Industrial Relations Commission of New South Wales CITATION: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council [2005] NSWIRComm 364 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union PARTIES: Newcastle City Council FILE NUMBER(S): IRC 4384 of 2004 CORAM: Harrison DP Notification under s 130 of a dispute re shift allowances - Parking Station Attendants - claim for payment of shift allowance as two shift workers - award interpretation - s 175 of the Act CATCHWORDS: Held - not two shift workers - day work with late finish allowance in accordance with award - shift allowance refused LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 09/29/2005 DATE OF JUDGMENT: 10/20/2005 APPLICANT Mr P Collins USU LEGAL REPRESENTATIVES: RESPONDENT Mr C Radvan Newcastle City Council JUDGMENT: - 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 20 October 2005 Matter No IRC 4384 of 2004 Notification under section 130 by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Newcastle City Council re shift allowances - Parking Station Attendants DECISION [2005] NSWIRComm 364 1 The notification in this matter, filed by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) on 27 July 2004, advised of a dispute with Newcastle City Council ("the Council") in the following terms: The Newcastle City Council has failed to pay appropriate shift allowances for Parking Station Attendants to employees working a two-shift roster in accordance with the Newcastle City Council Employees Award. Appendix A - Hours of Work of the Newcastle City Council Employees' Award 2003 clause (xii) covers the arrangement of hours to be worked by Parking Station Employees and the allowances to be paid. The Union contends that the Council have not made payment in accordance with this clause. 2 The matter was subject to compulsory conference proceedings on 30 July 2004 which established that the dispute was not capable of resolution by conciliation. A Certificate of Attempted Conciliation was issued and the matter stood over pending filing of evidence by the USU. 3 The matter was subject to mention on 20 May 2005 at which time directions were issued to bring the matter to hearing, which took place on 29 September 2005. 4 Mr Collins, appearing on behalf of the USU, tendered Draft Orders sought (Ex 2) in the following terms: 1. These proceedings have been initiated by a Dispute Notification pursuant to Section 130 of the Industrial Relations Act (hereafter "Act"). Conciliation has to date failed and the matter is proceeding to Arbitration. 2. Pursuant to Section 175 of the Act the Commission may determine any question concerning interpretation, application or operation of any relevant law or instrument. 3. The Applicant seeks that the Commission determine that the application of Appendix A (xii)(b) is interpreted to include Parking Station Employees that rotate between two shifts. 4. The Applicant seeks the Commission to make orders, recommendations or give directions that Newcastle City Council commence to pay Parking Station Employees in accordance with Appendix A (xii)(b) as two shift workers. 5. The Applicant seeks the Commission to vary table 3 of the Newcastle City Council Employees Award 2003 to include a reference to payments applicable to Appendix A(xii)(b). THE EVIDENCE 5 Mr Collins brought evidence from Mr Paul White; Mr Wayne Boyd; and Mr Roger Pillay who have worked as parking station attendants for the Council. Mr White and Mr Pillay are current employees of the Council. Statements were tendered for each of the above; none were required for cross examination. 6 The parking station attendants work a morning shift from 6.45am to 3.00pm and an afternoon shift commencing at 10.45am and concluding at 7.45pm. The evidence is that parking station attendants receive a late finish allowance for work performed as the afternoon shift, though do not receive an allowance for work performed as morning shift. 7 The evidence of Mr White is that he has been employed by the Council since 1995, starting as a casual cleaner/City Hall attendant. Mr White commenced employment as a parking station attendant on a full time basis in late 1996 and continues in that position at the time of proceedings. 8 The statement of Mr White (Ex 4) describes the duties required of a parking station attendant. Mr White deposed that from some time in 1998 he was asked to work at the Gibson Street Parking Station, known as Civic West, on a continuous afternoon shift and was paid a late finish allowance for each shift completed after 6.30pm. Mr White's evidence is that from 15 January 2001 staff and management agreed to a new roster consisting of two shifts on a rotating basis between the three Council owned parking stations. Parking station attendants rotate between the early start and late start times and between the parking stations. 9 Since commencement of the current roster in 2001 Mr White has sought payment of shift allowance as a two shift worker. 10 Mr White's evidence details consultation with Council management from the time he raised the dispute. 