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Federal Court of Australia |
Last Updated: 23 December 1998
INDUSTRIAL LAW - issue of whether union picnic day was a public holiday for the purposes of a provision in the relevant award requiring payment of penalty rates on public holidays - circumstances giving rise to question included variation to the relevant award prescribing minimum number of public holidays and a subsequent amendment to the Holidays Act 1958 (ACT) - meaning of the term "public holiday".
Workplace Relations Act 1996 (Cth) s 178
Community & Aged Care Services Award (ACT) 1995
Ophel v Yarra City Council (1998) 80 IR 183
Interpretation of Awards (Re Observance of 28th December, 1953, As a Holiday) (1953) 78 CAR 83
CONFEDERATION OF ACT INDUSTRY v AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION and THE UNITING CHURCH IN AUSTRALIA (AUSTRALIAN CAPITAL TERRITORY) PROPERTY TRUST trading as MIRRINJANI RETIREMENT VILLAGE
AG 42 of 1998
O'CONNOR, MOORE AND MADGWICK JJ
22 DECEMBER 1998
SYDNEY (HEARD IN CANBERRA)
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY | AG 42 of 1998 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
|
BETWEEN: | CONFEDERATION OF ACT INDUSTRY
APPELLANT |
|
AND: | AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
FIRST RESPONDENT
THE UNITING CHURCH IN AUSTRALIA (AUSTRALIAN CAPITAL TERRITORY) PROPERTY TRUST TRADING AS MIRRINJANI RETIREMENT VILLAGE SECOND RESPONDENT |
|
JUDGES: | O'CONNOR, MOORE AND MADGWICK JJ |
| DATE OF ORDER: | 22 DECEMBER 1998 |
| WHERE MADE: | SYDNEY (HEARD IN CANBERRA) |
THE COURT ORDERS THAT:
1. The amended first preliminary question be answered as follows:
Yes.
2. The appeal is otherwise dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY | AG 42 of 1998 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
|
BETWEEN: | CONFEDERATION OF ACT INDUSTRY
APPELLANT |
|
AND: | AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION
FIRST RESPONDENT
THE UNITING CHURCH IN AUSTRALIA (AUSTRALIAN CAPITAL TERRITORY) PROPERTY TRUST TRADING AS MIRRINJANI RETIREMENT VILLAGE SECOND RESPONDENT |
|
JUDGES: | O'CONNOR, MOORE AND MADGWICK JJ |
| DATE: | 22 DECEMBER 1998 |
| PLACE: | SYDNEY (HEARD IN CANBERRA) |
Nature of the case
This is an appeal by the Confederation of ACT Industry ("the Confederation") against a judgment of Finn J of 6 May 1998 answering two preliminary questions in proceedings brought by the Australian Liquor Hospitality and Miscellaneous Workers Union ("the Union"). The Union had commenced proceedings under s 178(1) of the Workplace Relations Act 1996 ("the Act") seeking the imposition of a penalty on the Uniting Church in Australia (Australian Capital Territory) Property Trust trading as Mirrinjani Retirement Village for breach of the Community and Aged Care Services (ACT) Award 1995 ("the Award"). The Union also sought the payment of monies to employees of the Trust under s 178(6) of the Act. The Confederation was granted leave to intervene in the proceedings before the primary judge.
A "safety net" as to employees' "public holidays" and its implementation
The issue raised by the application and addressed in the preliminary questions was whether the first Monday in March 1997, 3 March 1997, was a public holiday for the purposes of a provision in the Award requiring the payment of penalty rates on public holidays: clause 6E. The issue arose against a background in which three events were central. The first was a decision of 4 August 1994 of a Full Bench of the Australian Industrial Relations Commission dealing with the minimum number of public holidays that should be prescribed in awards made by the Commission ("the Test Case decision"). The second was a decision of Commissioner Larkin of 8 January 1997 to vary the Award to give effect to the Test Case decision. The third was an amendment to the Holidays Act 1958 (ACT) ("the Holidays Act 1997 ") effected by the Holidays (Amendment) Act ("the Holidays Amending Act 1995 ").
The decision of the Commissioner to vary the Award was given effect to by a variation made on 23 January 1997. Before the variation, clause 7I of the Award dealt with public holidays and provided:
(a) Employees, other than casual employees, shall be entitled to the following public holidays, without loss of pay, namely:
New Year's Day, Australia Day, Union Picnic Day (such day to be observed on first Monday of March in each year), Good Friday and the following Saturday and Monday, Anzac Day, Queen's Birthday, Labour Day, Christmas Day and the following day (Boxing Day) and any day declared by the Minister or required by any law of the Territory by the Minister in lieu of any of the said days, or any additional day declared as a public holiday in the Australian Capital Territory.
Provided that where an employee is absent, without leave of the employer, for periods immediately preceding or succeeding such public holidays, such employee shall not be entitled to payment for the public holiday(s) occurring within such period of absence.
(b) Payment shall be the amount the employee would have received had the day not been a public holiday and he or she had worked thereon for the usual time on such day. Provided that in respect of Union Picnic Day payment need not be made unless an employer is provided with evidence by an employee that an admission ticket to the picnic, approved by the union, has been purchased.
