WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 00319

DELIVERED : WEDNESDAY 23 APRIL 2014

FILE NO. : M 122 OF 2013

CLAIMANT

AND

The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board

RESPONDENT

Catchwords : Alleged contraventions of the WA Health - LHMU - Support Workers Industrial Agreement 2007 and the WA Health - United Voice - Hospital Support Workers Industrial Agreement 2012; whether part-time cleaner employed on a permanent afternoon shift is entitled to the payment of an afternoon shift allowance for all public holidays not worked.

Legislation : Industrial Relations Act 1979

  Minimum Conditions of Employment Act 1993

  Fair Work Act 2009

Instruments : WA Health - LHMU - Support Workers Industrial Agreement 2007

  WA Health - United Voice - Hospital Support Workers Industrial Agreement 2012

  Health and Disability Services - Support Workers - Western Australian Government - Award 1996

  Hospital Workers (Government) Award No. 21 of 1966

Cases referred to

in Judgment : Melrose Farm Pty Ltd t/as Milesaway Tours v Milward

  [2008] WASCA 175 

Project Blue Sky v Australian Broadcasting Authority

(1998) 194 CLR 355

  Australasian Meat Industry Employees’ Union, Industrial Union of Workers, Perth West Australian Branch v Action Food Barns (WA) Pty Ltd and Others (unreported WAIRC 341 of 1995)

    General Enquiry Re Long Service Leave, Public Holidays,

    Annual Leave and Hours (1961) 41 WAIG 355

Result : Claim dismissed

Representation:

Claimant : Ms M Girgis (of Counsel) appeared for the Claimant

Respondent : Mr M Aulfrey (of Counsel) appeared for the Respondent

REASONS FOR DECISION

Overview

1         United Voice WA (the Claimant) alleges that between 5 August 2007 and 4 August 2013 (the relevant period) its member, Mr Ronald Gibson, an employee of The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board (the Respondent), was not paid an entitlement due to him in the form of a permanent afternoon shift allowance (the afternoon shift allowance) for each public holiday  which fell during the relevant period, but which was not worked.  It is not disputed that the afternoon shift allowance was not paid on each occasion in the relevant period.

2         The Claimant asserts that the WA Health – LHMU – Support Workers Industrial Agreement 2007 (the 2007 Agreement), the WA Health - United Voice – Hospital Support Workers Industrial Agreement 2012 (the 2012 Agreement), and an Order of the Western Australian Industrial Commission (WAIRC) issued on 24 October 2010 (the 2010 Order), required the payment of that allowance. The Respondent denies that contention.

3         The parties have agreed that the issue of quantum ought to await the outcome with respect to liability.

Facts Not in Dispute on the Pleadings

4         The following facts were not in dispute on the pleadings:

(1)          The Claimant is an organisation of employees registered under Division IV of Part II of the Industrial Relations Act 1979.

(2)          Mr Ronald Gibson is a member of the Claimant.

(3)          Mr Gibson has been employed by the Respondent for a continuous period in excess of 18 years.

(4)          For at least the last 18 years, which includes the relevant period, Mr Gibson has been permanently employed as a part-time cleaner at the Rockingham Kwinana Dental Clinic (the Dental Clinic).

(5)          Mr Gibson’s hours of work were and continue to be 4.15pm to 8.15pm, Monday to Friday, inclusive.

Matters in Issue on the Pleadings

5         The following were matters in issue on the pleadings:

(1)          whether Mr Gibson’s employment was, during the relevant period, governed by the 2007 Agreement, the 2012 Agreement and the 2010 Order; and

(2)          whether, during the relevant period, the aforementioned industrial instruments obligated the Respondent to pay Mr Gibson the afternoon shift allowance for each public holiday not worked; and

(3)      if so, the quantum of the shift allowance.

Applicability of the Agreements

6         The dispute about applicability of the 2007 Agreement and the 2012 Agreement was abandoned during the course of the Trial. The Respondent now accepts that, during the relevant period, the 2007 Agreement and the 2012 Agreement (hereinafter referred to as the Agreements) governed Mr Gibson’s employment.   

Issues at Trial

7         The issues that remain live are:

(1) whether the Agreements obligated the Respondent to pay the afternoon shift allowance for each public holiday not worked, which fell within the relevant period; and

(2) if so, the quantum payable.

Review of Evidence

8         The Claimant called one witness, namely Mr Gibson.  Mr Gibson’s Witness Statement, dated 17 February 2014, was admitted into evidence by consent.  The Respondent similarly also called only one witness, namely Mr Simon Martin. Mr Martin’s Witness Statement, dated 14 March 2014, was also consensually received into evidence.

Mr Gibson

9         The Respondent has employed Mr Gibson since 1985. 

10      Mr Gibson was initially employed on a full-time basis.  Prior to the relevant period, Mr Gibson’s status changed and he has subsequently worked as a part-time cleaner/orderly at the Dental Clinic.  For the last six years, Mr Gibson’s work hours have been between 4.15pm and 8.15pm, Monday to Friday inclusive.  He does not work weekends or public holidays.  Mr Gibson’s pay comprises the base rate of pay, plus the afternoon shift allowance.  That afternoon shift allowance is also paid to Mr Gibson when he takes personal leave and annual leave.

11      In November 2013, Mr Gibson was told that “Head Office” was thinking of opening the Dental Clinic on weekends.  All employees were asked to indicate whether or not they would be interested in working on weekends.  Mr Gibson told his employer that he was not interested.

12      Mr Gibson testified that during the course of last year, he was asked to strip and reseal the floors in the Dental Clinic.  That job was too big for Mr Gibson to do alone. He therefore asked his superiors if he, with the assistance of another cleaner, could do the job on a weekend.  The job needed to be done on a weekend because the sealer required 24 hours to dry.  Mr Gibson’s employer agreed with that proposal.  However, as a result of a miscommunication, the other cleaner did not report for work on the appointed Saturday.  Consequently, Mr Gibson returned home without doing the job on that Saturday and the job was never done.

Mr Martin

13      Mr Simon Martin is the Acting Manager of Human Resources for Dental Health Services, which is part of the Department of Health.  Dental Health Services has administrative responsibility for the Dental Clinic. The Dental Clinic is open from Monday to Friday.  It does not open on weekends or public holidays.

14      Mr Martin confirmed that Mr Gibson has been a long standing part-time employee of the Respondent.  The Respondent has employed Mr Gibson as a cleaner for over 28 years.  During the last six years, Mr Gibson’s ordinary hours of work have been from 4.15pm to 8.15pm, Monday to Friday inclusive, and those hours have never varied.  Mr Gibson’s hours do not include a requirement to work on any Sundays. 

15      Mr Martin confirmed that Mr Gibson is paid the afternoon shift allowance in addition to his ordinary wage.  Mr Martin says that is as a result of Mr Gibson’s ordinary hours being worked during the afternoon shift.  A penalty rate is also paid to Mr Gibson whilst he is on personal and annual leave, and that payment is made because the industrial agreement which governs his employment requires it.  However, the afternoon shift allowance is not paid on public holidays not worked.  Mr Martin’s position is that the current industrial agreement, and its predecessors, did not require such payment to be made.  Indeed, the Respondent’s historical custom and practice has been to not pay an afternoon shift allowance for public holidays that are not worked. 

16      Mr Martin conceded that an email sent to staff on 11 November 2013 sought expressions of interest from those who might be prepared to work on Saturdays.  He said however, that the Respondent had no intention in the short term of opening the Dental Clinic on a Saturday.  The email which was sent at the behest of his superiors was aimed gauging interest to possible change.  That position has not changed, and the Dental Clinic remains closed on weekends.

Determination

17      It is not in dispute that during the relevant period, Mr Gibson was employed on a permanent part-time basis on a non-rotating roster.  For the six years preceding the Claim, he worked from 4.15pm to 8.15pm, Monday to Friday inclusive.  Mr Gibson did not work and was not required to work on weekends or public holidays. Mr Gibson was paid his ordinary rate of pay plus the afternoon shift allowance.  The afternoon shift allowance was paid to Mr Gibson when he was on personal or annual leave, but it was not paid to him on public holidays which he did not work.

18      Mr Gibson is a “shift worker” within the meaning given to that term by Clause 17 of the Agreements.  Clause 17 prescribes that the allowance that is to be paid to employees working shift work are those set out in Clause 25.1 of the Agreements.  In each case, Clause 25.1 provides that the allowance is payable in addition to the ordinary rate for those employees who work a permanent afternoon or night shift. Clause 25.3 of the Agreements provides for additional payment to be made for public holidays actually worked.  Clause 34 of the Agreements deals with public holiday entitlements.  Clause 34.1(a) of the 2007 Agreement differs slightly in wording to that contained in the 2012 Agreement.  The 2007 Agreement provides that the employee shall be entitled to the nominated public holidays without loss of pay, whereas the 2012 Agreement provides that employees will be entitled to the nominated public holidays without loss of pay.  In my view, nothing turns on the use of the word “will” as opposed to that of “shall”.  The pith and substance of the provision remains the same. Clause 34.1(a) provides that employees are entitled to the designated holidays “without loss of pay”.  Relevantly, Clause 34.6 of the Agreements provides, in its first paragraph:

“34.6  When any public holiday falls on a day when a rostered employee is rostered off duty and the employee has not been required to work on that day the employee will be paid as if the day was an ordinary working day.  However, if the employer agrees the employee may instead be allowed to take a day’s holiday instead of the public holiday, at a time acceptable to both the employer and the employee.”

