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Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health)[2018] QIRC 50

Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health)[2018] QIRC 50

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2018] QIRC 050

PARTIES: 

Queensland Nurses and Midwives' Union of Employees

(Applicant)

v

State of Queensland (Department of Health)

(Respondent)

CASE NO:

B/2017/28

PROCEEDING:

Application for Declarations

DELIVERED ON:

24 April 2018

HEARING DATES:

4 December 2017

29 January 2018

5 February 2018

13 March 2018

MEMBERS:

HEARD AT:

Deputy President Bloomfield

Industrial Commissioner Fisher

Industrial Commissioner Black

Brisbane

ORDERS:

The application for Declaratory relief is refused.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR DECLARATIONS – where relevant employees are nurses and midwives in public hospitals – whether annual leave taken by relevant employees covered by specific awards was exclusive of any public holiday – whether time off in lieu accrued and taken by relevant employees covered by specific awards is exclusive of any public holiday – whether accrued entitlements to annual leave of a relevant employee are to be calculated by crediting the employee's accrued entitlements to annual leave or paid as annual leave for any time on a public holiday – whether accrued entitlements to time off in lieu of a relevant employee are to be calculated by crediting the employee's accrued entitlements to time off in lieu or paid as time off in lieu for any time on a public holiday

LEGISLATION:

CASES:

Industrial Arbitration Act 1916

Industrial Conciliation and Arbitration Act 1929, s 54

The Industrial Conciliation and Arbitration Act of 1932, s 10

The Industrial Conciliation and Arbitration Acts 1932 to 1946, s 10A

Industrial Conciliation and Arbitration Act 1961-1982, s 14

Industrial Relations Act 1990, s 11

Industrial Relations Act 1999, s 11, s 15

Industrial Relations Act 2016 (Qld) s 21, s 31, s 463, s 464

Holidays Act 1983

Acts Interpretation Act 1954 (Qld), s 32C

Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWSLR 393

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241

K & S Lake City Freighters Pty Ltd v Gordon & Gotch (1985) 157 CLR 309

Kucks v CSR Ltd (1996) 66 IR 182

IW Applicant v The City of Perth (1997) 191 CLR 1

Commonwealth v Baume (1905) 2 CLR 405

APPEARANCES:

Mr C. Dowling, SC and with him Mr S. Reidy, Counsel directly instructed by the Queensland Nurses and Midwives' Union of Employees, the Applicant.

Mr J.E. Murdoch, QC instructed by McCullough Robertson for the Respondent.

Decision

  1. [1]
    This decision relates to an Application by the Queensland Nurses and Midwives' Union of Employees ("QNMU") for Declarations pursuant to s 463 and ss 464(c) and (d) of the Industrial Relations Act 2016, as follows:

"1. A declaration that annual leave taken by the relevant employees covered by the Queensland Health Nurses and Midwives Award - State 2011 (the '2011 Award') was exclusive of any public holiday.

  1. A declaration that time off in lieu accrued and taken by the relevant employees covered by the 2011 Award is exclusive of any public holiday.
  1. A declaration that annual leave taken by the relevant employees covered by the Queensland Health Nurses and Midwives Award - State 2012 (the '2012 Award') was exclusive of any public holiday.
  1. A declaration that time off in lieu accrued and taken by the relevant employees covered by the 2012 Award is exclusive of any public holiday.
  1. A declaration that annual leave taken by the relevant employees covered by the Nurses and Midwives (Queensland Health) Award - State 2015 (the '2015 Award') was exclusive of any public holiday.
  1. A declaration that time off in lieu accrued and taken by the relevant employees covered by the 2015 Award is exclusive of any public holiday.
  1. A declaration that the accrued entitlements to annual leave of a relevant employee are to be calculated by crediting the employee's accrued entitlements to annual leave with the period taken by or paid to the employee as annual leave for any time on a public holiday.
  1. A declaration that the accrued entitlements to time off in lieu of a relevant employee are to be calculated by crediting the employee's accrued entitlements to time off in lieu with the period taken by or paid to the employee as time off in lieu for any time on a public holiday.

In these declarations, 'relevant employees' are nurses and midwives in public hospitals . . . who were or are covered at any time under any of the 2011 Award, the 2012 Award and 2015 Award."

  1. [2]
    The Application is opposed by State of Queensland (Department of Health) ("DOH").
  1. [3]
    To facilitate the conduct of the hearing QNMU and DOH prepared a Statement of Agreed Facts and Matters ("the AFM"), which relevantly provides:

"Agreed Facts and Matters

The 1999 IR Act

  1. In the period of the 2011 Award and of the 2012 Award and for the period of the 2015 Award until 28 February 2017, the Industrial Relations Act 1999 (the '1999 IR Act') provided by s 11(3) that 'Annual leave is exclusive of a public holiday that falls during the leave'. Section 11(4) then stated that 'if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday.'

The 2016 IR Act

  1. In the period of the 2015 Award from 1 March 2017, the Industrial Relations Act 2016 (the '2016 IR Act') provided by s 31(2) that 'Annual leave is exclusive of a public holiday that falls during the leave'. Section 31(3) then stated that 'if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday.'

The Awards

  1. In the period from 16 March 2011 until 20 August 2012, the 2011 Award was in operation and relevantly provided in Section B - Public Hospitals:
  1. (a)
    by clause 12.6.1, all employees (other than casual employees) in public hospitals are entitled to 190 hours' (five weeks') leave on full pay in each year, 38 hours of such being in lieu of extra payment for work done on the public holidays in clause 12.7.1;
  2. (b)
    by clause 12.7.1, all work done by an employee during their ordinary shifts on the following holidays must be paid at one and a half times the ordinary rate:

The holidays

  •  Good Friday
  •  25 April (ANZAC Day)
  •  Christmas Day
  •  New Year's Day
  •  26 January
  •  Easter Monday
  •  the Birthday of the Sovereign
  •  Boxing Day

or any day appointed under the Holidays Act 1983 to be kept in place of any such holiday.

  1. In the period from 21 August 2012 until 4 October 2016, the 2012 Award was in operation and relevantly provided in Section B - Public Hospitals:
  1. (a)
    by clause 12.6.1, all employees (other than casual employees) in public hospitals are entitled to 190 hours' (five weeks') leave on full pay in each year, 38 hours of such being in lieu of extra payment for work done on the public holidays in clause 12.7.1;
  2. (b)
    by clause 12.7.1, all work done by an employee during their ordinary shifts on the following holidays must be paid at one and a half times the ordinary rate:

The holidays

  •  Good Friday
  •  Christmas Day
  •  New Year's Day
  •  25 April (ANZAC Day)
  •  26 January
  •  Easter Monday
  •  the birthday of the Sovereign
  •  Boxing Day

or any day appointed under the Holidays Act 1983 to be kept in place of any such holiday.

  1.  The 2015 Award operated from 5 October 2016 and relevantly provides:
  1. (a)
    by clause 19.1(a) that all full-time employees covered by the 2015 Award employed in a Public Hospital (excluding dental hospital and dental clinic) after 12 months' continuous service are entitled to 190 hours' or five weeks' annual leave which includes 38 hours in lieu of extra payment for work done on the public holidays listed at clause 23(c);
  2. (b)
    by clause 23(c) that 'For the purposes of clause 23, all other public holidays include' the public holidays listed below:
  •  New Year's Day (1 January)
  •  26 January
  •  Good Friday
  •  Easter Monday
  •  25 April (ANZAC Day)
  •  the Birthday of the Sovereign
  •  Christmas Day (25 December)
  •  Boxing Day (26 December)
  • any day appointed under the Holidays Act 1983 to be kept in place of any such holiday.
  1. (c)
    by clause 23(a) that an employee in a Public Hospital (excluding dental hospital and dental clinic) who performs work on a public holiday as part of ordinary rostered hours shall be paid for the holidays defined as 'all other public holidays' in clause 23(c) for all hours worked at one and one half times (150%) the ordinary rate of pay, with a minimum payment as for four hours' work.

. . .

  1. Time off in lieu (TOIL) is a process by which employees are permitted to 'bank' time worked in excess of their ordinary hours of work, and take that time free from duty at a later time, in lieu of receiving overtime payment for the excess hours so worked. When an employee takes TOIL they are paid ordinary time.

The relevant employees

  1. The relevant employees are nurses and midwives covered by the Awards who work in public hospitals on full time, part time and temporary arrangements on:
  1. (a)
    Monday to Friday day shifts;
  2. (b)
    continuous shifts; or
  3. (c)
    non-continuous shifts.
  1. The case studies cover a cross section of various working arrangements, public hospital units and public holidays of relevant employees over the period of the Awards.

. . .

The case studies[1]

  1.  The case studies attach the following documents:
  1.  Pay Advices showing:
    1.  the treatment of the payment on public holidays;
    2.  whether the payment for annual leave taken on a public holiday was a 'stand alone' annual leave day or fell within a period of annual leave taken by the employee;
    3.  details of accrued leave (in hours) unless the details are on a second page of a pay advice which has not been able to be located.
  2. Attendance Variation and Allowance Claim ('AVAC') are forms used to record any variations to a published roster. An example of an AVAC form for [employee JS] is attached.
  3. Examples of Leave Application forms for a period of leave referred to in Pay Advices are attached for [employee RO'C].
  1. The practices resulting in recording annual leave or TOIL for public holidays varied throughout the public health system. Generally, the recording occurred as a result of one of the following processes:
  1. (a)
    For a single day of annual leave on a public holiday[2] ('one-off' days), the practices in the units and the business rules of hospitals and hospital and health services varied from unit to unit, over time and from public holiday to public holiday. The following general practices have been identified:
    1. For a period, the general practice was that employees were told by their line manager, usually the NUM[3], that they had to be on standby to be deployed to another area of work at the public hospital on the public holiday but, if the employee wanted to know in advance that they would not be working, the employee was to advise the NUM that the employee did not wish to be available to be deployed. The employee was told that if they did not want to be available to work on the 'one-off' day, the employee had to use annual leave (or some other form of leave e.g. TOIL) to be paid for the day.
    2. Employees who did not take a leave day and were required to be available to be deployed but then not required were 'stood down' at any time prior to the start of work and paid ordinary time for the public holiday.
    3. Variations to the practice were that NUMs told employees that they had the choice to either work or take annual leave on a 'one‑off' day or NUMs told employees that they were stood down for that day, in which case the employee was paid ordinary time for the public holiday.
    4. A more recent practice is for the NUM to roster or assign employees or employees nominate themselves to be available to be deployed on certain public holidays throughout the year and to advise the other employees that they were 'stood down' for the public holiday and paid ordinary time for the day.
    5. The more or less standard practice for initiating the recording of the payment for the public holiday was for the NUM to record the day on an AVAC form as annual leave (or other form of leave). Generally, the AVAC form recorded roster changes on multiple days for a number of employees.
    6. Nurses did not ordinarily see the AVAC form before it was submitted but were aware that a process would be put in place for the NUM to record annual leave on the 'one-off' day.
    7. The applicable process for the 'one-off' day was discussed at staff meetings, including Leadership Meetings, and often set out in emails to nurses prior to the public holiday.
  2. (b)
    When an extended annual leave[4] period in a Leave Application form included a public holiday or public holidays, the payroll system recorded the public holiday or public holidays as annual leave.[5] The nurse applied for extended annual leave in advance and the application was required to be approved by the relevant person in the hospital or health service or unit.
  3. (c)
    The recording of TOIL on a public holiday on the payroll system was initiated by an AVAC form.

. . .

Leave application forms and AVAC forms

  1. In order to receive payment for a public holiday, in accordance with DOH policies and memoranda, the employees in the examples from time to time submitted leave application forms or forms for the use of TOIL."

Issues in dispute

  1. [4]
    In the course of his written outline of submissions, on behalf of DOH, Mr J.E. Murdoch, QC indicated that the Respondent did not contend that for Labour Day, Show Day, Easter Saturday or (from the commencement of the 2016 IR Act on 1 March 2017) Easter Sunday, the exemption provided by s 31(3) of that Act is applicable.
  1. [5]
    Consequently, in light of the above concession, the issues in dispute between the parties are relatively narrow and concern:
  • whether the additional 38 hours' annual leave described at paragraph 5(a) of the AFM (and also at paragraphs 3(a) and 4(a)) is, as contended by DOH, or is not, as contended by QNMU, "as compensation for working on a particular public holiday" as described in s 31(3) of the 2016 IR Act (and s 11(4) of the 1999 IR Act); and
  • whether a day taken as time off in lieu (TOIL) or as annual leave and which coincides with a public holiday can be "charged" against an employee's TOIL or annual leave balance, as contended by DOH, or must be treated as, and paid as, a public holiday, as contended by QNMU.

The legislative history concerning public holidays

  1. [6]
    Mr C. Dowling, SC, who represented QNMU, provided a history of the legislative and award provisions for work on public holidays from 1916, when the provisions were first introduced in legislation, and for annual leave entitlements for employees from 1946, again when such provisions were first introduced in legislation.
  1. [7]
    By the Industrial Arbitration Act 1916 awards were to contain provisions not less favourable than double rates for work performed on Good Friday, Labour Day and Christmas Day and time and a half for work performed on nine other public holidays, including St David's Day, St Patrick's Day, St George's Day and St Andrew's Day.  Annual leave was left to award regulation by the Industrial Court and Boards.
  1. [8]
    The four Saints' days were removed from legislation by the Industrial Conciliation and Arbitration Act 1929.  Following debate about the impact of the loss of the days on the "annual leave" arrangements, the Act was also amended to include a provision at s 54:

"Provided that nothing in this section shall prevent the Court or a Board from granting the equivalent of annual leave on full pay for work done on the aforesaid holidays."

  1. [9]
    An amendment accepted by the Minister saw the Government retract a proposed rate of time and a half for work performed on all public holidays and set rates of double time for work on Good Friday, Anzac Day, Labour Day and Christmas Day and time and a half for the (then) remaining five public holidays.
  1. [10]
    The proviso at s 54 (see paragraph [8] above) was amended upon the commencement of The Industrial Conciliation and Arbitration Act of 1932 ("the 1932 IC&A Act") to read (at s 10(2)):

"Nothing in this section shall prevent the Court or a Board from granting the equivalent of annual leave on full pay in lieu of extra payment for work done on the aforesaid holidays."

  1. [11]
    The form of words used in the 1932 IC&A Act was retained until the enactment of the Industrial Relations Act 1990 ("the 1990 IR Act") at which time the provision was altered to read (at s 11.3(7)):

"The Industrial Commission may, by its order, confer on an employee an entitlement to additional annual leave on full pay, in lieu of an entitlement to extra payment for work performed as prescribed by subsection (2) or (3)."

Relevantly, subsections (2) and (3) provided that the rate to be paid for work performed on any of the then eleven prescribed holidays was to be a minimum of double time and a half.

  1. [12]
    The provision was amended, again, on the enactment of the Industrial Relations Act 1999 ("the 1999 IR Act") to read (at s 15(7)):

"The commission may confer on an employee an entitlement to extra annual leave on full pay, instead of extra pay, for work performed on a public holiday."

Such wording remained unchanged until the 1999 IR Act was repealed on commencement of the 2016 IR Act on 1 March 2017.

  1. [13]
    While the 2016 IR Act does not contain a provision similar to that which existed between 1932 and February 2017, DOH submitted - and QNMU did not refute - that the Commission has the jurisdiction and power under s 9 and Schedule 1, items 1 and 2, of the 2016 IR Act to make an award that allows for reduced public holiday payments (in relation to the eight public holiday payments mentioned in clause 23(c) of the 2015 Award) for additional annual leave.

The legislative and award history concerning annual leave entitlements and payment for public holidays

  1. [14]
    A statutory entitlement to annual leave on full pay for all employees covered by awards or industrial agreements was first included in legislation in December 1946, at which time The Industrial Conciliation and Arbitration Acts 1932 to 1946 prescribed (at s [10A](2)) that the minimum entitlement would be three weeks for shift workers and two weeks in all other cases.  Relevantly, in terms of the matter before us, s [10A](3) also prescribed that "(s)uch annual holiday shall be exclusive of any statutory holiday which may occur during the period of such annual holiday . . .".  This provision was included in all subsequent industrial legislation.
  1. [15]
    When the first award for nurses in public hospitals was made in 1952 ("the 1952 Nurses Award") it simply provided, without explanation as to the reason/s why, that all employees shall be entitled to four weeks' annual leave on full pay each year when the legislative standard was "not less than" three weeks for shift workers.  The award also provided for payment at ordinary time rates for work performed on any of the eight public holidays referred to at paragraph [13] (above), at a time when the statute (from 1941) provided for double time for all public holidays subject to the industrial tribunal making a provision in an award of the type mentioned in paragraph [10] above.
  1. [16]
    In June 1963 a Full Bench of the Queensland Industrial Conciliation and Arbitration Commission made a General Ruling granting an extra week of annual leave to all employees with 12 months' continuous service on or after 30 November 1963 so that shift workers received a minimum of four weeks' leave and all other employees three weeks' leave.  The General Ruling included a provision which stated that where an award or industrial agreement provided for additional annual leave in lieu of extra payment for work on any of the holidays specified in the then Act, the award or industrial agreement would be varied of the Commission's own motion to include an additional week of annual leave.  The Nurses' Award - Public Hospitals Boards - State ("the Nurses' Award") was subsequently varied in November 1963 in line with the General Ruling.
  1. [17]
    A General Ruling in 1973 increased the award rate for working on the 11 public holidays prescribed in the legislation from double time to double time and a half.  However, the rate payable to public hospital nurses working on the eight public holidays was only increased, on 6 August 1973, from single time to time and a half - thus maintaining a difference of single time between the award rate and the generally applicable rate.
  1. [18]
    A further General Ruling in November 1973 increased the standard annual leave entitlement by one week to five weeks for shift workers and four weeks in other cases.  The General Ruling also included a provision that:

" … in any case where an award or industrial agreement … provides for an additional period of annual holiday in lieu of extra payment for work done on any of the holidays specified in the Act [the 1961 IC&A Act], such award or industrial agreement shall be varied to provide that such additional period of annual holiday shall be added to the five weeks' or four weeks' annual holiday as the case may be …".

  1. [19]
    Although the Nurses' Award was varied from 3 December 1973 to simply increase the annual leave entitlement of (non-shift work) public hospital nurses to a minimum of five weeks per annum, the Award was subsequently varied on 11 August 1975 (but operative from 3 December 1973) to provide that while the general entitlement for non‑shift workers was five weeks leave on full pay each year, "one of such weeks [is] in lieu of extra payment for work done on the [eight public holidays]."  The variation was not opposed by the predecessor to QNMU.
  1. [20]
    In April 1983 the Industrial Conciliation and Arbitration Act 1961-1982 (at s 14) was amended to increase the statutory minimum payment for work on public holidays to double time and a half, to reflect the General Ruling of the Commission made in 1973.
  1. [21]
    The enactment of the 1990 IR Act saw several changes to the public holiday and annual leave provisions in the new legislation.  Firstly, the public holiday provision was amended to provide (at s 11.3(1)):

"Except if an industrial organization, or association, of employers, or an employer, and an industrial organization of employees otherwise agree in respect of a particular award or industrial agreement, or the Industrial Commission otherwise determines, every award or industrial agreement is taken to make provision to the effect of each of the subsections of this section" (other than Labour Day).

In relation to work on public holidays, the relevant subsections provided that they were to be paid for at the rate of double time and a half.  In addition, the wording at s 11.3(7) was amended as recorded at paragraph [11] above.

  1. [22]
    Secondly, the new Act moved away from prescribing employees' entitlements to annual leave, instead stating (at s 11.15(2)) that every employee bound by an award or industrial agreement was to be entitled to annual leave on full pay "for a period determined by the Industrial Commission."  Finally, while the Act continued to provide (at s 11.15(2)) that "annual leave is exclusive of any public holiday that occurs during the period of leave" such provision was subject to the caveat (at s 11.15(1)):

"Except as is otherwise determined by the Industrial Commission, every award or industrial agreement must make provision to the effect of the provisions of this section."

  1. [23]
    The 1999 IR Act saw the annual leave provisions revert to their pre-1990 IR Act format, where the quantum of annual leave was prescribed as "at least" five weeks for shift workers and "at least" four weeks for all other employees.  The "caveat" mentioned immediately above was removed such that there was no qualification to the wording (at a new s 11(3)) that "annual leave is exclusive of a public holiday that falls during the leave."
  1. [24]
    The provision concerning the Commission's ability to confer additional annual leave "in lieu of an entitlement to extra payment for work performed" on public holidays was altered to read:

"The Commission may confer on an employee an entitlement to extra annual leave on full pay, instead of extra pay, for work on a public holiday."

  1. [25]
    In November 2001 legislation was introduced into the Queensland Parliament to include a new s 11(4), the subject of the matter before us, which reads:

"However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is exclusive of the particular public holiday."

This legislation, effective 3 December 2001, operated retrospectively from 1 July 1999 - the commencement date of the initial provisions of the 1999 IR Act.  As noted in the AFM, at paragraph 2, this same provision now appears at s 31(3) of the 2016 IR Act.

  1. [26]
    The 2016 IR Act also saw several variations to the public holiday provisions contained in the 1999 IR Act.  Firstly, the specific provision at s 15(7) (see paragraph [12] above) was removed.  Secondly, the provisions concerning minimum rates of pay to be paid to employees for work performed on any public holiday were removed, with the rate of pay to be set via awards and certified agreements.  Thirdly, the new Act provided an employee with a qualified right to be absent from the employee's employment on a public holiday without loss of pay if the employee would ordinarily have been required to work on the public holiday or part of such day.

The relevant award provisions

  1. [27]
    To assist in understanding the submissions of the parties, as well as this decision, the relevant provisions from the 2015 Award in relation to both Annual Leave and Public Holidays are attached as Appendix 1.

Submissions on behalf of QNMU

  1. [28]
    Because QNMU's written and oral submissions were prepared and delivered by experienced counsel it is not our intention to canvass them at any great length.  Rather, and at the risk of doing some injustice to Mr Dowling's submissions taken as a whole, we shall confine ourselves to referring to what we believe to be the most relevant and salient aspects of his submissions.  In doing so, we make it clear, however, that we have fully considered all of Mr Dowling's submissions albeit that we might not mention particular aspects of them, below.