11 The evidence of Mr Pillay (Ex 6) is that he has been employed by the Council for the past 23 years. Mr Pillay deposed that he worked at the Gibson Street Parking Station until late 1989 on a four shift roster consisting of one morning shift, one afternoon shift, and two nights shifts; and was paid a shift allowance for each shift worked. 12 Mr Pillay's evidence is that in late 1989 working hours were altered eliminating night shifts, resulting in advice from his supervisors that shift allowance was not applicable on the morning shift. 13 The evidence of Mr Boyd (Ex 5) is that he was employed by the Council from July 1987 to October 2004 as a full time parking station attendant. Mr Boyd's evidence is that subsequent to the Newcastle earthquake of 28 December 1989 shift arrangements were altered, involving the replacement of shift allowances with a late finish allowance on the afternoon shift, which Mr Boyd continues to dispute. 14 Mr Boyd's evidence confirms that in January 2001 a new roster was arranged and accepted by staff and management, comprising two shifts rotating between the three Council parking stations as described by Mr White. 15 The evidence is not disputed by the Council. Mr Radvan, appearing on behalf of the Council, submitted that the late finishing arrangements prior to the 1989 earthquake were by arrangement with the Newcastle Worker's Club which at that time remained open to 1.00am. Mr Radvan confirms that shift arrangements were altered subsequent to the earthquake and again by agreement in January 2001. 16 Mr Radvan confirms that parking station employees sought payment of the two shift allowance in December 2003 which remains in dispute. 17 The awards covering the relevant period are the Municipal Employees (Newcastle) Award 318 IG 771 ("the Municipal Award") and the Newcastle City Council Employees Award 2003 343 IG 228 ("the 2003 Award"). The Municipal Award applied from 19 November 1999 for a period of two years and was ultimately rescinded and replaced by the 2003 Award which commenced operation from 7 October 2003, to remain in force until 30 November 2005. There is no material difference in the awards for the purpose of present proceedings, though there is a slight change in the numbering of clauses from one to the other. 18 It is appropriate to consider provisions of the 2003 Award. Clause 5, Hours of Work, prescribes a 38 hour week subject to the provisions of cl 5.1.3 and 5.1.4, which state: 5.1.3 The ordinary hours for all employees will be worked between Monday and Friday inclusive and will not exceed 12 hours in any one day, exclusive of an unpaid meal break. 5.1.4 Notwithstanding the provisions of 5.1.3, all working hours existing as at 1 May 1996, will continue to remain in force and will only be altered as provided by 5.1.5, of this clause. Agree arrangements which do not accord with 5.1.3. have been recorded in the form of an Appendix to this award, (See Appendix A, Hours of Work - Continuing Arrangements). 19 Clause 5.1.5 provides for alteration of hours by agreement and does not come into issue in this matter. 20 Parking station attendants are specifically referred to at item (xi) in Appendix A, in the following terms: (xi) Parking Station Employees: (a) The ordinary hours of Parking Station Attendants other than those engaged on shift work shall be thirty-eight per week to be worked not more than seven and three-fifths hours per day, Monday to Saturday, between the spread of hours of 6.30am and 8.30pm Monday to Friday and 6.30am and 1.30pm on Saturdays. Attendants required to work an ordinary hours rostered shift finishing after 6.30pm, Monday to Friday inclusive, excluding public holidays, shall be paid an allowance as set out in Table 3 for each shift worked. (b) The ordinary working hours for Parking Station Attendants working shift work shall be 38 per week to be worked not more than seven and three-fifths hours per day between a spread of hours commencing at 6.30am each day (except Sunday) and extending to 1.30am the following morning. Employees working a roster in accordance with this paragraph will be considered to be two shift workers and entitled to the relevant shift work allowance. 21 I note a difference in numbering between the Council's in-house publication of the 2003 Award (Ex 1), which refers to parking station employees in item (xii) of Appendix A, and the 2003 Award published in 343 IG at 264 in which parking station employees are found in item (xi) of Appendix A. The substance of the provision is the same in both exhibit 1 and the Industrial Gazette. The Gazette reference is used herein. 22 Shift allowances are prescribed in cl 9, Shift Work, which prescribes that a shift shall consist of seven and three fifths hours for employees working a 38 hour week. The relevant aspects of cl 9 are set out below: 9.1 General 9.1.1 Shift workers shall work in accordance with a regular roster suitable to the industry and subject to the provisions of the Industrial Relations Act 1996, such roster may be departed from in cases of emergency . 