Industrial Relations Commission of New South Wales CITATION : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW v BHP Steel Long ProductsAustralian Worker's Union, NSW v BHP Steel Long Products [2000] NSWIRComm 164 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW PARTIES : Australian Workers Union, NSW BHP Steel Long Products FILE NUMBER: IRC 6991, IRC 7054 of 1999 CORAM: Harrison DP Industrial dispute - Award interpretation - (1) Award made by consent, special days, intent of parties CATCHWORDS : (2) Half day public holiday - public holidays - half day holiday - addition to annual leave - New Year's Eve 1999 Held - entitlement to addition to annual leave for half day holiday 31 December 1999 - directions issued Annual Holidays Act 1944 LEGISLATION CITED : Industrial Relations Act 1996 Long Service Leave Act 1955 Bank and Bank Holidays Act 1912 1999 New Year's Eve Half Day Holiday Interim (State) Award (315 IG 1403) Chisolm Manufacturing and Australasian Meat Industry Employees Union (Decn 1486/99 Print No S1828) Northwest Beef Industries Ltd v Australasian Meta Industry Employees' Union, W.A. (1985) AILR para 73 Crown Employees' Overtime Award (1968) AR 60 Minister v Day (1919) 18 AR at 19 Kelloggs Australia Pty Ltd v National Union of Workers, NSW Branch 89 IR 391 Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123 George A Bond & Co Ltd (In liq) v Mckenzie (1929) AR (NSW) 498 Bryce v Apperley (1998) 82 IR 448 Broken Hill Pty Co Ltd v Federated Ship Painters and Dockers' Union of Australia, NSW Branch (1961) AR (NSW) 312 City of Wanneroo v Holmes (1989) 30 IR 362 Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494 Health Administration Corporation, Public Hospital Nurses (State) Award (1985) 12 IR 122 CASES CITED : Rogers Meat Co v Howarth (1960) AR (NSW) 291 Government Railways and Tramways (Engineers etc) Award (1928) AR 53 United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd 30 WAIG 539 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cwth) (1981) 147 CLR 297 Vacher & Sons Ltd v London Society of Compositors (1913) AC 107 Short v F W Hercus Pty Ltd (1993) 46 IR 128 Cepus v Heggies Transport Pty Ltd (1994) 52 IR 121 Saraswati v The Queen (1991) 172 CLR 1 Re Dispute Concessional Leave Fairfield Municipal Council (1969) 69 AR 567 Crown Employees (Christmas, New Year and Easter Half Day) Award 39 IR 440 Australasian Meat Industry Employees' Union, Newcastle and Northern Branch v Nestle Smithtown (IRC99/477 Harrison DP 27/10/99 unreported) Shop Employees' & Anor (Newcastle Show Day) Award (Matter 479/1993 FIRC 24/2/94 unreported) Steel Works Employees (BHP Co Ltd) and Iron and Steel Works Employees (Australia Iron & Steel Ltd - Port Kembla) Awards (1952) AR 335 Metal, Engineering and Associated Industries Award 1998 (Print Q0444 [M1913]) HEARING DATES: 06/19/2000; 06/20/2000; 06/26/2000; 06/27/2000; 06/30/2000 DATE OF JUDGMENT: 08/23/2000 Mr D Nichols for Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch LEGAL REPRESENTATIVES: Mr K Maher for Australian Worker's Union, New South Wales Mr K Brotherson Solicitor, Blake Dawson Waldron JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 23 August 2000 Matter No IRC 6991 of 1999 Notification under s.130 by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales of a dispute with BHP Steel Long Products re New Years Eve half day holiday Matter No IRC 7054 of 1999 Notification under s.130 by The Australian Workers' Union, New South Wales of a dispute with BHP Steel Long Products re New Years Eve half day holiday DECISION 1 These matters were notified pursuant to s.130 of the Industrial Relations Act 1996 ('the Act') by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AMWU) (IRC99/6991) and The Australian Workers' Union, New South Wales (AWU) (IRC99/7054). The notifications are in similar terms, arising from a common dispute with BHP Steel Pty Ltd (BHP) concerning the half day public holiday observed on 31 December 1999, New Year's Eve. 2 The matters were subject to compulsory conference proceedings in January and February 2000, resulting in a conclusion that the matters could not be resolved by agreement between the parties and the issue of appropriate Certificates of Attempted Conciliation. 3 At the mutual request of the parties the matters were joined and dealt with in single proceedings thereafter. 4 Directions were issued to prepare the matter for hearing, which took place on 19 and 26 June 2000. 5 Mr D Nichols appeared on behalf of the AMWU. Mr K Maher appeared on behalf of the AWU. Mr Brotherson, solicitor of Blake Dawson Waldron, appeared on behalf of BHP. 6 Mr Nichols brought evidence from Mr Greg Hayter and Mr Jim O'Neill. Mr Maher made a sworn deposition and was subject to cross examination. Mr Maher also brought evidence from Mr William Shaw and Mr Desmond Clerk 7 Mr Brotherson relied on documentary evidence. EVIDENTIARY BACKGROUND 8 On 21 September 1999 the then New South Wales Attorney General and Minister for Industrial Relations, the Honourable G. Shaw announced that a half day holiday would be observed in the State of New South Wales from 12 noon on 31 December 1999, New Year's Eve. 9 The issue of payment pursuant to New South Wales State awards was subject to consideration and determination by his Honour, Mr Justice Maidment in matters no. IRC 6844 and 6907 of 1999 ('the Half Day Holiday case'). 10 Judgement was delivered by Maidment J in these matters on 24 December 1999. It is appropriate to restate here relevant aspects of his Honour's Judgement (tendered exhibit 2). "A difference of opinion has arisen as to payments appropriate and applicable to private sector State award employees in respect of the approaching New Years Eve. The matter has been the subject of negotiations between employer groups and Labor Council of New South Wales and has been the subject of conciliation proceedings before Wright P. As the matter remains unresolved the Employers' Federation of New South Wales has made an application for an interim award which would govern the situation subject to the right of any party thereto to revisit the provisions and to seek retrospective variation of the provisions insofar as they apply to any such party. " 11 Discussions between the AWU, the AMWU, ('the unions') and BHP failed to reach agreement in respect to those employees not rostered for work on 31 December 1999. 12 All employees rostered for work on 31 December 1999 were allowed time off after 12 noon that day without loss of pay or, where required to work, paid at the appropriate public holiday rates of pay. 13 The unions seek a credit of a half day to the annual leave, or by mutual consent payment in lieu, for all those employees on annual or long service leave or not rostered for work on 31 December 1999. This group represents the substantial majority of employees as plant operations were diminished by the usual Christmas/New Year production limitations, Y2K precautions and the desire of employees to take annual and other forms of leave over the holiday period. 14 The AMWU tendered draft orders (exhibit 17) as did the AWU (exhibit 18), which were opposed. 15 The unions and BHP rely on provisions of applicable awards and the Annual Holidays Act 1944 ('the Annual Holidays Act') to support their respective positions. In particular the: · Steelworks Employees (Broken Hill Proprietary Company Limited) Award ('the Steelworks Award') (IRC99/3255, Hungerford J, not yet published) · Tubemakers of Australia Ltd Newcastle General Award ('the Tubemakers Award') (IRC99/6009, Harrison DP, not yet published) · BHP Steel (AWI) Pty Ltd Newcastle Wiremill Award ('the Wiremill Award') (IRC99/5253, Harrison DP, not yet published) · BHP Steel (AWI) Pty Ltd Newcastle Fence Post Plant Award ('the Fence Post Award') (IRC99/5255, Harrison DP, not yet published) · BHP Steel (AWI) Pty Ltd Newcastle Wire Ropes Award ('the Ropes Award') (IRC99/5130, Harrison DP, not yet published) 16 The award provisions of the Steelworks Award relied upon are: Clause 15, Holidays, which states: 15. HOLIDAYS (i) The days on which New Year's Day, Australia Day, Good Friday, the Saturday following Good Friday, Easter Monday, Anzac Day, the local Eight Hour Day, Queen's Birthday, Christmas Day and Boxing Day are observed and special days appointed by proclamation as public holidays throughout the State shall be holidays and day workers and Monday to Saturday shift workers not required to work on a holiday shall be paid for the holiday at the ordinary rates of pay under clause 2, Rates of Pay, clause 3 Tool Allowance, clause 4 Leading Hands, clause 5, Special Rates