Claimants’ Submissions

19      The Claimant submits that Clause 34.1 of the Agreements is unequivocal in its terms.  It provides that employees are entitled to the designated holidays “without loss of pay”.  Had it been intended that employees would only receive their ordinary rate of pay (as defined in Clause 3 of the Agreements) then that clause would have said so.  The Claimant says that support for its position is also found in Clause 34.6 of the Agreements, which makes it clear that, an employee who is rostered off duty when a public holiday falls is to be paid as if the day was an ordinary working day.  Furthermore, that position is further supported by section 30 of the Minimum Conditions of Employment Act 1993 (MCE Act) which, by virtue of section 5 of the MCE Act, is implied into the Agreements.

20      Relevantly, sections 30 and 31 of the MCE Act provide:

“30 Public holidays, entitlement to pay for

An employee, other than a casual employee, who in any area of the State is not required to work on a day solely because that day is a public holiday in that area, is entitled to be paid as if he or she were required to work on that day.

31 Penalty rates for work on public holidays not a minimum condition

Section 30 is not to be read as requiring an employer to pay a penalty rate in respect of work done on a public holiday.”

21      The Claimant observes that where the penalty rate is not to be paid, the Agreements specifically say so.  Such is the case with parental leave (see Clause 39.10(a) of the Agreements).

Conclusion

22      The Claimant argues that the words “without loss of pay” in Clause 34.1 of the Agreements means that Mr Gibson should have been paid on public holidays, as if the public holiday was an ordinary working day. Such payment includes the payment of a shift allowance.

23      I observe that a “shift allowance” is a penalty rate paid to compensate an employee for the inconvenience caused to him or her in working the hours that an afternoon or night shift entails. If a shift is not worked the inconvenience is avoided and no compensatory shift penalty is payable.  It is usually the case that the payment of a penalty rate is contingent on working the hours that attract a shift penalty rate.  However that is not always the case.  In cases of specific agreement, a penalty rate can be paid notwithstanding that the hours have not been worked.  In that context, Mr Gibson was paid a shift allowance whilst on personal leave and annual leave, notwithstanding that he did not work the hours that would have otherwise attracted penalty payments.  That entitlement existed because there is specific provision for it within the Agreements.  By way of example Clause 33.7(b) of the 2007 Agreement provides:

“payment will be at the rate of wage the employee would have received had he/she not proceeded on leave, including any shift and weekend penalties.”

24      I note that same degree of specificity is not found in Clause 34.1 of the Agreements.  Clause 34.1 does not define pay to mean the ordinary rate of pay plus penalties or allowances.  Given that what is meant by “pay” in Clause 34 of the Agreements has not been defined, its meaning must be construed in accordance with the rules of statutory construction.  Words take the meaning of the context in which they appear.  It follows that the words “without loss of pay” in Clause 34.1 of the Agreements must have some contextual reference to the remainder of Clause 34.  That clause deals with arrangements for observing public holidays.  The clause sets out the public holidays to be observed, makes alternative arrangements with respect to public holidays falling on a day during annual leave, on weekends, on rostered days off, on accrued days off and so on.  Clause 34.10 provides that payment for public holidays worked shall be in accordance with Clause 25 of the Agreement(s).  In essence, working on a public holiday attracts other specific penalty rates.  In Clause 34.6, specific provision is made for public holidays falling on a day when a rostered employee is rostered off duty and where the employee is not required to work on that day.  In such circumstances, the employee will be paid as if the day was an ordinary working day.

25      The Claimant argues that the words “without loss of pay” in Clause 34.1 have the same meaning and effect as the words “paid as if the public holiday was an ordinary working day” in the first sentence of Clause 34.6.  The problem with such a construction is that the relevant part of Clause 34.6 would be rendered otiose, because Clause 34.1 would have already provided that all employees are to be paid as if the public holiday was an ordinary working day.  All words must be given meaning and effect (see Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175 at [14] and Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 [71]).  To hold that the words in Clause 34.1 are synonymous with those in Clause 34.6 would ignore such principle.  The words in Clause 34.1 and Clause 34.6 must have different meanings.

26      Clause 34.6 applies only to rostered employees.  Clause 3 of the Agreements defines a rostered employee as being:

“…an employee for whom the ordinary hours of work may include work on a Sunday.”