(c) (i) Where any public holiday specified in subclause (a) hereof, other than Christmas Day and Boxing Day, falls on a Sunday the following Monday shall be observed as a holiday in lieu of that day.
(ii) Where Christmas Day falls on a Saturday and Boxing Day falls on Sunday the following Monday and Tuesday shall be observed as holidays in lieu of those days.
(iii) Where Boxing Day falls on a Saturday the following Monday shall be observed as a holiday in lieu of that day.
(iv) Where Christmas Day falls on a Sunday the following Tuesday shall be observed as a holiday in lieu of that day.
(v) Where New Year's Day falls on a Saturday or Sunday the following Monday shall be observed as a public holiday in lieu of that day.
(d) Employees who work their ordinary hours Monday to Friday shall not be entitled to public holidays falling on a weekend. Such employees may be requested but not compelled to work on such public holidays. If they do work they will be paid the appropriate public holiday penalty.
This was the form of the clause when the Test Case decision was given on 4 August 1994. The Test Case decision arose against a background in which the Victorian government and Parliament had reduced the number of public holidays in Victoria. Applications were made by a number of unions to vary several federal awards to make provision for public holidays. In its reasons for decision the Full Bench characterized the application in this way:
the union claims seek "a minimum of 10 prescribed (named) public holidays plus one additional public holiday in each State, as a safety net standard for workers covered by federal awards". The ten named days included Easter Saturday, which we consider later in this decision. The remaining nine named days are (according to the draft order tendered by (the Union's advocate)): New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Queen's Birthday, Eight Hours Day (or Labour Day), Christmas Day and Boxing Day. Whenever New Year's Day, Australia Day, Christmas Day or Boxing Day fell on a Saturday or Sunday, a substitute holiday would be provided. Thus Anzac Day is outside the scope of the substitution claim.
Later in its reasons the Full Bench indicated that it agreed with the advocate for the unions that a "safety net" perspective was appropriate. The Full Bench went on to say:
A safety net standard will reflect the Commission's judgement as to what is the minimum acceptable entitlement in respect of a particular benefit, such as public holidays. By means of bargaining, of course, an increase in one benefit may be accommodated by a reduction in another.
We also accept that the declaration of public holidays, by whatever legal instrument, is the prerogative of the various Governments. There is a need, therefore, to reconcile, if possible, the Commission's "safety net" function with the authority of the Governments. There are certain days which do not require any action by the States to permit their identification in the Commission's awards. No State law is necessary to define Christmas Day as 25 December, Boxing Day as 26 December or New Year's Day as 1 January. Good Friday and the Monday thereafter also stand in their own right. The Commission at its discretion, may prescribe any of these days to be holidays - just as it can make award provisions about "Saturdays" and "Sundays". An award provision that Good Friday is a holiday entails no intrusion by this Commission upon the law-making authority of the States. Some other holidays have a different character. Australia Day, Anzac Day, the Queen's Birthday and Labour Day, as well as local holidays such as Melbourne Cup Day and Proclamation Day, exist by reason of governmental instruments, although that fact may perhaps be circumvented by alternative designations such as "25 April" and "the first Tuesday in November". The Commission, we think, ought not to usurp the function of "declaring" such days to be public holidays. There is, however, no usurpation if the Commission prescribes that day identified by a State as a public holiday is to be observed as a holiday in its awards. Thus an award provision that the Queen's Birthday is to be observed as a holiday would be nugatory if, in a given State, no instrument identifying that day existed.
A little later the Full Bench said:
The above comments, it may be said, deal only in a formal sense with the potential for conflict with State authority. Traditionally, the States have determined, indirectly, the number of "public holidays" as well as the specific days on which they occur. When the Victorian Government decided that there would be fewer "substitute days" (holidays in lieu of actual days which fall on weekends) and that there would be no public holidays on Easter Tuesday or Show Day, this was a decision to reduce the number of days of leave. Former decisions of arbitral tribunals imply that such a decision would be adopted, for the State of Victoria, by the Commission. That practice is challenged by the "safety net" principle advocated by the unions.
Although the leave which employees enjoy under the broad characterisation of "public holidays" is a significant benefit and, as such, ought not to be excluded from the "safety net" concept, the safety net standard goes more, we think, to the quantum of leave than to the specification of days. There are, however, some days which have special significance in community mores - a significance which the awards may well reflect. These days are Good Friday, Anzac Day and Christmas Day. Otherwise, the specification of days should be seen as variable over time and between States, Territories and even localities. No arguments have been put to us which justify either an expansion or a contraction in the standards which had developed by the early 1990s. Though there are some variations between States, we think that a prescription of ten days (excluding Easter Saturday) gives reasonable effect to the criterion of minimum change. With that standard in mind, we think that award provisions at this time should normally provide:
* that holidays (or payment in lieu) be observed in respect of New Year's Day, Good Friday, the Monday thereafter, Anzac Day, Christmas Day and Boxing Day;
* that holidays (or payment in lieu) be observed also in respect of the days specified in the relevant States and Territories as Australia Day, the Queen's Birthday and Labour Day;
* for an additional holiday (or payment in lieu) which may be a day identified by a governmental prescription (for example, Melbourne Cup Day) or a day otherwise specified (for example, for a union picnic); and
* that when a prescribed holiday, other than Anzac Day, falls on a Saturday or Sunday, a substitute day is provided.
