Australian Liquor Hospitality & Miscellaneous Workers Union v Broadlex Cleaning Australia Pty Ltd [1997] IRCA 296

DECISION NO:296/97

industrial relations COURT OF AUSTRALIA

industrial law - Construction of an award - meaning of the term "shift work" - whether employee engaged in shift work

AUSTRALIAN LIQUOR HOSPITALITY & MISCELLANEOUS WORKERS UNION v BROADLEX CLEANING AUSTRALIA PTY LIMITED

ai 1102 of 1996

MOORE J

SYDNEY

14 NOVEMBER 1997

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

ACT DISTRICT REGISTRY ai 1102 of 1996

BETWEEN: AUSTRALIAN LIQUOR HOSPITALITY & MISCELLANEOUS WORKERS UNION

Applicant

AND: BROADLEX CLEANING AUSTRALIA PTY LIMITED

Respondent

JUDGE: MOORE J

DATE OF ORDER: 14 NOVEMBER 1997

WHERE MADE: SYDNEY

THE COURT ORDERS and declares that:

1. Broadlex Cleaning Australia Pty Limited breached the Caretakers, Cleaners and Lift Drivers (ACT) Award 1982 by failing to pay Mr Guisseppi Iannuzzo all monies due to him by way of annual leave payments for leave taken in May and June 1996.

