Industrial Relations Commission of New South Wales CITATION : Blue Circle Southern Cement Ltd v The Australian Workers Union, New South Wales [2000] NSWIRComm 21 APPLICANT PARTIES : Blue Circle Southern Cement Ltd RESPONDENT The Australian Workers Union, NSW FILE NUMBER: IRC1738 of 1999 CORAM: Marks J CATCHWORDS : Hours of work - Boxing Day Public Holiday LEGISLATION CITED : Industrial Relations Act 1996 Cement Industry - Blue Circle Southern Cement (State) Consolidated Award NSWIG Vol 296 at 127 Re Boarding Houses Etc Employees (State) Award and Other Awards (1961) AR 383 CASES CITED : Emloyers' Fderation of NSW v ALHMWU (unreported CT1181 of 1994 18 November 1994) HEARING DATES: 03/03/2000 DATE OF JUDGMENT: 03/21/2000 APPLICANT Nigel Ward Employment Relations Consulting Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT The Australian Workers Union, NSW JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MARKS J Tuesday 21 March 2000 Matter No 1738 of 1999 BLUE CIRCLE SOUTHERN CEMENT LTD v THE AUSTRALIAN WORKERS UNION, NSW Notification under s130 of the Industrial Relations Act 1996 re public holidays DECISION 1 These proceedings arise out of a dispute notification brought by Blue Circle Southern Cement Ltd arising out of a claim made against it by the Australian Workers Union, New South Wales for payment for work performed by employees on Saturday 26 December 1998 at the operations of the company at Berrima. 2 Employees who worked on 26 December 1998 were paid as a normal Saturday shift. Employees who worked on Monday 28 December 1998 were paid at holiday rates. The Union claims that employees working on 26 December should have been paid at holiday rates as well as those employees working on the following Monday. 3 The employment of employees of the Company is governed by the Cement Industry - Blue Circle Southern Cement (State) Consolidated Award the most recently gazetted version of which is published in NSWIG Vol 296 at 127. 4 Clauses 12 and 13 of that award are in the following terms: 12. Holidays (i) The days on which New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Queen's Birthday, Eight-hour Day (Sydney), Christmas Day and Boxing Day are observed and special days appointed by proclamation as public holidays for the State shall be holidays. In addition to the above holidays, an additional day shall be granted each year (ii) An employee not required to work on a holiday shall be paid at his/her ordinary rate of pay for such holiday. This provision for payment does not apply to: (a) a shift worker who is rostered on for duty on a holiday and fails to report; (b) employees absent without leave or reasonable excuse on the working day preceding or the working day succeeding a holiday (iii) Provided that, in the case of other than continuous shift workers, where a rostered day off falls on a public holiday, the rostered day off shall be taken on the ordinary working day immediately preceding or succeeding such public holiday, as the case may be. (iv) Where an employee is absent from his/her employment on the working day before or the working day after either a public holiday or a rostered day off that immediately precedes or succeeds a public holiday without reasonable excuse or without the consent of the employer, the employee shall not be entitled to payment for such holiday. 13. Saturday, Sunday and Holiday Rates (i) Time worked on rostered shifts by shift workers on Saturdays shall be paid for at the rate of time and one-half. (ii) Time worked on Sundays shall be paid for at double the ordinary rate of pay. (iii) Time worked on holidays shall be paid for at double and a half the ordinary rate of pay. (iv) An employee required to work overtime on a Saturday, Sunday or public holiday shall be afforded a minimum of four hours' work or paid for four hours at the appropriate rate. 5 It was common ground between the parties that by proclamation published in the NSW Government Gazette, Monday 28 December 1998 was appointed to be a bank holiday in lieu of 26 December 1998. 6 The Union for whom Mr Gillespie appeared argued firstly that Boxing Day was traditionally observed on 26 December 1998, that accordingly payment for work performed that day should be made at public holiday rates pursuant to cl12(i) of the award as well as payment on 28 December 1998 and secondly that this was in any event the intent of the parties when the award was made. 7 Mr Gillespie asserted that on the most recent previous occasion when Boxing Day had fallen on a Saturday and the following Monday had been proclaimed as a public holiday, namely in 1993, the Company had made payment for work performed on both days at public holiday rates. 