27      Mr Gibson does not fit into the category of a rostered employee because his ordinary days of work are only on week days.  He unwaveringly works Monday to Friday, from 4.15pm to 8.15pm.  Given that he is engaged as a part-time employee with defined ordinary hours, those hours cannot be unilaterally changed.  He cannot be instructed to work outside of those hours without those hours being treated as overtime.  The reality is that during the relevant period, Mr Gibson has never been required to work ordinary hours which include work on a Sunday.  Indeed, that was impermissible.  Clause 34.6 of the Agreements does not have application to Mr Gibson.

28      Clause 34.1 of the Agreements creates a positive entitlement to take public holidays without loss of pay.  In other words, the entitlement is that of a paid public holiday as opposed to an entitlement to take a public holiday without pay.  That is consistent with section 30 of the MCE Act which entitles the employee to be paid for public holidays “as if he or she were required to work that day”.  Section 31 of the MCE Act qualifies that by providing that “Section 30 is not to be read as requiring an employer to pay a penalty rate in respect of work done on a public holiday”.  Section 30 of the MCE Act does no more than to ensure that the public holiday is a paid public holiday. It does not dictate the rate of pay applicable.

29      Clause 25.3(b) of the Agreements provides for the payment of a penalty rate for working on public holidays.  However, that provision has no application in this instance given that Mr Gibson did not work on public holidays.  Clause 25.1 of the Agreements does not provide for the payment of a penalty rate unless it is for time “worked” on an afternoon shift.  Given that Mr Gibson did not work on any public holidays, he did not accrue an entitlement that could be lost.  His ordinary pay cannot be lost. Clause 34.1 of the Agreements and Section 30 of the MCE Act prevents that occurring. Indeed, that is consistent with the general underlying principle that, in the absence of specific agreement, statutory entitlement, or other provision, it is the service that earns remuneration.  If there is no work performed there will be no pay. In the absence of specific agreement, an afternoon shift allowance is not payable unless the afternoon shift has been worked. Clause 34.1 does no more than to ensure that the employee is paid his or her ordinary pay, notwithstanding not having worked on the public holiday.  Such is also consistent with section 116 of the Fair Work Act 2009, which in its National Employment Standards, specifically provides that the applicable rate payable on public holidays is the base rate of pay without penalties or allowances.  The provision for the payment of penalties requires express direction of the sort found in Clause 33.7(b) of the 2007 Agreement.

30      This approach is also consistent with the observations of Commissioner Beech (as he then was) in Australasian Meat Industry Employees’ Union, Industrial Union of Workers, Perth West Australian Branch v Action Food Barns (WA) Pty Ltd and Others (unreported WAIRC 341 of 1995).  Commissioner Beech held that the phrase “without deduction of pay” did not create a positive entitlement.  He said at page 4:

“That conclusion is consistent with the understanding that the Public and Bank Holidays Act 1972 prescribes several specified days to be public holidays.  On such days an employee who would otherwise be ready, willing and available for work would not be able to work because they are holidays and would therefore lose pay.  The award addresses the issues in Clause 17(1) by prescribing that the holidays mentioned in that clause are to be allowed without deduction of pay.  That clause overrides the Public and Bank Holidays Act 1972 (by s.3 of that Act).  The effect is, therefore, that although the public holiday is observed the employer is still obliged to pay the employee for the ordinary work which would otherwise have been performed by the employee on that day.”

31      I recognise that Commissioner Beech was considering the words “without deduction of pay”.  The words “without loss of pay” first appeared in the Federal award known as the Health and Disability Services – Support Workers – Western Australian Government - Award 1996 which, together with its successors underpin the 2007 and 2012 Agreements.  Its predecessor being the 1966 State Award known as the Hospital Workers (Government) Award No.21 of 1966, relevantly contains the words “without deduction of pay”.  There is clearly a historical link between those two sets of terms.  In my view, those expressions convey the same meaning.  Commissioner Beech’s views, with which I agree, are apt in considering the words “without loss of pay”. 

32      The Respondent argues that the practice to date, that shift allowances are not payable for public holidays which are not worked, for all employees covered by the Agreements, has been long standing because the very issue was agitated and resolved in a substantive way by the Court of Arbitration of Western Australia in 1961 in its General Enquiry Re Long Service Leave, Public Holidays, Annual Leave and Hours (1961) 41 WAIG 355.  It suffices to say that I agree with that submission.  That is why this issue has remained uncontentious for over 50 years.

33      The term “without of loss of pay” is to be construed as referring to the payment of the base rate of pay.  Clause 34.1 of the Agreements does no more than to ensure that the base rate of pay is not lost when public holidays fall on a rostered working day.

34      The Claim must be dismissed.

G CICCHINI

INDUSTRIAL MAGISTRATE