An effect of the above provisions is that the amount of leave is reduced by one day in those years wherein Anzac Day falls on a Saturday or Sunday. This accords with current practice in most States and, with respect to those States, is accepted by the unions.
In some States, the provisions which we have outlined fall below existing "State" standards. The unions propose that the additional leave should be provided in the Commission's awards. This implies that the States and Territories may add to but not subtract from the safety net leave provisions. Upon consideration we have decided to accede to this proposal, notwithstanding its inconsistency with the safety net principle. We do so because it is not open to us to prevent a State or Territory from creating "extra" public holidays. Where it does so, the existence of a lesser standard in the Commission's awards would be a likely source of industrial unrest. We do not, however, accede to the union request that where "extra" public holidays - above the safety net standard - have existed in the past but are eliminated by a State or Territory, their continued observance should be enforced by the Commission. The Commission's commitment is to the safety net, not the status quo (however defined). In effect, our decision allows for State or Territory autonomy, subject to meeting, as a minimum, the safety net standard.
We do not intend our accommodation of State-determined holidays above the safety net standard to be the basis of double-counting, achieved by identifying the additional day in some other manner. For example, we envisage that in Victoria the additional day which is part of the safety net standard will normally be Melbourne Cup Day or a local equivalent. If the additional day is a union picnic day, this will be in lieu of Melbourne Cup Day.
(Emphasis added)
To give effect to their decision the Full Bench published, as an annexure to its decision, a draft order. It is necessary to set out some parts of the draft order. It provided:
A. The above award is varied by deleting . . . and inserting the following in its stead:
(a) An employee shall be entitled to holidays on the following days
(i) New Year's Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and
(ii) the following days, as prescribed in the relevant States, Territories and localities: Australia Day, Anzac Day, Queen's Birthday and Eight Hours' Day or Labour Day; and
(iii) [one other day to be specified according to State, Territory or locality or on some other basis]
(b) (i) When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December.
(ii) When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 28 December.
(iii) When New Year's Day or Australia Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on the next Monday.
(c) Where in a State, Territory or locality, public holidays are declared or prescribed on days other than those set out in (a) and (b) above, those days shall constitute additional holidays for the purpose of this award.
(d) ...
(Emphasis added)
After the Full Bench had given its decision on 4 August 1994 an issue arose about the form of order. That gave rise to further proceedings and a supplementary decision of the Full Bench ("the supplementary Test Case decision"). In this supplementary decision the Full Bench said the following:
The Full Bench is satisfied that this was not a matter left open by the decision of 4 August. On procedural grounds alone, there would be grave doubt about the propriety of entertaining a reconsideration of matters which were not left open. We add the following. There is no basis for supposing that in devising a safety net standard, the Commission may only make changes to the benefit of employees. Our provisions for substitute days, in particular, were a significant benefit for many employees. It may be quite appropriate that there be both `levelling up' and `levelling down' of benefits.
We therefore reject both the general contentions against `stripping back' and the specific contention that union picnic days should be additional to the safety-net standard." (Print L9178 at p.20)
(Emphasis added)
In November 1996 Commissioner Larkin heard an application to vary a number of awards applying in the Territory including the Award. The application was made by the Confederation for the purpose of giving effect to the Test Case decision.
In her reasons for decision of 8 January 1997 Commissioner Larkin identified the central issue in those proceedings in these terms:
The ACTU's submission, on behalf of the unions, while addressing, what they say are the four distinct parts of the CONFACT submission, in reality go to the most significant point of contention of the application to vary the awards. This point can be expressed by the question; "Is the additional day to be Canberra Day or Union Picnic Day?"
The Commissioner then recounted the competing arguments and referred to the passage from the supplementary Test Case decision just quoted. The Commissioner then said:
Thirdly, I do not agree with the ACTU submission that Federal awards in relation to Union Picnic Day have been given effect by reason of the Victorian application. Further, I am not persuaded by the ACTU submission that the TLC Union Picnic Day in the ACT is particularly unique or special in comparison to other States and Territories. Nor do I agree that the issue of Union Picnic Day as argued before the Full Bench and decided by that Full Bench (Print L9178), was specifically directed to the Victorian situation.
The awards subject to this application to vary presently contain 11 named public holidays, which include Union Picnic Day, and provisions for any additionally proclaimed public holidays in the ACT (two awards named 12 days with an additional declared day). Canberra Day is, and has been in the past, a proclaimed public holiday enjoyed by all ACT residents.
(Emphasis added)
It can be seen from this passage that the Commissioner was accepting that Union Picnic Day was a public holiday, at least for the purposes of the Award prior to its variation. The Commissioner was not called on to determine, nor did she, that Union Picnic Day should not be treated as a public holiday for any purpose connected with the future operation of clause 7I in its varied form.
