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Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health)[2025] QIRC 217

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health)[2025] QIRC 217

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) [2025] QIRC 217

PARTIES:

Together Queensland, Industrial Union of Employees

Applicant

v

State of Queensland (Queensland Health)

Respondent

CASE NO:

D/2024/43

PROCEEDING:

Application for interpretation of an award

DELIVERED ON:

19 August 2025

MEMBER:

HEARD AT:

Pratt IC

On the papers

ORDERS:

  1. The answers to the arbitration questions are as provided within paragraphs [72] and [73] of these reasons.

CATCHWORDS:

INDUSTRIAL LAW – DISPUTE – INTERPRETATION OF AN AWARD – where dispute centres on subclause 19.1 of the Hospital and Health Service General Employees (Queensland Health) Award State 2015 – whether non-continuous shift workers, firstly, those who are, and secondly those who are not,  in receipt of an additional week's leave as compensation for public holiday penalty rates, are entitled to be paid public holiday loading for a public holiday that falls on an annual leave day – consideration of s 31 of the Industrial Relations Act 2016 (Qld) – consideration of law as to the interpretation of awards –  held that workers must actually be on annual leave before subclause 19.1(b) of the Hospital and Health Service General Employees (Queensland Health) Award State 2015 is enlivened – held effect of s 31 of the Industrial Relations Act 2016 (Qld) is that it is not possible for a non-continuous shift worker who is not in receipt of an additional week's leave to be on annual leave on a day that is a public holiday – held that non-continuous shift workers not receiving the additional week's leave who are rostered to work a public holiday that coincides with annual leave, are not entitled to payment of public holiday penalties in lieu of 17.5% – held that non-continuous shift workers in receipt of an additional week's leave who are rostered to work a public holiday that coincides with annual leave are entitled to payment of public holiday penalties in lieu of 17.5% – held projected roster may be changed with 24 hours' notice – held lawful variation to the roster will affect entitlement. 

LEGISLATION AND OTHER INDUSTRIAL INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 21, s 31, s 116, s 261

Acts Interpretation Act 1954 (Qld) s 32C

Hospital and Health Service General Employees (Queensland Health) Award State 2015, cl 3, cl 15, cl 19, cl 23.

CASES:

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

BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124

City of Wanneroo v Holmes (1989) 30 IR 362

Civil Air Operations Officers' Association of Australia v Air services Australia [2004] FCA 55

Finance Sector Union of Australia v Commonwealth Bank of Australia [2022] FedCFamC2G 409

George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498

In the matter of Annual Leave Standards and provisions relating thereto contained in Awards and Industrial Agreements of the Industrial Conciliation and Arbitration Commission of Queensland (1973) 84 QGIG 43

King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123

Kucks v CSR Ltd (1996) 66 IR 182

Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2019] ICQ 12

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

Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444

Tempo Services Lt v Robinson (2005) 91 SASR 439

Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148

Reasons for Decision

  1. [1]
    This is an arbitration of a dispute pursuant to s 261 of the Industrial Relations Act 2016 ('IR Act'). The Dispute was notified by the Together Queensland, Industrial Union of Employees ('Applicant'). The respondent to the dispute is the State of Queensland (Queensland Health) ('Respondent'). In short summary, the dispute concerns the interpretation of subclause 19.1(b) of the Hospital and Health Service General Employees (Queensland Health) Award State 2015 ('Award'). The key issue is how much staff are to be paid on particular days off pursuant to subclause 19.1(b) of the Award, which addresses payment for periods of annual leave.

Background

  1. [2]
    Before turning to the questions to be arbitrated, it is necessary to set out some basic concepts because those concepts are embodied within terms contained in the questions to be arbitrated.
  1. [3]
    The Award subclause that is at the heart of this dispute focuses on staff defined as "non-continuous shift workers". They are staff doing "work regularly rotated in accordance with a roster which prescribes 2 or more shifts (day, afternoon or night) per day, but does not cover a 24 hour per day operation over a 7 day week", which is continuous shiftwork as defined.[1]
  1. [4]
    Another basic concept mentioned in the arbitration questions is what is described as "the additional week's leave", which is provided for in subclause 19.2 of the Award. It provides that where there is agreement between the relevant employer and the majority of employees concerned, those employees can elect to receive an additional one week of leave in lieu of the extra payments prescribed for performing ordinary hours of work on public holidays.

