Industrial Relations Commission of New South Wales CITATION: Electrical Trades Union of Australia, NSW Branch and another v OneSteel Rod and Bar Mill [2005] NSWIRComm 221 Electrical Trades Union of Australia, NSW Branch; PARTIES: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (NSW Branch) OneSteel Pty Limited FILE NUMBER(S): IRC 6242 of 2004; IRC 6262 of 2004 CORAM: Harrison DP Notification pursuant to s 130 of a dispute re incorrect payment for Easter Saturday Public Holiday - claim for six hour's wages - interpretation of award and Annual Holidays Act 1944 - application of shift work and weekend penalties on Saturday which is public holiday CATCHWORDS: Held - Award relies on Annual Holidays Act - Annual Holidays Act prevents payment of shift allowances and weekend penalties on Saturday that is public holiday - application for payment refused Annual Holidays Act 1944 LEGISLATION CITED: Industrial Relations Act 1996 Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia, NSW Branch (2001) 106 IR 217 Norwest Beef Industries Ltd v Australasian Meat Industry Union of Workers (WA Branch) (1984) 12 IR 314 Bryce v Apperly 82 IR 448 CASES CITED: Short v F W Hercus Pty Limited (1993) 40 FCR 511 Re State Rail Authority Fire Fighters Award 2001 (2002) NSWIRComm 159 Shift Workers Case 1972 AR 633 HEARING DATES: 04/05/2005 DATE OF JUDGMENT: 07/22/2005 APPLICANTS ETU Counsel Mr A Searle AMWU LEGAL REPRESENTATIVES: Mr G Hayter RESPONDENT Solicitor Mr D Lloyd Blake Dawson Waldron JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 22 July 2005 Matter No IRC 6242 of 2004 Notification Under Section 130 By The Electrical Trades Union Of Australia, NSW Branch Of A Dispute With OneSteel Rod And Bar Mill And Others Re Alleged Incorrect Payment For A Saturday Public Holiday Matter No IRC 6262 of 2004 Notification Under Section 130 By the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (NSW Branch) Of A Dispute With OneSteel Rod And Bar Mill Re Incorrect Pay For Public Holiday DECISION [2005] NSWIRComm 221 1 Notifications in these matters were filed on 22 October 2004 by the Electrical Trades Union of Australia, NSW Branch (ETU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (NSW Branch) (AMWU) ("the Unions") respectively and subject to conciliation proceedings on 14 December 2004. The issues were not able to be resolved, leading to the issue of a Certificate of Attempted Conciliation on that date and directions to bring the matters to hearing. 2 Hearing took place on 5 April 2005. Mr A Searle of Counsel appeared on behalf of the ETU. Mr G Hayter appeared on behalf of the AMWU. Mr D Lloyd, solicitor, Blake Dawson Waldron, appeared on behalf of OneSteel Rod and Bar Mill ("OneSteel"). 3 Mr Searle brought evidence from Mr Edwards, ETU job delegate at OneSteel, who was not required for cross examination; Mr Robert Alexander, a NSW State Organiser of the ETU; and Mr David Evans, employed as an Electrical Tradesman Level 6 by OneSteel at the Newcastle Rod Mill. 4 Mr Edwards' evidence (exhibit 1) describes the substance of the dispute. Mr Edwards deposed that, in his capacity as ETU delegate, he was approached by Mr Evans who complained that he had been underpaid for annual leave taken over Easter 2004. Mr Edwards progressed the matter in accordance with the disputes settlement procedure prescribed by the OneSteel Manufacturing Pty Ltd Newcastle Rod and Bar Award ("the Award") 343 IG 752. The evidence of Mr Evans confirms his complaint to Mr Edwards. 5 The evidence of Mr Alexander describes the course of discussions between the ETU and OneSteel in attempts to resolve the issue. These discussions served to define the dispute to a claim for six hours pay to Mr Evans. Mr Alexander's statement of evidence (exhibit 2) includes as attachment D correspondence from OneSteel setting out their view of the matter ultimately relied upon by Mr Lloyd in these proceedings. 6 The evidence of Mr Alexander (and that of Mr Edwards) contains a series of email messages between Mr Edwards and Mr Cook, Manager Human Resources, OneSteel. 7 The originating email from Mr Edwards identifies that a seven day electrician (Mr Evans) was on annual leave on Easter Saturday, 2004 and was paid 12 hours for the 12 hour shift; plus a day added to annual leave in respect to the public holiday. Mr Edwards puts (correctly) that Mr Evans would normally be paid 18 hours for leave or work on any Saturday. Mr Edwards offers the view that Mr Evans should not receive the day added to annual leave but be paid 30 hours (i.e. double time and one half) for the day or paid for 18 hours (time and one half) payment for a Saturday plus a day added to annual leave. 8 Mr Edwards concludes by noting that the result of Mr Evans being paid 12 hours plus the added day is that he was paid 126 hours not 132 hours for the pay period, stating: "It does not seem right that someone is worse off taking annual leave." 9 The evidence of Mr Evans includes three pay slips (Annex. A, B, and C to Ex 4). Annex. C demonstrates that he was paid 132 hours for leave taken from 22 September 2004 to 5 October 2004, which includes a rostered Saturday for which he was paid 18 hours pay. The pay slip for the period 7 April 2004 to 20 April 2004 (Annex. B to Ex 4) records Mr Evans was paid 126 hours. 10 The email in reply from Mr Cook stated that his investigation revealed that complaints of this nature occur around Christmas and Easter every year; that from a financial perspective people are better off to work than take leave; and that this application of the award has been in place for a long time pre-dating the establishment of OneSteel. 11 Mr Lloyd brought evidence from Mr Gary Moore employed as Payroll Manager by OneSteel. The evidence of Mr Moore describes the application of the award by OneSteel. 12 Mr Moore's evidence confirms that Mr Evans worked a 12 hour shift roster and had taken annual leave on Thursday, 8 April, Friday, 9 April (Good Friday), Saturday, 10 April (Easter Saturday) and Sunday, 11 April 2004 (Easter Sunday). 13 Mr Moore referred to pay slips to confirm that Mr Evans had been paid in the manner now complained of for Easter Saturday 1999 and 2000, adding that no complaint was made in those years. 14 Attached to Mr Moore's witness statement (exhibit 5) is a 12 hour shift roster trial agreement made between unions represented in this matter and OneSteel. This agreement deals with annual leave and describes a basis of payment in the following terms: "Based on the roster to apply in the Rod Mill Department, an employee commencing one week of annual leave on say, day shift Saturday, will be paid 4 days x 12 hours as per his roster plus any weekend penalties and shift allowances which would have been paid had the employee been at work." 15 During the course of cross examination Mr Moore confirmed that the 12 hour shift work trial had concluded and become the established mode of operation. 16 Central to the dispute in these proceedings is the application of cl 22, Annual Leave of the award, in particular the provisions of cl 22 (iv): (iv) All employees - Annual Leave Payment (a) In respect of a period of annual leave an employee shall be paid the sum of - (1) the employee's award rate of pay for ordinary time at the commencement of their annual leave as prescribed by clause 2, Rates of Pay, clause 3, Tool Allowance, clause 4 Leading Hands and clause 5 Special Rates; and, (2) the employee's rate of bonus payable at the commencement of their annual leave pursuant to the bonus scheme applicable to them plus the higher of: (3) a loading of 20 percent; or (4) the shift work allowances pursuant to clause 8, Shift Work Allowances for Shift Workers, and the weekend penalty rates pursuant to clause 9, Saturday Rates for Shift Workers, and (in respect of Sundays only) clause 16, Sunday and Holiday Rates, of this award, that would have been payable to them in respect of ordinary time during the period of annual leave had they not been on annual leave. (b) The loading prescribed by this subclause shall apply to payment in lieu of a fully due annual holiday on termination of employment, but shall not apply to proportionate annual holiday payment on termination of employment. 17 Also of relevance is clause 23, Days Added to the Period of Annual Leave, in particular cl 23(i), (ii) and (iii) which state: (i) In the case of an employee who was, at the commencement of their annual leave or long service leave, employed as a seven-day shift worker under clause 17, Shift Workers Whose Period Includes Sundays and Holidays as Ordinary Working Time, of this award, one day shall be added to their annual leave period or long service leave period respectively, in respect of any holiday prescribed by this award which falls within the period of annual leave and long service leave to which they are entitled under this award. (ii) An employee who is rostered off duty on a day which is a holiday prescribed by this award and who is not required to work on that day shall: (a) have one day added to their annual leave period; or (b) by mutual consent, be paid, in the pay for the period in which the holiday falls, for the holiday at the rate payable pursuant to subclause (i) of clause 15, Holidays, of this award. This subclause shall not apply when the holiday falls: (1) on a Saturday or Sunday except in the case of employees employed as seven-day shift workers under clause 17, Shift Workers Whose Working Period Includes Sundays and Holidays as Ordinary Working Days, of this award, or; (2) on a Sunday in the case of employees employed as a Monday to Saturday shift workers who are regularly rostered for duty on Saturdays as ordinary working days. (iii) Any days added in the case of annual leave shall be paid for at the annual leave rate of pay and in the case of long service leave shall be paid for at the long service leave rate of pay. 18 Also of relevance is cl 9, Saturday Rates for Shift Workers which states: Shift workers for their ordinary shift performed on Saturday shall be paid at the rate of time and one half. SUBMISSIONS 19 The unions seek an order or direction that Mr Evans be paid six hours pay due to him in respect to Easter Saturday, 10 April 2004. 