2. Broadlex Cleaning Australia Pty Limited pay Mr Guisseppi Iannuzzo the sum of $240.00

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

ACT DISTRICT REGISTRY ai 1102 of 1996

BETWEEN: AUSTRALIAN LIQUOR HOSPITALITY & MISCELLANEOUS WORKERS UNION

Applicant

AND: BROADLEX CLEANING AUSTRALIA Pty LIMITED

Respondent

JUDGE: MOORE J

DATE: 14 November 1997

PLACE: SYDNEY

REASONS FOR JUDGMENT This is an application under section 178 of what is now entitled the Workplace Relations Act 1996 ("the Act") for the imposition of a penalty for breach of a term of an award. The applicant, the Australian Liquor, Hospitality and Miscellaneous Workers Union ("the union"), seeks the imposition of a penalty on Broadlex Cleaning Australia Pty Ltd ("Broadlex") for failing to pay Mr Guisseppi Iannuzzo his annual leave entitlements in breach of clause 23 of the Caretakers, Cleaners and Lift Drivers (ACT) Award 1982 ("the Award"). The union seeks an order that Broadlex pay Iannuzzo that amount and that it pay a penalty to the union pursuant to s 178(5). The application arises from the alleged non-payment by Broadlex of wages during part of a period when Iannuzzo was on recreation leave. Iannuzzo, a cleaner in the employ of Broadlex at the Russell Offices, Russell Hill Defence Complex, took annual leave from 27 May 1996 to 14 June 1996 inclusive. He was not paid for the period 12, 13 and 14 June 1996. The application raises the issue of whether Iannuzzo was entitled to four or five weeks of annual recreation leave. It is thus necessary to ascertain his leave entitlements under the Award. Clause 23 of the Award concerns "Recreation leave". Clause 23(a)(i) states: "In addition to the public holidays specified in this award, an employee shall be entitled to leave of absence on full pay for a period equal to four working weeks for each continuous twelve months' service (less the period of recreation leave) with his or her employer. Employees on shift work, employees who are required to work in accordance with a roster on Sunday and holidays, and caretakers shall, on completion of each twelve months' service, be entitled to leave of absence on full pay for a period equal to five working weeks exclusive of public holidays. ... "Shift work" means a shift on which an employee is rostered to commence before 6.30am or rostered to finish after 8.00pm." An ordinary employee is therefore entitled to four weeks recreation leave per year while shift workers (and workers in two other categories) are entitled to five weeks' recreation leave. If Iannuzzo was a shift worker he was entitled to five weeks' recreation leave and Broadlex did not comply with the Award. If he was not a shift worker, he was entitled to only four weeks of paid annual leave. The evidence was not extensive and was, in the main, uncontentious. Iannuzzo regularly commenced work at 6.00 am each weekday morning and finished work at 2.30 pm each afternoon. He thus satisfied the primary element of the definition of an employee engaged in "shift work" in the sense that he commenced before 6.30am. However the definition speaks of "a shift on which an employee is rostered." Broadlex submitted that Iannuzzo neither worked shifts nor was rostered. Accordingly, Iannuzzo was not an employee on shift work within the terms of cl 23, and would only be entitled to four weeks of paid annual recreation leave. It appears not to be in issue that there was no system in which employees rotated through a series of work cycles with differing commencing and finishing times for each cycles. In its written submissions, Broadlex referred to the definitions of "roster" and "shift". "Roster" is defined in the Macquarie Dictionary (Sydney: The Macquarie Library Pty Ltd, 1991, 2nd ed) in the following way: "n. 1. a list of persons or groups with their turns or periods of duty. 2. any list, role, or register. - v.t. 3. to put on a roster; to list" "Shift" is relevantly defined in the following way: "- n. 11. a shifting from one place, position, person, etc., to another; a transfer. 12. the portion of the day scheduled as a day's work when a factory, etc., operates continuously during the 24 hours or works both day and night; night shift. 13. a group of workers so employed." The gravamen of the submission of Broadlex was that Iannuzzo's hours of work were not part of cycle of employment. It was submitted that for Iannuzzo's period of work to be considered a shift, it would necessary for his periods of employment to be part of a cycle of similar periods of work and for him to be obliged, or at least liable, to work at other periods of the cycle from time to time. However the starting point in construing the relevant provision of the Award is the terms of the Award read as a whole. Shift work is a matter dealt with by cl 8. It provides: " 8 - SHIFT WORK (a) An employee (other than a part-time cleaner) rostered for duty before 6.30 a.m. and/or after 7.30 p.m. on any day, Monday to Friday inclusive, shall be paid fifteen per cent additional to the total daily or hourly rate. (b) An employee who works permanently on night shift or alternating afternoon and night shifts shall be paid an additional 30 per cent when engaged on such night shifts in lieu of subclause (a) hereof or subclause 7(c). Provided that this subclause does not apply to caretakers in residence. Afternoon shift shall mean a shift which finished subsequent to 7.30 p.m. and at or before midnight. Night shift shall mean a shift which finishes subsequent to midnight and at or before 8.00 a.m., but shall exclude an early morning shift which starts between 4.00 a.m. and 6.30 a.m. A weekly employee required to work a broken shift, Monday to Friday inclusive, shall be paid an additional amount of $2.14 per day. (c) Without limiting in any way the other provisions of this clause or of clause 7, the minimum payment for work performed between 6.30 p.m. and 7.30 p.m. on Monday to Friday inclusive shall be fifteen per cent additional to the total ordinary or hourly rate. (d) A full-time shift worker shall be entitled to a paid crib of twenty minutes which shall be taken at or towards the middle of the shift." Several things emerge from this clause. The first is that cl 8(a) recognises that an employee who is rostered to commence before 6.30 am is, for the purposes of the additional payment it prescribes, a person on shift work. Clause 8(b), when it refers to an employee working permanently on night shift, recognises that at least for the purposes of the Award, there is no notion of rotating work inherent in the notion of shift work. Moreover the structure and language of cl 8(a) suggests that the notion of rostering also does not imply some rotation but rather the predetermination of the time at which a particular employee or groups of employees would work. This view of the scheme of the award in reinforced by cl 16 which deals with hours of work. Clause 16(a) provides: "The ordinary hours of work shall be an average of 38 hours per week exclusive of meal times over a two or four week cycle to be worked in days or shifts not exceeding eight hours' duration. Provided further that: (i) the ordinary working hours of a cleaner in any one week shall not exceed five days or shifts which may be worked consecutively over any seven days Monday to Sunday. (ii) ..." The reference to cycle is a reference to the scheme commonly adopted to provide for a 38 hour working week against an historical background in which a 40 hour week has been worked on five days of eight hours each. The various methods of working a 38 hour week are set out in the remainder of the clause. Of significance, in my opinion, is the reference to "days or shifts" at two points in clause 16(a). It is likely that the word "shifts" was used in that context to signify the period of work of an employee which straddled two days that is, started before midnight on one day and finished after midnight and early the following day. It is probably unnecessary to refer to authorities dealing with shift work in other awards but support for the conclusion I have reached about the proper construction of cl 23 is found in Media Entertainment and Arts Alliance v John Fairfax Group Pty Ltd (1993) 49 IR 374 and Re Iron and Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) Award [1957] AR(NSW) 429 which illustrates the notion of fixed as well as rotating shifts. While the notion of shift work often involves rotation or the employment of successive groups of employees: see the Metal Trades Case (1936) 36 CAR 534, it does not always concern employment of that type. The following commentary appears in the Industrial Information Digest, (Sydney: The Law Book Company Limited, 1976) at p 1186-1187: "Shift work - Definition of. Many systems of working outside the normal spread of hours fixed by awards for day workers are classed as shifts for that reasons only, and many awards such, for instance, as the Metal Trades Federal Award, contain provision for permanent night shifts where no rotation or no successive gangs of men are employed." In my opinion, Iannuzzo was an employee on shift work for the purposes of cl 23. It follows that Broadlex failed to comply with cl 23 in that it did not pay Iannuzzo his full entitlement to annual leave payments under that clause. There appears to be no issue that this is an amount of $240.00. Accordingly I propose to order under s 178(6) that Broadlex pay Iannuzzo the sum of $240.00. The union also seeks the imposition of a penalty under s 178. However there is uncontraverted evidence before the Court that when Broadlex commenced operating in the Australian Capital Territory by taking over the cleaning contract at the Russell Hill Office Complex, it was advised that its ACT employees were entitled to four weeks annual leave. In reliance upon this advise, Broadlex produced a booklet which was distributed to employees identifying their leave entitlements as four weeks. There is an issue as to whether Iannuzzo received the booklet, but that is immaterial. I say that because I am satisfied that Broadlex believed that it was obliged to provide only four weeks annual leave and payment for that period and no more. There was other evidence about an understanding between a former delegate of the union and the previous contractor but it is unnecessary to consider this material. It is sufficient, in the circumstances, for Broadlex to have demonstrated that it had a genuine misunderstanding about the operation of the Award and had acted reasonably in endeavouring to ascertain its obligations. Accordingly I do not propose to impose any penalty. These proceedings first came before the Court in late 1996. Written submissions were filed by the parties in March 1997. For reasons for which it is unnecessary to detail, there has been considerable delay in addressing the written submissions that were filed many months earlier. That is to be regretted. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore