Industrial Relations Commission New South Wales Medium Neutral Citation: Flight Attendants' Association of Australia v Regional Express [2016] NSWIRComm 1017 Hearing dates: 6 April 2016, 9 May 2016 Decision date: 11 May 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Directions sought by notifier declined Catchwords: STATUTORY INTERPRETATION – Act and industrial instrument – ordinary and grammatical meaning of words LONG SERVICE LEAVE – where public holiday falls within period of leave – provision of additional day's leave in respect of public holiday – only to occur where employee entitled to payment for that specific public holiday – all-inclusive salary not to be taken to lead to payment for the specific public holiday – no entitlement to additional day LONG SERVICE LEAVE ACT 1955 – interaction with Fair Work Act 2009 (Cth) Legislation Cited: Long Service Leave Act 1955 s 4(4A) Public Holidays Act 2010 s.4 Fair Work Act 2009 (Cth) ss.13, 14, 60, 116. Cases Cited: Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412; [2012] HCA 56 Category: Principal judgment Parties: Flight Attendants' Association of Australia (Notifier) Regional Express (Respondent) Representation: Ms S Garcia (Notifier) Mr I Tan (Respondent) File Number(s): 2016/89077 Judgment 1. This decision is made in the context of an industrial dispute involving the Flight Attendants' Association of Australia and Regional Express. At immediate issue is whether a particular employee of the Respondent is entitled to have three days' long service leave entitlement recredited to her with respect to a period of long service leave taken between 21 December 2015 and 3 January 2016. Facts 1. The facts are not in issue. A NSW-based full-time employee of Regional Express, a Ms Ingle, proceeded on a period of approved long service leave for the two week period 21 December 2015 to 3 January 2016. The employer deducted two weeks' long service leave from her accrued long service leave entitlement. Three days gazetted as public holidays in NSW fell within that two-week period. The employer declined to recredit the three days to Ms Ingle's long service leave accrual. 2. Although I was not addressed on this, it seems clear that Ms Ingle is a 'national system employee' and that Regional Express is a 'national system employer' by the combined effects of ss.13, 14 and 60 of the Fair Work Act 2009. Principles of statutory construction 1. In determining the instant matter the Commission is required to interpret both an Act and an industrial instrument. 2. The principles of statutory construction generally to be applied are not in doubt and need not be restated here. They have been helpfully summarised in Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412; [2012] HCA 56 at [25]. It serves only to note that the necessary first step in any construction of a statute or industrial instrument is a consideration of the ordinary and grammatical meaning of the words of a provision. I apply that approach here. Entitlement to long service leave 1. The source of the entitlement to long service leave is not in doubt. Clause 29 of the Regional Express Flight Attendants' Enterprise Agreement 2014 ('the Enterprise Agreement') provides: 'Long service leave shall be provided in accordance with the legislation in force from time to time in the State or Territory in which the Flight Attendant is based at the time of the benefit falling due.' 2. In New South Wales the relevant legislation is the Long Service Leave Act 1955. ('the LSL Act') 3. The LSL Act relevantly provides, at subss.4(4) and 4(4A): (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. 1. In circumstances where, as here, the leave has been taken for a closed period, the effect of increasing the period of long service leave would be to reduce the number of days' accrued entitlement to be expended on the leave. 2. It will be seen that there are two necessary preconditions for the prescription under subs.4(4A) – that the period of long service leave be increased by one day in respect of each public holiday – to be given effect. 3. The first precondition is that a day fall within the period of long service leave that is a day proclaimed as a public holiday. In this case that precondition is met; there were in fact three days within the two week period which were listed as public holidays in s.4 of the Public Holidays Act 2010. 4. The second precondition is that the worker is 'entitled to payment' in respect of the public holiday concerned 'under any Act, award or industrial agreement or under the contract of employment of the worker.' It will be apparent that if the worker is not actually 'entitled to payment' for the public holiday concerned, the entitlement to an increase to the period of long service leave will not arise. Was the employee 'entitled to payment' in the circumstances? 1. Ms Ingle was employed pursuant to the terms of the Enterprise Agreement. 2. The Enterprise Agreement provides at Clause 18.2 that the salaries paid to employees such as Ms Ingle are 'inclusive of a loading paid in lieu of shift, weekend and public holidays.' 3. On their face those words have the effect that, because of the inclusion of a loading in the quantum of salary paid, employees will not be paid specifically for public holidays on which they do not work. Ms Ingle, of course, did not work on the three days in question. 4. I was expressly advised, as it happens, by the respondent that it does not pay employees specifically in respect of public holidays on which they have not worked. That approach appears consistent with the wording of Clause 18.2, and appears to have been accepted by the notifier as a proper reading of the Enterprise Agreement. Indeed, if it were not so, it would seem extraordinary that this question has not already arisen and been resolved. 