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Berry v Babcock Mission Critical Services Australasia Pty Ltd[2023] QIRC 246

Berry v Babcock Mission Critical Services Australasia Pty Ltd[2023] QIRC 246

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Berry v Babcock Mission Critical Services Australasia Pty Ltd [2023] QIRC 246

PARTIES: 

Berry, Kevin Peter

(Applicant)

v

Babcock Mission Critical Services Australasia Pty Ltd

(Respondent)

CASE NO.:

B/2023/17

PROCEEDING:

Notice of Industrial Dispute

DELIVERED ON:

28 August 2023

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDER:

The order contained in paragraph [98] of these reasons.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – GENERAL EMPLOYMENT CONDITIONS –   general application made by Applicant regarding the interpretation of s 95(2)(a) of the Industrial Relations Act 2016, namely the meaning of '8.6667 weeks' when an employee is entitled to that amount of long service leave – agreed statement of facts –  application treated as an industrial dispute in accordance with s 262 of the Industrial Relations Act 2016 –  Applicant employed by the Respondent as a Pilot covered by the Babcock Mission Critical Services Australasia Helicopter Pilots Enterprise Agreement 2022,   being a single enterprise agreement approved by the Fair Work Commission pursuant to the Fair Work Act 2009 – principles of statutory construction – whether a week for the purposes of the entitlement to 8.6667 weeks of long service leave within the meaning of s 95(2)(a) of the Industrial Relations Act 2016 is equivalent to a calendar week, the actual number of rostered hours the Applicant worked each week under Babcock Mission Critical Services Australasia Helicopter Pilots Enterprise Agreement 2022 or the Applicant's ordinary working hours of 38 hours per week – meaning of 'ordinary time' in the context of long service leave provisions – on the construction of s 95(2)(a) of the Industrial Relations Act 2016, a 'week' for the purposes of the entitlement to 8.6667 weeks of long service leave is equivalent to the Applicant's ordinary working hours of 38 hours per week

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Fair Work Act 2009, s 13, s 14 s 26, s 27, s 62 and s 96

Industrial Relations Act 2016 s 7, s 8, s 9, s 12, s 13, s 94, s 95, s 97, s 98, s 261, s 262, s 539, sch 1 and sch 5

CASES:

Australasian Meat Industry Union of Employees, Queensland Branch v Thomas Bothwick & Sons (1968) 67 QGIG 59

Bluescope Steel (AIS) Pty Ltd and Another v Australian Workers’ Union [2019] FCAFC 84; (2019) 270 FCR 359

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

Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCAFC 177; (2007) 165 FCR 1

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; (2020) 271 CLR 495

Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167

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

R v A2 [2019] HCA 35; (2019) 269 CLR 507

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

Review of Entitlement to Long Service Leave [2000] QIRComm 83; (2000) 164 QGIG 236

State of Queensland v Together Queensland [2012] QCA 353; [2014] 1 Qd. R 457

Scott v Sun Alliance Australia Ltd [1993] HCA 46; (1993) 178 CLR 1

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2023] FCAFC 66

Reasons for Decision

Introduction

  1. [1]
    Mr Kevin Berry is employed as a Pilot by Babcock Mission Critical Services Australasia Pty Ltd ('Babcock'). Mr Berry's employment is regulated, in part, by the Babcock Mission Critical Services Australasia Helicopter Pilots Enterprise Agreement 2022 ('the enterprise agreement'). The enterprise agreement was approved by the Fair Work Commission on 31 January 2023 pursuant to the Fair Work Act 2009.
  1. [2]
    Clause 25 of the enterprise agreement deals with long service leave. Sub-clause 25.1 provides that long service leave will be granted and taken in accordance with the provisions of the appropriate State or Territory legislation applying to the employee at the time of applying for long service leave.[1]
  1. [3]
    Relevantly, in respect of Mr Berry, the appropriate legislation is the Industrial Relations Act 2016 ('the Act'). Chapter 2, pt 3, div 9 of the Act deals with long service leave which is part of the Queensland Employment Standards. Section 95 of the Act falls within that division. Section 95(2)(a) of the Act provides that an employee, to whom that section applies, '…is entitled to long service leave, on full pay, of – …if the employee has completed 10 years continuous service – 8.6667 weeks'.
  1. [4]
    By general application filed on 20 February 2023, Mr Berry seeks a definition of 'a week' for the purposes of s 95(2)(a) of the Act and the reference to '…8.6667 weeks'. This arises because, in practical terms, Mr Berry is in dispute with Babcock as to the amount of long service leave that Babcock records Mr Berry as having accrued.
  2. [5]
    As I understand Mr Berry's application and his submissions, he claims that he should have accrued long service leave on the basis that a week, within the meaning of s 95(2)(a) of the Act is 7 days. Specifically, Mr Berry contends that after 10 years continuous service, he has accrued, pursuant to s 95(2)(a) of the Act, 60.66 days of long service leave.
  1. [6]
    Babcock contends that Mr Berry should be accruing long service leave – due to the rostered hours per week he works and the number of hours he works in each day – on the basis that a week, within the meaning of s 95(2)(a) of the Act, is 3.5 days. Specifically. Babcock contends that after 10 years continuous service, Mr Berry has accrued, pursuant to s 95(2)(a) of the Act, 30.3335 days of long service leave.
  1. [7]
    I directed the parties to agree upon the question they wanted me to answer, which is:

In respect of the Queensland Industrial Relations Act 2016 entitlement for long service leave being 8.6667 weeks, how many work days is a pilot entitled to, as long service leave, when working under the Babcock Mission Critical Services Australasia Helicopter Pilots Enterprise Agreement 2022? 

  1. [8]
    I also directed that the parties file an agreed statement of facts and written submissions and that, unless otherwise ordered, I would determine this matter on the papers.
  1. [9]
    For the reasons which follow:
  • I will deal with Mr Berry's application as if it is the notification of a dispute with Babcock and, as a consequence, I will arbitrate the dispute and treat the question the parties want me to answer as the question for arbitration, but amending the question so that it only concerns Mr Berry; and
  • assuming Mr Berry has 10 years continuous service with Babcock, Mr Berry has accrued, pursuant to s 95(2)(a) of the Act, 329.3346 hours of long service leave.

Mr Berry's application and the agreed facts

  1. [10]
    In his application, Mr Berry, in respect of the decision sought, stated:

The Queensland Industrial Relations Act 2016 provides for 8.6667 weeks of long service leave after 10 years continuous service with an employer, however no definition of a week is provided in the Act. Given the lack of definition for a week, I would take it to mean 7 days as per the standard dictionary definition, this would equate to the long service leave entitlement being 60.6669 days. My company has applied a different definition to the term, and interpret a week to be 42 hours, which under my roster system (4 on 4 off) equates to 3.5 days leave, totalling 30.333 days leave.

As there are no provisions in the act, to break a week down into hours, for a full time employee, I consider this as an incorrect application of the Act. All of our other types of leave are dealt with in days.

Please provide a determination as to the correct definition of "a week", please provide references for this determination.

  1. [11]
    The agreed facts are:
  1. A Pilot employed by Babcock Mission Critical Services Australasia Pty Ltd is covered by the Babcock Mission Critical Services Australasia Helicopter Pilots Enterprise Agreement 2022 (the EA).
  1. Relevant clause in the EA applicable to the long service leave entitlement is:

  Clause 25:

  25.1 Long service leave will be granted and taken in accordance with the provisions               of the appropriate State or Territory legislation applying to the Employee at the time               of applying for long service leave.

  25.2 The Employer may, at the request of an Employee, grant the Employee long service leave on half pay for a period that does not exceed twice the period specified in the appropriate legislation, providing that this does not breach the relevant State or Territory long service leave legislation.

  1. Relevant clause in the EA applicable to hours of work is:

 Clause 22.1.4:

 Except where expressly provided elsewhere in this Agreement, the hours of work that may be rostered on work cycles for full-time Employees (including Employees in training) under this Agreement include: a. an average working week based on up to 42 rostered hours per week (including any duty, travel, training, or standby), which may be averaged according to a defined roster cycle. The 42 hours incorporates 38 ordinary hours plus 4 reasonable additional hours.

  1. Relevant clauses in the EA applicable to annual leave are:

Clause 24.4:

  Annual leave cannot be deducted if an Employee is rostered for unpaid or otherwise               accrued time off. For the avoidance of doubt, annual leave will be deducted on               Saturdays, Sundays, and public holidays when the Employee is rostered on duty on               those days and elects to take annual leave, but not at times when they would not               otherwise be working.

Clause 24.8.2:

Fixed base Employees may request leave for any rostered shift, however, are encouraged to take leave for a complete roster cycle (or cycles).

Clause 24.8.4:

Further to clause 24.3, leave shall be deducted at standardised rate for each shift taken as Annual Leave, based on the average of ordinary hours worked by the Employee in a normal rostered shift:

Total Ordinary Hours Rostered on Duty in 1 Roster Cycle = N

Number of Shifts Rostered on Duty in 1 Roster Cycle

For example:

a. an Employee who works a roster pattern of two 10 hour shifts followed by two 14 hour shifts every 8 calendar days will be deducted 12 hours for every full shift taken off as annual leave, and

48 Ordinary Hours Rostered on Duty in 1 Roster Cycle = 12 Hours

4 Shifts Rostered on Duty in 1 Roster Cycle

b. A touring Employee who works a roster pattern of 14 x 12 hours shifts every 28 calendar days will be deducted 12 hours for every full shift taken off as annual leave.

168 Ordinary Hours Rostered on Duty in 1 Roster Cycle = 12 Hours

14 Shifts Rostered on Duty in 1 Roster Cycle

Clause 24.8.5:

In extenuating circumstances only, an Employee may request to utilise annual leave for parts of their shift. If approved, leave will be deducted on an hour-for-hour basis.

  1. [12]
    Although not an agreed fact, given the parties' submissions, I assume that Mr Berry has at least 10 years continuous service with Babcock.
  1. [13]
    Both parties are unrepresented.
  1. [14]
    It seems obvious that both parties appreciate that the resolution of the issue between them fundamentally involves the correct meaning of '…8.6667 weeks' in s 95(2)(a) of the Act.  Regrettably, the facts agreed between the parties and their submissions did not helpfully address that issue in that the parties were not focused upon the construction of s 95(2)(a) of the Act based on the principles of statutory construction.

My approach to Mr Berry's application

  1. [15]
    For all practical purposes, Mr Berry's application concerns an industrial dispute that he has with Babcock regarding the calculation of his accrued long service leave.  Mr Berry submits that Babcock has been incorrectly calculating his accrued long service leave. Babcock contends otherwise.
  1. [16]
    Sub-sections 261(1) and (2) of the Act provide that if an industrial dispute exists between an employer and an employee, and it remains unresolved after the parties have genuinely attempted to resolve the dispute, each party must immediately give written notice to the Industrial Registrar of the dispute.
  1. [17]
    Section 262 of the Act then sets out the action the Commission can take in relation to the industrial dispute.
  1. [18]
    Section 262(3) relevantly provides:
  1.  The commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute, by–
  1.  conciliation in the first instance; and
  1.  if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute–arbitration.
  1. [19]
    An industrial dispute is relevantly defined in sch 5 to the Act to mean '… a dispute … about an industrial matter'. Section 9(3) of the Act provides that a matter is an industrial matter if it relates to a matter mentioned in sch 1 to the Act. Item 2 in sch 1 to the Act relevantly refers to a person's entitlements under the Queensland Employment Standards.
  1. [20]
    Having regard to Mr Berry's application and the question posed for me, there is an industrial dispute between Mr Berry and Babcock. While there is no dispute that                       Mr Berry, assuming he has 10 years continuous service with Babcock, has an entitlement to 8.6667 weeks of long service leave under the Queensland Employment Standards, his dispute specifically concerns the correct calculation of that accrued long service leave.  
  1. [21]
    For these reasons, I will approach the matter as if Mr Berry has notified the Industrial Registrar, pursuant to s 261(1) of the Act, of an industrial dispute. Given the agreed question for resolution between the parties I will, pursuant to s 262(3)(b) of the Act, arbitrate the industrial dispute. That is, I will treat the question posed for me as the agreed question for arbitration to resolve the dispute between Mr Berry and Babcock.
  1. [22]
    Therefore, the question for arbitration will be:

In respect of the Queensland Industrial Relations Act 2016 entitlement for long service leave being 8.6667 weeks, how many work days is Mr Kevin Berry, a Pilot, entitled to as long service leave when working under the Babcock Mission Critical Services Australasia Helicopter Pilots Enterprise Agreement 2022? 

  1. [23]
    In taking this course, I note that a conciliation conference, held before                                    Deputy President Hartigan, on 21 March 2023, did not resolve the matter. To the extent necessary, I will, pursuant to s 539(e) of the Act, waive the irregularity of Mr Berry not notifying the Industrial Registrar of the dispute using the correct form.
  1. [24]
    The parties do not dispute that the Act applies to them in relation to Mr Berry's entitlement to long service leave and Babcock's liability to provide long service leave to Mr Berry.
  1. [25]
    Mr Berry is a national system employee within the meaning of s 13 of the Fair Work  Act 2009. Babcock is a national system employer within the meaning of s 14 of the Fair Work Act 2009. Despite this, the industrial dispute between them is a matter that can be resolved by this Commission.
  1. [26]
    Section 12 of the Act relevantly provides:

12  Who this Act applies to generally

 (1)  Generally speaking–

  1.  the Commonwealth Fair Work Act applies to many employers and employees in Queensland; and
  1.  this Act applies to employers and employees only to the extent the Commonwealth Fair Work Act does not apply to them.
  1. [27]
    Section 13 of the Act relevantly provides:

13  Who this Act applies to–particular provisions

  1.  The provisions of the Queensland Employment Standards about long service leave, jury service leave and emergency service leave may apply to employers and employees who are generally covered by the Commonwealth Fair Work Act.

Note–

See also–

•  the Commonwealth Fair Work Act, section 27(2)

•  the Queensland referral Act, section 3(1), definition excluded subject matter.

  1. [28]
    The combined effect of s 27(1)(c) and s 27(2)(g) of the Fair Work Act 2009 is that the express intention in s 26(1) of the Fair Work Act 2009 – that the Fair Work Act 2009 is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer –  does not apply so far as a law of a State or Territory deals with '… long service leave, except in relation to an employee who is entitled under Division 9 of Part 2-2 to long service leave'. As a consequence, the Act, in so far as it provides for the entitlement to long service leave, and the resolution of disputes about such long service leave, applies to national system employees and employers in Queensland.[2]
  2. [29]
    Further, despite Babcock being a national system employer and Mr Berry being a national system employee, in relation to long service leave, Babcock is an employer[3] and Mr Berry is an employee[4] for the purposes of the Act.
  1. [30]
    The Commission’s arbitration and conciliation powers are legislative and, or in the alternative, administrative.[5] The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken; and where its object is to ascertain what rights and obligations should exist, it is properly characterised as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.[6] Indeed, the arbitral function includes the determination of a dispute relating to past transactions, events and conduct.[7]
  1. [31]
    While the industrial dispute between Mr Berry and Babcock requires the construction of            s 95(2)(a) of the Act, the exercise of arbitral power can involve the construction of an Act, award or other legal instrument as a step in arriving at an arbitral determination.[8]

Mr Berry's submissions

  1. [32]
    Mr Berry, in summary, submits that:
  • the correct interpretation of a 'week' within the meaning of s 95(2)(a) of the Act, is 7 days, which would entitle him an accrual of 60.66 days of long service leave (after 10 years of continuous service), namely 7 multiplied by 8.6667 weeks; and
  • a day equals '… a shift of work, day or night as per our provisions for other types of leave as laid down in our EBA'.[9]  
  1. [33]
    In making this submission, Mr Berry submits that:
  • Babcock construe s 95(2) and s 98 of the Act to mean that only 8.6667 calendar weeks' pay should be paid whilst on long service leave whereas he interprets those provisions to mean '…"the employee should be paid their full normal wage for the period of leave taken for the 8.6667 weeks entitlement" and this will, for a shift worker, be determined by the number of work days the entitlement includes'; and
  • Babcock used to construe these provisions of the Act in the way that he suggests, meaning that he has accrued 60.66 days of long service leave, but Babcock now construes these provisions such that he has accrued 30.33 days of long service leave.[10]
  1. [34]
    Mr Berry then went on to support his submissions by reference to various shift patterns worked by employees covered by the enterprise agreement.[11]
  1. [35]
    By way of conclusion, Mr Berry submitted:

Summary

  1. 22.
    I believe the way Babcock are accruing LSL, and their aggregation of hours worked with personal time,  are manipulating  the intent of  8  weeks LSL  down to  4 weeks, against the intent of the Industrial Relations Act.  If the commissioner  would expect  any of the above employees to be absent for the full 60.66 work days implied by the Industrial Relations Act, then the same rational [sic] should apply to me.  In contrast a  Monday to Friday  office worker would accrue 43.33  work days long service leave under Babcock's calculation method.  How is this calculation method equitable?

Babcock's submissions

  1. [36]
    Babcock submits that on the application of the provisions of the enterprise agreement in conjunction with the Act, Mr Berry (after 10 years of continuous service) has an entitlement of 30.3335 days of long service leave, namely, 3.5 multiplied by 8.6667 weeks.
  1. [37]
    This is calculated on the basis that an average working week is 42 hours and a work day is 12 hours per day (giving 3.5 days long service leave accrued per week) by virtue of certain provisions of the enterprise agreement.
  1. [38]
    Babcock submits that:
  • a Pilot is engaged as either a fixed base or touring pilot and will work one of the two roster types, each of which equate to an average 12-hour work day:
  1. a.
    Fixed base: 4 days on / 4 day off (2 x 10 hour work days and 2 x 14 hour work nights); or
  2. b.
    Touring: 2 weeks on 2 weeks off (14 x 12 hour work days) [the roster is published as 15 days on and 13 days off, where the fifteenth day is a travel day home]
  • in accordance with clause 22.1.4 of the enterprise agreement, an average working week is based on 42 rostered hours, incorporating 38 ordinary hours plus 4 reasonable additional hours and that is the basis upon which Pilots are paid;
  • accordingly, Mr Berry's entitlement to 8.6667 weeks of long service leave equates to 30.3335 days, set out as follows:
  1. –42 (hours per week) x 8.6667 (weeks) = 364.0014 (hours)
  1. –364.0014 (hours)/12 (hours per work day) = 30.3335 (work days for both roster types); and
  • it provides the following options to Mr Berry in his application for long service leave under the enterprise agreement, namely:
  1. –apply for the entire leave entitlement which is an absence of 8.6667 weeks or 30.3335 work days;
  1. –apply for entire leave entitlement at half pay which is an absence of 17.3334 weeks or 60.6669 work days; or
  1. –apply for one weeks leave entitlement which is an absence of the equivalent of 3.5 work days or 42 hours.[12]

The relevant provisions of the Act and the enterprise agreement

The provisions of the Act that deal with long service leave

  1. [39]
    Section 94 of the Act provides:

94  Application of pt 4 for particular purposes

To remove any doubt, it is declared that the provisions of part 4 apply for working out an employee’s rights and entitlements to long service leave under this division, an applicable industrial instrument or a federal industrial instrument.

  1. [40]
    Section 95 of the Act relevantly provides:

95  Entitlement-employees other than seasonal employees

  1. This section applies to an employee, other than a seasonal employee.

Note–

For provisions applicable to seasonal employees, see subdivisions 7 and 8.

  1.  The employee is entitled to long service leave, on full pay, of-
  1.  if the employee has completed 10 years continuous service-8.6667 weeks; and
  1.  after 10 years service, if the employee has completed at least a further 5 years continuous service-a period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years.
  1. [41]
    Section 97 of the Act provides:

97  Taking long service leave

 (1)  The commission may insert provisions in an applicable industrial instrument–

  1.  about when, the way in which, and the conditions on which, long service leave may be taken; or
  1.  requiring that leave in the nature of long service leave taken, before the provisions take effect, by an employee to whom the instrument applies must be deducted from the long service leave to which the employee is entitled under the provisions.

 (2)  An employee and employer may agree when the employee will take long service leave.

 (3)  If the employee and employer can not agree, the employer may–

  (a)  decide when the employee will take long service leave; and

  1. (b)
    give the employee at least 3 months written notice of the date on which the employee must take at least 4 weeks long service leave.
  1. [42]
    Section 98 of the Act relevantly provides:

98  Rate of payment

  1.  An employer must pay an employee for long service leave at the following rate–
  1.  if the employee is, immediately before taking the leave, being paid at a higher rate than the ordinary rate–the higher rate;
  1.  otherwise–the ordinary rate being paid to the employee immediately before the leave is taken.             
  1. [43]
    Schedule 5 to the Act defines 'ordinary rate', namely:

ordinary rate, for an employee under an industrial instrument, federal award or federal agreement, means–

  1.  for sections 35(2)(a) and 98(1)(b), if the employee is a public service employee—the rate the instrument, award or agreement states is payable for ordinary time in relation to the employee’s substantive position; or
  1.  otherwise–the rate the instrument, award or agreement states is payable for ordinary time.

