Re Building Workers' Industrial Union of Australia v Master Builders' Association of New South Wales and Fyna Constructions (Nsw) Pty Limited [1987] FCA 9; 20 IR 226 (22 January 1987)

FEDERAL COURT OF AUSTRALIA

Re: BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA
And: MASTER BUILDERS' ASSOCIATION OF NEW SOUTH WALES and FYNA CONSTRUCTIONS
(NSW) PTY LIMITED
No. I19 of 1985
Industrial Law
20 IR 226

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - whether injured employee entitled to public holidays without deduction of pay whilst in receipt of or entitled to worker's compensation payments under NSW Compensation Act - Interpretation of Award.

Re Rubber Plastic and Cable Making Industry Award (1965-6) 8 FLR 395

Carmichael v. Colonial Sugar Refining Co Limited (1944) 44 SR (NSW) 233

Thompson v. Armstrong and Royse Pty Ltd [1950] HCA 46; (1950) 81 CLR 585

Clifford Smith v. Australian Wire Industries Pty Limited

Conciliation and Arbitration Act 1904 s.110

Workers' Compensation Act 1926 (NSW) s.7

National Building Trades Construction Award 1975, Print No. C6006 Clause 20

HEARING

SYDNEY
22:1:1987

Counsel for the Applicant: Mr J. Shaw

Solicitor for the Applicant: W C Taylor & Scott, Sydney

Solicitor for the Respondent: Mr J. Norton

ORDER

That on the proper interpretation of Clause 20 - Public Holidays of the National Building Trades Construction Award, the Court determines that an employee employed under the National Building Trades Construction Award 1975 is, pursuant to the said clause, entitled to payment by his employer for any public holiday set out therein which falls during any period when he is receiving or is entitled to receive any payment of compensation from such employer or that employer's insurer under the Workers' Compensation Act 1926 (NSW). Orders Accordingly.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Application has been made by the Building Workers' Industrial Union of Australia (the organization), an organization of employees registered under the Conciliation and Arbitration Act 1904 (the Act) pursuant to s.110 of the Act, wherein the organization sought an interpretation of Cl. 20 of the National Building Trades Construction Award 1975, as varied, (the award). The applicant and the two named respondents, the Master Builders' Association of New South Wales (MBA) and Fyna Constructions (NSW) Pty Limited (Fyna), as a member of the MBA were at all relevant times bound by the award.

2. The Court is satisfied that service of the application, together with the affidavit of Patrick Clancy, the then National Secretary of the organization, sworn 5 December 1985 was effected on each of the two respondents and that both respondents were notified of the hearing date of the application. When the matter was called on for hearing Mr Jeff Shaw of Counsel appeared for the applicant organization, whilst Mr J. Norton, in-house solicitor for the MBA then indicated to the Court that although he was on the High Court of Australia roll of barristers and solicitors, he did not hold a practising certificate and accordingly had not filed a notice of appearance for the respondent MBA but sought the Court's leave to appear for the MBA. He indicated that the MBA was aware that the real purpose of the application was to clear the air by some authoritive decision as to what a particular "section of the New South Wales Workers' Compensation Act means read in line with relevant clauses under the award". In the circumstances, the Court heard Mr Norton. It was then conceded that the MBA was a respondent to the award and that Fyna being a member of the MBA, was also bound by it.

3. The reason for the present application resulted from the ambiguity that had recently arisen following a decision of the Conciliation and Arbitration Commission (the Commission), whether a worker employed under the provisions of the award and who was in receipt of or entitled to compensation, pursuant to the Workers' Compensation Act of New South Wales was nevertheless entitled to payment for public holidays pursuant to Cl. 20 of the award in addition to any compensation he was receiving or might be entitled to receive under the New South Wales workers' compensation legislation for such days.