The Commissioner then dealt with a submission that had been made by the ACTU that awards which specified Union Picnic Day alone would continue to enjoy that day as a public holiday and, in addition, would through what was styled the "standard additionality clause" continue to be entitled to Canberra Day so long as the ACT government continued to proclaim it. The Commissioner referred to a decision of a Full Bench which had dealt with an appeal relating to the application of the test case standards in municipal employment in Western Australia. The Commissioner then said:
If I were to agree with the ACTU submission that the additional day envisaged by the Public Holidays Test Case decision is to be Union Picnic Day, then, in my view, the effect would be to entitle employees covered by the award subject to this application to 12 (in some cases possibly 13) public holidays the result would not, in my opinion, accord with the form and intent of the Full Bench decision issued on 4 August 1994.
The Commissioner then dealt with several other arguments and referred to a decision of Commissioner Hingley who had varied the Transport Workers Garbage (ACT) Award 1990 to reflect the test case decision. Commissioner Hingley had provided that the additional day would be Canberra Day or, in lieu by agreement between the parties, Union Picnic Day. Of this decision the Commissioner said:
In my opinion Commissioner Hingley's decision is reflective of the Public Holidays Test Case decision and authorities of other Full Bench decisions in relation to public holidays.
In the result the Commissioner varied the award by deleting the existing clause 7I and inserting in lieu the following:
7I.1 Prescribed holidays
Employees other than casual employees will be entitled to the following public holidays without loss of pay, namely:
7I.1.1 New Year's Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and
7I.1.2 The following days, as prescribed in the relevant States, Territories and localities: Australian Day, Anzac Day, Queen's Birthday and Eight Hours' Day or Labour Day; and
7I.1.3 One other day fixed as follows: Canberra Day or in lieu by agreement between the parties, Union Picnic Day being the first Monday in March.
7I.2.1 When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December.
7I.2.2 When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 28 December.
7I.2.3 When New Year's Day or Australia Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on the next Monday.
7I.3 Where in a State, Territory or locality, public holidays are declared or prescribed on days other than those set out in 7I.1 and 7I.2 above, those days shall constitute additional holidays for the purpose of this award.
7I.4 An employer, with the agreement of the union(s) which is (are) party to this award, may substitute another day for any prescribed in this clause.
7I.4.1 An employer and his or her employees may agree to substitute another day for any prescribed in this clause. For this purpose, the consent of the majority of affected employees shall constitute agreement.
7I.4.2 An agreement pursuant to 7I.4.1 shall be recorded in writing and be available to every affected employee.
7I.4.3 The union(s) which is (are) party to this award shall be informed of an agreement pursuant to 7I.4.1 and may within seven days refuse to accept it. The union(s) will not unreasonable [sic] refuse to accept the agreement.
7I.4.4 If a union, pursuant to 7I.4.3 refuses to accept an agreement, the parties will seek to resolve their differences to the satisfaction of the employer, the employees and the union.
7I.4.5 If no resolution is achieved to 7I.4.4, the employer may apply to the Commission for approval of the agreement reached with his or her employees. Such an application must be made fourteen or more days before the prescribed holiday. After giving the employer and union(s) an opportunity to be heard, the Commission will determine the application.
7I.5 Provided that where an employee is absent, without leave of the employer, for periods immediately preceding or succeeding such holidays, such employee shall not be entitled to payment for the public holiday(s) occurring within such period of absence.
7I.6 Payment for holidays
Payment must be the amount the employee would have received had the day not been a holiday and he/she had worked thereon for the usual time of the day.
7I.7 Employees who work their ordinary hours Monday to Friday shall not be entitled to public holidays falling on a weekend. Such employees may be requested but not compelled to work on such public holidays. If they do work they will be paid the appropriate public holiday penalty.
(Emphasis added)
It is convenient to note, at this stage, one feature of this variation. The prefatory words in clause 7I speak of "entitled to the following public holidays". The draft order appended to the Test Case decision contained generally similar prefatory words in clause A(a) but the draft order speaks of "entitled to holidays on the following days". That is, the draft order did not use the adjective "public" to qualify the word "holidays".
ACT legislative developments
At the time the Commissioner varied the Award the Holidays Act proclaimed certain days to be public holidays in the Territory. It also contained provisions relating to bank holidays. It provided:
1. ...
2. ...
Public holidays
3.(1) Subject to subsections (2) and (3) -
(a) in any year each of the following days in that year shall be observed as a public holiday in the Territory:
(i) 1 January (New Year's day), or, if that day falls on a Saturday or Sunday, the following Monday;
(ii) 26 January (Australia Day), or, if that day falls on a Saturday or Sunday, the following Monday;
(iia) the third Monday in March (Canberra Day);
(iii) Good Friday;
(iv) the Saturday following Good Friday;
(v) the Monday following Good Friday;
(vi) 25 April (Anzac Day), or, if that day falls on a Sunday, the following Monday;
(via) the second Monday in June (the day for the observance of the anniversary of the birthday of the Sovereign);
(vii) the first Monday in October (Labour Day);
(viii) Christmas Day, or, if that day falls on a Saturday or Sunday, the following Monday;
(ix) 26 December (Boxing Day), or -
(A) if that day falls on a Saturday, the following Monday; or
(B) if that day falls on a Sunday or Monday, the following Tuesday; and
(b) any other day, or a part of any other day, declared by the Minister, by notice published in the Gazette, to be a public holiday in the Territory or in a part of the Territory specified in the notice shall be observed as such in the Territory or that part of the Territory, as the case may be.