9.1.2 For employees working 35 hours per week pursuant to 5.1.1 of Clause 5 Hours of Work, seven hours shall constitute a shift. For employees working 38 hours per week, seven and three fifths hours shall constitute a shift. … … 9.2 Shift Allowances/Penalties 9.2.1 An employee required to work on a two shift or a three shift roster shall be paid in addition to his/her ordinary wage at the rate set out in Table 3 - Other Rates and Allowances, of Part B, Monetary Rates. 9.2.2 An employee other than a Garbage or Street Cleansing Section employee who is required to work an early morning shift as defined in sub-clause 9.5 of this clause, shall be paid at the rate set out in Table 3 - Other Rates and Allowances, of Part B, Monetary Rates. 9.2.3 An employee required to perform a rostered daily shift in two parts shall be entitled to the additional payment set out in Table 3, whilst so rostered. 9.2.4 The allowances prescribed herein shall stand alone and not be taken in account in the calculation of penalty rates. 9.2.5 A shift worker, other than a Garbage or Street Cleaning Section employee, who during a period of engagement on shift, works only on night shift and without some regular rotation with some other shift or with day work, shall be paid at the rate of time and a quarter for all time worked within ordinary hours. 9.2.6 This sub-clause shall not apply to the classifications Rangers, Animal Control Officers, Ordinance Officers, Computer Services Staff, Cleaners, Commissionaires, Library employees, Parking Station employees and Pool employees. Additional payments for such employees working outside the general spread of hours are prescribed in Table 3. … … 9.5 Definitions For the purpose of this clause "Afternoon Shift" means any shift finishing after 6.00pm and at or before midnight, Monday to Friday inclusive, except a public holiday. "Holiday Shift" means any shift the major portion of which falls on a public holiday prescribed by this award. "Night Shift" means any shift finishing subsequent to midnight and at or before 8.00am Monday to Friday inclusive, except a public holiday. "Sunday Shift" means any shift the major portion of which falls between midnight Saturday and midnight Sunday. "Early Morning Shift" means any shift which commences at or after 4.00am and before 5.30am Monday to Friday inclusive, except a public holiday . 23 The specific allowances provided for parking station attendants are found in a schedule to the award titled Table 3 Other Rates and Allowances. 24 The allowances subject to conjecture in this matter are found in Table 3, Other Rates and Allowances, in the following terms: 9.2.1 2 or 3 Shift Allowance 16.02 per day 9.2.2 Early Morning Shift Allowance 6.70 per day 9.2.3 Broken Shift Allowance 11.35 per day … … Appendix A Parking Station Employees 16.01 per shift (xi)(a) SUBMISSIONS 25 Mr Collins put that parking station attendants work in accordance with a shift roster as defined by cl 9.1.1 of the 2003 Award and thus are shift workers for the purpose of item (xi) of Appendix A and accordingly should be paid shift allowance for the morning and afternoon shift. 26 Mr Collins put that Table 3 does not provide additional payments for parking station employees covered by a two shift roster. Mr Collins put that payment to employees working a two shift roster are prescribed by cl 9.2.1 and 9.2.2 of the 2003 Award, however, cl 9.2.6 excludes parking station employees from these allowances, leading to the implication that there is no situation where parking station employees would be required to work a two shift roster; which he put is a conclusion contrary to the evidence. 27 Mr Radvan put that the facts are not disputed, submitting that jurisdiction conferred by s 175 of Industrial Relations Act 1996 ("the Act") to interpret the award for the purpose of resolving the industrial dispute is accepted. 28 Mr Radvan submitted that cl 5.1.3 of the 2003 Award, read in conjunction with cl 14.1 of the Newcastle City Council Top Value Partnership Award 2003 343 IG 931 ("the Top Value Award") establishes a span of ordinary hours from 6.00am to 8.30pm, Monday to Friday, to which no penalty applies. 29 Clause 14.1 of the Top Value Award states: 14.1 The purpose of this clause is to enable staff to work flexible hours of duty within the span of hours provided in Clause 5 of the Newcastle City Council Employees' Award, that is, Monday to Friday commencing 6am and not exceeding 12 hours per day (exclusive of unpaid meal breaks). 