4. The award was handed down by the Conciliation and Arbitration Commission on 4 April 1975. Clause 20(1) of the award reads:

1. An employee, other than a casual employee (as defined)

shall be entitled to the following holidays without deduction
of pay. Provided that if any other day be by a State Act of
Parliament or State Proclamation substituted for any of the
said holidays, the day so substituted shall be observed:

New Years Day
Australia Day
Good Friday
Easter Monday
Anzac Day
Queens Birthday
Eight Hour Day or Labour Day
Christmas Day

Boxing Day (except in South Australia where Commemoration Day
(28th December) shall be observed as a holiday throughout the
State, except at Whyalla instead of Boxing Day), or such
other day as is generally observed in a locality as a
substitute for any of the said days respectively.

Other paragraphs of Cl. 20 are not set out, they making reference to holidays in particular States of Australia such as show days, picnic days and the like.

Section 110 of the Act provides:

110.(1) The Court is empowered, subject to this section, to
give an interpretation of an award.

(2) An application for the interpretation of an award may be
made by the Minister or an organization or person bound by
the award.

(3) The decision of the Court upon the application is final
and conclusive and is binding on all organizations and
persons bound by the award which or who have been given an
opportunity of being heard by the Court.

5. The relevant history concerning the award which has raised the ambiguity in this regard apparently is as follows. Sometime in 1984 there was an application before Alley J, a Deputy President of the Commission, seeking variations to the said award, including a variation of Cl. 20 by certain employers organizations which if granted would bring about a result that an injured employee who was in fact receiving workers compensation in certain States would not be entitled to receive payment for nominated public holidays. On 13 December 1984, Alley J in matters C No. 51/83, C No. 965/83, C No. 2913/83 and C No. 3128/83 stated as follows:

I have a christmas present for the parties in the shape of a
decision on a number of outstanding matters. They are not
obviously all the outstanding matters and I will indicate in
summary the effect of the decision.

The employers' claim in respect of holiday pay where the
employees are receiving worker's compensation payment is
refused.

His Honour then went on to give a summary of various other matters which were granted or refused or amended as the case may be.

6. Again, on 25 July 1985 in matter C No. 3450/85, a matter of a notification of an industrial dispute in relation to payment for public holidays, the Commission (Commissioner Lear) after hearing various parties gave a determination, relevant parts of which read:

On 1 May 1985 the Building Workers' Industrial Union of
Australia (BWIU) notified a dispute under section 25 of the
Act with Fyna Constructions (NSW) Pty Ltd relating to payment
for public holiday(s) while an employee was off work due to a
compensable injury.

The Master Builders' Association of New South Wales (MBA)
acted for the Company and advised against payment of the
disputed amount.

The claim relates to an employee who had been off work since
21 January 1985 and was being paid compensation in accordance
with the NSW Workers' Compensation Act. He was still an
employee of the Company at the date of hearing.

The Company had been making regular payments of a full week's
wage for each week that the employee was on compensation and
were later reimbursed by the insurance company. Such regular
payments were in accord with the Company's obligations under
both workers' compensation legislation and the accident pay
provisions of the National Building Trades Construction Award
(NBTC Award).

Then is set out the definition of accident pay within the award (Clause 27.3, formerly Clause 28.3 - see later herein).

7. The Commission decision continues:

The regular payments of a full week's wage included payment
for public holidays when appropriate and the employer had
fulfilled his award obligations in this respect.

The BWIU claimed that the employee should also be paid an
extra day's pay for each public holiday (in addition to his
full week's wage) when a holiday falls in any week.

The Union based its claim on the provisions of clause 20 of
the NBTC Award relating to public holidays and on the
provisions of subsection 7(2B) of the NSW Workers'
Compensation Act.

The learned Commissioner having set out s.7(2B) of the NSW Workers' Compensation Act which is set out later herein, continued:

The BWIU sought firstly that an additional day's payment
should be made to the employee concerned for each public
holiday occurring during the relevant period of compensation,
and secondly that the MBA should give "an unequivocal
commitment ... that in future the advice that they give to
their members will be consistent with the entitlement in the
award".

The said decision then reads:

The claim for an additional day's pay for each public holiday
would mean that an employee would receive double payment for
each public holiday occurring during any period when he is
receiving worker's compensation payment.