and clause 35, Apprentices of this award. (ii) In addition to payments outlined in (i) above, employees shall also be paid bonus under the applicable bonus scheme. (iii) In addition to the public holidays prescribed in subclause (i) of this clause, one additional public holiday shall apply to an employee on weekly hire on a day mutually agreed between the parties, or failing agreement as determined by the Industrial Relations Commission of New South Wales. (iv) This provision for payment does not apply to: (a) employees whose rostered shift falls on a holiday (subject to the provisions of paragraph (b) of subclause (ii) of clause 23, Days Added to the Period of Annual Leave of this Award). (b) employees absent without leave or reasonable excuse on the working day preceding or the working day succeeding a holiday. (Emphasis added) Clause 23, Days Added To The Period of Annual Leave, which states: 23. DAYS ADDED TO THE PERIOD OF ANNUAL LEAVE (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 Days, 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 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. (iv) Any day or days added in the case in accordance with subclauses (i) or (ii) of this clause, shall be the working day or working days immediately following the period of annual leave or long service leave respectively, to which the employee is entitled under clause 22, Annual Leave, or clause 24, Long Service Leave of this award. (v) For the purpose of subclause (iv) of this clause, working days shall be: (a) in the case of an employee who, at the commencement of their period of annual leave or long service leave, as the case may be, was employed as a day worker - any day of the week including a day on which the employee concerned would have been rostered off duty if they were not on annual leave or long service leave, but excluding a Saturday, a Sunday or a holiday prescribed by this award. (b) in the case of an employee who, at the commencement of their period of annual leave or long service leave as the case may be, was employed as a Monday to Saturday shift worker - any day of the week other than Sunday or a holiday prescribed by this award including a day on which the employee concerned would have been rostered off duty if they were not on annual leave or long service leave. (c) in the case of an employee who, at the commencement of their period of annual leave or long service leave, as the case may be, was employed as a seven-day shift worker, under the said clause 17, of this award - any day of the week including a day an which the employee concerned would have been rostered off duty if they were not on annual leave or long service leave. (vi) Where the employment of a worker has been terminated and they thereby becomes entitled under section 4 of the Annual Holidays Act, 1944, to payment in lieu of an annual holiday with respect to a period of employment they also shall be entitled to an additional payment for each day accrued to them under subclause (ii) of this clause, at the annual leave rate of pay. (vii) An employee who is employed as a seven-day shift worker under the said clause 17, who - (a) has a day added to their annual leave or long service leave pursuant to subclauses (i) and (ii) of this clause, and (b) such a day falls on a holiday prescribed by clause 15, Holidays, of this award, on which the employee would have been rostered to work an ordinary shift were it not for their entitlement to an added day, shall be paid for such day, in addition to their entitlement under subclause (iii) of this. clause, at the rate prescribed by subclause (i) of the said clause 15, Holidays, of this award. Reference was also made to Clause 21 A (i)(a) which states: 21A. STATE PERSONAL/CARER'S LEAVE CASE-AUGUST 1996 (i) Use of Sick Leave (a) An employee, other than a casual employee, with responsibilities in relation to a class of person set out in subparagraph (2) of paragraph (c), who needs the employee's care and support, shall be entitled to use, in accordance with this subclause, any current or accrued sick leave entitlement, provided for in clause 21, Sick Pay, for absences to provide care and support, for such persons when they are ill. Such leave may be taken for part of a single day. (Emphasis added) and Clause 27, Contract of employment sub-clause (xv) which states: (xv) Notwithstanding the provisions of this clause, the Company shall have the right to stand an employee down for refusal of duty, malingering, inefficiency, neglect of duty or misconduct on the part of the employee and to deduct payment for any day or portion of day during which the employee is so stood down provided that: (Emphasis added) 17 Corresponding provisions are found in identical terms in the Fence Post, Wire Mill and Ropes Awards. 18 Corresponding provisions are found in the Tubemakers Award. Clause 17 Holidays of the Tubemakers Award states: 17. HOLIDAYS (I) An employee on weekly hiring shall be entitled, without loss of pay, to public holidays as follows: New Year's Day Australia Day Good Friday Easter Saturday Easter Monday Anzac Day Queen's Birthday Eight Hour's Day or Labour Day Christmas Day Boxing Day In addition to the above public holidays, one additional public holiday shall apply on a date to be agreed each year. (II) Requirement to Attend Before and After This provision for payment does not apply to employees absent without leave or reasonable excuse on the working day preceding or the working day succeeding a holiday. (III) Where an additional public holiday is proclaimed or gazetted then such day shall be deemed to be a public holiday for the purposes of this award. (Emphasis added) Clause 23, Annual Holiday, subclause (II)(a) states: (II) Annual Leave Exclusive of Public Holidays (a) Except as provided in this sub-clause, the annual leave prescribed by clause 23 shall be exclusive of any of the public holidays prescribed in clause 17. An employee who is on leave during a period which a public holiday falls shall be entitled to an additional day's leave provided that, had the employee not been on annual leave, the employee would otherwise have been entitled to a day's leave. (Emphasis added) The parties also referred to clause 21(I) Sick pay: 21. SICK PAY (I) An employee who is unable to attend for duty during his or, her ordinary working hours by reason of personal illness or injury by accident shall be entitled to be paid at ordinary time rates of pay for the time of such non-attendance subject to the following: and Clause 42, the Personal Carers Leave provisions which are in the terms of the Test case standard as found in the Steelworks Award. JURISDICTION 19 The unions making the instant notifications put that the true character of the issues notified are that of an industrial dispute, and accordingly the Commission holds jurisdiction to provide remedy pursuant to s.136 of the Act based on interpretation of these awards pursuant to s.175 of the Act. 20 Mr Brotherson submitted that the relief sought by the Unions in the form of orders (exhibit 17 and 18) is not available in these proceedings as they are in the language of enforcement and breach of obligations. 21 Mr Brotherson submitted that the Commission as presently constituted did not hold jurisdiction to deal with such matters. Mr Brotherson further submitted that it is within jurisdiction for the Commission as presently constituted to determine what is clearly an industrial dispute, which has arisen over the half day New Year's Eve public holiday. 22 Mr Brotherson submitted that jurisdiction to interpret an industrial instrument for the purpose of resolving an industrial dispute is afforded by s.175 of the Act, and for those purposes the awards, the Annual Holidays Act, the Bank and Bank Holidays Act 1912 (the Bank Holidays Act') and the Long Service Leave Act 1955 ('the Long Service Leave Act') are the appropriate industrial instruments. 23 Mr Brotherson submitted that a consideration of the combined and interdependent effect of all these industrial instruments is necessary to resolve the instant disputes. 24 Mr Brotherson characterised this matter as one in which the Commission is being asked to express a view on the meaning of the relevant clauses of the awards and associated legislation, and from that the parties would apply the mechanisms of consultation and discussion to further resolution of the dispute. 