The relevant provisions of the enterprise agreement

  1. [44]
    Clause 22 of the enterprise agreement deals with hours of work. Sub-clause 22.1.1 provides that an employee's hours of work '… will be subject to the following provisions of the NES'[13] and then expressly refers to '… Maximum Weekly Hours'.
  1. [45]
    Sub-clause 22.1.4 provides:
  1. 22.1.4
    Except where expressly provided elsewhere in this Agreement, the hours of work that may be rostered on work cycles for full-time Employees (including Employees in training) under this Agreement include:
  1. a.
    an average working week based on up to 42 rostered hours per week (including any duty, travel, training, or standby), which may be averaged according to a defined roster cycle. The 42 hours incorporates 38 ordinary hours plus 4 reasonable additional hours:…
  1. [46]
    Section 62 of the Fair Work Act 2009, which comprises part of the National Employment Standards, deals with maximum weekly hours referred to in cl 22.1.1 of the enterprise agreement. That section relevantly provides:

62  Maximum weekly hours

Maximum weekly hours of work

  1.  An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
  1.  for a full-time employee–38 hours; or
  1.  for an employee who is not a full-time employee–the lesser of:
  1.  38 hours; and
  1.  the employee’s ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours

 (2)  The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.

  1. [47]
    Clause 43 of the enterprise agreement provides for the payment of salaries. Sub-clause 43.1.2 provides that the 'salaries and annual allowances under this Agreement are detailed in Schedule 1'. Schedule 1 to the enterprise agreement sets out the annual salaries for employees based on the class of Pilot of the employee.

The relevant principles of statutory construction

  1. [48]
    The resolution of the dispute between Mr Berry and Babcock requires the construction of s 95(2)(a) of the Act.
  1. [49]
    In SZTAL v Minister for Immigration and Border Protection,[14] Kiefel CJ, Nettle and Gordon JJ summarised the modern approach to statutory construction:

14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[15]

  1. [50]
    Consideration of the context includes the statute's surrounding provisions, what may be drawn from other aspects of the statute, and the statute as a whole. It also extends to the mischief which it may be seen that the statute is intended to remedy.[16]
  1. [51]
    The meaning of a provision in a statute must be determined by reference to the language of the instrument viewed as a whole[17] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[18] 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 the relevant provisions.[19]
  1. [52]
    Pursuant to s 14A(1) of the Acts Interpretation Act 1954, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act (which includes its policy objective) is to be preferred to any other interpretation.

The construction of s 95(2)(a) of the Act

  1. [53]
    It is true that the ordinary meaning of the noun 'week' is '… a period of seven successive days, commonly understood as beginning (unless otherwise specified or implied) with Sunday followed by Monday, Tuesday, Wednesday, Thursday, Friday and Saturday'.[20]
  2. [54]
    However, in an industrial law context, it is capable of other meanings.
  1. [55]
    In Scott v Sun Alliance Australia Ltd ('Sun Alliance'),[21] Mason CJ and Brennan, Dawson, Toohey and McHugh JJ stated:

No doubt the word "week" is an ambiguous word. In Dunlop Perdriau Rubber Co Ltd v Federated Rubber Workers’ Union of Australia,  Dixon J said that it "is capable of meaning the calendar week commencing on Sunday, any consecutive seven days, the week observed by the particular employer in the calculation of wages, or the five days from Monday to Friday which the award calls a week; and other meanings may be suggested". But, in the context of s 69(1) and (3) of the Act, the phrase "by reference to a week" obviously means the period which legislation or an industrial award or agreement fixes as the number of hours for a standard working week of ordinary time hours for the relevant work.[22]

  1. [56]
    In my view, the legislative context of s 95(2)(a) of the Act indicates that the expression '… 8.6667 weeks' does not bear its ordinary meaning, namely, that a 'week' is made up of seven days.
  1. [57]
    There are a number of reasons for this.
  1. [58]
    First, the purpose of long service leave is to confer an entitlement on an employee to take leave because of the length of their continuous service with an employer. That is, long service leave is an entitlement for the employee to be physically away from their work for the period the employee is entitled to long service leave.[23]
  1. [59]
    Secondly, long service leave is paid leave. By virtue of s 98(1)(b) of the Act, an employer must pay an employee for long service leave at the employee's ordinary rate being paid to the employee immediately before the leave is taken. Alternatively, by virtue of                         s 98(1)(a) of the Act, if the employee is, immediately before taking the leave, being paid at a higher rate than the ordinary rate, the employer must pay the employee for long service leave at the higher rate.[24]
  1. [60]
    Mr Berry is covered by the enterprise agreement. That agreement is one approved under the Fair Work Act 2009. The enterprise agreement, therefore, is a 'federal agreement'[25] with the meaning of the definition of 'ordinary rate' in sch 5 to the Act.
  1. [61]
    The calculation of Mr Berry's accrued long service leave entitlement under the Act is affected by the enterprise agreement. This is because the enterprise agreement determines Mr Berry's ordinary time and, therefore, his ordinary rate. 
  1. [62]
    Thus, having regard to the definition of 'ordinary rate' in sch 5 to the Act, namely, '… the rate the instrument … states is payable for ordinary time' and to Mr Berry's circumstances, his ordinary rate, for the purposes of the payment of his long service leave entitlement, means the rate the enterprise agreement states is payable for ordinary time.[26]
  1. [63]
    The phrase 'ordinary time' is not defined in the Act. However, that phrase, and the related phrase 'ordinary hours', have a confirmed meaning in their application to employees and their remuneration in Australia.
  1. [64]
    In Sun Alliance,[27] the five members of the High Court stated:

The expression "ordinary time rate of pay" is well known in the industrial relations field in Australia and New Zealand. It and similar terms have long  been used in legislation. Unless the context otherwise requires, "ordinary time rate of pay" means the rate of pay for the standard or ordinary hours of work in contrast to the overtime or penalty rate of pay for hours of work other than the standard or ordinary hours. When expressed by reference to a week, it refers to the product of multiplying that hourly rate by the standard 35, 38 or 40 hour week, as the case may be, fixed by legislation, industrial award or agreement.[28]

  1. [65]
    In Bluescope Steel (AIS) Pty Ltd and Another v Australian Workers’ Union ('Bluescope'),[29]Allsop CJ[30] stated:

38 The context is the payment of salaries and wages in the workplace. In that context, the word “ordinary” and the phrase “ordinary hours” have assumed different meanings depending on context and circumstance. There are circumstances and contexts where the word and phrase can be seen to refer to regular, normal, customary or usual hours; and there are circumstances or contexts where the word and phrase can be seen to refer to the hours of work referred to in applicable industrial instruments as standard hours to be paid at ordinary rates, as opposed to additional hours (even if required, usual, regular, normal or customary) and paid at a special or higher rate. As such, the word and phrase can be seen to reflect the long-recognised distinction between ordinary hours of work and overtime: cf Thompson v Roche Bros Pty Ltd [2004] WASCA 110 at [31].

39 The notion of standard or ordinary working hours has long had a place in the industrial relations landscape of Australia. The standard working week was once 48 hours (Australian Builders’ Labourers’ Federation v Archer (1913) 7 CAR 210); reduced to 44 hours during the 1920s (Amalgamated Engineering Union v J Alderdice & Company Pty Ltd (1927) 24 CAR 755 (the 44 Hour Week Case)); to 40 hours after the War (Standard Hours Inquiry (1947) 59 CAR 581); and to 38 hours in 1983 (National Wage Case (1983) 4 IR 429). The standard of 38 hours was not departed from by the Australian Industrial Relations Commission in 2002 (Re Working Hours Case July 2002 (2002) 114 IR 390). The standard of 38 hours has not been departed from in the award modernisation process. The notion of “ordinary hours of work” remains a working integer of the modern award system: s 147 of the Fair Work Act.

40 By s 62 of the Fair Work Act, 38 hours remains the maximum number of hours that an employer can request or require of a full time employee, unless the “additional hours” are reasonable. Ordinary hours or some means of determining ordinary hours is a necessary part of an award or enterprise agreement for the better off overall test. Section 20 of the Fair Work Act deals with the meaning of “ordinary hours of work” for “award/agreement free employees”:

20  Meaning of ordinary hours of work for award/agreement free employees

Agreed ordinary hours of work

  1.  The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or her national system employer as the employee’s ordinary hours of work.

If there is no agreement

  1.  If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:
  1.  for a full-time employee — 38 hours; or
  1.  for an employee who is not a full-time employee – the lesser of:
  1.  38 hours; and
  1.  the employee’s usual weekly hours of work.

If the agreed hours are less than usual weekly hours

  1.  If, for an award/agreement free employee who is not a full-time employee, there is an agreement under subsection (1) between the employee and his or her national system employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work, the ordinary hours of work of the employee in a week are the lesser of:
  1.  38 hours; and
  1.  the employee’s usual weekly hours of work.

41 By [234]-[235] of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) the importance of ordinary hours of work to the National Employment Standards was explained:

234  There are a number of concepts that are used regularly in Part 2-2. These are explained below.

235  Various employee entitlements under the NES are based on the employee’s ordinary hours of work.

•  The ordinary hours of work for an employee to whom a modern award applies will be the ordinary hours set out in the modern award (all awards are required to provide ordinary hours, or a means of determining ordinary hours) (see clause 147).

•  The ordinary hours of work for an employee to whom an enterprise agreement applies will be the hours identified in the enterprise agreement. (An agreement should identify ordinary hours, or a means of determining ordinary hours, in order for the agreement to pass the better off overall test.)

•  The ordinary hours of work for an award/agreement free employee (as defined in clause 12) are calculated in the manner set out in clause 20.

  1. [66]
    Further, in Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association ('Target'),[31] Bromberg J[32] (after referring to paragraph 38 of the decision of Allsop CJ in Bluescope) relevantly stated:
  1. 11As that passage acknowledges, the meaning of the word “ordinary” when qualifying the word “hours” (or “time”) will usually depend on the context in which it has been used.  “Ordinary hours” can be a reference to the hours of work of a particular employee, which are either contracted for, or prescribed by, the applicable award or industrial instrument.  Thus, for full‑time employees, an award may provide for the working of a 40-hour week in exchange for the weekly rate of pay.  In that context, it would be appropriate to refer to the prescribed hours as the “ordinary hours”.  Similarly, a part-time employee may be contracted to work 15 hours per week.  Again, it would be appropriate to refer to the hours set by the contract as the employee’s ordinary hours of work.  The expression “ordinary hours” is used in that way, for instance, in s 20 of the Fair Work Act 2009 (Cth) (FW Act).  That use of the expression is also consistent with the way it is used in relation to the National Employment Standards (NES) provided for by Pt 2-2 of the FW Act, as was explained in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth): see the discussion by Bromberg J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Ltd (2020) 282 FCR 130 at [163]-[165].
  1. 12Reflecting on what Allsop CJ in Bluescope Steel referred to as the “long‑recognised distinction between ordinary hours of work and overtime”, when the expression “ordinary hours” or “ordinary time” is used to refer to the hours of an employee, the reference will usually be an intended reference to the standard hours of work of the employee prescribed by the industrial instrument or the contract, as distinct from the extra hours that an employee may either be required to work or may volunteer to work as overtime.
  1. 13Where an employee regularly works additional regular hours, beyond what I have referred to as the prescribed ordinary hours, the total hours worked may, in some contexts, also be referred to as the usual or ordinary hours of the employee.  It is primarily for that reason that sometimes ambiguity arises as to what is meant by the phrase “ordinary hours” of the employee.[33]
  1. [67]
    These cases assist in the construction of the phrase 'ordinary time' in the definition of 'ordinary rate' in sch 5 to the Act. The construction of the phrase 'ordinary time', in turn, is relevant to the construction of '…8.6667 weeks' in s 95(2)(a) of the Act and the correct calculation of Mr Berry's accrued long service leave.
  1. [68]
    My view is that the phrase 'ordinary time', in the definition of 'ordinary rate' in sch 5 to the Act, means an employee's ordinary hours of work and does not include hours worked outside of those ordinary hours of work, such as overtime or reasonable additional hours performed outside of an employee's ordinary hours of work.
  1. [69]
    There are three reasons for this.
  1. [70]
    First, this is how the phrase 'ordinary time' has commonly been construed in the context of the same kinds of facts of Mr Berry's employment under the enterprise agreement, as referred to in Sun Alliance, Bluescope and Target.
  1. [71]
    Secondly, that same meaning has historically been given to the phrase 'ordinary time' in the context of long service leave in Queensland. In Australasian Meat Industry Union of Employees, Queensland Branch v Thomas Bothwick & Sons,[34] Hanger J, President stated:

The Queensland Act required that long service leave be paid for by the employer as ordinary time. This must mean at the rate of pay appropriate to ordinary time. The weight of authority now leans strongly to the view that the ordinary time rate of pay has reference only to the class of work done and that an increased payment for the same work, done at times which are not ordinary, is not included in the ordinary time rate of pay. In the circumstances of the instant case, the terms of the Award show clearly that the regular daily employee was to be paid a wage which included an element beyond that applicable normally to the class of work which he did, and, in my opinion, this is not included in the ordinary time rate of pay for the purposes of long service leave provisions. There was no suggestion that Weise was not employed with the Award as the basis of his employment; and in the circumstances, he must take the bad with the good.[35]