Thereafter is set out the arguments for the organization and the MBA and makes reference to a letter then in evidence from the NSW State Compensation Board dated 12 June 1985. The decision then concludes:

I find it unnecessary to determine whether employees receive
double payment in New South Wales while on worker's
compensation and I will leave the NSW State Compensation
Board to interpret the provisions of their own legislation.

Accordingly, I will not determine the Union's claim relating
to additional payment.

As far as the BWIU claim that the MBA should give an
unequivocal commitment "that the advice they give to their
members will be consistent with the entitlement in the Award"
(my emphasis), I consider that the action taken by their
member in this case is not in any way inconsistent with
either clause 20 - Public holidays - or clause 27 - Accident
pay - of the NBTC Award.

If any of the parties to this dispute consider that the NSW
Workers' Compensation Act is unclear, ambiguous or anomalous,
the remedy is to seek an amendment in the appropriate area.

8. It was this decision which brought about some confusion as to the employers' duty in this regard. It is clear from the time of the Commencement of the award in 1975 up until the filing of the application for variation of various clauses including Cl. 20 heard before Alley J in 1983/84, no real dispute in this regard existed, the practice being that an injured employee receiving compensation under the NSW Workers' Compensation Act who was still employed by a particular employer was paid compensation benefits in accordance with the NSW Compensation Act together with accident pay under Cl. 28 and also received payments for public holidays which fell during the relevant period. After the decision of Alley J in December 1984 referred to earlier herein, this practice apparently continued up until the dispute listed before Commissioner Lear in July 1985.

9. With respect, there is some ambiguity in Commissioner Lear's decision of 25 July 1985. On the one hand, the learned Commissioner says that he will not determine whether an employee receives double payment in New South Wales while on worker's compensation (that is, if public holiday pay is made to him), whilst on the other hand, in the penultimate paragraph of the decision, it might be said that he is giving his approval to the non-payment by the employer in that particular case.

10. It is assumed that the learned Commissioner where he says in the last paragraph of the decision "the remedy is to seek an amendment in the proper area", that he is referring to the seeking of an amendment or amendments to the legislature, either Federal or State. But, as will be seen, no such amendment is needed.

11. Reference should also be made to Clause 28 - Accident Pay provided for in the award. Relevant parts thereof read:

1. This clause shall apply to all employees covered by this
award in the States of Queensland, New South Wales and
Victoria and the circumstances under which an employee
shall qualify for accident pay shall be as prescribed
hereunder.

2. The employer shall pay an employee accident pay where the
employee receives an injury for which weekly payments or
compensation are payable by or on behalf of the employer
pursuant to the provisions of the relevant Workers
Compensation Legislation as amended from time to time.

3. 'Accident Pay' means a weekly payment of an amount being
the difference between the weekly amount of compensation
paid to the employee pursuant to the said relevant
Workers Compensation Legislation and the employees
appropriate 40 hour award rate, or, where the incapacity
is for a lesser period than one week, the difference
between the amount of compensation and the said award
rate for that period.

4. An employer shall pay or cause to be paid accident pay
as defined in 28.3 during the incapacity of the employee
arising from any one injury for a total of twenty-six
weeks whether the incapacity is in one continuous period
or not.

8. For the purposes of this clause 'relevant Workers
Compensation Legislation' shall mean:

...
In New South Wales - Workers' Compensation Act 1926
to 1970

12. The question of the Court's jurisdiction in the present matter was raised by the Court in view of the fact that from what Mr Norton had stated, there did not then appear to be any real dispute between the parties before the Court. In this regard the Court was referred to the decision of the Commonwealth Industrial Court in Re Rubber Plastic and Cable Making Industry Award (1965-6) 8 FLR 395. I agree with that decision in this regard and accordingly am satisfied that the Court had jurisdiction in the present matter.