25 Mr Brotherson submitted that an inference may be found in the orders sought that the unions seek the establishment of a new right. Mr Brotherson submitted that this has not been the manner in which the case has been put or met. Mr Brotherson submitted that, had a clear application for a new right been made, an entirely different type of evidence may be necessary than that which has been brought by the Union or which the Company has brought or contemplated. EVIDENCE 26 The evidence of Mr Hayter is that he has been employed by BHP at the Newcastle steelworks for 22 years. Mr Hayter deposed that he has worked in many departments within the Steelworks operations and has for some 15 years been a union delegate. Mr Hayter's evidence is that the failure of BHP to credit annual leave in respect to a public holiday has not occurred prior to 31 December 1999. 27 In cross examination Mr Hayter deposed that he is familiar with the relevant award provisions and expressed the view that BHP should have allowed an additional half day annual leave to persons rostered off on 31 December 1999. 28 Mr Hayter described the operation of the roster system and working arrangements, deposed that it was unfair that people at work on 31 December 1999 were allowed to leave after 12 noon on that day and receive payment, whilst those rostered off or on annual leave received no benefit. Mr Hayter deposed that this inequity was amplified by the fact that rearrangement of maintenance on 31 December 1999 resulted in a change of shift in two work groups rostered off and two on daywork. 29 Mr Hayter conceded that a half day public holiday had never previously occurred. 30 In cross examination Mr Brotherson took Mr Hayter to those provisions of the Steelworks Award where reference is made to a day and part of a day. Mr Hayter conceded that a half day is part of a day. In particular Mr Brotherson went to Clause 27(xv) Stand Down which provides for stand down for a day or portion of a day; Clause 21(i)(a) Personal Carer's Leave, which provides leave for a day or part of a day; Clause 6H Industry payment, where a distinction is made between a day and part of a day for payment qualification. 31 The evidence of Mr O'Neill is that he has been employed at Tubemakers Pty Ltd for some 21 years, the majority of that time employed pursuant to the Federal Metal Industry Award. Mr O'Neill deposed that prior to 1995 production and other maintenance staff were employed pursuant to a company specific award made pursuant to the NSW State legislation whilst mechanical maintenance tradesmen were engaged pursuant to the Federal Metal Industry Award. 32 It is Mr O'Neill's evidence that, at the employer's initiative, the employees were brought within a single enterprise agreement. Mr O'Neill deposed that a feature of those negotiations were that mechanical trades employees would not be disadvantaged by transition to the enterprise agreement, now the Tubemaker's Award. 33 Mr O'Neill deposed that at the time those negotiations took place the prospect of a half day holiday was not contemplated. Mr O'Neill deposed that the half day holiday on 31 December 1999 could and should be regarded as a unique event. 34 Mr O'Neill described representations made to management seeking a credit to annual leave for those persons rostered off or on annual leave, management consideration of that request, and subsequent refusal put to him and others as being founded on legal advice obtained. 35 The evidence of Mr O'Neill is that some 470 people are employed at the Tubemaker's Mayfield plant and that over the Christmas/New Year period production had been suspended, resulting in only 30 employees rostered for work on 31 December 1999. 36 In cross examination Mr O'Neill conceded that a day constituted the number of hours an employee was regularly rostered to work. 37 Mr O'Neill agreed with a proposition advanced by Mr Brotherson that the negotiations in which mechanical maintenance employees were transferred to the same industrial instrument as all other non-staff personnel were concluded as a "package deal". 38 Mr Brotherson took Mr O'Neill to similar provisions of the Tubemaker's Award as he had taken Mr Hayter in respect to the BHP award, with a similar result. 39 Mr Maher supported the evidence and propositions advanced by Mr Hayter and Mr O'Neill. 40 The substance of Mr Maher's evidence is that he has held various positions within the AWU and is currently Secretary of the Newcastle and Northern NSW Branch. 41 Mr Maher deposed that in various capacities he has been directly involved in negotiations leading to the BHP and Tubemakers Awards and that there had always been an implied intention in those awards to grant any gazetted public holidays, without distinction between full day or part day holidays, to those employees rostered off or on annual or long service leave by addition of equivalent time to annual leave. 42 In cross examination Mr Maher agreed that the Awards contained many references to "a day", and portion or part of a day. Mr Maher agreed with Mr Brotherson that, where the awards refer to a portion or part of a day, the meaning is different to that ascribed to "a day". 43 Mr Maher met this distinction in response at page 45 of transcript in the following terms: "A: Yes, that's true. However, in general terms it's my experience, particularly in the steel industry, that when negotiations are occurring around particular clauses, in many occasions there's not an immediate reference to, or a reference point of other clauses. I would simply say, again in general terms, that in hindsight maybe our claim for the half day to be added should have been a full day when you look at the terms of clause 23, but that's not the case. I would simply say that if you look at clause 15 in the BHP Award, or clause 17 in the Tubemakers Award, that those clauses don't distinguish between any period of time for a gazetted public holiday. I just make that general comment in terms of your question." 44 Mr Maher deposed that when award negotiations took place there was no consideration of a millennium holiday or any view that a half day holiday would be proclaimed for New Year's Eve 1999. 45 The evidence of Mr Shaw is that he has been employed at Tubemakers Mayfield site since 1992. Mr Shaw is currently the senior site delegate. Mr Shaw deposed that he was on annual leave on 31 December 1999 and, on his understanding of Clause 23 of the Tubemakers Award, would expect a credit of a half day annual leave in lieu of observance of the holiday. Mr Shaw deposed that he had participated in award negotiations and that it was his view that the credit to annual leave in lieu of observance of a holiday was never intended to be limited to full day holidays. Mr Shaw further deposed that a credit to annual leave would be consistent with custom and practice. 46 In cross examination Mr Shaw conceded that there is no particular reference to part of a day in the relevant award provisions. Mr Shaw conceded that there had never been a half day holiday before, and accordingly no custom and practice specific thereto. 47 The evidence of Mr Clerk is that he has been employed by BHP since 1971 and is currently working in the No 2 Bar Mill. Mr Clerk deposed that he was on annual leave on 31 December 1999 and held the expectation of receiving annual leave credit in respect to the half day public holiday. 48 The evidence and cross examination of Mr Clerk is substantially similar to that of Mr Hayter and Mr Shaw. SUBMISSIONS 49 Mr Nichols relied firstly on an outline of submissions (tendered exhibit 1). Mr Nichols relied upon a press release issued by the Attorney General and Minister for Industrial Relations, the Hon. Jeff Shaw, as he then was, on 21 September 1999 (exhibit 4). In particular Mr Nichols emphasised the following aspect of the statement: "This is a special event which occurs once every thousand years and all of the people of NSW should be in a position to celebrate," Mr Shaw said. "Other compelling reasons for the half-day holiday are the need to ease anticipated transport pressures and further assist in planning for Y2K." 50 Mr Nichols further relied upon information issued by the NSW Department of Industrial Relations detailing public holidays for the years 1999 to 2002 (exhibit 5), which he put placed the half day holiday on 31 December 1999 in the same category as other holidays prescribed by clause 15 of the Steelworks award and for which employees rostered off or on leave receive a corresponding credit to annual leave or, by mutual consent, payment in lieu without argument. 51 Mr Nichols noted that the group of general public holidays in which the New Year's Eve half day holiday is included is distinguished from regional or local holidays. Mr Nichols emphasised what he put were the special and unique circumstances of this holiday. 