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Brisbane City Council v Queensland Services, Industrial Union of Employees

 

[2021] QIRC 5

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Brisbane City Council v Queensland Services, Industrial Union of Employees [2021] QIRC 005

PARTIES:

Brisbane City Council

(Applicant)

v

Queensland Services, Industrial Union of Employees

(Respondent)

CASE NO:

B/2020/18

PROCEEDING:

Application for interpretation of industrial instrument

DELIVERED ON:

6 January 2021

HEARING DATE:

6 November 2020

MEMBER:

Merrell DP

HEARD AT:

ORDER:

OUTCOME:

As to the question for interpretation:

Whether the effect of the phrase 'during each day' in clause 18.1(a) of the Brisbane City Council Salaried Staff Award - State 2016 is that overtime and penalties are to be paid on a daily 24 hour basis and that the period of time in respect of which overtime and penalties are calculated begins at midnight and finishes at midnight on each calendar day?

The answer is:

Yes

CATCHWORDS:

INDUSTRIAL LAW - awards and industrial agreements - application for interpretation of industrial instrument - sub-cl 18.1(a) of the Brisbane City Council Salaried Staff Award - State 2016 - agreed statement of facts - question to be answered is whether on the construction of subcl 18.1(a) of the Brisbane City Council Salaried Staff Award - State 2016 overtime and penalties are calculated in respect of each 24 hour period from midnight to midnight or according to time worked in a single period of work - principles in the construction of awards - on the proper construction of the award, overtime and penalties are calculated in respect of each 24 hour period from midnight to midnight

LEGISLATION:

Acts Interpretation Act 1954, s 14A, s 14B, s 32A and s 32AA

Brisbane City Council Salaried Staff Award 2002, cl 26

Brisbane City Council Salaried Staff Award 2004, cl 27

Brisbane City Council Salaried Staff Award -State 2016, cl 2, cl 3, cl 4, cl 15 and cl 18

Industrial Relations Act 1999, s 140CE and s 692

Industrial Relations Act 2016, s 147, s 467 and s 468

Industrial Relations (Tribunals) Rules 2011, r 80

Statutory Instruments Act 1992, s 7, s 14, s 15 and sch 1

Workplace Relations Act 1996, s 113

CASES:

Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241

Australian Licenced Aircraft Engineers' Association v Ansett Australia Limited [2003] FCA 249; (2003) 127 FCR 487

Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11; (2006) 149 FCR 209

Australian Sugar Milling Association, Queensland, Union of Employees v The Australian Workers' Union of Employees, Queensland [2002] QIC 1; (2002) 169 QGIG 113

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Simplot Australia Pty Limited [2018] FWFCB 1156

Brisbane City Council - re Variations to Brisbane City Council Salaried Staff Award 2002 [2005] AIRC 926

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426

City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362

Construction, Forestry, Maritime, Mining and Energy Union v CBI Constructors Pty Ltd [2018] FWCFB 2732

Gibb v Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628

In the Matter of Applications by Organisations of Employees for Awards and Variations of Certain Awards with Respect to Rates of Pay for Work Performed on Saturdays and Sundays (1947) 58 CAR 610

Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Queensland Public Sector Union of Employees v Department of Corrective Services [2002] ICQ 39; (2002) 170 QGIG 422

Re 4 Yearly Review of Modern Awards - Casual Employment and Part-time Employment [2017] FWCFB 3541; (2017) 269 IR 125

Re 4 Yearly Review of Modern Awards - Penalty Rates [2017] FWCFB 1001; (2017) 265 IR 1

Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140

Re Food Preservers Award (1959) 3 FLR 425

Re: In the matter of the making of Modern Awards - Brisbane City Council Salaried Staff Award - State 2016 [2016] QIRC 109

Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511

United Voice v Wilson Security Pty Ltd [2019] FCAFC 66; (2019) 269 FCR 608

 

APPEARANCES:

Mr C. Murdoch QC instructed by Mr T. Prisk of City Legal - Brisbane City Council for the Applicant

Mr N. Henderson and Ms M. Robertson of the Queensland Services, Industrial Union of Employees