Principles of interpretation

  1. [29]
    In addition to referring us to relevant extracts from Mills v Meeking,[6] Project Blue Sky Inc v Australian Broadcasting Authority,[7] Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd[8] and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union,[9] Mr Dowling submitted that the following principles are applicable in the interpretation of awards:

"(a) An industrial instrument must be given its plain and ordinary meaning and construed in context having regard to the subject matter and text of the instrument as a whole.[10]

  1. (b)
    The exercise of construction of provisions in context requires considering:  the text of the provision itself; the other parts of the clause in which it is contained; the text and operation of the award both as a whole and by reference to other particular provisions made by it; and the legislative background against which the award was made and in which it is to operate.[11]
  1. (c)
    "The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind:  they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon."[12]
  1. (d)
    "[M]eanings which avoid inconvenience or injustice may reasonably be strained for … [E]xpressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand."[13]
  1. [30]
    In addition, where provisions are beneficial or remedial they should be given a "fair, large and liberal" interpretation rather than one which is "literal or technical".[14]

Public holidays

  1. [31]
    Focussing on the provisions of the 2015 Award (which only commenced operation on 5 October 2016 by virtue of the provisions of s 824 of the 1999 IR Act) Mr Dowling submitted that all public hospital nurses were entitled to be paid for the eight public holidays listed at clause 23(c) because of the provisions in the right hand column of clause 23(b) which specify that public hospital nurses and midwives shall be paid "a full day's wage at the ordinary rate (100%) where the employee would ordinarily be required to work on that day."
  1. [32]
    While the 2011 and 2012 Awards are silent on payment for public holidays not worked, other than Labour Day, the relevant employees are, nonetheless, entitled to full pay for all public holidays not worked because of the operation of s 15(1) of the 1999 IR Act.
  1. [33]
    In summary, in Mr Dowling's submission, the position of employees who do not perform work on any of the eight public holidays is:
  1. (a)
    For the period of the 2011 Award from 16 March 2011 to 20 August 2012, the employees are entitled to be paid for a public holiday not worked because of the operation of s 15(1) of the 1999 IR Act.
  2. (b)
    For the 2012 Award from 21 August 2012 to 4 October 2016 (after which the 2015 Award commenced operation), the employees are entitled to be paid for a public holiday not worked because of the operation of s 15(1) of the 1999 IR Act.
  3. (c)
    For the 2015 Award from 5 October 2016 to 28 February 2017 (after which the 2016 IR Act commenced operation), the employees are entitled to be paid by reason of clause 23(b) and the fourth column of the table which provides that employees shall be paid a full day's wage at the ordinary rate (100%) where the employee would ordinarily be required to work on that day.  This accords with s 15(1) of the 1999 IR Act.
  4. (d)
    From 1 March 2017 when the 2016 IR Act commenced, the employees are entitled to be paid for a public holiday not worked because of clause 23(b) of the 2015 Award, which accords with s 117(2) of the 2016 IR Act.

Annual leave

  1. [34]
    Referring, again, to the 2015 Award, Mr Dowling submitted that clause 19 commenced by providing the statutory entitlement to annual leave, by reference to the QES provisions, before indicating, in the second column of clause 19.1, that annual leave for (non-shift work) public hospital employees was to be 190 hours/five weeks which "includes 38 hours in lieu of extra payment for work done on the public holidays listed at clause 23(c)" - being the eight public holidays.
  1. [35]
    He also noted that the wording in the corresponding provisions in the 2011 and 2012 Awards is: 

"All employees (other than casual employees) in public hospitals are entitled to 190 hours' leave on full pay in each year, 38 hours of such being in lieu of extra payment for work done on public holidays in clause 12.7.1" (i.e., the eight public holidays).

Public holidays and annual leave

  1. [36]
    Mr Dowling submitted that from the time annual leave provisions were first introduced into industrial legislation in 1946, successive legislation has addressed the potential overlap of a public holiday occurring during a period of annual leave and has confirmed the primacy of the annual leave entitlement - with annual leave to be exclusive of any public holiday occurring during the period of leave.
  1. [37]
    The provision first included in the 1932 IC&A Act (at s 10(2)), and which continued until the 1990 IR Act, read:

"Nothing in this section shall prevent the court from granting the equivalent of annual of annual leave on full pay in lieu of extra payment for work done on the aforesaid holidays." (QNMU emphasis)

Mr Dowling said this provision allowed for an arrangement that extra payments for working a public holiday could be traded off against an equivalent by way of time on annual leave.  In his submission, it was clearly directed to the rate of payment for work done and the words were important because they appeared in a variation to the 1952 Nurses Award in November 1975, operative from 3 December 1973 (see paragraph [19] above).

  1. [38]
    Although the words in the Act changed in 1990 to become "… an entitlement to additional annual leave on full pay, in lieu of an entitlement to extra payment for work performed" the changes, in Mr Dowling's submission, appeared to be about drafting preferences.  He said, "[t]he provision conveys the same effect as its predecessor."
  1. [39]
    Similarly, he said, the changes to the wording in the 1990 IR Act (see paragraph [11] above) did not alter the effect of the relevant provisions.  It "retained a focus on extra payment for work as the subject matter of the trade-off." (QNMU emphasis)

The meaning of s 31(3) of the 2016 IR Act (as well as s 11(4) of the 1999 IR Act)

  1. [40]
    Relevantly, s 31 of the 2016 IR Act provides:

"Entitlement

  1. (1)
    For each completed year of employment with an employer, an employee is entitled to -
  1. (a)
    if the employee is not a shift worker - at least 4 weeks annual leave; or
  1. (b)
    if the employee is a shift worker - at least 5 weeks annual leave.
  1. (2)
    Annual leave is exclusive of a public holiday that falls during the leave.
  1. (3)
    However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday.

. . .".

  1. [41]
    Mr Dowling said that both the 1999 IR Act and the 2016 IR Act provided an entitlement to at least four weeks' annual leave (or at least five weeks for a shift worker) for each completed year of employment.  He continued:

"The heading 'Entitlement' emphasises the significance of that which the section confers.  The legislature has chosen to use mandatory language an employee is entitled to.  The exclusion of public holidays reinforces the importance of the entitlement and the concern to protect the erosion of annual leave …  The words of the entitlement are clear, on their own and in context, and there is no reason to depart from the clear and ordinary meaning of the words." (QNMU emphasis)

  1. [42]
    Further, "[t]he entitlement to annual leave as exclusive of public holidays is subject to one narrow exception.  The exception requires compensation for a specifically described event:  working on a particular public holiday.  The award description of 38 hours being in lieu of extra payment for work done on public holidays is a different event and one which does not fall within the exception."
  1. [43]
    In arguing that s 31(3) did not apply to nurses and midwives covered by the 2015 Award (nor s 11(4) of the 2011 and 2012 Awards) Mr Dowling said:

"79. In its immediate statutory context, subsection (3) can only sensibly be read in the context of and in conjunction with subsection (2). The business of subsection (2) is a public holiday falling during a period of annual leave. The exception operates only in that situation, as is made clear by the conjunctive adverb 'however' linking the subsections.

  1. The first element is that the employee is entitled to additional annual leave. One can accept for present purposes that 38 hours leave is additional or extra because those are the words in the Award. From 1975 the Award has made clear that the additional 38 hours is in lieu of extra payment for work done on public holidays.
  1. The second element is that the additional annual leave is compensation for working on a particular public holiday. This element can be broken up. The meaning of the text 'working on a particular public holiday' refers to the fact of being present at the workplace and carrying out work on a day that is a public holiday. It says nothing about payment for that work.
  1. Further, the premise of subsection (3) is that the employee does not work on the particular public holiday because it falls during a period of leave. The subsection can only sensibly be understood on the basis that compensation has been made already on the assumption that work will be carried out on that day but that assumption has not proved true because the employee is on annual leave.
  1. The compensation paid is for the reason of working but the work is not carried out. There is no other reason for the payment. It is not compensation for not working on a public holiday. It is not compensation related to the rate of pay on the public holiday.
  1. The third element is described in the expression 'particular public holiday'. To make sense as a scheme to deal with the potential of double dipping, subsection (3) relates the compensation to a particular public holiday. This requires identification of the public holiday for which the extra annual leave day is given. On a sensible, plain reading construction of the provision, it is dealing with the circumstance where one day is worked on a public holiday in return for an additional whole day being given for annual leave.
  1. All words in the provision must be given meaning and effect.[15] The use of the word 'particular' describes a quid pro quo arrangement. …".
  1. [44]
    After referring us to the Second Reading Speech and Explanatory Notes for the 2001 Amendment to the 1999 IR Act, discussed at paragraph [25] above, Mr Dowling said the amendment was directed at correcting a potential (but not identified in the extrinsic material) anomaly arising from annual leave being exclusive of public holidays as well as to prevent potential "double dipping".  In addition, Mr Dowling said that while the words in s 15(7) of the 1999 IR Act had existed since 1932, there was no attempt to pick up those particular words or to direct the new exception of payments made in lieu of extra payments on public holidays - "quite the contrary … a very different set of words is used aimed at a different problem."
  1. [45]
    Mr Dowling also said the historical intent and purpose of s 15(7) of the 1999 IR Act was to confer jurisdiction on the Commission to adjust rates of pay on public holidays, including by allowing for additional annual leave.  That adjustment of rates is consistent with the position of public hospital nurses who received additional leave in lieu of extra payment for work done on public holidays. (QNMU emphasis).  "The situation dealt with in the Award clause is entirely different to that dealt with by s 31(3).  The Award clause is describing a period of annual leave that is in lieu of extra payment and operates on the rates paid for working on public holidays."
  1. [46]
    Further, Mr Dowling submitted:

"[t]he Award clause means that employees are 'buying' extra leave by forfeiting entitlements to higher rates of pay on public holidays.  They are not being compensated for working on the public holiday.  The compensation for work happens through the payment of ordinary pay plus the reduced penalty rate.  Part of the penalty rate is then dedicated to obtaining additional annual leave."