52 Mr Nichols further relied upon the judgement of Maidment J in the Half Day Holiday case to support his submission that it would have been impossible for parties to award negotiations to anticipate or take into account the prospect of a half day holiday on New Year's Eve 1999. The relevant aspects of the Half Day Holiday judgement, found at pages 3 and 4 thereof, are repeated below: Mr McDonald , who was supported by the other employer representatives, submitted that an interim award should be made in order that existing uncertainty as to the obligations and entitlements arising from the unusual circumstances of a gazetted public half-holiday be removed. He contends that, as the awards of this Commission have been made without contemplation of a half-holiday being gazetted, it is difficult to reliably ascertain the rights and obligations of those affected. He suggested that it may be that affected employees under some or all of the awards concerned would not be entitled to penalty payments for work performed during the half-day holiday as such a half-holiday is not the subject of prescription and probably was not in the contemplation of the award makers. Further, he argues that a real prospect of disputation over such rights and obligations exists which prospect would be reduced should the award be made. He submits that the preservation of the right of any party to seek retrospective variation of the proposed award sufficiently safeguards the parties. An example of possible difficulty is that some awards provide for an eight hour minimum encasement for persons who work on a public holiday. Concern is expressed that an employee who works from 6am to 2pm on New Years Eve may, on a strict interpretation, be entitled to an eight hour minimum payment at penalty rates from midday onwards in addition to the pay which attached to the work from 6am till noon. Questions also arise as to shift worker entitlements. Mr Lennon indicated that Labor Council affiliates had been consulted as to the proposed award and that, leaving aside the proposed cl.4, Labor Council and its affiliates had no objection to the making of the proposed award. He placed on record the fact that the Australian Liquor Hospitality & Miscellaneous Workers Union, Liquor & Hospitality Division and the Australasian Meat Employees' Union, New South Wales Branch have particular concerns as to the proposed cl.4. As to cl.4 Mr Lennon submitted that employees, including those in the meat industry and liquor trade industry, might be adversely affected by its terms as those commencing a turn of work before noon on that day would miss out on the benefit of prescriptions by which they might be entitled to a guaranteed minimum period of encasement at penalty rates. He suggested that, as the awards presently stand, such employees may be entitled to be paid such time after noon on New Years Eve at penalty rates. He submitted in the alternative that a person who commenced, for example, at 10am and who is entitled to a minimum 4 hour start, should be entitled to a minimum of 4 hours pay at ordinary time. I am concerned to remove, as best it can be done at such short notice, the uncertainty which has arisen as to the rights and obligations of the parties to the proposed award. On one view of it employees under some awards may not presently be entitled to penalty rates for work performed during a half-holiday. In all probability the award makers did not put their minds to such an eventuality. The employer proposal corrects any such problem. (Emphasis added) 53 Mr Nichols relied upon the evidence of Mr Hayter and Mr O'Neill. 54 Mr Nichols submitted that on conversion from the Federal Metal Industry Award, the Tubemakers employees were entitled to suffer no disadvantage and accordingly the current provisions of the Federal Metal, Engineering and Associated Industries Award (Print Q0444[M1913]) have bearing on the consideration in this matter. 55 Clause 7.1.6(a) of the Federal Metal Industry Award provides: "If any public holiday prescribed by clause 7.5 of this award falls within an employee's period of annual leave and is observed on a day which, in the case of that employee, would mean an ordinary working day, there must be added to the period of annual leave time equivalent to the ordinary time which the employee would have worked if the day had not been a holiday." (Emphasis added) 56 Mr Nichols submitted that this expression did not distinguish a day or part thereof requiring an annual leave credit of an equivalent period of ordinary time that would have been worked, but for the public holiday. 57 Mr Nichols submitted that employees covered by the Federal Metal Industry Award provision would receive credit for the half day New Year's Eve holiday and so should employees of BHP subject to this application. 58 Mr Nichols relied upon a general advice to members by the Australian Industry Group (AIG) (exhibit 8), the principle employer respondent to the Federal Metal Industry Award, to support his contention of entitlement pursuant to the Federal Metal Industry Award. The advice from AIG states: The following principles should apply to the application of the half day holiday (subject to any contrary provisions in the relevant award. …. … Employees on annual leave on 31 December 1999 are entitled to have added to the period of leave, the time they would ordinarily have worked between noon and midnight on 31 December 1999. 59 Mr Nichols referred to a decision of the Australian Industrial Relations Commission (AIRC) in Re Chisholm Manufacturing v Australasian Meat Industry Employees' Union (Dec 1486/99 Print No S1828), a dispute concerning the Blacktown Meat Centre Enterprise Agreement 1998 in which Harrison C made a determination following private conference that: * a permanent employee rostered off on 31 December 1999, whose ordinary working hours include time between 12:00 noon and 12:00 midnight shall receive an additional 4 hours pay; and * a permanent employee on leave on 31 December 1999, whose ordinary working hours include time between 12:00 noon and 12:00 midnight, shall receive an additional 4 hours pay. 60 Mr Nichols submitted that the distinction made by Mr Brotherson during cross examination between those parts of the Steelworks Awards which provide for part or portion of a day and the public holiday provisions is not a relevant or appropriate distinction, given the unique nature of the half day holiday granted on 31 December 1999. 61 The essence of the case put by Mr Nichols is found in his submission at page 59 of transcript, set out below: "We contend that the awards have both an expressed and implied intention of providing added time to annual leave for public holidays that apply generally across the state. The Annual Holidays Act of 1944 in clause 3(8) talks about the adding of a day to annual leave for people where the public holiday falls within their annual leave. We would contend that the legislators of the day could not have contemplated a general half day holiday being gazetted at the end of the millennium or, for that matter, at the time of making that legislation they could not have taken into account the effect of the Y2K bug. Now, the company will contend that a day is a day, not a half day and will, undoubtedly, refer to the Bank Holidays Act. The history of the half day holiday gazetted under that Act, as I've said previously, your Honour, have been gazetted on a locality basis for either show days or race days and the like and they have not been previously gazetted on a state-wide basis. So, we would contend that, given the clear uniqueness of this one-off half day holiday on New Year's Eve 1999, the provisions of the added days to annual leave clause of the awards mentioned in this application should be applied in the manner sought by the orders or, if the Commission determines that the award provides for only a full day to be added, then that should be the order that the Commission makes in these proceedings." 62 Mr Maher submitted that the half day public holiday gazetted for Friday, 31 December 1999 falls within the intention of the Awards subject to these proceedings. Mr Maher submitted that the intention that employees rostered off or on annual leave during that public holiday should have it added to their annual leave is obvious on examination of clause 15 and clause 23 of the Steelworks Award. 63 Mr Maher submitted a similar examination of clauses 17 and 23 of the Tubemakers Award arrives at the same conclusion. 