20 Mr Searle relied upon cl 22(iv) of the award which he put is clear in its intention and meaning that whilst on annual leave an employee is entitled to be paid his/her award rate of pay for ordinary time, plus the applicable rate of bonus plus the higher of a 20 percent loading or shift allowances as provided for in cl 22(iv)(4). 21 Mr Searle submitted that the plain, ordinary English of the words of cl 22(iv)(4) can only have one meaning, which is to include the weekend penalty rates pursuant to cl 9, Saturday Rates for Shift Workers; and that there is no ambiguity in the provision that would admit any broader consideration. 22 Mr Searle submitted that cl 22(iv)(4) does not make any exception or variation where a period of leave falls on or covers a public holiday. Mr Searle submitted that this interpretation is supported by the terms of the "Letter of Understanding" attached to the statement of Mr Moore (exhibit 5 attach. GM1) which states: "an employee commencing one week of annual leave … will be paid 4 days x 12 hours as per his roster, plus any weekend penalties and shift allowances which would have been paid had the employee been at work". 23 Mr Searle concluded his written submissions putting: 27. Where a shift worker ordinarily works on Saturdays, payment is to be made in accordance with cl 9 of the award, which provides for an hourly rate of time and one half. The rate of time and one half is, therefore, the ordinary time rate for Saturday work pursuant to the award for that shift worker. When a worker is on annual leave, and that annual leave includes a Saturday, the worker is entitled to be paid for that Saturday as if he were at work, that is at the rate of time and one half for each hour of the 12 hour shift he would have worked had he not been on annual leave. 28. While on any period of annual leave, a worker under the award is entitled to be paid all the elements in cl 22(iv) whether or not the period falls on or covers any Public Holiday. 24 In his written submissions Mr Searle provided a comprehensive analysis of the principles of award interpretation. Mr Searle dealt with the principle of literal interpretation: Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia, NSW Branch (2001) 106 IR 217 Norwest Beef Industries Ltd v Australasian Meat Industry Union of Workers (WA Branch) (1984) 12 IR 314; and Bryce v Apperly (1998) 82 IR 448; the consideration of context where permissible: Short v F W Hercus Pty Limited (1993) 40 FCR 511 and the approach to be taken to beneficial legislation in Re State Rail Authority Fire Fighters Award 2001 (2002) NSWIRComm 159. 25 Mr Searle noted s 175, Powers of interpretation, of the Act which he put describes appropriate and sufficient jurisdiction for interpretation of the Award in resolution of the instant dispute. 26 Mr Lloyd concurred that in the resolution of this dispute ample jurisdiction is afforded by s 175 of the Act to interpret the award. 27 Mr Lloyd submitted that the dispute is ultimately determined by reference to the award and applicable legislation, which he put is the Annual Holidays Act. 28 Mr Lloyd went first to cl 7 of the award to establish authority for 12 hour shifts, then to cl 9 to establish the rate for Saturday shifts, then to cl 15, Holidays which identifies the public holidays to be observed under the award, noting that "the Saturday following Good Friday" are the words used to identify Easter Saturday as a public holiday. 29 Mr Lloyd submitted that the application by the unions loses direction at this point as, in his submission, Easter Saturday so identified is not an ordinary Saturday but a public holiday and as such does not attract the Saturday rate of time and one half prescribed by cl 9 but the holiday rates prescribed by cl 16. Mr Lloyd submitted that to continue to treat Easter Saturday as an ordinary Saturday is erroneous. 30 Mr Lloyd noted that cl 15 of the award further prescribes the rate of pay for day workers and Monday to Saturday shift workers, which he acknowledged are not under consideration in these proceedings. 31 Mr Lloyd then went to cl 16, Sunday and Holiday Rates of the award, which he noted prescribes payment of double time for work on Sundays and double time and one half for work on public holidays. 