  1. [47]
    Returning to the wording in s 31(3) of the 2016 IR Act, Mr Dowling said the inapplicability of s 31(3) is reinforced when an attempt is made to assess the "compensation" in that the payments foregone under the Award clause do not correlate with the eight public holidays.  Under the 1999 IR Act, "employees lose eight days' pay for working every public holiday, but only gain five days of annual leave.  The award clause cannot be construed in a way that the compensation can be matched to working on a particular public holiday." (QNMU emphasis)

Submissions on behalf of DOH

  1. [48]
    As was the case with QNMU, DOH's submissions were prepared and delivered by experienced counsel.  As such, we have again decided to summarise those submissions rather than to record them in slavish detail.  In doing so, we again indicate that we have considered all of Mr Murdoch's submissions - not just those we have referenced.
  1. [49]
    In Mr Murdoch's submission (with which Mr Dowling agreed), ss 31(2) and (3) of the 2016 IR Act need to be read together, with the word "However" an indication that s 31(3) is a qualification to s 31(2).
  1. [50]
    Importantly, Mr Murdoch said, s 31(3) is dealing with a situation in which an employee is entitled to additional annual leave, which sets them immediately apart from employees in receipt of the base entitlement of four weeks, or five weeks for shift workers, recorded at s 31(1).  In the present case, nurses and midwives in public hospitals are clearly entitled to an additional week's annual leave (of 38 hours) above the minimum entitlement, with that entitlement related to the eight public holidays recorded at clause 23(c) of the 2015 Award.
  1. [51]
    In addressing the question of whether the additional annual leave discussed immediately above is "compensation for working on a particular public holiday", Mr Murdoch said that while s 31(3) uses the singular expression "a particular public holiday", this is to be read as encompassing the plural, i.e., "particular public holidays", by reason of s 32C of the Acts Interpretation Act 1954 (Qld) (the AI Act 1954) whereby words in the singular include the plural.
  1. [52]
    Arguing that the additional annual leave provided to public hospital nurses and midwives is compensation for working on the eight public holidays, Mr Murdoch said his submission is correct for a number of reasons, including:
  • clause 23(a) of the 2015 Award expressly allows the employer to have employees "perform work on public holidays as part of ordinary rostered hours";
  • paragraph 12(a)(i) of the AFM records that public hospital nurses and midwives are liable to be assigned work on public holidays irrespective of whether their usual unit opens on the public holiday in question; and
  • the 2015 Award expressly characterises the purpose of the additional leave as being "in lieu of extra payment for work done on the public holidays listed in clause 23(c)" - i.e., those eight public holidays which attracted a lower penalty rate of time and a half for work performed on those days.
  1. [53]
    Relevantly, in Mr Murdoch's submission, the case for DOH was supported by the way in which the 2015 Award differentiates between the annual leave and public holiday entitlements of public hospital nurses and midwives and, for example, nurses in Eventide Homes (nursing grade 1 to 4) and all psychiatric hospitals.  While the annual leave entitlement for employees in public hospitals is five weeks, and six weeks for shift workers, it is four weeks and five weeks for employees in Eventide Homes (nursing grade 1 to 4) and psychiatric hospitals.  Further, it is significant that footnote 3 in clause 23(b), which deals with the entitlements of employees not working on a public holiday, provides that for employees in Eventide Homes (nursing grade 1 to 4) and psychiatric hospitals, "[a]ny period of annual leave is exclusive of public holidays."
  1. [54]
    It is also significant that where clause 23(b) deals with entitlements for public hospital nurses in respect of Labour Day, Show Day, Easter Saturday and Easter Sunday, footnote 1 reads:

"Where the public holiday occurs during a period of annual leave an extra day must be added to the employee's annual leave except where the public holiday falls on a Saturday or Sunday with respect to a Monday to Friday employee."

  1. [55]
    In Mr Murdoch's submission:

"The omission of any equivalent note in relation to the (right hand) column in clause 23(b) of the 2015 Award for all other public holidays (this means the eight public holidays) is a manifest intent of the Award that the requirement that an extra day be added to an employee's annual leave where a public holiday occurs during the employee's annual leave is confined to Show Day, Easter Saturday, Easter Sunday and Labour Day."

Footnote 2 is similarly restricted in its application to the same four public holidays.

  1. [56]
    Returning to the wording of s 31(3) of the 2016 IR Act, Mr Murdoch said that the word "compensation" is not defined in the Act but that it appears, by reference to other uses of that word (e.g. ss 121 and 124), to have replaced the time-honoured expression "pay in lieu".  In his submission, the Full Bench should not draw anything from the fact that s 31(3) uses the expression "compensation".  It may well have said "in lieu".  Relevantly, the use of "in lieu of" in the right hand column of clause 19.1(a) of the 2015 Award "is an identification that there is an additional week's annual leave (for public hospital nurses and midwives) in compensation for work on (the eight) public holidays", which are paid at a lesser rate than the community standard.
  1. [57]
    Similarly, there was no relevant distinction between the words "working on a particular public holiday" in s 31(3) of the 2016 IR Act and "work done on the public holidays listed …" as it appears in clause 19.1(a) of the 2015 Award.
  1. [58]
    Further, the phrase "as compensation for working on a particular public holiday" in s 31(3) contemplates an arrangement under which compensation in the form of annual leave is provided in respect of work on some, but not all, public holidays.  The word "particular" connotes the ability to identify which public holiday or holidays relate to the additional annual leave.  In this case, the additional annual leave relates to work on any of the eight identified public holidays.
  1. [59]
    Mr Murdoch also said there was nothing in s 31(3) which states that the additional annual leave, referred to in the section, has to be the exclusive compensation, or the whole compensation.  There is nothing which says that the additional annual leave could not be combined with something else to provide compensation for public hospital nurses and midwives who work on particular public holidays - which is the situation here.  Under the 2015 Award (and the two predecessor Awards) nurses and midwives receive time and a half for working on any of the eight public holidays in addition to which they receive a "top up" in the form of an extra week (38 hours) of annual leave.  He submitted:

"So the provisions of the award … fit well into the provisions of s 31(3) of the Act, and they clearly trigger the relevant provision that the annual leave is inclusive of the (eight) public holidays."