64 Mr Maher submitted that the lack of specific reference to a half day in these awards should be regarded as accidental rather than intentional. Mr Maher relied upon the unique and exceptional nature of the half day holiday on 31 December 1999 to support this submission. Mr Maher went to the principles of interpretation, referring first to the Clothing Trades Award (68 CAR at 597) where the award states: The court needs to find out what the words are, what they mean in their ordinary natural significance and if they find ambiguity they should be guided by the well known rules of law which are called to aid in these circumstances. 65 Mr Maher went to Northwest Beef Industries Ltd v Australasian Meat Industry Employees' Union, Western Australia (1985 AILR para 73): "The correct approach to the interpretation of an industrial award is to read the document itself and give to the words use of ordinary common sense English meaning." 66 Mr Maher then went to Crown Employees' Overtime Award (1968 AR 60 at 60) where it is held: "The Commission, through Sheldon J, adopted the view that industrial realities should be applied when dealing with ambiguity in the award and determining what was intended by those who made the award. The Commission is entitled to take into account custom and usage as a guide to arriving at an interpretation of an award provision." 67 Mr Maher further relied upon Minister v Day (1919)(18 AR at 19) where it is held: "It follows also that there is the most ample scope for the continued existence of customs in the trade or industry running alongside the award. Customs of course, which if any dispute or question arises on them, must be proved to the Court in the ordinary way." 68 Mr Maher relied upon the evidence brought to demonstrate historical application of the Awards subject to these proceedings to provide a credit to annual leave for employees rostered off or on leave on the occurrence of a public holiday. 69 Mr Maher submitted that to apply the half day public holiday by addition of the same amount of time to annual leave for those persons rostered off or on annual leave would be consistent with the intent of the award provisions. 70 Mr Brotherson relied primarily on a written outline of submissions (exhibit 19). Mr Brotherson supported these submissions with substantial case law, conveniently collected by him and tendered exhibit 21. 71 Mr Brotherson referred to a judgement of his Honour, Mr Justice Hungerford in Kelloggs Australia Pty Ltd v National Union of Workers, NSW Branch (89 IR 391). Mr Brotherson notes that his Honour concluded that the principles of interpretation of awards and industrial instruments in declaratory proceedings pursuant to s.154, or industrial disputes pursuant to s.175, are effectively the same. 72 Mr Brotherson relied then upon a comprehensive analysis of the principles of interpretations detailed by Hungerford J in Kelloggs from page 392 to 395, which he put should be followed in this matter. This analysis is of appropriate relevance and significance to this matter and is restated below: The factual circumstances in which this matter developed were not really in dispute. The determination of the right of Kellogg to introduce changes to its product distribution function depends upon the proper conclusions to draw from those circumstances, as a matter of fact, and in the context, as a matter of law, of the true construction of the provisions of the Award in that latter respect. Mr Holmes relied on the decision of Glynn J in Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123 at 125 for the proposition that awards are to be interpreted in a practical and commonsense way by reference to the view expressed by Street J, as he then was, in Geo A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 at 503-504 as follows: "Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made, for the various industries in the light of the customs and working conditions of each, industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award." Given that the approach there stated depended upon a meaning to be given "consistent with the general intention of the parties to be gathered from the whole award", it is helpful in considering the proper approach to the construction of an industrial instrument to refer to what was said recently by a Full Bench (Hungerford and Schmidt JJ, Marks J dissenting) of the Court in Bryce v Apperley (1998) 82 IR 448 at 452 thus: "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.' Indeed, after referring with approval to what was said by Street J in Geo A Bond & Co Ltd (In liq ), as recited earlier, French J cautioned as follows in City of Wanneroo v Holmes (1989) 30 IR 362 at 379: 'It is of course no part of the court's task to assign a meaning in order that the award may provide what the Court thinks is appropriate - Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award ( 1985) 12 IR 122; Rogers Meat Co Pty Ltd v Howarth [1960]AR (NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J).' The seeming dilemma and rationale for the proper approach to the construction of an industrial award was, with respect, cogently dealt with by Olney J in Norwest Beef Industries Ltd v Australian Meat Industry Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 in this way: '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. The approach there stated, with which we agree, is consistent with that applied to the construction of instruments generally, such as in statutory construction. For instance, in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Mason J, as he then was, and Wilson J made the following comment at 321: 'Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations. as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.' Gibbs CJ similarly referred in that case to the object in interpreting a statute as being 'to see what is the intention expressed by the words used' (at 304) and then his Honour said (at 305): 'However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher & Sons Ltd v London Society of Compositors [1913) AC 107, at 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently fails to be applied.' I regard the above-stated passages as representing a longstanding and settled approach to the present task confronting me and I propose to follow it. Before turning to the Award itself, however, it is necessary to first characterise the issue between the parties in light of the facts and then to apply the findings thereon to the relevant provisions of the Award. 73 Mr Brotherson submitted that on close analysis the application of these principles results in a conclusion against the interpretation sought by the unions. 74 Mr Brotherson placed emphasis on the requirement to look at the actual words used in their plain ordinary meaning, submitting that the principles of interpretation do not allow that the words used be given a meaning they are not capable of bearing; nor is it open for the Commission to determine what is appropriate, particularly where there is a plain and unambiguous meaning. 75 Mr Brotherson submitted that the relevant provisions of the awards speak only in terms of a day, which cannot be extended to include part of a day. Mr Brotherson submitted that, for the purposes of the awards, a day is properly interpreted to be a full shift. 76 Mr Brotherson relied upon clause 23(v) of the Tubemakers Award, where a shift worker working a 12 hour shift is afforded 12 hours pay for each additional day of annual leave, to emphasis this argument. 77 Mr Brotherson relied then on paragraphs 10 to 18 of the outline of submissions (exhibit 19), in which he argues that the awards provide for the addition of a day to annual leave for employees rostered off on annual leave or long service leave on the occasion of a public holiday. Mr Brotherson's submissions at paragraphs 17 and 18 are restated below: 17. Further, clause 15, Holidays of the Steelworks Award uses the same language as is used in the Bank Holidays Act. Like the Bank Holidays Act, clause 15 talks about special days appointed by proclamation as public holidays, however, unlike the Bank Holidays Act, clause 15 does not provide for part of a special day to be appointed as a half day. This supports the proposition that, in the making of the Steelworks Award, the parties and the Commission (or its predecessor) had in mind the particular terms of the Bank Holidays Act and that a deliberate choice was made to include in the Steelworks Award provision for a holiday and not provision for a half holiday. 