(2) Where, in the opinion of the Minister, it is expedient that a day referred to in paragraph (1)(a) should not, in a particular year, be observed as a public holiday in the Territory, the Minister may, by notice published in the Gazette not less than 1 week before that day in that year, declare that that day shall not, in that year, be so observed and that declaration has effect accordingly.
(3) When, but for this subsection, a person would be entitled under an award to observe as a holiday a weekday (being a day that is not to be observed as a public holiday in the Territory pursuant to this Act) following a substitute public holiday, the provisions of this Act by virtue of which that substituted public holiday is to be observed as a public holiday in the Territory do not apply in relation to that person.
(4) In subsection (3) -
"award" has the same meaning as in section 4 of the Industrial Relations Act 1988 of the Commonwealth.
"substituted public holiday" means a day that, under subsection 3 (1), is to be observed as a public holiday in the Territory by reason only that another day or date specified in paragraph 3 (1) (a) falls on a Saturday or Sunday.
Bank holidays
4. (1) Subject to subsection (2) -
(a) any day, or part of a day, that in any year is observed as a public holiday in the Territory or a part of the Territory by virtue of section 3 is a bank holiday in the Territory or that part of the Territory, as the case may be;
(b) the first Monday in August of each year is a bank holiday in the Territory; and
(c) any other day, or a part of any other day, declared by the Minister, by notice published in the Gazette, to be a bank holiday in the Territory or in a part of the Territory specified in the notice is a bank holiday in the Territory or that part of the Territory, as the case may be.
(2) Where, in the opinion of the Minister, it is expedient that a day referred to in paragraph (1) (a) or (b) should not, in a particular year, be a bank holiday, the Minister may, by notice published in the Gazette not less than 1 week before that day in that year, declare that that day is not, in that year, a bank holiday and that declaration has effect accordingly.
The Holidays Amending Act added a further section and a schedule to the Holidays Act. The further section provided:
Union Picnic Day
5. In any year, the first Monday in March shall be observed as a holiday in the Territory by employees whose terms and conditions of employment are governed by an award specified in the Schedule.
The Schedule was a list of 62 awards made under the Act and included the Award. The amendments were made shortly after the decision of Commissioner Larkin and the Bill was introduced by the Opposition into the Legislative Assembly. The Holiday Amending Act was plainly a response of the ACT Legislative Assembly to the approach the Commission had been adopting to the manner in which the Test Case decision should be reflected in awards applying in the private sector in the Territory.
The decision of the primary judge
Against this background the primary judge dealt with the questions that had been identified in the proceedings. They were:
1. Does any provision of the Holidays (Amendment) Act 1997 ("the Holidays Act"), upon its proper construction, require a respondent to any award or agreement specified in the Schedule to the Holidays Act to treat the first Monday in March as a holiday or public holiday for the purposes of the award or agreement?
2. Is any provision of the Holidays Act, upon its proper construction, inconsistent with any award or agreement specified in the Schedule to the Holidays Act within the meaning of the Australian Capital Territory (Self-Government) Act 1988?
The primary judge answered both questions affirmatively. The first question has, by consent, been reformulated slightly in the appeal and for reasons which will be explained later the second question was accepted to be irrelevant. The approach of the primary judge was first to consider the Award's provenance which included the Test Case decision of the Full Bench. His Honour then turned to the construction of the Award and concluded that the expression "public holiday" had a consistent meaning throughout clause 7I.
His Honour noted that clause 7I.1.3 referred to Union Picnic Day and identified it as a public holiday having regard to the prefatory words to clause 7I.1. The question then arose whether the words "public holiday" in 7I.3 had a different meaning than the meaning in clause 7I.1. His Honour concluded they did not and referred to the principle of construction that the same meaning be given the same words appearing in different parts of a document, statute or statutory instrument: see Registrar of Titles (WA) v Franzon [1975] HCA 41; (1973) 132 CLR 611 at 618 and generally Pearce and Geddes, Statutory Interpretation in Australia, para 4.4 (4th). His Honour then said:
Clause 7I is concerned with settling the days which, for the Award's purposes, are to constitute the basic holiday entitlement (as opposed to the leave entitlement): (see cl 7A-7H) of employees subject to the Award whether or not work is required to be performed on those days. If in a State, Territory or locality an arm of government having power so to do prescribes a further holiday for such employees howsoever named (other than a holiday referred to in cl 7.1 or 7.2), it is performing the very function of prescribing a "public holiday" such as is envisaged by cl 7.3. It is designating a day for those employees on which "work is suspended" - "a day of recreation or amusement" - to use the most apposite of the meanings ascribed "holiday" in the Shorter Oxford English Dictionary. So viewed, there is no inconsistency of difference in the use of the public holiday formula as between cl 7I.1.3 and cl 7I.3.