  1. [72]
    Thirdly, because of the Legislature's use of the phrase 'ordinary time' and its long-standing common meaning, there is no reason to assume the Legislature, when defining the meaning of 'ordinary rate' – in respect of the payment of long service leave for national system employees covered by a federal industrial instrument – meant anything other than an employee's ordinary hours of work which does not include hours worked outside of those ordinary hours of work.
  1. [73]
    What is Mr Berry's ordinary time?
  1. [74]
    The answer comes from sub-cl 22.1.4 of the enterprise agreement. It provides that an average working week is based on up to 42 rostered hours per week (including any duty, travel, training, or standby), which may be averaged according to a defined roster cycle; and, that 42 hours '… incorporates 38 ordinary hours plus 4 reasonable additional hours'.
  1. [75]
    As referred to above, sub-cl 22.1.1 of the enterprise agreement provides that an employee's hours of work will be '… subject to the following provisions of the NES' and then expressly refers to '…Maximum Weekly Hours'.  Sub-clause 22.1.4 of the enterprise agreement, therefore, is consistent with s 62 of the Fair Work Act 2009 which deals with maximum weekly hours.
  1. [76]
    It is not the case that an employee, to whom the enterprise agreement applies, has 42 ordinary hours per week. This is because:
  • an employee's hours of work, under the enterprise agreement, is subject to the National Employment Standards in respect of maximum weekly hours and, in that regard, s 62 of the Fair Work  Act 2009 provides that an employer must not request or require an employee to work more than 38 hours a week for a full-time employee, unless the hours are reasonable;
  • sub-clause 22.1.4 of the enterprise agreement does not state that 42 hours per week are an employee's ordinary hours; and
  • sub-clause 22.1.4(a) of the enterprise agreement expressly states that an employee's '… average working week' is '… based on up to 42 rostered hours per week' which '… incorporates 38 ordinary hours plus 4 reasonable additional hours' and an average working week, in the context of the enterprise agreement, is not an employee's ordinary hours per week.
  1. [77]
    Under the Act, when Mr Berry accesses his accrued long service leave, he is paid at his ordinary rate under the enterprise agreement that it states is payable for ordinary time.  In Mr Berry's case, his ordinary time is 38 hours per week which is his ordinary hours per week. Ordinary time is not 42 hours per week for the reasons I have given in the preceding paragraph.
  1. [78]
    Having regard to the provisions that surround s 95(2)(a) of the Act, namely, s 98 and the definition of 'ordinary rate' in sch 5, in construing '… 8.6667 weeks' in s 95(2)(a) of the Act in context and in a way that best achieves its purpose, a week for Mr Berry is 38 hours of ordinary time work.
  1. [79]
    For these reasons Mr Berry's submission that a 'week' within the meaning of '…8.6667 weeks' means 7 days of paid leave is not correct.
  1. [80]
    Similarly, for the reasons I have given, Babcock's submission that a 'week' within the meaning of '…8.6667 weeks' means 42 hours is not correct. In making this determination, I also note that sub-cl 22.1.4(a) of the enterprise agreement provides that the hours of work that may be rostered on work cycles for full-time employees under the enterprise agreement include '… an average working week based on up to 42 rostered hours per week' where the reference to 42 hours incorporates 38 ordinary hours plus 4 reasonable additional hours.  Thus, under the enterprise agreement, an average working week is not specifically determined to be 42 hours per week, but rather, may be up to 42 hours per week.
  1. [81]
    On the assumption that Mr Berry has 10 years continuous service with Babcock, he has an entitlement to 329.3346 hours of long service leave or 8.6667 multiplied by 38, where 38 represents his ordinary time hours per week.
  1. [82]
    Mr Berry also submitted that in respect of the number of 'days' of long service leave that made up his entitlement, when calculating his entitlement, the number of hours which constituted each day should be '… equal to a shift of work, day or night' in line with                 '… our provisions for other types of leave as laid down in our EBA'.[36] While Mr Berry did not expand on exactly what he meant by this, a reasonable assumption is that he meant that if he had, as he wrongly contended, 60.66 days long service leave, then for each of those 60.66 days, the hours of long service leave he has accrued is based on the number of hours he works in a shift, namely (having regard to the examples in his submissions) 12 hours. Thus, his entitlement to long service leave would be 60.66 multiplied by 12, namely, 727.92 hours of long service leave.
  1. [83]
    Assuming that this is what Mr Berry meant in his submissions, it is not correct. This is because of the construction of s 95(2)(a) of the Act for the reasons I have given above. Further, the provisions in the enterprise agreement, about other types of leave, have no bearing on the correct calculation of Mr Berry's accrued long service leave under the Act.
  1. [84]
    Assuming I am correct about what Mr Berry meant in his submissions, there is another reason such a submission is not correct. 
  1. [85]
    Such a submission is similar to the submissions made by the employees 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 ('Mondelez').[37]
  1. [86]
    That case concerned s 96(1) of the Fair Work Act 2009 which provided:

96  Entitlement to paid personal/carer’s leave

Amount of leave

  1. For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

Accrual of leave

  1. An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.[38]
  1. [87]
    In Mondelez, the relevant employees worked, on average, 36 ordinary hours of work per week and they worked an average of three 12-hour shifts per week. In accordance with the relevant enterprise agreement, the employer credited them with 96 hours of paid personal/carer's leave per year of service.  When they took paid personal/carer's leave for one 12-hour shift, Mondelez deducted 12 hours from their accrued leave balance. Over the course of one year of service, the employees accrued paid personal/carer's leave sufficient to cover eight 12-hour shifts.[39]
  1. [88]
    The employees and their Union argued that s 96(1) of the Fair Work Act 2009 entitled them to paid personal/carer's leave sufficient to cover ten absences from work per year.[40]
  1. [89]
    A majority of the Full Court of the Federal Court held that the word 'day' in s 96(1) of the Fair Work Act 2009 referred to the portion of a 24 hour period that would otherwise be allotted to work.[41]
  1. [90]
    On appeal to the High Court of Australia, the issue was whether 'day' in '10 days' in s  96(1) of the Fair Work Act 2009 referred to:
  • a 'notional day', consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period; or
  • a 'working day', consisting of the portion of a 24-hour period that would otherwise be allotted to working and thereby authorising an employee to be absent without loss of pay on ten working days per year.[42]
  1. [91]
    The majority of the High Court (Kiefel CJ, and Nettle and Gordon JJ) found that the word 'days', in the entitlement to paid personal/carer's leave in s 96(1) of the Fair Work  Act 2009, must be calculated by reference to an employee's ordinary hours of work, not a 24-hour period otherwise allotted to working.
  1. [92]
    The majority held:

23 Therefore, in s 96(1), read in its statutory context, what is meant by a “day” or “10 days” must be calculated by reference to an employee’s ordinary hours of work. However, the text of the Fair Work Act does not describe how a “day” or “10 days” is calculated by reference to an employee’s ordinary hours of work. In an employment context, it is to be expected that “10 days” might refer to two standard five-day working weeks. That accommodates, as it must, that employees’ working patterns are not uniform. Construing the expression “10 days” as referring to the equivalent of an employee’s ordinary hours of work in a two-week period, or 1/26 of their ordinary hours of work in a year, is consistent with the purpose of the paid personal/carer’s leave scheme and, in particular, that of s 96, which is aimed at protecting employees against loss of earnings when they are unable to work for one of the reasons set out in s 97. And it is for those reasons that the scheme confers leave entitlements by reference to an employee’s ordinary hours of work, rather than the number of days worked by an employee. The purpose of s 96 is to protect employees against loss of earnings, and it does that by reference to their ordinary hours of work. As a result, the amount of leave accrued does not vary according to their pattern of hours of work.