18. The Respondents submit that the working of the BHP Awards in relation to special days and additional holidays is plain and unambiguous, and cannot be construed as including a half holiday. Accordingly, the Respondents submit that no entitlement to the New Year's Eve half day holiday, or any other half day holiday, arises under the BHP Awards. 78 Mr Brotherson relied on the evidence given to further support his argument that the awards provide entitlement to a day, not part thereof. 79 Mr Brotherson further referred to a decision of a Full Bench of the Federal Court of Australia in Short v F W Hercus Pty Ltd (1993) 46 IR 128, and a decision of a Full Bench of the Industrial Court of New South Wales in Cepus v Heggies Transport Pty Ltd (1994) 52 IR 121. Mr Brotherson submitted that whilst these cases are well known authorities determining the circumstances where interpretation may go beyond the words of an industrial instrument to look at its history and allow the introduction of extrinsic material, those circumstances do not arise here. 80 It is appropriate to refer to comments of Burchett J in Short's case where his Honour said at pp134 and 135: "No one doubts you must read any expression in its context. … … The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Company v Federated Engine Drivers and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: 'The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.' … … Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) case (supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. … … Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J said in Saraswati v The Queen (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position. But even if the language, read alone, appeared pellucidly clear, the tendency of recent decisions - and this is the other answer to the argument put - would seem to require the court to look at the full context. Only then will all the nuances of the language be perceived." 81 These principles were adopted by Marks J in Cepus' case where his Honour said at page 143: I am saved from undertaking an exhaustive examination of the proper approach to the interpretation of a clause of an industrial award by the penetrating analysis undertaken by Burchett J in the Federal Court of Australia in Short v F W Hercus Pty Ltd (1993) 46 IR 128 at 132 et seq. I respectfully adopt the analysis made by his Honour in that judgement which commences at the third paragraph on 133 of that report. It is permissible to have regard to the history of an industrial award in determining the meaning of that award or any of its provisions. The fact that competing constructions are contended for by the parties is prima facie sufficient to entitle recourse to the history of the award and the context in which it is made. Indeed, in the context in which the approach to interpretation of industrial awards has been undertaken by the former Industrial Commission of New South Wales, itself constituted as a superior Court of record, it may be permissible to state that recourse should be had to the history and context of the making of an industrial award to properly understand its provisions not only to solve any ambiguity or uncertainty which is alleged to exist but to ensure that the approach taken by an industrial Tribunal or Court to the question of interpretation is correct. 82 Mr Brotherson concedes the argument that the half day holiday on New Year's Eve is a one-off, unique event, noting that there has never before been a half day public holiday of general application throughout the state of New South Wales. 83 Mr Brotherson refutes the notion that the possibility of such an event has never been contemplated by the parties to the Steelworks Awards, submitting that to do so ignores the language of the Bank Holidays Act which has provided authority and enabling legislation for such an event over a very long period. 84 Mr Brotherson relied upon s.19(1) and s.19(3) of the Bank Holidays Act, which state: "Appointment of special bank holidays 19. (1) The Governor may, by proclamation published in the Gazette, appoint a special day or part of a special day to be observed as a public holiday or half-holiday throughout New South Wales. … … (3) The Minister may, by notice published in the Gazette, appoint a special day or part of a special day to be observed as a public holiday or half-holiday in any local government area, part of a local government area or other part of New South Wales. " 85 Mr Brotherson noted that, whilst the proclamation of half day holidays has been observed more on a locality basis than state-wide, the enabling legislation cannot be ignored nor used as a basis to support an argument that distinction between a day and part of a day is confined to locality restricted holidays. 86 Mr Brotherson also drew upon the provisions of the Annual Holidays Act, in particular s.3(8) which states: (8) Where any special or public holiday for which the worker is entitled to payment under any Act, award or agreement or under the worker's contract of employment, occurs during any period of an annual holiday taken by a worker under this section, the period of the holiday shall be increased by one day in respect of that special or public holiday. 87 Mr Brotherson emphasised the final sentence of this provisions which, in his submission, does not contemplate a credit to annual leave for half day holidays. Mr Brotherson put that, given that the Annual Holidays Act was passed some considerable time after the Bank Holidays Act, there is basis for the conclusion that Parliament took a clear decision in enacting the Annual Holidays Act to exclude public holidays of less than a full day from the provision of section 3. 88 Mr Brotherson submitted that this inter-relationship between the Annual Holidays Act and the Bank Holidays Act has added significance in this matter as in the case of the Steelworks Award, no provision is found in s.23 for credit of annual leave for day workers or Monday to Saturday shift workers. Mr Brotherson put that the mechanism of entitlement for these employees is clause 22 of the Steelworks Award which refers to the Annual Holidays Act as the authority. 89 Mr Brotherson similarly went to section 4, subsections (a) and (b) of the Long Service Leave Act, which is in essentially the same terms as section 3(8) of the Annual Holidays Act, as the source of authority for employees on long service leave at the relevant time. The relevant sections state: (4) The long service leave provided by this section is exclusive of annual holidays occurring during the taking of any period of long service leave. (4A) Where - (a) any day appointed by the Governor as a public holiday to be observed generally throughout New South Wales occurs during any period of long service leave taken by a worker under this section; and (b) the worker is entitled to payment in respect of that day under any Act, award or industrial agreement or under the contract of employment of the worker, the period of the long service leave shall be increased by one day in respect of that public holiday. 90 Mr Brotherson submitted that the Steel awards follow the language and scheme of the Annual Holidays and Long Service Leave legislation; and that, whilst the award makers may not have consciously examined the distinctions between a day and part of a day, it is proper to conclude that the Parliamentary draughtsmen did so and that the award makers followed. 91 Mr Brotherson submitted that this Commission and its predecessors have, from time to time, been required to consider the distinction between holidays and half holidays. In doing so Mr Brotherson conceded that this arose in the context of locality restricted holidays. Mr Brotherson referred to: · In re Dispute Concessional Leave Fairfield Municipal Council, Sheehy J (1969) 69 AR 567 · Re Crown Employees (Christmas, New Year and Easter Half Day) Award, FIRC (Fisher P Hill and Hungerford JJ) 39 IR 440 · Australasian Meat Industry Employees' Union, Newcastle and Northern Branch v Nestle Smithtown (Notification pursuant to s.130 of a dispute re local public holidays) (Harrison DP IRC99/477 27 October 1999, unreported) · Shop Employees' & Anor (Newcastle Show Day) Award, FIRC (Glynn and Maidment J, Connor C, Matter no 479/1993, 24 February 1994, unreported) · Steel Works Employees (Broken Hill Proprietary Company Ltd) and Iron and Steel Works Employees (Australia Iron & Steel Ltd - Port Kembla) Awards (No.1) (1952) AR 335. 92 Mr Brotherson submitted that the first four matters referred to all involve, in one way or another, recognition of the distinction between a full day and part of a day, conceding that the latter two dealt with the application of awards to local or regional holidays. 