32 Mr Lloyd submitted that regarding Easter Saturday as a public holiday, the prescribed rate for work on that day is double time and one half which is consistent with his proposition that it ceases to be an ordinary Saturday and is treated as a public holiday. 33 In addressing the operation of cl 22, Annual Leave of the award, Mr Lloyd noted that Mr Evans is a seven day shift worker and as such is afforded one additional week of annual leave by operation of cl 22(ii)(a) which is a condition of employment more generous than the Annual Holidays Act. 34 Mr Lloyd contended that the "more favourable" provision found in s 5 of the Annual Holidays Act operates in respect to this additional week of leave but does not wholly negate the operation of the Annual Holidays Act which is relied upon by the award to determine the ordinary pay. 35 The award defines the annual leave rate of pay in cl 31, Definitions at sub clause (vi) in the following terms: (vi) Annual leave rate of pay means - (a) in the case of: (1) annual leave under clause 22, Annual Leave, of this award and clause 23, Days Added to the Period of Annual Leave, of this award, taken by an employee immediately before or after leave under the Annual Holidays Act 1944; (2) payment in respect of annual leave or days added to the period of annual leave being made to an employee under the said clause 22 and 23 upon the termination of the employment of an employee at the same time payment is being made under the Annual Holidays Act 1944, in respect of such termination. The ordinary pay of the employee calculated in accordance with the Annual Holidays Act 1944, for the leave taken or payments made under that Act. (b) in the case of annual leave under the said clause 22 of the award and days added to the period of annual leave under the said clause 23 of this award being taken otherwise than immediately before or after leave under the Annual Holidays Act 1944, the ordinary pay of the employees calculated in accordance with the Annual Holidays Act 1944 as if such leave had been taken under the Act. [Emphasis added] 36 Mr Lloyd submitted that it is thus necessary to consider the definition of ordinary pay found in the Annual Holidays Act. The definition commences in section 2(1) and is further defined in s2(2), in particular ss (2)(a), (2)(a1) and ss2(3), each sub section including the following expression in the calculation of ordinary pay for annual leave: "Shift allowances relating to ordinary time and weekend penalties relating to ordinary time the worker would have worked on days other than public holidays if the worker had not been on annual holiday ." [Emphasis added] 37 The Annual Holidays Act goes further in s 2(5) in the following terms: (5) Notwithstanding the provisions of subsection (2)(a), (2)(a1) or (3), where by any award or agreement a worker is entitled to shift allowances relating to ordinary time or weekend penalties relating to ordinary time the worker would have worked on days other than public holidays if he had not been on annual holiday or to an annual holiday loading, whichever is the greater, the ordinary time rate of pay or the ordinary pay, as the case may be, of that worker shall not, in respect of any annual holiday to which the worker is entitled under this Act, include those allowances and penalties ." [Emphasis added] 38 These provisions of the Annual Holidays Act make a distinction between days which are public holidays and days which are not. Payment for a Saturday which is not a public holiday includes shift allowances and weekend penalties. These allowances are not payable on a Saturday which is a public holiday. 39 Mr Lloyd argued that the operation of s 2 of the Annual Holidays Act is to exclude payment of shift allowances and weekend penalties on days which are public holidays, and that as Easter Saturday is a public holiday not a Saturday the Saturday penalty is excluded. THE AWARD 40 Mr Lloyd submitted that the proper analysis of annual leave entitlement of a seven day shift worker arises at cl 22(iv) of the award. 41 Mr Lloyd submitted that cl 22(iv)(a)(3) and 22(iv)(a)(4) require a comparison of a 20 percent loading with the amount resulting from the calculation described in cl 22(iv)(a)(4). 42 Mr Lloyd acknowledged that when making the calculation pursuant to cl 22(iv)(a)(4) for seven day shift workers who are regularly rostered to work Saturdays and Sundays the result will invariably be in excess of the 20 percent alternative prescribed by cl 22(iv)(a)(3). 