8 Mr Ward who appeared for the Company denied that any such double payment on that one occasion was sufficient per se to enable a conclusion to be drawn that there was any such intent and he submitted that in any event there was no evidence or information before the Commission to indicate whether the gazettal of the public holiday on 28 December had been intended to create a public holiday in lieu of Boxing Day on 26 December. 9 Not surprisingly, this issue has arisen on a number of previous occasions and is the subject of a decision of a Full Bench of the Industrial Commission of New South Wales which has been accepted as establishing the authoritative approach to dealing with this issue in New South Wales. That decision is Re Boarding Houses Etc. Employees (State) Award and Other Awards (1961) AR 383. 10 Having reviewed a number of awards and previous decisions Cook and Beattie JJ in a joint judgment said (at 393): There is no doubt that on the feast day of Christmas members of our community take part in religious ceremonies and observe traditional customs in church and home, and these things are done on the 25th day of December come what may. …..But the fact that ceremonies and customs pertaining to a special occasion such as Christmas or New Year are kept up and observed on a particular day does not necessarily mean that the holiday pertaining to that occasion is observed on the same day. We think that in framing awards, industrial tribunals have generally recognised that, though the festivities and observances of a particular occasion may be fixed, the award holiday may, at least in some cases, be mobile, in the sense that a particular occasion may be observed generally as a holiday on a day other than the relevant calendar day. But awards speak prospectively on the subject of public holidays and so it could not ordinarily be determined until after the event whether there had been in fact such a general observance of a holiday, and the determination of such a fact might well create evidentiary difficulties. Except where a proclamation has been issued under s. 19 of the Banks and Bank Holidays Act there is no provision in any statute in this State prescribing that a particular day shall be a public holiday. We think that the true position as to the observance of public holidays is to be ascertained by reference to the Banks and Bank Holidays Act . Further, we think that in construing public holidays clauses in awards it should be presumed that the award making tribunals have recognised the notorious fact that a public holiday may be observed in respect of a particular occasion on a day other than the calendar date of the occasion and intended that the provisions of the said Act and any proclamation thereunder would determine whether this was so or not, and if so, the actual day on which there would be an observance of an award holiday in respect of the occasion. Such a presumption should be made unless a clearly expressed contrary intention appears by the terms of the award. 11 The decision in Boarding Houses was confirmed by a Full Bench of the Industrial Court of New South Wales in Employers' Federation of NSW v Australian Liquor, Hospitality Miscellaneous Workers Union (unreported CT1181 of 1994 18 November 1994). 12 I am, of course, bound by these Full Bench decisions in terms of the proper approach to construction of this award. 13 Mr Gillespie submitted that the provisions of this award were relevantly different from the provisions of the awards considered by the Full Bench of the Commission in Boarding Houses and presumably by the Full Court of the Industrial Court of NSW in Employers' Federation v ALHMWU previously referred to. 14 My review of the awards under consideration in those decisions does not reveal in my opinion any difference in wording which would justify any other approach to construction. Accordingly, in the absence of any evidence of intention to the contrary the resolution of this matter should be dictated by the approach adopted in Boarding Houses. 15 Mr Gillespie candidly conceded that with respect to the arguments which he advanced concerning the contrary intent of the parties, he had available to him no information or evidence prior to 1993. He conceded that the relevant clauses of the award were in the same terms as the Cement Industry (State) Award which is a long-standing award and that those who negotiated the current award and its predecessors were, by reason of passage of time, no longer available to give evidence. 16 In these circumstances there is no indication available which would dictate that any contrary positions should be taken other than that which results from the application of the Boarding Houses decision. 17 For these reasons the Union claim is rejected. __________________ 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.