93 In dealing with the fifth matter referred to, Mr Brotherson emphasised that this matter went to the number of public holidays observed in the steel industry, involving a close examination of the Bank Holidays Act where a decision was made by a Full Bench of the Industrial Commission of New South Wales (as it then was) not to increase the number of public holidays from ten per year plus special days proclaimed as such. 94 Mr Brotherson submitted that consideration of the provisions of the Bank Holidays Act was further prominent in that matter during consideration of claims put by the unions relevant at the time concerning public holidays, particularly Anzac Day, falling on a Saturday or Sunday. 95 Mr Brotherson conceded that, whilst it may be as contended that the parties to the making of the Steel awards have not given further attention to clause 23 and the issue of a part day holiday in recent times, it is a matter that has been dealt with previously. 96 Mr Brotherson submitted that contemporary consideration of the issue is found in clause 2 of the Tubemakers award where a day for a 12 hour shift worker is specified. 97 Mr Brotherson then turned to examination of the judgement of Maidment J in the Half Day Holiday Award case 1999. 98 Mr Brotherson acknowledged that the Half Day Holiday Award was made to apply to persons employed under any non-government award and accordingly has application to the BHP Awards. Mr Brotherson noted that those proceedings were described by Maidment J in his judgement as dealing with "A difference of opinion …. as to payments appropriate and applicable to private sector State Award employees in respect of the approaching New Year's Eve". 99 Mr Brotherson argued that the Half Day Holiday Award was irrelevant to these proceedings as it dealt with payments only and in that matter BHP had met its obligations and there was no dispute. 100 Mr Brotherson submitted that this matter goes to the question of those persons rostered off or on leave, an issue specifically not touched by the Half Day Holiday Award decision. 101 Mr Brotherson referred to the comment of Maidment J at page 4 of the judgement: "I am concerned to remove, as best it can be done at such short notice, the uncertainty which has arisen as to the rights and obligations of the parties to the proposed award. On one view of it employees under some awards may not presently be entitled to penalty rates for work performed during a half-holiday. In all probability the award makers did not put their minds to such an eventuality. The employer proposal corrects any such problem." and at page 5: "I should add that the ramifications of the Annual Holidays Act 1994 have not been explored in this matter and that it is not intended that the award will have any effect upon the rights and obligations arising from that Act." 102 Mr Brotherson referred to the grounds advanced by the NSW Employers' Federation in their application, in particular Ground 3 which states: (3) It seems that a half day holiday is not a holiday for the purpose of State Awards and that holiday provisions of State Awards would not apply. and Ground 4, which states: (4) Public Holiday provisions of awards generally do not provide an appropriate point of reference for dealing with this half day holiday as they are structured around whole day holidays, particularly as to minimum payment for work performed on a public holiday. 103 Mr Brotherson supported the contentions put in the stated grounds, adding that the awards subject to these proceedings were similarly structured around whole day holidays. Mr Brotherson further submitted that without the Half Day Holiday Award by Maidment J there would be no entitlement to penalty payment for work after 12 noon on 31 December 1999 for those persons required to work. 104 Mr Brotherson submitted that, whilst rights to compensatory annual leave for seven day shift workers arise from clause 23 of the Steelworks award and equivalent provisions of the other awards subject to these proceedings, for day workers and Monday to Saturday shift workers, these rights arise from the Annual Holidays Act. Mr Brotherson founded this submission on clause 22, Annual leave, of the Steelworks Award which provides: (i) Day Workers and Monday to Saturday Shift Workers: For annual leave provisions see Annual Holidays Act, 1944(NSW) 105 Mr Brotherson submitted that if seven day shift workers were to be successful via clause 23 of the Steel award, this would create an anomaly as dayworkers and Monday to Saturday shift workers have no entitlement pursuant to the Annual Holidays Act. Mr Brotherson submitted that to attempt to correct this would be to grant an additional benefit denied by conscious act of Parliament. Mr Brotherson sought further support for this proposition from the provision of the Long Service Leave Act, which makes no reference to or confers benefit arising from a half day holiday. 106 Mr Brotherson argued that the fact that the Bank Holidays Act predates the Annual Holidays Act and the making of the BHP Awards further supports the conclusion of an informed decision by the Legislature in the Annual Holidays Act and the parties in the awards. 107 Mr Brotherson argued that if the Governor of New South Wales had proclaimed 31 December 1999 as a special day to be observed as a public holiday there would be an entitlement, however, this did not occur; a half day holiday was proclaimed which, in Mr Brotherson's submission, does not give rise to any entitlement. 108 Mr Brotherson submitted that the advice by the AIG to members concerning application of the Federal Metal Industry Award is not persuasive or relevant in this matter. Mr Brotherson put that the advice is no more than an opinion and further, is qualified subject to actual award provisions. Mr Brotherson put that the provisions of the awards subject to these proceedings are different from those found in the Federal Metal Industry Award. 109 Mr Brotherson submitted that the argument that trades employees of Tubemakers are entitled to the provisions of the Federal Metal Industry Award as part of the transition agreement fails on the ground that at the time of transition the parties negotiated a new award which replaced all prior entitlements and did not leave open an ongoing comparison with the Federal Metal Industry Award. Mr Brotherson argued that the award negotiated, now subject to these proceedings, satisfied the no disadvantage test at the time, putting that such test is a one-off event and that it is not allowable to now reach back five years to review it. Mr Brotherson further noted that the Federal Metal Industry Award has been pared back to the 20 allowable matters in accordance with the Australian Workplace Relations Act and accordingly is quite different now to that dealt with by the parties in negotiation five years ago. 110 Mr Brotherson submitted that the provision of clause 7.1.6 of the Federal Metal Industry Award, which provides for employees who were on annual leave on 31 December 1999 to receive an addition to their annual leave of "time equivalent to the ordinary time which the employee would have worked if the day had not been a holiday" has no equivalent in the awards subject to these proceedings and in his submission provides no comfort. 111 Mr Brotherson put that the scheme of the Federal Metal Industry Award is for all relevant purposes the same as the Tubemakers Award in that it makes no provision for a half day holiday, and accordingly the terms of clause 7.1.6 are not invoked by the events of 31 December 1999. 112 Mr Brotherson supported this submission by reference to clause 7.5.1(f) of the Federal Metal Industry Award which states: "Where in a state or territory or locality within a state or territory an additional public holiday is proclaimed or gazetted by the authority of the Commonwealth Government or of a state or territory government and such proclaimed or gazetted holidays to be observed generally by persons throughout that state or territory or locality thereof, other than persons covered by federal awards, or where such a proclaimed or gazetted day is, by any required judicial or administrative order, to be so observed, then such a day shall be deemed to be a holiday for the purposes of this award for employees covered by this award who are employed in the state, territory or locality in respect of which the holiday has been proclaimed or ordered as required." 