30 Mr Radvan submitted that cl 5.1.4 of the 2003 Award provides specific variation from the standard hours for parking station attendants by reference to Appendix A, and in particular item (xi)(a) provides a spread of ordinary hours for parking station attendants from 6.00am to 8.30pm. 31 Mr Radvan put that the finishing time of 7.15pm falls within the spread of ordinary hours of work and would attract no penalty but for the provisions of item (xi)(a) of Appendix A which prescribes an allowance where parking station attendants are required to work an ordinary rostered shift finishing after 6.30pm. 32 Mr Radvan submitted that the provisions of cl 9, Shift Work, are not relevant as parking station attendants are not shift workers and item (xi)(b) of Appendix A does not apply as employees are not required to work to 1.30am. 33 Mr Radvan provided detail of the history of 1.30am shift by arrangement with Newcastle Worker's Club, including the deed made with the Worker's Club on 1 May 1972, and conclusion thereof with effect from 28 December 1989, in the Council's outline of argument (Ex 7). 34 This evidence, which is not disputed, confirms that the Worker's Club contributed to the cost of holding the Gibson Street parking station open to 1.30am from 1972 to 28 December 1989, the date of the Newcastle earthquake. The earthquake led to the demolition of the Worker's Club building and subsequent reconstruction. Correspondence from the Council to the Worker's Club included in exhibit 7 accepts termination of the deed relevant to arrangements for opening of the Gibson Street parking station; and advises that future development must meet Council parking requirements. The effect of this has been that the Worker's Club redevelopment included car parking to the extent that late night opening of the Gibson Street parking station by arrangement with the Worker's Club has not been revisited. 35 In reply Mr Collins questioned the consistency of this argument with circumstances where the Council might hold a parking station open beyond 8.30pm to cater for late night shoppers. Principles of Award Interpretation 36 The parties did not address the principles of award interpretation which are well settled. These principles are conveniently set out in Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia, NSW Branch (2001) 106 IR 217 at 228 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. " CONSIDERATION 37 The evidence establishes that the present roster is an agreed roster. There is no evidence to suggest that it falls within the workplace flexibility provisions of the Top Value Award, however, nothing turns on whether it does or does not. 38 Clause 5, Hours of Work, of the 2003 Award refers to specific provision for parking station attendants found in item (xi) of Appendix A. All of the work of parking station attendants is performed in accordance with item (xi)(a) of Appendix A, i.e. within the ordinary span of hours of 6.30am to 8.30pm as there prescribed, including the benefit of a late finish allowance for shifts finishing after 6.30pm as found in Table 3. 39 The parties find it convenient to refer to the present hours as a morning shift and afternoon shift, which on the evidence is a misnomer. There is an early start with corresponding early finish, and a late start with corresponding late finish so as to attract the late finish allowance. All time worked is within the spread of ordinary hours as prescribed by item (xi)(a) of Appendix A and as such could not be regarded as a shift roster for the purpose of (xi)(b) of Appendix A. 40 The specific exclusion of parking station attendants in cl 9.2.6 of the 2003 Award has the effect that the only basis that parking station attendants can be considered two shift workers and thus attract shift penalties is in accordance with item (xi)(b) of Appendix A, which, on the evidence, is an inoperative provision. Apart from the now obsolete arrangements with the Worker's Club the parking station attendants would have to be rostered beyond 8.30am to activate the provision of item (xi)(b) of Appendix A. Parking station attendants are not so rostered and, in the event that there is no intention to so roster, there is room for consideration that the provision should be removed as obsolete in accordance with s 19 of the Act. The parties should give consideration to this matter pending s 19 review of the award. 41 I determine that the provisions of Clause 9, Shift Work, do not apply to the hours of work subject to consideration in this matter. 42 Mr Collins raised a speculative question as to what would obtain if Council were to open the parking stations beyond 8.30pm to cater for late night trading. Subject to any arrangement between the parties or award variation, the rebuttable presumption is that work after 8.30pm on limited days of the week would be overtime and attract the appropriate penalty, unless those hours were extended so as to fall within item (xi)(b) of Appendix A. The actual circumstances would require examination in the event. 43 I find that the payment of ordinary time for the shift commencing at 6.45am and payment of ordinary time plus a late finish allowance for the shift concluding at 7.45pm complies with the award. 44 The application for orders, recommendation and variation of Table 3 of the 2003 Award is refused. 45 I so determine. 46 Matter No IRC 4384 of 2004 is 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.