  1. [60]
    Relevantly, he said, in terms of compensation, public hospital nurses and midwives are entitled to an extra week of annual leave regardless of whether they actually worked on any of the eight public holidays.  In any event, "to have the character of 'compensation', a benefit does not need to have an exact or equivalent monetary value."
  1. [61]
    Mr Murdoch also noted, in terms of the factual matrix of this case, that public hospital nurses and midwives are required to work in public hospitals in order to ensure that appropriate levels of service are maintained in public hospitals.  Indeed, clause 23(a) of the 2015 Award records that nurses and midwives may be required to work on a public holiday as part of their ordinary rostered hours.  Further, as recorded at paragraph 12(a)(i) of the AFM, a nurse or midwife in a unit which does not operate on a public holiday may be redeployed to another part of the hospital which is operational on the public holiday.
  1. [62]
    He said:

"To free herself/himself of the exposure to being redeployed to a unit which opens on a public holiday, public hospital nurses and midwives have, in many instances, taken themselves out of the availability for redeployment by taking annual leave (or some other form of leave, such as TOIL) on the public holiday (refer to paragraph 12(a)(i) of the AFM) … As demonstrated by the examples in the case studies and the payslips in the AFM, public hospital nurses and midwives use their annual leave entitlements to work around* the requirement that they be available to work on public holidays by taking annual leave on the public holiday."  (*Note:  Mr Murdoch clarified that his use of this expression was not intended to imply that nurses and midwives had acted improperly or inappropriately.  He had merely intended to convey that they had identified that it was possible for them to apply for TOIL if they did not wish to work on a particular public holiday - which was a proper and legitimate course of action for them to take.)

  1. [63]
    In a similar way, Mr Murdoch said, public hospital nurses and midwives may well avail themselves of previously accrued TOIL to "create an immunity from the normal provision under which (they) may be required to work on the public holiday or be seconded to another part of the hospital to work … If they apply for TOIL, they would not be entitled to be paid for the public holiday, in accordance with s 117(1) of the 2016 IR Act, because they are not ordinarily required to work on such day."  In Mr Murdoch's submission:

"TOIL is earned as a consequence of working outside regularly rostered hours to allow such employees to not work at times which they would ordinarily be expected to work (which included the eight public holidays) and continue to be paid as if they were working."

  1. [64]
    In response to Mr Dowling's submission at paragraph [46] above to the effect that public hospital nurses and midwives were "buying" extra annual leave by forfeiting entitlements to higher rates of pay on public holidays, Mr Murdoch said the submission was an inaccurate characterisation of the Award provisions concerning the extra week's annual leave:

"This is because the outcome achieved by the Award provision is that, while public hospital nurses and midwives receive lesser monetary compensation than other workers, if they work on one of the eight public holidays, the Award makes up for the short fall with an extra week's annual leave … the extra week's annual leave is manifestly compensation for work which a public hospital nurse or midwife performs or may be required to perform on one or more of the eight public holidays."

  1. [65]
    Further:

"When the true compensatory nature of the additional week's annual leave is recognised, the provision for such leave for those particular eight public holidays fits precisely into the class of entitlement which triggers the exception in s 31(3) of the Act."

QNMU reply submissions

  1. [66]
    Without going to Mr Dowling's reply submissions in detail (we have considered all of them) we record that the following points appeared be the most salient:
  • DOH's reliance on note 3 in clause 23(b) of the 2015 Award is misplaced.  The provision simply continues a provision included in earlier awards (including the 2011 and 2012 Awards);
  • similarly, note 2 in the same clause is designed to protect the rostered days off of public hospital nurses and midwives and should not be used to draw an inference that other employees on other days are not entitled to annual leave exclusive of public holidays;
  • DOH's submission ignores the words "in lieu of extra payment" as they appear in the right hand column of clause 19.1(a) of the 2015 Award (and in the 2011 and 2012 Awards);
  • DOH's submission also ignores the long-standing use of the words "in lieu of extra payment" (or similar) which appeared in legislation from 1932 until they were removed from the 2016 IR Act;
  • reading the words with their plain and ordinary meaning, the additional week's annual leave is provided to nurses and midwives in place of, or instead of, the extra (or higher) penalty payments made to others for work performed on public holidays;
  • the draftsperson of the exception at s 11(4) of the 1999 IR Act, which is now at s 31(3) of the 2016 IR Act, "made a deliberate choice" not to reference or use the longstanding expression "in lieu of extra payment".  "Their deliberate choice not to use those words, or reference those words, and to frame the exception differently should be understood, consistent with principle, as a deliberate choice to not direct the exception at that situation.";
  • "the exception in s 31(3) refers to additional compensation for working on a particular public holiday.  The compensation is directed at additional leave provided to employees who work on a public holiday.  The interpretation contended for by (DOH) involves additional leave … regardless of whether the employee works on the public holidays.  That is a further indicator, based on the deliberate words of s 31(3), supporting a conclusion that it was not directed at the additional leave provided for by the 2015 Award and its predecessors.";
  • s 11(4) of the 1999 IR Act and s 31(3) of the 2016 IR Act are not an emanation (or an elision) of the legislation provisions (referred to above) which went back to 1932.  One provision provided the tribunal with power to award additional leave in lieu of extra payment for work done on public holidays.  The other, first introduced in 2001, provides for an exception from the entitlement to annual leave being exclusive of public holidays;
  • there is nothing in s 31(3) to identify that the "compensation" is in lieu of penalty rates or in lieu of extra payment "when the concept was well and truly, and clearly, established up until that point."; and
  • caution needs to be exercised in saying, based on s 32C of the AI Act 1954, singular also means plural because the Act says "unless the context otherwise provides".  Here, the draftsperson has deliberately said "a particular public holiday".

Conclusion

  1. [67]
    After considering the parties' submissions in relation to the issues we are required to decide (see paragraph [5] above), we have come to the view that not only are Mr Murdoch's submissions more persuasive than those of QNMU, they are compelling.

Section 31 of the 2016 IR Act (and s 11(4) of the 1999 IR Act)

  1. [68]
    Both parties are in agreement that:
  1. (1)
    the conjunctive adverb "However" at the start of s 31(3) of the 2016 IR Act is a qualification to the provision at s 31(2) which provides:  "Annual leave is exclusive of a public holiday that falls during the leave"; and
  1. (2)
    the question to be answered by the Full Bench is whether the additional annual leave for public hospital nurses and midwives at clause 19.1(a) of the 2015 Nurses Award (see Appendix 1) is "compensation for working on a particular public holiday" as provided in s 31(3).
  1. [69]
    In determining to accept Mr Murdoch's submissions, and decide the question at (2) in paragraph [68] in the affirmative, we have had regard to the following matters:
  • while the extensive history, referred to by Mr Dowling and summarised above, provides some context in relation to the matter, our task is to interpret the disputed words in s 31(3) and to give them meaning in terms of the relevant legislation, awards, and factual matrix - as recorded in the AFM.  In doing so, it is not necessary to interpret any of the Award provisions - their meaning is clear;
  • on its face, the purpose of s 31(3) is to provide a single exception to the provision at s 31(2);
  • the words and purpose being clear, logical and unambiguous, there is no reason to look beyond the words themselves, such as extrinsic material, to construe their meaning;
  • the word "Entitlement" in the heading of s 31 needs to be read, and interpreted, in light of the clear exception recorded at s 31(3) as well as the wording at s 21(1) which specifically contemplates that the Queensland Employment Standards contained in Chapter 2, Part 3 of the 2016 IR Act - which Chapter includes s 31 - can be displaced under the Chapter;
  • as noted by Mr Dowling at paragraph [43] above, s 31(3) contains several elements which must all be satisfied if the section is to operate as an exception to the provision at s 31(2).  These are:
  • the employee must be entitled to additional annual leave; and
  • the additional annual leave must be "compensation for working on a particular public holiday";
  • it is not to the point that nurses and midwives receive an additional week's annual leave irrespective of the fact they might not actually be required to work on any public holiday.  Each of the 2011, 2012 and 2015 Awards relevantly provide that the additional annual leave they are entitled to is part of the compensation they receive "for work done" on eight particular public holidays;
  • the term "compensation" in s 31(3) is not defined.  Additional annual leave which forms part of the compensation provided to an employee for working on a particular public holiday, or holidays, is still "compensation" within the meaning of the section;
  • by virtue of the provisions of s 32C of the AI Act 1954 it is permissible to read the expression "on a particular holiday", as it appears in s 31(3), to also read "on particular holidays" or "on a particular holiday or holidays";
  • the expressions "for working on" (in s 31(3)) and "for work done on" (in clause 19.1(a)(i)) are synonymous, in that in order to have "worked on" a day one must have "done" work that day; and
  • the word "particular" in s 31(3) requires identification of which public holiday, or holidays, the additional annual leave relates to.  In the present case, the "particular" public holiday, or holidays, relate to any one, or more, of the eight public holidays recorded at clause 23(c) of the 2015 Award.
  1. [70]
    While it is not decisive, in that it is the words in s 31(3) we are required to interpret, it is nonetheless telling that the notes in clause 23(b) of the 2015 Award only provide that annual leave for nurses and midwives in public hospitals is exclusive of Labour Day, Show Day, Easter Saturday and Easter Sunday and that special provisions apply if an employee's RDO happens to fall on one of those four days (except where the public holiday falls on a Saturday or Sunday in the case of Monday to Friday employees).  The Award is silent on the matter of the treatment of annual leave on any of the other eight public holidays.
  1. [71]
    The 2011 and 2012 Awards only correspond with the above provisions in the 2015 Award in relation to Labour Day by ensuring all employees are entitled to a full day's wage irrespective of the fact that no work may be performed on that day.  The Awards are silent on the treatment of public holidays occurring during a period of annual leave.

