WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

-v-

MORAN HEALTHCARE GROUP (WA) PTY LTD

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

DATE WEDNESDAY, 15 JUNE 2005

CLAIM NO. M 9 OF 2005

CITATION NO. 2005 WAIRC 01894

representation:

CLAIMANT  MR M SWINBOURN , AGENT

RESPONDENT MR D JOHNSTON , AGENT

Catchwords:

Christmas, Boxing Day, New Year’s Day public holidays – “day observed in lieu thereof”.

Legislation

Workplace Relations Act 1996 - sections 177A, 178(1) and 178(6);

Industrial Relations Act 1979 - section 81;

Public and Bank Holidays Act 1972 - sections 3, 5, 8, 9 and Second Schedule;

Nursing Assistant’s Award 2002.

Cases referred to in decision

The Australian Nursing Federation Industrial Union of Workers Perth v Silver Chain Nursing Association Inc 2003 WAIRC 07861

REASONS FOR DECISION

Background

1. The Claimant is an organisation of employees registered under Schedule 1B of the Workplace Relations Act 1996.  The Respondent is a corporation carrying on business in Western Australia. The Nursing Assistants Award 2002 (the Award) binds both parties. The Respondent at the material time employed Ms Melissa Banfield as a second year Nursing Assistant being a classification contained in the Award.  Ms Banfield is a member of the Claimant union.

2. It is not in dispute that on 27 and 28 December 2004 Ms Banfield worked between 3.00 pm and 9.00 pm.  She also worked between the same times on 3 January 2005.  The Claimant contends that each of those days were observed as public holidays for Christmas Day, Boxing Day and New Year’s Day respectively, as established by section 5 of the Public and Bank Holiday Act 1972 (the State Act) and listed in the Second Schedule thereto.  The Respondent takes issue with such contention.

3. The Claimant alleges that the Respondent failed to pay Ms Banfield her correct rate of pay for those days as prescribed by clause 27.1 of the Award.  The Claimant seeks to recover the total alleged underpayment of $87.87 together with interest thereon.  The Claimant further seeks the imposition of a penalty for the Respondent’s alleged failure to comply with the Award. It also seeks costs.

Determination

4. Relevantly clause 27 of the Award states:

PUBLIC HOLIDAYS

27. An employee who works on any public holiday herein or day observed in lieu thereof, shall be paid a loading of 50% of the ordinary wage for the time worked in ordinary hours on that day.

28. For the purposes of this clause the following days shall be public holidays: New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Foundation Day, Sovereign’s Birthday, Christmas Day and Boxing Day.

5. The Respondent says that the loading prescribed by clause 27.1 of the Award does not apply to work on 27 December 2004, 28 December 2004 or 3 January 2005 because clause 27.2 stipulates the days which shall be public holidays for the purpose of clause 27 which are respectively Christmas Day (25 December), Boxing Day (26 December) and New Year’s Day (1 January).

6. In the alternative the Respondent argues that the Second Schedule of the State Act recognises Christmas Day (25 December), Boxing Day (26 December) and New Year’s Day (1 January) as public holidays.  However it also provides that when New Year’s Day or Christmas Day falls on a Saturday or Sunday the next following Monday is also a public holiday and when Boxing Day falls on a Sunday or Monday the next following Tuesday is also a public holiday.  It is the case therefore that the State Act provides for holidays in addition to the Christmas Day and New Year’s Day holidays when the holidays fall on a weekend and for a holiday in addition to Boxing Day when that holiday falls on a weekend or on a Monday.  The Respondent contends that given that the State Act does not provide for holidays “in lieu” of the Christmas Day, Boxing Day and New Year’s Day holidays, clause 27.1 of the Award has no application to holidays under the State Act falling on 27 December 2004, 28 December 2004 and 3 January 2005.  Accordingly the Respondent argues that the words “or day observed in lieu thereof” contained in clause 27.1 of the Award are necessarily repugnant and of no effect.  The Respondent argues that the words remain as a vestige of the former state award that has no application in the context of its current state as a federal award.

7. The Claimant on the other hand submits that this matter is on all fours with the matter in The Australian Nursing Federation Industrial Union of Workers Perth v Silver Chain Nursing Association Inc 2003 WAIRC 07861 reported at 83 WAIG 508 (Silver Chain).  In that matter I held that the employer failed to pay its employees penalties for working on days observed in lieu of Christmas Day, Boxing Day and New Year’s Day.  In that regard the Respondent says that the Silver Chain decision ought to be distinguished on account of the differing provisions within the instruments considered.  With respect, I disagree.  In my view the provisions are very similar, albeit not identical.  The relevant provision of the Agreement considered in Silver Chain provided:

22. – PUBLIC HOLIDAYS

For the purposes of this agreement the following days, or the days observed in lieu of those days, shall be observed as public holidays without deduction of pay:

1. New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Foundation Day, Sovereign’s Birthday, Christmas Day and Boxing Day.

8. The factual and legal context in which Silver Chain was decided is, in my view, on all fours with this matter.  I accept the Claimant’s argument in that regard.  I do not consider that Silver Chain was decided incorrectly or should otherwise be distinguished.  I adopt my reasons in Silver Chain as having equal application in this matter.  I therefore do not intend to restate those reasons here except to say that the provisions in clause 27 have the same effect as the provision considered in Silver Chain.  Clause 27.1 must be given meaning and effect.  To ignore the words “or day observed in lieu thereof” within that clause as suggested by the Respondent would be totally inappropriate.  The words should not be excised.  The Court should, where possible, give meaning and effect to provisions.  Clause 27.1 is no different.

9. In my view, in order to give effect to clause 27.1 it must be read together with clause 27.2.  They should not be regarded distinctly, as the Respondent suggests.  Clause 27 is a public holiday provision, which recognises that on occasions certain public holidays will be observed on a day other than the actual day on which the actual feast day falls.  Such is suggested by the words “or day observed in lieu thereof”.

10. I accept the evidence given by Ms Banfield that in 2004 the public holiday observed for Christmas Day was, in fact, observed on 27 December 2004; that the public holiday observed for Boxing Day was, in fact, observed on 28 December 2004 and that the public holiday observed for New Year’s Day was, in fact, observed on 3 January 2005.

11. The fact is that, by virtue of the State Act, Christmas Day 2004, Boxing Day 2004 and New Year’s Day 2005 were all observed as holidays on days other than the actual day on which they fell.  It is obvious that clause 27.1, when read in conjunction with clause 27.2 as applied by virtue of the State Act, is intended to enable employees to celebrate a public holiday on a week day for any Christmas, Boxing or New Year’s feast day occurring on a Saturday or Sunday.  Such approach will give meaning and effect to the words contained in clause 27.1.  The clause, in my view, is demonstrative of a substitution clause, which recognises that the public holiday associated with the feast day is sometimes observed on a day other than the feast day.  That does not derogate from the actual observance of the feast day, but rather augments the feast day by enabling its celebration on a weekday rather than a weekend.

12. For the reasons stated I find that the claim is proved.

13. I will now hear the parties with respect to the appropriate orders to be made.

G Cicchini

Industrial Magistrate