…

Rejection of the “working day” construction

41 The “working day” construction adopted by the majority in the Full Court (and urged by the Union parties in this Court) is not consistent with the purpose of s 96 or the stated objectives of the Fair Work Act of fairness, flexibility, certainty and stability. The “working day” construction would lead to inequalities between employees with different work patterns, and so would be unfair. An employee whose hours are spread over fewer days with longer shifts would be entitled to more paid personal/carer’s leave than an employee working the same number of hours per week spread over more days. Thus, on the construction adopted by the majority in the Full Court, an employee working 36 ordinary hours in a week in three shifts of 12 hours (as Ms Triffitt and Mr McCormack do) would be entitled to ten 12-hour days of paid personal/carer’s leave per annum, or 120 hours, whereas an employee working 36 ordinary hours in a week in five days of 7.2 hours would be entitled to ten 7.2-hour days of paid personal/carer’s leave per annum, or 72 hours. And, as Mondelez submitted, it may be expected that the employee working 12-hour shifts three times a week takes fewer days of paid personal/carer’s leave given they work on fewer days than the employee working 7.2 hours, five days a week, and is therefore less likely to need to take paid personal/carer’s leave on a working day.[43]

  1. [93]
    In Mondelez, Edelman J relevantly observed:     

95 The duty of courts is to give effect to the meaning of statutory words as intended by Parliament. In common with how all speech acts are understood, the meaning is that which a reasonable person would understand to have been intended by the words used in their context. One presumption, or inference based on common experience of legislative acts, is that when Parliament uses words with a common or ordinary meaning then the words are intended to bear that ordinary meaning. That presumption also reflects the expressed goal of parliamentary drafting for clarity and familiarity in order to ensure the transparency and intelligibility of statute law. That presumption can be further reinforced by another presumption, that words repeated in a statute are used with the same meaning.

96  Nevertheless, even when Parliament does not provide a specific definition of particular statutory words there are instances where Parliament will be understood not to have intended that those undefined statutory words should bear their ordinary meaning. For instance, the more that the ordinary meaning of the words would impair common law rights, and the more fundamental are those rights, the less likely it is that the words will be understood to have been intended to bear their ordinary meaning and the more unusual the meaning of the words that can be countenanced as having been intended. More unusual meanings of words can also be countenanced in a range of more common circumstances, and will be likely to be so countenanced where several of these circumstances exist in combination: where the ordinary meaning of the words is contrary to the scheme of the legislation; where the ordinary meaning of the words runs contrary to the legislative history; and where the ordinary meaning of the words is inconsistent with the expressed understanding of the legislative operation in extrinsic materials. None of these matters of context has any greater a priori weight than any other.[44]

 …

99 The approach of the majority of the Full Court of the Federal Court has considerable force because the same word (“days”) is used in the Fair Work Act in provisions that appear before and after the relevant provision (s 96(1)) with its ordinary meaning. The ordinary meaning of a "day" for a worker is a day of work. However, the ordinary meaning of "days" for a worker, namely "days of work", even combined with the usage of "days" with its ordinary meaning in other provisions of the Fair Work Act, does not reflect the intention of Parliament in its use of "10 days" in s 96(1). Rather, a reasonable reader, informed by the full context and history of s 96(1), would conclude that the expression was intended to have a less ordinary meaning, aligning the meaning of s 96(1) with the meaning of its predecessor provision in s 246 of the Workplace Relations Act 1996 (Cth). [45]

100  The immediate legislative context of s 96(1) is the first significant indicator that the expression "10 days" does not bear its ordinary meaning. The ordinary meaning of "10 days" in the leave entitlement in s 96(1) is not consistent with the scheme of: (i) the manner in which the entitlement accrues (s 96(2)); (ii) the payment for the entitlement (s 99); and (iii) the cashing out of the entitlement (s 101).

  1. [94]
    In my view, the same kinds of considerations of the majority and of Edelman J in Mondelez apply in respect of Mr Berry's (assumed) submission that a day's long service leave should equate with the actual hours per day he worked in a shift, even where his ordinary hours of work per week are 38.
  1. [95]
    First, construing the expression '… 8.6667 weeks', where a week is the equivalent of an employee’s ordinary time or ordinary work in a week, is consistent with the purpose of paid long service leave. The purpose of paid long service leave is to be a reward for long service and to provide a respite from work.[46] It is in relation to this first purpose of long service leave, that the leave is accrued by reference to an employee's continuous service with an employer, namely, 10 years continuous service.
  1. [96]
    It is in relation to the second purpose of long service leave that the paid entitlement to long service leave is the employee's ordinary rate payable for ordinary time. That is, by s 98(1)(b) of the Act, an employee is entitled to be absent from work without suffering a loss of ordinary time wages or salary; or, where s 98(1)(a) of the Act applies, where the employee was being paid the higher rate immediately before taking the leave, an employee is entitled to be absent from work without suffering a loss of the employee's higher rate.
  1. [97]
    Secondly, adopting Mr Berry's contention would result in one employee accruing more long service leave simply because they worked longer shifts compared to another employee who worked shorter shifts, but in circumstances where both employees have the same length of continuous service to qualify for 8.6667 weeks leave, namely 10 years continuous service. That is not a construction that best achieves the purpose of s 95(2)(a) of the Act.

Order

  1. [98]
    I make the following Order:

As to the question for arbitration:

In respect of the Queensland Industrial Relations Act 2016 entitlement for long service leave being 8.6667 weeks, how many work days is           Mr Kevin Berry, a Pilot, entitled to as long service leave when working under the Babcock Mission Critical Services Australasia Helicopter Pilots Enterprise Agreement 2022?

The answer is:

329.3346 hours of long service leave.

Footnotes

[1] Sub-clause 25.2 of the enterprise agreement provides:

25.2 The Employer may, at the request of an Employee, grant the Employee long service leave on half pay for a period that does not exceed twice the period specified in the appropriate legislation, providing that this does not breach the relevant State or Territory long service leave legislation.

[2] Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCAFC 177; (2007) 165 FCR 1, [62]-[65]. (Ryan, Moore and Mansfield JJ).

[3] Industrial Relations Act 2016, s 7(2)(a).

[4] Industrial Relations Act 2016, s 8(2)(a).

[5] State of Queensland v Together Queensland [2012] QCA 353; [2014] 1 Qd. R 457, [11] (Holmes, Muir and White JJ).

[6] Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167, 189 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[7] Re Cram; Ex parte Newcastle Wallsend Coal Pty Ltd. [1987] HCA 29; (1987) 163 CLR 140, 149 (Mason C.J. and Brennan, Deane, Dawson, Toohey and Gaudron JJ).

[8] Ibid 149.

[9] Mr Berry's written submissions filed on 22 June 2023 ('Mr Berry's submissions') paras. 22-23.

[10] Mr Berry's submissions, para.10.

[11] Mr Berry's submissions, paras. 12-21.

[12] The written submissions of Babcock Mission Critical Services Australasia Pty Ltd filed on 7 July 2023, paras. 4-9.