43 Mr Lloyd submitted that in order to make an accurate calculation cl 22(iv)(a)(4) must be separated into the discrete elements identified by the sub clause to determine the money value of: · the shift work allowances pursuant to cl 8, Shift Work Allowances for Shift Workers, and · the weekend penalty rates pursuant to cl 9, Saturday Rates for Shift Workers, and · (in respect to Sundays only) cl 16, Sunday and Holiday Rates, · that would have been payable to them in respect to ordinary time during the period of annual leave had they not been on annual leave. 44 Mr Lloyd submitted that the second fatal error committed by the unions in their contention was not identifying and accepting that the operation of cl 16 is confined to Sundays only. 45 Mr Lloyd submitted that in applying the exception to cl 16, Sundays and Holidays, it is necessary to consider whether the payment to be made to a seven day shift worker on annual leave is to include or exclude payments for work which the worker would otherwise have performed on a holiday if the worker had not been on annual leave. 46 Mr Lloyd submitted that in resolving this question work which would have been undertaken but for the annual leave on a public holiday is excluded as the provisions of cl 22(iv)(a)(4) limits application of cl 16 to Sundays only. 47 Mr Lloyd submitted that the proper application of the provisions is that cl 9 Saturday work does not apply because Easter Saturday is not a Saturday but a public holiday, and that cl 16 does not apply to Easter Saturday as cl 22(iv)(a)(4) restricts its application to Sundays only, and accordingly the only available payment is for the 12 ordinary hours that were rostered. 48 Mr Lloyd relied on the Shift Workers Case 1972 AR 633 at 665 where the Commission in Court Session said: We have intentionally omitted any reference to penalty rates for any day occurring during the annual holiday which is a public holiday on which the employee would have worked an ordinary shift, because s 3(8) of the Annual Holidays Act requires the employer in such circumstances to increase the annual holiday by 1 day and we do not think it proper either to award contrary to that provision or to supplement it. If we were to allow public holiday rates for such a holiday, we would in effect be awarding treble time and a half for that day, which we think would be quite unreasonable. 49 Mr Lloyd pointed to what he submitted was an inconsistency in the unions' claim, which was at first for 30 hours payment, then amended to time and one half (i.e. 18 hours payment) plus one additional day of annual leave. Mr Lloyd acknowledged that for a 12 hour shift worker both amounted to 30 hours by differing means. 50 Mr Searle submitted that in reading the award down, OneSteel had not taken proper regard of the beneficial nature of the Annual Holidays Act 1944 ("the Annual Holidays Act") and had overlooked s 5 thereof which provides that where an employee has an entitlement to annual leave under an award or agreement or a contract of employment which provides for "more favourable" conditions to the worker than that provided by s 3 of the Annual Holidays Act, the worker shall have the benefit of those more favourable conditions. 51 Mr Searle put that the provisions of cl 22 (iv) of the award do not provide that an employee would be paid the public holiday rate for work on Easter Saturday, but are not capable of being read down in the manner advanced by OneSteel to result in only 12 hours pay where a public holiday falls on a Saturday, compared to 18 hours pay for a Saturday which is not a public holiday. CONSIDERATION 52 The principles of interpretation to be applied are conveniently set out at p228 of Kingmill in the following terms: 63 The interpretation of awards are, in our view, to be approached in accordance with the principles authoritatively stated by the Full Bench of the Commission in Court Session in Bryce. Hungerford and Schmidt JJ stated there (at 452) "In our view, in construing the true meaning, of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314: 'The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light. 64 Their Honours approved the approach adopted by Olney J in Norwest Beef Industries Ltd v Australasian Meat Industries Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 as follows: "If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd, 30 WAIG 539, at 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said: 'It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties.'