13. In my view it is necessary in this matter to consider the history leading up to the introduction of s.7(2B) of the NSW Workers' Compensation Act. That sub-section reads:

7(2B) Compensation shall be payable in accordance with the
provisions of this Act to a worker in respect of any period
of incapacity notwithstanding that the worker has received or
is entitled to receive in respect of such period any payment,
allowance or benefit for holidays, annual holidays or long
service leave under any Act (Commonwealth or State), award or
industrial agreement under any such Act, or contract of
employment, and the amount of compensation so payable shall
be the amount which would have been payable to the worker had
he not received or been entitled to receive in respect of
such period any such payment, allowance or benefit.

14. In Carmichael v. Colonial Sugar Refining Co Limited (1944) 44 SR (NSW) 233 a Full Court of the Supreme Court of New South Wales held that an employer was entitled to withhold worker's compensation payments in respect of three public holidays in circumstances where the injured worker had been paid his award wages in full for those three days. Subsequently, as a result of this decision and the equal division of the High Court in Thompson v. Armstrong and Royse Pty Ltd [1950] HCA 46; (1950) 81 CLR 585 (a case involving worker's compensation payments to an injured worker together with annual leave payments and payments for certain public holidays), the NSW Workers' Compensation Act was amended by the New South Wales Parliament in 1953 by inserting s.7(2B) into the Workers' Compensation Act.

15. Thereafter in the Court's experience it has always been the practice in New South Wales for an employer to pay public holiday pay to an injured employee during his incapacity if the award under which that employee was paid made provision therefor. This situation is similar to that considered in New South Wales by a Full Bench of the Industrial Commission in Court Session in the matter of Clifford Smith v. Australian Wire Industries Pty Limited determined on 27 May 1985. There it was determined that the applicant was entitled to be paid monies in respect of annual holidays pursuant to s.4(3) of the Annual Holidays Act (NSW) 1944, even though the applicant employee received worker's compensation payments during the relevant period. That decision clearly supports the proposition that there should be no reading down of clear and express provisions of an Act by reason of some suggested absurdity or anomaly resulting in what might be called a "double payment".

16. Here Cl. 20 provides an entitlement to employees to public holidays without deduction of pay. The wording of the clause is clear and unambiguous and there is no reason to read into the clause some exception which in effect says that where the employee is on worker's compensation payable under the NSW Workers' Compensation Act that Cl. 20 does not apply. In my view the language of the clause admits of no exception in relation to workers who are absent because of injury. In no way is the clear and categorical obligation to make payments in accordance with the clause qualified. Again, s.7(2B) of the NSW Workers' Compensation Act expressly contemplates the prospect of worker's compensation payments being made in addition to award or statutory rights when the contract of employment subsists during any period of incapacity arising from injury. The word "holidays" used in sub-section 7(2B) clearly, in my view, comprehends public holidays.

17. Again, it is significant in my view that Alley J refused the employer's application to vary Cl. 20 of the award so as to permit the employer not to make the so-called "double payment" which the employer was otherwise obliged to make. If the appropriate interpretation of the award was contrary to that which the applicant here claims, then the relevant part of the application before Alley J to vary the award would of course have been quite unnecessary. In other words, it was then apparent that employers then conceded that the construction here sought by the organization was the correct construction and that that particular application for variation was necessary to effectively alter the then practice.

18. Mr Norton, as I understand it, pointed out to the Court that there were then some MBA members who believed that where an employer was paying its injured employee worker's compensation directly and not through an insurance company, then that employer was not obliged to pay public holiday pay to that injured employee particularly if the injured employee was being paid full accident pay by the employer in accordance with Clause 28. Mr Norton was frank enough to inform the Court that he himself did not agree with such a view but there were members who held that belief and accordingly the MBA was anxious to have an authoritive determination in the matter. I agree that such a view is not correct. Clearly the wording of the clause does not permit or warrant such a construction and that view is rejected.

19. The Court, immediately after hearing submissions then made orders declaring that on a proper interpretation of the Cl. 20 of the award "an employee employed under the National Building Trades' Construction Award 1975 is entitled to payment for public holidays under Clause 20 of that award, whether or not he is receiving compensation payments under the Workers' Compensation Act 1926 (NSW)."