Use of annual leave and TOIL entitlements for public holiday payment purposes

  1. [72]
    As indicated earlier, we have also accepted Mr Murdoch's submissions concerning DOH's treatment of annual leave and TOIL entitlements for holiday payment purposes.
  1. [73]
    In so deciding we have had regard to the following matters, much of which comes from paragraph 12 of the AFM:
  • nurses and midwives employed in public hospitals may be required to work their ordinary rostered hours on public holidays in order to ensure appropriate standards of care are provided to the community generally;
  • nurses and midwives in a unit in a public hospital which is not scheduled to be open on a public holiday may be redeployed to another unit which is scheduled to be open;
  • a nurse or midwife who does not wish to work on a particular public holiday, or to "run the risk" they may be redeployed, may make application to be absent on annual leave, TOIL, or some other form of leave if they wish to be paid for the particular public holiday;
  • employees from units which are not scheduled to be open on a public holiday and who have not applied for a paid leave day (e.g. annual leave or TOIL) and who are not redeployed to another unit are "stood down" at any time prior to the start of work and paid for the public holiday (at ordinary time);
  • all indications in the AFM are that any decision to request to be allowed not to work, or not to be redeployed (or run the risk of being redeployed) to work elsewhere on a particular public holiday are decisions taken by individual nurses and midwives;
  • any nurse or midwife who does not make a request of the type discussed immediately above may be required to work on the particular public holiday and, if they are, they will be paid at the rate of time and a half; and
  • a nurse or midwife who is not required to work on the particular public holiday is stood down and paid for the public holiday at their ordinary rate of pay.
  1. [74]
    Given the above facts, any nurse or midwife who requests permission not to be required to work on a particular public holiday, or not to be deployed (or run the risk of being redeployed) to another unit is making themselves unavailable for work on the public holiday.
  1. [75]
    Having made themselves unavailable to work, such nurse or midwife could never satisfy the second limb of s 117 of the 2016 IR Act, viz., that they "would ordinarily have been required to work on the day or part of the day".  To suggest otherwise is to strain credulity.
  1. [76]
    Nothing in the AFM, the relevant awards, or the provisions of either the 1999 or 2016 IR Acts, discloses anything untoward or otherwise inappropriate about the manner in which DOH has been dealing with the issue of nurses or midwives applying for annual leave, TOIL (or other paid leave) in order to receive payment for public holidays.
  1. [77]
    For the foregoing reasons we refuse QNMU's application for Declaratory relief.
  1. [78]
    We determine and order accordingly.

Appendix 1

Nurses and Midwives (Queensland Health) Award - State 2015

19. Annual leave

Annual leave is provided for in Division 5 of the QES. Clauses 19.1 to 19.9 supplement the QES.

19.1 Period of annual leave

  1. (a)
    All full-time employees covered by this Award are entitled to the following annual leave on full pay after 12 months' continuous service:

Relevant employees

Period of annual leave

  1. (i)
    Public Hospital (excluding dental hospital and dental clinic)

190 hours/5 weeks

(includes 38 hours in lieu of extra payment for work done on the public holidays listed at clause 23(c))

  1. (ii)
    Biala employees ordinarily required to work on a public holiday

190 hours/5 weeks

(includes 38 hours in lieu of extra payment for work done on the public holidays listed at clause 23(c))

  1. (iii)
    Employees ordinarily required to work on public holidays under extended hours service arrangements, restricted to:
  • Public Service
  • Eventide Homes (Nurse Grade 5 and above)
  • Correctional Health Services

190 hours/5 weeks

(includes 38 hours for work in extended hours service arrangements on public holidays)

  1. (iv)
    Eventide Homes (Nursing Grade 1 to Nurse Grade 4)

 

  1. (v)
    all Psychiatric Hospitals

 

  1. (vi)
    Dental hospital and dental clinic

 

  1. (vii)
    employees not ordinarily required to work on a public holiday, restricted to:
  • Biala
  • Public Service
  • Eventide Homes (Nurse Grade 5 and above)
  • Correctional Health Services

152 hours/4 weeks

 

19.2 Additional annual leave

  1. (a)
    In addition to the minimum amount of annual leave prescribed in clause 19.1, employees working in the workplaces/facilities in the table below are entitled to an additional 38 hours/1 week of annual leave:

Reason

Relevant employees

Eligibility requirement

 

  1. (i)
    Continuous shift worker
  • Public Hospital (including dental hospital and dental clinic)
  • Public Service
  • Eventide Homes (Nurse Grade 5 and above)
  • Correctional Health Services

Where a roster provides 3 shifts per day over a period of 7 days per week and an employee works all 3 shifts, allocated in rotation, and has worked at least 20 rostered night shifts each year.

  • Biala

Where a roster provides 3 shifts per day over a period of 7 days per week and an employee works all 3 shifts, allocated in rotation.

  • Employees on 12 hours shift arrangements
  • FIFO

Where a roster provides 2 x 12 hour shifts per day over a period of 7 days per week and an employee works shifts allocated in rotation.

  1. (ii)
    Locality ¹ ² ³
  • Public Service
  • Eventide Homes (Nurse Grade 5 and above)
  • Correctional Health Services

Where the employee's headquarters is in the Northern and Western Region.

  1. (iii)
    Continuous operation of facility
  • Eventide Homes (Nursing Grade 1 to Nurse Grade 4)
  • all Psychiatric Hospitals

Work in a facility which is in continuous operation and where a roster provides 3 shifts per day over a period of 7 days per week.

  1. (iv)
    Extended spread of hours
  • Nurse Grade 9

Nurse Grade 9

…

  1.  Public holidays

Public holidays are provided for in Division 10 of the QES. Clauses 23(a) to 23(d) supplement the QES provisions:

  1. (a)
    Subject to clause 23(d), an employee who performs work on a public holiday as part of ordinary rostered hours shall be paid as prescribed in the table below, for all hours worked, with a minimum payment as for 4 hours' work:

Relevant employees

Labour Day

 

Show Day

Easter Saturday

Easter Sunday

All other public holidays

  1. (i)
    Public Hospital (excluding dental hospital and dental clinic)
    1. (ii)
      Biala employees ordinarily required to work on public holidays
      1. (iii)
        employees ordinarily required to work on public holidays under extended hours service arrangements, restricted to:
      • Public Service
      • Eventide Homes (Nurse Grade 5 and above)
      • Correctional Health Services

      Full day's wage at 100% and

      one and one-half times (150%) the ordinary rate of pay

      Double and one-half times (250%) the ordinary rate of pay

      One and one-half times (150%) the ordinary rate of pay

      1. (iv)
        Dental hospital and dental clinic
        1. (v)
          employees not ordinarily required to work on a public holiday, restricted to:
        • Biala
        • Public Service
        • Eventide Homes (Nurse Grade 5 and above)
        • Correctional Health Services

        Full day's wage at 100% and

        one and one-half times (150%) the ordinary rate of pay

        Double and one-half times (250%) the ordinary rate of pay

        Double and one-half times (250%) the ordinary rate of pay

        1. (vi)
          Eventide Homes (Nursing Grade 1 to Nurse Grade 4)
          1. (vii)
            all Psychiatric Hospitals

           

          Full day's wage at 100% (up to a maximum of 7.6 hours) and

          one and one-half times (150%) the ordinary rate of pay

          Full day's wage at 100% (up to a maximum of 7.6 hours) and

          one and one-half times (150%) the ordinary rate of pay

          Full day's wage at 100% (up to a maximum of 7.6 hours) and

          one and one-half times (150%) the ordinary rate of pay

          1. (viii)
            Casual employees

          Clause 8.3(f)

          Clause 8.3(f)

          Clause 8.3(f)

            1. (b)
              Subject to clause 23(d), an employee who does not work on a public holiday shall be paid as prescribed in the table below:

            Relevant employees

            Labour Day

            Show Day

            Easter Saturday

            Easter Sunday

            All other public holidays

            1. (i)
              Public Hospital (excluding dental hospital and dental clinic)
              1. (ii)
                Biala

              A full day's wage at the ordinary rate (100%)1,2

              A full day's wage at the ordinary rate (100%) where the employee would ordinarily be required to work on that day or where the employee is on a rostered day off 1, 2

              A full day's wage at the ordinary rate (100%) where the employee would ordinarily be required to work on that day

              1. (iii)
                Dental hospital and dental clinic
                1. (iv)
                  Employees not ordinarily required to work on a public holiday restricted to:
                • Public Service
                • Eventide Homes (Nurse Grade 5 and above)
                • Correctional Health Services

                A full day's wage at the ordinary rate (100%)

                A full day's wage at the ordinary rate (100%) where the employee would ordinarily be required to work on that day

                A full day's wage at the ordinary rate (100%) where the employee would ordinarily be required to work on that day

                1. (v)
                  Eventide Homes (Nursing Grade 1 to Nurse Grade 4)
                  1. (vi)
                    all Psychiatric Hospitals

                  A full day's wage at the ordinary rate (100%)3

                  A full day's wage at the ordinary rate (100%)3

                  A full day's wage at the ordinary rate (100%)3

                  1. (vii)
                    Correctional Health Services employee engaged in continuous shift work or work on two shifts per day over seven days

                  A full day's wage at the ordinary rate (100%) 2

                  A full day's wage at the ordinary rate (100%)2

                  A full day's wage at the ordinary rate (100%)2

                  Notes:

                  1. Where the public holiday occurs during a period of annual leave an extra day must be added to the employee's annual leave except where the public holiday falls on Saturday or Sunday with respect to a Monday to Friday employee.
                  2. Where the public holiday falls on an employee's rostered day off the employee must be paid:
                  1. (i)
                    a full day's wage at the ordinary rate; or
                  2. (ii)
                    a day's holiday in lieu; or
                  3. (iii)
                    granted an additional day of annual leave

                  except where the public holiday falls on Saturday or Sunday with respect to a Monday to Friday employee.

                  1. Any period of annual leave is exclusive of public holidays.
                  1. (c)
                    For the purpose of clause 23, all other public holidays include:
                  • New Year's Day (1 January)
                  • 26 January
                  • Good Friday
                  • Easter Monday
                  • 25 April (ANZAC Day)
                  • the Birthday of the Sovereign
                  • Christmas Day (25 December)
                  • Boxing Day (26 December)
                  • any day appointed under the Holidays Act 1983 to be kept in place of any such holiday.
                  1. (d)
                    A Public Hospital Nurse Grade 10 and above employee receives an ordinary rate of pay inclusive of public holidays. Such employees will only be required to work on a public holiday in emergency situations and by mutual agreement.

                  Footnotes

                  [1] Note:  The "case studies" referred to above concern the treatment of certain public holidays for six nurses or midwives, two of whom are continuous shiftworkers and four of whom are Monday to Friday day workers, between April 2011 and April 2017.  The parties agree the six employees are typical of the nurses and midwives who work in public hospitals and that the way the public holidays recorded in their history has been treated is an accurate reflection of the way public holidays have been treated for the workforce generally.

                  [2] Public holidays that did not fall during an extended period of leave.

                  [3] Nurse Unit Manager.

                  [4] Extended leave period refers to a period of annual leave other than a "one-off" day.

                  [5] However, in some cases, employees were paid or reimbursed for the public holiday during a period of extended leave.

                  [6] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235.

                  [7] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69], [78].

                  [8] Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWSLR 393, [40]-[41].

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

                  [10] Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Gleeson CJ and McHugh J at [2], Gummow, Hayne and Heydon JJ at [30] and Kirby J at [93]-[97];  also K & S Lake City Freighters Pty Ltd v Gordon & Gotch (1985) 157 CLR 309, 315 (Mason J).

                  [11] Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, 253 (Gummow, Hayne and Heydon JJ).

                  [12] Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J).

                  [13] Ibid.

                  [14] See IW Applicant v The City of Perth (1997) 191 CLR 1, 11 (Brennan CJ and McHugh J).

                  [15] Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffith CJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71].

                  Close

                  Editorial Notes

                  • Published Case Name:

                    Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health)

                  • Shortened Case Name:

                    Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health)

                  • MNC:

                    [2018] QIRC 50

                  • Court:

                    QIRC

                  • Judge(s):

                    Bloomfield DP, Fisher IC, Black IC

                  • Date:

                    24 Apr 2018

                  Appeal Status

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

                  Cases Cited

                  Case NameFull CitationFrequency
                  Amcor Ltd v Construction (2005) 222 CLR 241
                  3 citations
                  Jump To
                  Cite 1 - (2005) 222 CLR 241
                  Cite 2 - (2005) 222 CLR 241
                  Cite 3 - (2005) 222 CLR 241
                  Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWSLR 393
                  2 citations
                  Jump To
                  Cite 1 - (2010) 78 NSWSLR 393
                  Cite 2 - (2010) 78 NSWSLR 393
                  City of Wanneroo v Australian Municipal (2006) 153 IR 426
                  2 citations
                  Jump To
                  Cite 1 - (2006) 153 IR 426
                  Cite 2 - (2006) 153 IR 426
                  IW v City of Perth (1997) 191 CLR 1
                  2 citations
                  Jump To
                  Cite 1 - (1997) 191 CLR 1
                  Cite 2 - (1997) 191 CLR 1
                  K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
                  2 citations
                  Jump To
                  Cite 1 - (1985) 157 CLR 309
                  Cite 2 - (1985) 157 CLR 309
                  Kucks v CSR Ltd (1996) 66 IR 182
                  2 citations
                  Jump To
                  Cite 1 - (1996) 66 IR 182
                  Cite 2 - (1996) 66 IR 182
                  Mills v Meeking (1990) 169 CLR 214
                  2 citations
                  Jump To
                  Cite 1 - (1990) 169 CLR 214
                  Cite 2 - (1990) 169 CLR 214
                  Mills v Meeking [1990] HCA 6
                  2 citations
                  Jump To
                  Cite 1 - [1990] HCA 6
                  Cite 2 - [1990] HCA 6
                  Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
                  3 citations
                  Jump To
                  Cite 1 - (1998) 194 C.L.R 355
                  Cite 2 - (1998) 194 C.L.R 355
                  Cite 3 - (1998) 194 C.L.R 355
                  The Commonwealth v Baume (1905) 2 CLR 405
                  2 citations
                  Jump To
                  Cite 1 - (1905) 2 CLR 405
                  Cite 2 - (1905) 2 CLR 405

                  Cases Citing

                  Case NameFull CitationFrequency
                  Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2019] ICQ 122 citations
                  Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) [2025] QIRC 2172 citations
                  1

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