. In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless. " Ordinary Pay For Easter Saturday 53 The starting point for resolution of this dispute must be clause 31 of the award which clearly and unequivocally defines the rate of pay for annual leave to be that which would be paid under the Annual Holidays Act. 54 This leads to a consideration of section 2(2)(a) of the Annual Holidays Act: (2) For the purposes of the definition of the terms ordinary pay in subsection (1) - (a) the term ordinary time rate of pay in the case of a worker who is remunerated in relation to an ordinary time rate of pay fixed by the terms of the worker's employment means the time rate of pay so fixed for the worker's work under the terms of the worker's employment, including shift allowances relating to ordinary time and weekend penalties relating to ordinary time the worker would have worked on days other than public holidays if the worker had not been on annual holidays, but does not include any other amount payable to the worker in respect of shift work, overtime or penalty rates, and where two or more time rates of pay are so fixed means the higher or highest of those rates; 55 The language and construction specifically prevents payment of shift allowances and weekend penalties on days which are public holidays. 56 Easter Saturday is a public holiday and accordingly the Annual Holidays Act specifically excludes payment of shift allowances or weekend penalties on that day. 57 The next consideration is whether there is any part of the award or binding arrangement between the parties which override this legislative prescription. 58 Section 8 of the Annual Holidays Act specifically and emphatically prevents contracting out of that Act. S 8 states: 8 (1) The provisions of this Act shall have effect notwithstanding any stipulation to the contrary whether made before or after the commencement of this Act. (2) No contract or agreement made or entered into either before or after the commencement of this Act shall operate to annul or vary or exclude any of the provisions of this Act. 59 Recourse from the exclusion of payment of weekend penalties can only be in the award, not any arrangement or contract between the parties, if it is to exist. 60 The operation of s 2 of the Annual Holidays Act is not effected by s 5 of that Act, which, in s 5(1), is directed to sections 3, 4 and 4A and, in s 5, is confined to the additional day of holiday to a seven day shift worker required to work regularly on Sundays and public holidays and the circumstances of payment of an annual leave loading; a separate matter to the calculation of ordinary pay. 61 Clause 22 of the award specifies a calculation of the award rate of pay for ordinary time as prescribed by cl 2, Rates of Pay; cl 3, Tool allowance; cl 4, Leading Hands; and cl 5, Special Rates. There is nothing in this prescription which adds to or alters the definition of ordinary pay found in s 2(2) of the Annual Holidays Act. 62 The award refers specifically to weekend penalty rates pursuant to cl 9, Saturday Rates for Shift Workers, in the alternative to a 20 percent annual leave loading, which is not an aspect in dispute in these proceedings. 63 Applying the principles of literal interpretation, I find that there is nothing in the award which effects operation of s 2(2)(a) of the Annual Holidays Act which precludes payment of shift allowances and weekend penalties on a day that is a holiday. 64 It is said by the unions that this produces an absurd result as a worker is worse off taking annual leave on a Saturday which is a public holiday than a Saturday which is not. This overlooks the additional day of annual leave occurring on a Saturday which is a public holiday. 65 This is a circumstance and merit argument which would need to be addressed in award negotiations or properly constituted proceedings for variation of the award. 66 The application for payment to Mr Evans of six hours pay for Easter Saturday, 10 April 2004 is refused. Annual Leave Loading 67 Easter Saturday must be treated as a public holiday for the purposes of ordinary pay defined by the Annual Holidays Act, and as a public holiday for payment pursuant to the award for employees required to work on that day. . 68 The question then arising is whether there is any distinction between a public holiday and a Saturday in cl 22(iv)(a)(4) for the purposes of calculation of annual leave loading. 69 It is necessary to approach cl 22(iv)(a)(4) separated into its discrete elements. The clause requires a calculation of: o Shift work allowances pursuant to cl 8, Shift Work Allowances for Shift Workers, and o the weekend penalty rates pursuant to cl 9, Saturday Rates for Shift Workers, and o (in respect to Sundays only) cl 16, Sunday and Holiday Rates that would have been payable to them in respect of ordinary time during the period of annual leave had they not been on annual leave. 70 Had Mr Evans not been on annual leave on Easter Saturday he would have been paid holiday rates for ordinary time on that day. Therefore, Saturday rates for shift workers pursuant to cl 9 Saturday rates, would not apply as this is not the payment that would have been received. The next element confirms the payment of Sunday and holiday rates to Sunday only. 71 Matters No IRC 6242 and 6262 of 2004 are so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.