allowed" a number of days off work per week or per fortnight. The allowance is to be afforded to "each employee", which I take to mean each and every 24 hour care worker. Third, there is an obligation to pay a worker a certain sum in the event that a day off is "not allowed". A day will be "not allowed" if the worker is required to work that day. In the case of a full-time employee the appropriate rate is one fifth of the employee's wage. (Later I will discuss the meaning of this.) There is a proviso. An employee who works on a day off may be able to take that day off at a later time, if there is an agreement to that effect with the appellant. In that event cl 6 does not require any payment to be made to the worker. Put another way, the obligation to pay the additional sum contemplated by cl 6 only arises when an employee works on a day off, and is not given a substitute day off. That is, an employee is not entitled to both an additional payment and a day off. 49 The respondents satisfy the conditions to trigger the operation of cl 6. Each is a 24 hour care worker; neither was allowed two days off per week or four days off per fortnight; there is no agreement with the appellant for either respondent to take days off at a later time. It follows that under cl 6 the respondents are entitled to "one fifth of [their] wage rate for each … day that is not allowed." 50 In the court below the parties calculated the amount of that entitlement, and advised the trial judge of the agreed sum. The trial judge then made an order that this sum be paid. The parties performed their calculations on the basis that the respondents were entitled to one fifth of their seven day weekly wage for each day off not taken. This is not the correct method of calculating the cl 6 entitlement. The appellant is required to pay one fifth of the "employee's wage rate". The "rate" is not the employee's actual weekly wage, but the rate at which that wage is determined. (Note that the third sentence of cl 2(f)(xiv) also draws this distinction). The rate is the amount specified in the tables in cl 2, as amended from time to time. That is to say, the cl 6 entitlement for each day off not taken is one fifth of the employee's five day weekly wage. 51 The question that now remains to be considered is whether the appellant should be entitled to go behind the agreed calculation and have the orders below altered so that they reflect the respondents' true entitlement. Again we are confronted with a reversal from the position the appellant took at trial. This time the appellant waited until its reply to raise the issue. It is not covered by any of the grounds of appeal unless those grounds are given a very generous construction. Now, the interests of justice do not demand that the appellant be permitted to raise the point. Indeed at this late stage the interests of justice demand the opposite. The respondents have been paid the amounts in question and would be required to find money to repay the appellant. Frankly I have little sympathy for the appellant. It had solicitors and counsel acting on its behalf and should be left in the position it chose to adopt for the trial. 52 There is one final matter concerning the construction of cl 2 that I wish to mention, although it is not necessary to do so to resolve this appeal. At one stage in their submissions the respondents seem to have accepted the proposition that a 24 hour care worker who occasionally works a six or seven day week may not be entitled to the same benefits as a 24 hour care worker who regularly works a six or seven day week. This is certainly true of those benefits that vary when the length of the "week" varies, as in the case of cl 14 and cl 18 benefits. But it is not true in relation to the rates of pay prescribed by cl 2 and the benefits given by cl 6. Once it is accepted, as I think it must be, that the wages payable to a worker who works more than five days, are to be calculated in the manner required by the third sentence of cl 2(f)(xiv), both cl 2 and cl 6 will apply to a 24 hour care worker who irregularly works more than five days per week. 53 The appeal should be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 18 October 2001 Counsel for the Appellant: Mr M McDonald Solicitor for the Appellant: Michael P Rahilly Counsel for the Respondent: Ms M Richards Solicitor for the Respondent: Maurice Blackburn Cashman Date of Hearing: 7 August 2001 Date of Judgment: 18 October 2001