His Honour then went on to deal with the provenance of the Award and viewed it as confirming the construction he considered was the correct one.
Submissions in the appeal
The submissions made on behalf of the Confederation were developed in the following way. The object of clause 7I in its present form is to reflect the Test Case decision. It is clear from that decision that the Full Bench intended to establish a "safety net" of 11 award holidays (including Easter Saturday) and in so doing recognized three categories of public holiday. The first were days which were, by custom and tradition, fixed without reference to any Act of a State or Territory government such as Christmas Day. The second were days which were specified in State or Territory legislation such as the Queen's Birthday and the third category was additional days which were identified by legislation or regulation in the States or Territories but which were not necessarily the same days throughout the Commonwealth. It was also submitted that the decision of the Full Bench contemplated holidays in other circumstances where public holidays were established in a State or Territory in order to avoid a situation where employees working under Federal awards would enjoy a lower standard than that obtaining in the State or Territory generally. That situation was to be avoided so as to avoid industrial disputation or unrest.
It was further submitted that in making what was said to be a "safety net prescription" the Full Bench was picking up the legislative injunction then found in s 88A(b) of the Act that awards should act as a safety net of conditions of employment underpinning direct bargaining. Such a safety net would involve common standards across industries which could be supplemented by bargaining between employers, unions and employees.
Senior counsel for the Confederation drew attention to the form of the draft order annexed to the Test Case decision and noted that the prefatory words did not include the adjective "public". That was to be contrasted with the language used in clause A(c) of the draft order which contained a reference to "public holidays" declared or prescribed by, relevantly, a Territory. This was said to be consistent with the Test Case decision and the ordinary definition of a "public holiday" as being an official holiday for members of the public generally: see Ophel v Yarra City Council (1998) 80 IR 183 at 185.
It was also submitted that clause 7I of the Award was intended by the Commission to be a comprehensive settlement of that part of the dispute concerning the employer's duty to give, and their employees' right to take, paid leave on holidays, by delimiting the holidays on which employees are "entitled" to a holiday "without loss of pay". That was complemented by clause 6E(c) which fixes a penalty to be paid for work on public holidays. The variation to the Award fixed ten named public holidays. It was submitted that paragraph 7I.1.3 prescribes the way in which the eleventh and last of these days was to be fixed. While Union Picnic Day might constitute the eleventh day it does so only if it is agreed and it is in substitution for Canberra Day. This process for determining for the eleventh day was, it was submitted, a mechanism to avoid double counting of the type referred to in the Test Case decision.
Senior counsel for the Confederation accepted that the language used in clause 7I of the Award does not faithfully follow the draft order appended to the Test Case decision. However it was submitted that having regard to the reasons for decision of Commissioner Larkin it was her intention to give effect to the Test Case decision. Indeed, it was submitted, the Commissioner had rejected a submission that Union Picnic Day should be the eleventh holiday because that would have the result that Canberra Day, because it was declared a true public holiday for the whole of the Territory, would become the twelfth holiday under what became clause 7I.3.
The Confederation also submitted that the character of the Union Picnic Day prescribed by s 5 of the Holidays Act was not that of "a public holiday". Unlike s 3 which, in terms, declared that certain days were public holidays in the Territory, s 5 simply required that the first Monday in March was to be observed as a holiday in the Territory by a defined class of employees, namely those whose terms and conditions of employment were governed by one of the 62 awards in the Schedule to the Holidays Act in its amended form. Thus, the argument ran, the declaration of that day by s 5 in that limited way did not constitute the declaration or prescription of a public holiday for the purposes of clause 7I.3. Moreover clause 7I.3 contemplated the declaration or prescription of public holidays which were additional to those prescribed in clauses 7I.1 and 7I.2 which included (in clause 7I.2), at least in the alternative, Union Picnic Day as an alternative public holiday.
Conclusions
The starting point in construing the contentious provisions of the Award is the language used and the context in which they appear. It may be accepted that "Union Picnic Day being the first Monday in March" appears in clause 7I.1.3 in a list of holidays which, having regard to the prefatory words of the subclause, are public holidays. However that day is identified as a day that may be substituted for Canberra Day. Canberra Day is a declared holiday under the Holidays Act and is plainly treated as a public holiday in clause 7I.1. The inclusion of Union Picnic Day as a substitute holiday for Canberra Day signifies that Union Picnic Day is to be treated in the Award as either a public holiday or a holiday of the same character. That raises the question of whether Union Picnic Day is to be treated as a day comprehended by the expression "public holidays ... on days other than those set out in clauses 7I.1 and 7I.2 above" in clause 7I.3. If so, the declaration or prescription of Union Picnic day as an additional public holiday would not render it a public holiday for the purposes of the Award by operation of clause 7I.3. However Union Picnic Day is not the day set out in clause 7I.1.3 as the public holiday. It is Canberra Day. That is not to say, however, that the identification of Union Picnic Day as a substitute for Canberra Day indicates that Canberra Day does not have a character consistent with it being a public holiday. It does and is reinforced by the language and structure of the public holiday clause in the Award prior to the variation made by Commissioner Larkin in which Union Picnic Day is treated unambiguously as a public holiday as one of a number of listed public holidays.
