Woolstar Pty Ltd and anor v National Union of Workers, NSW Branch [2005] NSWIRComm 479 (20 December 2005)

Last Updated: 3 January 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Woolstar Pty Ltd and anor v National Union of Workers, NSW Branch [2005] NSWIRComm 479

FILE NUMBER(S): 6680

HEARING DATE(S): 20/12/2005

EX TEMPORE DATE: 20/12/2005

PARTIES:

FIRST APPLICANT

Woolstar Pty Ltd

SECOND APPLICANT

Woolworths Limited

RESPONDENT

National Union of Workers, New South Wales Branch

JUDGMENT OF: Marks J

LEGAL REPRESENTATIVES

APPLICANTS

Solicitor: Mr M Davis

Thomson Playford Lawyers

RESPONDENT

Mr A Joseph of counsel

Solicitor: Mr S Mueller

National Union of Workers, New South Wales Branch

CASES CITED: Employers' Federation of New South Wales v Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers' Division, New South Wales Branch (1994) 87 IR 335

Re Boarding Houses, &c, Employees (State) Award and Other Awards [1961] AR (NSW) 383

LEGISLATION CITED: Banks and Bank Holidays Act 1912

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Marks J

Tuesday 20 December 2005

Matter No IRC 6680 of 2005

WOOLSTAR PTY LTD AND ANOR V NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH

Notification under section 130 by Woolstar Pty Limited and another of a dispute with National Union of Workers, New South Wales Branch re clause 15 of the award deals with "Public Holidays"

EXTEMPORE DECISION

[2005] NSWIRComm 479

1 The dispute notification arises out of a difference of opinion between Woolstar and the union as to the application of clause 15, the holidays clause, of the Woolworths Limited and Woolstar Pty Limited Yennora, Moorebank, Helles Ave DC Award 2003.

2 Clause 15.1 refers to the fact that certain "statutory or gazetted public holidays observed generally throughout the State of New South Wales", being a number of named days, shall be worked if they form part of an employee's normal working roster. That clause does not contain any reference to Christmas Day and Good Friday. Those days are dealt with in clause 15.2. That states that "[t]he statutory or gazetted public holidays of Christmas Day and Good Friday will be observed as public holidays.”

3 The question to be determined is whether or not Sunday the 25th of December 2005 is Christmas Day for the purpose of clause 15.2, or whether Monday the 26th of December is Christmas Day for the purpose of that clause.

4 Woolstar does not require its employees at the Yennora Distribution Centre to work on Sunday 25 December, but requires them to work on the following day. The Union says that the following day is Christmas Day for the purpose of clause 15.2 because that is the appropriate day under the circumstances to which I shall shortly refer. The company says that Sunday 25 December has been gazetted as Christmas Day and therefore Sunday is Christmas Day and the following day is not Christmas Day and therefore it is not requiring its employees to work on Christmas Day and the provisions of the remainder of the clause should apply accordingly.

5 The reference to "[t]he statutory or gazetted public holidays" can, as a matter of practicality, only be a reference to those days which are referred to either specifically or by proclamation under the Banks and Bank Holidays Act 1912 ("the Act"). The inter-relationship between that Act and the holiday provisions of industrial instruments has been the subject of a great deal of deliberation in decisions of this Commission and its predecessors.

6 The relevant authorities are collected and referred to in a decision of the Full Bench of the Industrial Court of New South Wales in Employers' Federation of New South Wales v Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers' Division, New South Wales Branch (1994) 87 IR 335. I refer generally to the discussion by the Full Bench, which is binding on me. The Full Bench in that case adopted, with approval, some observations of Cook and Beattie JJ made in a joint judgment in Re Boarding Houses, &c, Employees (State) Award and Other Awards [1961] AR (NSW) 383. At 393 their Honours in that case said:

“We think that the true position as to the observance of public holidays is to be ascertained by reference to the Banks and Bank Holidays Act. Further, we think that in construing public holidays clauses in awards it should be presumed that the award making tribunals have recognised the notorious fact that a public holiday may be observed in respect of a particular occasion on a day other than the calendar date of the occasion and intended that the provisions of the said Act and any proclamation thereunder would determine whether this was so or not, and if so, the actual day in which there would be an observance of an award holiday in respect of the occasion. Such a presumption should be made unless a clearly expressed contrary intention appears by the terms of the award".

7 I should observe also in relation to the Employers' Federation Case that, in the context of the particular public holidays provision of the particular Industrial instrument being considered, the Full Bench concluded that "if in any year the 1st day of January, the 25th day of December or the 26th day of December falls on a Sunday, none of those days is a holiday, unless proclaimed a public holiday throughout the State."

8 The difficulty in this case is that by proclamation published in the New South Wales Government Gazette No. 132 of 28 October 2005 at page 9221 the Minister for Industrial Relations, under the hand of the Governor, proclaimed Sunday 25 December 2005 to be observed as a public holiday throughout New South Wales pursuant to s 19(1) of the Banks and Bank Holidays Act 1912. Whilst that proclamation does not name Christmas Day as being the relevant Public holiday, it must follow, I think as a matter of logic, that the intention was that Christmas Day, the 25th of December 2005, was to be observed as a Public holiday and that this is the effect of the publication of that proclamation.

9 On this basis then the statutory or gazetted public holiday of Christmas Day must be Sunday the 25th of December 2005 and, accordingly, Monday the 26th of December 2005, although a public holiday, is not the statutory or gazetted public holiday for Christmas Day.

10 On this basis therefore, in circumstances where an employee of Woolstar is required to work on the 26th of December, that person will not be performing work on Christmas Day for the purpose of clause 15.2.

11 I am unaware as to how often in the cyclical calendar problems of this nature arise, but it seems important that some attempt be made to inject as much certainty into each of these potentially contentious situations as possible. This avoids any possibility of any contentious situation, especially around a season which is intended to generate the utmost goodwill between people. If there remains any uncertainty in the minds of the Union or the Company, then perhaps that is something that can be addressed. Perhaps also consideration might be given to approaching the Government in terms of the precise wording of any proclamation to be made in the future to make it perfectly clear whether any proclamation is intended to operate in a particular manner.

12 I have endeavoured to apply the provisions of the clause in all the circumstances to the best of my ability, given the time of the year and the urgency of the matter. To some extent this may result in some allegation that the Commission is acting more in the nature of Scrooge than Santa Claus, but given my statutory obligations, so be it.

LAST UPDATED: 28/12/2005