Reasons for Decision

Introduction

  1. [1]
    By application filed on 2 March 2020, the Brisbane City Council applied for an interpretation as to how sub-cl 18.1(a) of the Brisbane City Council Salaried Staff Award - State 2016 ('the Award') '… operates in calculation of the payment of overtime and penalties to employees covered by the Award.'
  1. [2]
    The Award applies to all employees of the Council employed in professional, technical, supervisory or administrative roles under the terms and conditions outlined in the Award, and to the Council in its capacity as the employer of such employees.[1]  Relevantly, the Award also applies to the Queensland Services, Industrial Union of Employees.[2]
  1. [3]
    Clause 18 of the Award deals with overtime and penalty payments. The Council seeks an interpretation '… as to the effect of the phrase "during each day" which appears in clause 18.1(a) upon the definition of the word "day" in clause 3 of the Award which "means a specified calendar day or date which spans 24 hours from midnight to midnight." '
  1. [4]
    In its application, the Council states:
  1. The question upon which the Applicant seeks an interpretation is whether the effect of the phrase "during each day" in clause 18.1(a) of the Award is that overtime and penalties are to be paid on a daily 24 hour basis and that the period of time in respect of which overtime and penalties are calculated begins at midnight and finishes at midnight on each calendar day. ('the question').
  1. [5]
    An agreed statement of facts was filed by the parties as required by r 80(d) of the Industrial Relations (Tribunals) Rules 2011.
  1. [6]
    The Council contends that on a literal and purposive construction of sub-cl 18.1(a) of the Award, the period of time in respect of which overtime and penalties are calculated begins at midnight and finishes at midnight on each calendar day due to the definition of the noun 'day' contained in cl 3 of the Award.
  1. [7]
    The Union, as the respondent to the Council's application, contends that on a purposive construction of sub-cl 18.1(a) of the Award, overtime and penalties are to be paid on a continuous basis according to the time worked, such that overtime and penalties are calculated on an ongoing basis regardless of whether a period of time worked extends past midnight.
  1. [8]
    For the reasons which follow:
  • I will exercise discretion and give an interpretation to sub-cl 18.1(a) of the Award; and
  • the answer to the question is: Yes.

The discretion to give an interpretation of an industrial instrument and the statement of agreed facts

  1. [9]
    Section 467(1) of the Industrial Relations Act 2016 ('the Act') confers discretion on the Commission to give an interpretation of an industrial instrument on application by an entity mentioned in s 468 of the Act. In respect of a modern award, an applicant may include an employer.[3]
  1. [10]
    The discretion, as to whether or not to give an interpretation, must be exercised judicially.[4]
  1. [11]
    The statement of agreed facts provides:

The Application filed in this proceeding is made in reliance on the following agreed facts:

  1. At all material times:
  1. the matter relates to Brisbane City Council salaried staff employees and the interpretation of the Brisbane City Council Salaried Staff Award - State 2016 ('the Award').
  1. clause 3 of the Award contains the definition of a 'day' as "means a specified calendar day or date which spans 24 hours from midnight to midnight".
  1. clause 18 of the Award outlines principles of the payment of overtime and penalties to salaried staff employees.
  1. the interpretation that is in contention is clause 18.1(a) of the Award, as it relates to the payment of overtime and penalties, specifically when time worked spans midnight.
  1. The Applicant currently pays salaried staff employees overtime based on a daily reset at 12:00am midnight, and has done so since at least August 2014.
  1. The Applicant currently pays salaried staff employees penalties in a different manner to how overtime is paid, with penalties being paid according to the time worked in a single shift, and has done so since at least August 2014.
  1. There is a difference of opinion between the Applicant and the Respondent as to the correct interpretation of clause 18.1(a) of the Award.
  1. [12]
    Having regard to the statement of agreed facts, there is a live and genuine dispute between the Council and the Union as to the interpretation of sub-cl 18.1(a) of the Award and, therefore, the jurisdiction to give an interpretation should be exercised.[5]

The relevant history of the Award

Brisbane City Council Salaried Staff Award 2002

  1. [13]
    The predecessor to the Award was the Brisbane City Council Salaried Staff Award 2002, being an award made by the Australian Industrial Relations Commission.[6] The Brisbane City Council Salaried Staff Award 2002, in its simplified form, came into operation on 31 July 2003.[7]
  1. [14]
    Sub-clause 26.1 of the Brisbane City Council Salaried Staff Award 2002 provided:

26.  OVERTIME

26.1 Unless otherwise specified in this clause, officers other than those engaged on continuous shift work shall be paid overtime for hours of duty in excess of the normal hours of duty Monday to Saturday inclusive at the rate of time and a half for the first three hours and double time thereafter, such double time to continue until the completion of the work, and at double ordinary rates for hours of duty in excess of the normal hours of duty on Sunday, or alternatively, shall be granted time-off equivalent to the number of hours of overtime worked multiplied by the appropriate overtime rate in lieu of such payment.[8]

The 2005 variation

  1. [15]
    By decision dated 25 October 2005, the Brisbane City Council Salaried Staff Award 2002, pursuant to s 113 of the Workplace Relations Act 1996, was varied by the Australian Industrial Relations Commission[9]. Apart from a variation to the meal allowance provision, all the variations made were with the consent of the Council, the Australian Municipal, Administrative, Clerical and Services Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.[10]
  1. [16]
    Following that variation, sub-cl 27.1 of the Brisbane City Council Salaried Staff Award 2004 provided:

27.  OVERTIME AND PENALTIES

27.1 Unless otherwise specified in this clause, employees other than those engaged in shift work and who work outside of or work in excess of the ordinary working hours during each day, except Sundays and public holidays, shall be paid for that work at the rate of time and a half for the first three hours and at the rate of double time thereafter. Alternatively, employees shall be granted time off equivalent to the number of hours of overtime worked multiplied by the appropriate overtime rate in lieu of such payment.[11]

  1. [17]
    As from 1 January 2010, by virtue of s 692(2) of the Industrial Relations Act 1999, the Brisbane City Council was declared not to be a national system employer for the purposes of the Fair Work Act 2009.