The dispute

  1. [5]
    This dispute is essentially about how subclause 19.1 of the Award operates. Whilst subclause 19.1(b) is the primary focus, it is appropriate to set out all of subclause 19.1(a)-(c):

19.1 Payment for annual leave

  1. An employee (other than a shift worker) proceeding on annual leave is entitled to receive the following payments:
  1. an amount equal to the wage rate being paid to the employee immediately before the employee takes the leave for the period of such leave; and
  1. a further amount equal to 17.5% of the amount referred to in clause 19.1(a)(i).
  1. A non-continuous shift worker proceeding on annual leave is entitled to receive the following payment:
  1. an amount equal to the wage rate being paid to the employee immediately before the employee takes the leave for the period of such leave calculated according to the employee's roster or projected roster including any shift, weekend or public holiday penalties; or
  1. an amount equal to the wage rate being paid to the employee immediately before the employee takes the leave for the period of such leave, excluding any shift, weekend or public holiday penalties plus a further 17.5% of this amount, whichever is the higher.
  1. A continuous shift worker proceeding on annual leave is entitled to receive the following payments:
  1. an amount equal to the wage rate being paid to the employee immediately before the employee takes the leave for the period of such leave, excluding any shift, weekend or public holiday penalties; and
  1. a further amount equal to 27.5% of the amount referred to in clause 19.1(c)(i).
  1. [6]
    The parties agreed on the following questions for arbitration:
  1. In circumstances where a non-continuous shift worker who is not in receipt of the additional week's leave (Award clause 19.2), was rostered on a public holiday and takes annual leave over the period, having regard to clause 19.1(b) of the Award, is the employee entitled to payment of projected roster (including public holiday penalties) in lieu of 17.5% when the projected roster is higher?
  1. In circumstances where a non-continuous shift worker who is in receipt of the additional week's leave (Award clause 19.2), was rostered on a public holiday, e.g. Easter Saturday, and takes annual leave over the period, having regard to clause 19.1(b) of the Award, is the employee entitled to payment of  projected roster (including public holiday penalties) in lieu of 17.5% when the projected roster is higher?
  1. [7]
    As can be seen, both questions involve a non-continuous shift worker. Both involve that worker being rostered to work on a public holiday, which coincides with a day that the employee takes as annual leave. The scenarios differ in that the first is a case where the employee does not receive the additional week's leave in lieu of penalty rates for working on public holidays. The second scenario is the case where the employee does receive the additional week's leave in lieu of being paid the appropriate penalty rates for working on public holidays.

Relevant law

Relevant legislation

  1. [8]
    Section 31 of the IR Act says (my emphasis):
  1. For each completed year of employment with an employer, an employee is entitled to—
  1. if the employee is not a shift worker—at least 4 weeks annual leave; or
  1. if the employee is a shift worker—at least 5 weeks annual leave.
  1. Annual leave is exclusive of a public holiday that falls during the leave.
  1. 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. Annual leave accumulates.
  1. This section does not confer an entitlement or an additional entitlement in relation to employment before 4 June 1999.
  1. In this section—

"shift worker" means an employee who—

  1. is employed in a calling in which shifts are worked 24 hours a day, 7 days a week; and
  1. works a rotating roster that includes each of the shifts.
  1. [9]
    Section 32C of the Acts Interpretation Act 1954 (Qld) says:

In an Act—

  1. words in the singular include the plural; and
  1. words in the plural include the singular.