5. Of course, the interpretation the parties have placed on a provision in an industrial instrument does not direct a court charged with determining the correct meaning of that provision. 6. Nevertheless on the plain meaning of the words of Clause 18.2 it is apparent that the salary paid to Ms Ingle has the effect, and was intended to have the effect, that she is not paid specifically in respect of public holidays as they occur. 7. It was argued by the notifier that the payment of an all-inclusive annual salary means that employees are 'entitled to payment' for the public holiday within the meaning of the LSL Act, on the basis that the salary in itself constitutes monetary recognition of the entitlement to paid public holidays. That argument cannot succeed, because an overall monetary recognition of the value of a public holiday in a rolled-up salary simply does not bring the payment within the terms of the LSL Act. 8. On any reading of subs.4(4A)(b), if an employee is to be entitled to an additional day's long service leave in relation to a public holiday, the requirement is for an entitlement to payment specifically referable to 'that day', that is, the specific day on which the public holiday falls. Ms Ingle had no entitlement to payment 'for that day' in relation to any of the three public holidays in question. The effect of the all-inclusive salary prescribed by clause 18.2 is therefore that Ms Ingle had no entitlement to have her period of long service leave increased by the three days, or any of them, that were public holidays within the period of leave that she took. 9. The notifier submitted that had Ms Ingle been required to work on one or all of the three public holidays that fell during the period of long service leave had she not been on leave, and that if she had worked on one or all of those days, she would have been paid for that work. That may be so, but that is not the meaning of 'entitled to be paid' in relation to a public holiday. An entitlement to be paid for a holiday is the entitlement to be paid when one does not work, and had Ms Ingle not been rostered on, say, Boxing Day, she would not have received any payment expressly in relation to that day. 10. Secondly, the notifier argued that there is an entitlement for all employees under the Enterprise Agreement to be paid for public holidays not worked pursuant to s.116 of the Fair Work Act 2009. ('the FWA') 11. I repeat my observation above that if that were so, it is strange that it has not been contended for before. Be that as it may, the argument falls to be considered. 12. Section 116 of the FWA does prescribe that if an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work on the day or part day. 13. However, s.116 goes on to add a Note to the effect that if the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under the section. 14. The FWA provision does not require employees who are not rostered on to work on public holidays to be paid for public holidays. Accordingly, Ms Ingles was not 'entitled to payment' for any of the three days in question on this basis. 15. Ms Ingles was on no basis 'entitled to payment' in relation to the three public holidays in question. Accordingly, she has no entitlement to any additional long service leave pursuant to subs.4(4A) of the LSL Act. It follows that Ms Ingles has no entitlement to be re-credited three days' long service leave. Employer's contentions 1. I observe that the respondent employer did not argue its case on the bases I have considered above, but rather submitted that the grant of 42 days' annual leave effected by Clause 26.1 of the Enterprise Agreement, combined with the fact that these additional calendar days include any public holidays which may fall within a period of leave, has the effect that employees are not entitled to payment for public holidays on which they do not work, as they have necessarily been compensated by the provision of additional days' annual leave. 2. That is not at all clear form the terms of the Enterprise Agreement. 3. It is of course the case that forty-two calendar days is a greater sum of calendar days leave than is provided for under the Annual Holidays Act 1944 and greater than the number of days prescribed for non-shift workers under NSW Awards. And it might be inferred that if a day of annual leave may fall on a public holiday without additional entitlement or payment, the parties to the Enterprise Agreement intended that the annual leave absorb any entitlement to payment for public holidays. 4. However, the Enterprise Agreement nowhere says in terms, in contrast to the words used in clause 18.2 concerning the payment of a salary loading, that this additional leave is in lieu of payment for public holidays. In my view clause 26 of the Enterprise Agreement is not relevant to the determination of the question at hand. Summary and disposition of the matter 1. The notifying Association sought that the Commission direct that the respondent employer 'comply with s.4(4A) of the Long Service Leave Act 1955,' and specifically that the Commission direct that the respondent recredit three days of long service leave to account for the public holidays that fell during Ms Ingles' leave. 2. As the employee concerned was not entitled to payment for that day in respect of any of the three days concerned, she was not entitled under the provisions of the LSL Act to any additional long service leave in respect of those three days. The employer has complied with the provisions of the LSL Act, and is not required to recredit the three days or any of them to the employee's accrued long service leave. 3. Accordingly, I decline to make the directions sought. PETER NEWALL Commissioner ********** 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. Decision last updated: 11 May 2016