The award modernisation process undertaken in 2016

  1. [18]
    Chapter 5, pt 8 of the Industrial Relations Act 1999 provided for the modernisation of awards. In 2016, the Brisbane City Council Salaried Staff Award 2004 was modernised as part of that process.[12]
  1. [19]
    By order dated 7 October 2016, pursuant to s 140CE(1)(a) of the Industrial Relations Act 1999, the Brisbane City Council Salaried Staff Award 2004 was repealed and the Award was made.[13]  The Award operated from 1 March 2017.[14]

The relevant provisions of the Award

  1. [20]
    Clause 3 of the Award defines particular words and phrases used in the Award and relevantly provides:

3. Definitions and interpretation

day means a specified calendar day or date which spans 24 hours from midnight to midnight

  1. [21]
    Clause 18 of the Award provides:

18. Overtime and penalties

18.1 Overtime and penalty payments

  1. (a)
    Unless otherwise specified in this clause, employees, other than those engaged in shift work as outlined at clause 15.3(1), who work outside of or in excess of the prescribed ordinary working hours during each day, except Sundays and public holidays, shall be paid for that work at the rate of time and one-half for the first 3 hours and double time thereafter. Alternatively, employees shall be granted time off in lieu of such payment equivalent to the number of hours of overtime worked multiplied by the appropriate overtime rate.
  1. (b)
    A minimum of 2 hours paid at overtime rates shall apply in respect of overtime performed on a Saturday.
  1. (c)
    All time worked on Sundays by employees, other than shift workers, shall be paid for at the rate of double time with a minimum payment as for 2 hours' work.
  1. (d)
    Time worked during ordinary rostered hours between midnight Friday and midnight Sunday by shift workers or by team leaders supervising employees who receive penalty rates under another Award for working at weekends, shall be paid for at the rate of time and one-half. Time worked in excess of such ordinary rostered hours between midnight Friday and midnight Sunday shall be paid at the rate of double time.
  1. (e)
    Employees in receipt of a stand by allowance prescribed in clause 18.5 who are called out to perform emergency work outside their ordinary working hours will be paid for a minimum of 2 hours:
  1. (i)
    from Monday to Saturday inclusive: at the rate of time and one-half, or
  1. (ii)
    on Sunday: at the rate of double time.
  1. (f)
    (i)  An employee recalled to work overtime, whether notified before or after leaving the Council's premises, and who returns home on completion of such overtime work shall be paid as for a minimum of 3 hours at the appropriate rate for each time the employee is so recalled.
  1. (ii)
    Except in the case of unforeseen circumstances arising, the employee shall not be required to work the full 3 hours if the work that the employee is recalled to perform is completed in a shorter period.
  1. (g)
    Overtime shall be calculated to the nearest 15 minutes in the total amount of time in respect of which extra remuneration is claimed by an employee each week.
  1. (h)
    Except as provided for in clause 15.9, an employee temporarily filling and discharging the full duties of a higher graded role shall be paid overtime at the rate applicable to the higher graded role.
  1. (i)
    No payment or allowance for overtime worked shall be made to any employee without prior approval. If prior approval cannot be obtained, the manager with the appropriate level of delegated authority may authorise payment if satisfied that the working of overtime was essential.
  1. (j)
    Employees working nine days over a fortnightly period who are required to work on their agreed day off shall be paid the overtime rates prescribed for work on Monday to Friday by this Award.
  1. [22]
    The parties accept that the first time any version of the Award contained the above definition of the noun 'day' was when the Award was made in 2016 following the award modernisation process conducted pursuant to ch 5, pt 8 of the Industrial Relations Act 1999.
  1. [23]
    Neither the Union or the Council were able to direct me to any relevant extrinsic material that explained why the definition of 'day' was inserted into the Award in 2016 as part of the award modernisation process.

The Union's submissions

  1. [24]
    The Union submitted that:
  • a review of the provisions of the Award discloses that the word 'day' cannot be interpreted in accordance with the definition of the noun 'day' in cl 3 of the Award wherever it appears and, in this regard:

 referred to sub-cls 15.1(b) and 15.4(c), where there is a reference to 'standard day' which is 7 hours and 15 minutes and not the 24 hours required by the definition; and

 referred to sub-cl 18.5(c), which entitles an employee to have 'one day' added to their annual leave for each public holiday whilst on standby and further submitted that it is expected that the general view would be that such credit would not be for 24 hours of leave;

  • because the definition of the noun 'day' in cl 3 refers to 'specified day', then, by having regard to the ordinary meaning of the word 'specified', namely '… to mention or name specifically or definitively; state in detail,'[15] that can only be taken to mean that the 'day' covered by the definition in the Award is a particular day, such as Christmas Day;
  • the word 'day' is a chameleon word which takes its meaning from its surrounding words;
  • when overtime is worked, the rate of pay often increases the longer the period of time worked as happens in the Award, and it is a notorious fact to be so, so as to compensate an employee for staying back or coming in to work for hours greater than the standard hours contracted;
  • it is not unreasonable to speculate that the increment from time and onehalf to double time is to recognise that the longer period of time worked has a greater impact on the employee through having to do the work and losing access to the time which might otherwise be spent doing things which the employee needed or wanted to do;
  • applying the definition of 'day', as contained in cl 3, to sub-cl 18.1(a), as pressed by the Council, has the result that:

 the purpose of the increased rate of overtime is lost and that an employee who has worked three hours at time and one-half at the conclusion of their ordinary hours and who has qualified for the higher rate designed to compensate the employee, drops back to the lower rate when the clock strikes midnight; and

 while midnight might signal the end of a calendar day, in the case of such an employee, it does not signal the end of the working day; and

  • if it was to be the case, as asserted by the Council, that overtime which is worked after the clock strikes midnight is to be considered part of the next working day, then, arguably it becomes a recall if it is not worked through to the commencement of ordinary hours as contemplated in sub-cl 18.1(f) of the Award.
  1. [25]
    The Union submitted that, by having regard to the authorities[16] that require awards to be construed by considering the language of the provision in question and the purpose of the provision:
  1. In light of the examples in the Award where the word day clearly has a meaning different from the meaning given by the definition it is open for the conclusion to be drawn that the definition was not intended to have application each time the word day appears.
  1. This approach is supported by the words of the definition in relation to the qualification word "specified".
  1. On this basis it is open for the Commission to conclude that there is no requirement for the overtime clock to reset at midnight where the overtime has commenced on one day and continued into another.

The Council's submissions

  1. [26]
    The Council submitted that:
  • for historical reasons connected with the configuration of its payroll system, since August 2014:

 it has calculated hours for overtime on a daily basis, ceasing at midnight and beginning for the next day after midnight; and

 it has calculated penalties according to the time worked in a single shift;

  • sub-cl 18.1(a) provides for the calculation and payment of overtime and penalties for work outside of or in excess of ordinary hours, other than for work on Sundays and public holidays, with payment at the rate of time and one-half for the first three hours and double time thereafter;
  • sub-cl 18.1(a) is to be construed so that overtime and penalties are calculated in respect of each day, with the 'clock' being reset at midnight;
  • the basis for its contention is the inclusion of the words 'during each day' after the reference to working outside of or in excess of the prescribed working hours such that the phrase 'during each day' qualifies and defines the period over which work outside of, or in excess of ordinary hours, is to be considered; and
  • such a construction arises because cl 3 of the Award defines the noun 'day' to mean

'… a specified calendar day or date which spans 24 hours from midnight to midnight.'

  1. [27]
    The Council then gave seven reasons as to why the Union's construction ought not be preferred.
  1. [28]
    The reasons are that:
  • first, having regard to the natural meaning of the word 'day'[17] and to the definition in cl 3, payments under sub-cl 18.1(a) are to be calculated on a daily basis because of the use of the phrase 'during each day' as the period over which work outside of or in excess of prescribed ordinary hours is to be considered;
  • secondly, read as a whole and in context, the phrase '… shall be paid for that work at the rate of time and one-half for the first 3 hours and double time thereafter' is qualified by, and subject to, a focus on work outside of or in excess of ordinary working hours 'during each day';
  • thirdly, the Council's construction has the effect that the starting point, in respect of time and one-half for the first three hours is certain, namely, midnight, as is the commencement of double time thereafter;
  • fourthly, it is not industrially unfair for an employee who has started a continuous overtime period late in the evening to either not receive double time after three hours or drop from double time at midnight to time and one-half; this is said to arise because it is certain, it is fair when it is considered that overtime is calculated daily and that hours from midnight to midnight are the overall total calculated for each particular day, and are reset daily which has the effect that all hours worked outside of ordinary hours on a day are counted;
  • fifthly, the Union's submissions in support of its contention are wrong in that:

 the noun 'day' is not a chameleon word, because that submission is based upon references to the phrase 'standard day',[18] and the noun 'day', in other unrelated clauses in the Award;[19]

 contrary to the Union's submission, cl 3 does not refer to a 'specified date', rather it refers to a 'specified calendar day' which is another way of stating that 'day' means a calendar day with a 24 hour span from midnight to midnight; and

 the Union's contention ignores the phrase 'during each day' in sub-cl 18.1(a) of the Award;

  • sixthly, the Union's contention that if the Council's construction was accepted, it becomes a recall, is wrong because of the plain words of sub-cl 18.1(f) in that a recall only occurs when an employee is 'recalled' to duty and there is no recall when an employee continues working on one, or a different day; and
  • finally, on the Union's construction, the phrase 'during each day' is otiose and has no work to do which is contrary to authority[20] and is contrary to the history of the provision when it was varied in 2005.
  1. [29]
    In support of its submissions, the Council tendered eight different scenarios which reflected real circumstances where Council employees, to whom sub-cl 18.1(a) applied, would have worked across midnight.
  1. [30]
    In respect of those eight scenarios, the Council applied sub-cl 18.1(a) of the Award on the basis of its construction of that provision.
  1. [31]
    The scenarios included:

OVERTIME ACROSS MIDNIGHT

Scenario 1

A band 4 employee works for Council.

The employee has a non-working day on Friday, however, performs overtime work from 17:02 Friday until 00:47 Saturday.

The employee is paid 150% for the first three hours from 17:02 until 20:02, and then 200% from 20:02 until midnight. At midnight the overtime rate resets, and the employee works until 00:47 at 150%.

Scenario 2

A band 5 employee works for Council.

On a Wednesday the employee works overtime from 18:00 until 03:30. The employee is paid at 150% from 18:00 until 21:00 and then at 200% from 21:00 until midnight. The employee is then paid at 150% from midnight until 03:00 and then at 200% from 03:00 until 03:30.

On Thursday the employee performs further overtime again from 18:00 until 03:30. From 18:00 until midnight the employee is paid at 200%. The employee is then paid at 150% from midnight until 03:00 and then at 200% from 03:00 until 03:30.

Scenario 3

A band 5 employee works for Council.

On a Thursday the employee works overtime from 16:15 until 02:15. The employee is paid at 150% from 16:15 until 19:15 and then at 200% from 19:15 until midnight at 200%. The employee is then paid at 150% from midnight until 02:15.

PENALTIES ACROSS MIDNIGHT

Scenario 4

A band 6 employee works for Council. The employee is ordinarily a day worker. One week between Monday to Thursday the employee is required to work ordinary hours at night to oversee operations. From Monday to Thursday, the employee works their ordinary hours from 18:00 until 01:45.

On Monday, the employee is paid a 50% penalty for ordinary hours worked from 18:00 until 21:00 and then a 100% penalty from 21:00 to midnight. From midnight until 01:45, the employee is paid a 50% penalty.

When the employee returns on Tuesday night, they are paid a 50% penalty for the remainder of the 'first three hours' from 18:00 until 19:15. From 19:15 until midnight the employee is paid a 100% penalty. From midnight until 01:45, the employee is paid a 50% penalty,

This pattern continues for the remainder of the ordinary hours across the week.

Scenario 5

A band 5 employee works for Council. The employee is ordinarily a day worker. However, on one week between Monday to Thursday the employee is required to work ordinary hours at night to oversee operations. From Monday to Thursday, the employee works their ordinary hours from 19:00 until 02:45.

On Monday, the employee is paid a 50% penalty for ordinary hours worked from 19:00 until 22:00 and then a 100% penalty from 22:00 to midnight. From midnight until 02:45, the employee is paid a 50% penalty.

When the employee returns on Tuesday night, they are paid a 50% penalty for the remainder of the 'first three hours' from 19:00 until 19:15. From 19:15 until midnight the employee is paid a 100% penalty. From midnight until 02:45, the employee is paid a 50% penalty.

This pattern continues for the remainder of the ordinary hours across the week.

Additionally, this employee works overtime on Monday from 02:45 until 04:30. The employee is paid 150% for the overtime.

The Union's submissions in reply

  1. [32]
    In reply, the Union submitted that:
  • the Council's proposition that the '… clock resets at midnight is an unusual or uncommon approach to the way overtime payment normally occurs' and, as a consequence, consistent with authority,[21] the correct approach should be one which is clearly and unambiguously intended as the usual operation of the Award;
  • the proposition advanced by the Council would give rise to the sort of 'absurd and inequitable outcomes' referred to by the majority of the High Court in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union;[22] and
  • by way of example to illustrate the 'absurd and inequitable outcomes' pointed to by the Union, it referred to the difference in pay to be received:

 by an employee whose ordinary hours were 8.00 am to 4.00 pm, and who then work six hours overtime (whereby the employee would receive time and one-half for the first three hours of overtime and then double time for the remaining three hours) with a total payment of 18.5 hours for the entire working time;

 compared to an employee whose ordinary hours were 12 noon to 8.00 pm, and who then worked six hours overtime (whereby the employee would receive time and one-half for the first three hours of overtime, then double time for one hour up until midnight and then time and one-half for the last two hours) with a total payment of 17.5 hours for the entire working time

  1. [33]
    By way of conclusion, the Union submitted that:
  • there was nothing that was said by the parties to the Australian Industrial Relations Commission, during the hearing that led to the 2005 variation, such that the Council's construction was the consent position of the parties;
  • the Council's construction '… destroys the original purpose of the increase in the multiplier'; and
  • having regard to the reason for overtime, being payment to the employee as a penalty rate,[23] an employee is entitled to payment at the higher rate after working the requisite number of hours to trigger the entitlement, and that the employee '… should only cease being entitled to the higher rate when they cease working for that particular working day and the reason for the penalty rate ceases.'

The principles of the construction of an award

  1. [34]
    The general principles to be applied in the construction of an award made by the Queensland Industrial Relations Commission are capable of succinct recitation.
  1. [35]
    First, the task of construction begins with the consideration of the ordinary meaning of its words.[24]
  1. [36]
    Secondly, regard must be paid to the context and purpose of the provision or expression being construed.[25] The context:
  • may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction;[26]
  • is not confined to the words of the relevant Act or instrument surrounding the expression to be construed, and it may extend to the entire document of which it is a part or other documents with which there is an association and may also include ideas that gave rise to an expression in a document from which it has been taken;[27] and
  • extends to the origins of the particular clause, however, frequently and perhaps most often, the immediate context is the clearest guide.[28]
  1. [37]
    Thirdly, awards made by the Queensland Industrial Relations Commission are statutory instruments within the meaning of s 7 of the Statutory Instruments Act 1992.[29] This is because they are instruments made under an Act[30] and are instruments of the type referred to in s 7(3) of the Statutory Instruments Act 1992, namely an instrument of a public nature by which the entity making the instrument (the Commission) unilaterally affects a right or liability of another entity.[31] By virtue of pt 4 of the Statutory Instruments Act 1992, certain provisions of the Acts Interpretation Act 1954 apply in the construction of awards, including:
  • section 14A(1) of the Acts Interpretation Act 1954, which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation;[32]
  • section 14B of the Acts Interpretation Act 1954, as modified by s 15 of the Statutory Instruments Act 1992, which provides that consideration may be given to extrinsic material capable of assisting in interpretation in particular circumstances;[33]
  • section 32A of the Acts Interpretation Act 1954, which provides that definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires;[34] and
  • section 32AA of the Acts Interpretation Act 1954, which provides that a definition in or applying to an Act applies to the entire Act.[35]
  1. [38]
    Fourthly, an award should not be interpreted in a vacuum divorced from industrial realities.[36]
  1. [39]
    Fifthly, there is a long tradition of generous construction over a strictly literal approach which at least means that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdly or illogicality or apparent inconsistencies.[37]
  1. [40]
    Sixthly, while narrow or pedantic approaches to the construction task are misplaced, a court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award.[38]
  1. [41]
    Seventhly, while the context and purpose are relevant, ultimately, the task is to give effect to the meaning of the instrument as expressed in its words, objectively construed.[39]
  1. [42]
    Finally:
  • the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs, and if such a common understanding existed when the award was made, it should not be departed from when the court comes to construe the award at a subsequent time;[40]
  • however, care must be taken to distinguish a common understanding from common inadvertence in that there can be no meeting of the minds, no consensus, if no one has thought about the issue;[41] and
  • evidence of the conduct of the parties subsequent to the making of an award cannot be relied upon to construe it.[42]

Does sub-cl 18.1(a) of the Award mean that the period of time in respect of which overtime and penalties are calculated begins at midnight and finishes at midnight on each calendar day?

  1. [43]
    The category of employees to whom sub-cl 18.1(a) of the Award applies are nonshift workers.
  1. [44]
    The term 'overtime' is not defined in the Award but its ordinary and well understood industrial meaning is over, or more than, ordinary hours in relation to the period of time for which ordinary hours apply.[43] Overtime rates serve the dual purpose of compensating employees for disabilities of that nature and establishing a disincentive for employers to require particular employees to work long hours.[44]
  1. [45]
    In general terms, the payment of penalty rates to employees who perform ordinary hours outside of normal hours or days has been to compensate an employee for the disturbance of social and family life[45] or for the 'disutility' associated with the time at which work is performed.[46]
  1. [46]
    There is significant force in the submission made by Mr Henderson, on behalf of the Union, that an employee should only cease being entitled to the highest penalty rate of double time when he or she ceases working and the reason for the double time rate ceases.
  1. [47]
    It seems to me to be contrary to the long-standing reasons for overtime rates and penalty rates, referred to above, that an employee who has continued to perform work prior to midnight, and becomes entitled to be paid at the rate of double time, should then be paid at the rate of time and one-half when the work performed continues immediately after midnight.  The disturbance to an employee's social and family life or the disutility suffered by the employee does not diminish in respect of the hours of continuous work performed immediately after midnight such that, as a matter of fairness, a lower penalty rate should be paid. Similarly, the payment of a lower penalty rate for continuous work performed after midnight may not act as a disincentive to an employer to authorise the performance of overtime.
  1. [48]
    However, in the present case, in exercising discretion pursuant to s 467(1) of the Act to given an interpretation to sub-cl 18.1(a) of the Award, I am exercising judicial, as opposed to arbitral, power because I am not determining what the entitlements in subcl 18.1(a) of the Award should be having regard to policy considerations.[47] As with the construction of statutes, the purpose of legislation must be derived from what the legislation says and not from any assumption about the desired or desirable reach or operation of relevant provisions.[48]
  1. [49]
    Clause 3 of the Award defines the noun 'day' as '… means a specified calendar day or date which spans 24 hours from midnight to midnight.'  The function of a statutory definition is to indicate that when particular words or expressions, the subject of the definition, are found in the substantive part of the statute under consideration, they are to be understood in their defined sense, or are taken to include certain things which, but for the definition, they would not include.[49] There is no reason to think that definitions in modern awards made under the Act should be viewed any differently. As referred to earlier, because the Award is a statutory instrument within the meaning of the Statutory Instruments Act 1991, a definition in or applicable to the Award applies except so far as the context or subject matter otherwise indicates or requires.
  1. [50]
    In my view, the definition of 'day' has direct application to sub-cl 18.(1)(a) of the Award. Sub-clause 18.1(a) of the Award provides for the calculation and payment of overtime and penalties for work outside of or in excess of ordinary hours - other than for work on Sundays and public holidays - with payment at the rate of time and one-half for the first three hours and double time thereafter. I agree with the Council's submissions that because of the inclusion of the words '… during each day' after the reference to '… work outside of or in excess of the prescribed working hours', the phrase 'during each day' does qualify and define the period over which work outside of, or in excess of ordinary hours, is to be considered. The context or subject matter of sub-cl 18.1(a) of the Award does not otherwise indicate or require that the definition of 'day' in cl 3 should not apply.
  1. [51]
    It is an agreed fact that since at least August 2014, the Council has paid salaried staff employees penalties in a different manner to how overtime is paid, with penalties being paid according to the time worked on a single shift.  However, there is no evidence that the payment of penalties, in that manner, has come about because of a common understanding between the Council and the Union about the interpretation of subcl 18.1(a) of the Award when the Award was made.
  1. [52]
    I cannot, in interpreting the Award, ignore the applicable words of the Award.  This includes the definition of the noun 'day' in cl 3 of the Award and the phrase 'during each day' in sub-cl 18.1(a) of the Award.  Again, by way of analogy with the construction of statutes, no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction, they may all be made useful and pertinent.[50] In my view, the words of subcl 18.1(a) of the Award are clear and this is not a case of infelicitous drafting.
  1. [53]
    Applying the principles of construction of awards referred to above, the interpretation advanced by the Council is, in my view, correct.
  1. [54]
    For these reasons, the answer to the question posed in the Council's application is: Yes.

Order

  1. [55]
    I make the following Order:

As to the question for interpretation:

Whether the effect of the phrase 'during each day' in clause 18.1(a) of the Brisbane City Council Salaried Staff Award - State 2016 is that overtime and penalties are to be paid on a daily 24 hour basis and that the period of time in respect of which overtime and penalties are calculated begins at midnight and finishes at midnight on each calendar day?

The answer is: Yes

Footnotes

[1] Brisbane City Council Salaried Staff Award - State 2016 cls 4(a) and (b).

[2] Brisbane City Council Salaried Staff Award - State 2016 cl 4(c)(ii).

[3] Industrial Relations Act 2016 s 468(1)(c).

[4] Re Food Preservers Award (1959) 3 FLR 425, 420 (Morgan J).

[5] Australian Licenced Aircraft Engineers' Association v Ansett Australia Limited [2003] FCA 249; (2003) 127 FCR 487, [16] (Gyles J).

[6] Brisbane City Council - re Variations to Brisbane City Council Salaried Staff Award 2002 [2005] AIRC 926, ('the 2005 variation decision') [1] (Commissioner Spencer).

[7] Ibid.

[8] Emphasis added.

[9] The 2005 variation decision (n 6) [11]. After this time the award was known as the Brisbane City Council Salaried Staff Award 2004.

[10] Ibid [6].

[11] Emphasis added.

[12] Re: In the matter of the making of Modern Awards - Brisbane City Council Salaried Staff Award - State 2016 [2016] QIRC 109, [1]-[4] (Deputy President Swan, Industrial Commissioner Fisher and Industrial Commissioner Black).

[13] Re: In the matter of the making of Modern Awards - Brisbane City Council Salaried Staff Award - State 2016 [2016] QIRC 109, [8].

[14] Brisbane City Council Salaried Staff Award - State 2016 cl 2.

[15] Macquarie Concise Dictionary (7th ed) 2017 'specify' (def 1).

[16] Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 ('Kucks'), 184 (Madgwick J) and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 ('Wanneroo'), [53] (French J).

[17] Namely, a period of 24 hours from midnight to midnight: Construction, Forestry, Maritime, Mining and Energy Union v CBI Constructors Pty Ltd [2018] FWCFB 2732; (2018) 278 IR 277 [21] (Vice President Hatcher, Deputy President Dean and Commissioner Hunt).

[18] Sub-clauses 15.1(b) and 15.4(c) of the Award, in respect of ordinary hours of duty and for the purposes of leave respectively, refer to a 'standard day' which the Council submitted is defined in those provisions.

[19] Sub-clause 18.5(c) of the Award, which refers to an additional day of annual leave for the performance of emergency work on a public holiday, which the Council submitted could not mean the crediting of 24 hours leave consistently with the decision in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 ('Mondelez'), [45] (Kiefel CJ and Nettle and Gordon JJ).

[20] "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Simplot Australia Pty Limited [2018] FWFCB 1156, [28] (Ross J, President, Deputy President Beaumont and Commissioner Saunders).

[21] Kucks (n 16) 184 and Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 ('Amcor') [96] (Kirby J).

[22] Mondelez (n 19) [3] (Kiefel CJ, Nettle and Gordon JJ).

[23] In the Matter of Applications by Organisations of Employees for Awards and Variations of Certain Awards with Respect to Rates of Pay for Work Performed on Saturdays and Sundays (1947) 58 CAR 610, 615-616 (Drake‑Brockman ACJ and Sugarman J).

[24] Wanneroo (n 16) [53].

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511, 518 (Burchett J).

[29] Queensland Public Sector Union of Employees v Department of Corrective Services [2002] ICQ 39; (2002) 170 QGIG 422, 423 (President Hall).

[30] Statutory Instruments Act 1992 s 7(1) and s 7(2)(a). Awards are made by the Commission under s 147(1)(a) of the Industrial Relations Act 2016.

[31] Cf. Australian Sugar Milling Association, Queensland, Union of Employees v The Australian Workers' Union of Employees, Queensland [2002] QIC 1; (2002) 169 QGIG 113, 116 (President Hall).

[32] Statutory Instruments Act 1992 s 14(1) and sch 1.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 ('Holmes'), 378 (French J)

[37] Wanneroo (n 16) [57].

[38] Kucks (n 16) 184.

[39] Amcor (n 21) [77].

[40] Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11; (2006) 149 FCR 209, [44] (Gray J).

[41] Ibid.

[42] Holmes (n 36) 378.

[43] United Voice v Wilson Security Pty Ltd [2019] FCAFC 66; (2019) 269 FCR 608, [30] (Collier, Bromwich and Wheelahan JJ).

[44] Re 4 Yearly Review of Modern Awards - Casual Employment and Part-time Employment [2017] FWCFB 3541; (2017) 269 IR 125, [549] (Vice President Hatcher, Senior Deputy President Hamberger, Deputy President Kovacic, Deputy President Bull and Commissioner Roe).

[45] Re 4 Yearly Review of Modern Awards - Penalty Rates [2017] FWCFB 1001; (2017) 265 IR 1, [143]-[148] (Justice Ross, President, Vice President Catanzariti, Deputy President Asbury, Commissioner Hampton and Commissioner Lee).

[46] Ibid [883].

[47] Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140, 159 (Gaudron J) and Kucks (n 16), 184.

[48] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).

[49] Gibb v Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628, 635 (Barwick CJ, McTiernan and Taylor JJ).

[50] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 382 (McHugh, Gummow, Kirby and Hayne JJ).

Close

Editorial Notes

  • Published Case Name:

    Brisbane City Council v Queensland Services, Industrial Union of Employees

  • Shortened Case Name:

    Brisbane City Council v Queensland Services, Industrial Union of Employees

  • MNC:

    [2021] QIRC 5

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    06 Jan 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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