Relevant law as to the interpretation of awards and agreements

  1. [10]
    As explained by the writers of Interpretation, Herzfeld and Prince, which is a work referred to approvingly by the Supreme Court of Queensland,[2] the primary aim of construing an industrial award is to ascertain the objective meaning of the words used.[3] Whilst a common understanding between parties before they made an award can be considered when construing the terms of the relevant award,[4] the subjective intentions of those who negotiated an award, or made submissions to the tribunal that made the award, are irrelevant.[5]
  1. [11]
    The starting point is a consideration of the natural and ordinary meaning of the relevant words.[6] The award must be read as a whole and the provisions in question must be read in context, even when those provisions are not obviously ambiguous.[7] As to ambiguity, unless there is genuine ambiguity in the relevant words, extrinsic material cannot be used to qualify the words in an award.[8]
  1. [12]
    A liberal construction is to be encouraged, remembering that awards are made for various industries and that they often result from an agreement where the words are framed without the careful attention to detail that one might expect from legislation. One must avoid too literal an adherence to the strict technical meaning of words and must view the matter more broadly after considering the entirety of the award.[9]
  1. [13]
    Any evidence of the conduct by parties, or others, subsequent to the making of an award cannot be relied on to construe its terms.[10] Awards, being widely available to the public, should be reasonably capable of being understood without having to delve into their history.[11] Whilst the purpose of a clause is often referred to, it is not necessarily the case that awards should be construed to maximise the achievement of a particular purpose that one or more provisions appear to pursue. It needs to be remembered that an award is likely the product of compromise and a provision may therefore reflect a balance of competing purposes.[12]

The arguments

  1. [14]
    Both parties agree that subclause 19.1 of the Award stipulates that the higher of two alternative amounts of pay is due to employees whose circumstances are captured by the subclause. The two different amounts are set out in subclause 19.1 of the Award. On the one hand, there is the usual wage rate, excluding shift penalties and public holiday penalties, plus the 17.5% leave loading. On the other hand, there is what the employee would have earned for working that day, which for this particular case, is a public holiday. Depending on the circumstances, the Award sets this second alternative pay amount for working on public holidays as either 150% or 250%, which is obviously higher than the 17.5% leave loading figure.
  1. [15]
    In summary, the Applicant's case is that the intent of subclause 19.1(b) of the Award is to provide for payment of (relevantly to this case) the higher public holiday penalties for employees who, but for being on annual leave, were otherwise due to work on the relevant public holiday in accordance with the projected roster. The Applicant presents its case with the aid of an example. Ms Helen Geedrick is a non-continuous shift worker whose hours are set out in an eight-week roster. Ms Geedrick is said to have taken a period of annual leave which included some public holidays. The example presented in the notice of dispute is that according to the eight-week roster, Ms Geedrick was due to work Easter Monday (10 April 2023), ANZAC Day (25 April 2023) and Labour Day (1 May 2023). When Ms Geedrick went on annual leave over that period of time, instead of being paid the penalty rates that she would have earned for working on those public holidays, the Respondent only paid Ms Geedrick a normal day's pay. Using this example, the Applicant's argument is that pursuant to subclause 19.1 of the Award, Ms Geedrick should have been paid what she would have earned had she worked those public holidays. It is unclear whether Ms Geedrick is in receipt of the extra week's leave, which I discuss further below.
  1. [16]
    The Respondent says that it has the right to amend the eight-week roster, even after it has been published. That includes by removing Ms Geedrick from the roster and noting her as "PHNR", which means "public holiday not required". It seems not to be in dispute that for those public holidays, no annual leave day was deducted from Ms Geedrick's leave balance. This part of the Respondent's case is that Ms Geedrick was not therefore on annual leave for those three public holidays. She received the benefit of a paid public holiday off work and no leave day was deducted from her leave balance. Hence, the Respondent argues, subclause 19.1(b) of the Award is not enlivened because Ms Geedrick was not on annual leave on any of those public holidays. As well, according to the roster, Ms Geedrick was not scheduled to work on either of those days due to the Respondent's lawful amendment of the roster prior to the days in question.
  1. [17]
    In support of that the Respondent points to s 31(2) of the IR Act, which provides that annual leave is exclusive of public holidays that fall during a period of annual leave. The Respondent argues that means that any public holiday falling within a period of annual leave cannot be treated as a day of annual leave within the meaning of subclause 19.1(b) of the Award.
  1. [18]
    The Respondent also points to subclause 23(g) of the Award, which provides that where an employee who is rostered off work on a public holiday, they will be paid an additional day's wages or be granted a day's holiday in lieu. The submission is that Ms Geedrick was therefore paid correctly in accordance with subclause 23(g) of the Award and that her payment for the annual leave period was exclusive of the public holidays which fell during the leave.
  1. [19]
    The Respondent submits that the phrase "public holiday penalties" in subclause 19.1(b) of the Award has no work to do in a case like this scenario. That is because there are no such penalty rates due because no work is rostered to be performed which would otherwise attract payment of those penalty rates.
  1. [20]
    The Respondent submits that the intention is not to allow an employee to be paid public holiday penalty rates where he or she does not wish to work on a particular public holiday, and applies to be absent on annual leave on that day. It cites the decision in Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) ('QNMU')[13] in support of that submission. On this issue, the Full Bench in QNMU relevantly said:

… any nurse or midwife who requests permission to not be required to work on a particular public holiday, or be deployed (or run the risk of being deployed) to another unit is making themselves unavailable for work on the public holiday. 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.[14]

  1. [21]
    The Full Bench decision in QNMU was upheld on appeal by his Honour, Martin P, as his Honour then was, in Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) ('QNMU Appeal Decision')[15].
  1. [22]
    The Respondent also points to the opening sentence in clause 19 of the Award, which says:

Annual leave

Annual leave is provided for in Division 5 of the QES. Clauses 19.1 to 19.4 supplement the QES.

  1. [23]
    The reference to "QES" is the Queensland Employment Standards as defined within the IR Act at s 21, which includes minimum provisions for annual leave. The Respondent argues that the word "supplement" as it is used in clause 19 of the Award is not defined. Clause 19 should not be read in a way that displaces the operation of the QES, the Respondent says. The purpose of ss 31(2) and (3) of the IR Act are to ensure that no detriment occurs to a relevant employee as a result of being on annual leave, in that the employee has no annual leave day deducted from their leave balance, but rather, has the day off, whilst being paid their ordinary rates of pay for that day.
  1. [24]
    The Applicant rejects the Respondent's submission on clause 19 of the Award regarding the word "supplement". Citing the Australian Concise Oxford Dictionary, the Applicant says that the word "supplement" means a thing added to remedy deficiencies or the adding of information to something. Accordingly, the submission is that the provisions in the Award are merely additions to, or enhancements of, the minimum standards set out in ss 31(2) and (3) of the IR Act.
  1. [25]
    The Applicant says that the operative effect of s 31(2) of the IR Act, and subclause 19.1 of the Award, is only to ensure that employees do not have their annual leave balance debited when a public holiday falls during their annual leave. The Applicant agrees that the purpose of ss 31 (2) and (3) of the IR Act is to ensure that no detriment occurs to an employee as the result of the being on annual leave at the relevant time.
  1. [26]
    To support this submission, the Applicant points to the introduction of annual leave loading itself. The Applicant argues that the purpose of annual leave loading is to compensate employees for their loss of opportunity to earn more than what is "ordinary" during periods in which the employees are on annual leave.[16] Citing the 1973 General Ruling that introduced annual leave loading,[17] the Applicant argues that the intention of the drafters of the Award was clear – to provide for penalty rates to be paid for public holidays that occur during annual leave so as to ensure employees working on shifts that attract penalty rates of pay did not lose pay when on annual leave. By virtue of that General Ruling, all industrial awards were varied to insert words analogous to those now under consideration. That is, for shift workers:

subject to paragraph (c) hereof the rate of wage to be paid to a shift worker shall be the rate payable for work in ordinary time according to the employee's roster or projected roster, including Saturday, Sunday or holiday shifts.

  1. [27]
    But, the Applicant says, pursuant to the supplementary or additional enhancement provided for in clause 19 of the Award, the employee who is on annual leave is to receive no less than the higher of the two alternative sums mentioned above.
  1. [28]
    I observe that that is the case with a public holiday shift which can, for certain public holidays, attract a loading of 250%. Weekends too are subject to penalty rates of pay higher than the annual leave loading of 17.5%. Subclause 15.5 of the Award, for instance, relevantly provides that shift workers working ordinary hours on Saturdays receive a loading of 150% and on Sundays it is 200%. Afternoon and night shifts for Monday to Friday work are set at 15%. So, by way of illustration, I surmise that the Applicant's argument here is that clause 19 of the Award provides that when a shift worker rostered to work weekends takes annual leave, they might receive 17.5% annual leave loading for the weekdays they would have worked according to the roster. For the weekends that they would have worked, they should receive the higher shift loading that they would have received had they not been on annual leave. That would generally be 150% for the Saturday and 200% for the Sunday. The Applicant argues that if there is a public holiday that would have been worked, the employee would be entitled to either 150% or 250%. This, the Applicant says, is nothing more than an Award enhancement to the basic minimum standards preserving the entitlement to both annual leave and public holidays provided by ss 31(2) and (3) of the IR Act. This is the work that the phrase "public holiday penalties" in subclause 19.1(b) of the Award has to do, the Applicant argues.
  1. [29]
    The Applicant says that the decision in QNMU has little relevance because that case did not squarely address the cognate provision to subclause 19.1 of the Award. Rather, QNMU focused on employees in receipt of additional leave. The Applicant argues that, whilst QNMU does address ss 31(3) and 117 of the IR Act, and subclauses 23(a) and (b) of the Award in relation to compensation for periods of annual leave, the dispute in this case does not relate to employees who receive additional leave. This distinction, the Applicant says, is key because the additional leave is compensation for the payment of penalties for working on public holidays.