It is of some significance that Union Picnic Day can have the character of a public holiday. That is because it is necessary to ascertain for the purposes of clause 7I.3 whether the enactment of s 5 of the Holidays Act constituted a declaration or prescription of a public holiday by the Parliament of the Territory. Section 5 does not, in terms, declare Union Picnic Day to be a public holiday at least in the sense that it does not adopt expressly the term "public holiday" notwithstanding its use elsewhere in the Holidays Act. Moreover the declaration of Union Picnic Day as a holiday applies only to a portion of the population in the Territory, namely employees whose terms and conditions of employment are regulated by one of the nominated awards in the Schedule. This raises the question whether a public holiday, and in particular a public holiday of the type referred to in clause 7I.3, is a holiday to be enjoyed by the entire population in a State, Territory or locality or whether it is sufficient for it to be enjoyed by only part of it. It was said by counsel for the Union in the appeal that in the Territory the workforce can be broadly divided into three groups. First, employees in the public sector, both Commonwealth and Territory employees, who enjoy an additional holiday which is the day after Boxing Day. Secondly, bank and insurance employees who enjoy an additional holiday which is the first Monday in August. Lastly, a significant number of the remaining employees in the private sector who have enjoyed Union Picnic Day as an additional holiday. Senior counsel for the Confederation was unable during the hearing of the appeal to get instructions to agree to these matters. Nonetheless, as to public sector employees and those who enjoy "bank holiday" as a public holiday, the matters were raised and there is no unfairness about our taking judicial notice of them: see s 144 of the Evidence Act (Cth). We do so. Moreover it is a reasonable inference that this Court may draw, given its exclusive and specialist role in the interpretation of awards made under the Act, that the awards in the Schedule to the Holidays Act 1946 regulate the employment of the preponderance of employees in the private sector in the Territory.
An issue about what was a "public holiday" arose in Ophel v Yarra City Council (supra). Northrop J was called upon to construe an agreement certified under the Act which conferred a right on an employee to whom the agreement applied to be absent "on the days observed as public holidays". The terms of the agreement and the factual circumstances in which the issue arose are unusual. However his Honour had the following to say about what was a public holiday:
The use of the word "public" suggests a limitation or restriction on the word "holidays" which otherwise would come within the meaning of holidays. The use of the word "public" is used as an adjective meaning pertaining to or affecting the people as a whole or the community, state or section; see Macquarie Dictionary. The same dictionary defines the word "public holiday" as an official holiday for members of the public generally throughout Australia or throughout the whole of a particular State. The present case involves public holidays within the State of Victoria.
His Honour then considered the meaning of the word "observed" and concluded at 186:
In its context, the phrase "days observed as public holidays" should be understood to mean those days which, within the State of Victoria, or parts of that State are prescribed or fixed by an appropriate authority to be celebrated as holidays for members of the public generally throughout the State of Victoria or parts of Victoria. In this context the appropriate authority would include the Parliament of Australia or Victoria or by executive action taken by the Executive of Australia or of Victoria. The executive action could include a proclamation or other prerogative action.
However it is not invariably the case that for a day to have the character of a public holiday it must be a holiday enjoyed by members of the public generally. An issue arose in Interpretation of Awards (Re Observance of 28th December, 1953, As a Holiday) (1953) 78 CAR 83. Morgan J had to consider the proper construction of several awards which provided that employees were entitled to specified public holidays or days in substitution for them. One such award was the Metal Trades Award which identified the substitute day as "such other day as is generally observed in the locality as a substitute for any of the said days respectively". Morgan J noted that in Victoria there was no legislation authorizing the declaration of a public holiday of general application. The only legislation that provided for the declaration of a public holiday was the Public Service Act (Vic) which limited the effect of the declaration to public servants. His Honour said at 87:
There seems to me to be only two possible approaches to the question of interpretation before me.
One is that in order to determine whether or not a day is generally observed as a holiday in a particular locality in lieu of one of the specified days, involves the resolution of a question of pure fact. If this be the proper approach it would appear that in the State of Victoria the matter could only be determined by evidence as to the actual "observance" in the sense which I have indicated, evidence which could probably be given only after the event. If that be the correct approach the available material is not before me to give the interpretation which I am asked to give, and probably could not be at this stage of the year.
The obvious disadvantage of this approach is the uncertainty of the matter. It seems unlikely that it could be intended by this award that in the State of Victoria the question of whether or not a day was to be a holiday in substitution for a specified public holiday for the purposes of the award should remain uncertain, probably until after the day was passed.
The other approach is to regard the question as determined, in the state of the law of Victoria as it is now and has been at all relevant times, by whether or not a proclamation has been issued under the Public Service Act 1946 , which is the successor for this purpose of the Public and Bank Holidays Act 1958 , 1934, substituting a day as a holiday in lieu of one of the specified days. It is true that under that legislation though the important words "public holiday" are used, the day proclaimed only becomes a substituted holiday for public servants. But, as I have observed, such was the state of affairs at all relevant times. If in attempting to interpret a clause such as this two alternatives are open, one of certainty, and the other of uncertainty, the former is clearly to be preferred.