113 Mr Brotherson submitted that reference to "time equivalent" in clause 7.1.6 of the Federal Metal Industry Award did no more than allow for a wide range of working arrangements found in that industry; and did not extend entitlement arising from clause 7.5.1(f) to part of or less than a day. 114 Mr Brotherson argued that the awards subject to this matter are clear and unambiguous; none of them provide for the granting of an additional half day holiday, nor does the Annual Holidays Act; and to find so would be contrary to the express terms of the industrial instruments. CONSIDERATION 115 I accept the submission put by Mr Brotherson in respect to jurisdiction and proceed accordingly. 116 The arguments advanced that this matter should be resolved by reference to the Federal Metal Industry Award as precedent and example for steel industry employees, and of right in respect to the Tubemakers' employees is not accepted. The matters in issue in these disputes are to be determined on their own merit and circumstance, wholly within the provisions of the applicable awards. 117 It must be accepted that the half day holiday proclaimed for 31 December 1999 is a unique, once in a thousand year, event, carrying with it its own distinguishing characteristics, and is properly regarded as a special day. 118 The recognition of 31 December 1999 as a special day is the basis upon which proclamation of part of it as a public holiday occurred. 119 The Bank Holidays Act and the Awards subject to these proceedings have different tasks. The Bank Holidays Act provides a legislative authority for the Governor of New South Wales to make proclamation. The Awards prescribe employee entitlement in the event of a proclamation. 120 The argument advanced by Mr Brotherson that day workers and Monday to Saturday shift workers must rely on clause 22 of the Steelworks Award, which refers to the Annual Holidays Act, is misdirected. Clause 22 provides quantum of leave of day workers and Monday to Saturday shift workers and does so by reference to the Annual Holidays Act. Clause 22 further provides quantum of annual leave for seven day shift workers by specific provision in addition to the Annual Holidays Act. Clause 23 is a further award right which applies in the event of a proclaimed public holiday. 121 Clause 23, Days added to annual leave, of the Steelworks Award and similar provisions in the other Awards, are the relevant consideration for all employees. Clause 23(i) deals with the circumstances of a seven day shift worker where a public holiday falls during a period of leave in the following manner: (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 Days, 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. 122 Clause 23(ii) of the Steelworks award has application beyond seven day shift workers. Clause 23(ii) states: (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. 123 The language of clause 23(ii) is unambiguous, making no distinction between employees, and would accordingly embrace Monday to Friday day workers, Monday to Saturday shift workers, and all others who are not seven day shift workers identified by Clause 23(i). 124 A further distinction between clause 23(i) and 23(ii) is that seven day shift workers are not afforded the option of payment in lieu by mutual consent afforded other employees by clause 23(ii)(b). An argument that clause 23(ii) has as its sole function the provision of the option of payment in lieu by mutual consent to seven day shift workers is not sustainable on the plain and ordinary meaning of the words used. 125 Clause 23 further distinguishes between seven day shift workers and others in subclause (iv) which refers to days added in respect to subclause (i) or (ii) and at subclause (v)(a),(b) and (c) which provide for day workers (v)(a); Monday to Saturday shift workers (v)(b); and seven day shift workers (v)(c). 126 The question then to be resolved is what entitlement is conferred by these provisions in the circumstances of the matter. 127 This analysis must commence with a consideration of clause 15 to determine whether 31 December 1999 may be regarded as a holiday for the purpose of this award. 128 I find that given their plain English meaning the words used are properly interpreted as contended by Mr Nichols and Mr Maher that 31 December 1999, being a special day subject to proclamation pursuant to the Bank Holidays Act, is a holiday for the purposes of the Award. The relevant proclamation applied throughout the State of New South Wales, thus satisfying the criteria of clause 15(i). 129 The judgement of Maidment J in the Half Day Holiday case recognises the proclamation and, to the point, the Half Day Holiday case had as its purpose the clarification of entitlement to payment in the unique circumstances of half a special day being proclaimed as a public holiday. 130 This interpretation applied to clause 23 of the Steelworks Award produces the result contended by Mr Maher in hindsight, found in his evidence at p45 of transcript (supra), of adding an additional day to the annual leave or persons rostered off or on leave. 131 The proposition that employees receive an additional day of annual leave for a half day public holiday is anomalous and inequitous, recognised by the unions in their application and cases put. 132 The argument that a day and part of a day, i.e. a half day in this matter, are different and distinguishable is as obvious as it is unhelpful in resolution of the issues here. This distinction is similar to that between a "day" and the plural, "days". I note that clause 23 employs the plural in title and the singular throughout the text of the clause. Clause 15 refers to "special days proclaimed". To follow the distinction between a part of a day, day and days would lead to the absurd, that the Steelworks award would apply to make payment only where more than one day is proclaimed. Clause 17, Holidays, of the Tubemakers award confines itself to the singular "day". 133 In these circumstances it is appropriate to go beyond the language of the awards and determine the intent of the parties, particularly as the Awards subject to these proceedings are made by consent. 134 It must also be accepted that at the time of making the relevant awards there was no capacity to anticipate a half day holiday for 31 December 1999. 135 The only evidence of intent is that from Mr Maher and Mr Shaw, who both deposed that they had participated in award negotiation and that the intent was that employees rostered off or on leave on the occasion of a public holiday would have equivalent time added to their annual leave. This evidence, which was put on by affidavit with notice, was not challenged and must be accepted. 136 The argument advanced by Mr Brotherson that the parties would have considered the provisions of the Annual Holidays Act, the Long Service Leave Act, and the Bank Holidays Act in award negotiations; or at least these were subject to consideration in proceedings before the Industrial Commission of New South Wales, as it then was, in 1952 in the Steelworks, BHP, Port Kembla Awards, I find tenuous and insupportable. 137 I favour the view expressed by Maidment J in the Half Day Holiday case: "In all probability the award makers did not put their minds to such an eventuality". 138 I determine that the clear intention of the award is that where a general state-wide public holiday is observed, those employees rostered off or on annual leave would not be excluded from participation in the benefit therefrom. 139 I find that Mr Nichols and Mr Maher have made out a compelling case for an addition to annual leave in respect to the half day holiday to employees rostered off on annual leave or long service leave. 140 I am convinced by the submission of Mr Brotherson that the specific orders sought hold inherent deficiency and that an appropriate course in resolution of this dispute is to direct the parties to now confer in context of the findings made to implement the provision of Clause 23, Days added to annual leave, in resolution of the disputes notified. 141 Leave is allowed to the parties to seek orders in accordance with the findings made herein by agreement or on application. 142 Pursuant to s.136(1)(a) of the Industrial Relations Act 1996 the parties are directed to confer to effect an appropriate implementation of the provisions of the awards subject to these proceedings, which I find are properly interpreted and applied by adding a period of time to annual leave entitlement equivalent to that which the employee would have worked after 12 noon on 31 December 1999 but for being rostered off duty, on annual, or long service leave. 143 I so determine. 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