[13] National Employment Standards.

[14] [2017] HCA 34; (2017) 262 CLR 362.

[15] Citations omitted.

[16] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] generally agreeing).

[17] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ) ('Project Blue Sky').

[18] Ibid [70].

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

[20] Macquarie Dictionary (7th ed. 2017) 'week' (def 1).

[21] [1993] HCA 46; (1993) 178 CLR 1 ('Sun Alliance').

[22] Ibid 9.

[23] Industrial Relations Act 2016, s 97(2) and s 97(3).

[24] There are no facts which suggest s 98(1)(a) of the Act has any relevance to Mr Berry's dispute.

[25] Industrial Relations Act 2016, sch 5, (definition of 'federal agreement').

[26] Industrial Relations Act 2016, sch 5 (definition of 'ordinary rate').

[27] Sun Alliance (n 21).

[28] Ibid 5.

[29] [2019] FCAFC 84; (2019) 270 FCR 359.

[30] Rangiah J at [356]-[357] agreeing.

[31] [2023] FCAFC 66 ('Target').

[32] Jackson J at [119] and Feutrill J at [130] agreeing.

[33] In Target (n 31), the construction issue the Full Court of the Federal Court of Australia had to determine was whether the phrase 'ordinary time earnings' in cl 7.2.10 of the Target Australia Retail Agreement 2012 was an intended reference to:

  1. what the employee going on annual leave would have earned if the employee had not taken leave, calculated as if only the 'ordinary hourly rate' prescribed by that Agreement applied (the employer's case); or
  2. the entirety of what would have been earned by the employee for working their ordinary hours of work (the Union's case).

The Court found in favour of the Union's case and held that on the construction of  cl 7.2.10 of the Target Australia Retail Agreement 2012, the reference to 'ordinary time earnings' was a reference to the entirety of what would have been earned by the employee for working their ordinary hours of work.

[34] (1968) 67 QGIG 59.

[35] Ibid 60.

[36] Mr Berry's submissions, para. 23.

[37] [2020] HCA 29; (2020) 271 CLR 495 ('Mondelez').

[38] Mondelez (n 37) [19].

[39] Ibid [6]-[8].

[40] Ibid [9].

[41] Ibid [11].

[42] Ibid [1].

[43] Citations omitted. Emphasis added.

[44] Citations omitted.

[45] Citations omitted.

[46] Review of Entitlement to Long Service Leave [2000] QIRComm 83; (2000) 164 QGIG 236, 239 (President Hall, Commissioner Baldwin and Commissioner Brown).

Close

Editorial Notes

  • Published Case Name:

    Berry v Babcock Mission Critical Services Australasia Pty Ltd

  • Shortened Case Name:

    Berry v Babcock Mission Critical Services Australasia Pty Ltd

  • MNC:

    [2023] QIRC 246

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    28 Aug 2023

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
Australasian Meat Industry Union of Employees, Queensland Branch v Thomas Bothwick & Sons (1968) 67 QGIG 59
2 citations
Jump To
Cite 1 - (1968) 67 QGIG 59
Cite 2 - (1968) 67 QGIG 59
Australian Builders' Labourers' Federation v Archer (1913) 7 CAR 210
1 citation
Jump To
Cite 1 - (1913) 7 CAR 210
Bluescope Steel (AIS) Pty Ltd v Australian. Workers' Union (2019) 270 FCR 359
2 citations
Jump To
Cite 1 - (2019) 270 FCR 359
Cite 2 - (2019) 270 FCR 359
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
2 citations
Jump To
Cite 1 - [2012] HCA 56
Cite 2 - [2012] HCA 56
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
2 citations
Jump To
Cite 1 - (2012) 248 CLR 378
Cite 2 - (2012) 248 CLR 378
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited (2020) 282 FCR 130
1 citation
Jump To
Cite 1 - (2020) 282 FCR 130
Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCAFC 177
2 citations
Jump To
Cite 1 - [2007] FCAFC 177
Cite 2 - [2007] FCAFC 177
Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 FCR 1
2 citations
Jump To
Cite 1 - (2007) 165 FCR 1
Cite 2 - (2007) 165 FCR 1
Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29
2 citations
Jump To
Cite 1 - [2020] HCA 29
Cite 2 - [2020] HCA 29
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495
2 citations
Jump To
Cite 1 - (2020) 271 CLR 495
Cite 2 - (2020) 271 CLR 495
National Wage Case Decision (1983) 4 IR 429
1 citation
Jump To
Cite 1 - (1983) 4 IR 429
Nelson v Nelson [2000] QIRComm 83
2 citations
Jump To
Cite 1 - [2000] QIRComm 83
Cite 2 - [2000] QIRComm 83
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
2 citations
Jump To
Cite 1 - (1991) 173 CLR 167
Cite 2 - (1991) 173 CLR 167
Precision Data Holdings Ltd v Wills [1991] HCA 58
2 citations
Jump To
Cite 1 - [1991] HCA 58
Cite 2 - [1991] HCA 58
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky Inc. v Australian Broadcasting Authority (2000) 164 QGIG 236
2 citations
Jump To
Cite 1 - (2000) 164 QGIG 236
Cite 2 - (2000) 164 QGIG 236
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v A2 [2019] HCA 35
2 citations
Jump To
Cite 1 - [2019] HCA 35
Cite 2 - [2019] HCA 35
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140
2 citations
Jump To
Cite 1 - (1987) 163 CLR 140
Cite 2 - (1987) 163 CLR 140
Re Cram; ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29
2 citations
Jump To
Cite 1 - [1987] HCA 29
Cite 2 - [1987] HCA 29
Scott v Sun Alliance Australia Ltd [1993] HCA 46
2 citations
Jump To
Cite 1 - [1993] HCA 46
Cite 2 - [1993] HCA 46
Scott v Sun Alliance Australia Ltd (1993) 178 CLR 1
2 citations
Jump To
Cite 1 - (1993) 178 CLR 1
Cite 2 - (1993) 178 CLR 1
State of Queensland v Together Queensland [2014] 1 Qd R 457
2 citations
Jump To
Cite 1 - [2014] 1 Qd R 457
Cite 2 - [2014] 1 Qd R 457
Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84
2 citations
Jump To
Cite 1 - [2019] FCAFC 84
Cite 2 - [2019] FCAFC 84
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34
Target Australia Pty Ltd v Shop, Distributive and Allied Employees' Association [2023] FCAFC 66
2 citations
Jump To
Cite 1 - [2023] FCAFC 66
Cite 2 - [2023] FCAFC 66
The Australian Workers' Union of Employees, Queensland v State of Queensland[2014] 1 Qd R 257; [2012] QCA 353
2 citations
Jump To
Cite 1 - [2012] QCA 353
Cite 2 - [2012] QCA 353
Thompson v Roche Bros Pty Ltd [2004] WASCA 110
1 citation
Jump To
Cite 1 - [2004] WASCA 110
Union v J Alderdice & Co Pty Ltd (1927) 24 CAR 755
1 citation
Jump To
Cite 1 - (1927) 24 CAR 755

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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