I have formed the view therefore, not without some doubt, that the clause in the Metal Trades award should be interpreted to mean, in the light of the Victorian law as it now stands, that the issue of a proclamation under the Public Service Act declaring 28th December, 1953, a "public holiday" in substitution for Boxing Day for the purposes of the Act should be regarded as fixing 28th December, for the purposes of this clause as a "day generally observed" in Victoria "as a substitute" for Boxing Day. And I so interpret the clause. This interpretation is of course made on the assumption that no further proclamation on the subject is issued under the Public Service Act.
His Honour considered other awards including the Food Preservers Award which identified the substitute holiday in the following terms:
(e) Should any other day be, by Act of Parliament or proclamation, substituted for any of the abovementioned holidays, the day so substituted shall for all purposes be deemed to be a holiday within the scope, meaning and intention of this clause.
As to this provision his Honour said at 89:
I do not agree with Mr. Aird's argument that some general Act or proclamation is essential to bring into operation sub-clause (e) and it seems to me to be sufficient for the purposes of that sub-clause that the proclamation has been made in the State of Victoria under the Public Service Act, the only legislation in that State which deals with "public holidays" so called in that Act. Again I think that the Food Preservers award should be interpreted in the light of the legislative situation in the various States relating to holidays.
In our opinion the better view is that for the purposes of 7I.3 the enactment of s 5 involved the declaration or prescription of a public holiday. It must be accepted that the variation made by Commissioner Larkin was made against a background where she expressed a particular view about the place of Union Picnic Day in the award regime she was seeking to establish by the variation. It may also be accepted that she was doing so to give effect to the Test Case decision. However whatever was said about Union Picnic Day by the Commissioner in conformity with observations in the Test Case decision, it was being said against a background where there was no legislative prescription dealing with Union Picnic Day. What the variation clearly recognized was that whatever was the regime put in place by the variation in so far as it specified numbers of public holidays and identified the days on which they occurred, it could be altered by parliamentary or executive action in the Territory. It could be altered in a way that would add to the number of holidays to be enjoyed under that regime. Thus whatever was said by the Commissioner about Union Picnic Day must have necessarily been qualified by the acknowledged right of the parliament or the executive to act in this way and provide for an additional public holiday. That is what the ACT Legislative Assembly did, in our view, by the enactment of s 5 by the Holidays Amending Act. Section 5 was intended to create a public holiday on Union Picnic Day to be enjoyed by employees whose employment was regulated by the 62 awards identified in the Schedule. This was done in a context where most other employees in the Territory had one more holiday which was treated as if it were a public holiday for the purposes of their employment. It is compatible with the language and intention of the variation to the Award to treat Union Picnic Day as a public holiday for the purposes of clause 7I.3. It follows, in our opinion, that Union Picnic Day is a public holiday for the purposes of clause 6E. We have referred more extensively than the primary judge did to the background leading to the variation of the Award by Commissioner Larkin. At least if the clause under consideration is ambiguous, and in our view clause 7I is, then the Court can legitimately consider background material of this type. In this case it serves to confirm the conclusion of the primary judge concerning the proper construction of clause 7I having regard to the language and structure of the Award itself.
We noted earlier that the second question answered by the primary judge appears to us to be irrelevant. The proceedings brought by the Union seek the imposition of a penalty and the payment of monies on the basis that certain employees worked on a public holiday and were entitled to payment of penalty rates under clause 6E of the Award. Thus the question that arises in the proceedings is whether Union Picnic Day is a public holiday for the purposes of clause 6E. It either is or is not and, for present purposes, that depends on the construction of clause 7I.3 and the characterisation of the status conferred on the first Monday in March, being Union Picnic Day, by s 5 of the Holidays Act in its amended form. If s 5 has created a public holiday for the purposes of clause 7I.3 then no question of inconsistency arises and similarly no question of inconsistency arises if it has not.
The reformulated question which we propose to answer in the appeal is:
1. Does any provision of the Holidays Act, as amended by the Holidays (Amendment) Act 1997 , have the consequence that a respondent to the Community and Aged Care Services (ACT) Award 1995 is required by that award to treat the first Monday in March as a public holiday for the purposes of clause 6E(c) of that award?
In our view that question should be answered in the affirmative and the appeal should otherwise be dismissed.
|
I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of the Court |
Associate:
Dated: 22 December 1998
|
Counsel for the Appellant: | C Jessup QC with I Neil |
| Solicitor for the Appellant: | Barker Gosling |
| Counsel for the First Respondent: | C Erskine |
| Solicitor for the First Respondent: | Pamela Coward & Associates |
| Counsel for the Second Respondent | P Vane-Tempest |
| Solicitor for the Second Respondent | Phillips Fox |
| Date of Hearing: | 12 November 1998 |
| Date of Judgment: | 22 December 1998 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/1998/1659.html