Roster and projected roster

  1. [30]
    The parties were directed to put on submissions and evidence as to how rosters and projected rosters operated so the Commission could see how that process works. As noted above, those terms, "roster and projected roster", are key terms within subclause 19.1(b) of the Award.
  1. [31]
    The Applicant submits that if an employee gives enough notice of their annual leave application, they will not be placed on the roster as working any shift during that period of leave. The Applicant says that subclause 15.2(a) of the Award requires a roster pattern to be mutually agreed between the employer and the union and, accordingly, it can "generally be projected what shifts an employee would have been rostered". I surmise the argument here to be that even in a case where an employee applies for, and is approved to take, annual leave with so much notice that the employee is not ever rostered to work on shifts which might have included a public holiday, it is possible to discern a roster pattern that that employee would have worked but for being on annual leave. Therefore, that employee would still be entitled to be paid the penalty rates that would otherwise have been due had they worked according to that pattern.
  1. [32]
    The Applicant refers to the Department of Health Employee Relations Departmental Guidance note. It relevantly provides that a "projected roster must be generated, which includes the shift types the employee would have worked had they not taken the period of annual leave". I pause to note that the difficulty with relying on such a document is that it is no more than one of the parties' policies. As noted above, conduct by a party or a particular view held by a party cannot be relied on to interpret the Award.
  1. [33]
    The Applicant refers also to evidence provided by Ms Geedrick, which is that draft rosters are prepared in accordance with an eight-week rotating roster template. Where the employer reduces the number of staff rostered on a public holiday, these are referred to as "dropped shifts". The employer then notifies the employee in advance as to whether they are required on those particular days.
  1. [34]
    The Applicant submits that whether an employee would have been required to work on a particular public holiday, but for being away on annual leave, will turn on evidence that is unique to each case. The Applicant acknowledges that draft rosters are produced in advance and that these are subject to change for a variety of reasons, including employees who seek shift swaps before the final working roster is published. The Applicant also acknowledges that the employer may alter the roster, even once it has been published, and that this is done pursuant to subclause 15.2(d) of the Award. That subclause provides, I observe, that the employer may make changes to the rosters with 24 hours' notice.
  1. [35]
    The Applicant acknowledges that Ms Geedrick's evidence is such that where the employer notifies that a particular public holiday shift has been dropped, such an employee will no longer be rostered to work for that shift. The Applicant also acknowledges that dropped shifts would not form part of the projected roster for the purposes of calculating loading. But the Applicant argues that this is a different situation to the employer systematically altering rosters of employees who are on annual leave to ensure that the employee is deprived of the public holiday rates they would have earned had they not been on annual leave. The Applicant argues that such changes or manipulations of the roster by the employer would not be made for operational reasons but potentially for avoiding an entitlement under an industrial instrument, which would be unlawful. This argument is not developed in the sense that the Applicant does not discuss whether "operational reasons" includes, and if so to what extent, being motivated to reduce waste over public holiday periods by reducing staff numbers to meet lower anticipated demand. As I understand the Applicant's submission here, the issue is one of fact and degree.
  1. [36]
    The Respondent agrees that there is a draft roster produced and that it is subject to change. That process generally results in what is referred to as the "projected roster". However, the Respondent points out that it operates on the basis that a draft roster cannot be relied on as the projected roster. As well, the Respondent submits, the projected roster is also subject to change pursuant to subclauses 15.2(b) and (d) of the Award. The Respondent says that it is entitled to amend the roster, even the projected roster after it is published, by providing 24 hours' notice.
  1. [37]
    The Respondent further argues that it can reasonably require an employee to work on a public holiday and that, pursuant to s 116(1) of the IR Act, an employee is entitled be absent on a public holiday without loss of ordinary pay. The Respondent says that if it does not require an employee to work on a day that is a public holiday, even if that day is one that the employee would ordinarily have worked, it may advise the employee that they are not required. It can thereby lawfully vary the roster with the appropriate period of notice. Thus, the Respondent argues, the employee will be paid the base rate of pay satisfying the employee's entitlement to receive the benefit of a public holiday. That is, a day off without loss of ordinary pay.
  1. [38]
    The Respondent agrees with the Applicant's submissions and evidence in relation to "dropped shifts". The point being, the Respondent says, that by virtue of annual leave being exclusive of public holidays,[18] an employee is not actually on annual leave when a public holiday falls on the relevant day, which is why no annual leave day is deducted from the employee's leave balance for that day off with pay.

Consideration

The first question

  1. [39]
    To recap, the first question the parties seek to be arbitrated is:

In circumstances where a non-continuous shift worker who is not in receipt of the additional week's leave (Award clause 19.2), was rostered on a public holiday and takes annual leave over the period, having regard to clause 19.1 (b) of the Award, is the employee entitled to payment of projected roster (including public holiday penalties) in lieu of 17.5% when the projected roster is higher?

  1. [40]
    As noted above, the second question is much the same except it deals with an employee who is in receipt of the additional week's leave. That is, an employee who receives an additional week's annual leave in lieu of penalty rates they would otherwise have received for working on public holidays.
  1. [41]
    I accept the parties' submissions that the starting place is construing the words of the relevant clauses in the Award and legislation. Ascertaining the objective meaning of the words used is the aim,[19] and one must start with the natural and ordinary meaning of the relevant words.[20] Context is important, as is reading the Award as a whole.[21] It must also be borne in mind that a liberal construction is to be applied having regard to the fact that these instruments are not legislation and are not drafted with such legal rigour as legislation is.[22] I am mindful also that the history of various provisions is part of the pedigree that should not be delved into to understand the clauses in question.[23] The purpose of a clause is a consideration but it should not become the master of the exercise where the result must fit a stated purpose as advocated by one side or the other.[24] So too, I am mindful that the conduct of parties after an award is made is irrelevant to construing the terms of that award.[25] How one party or another has interpreted and applied a provision is not to be relied on in construing the true meaning of that provision.
  1. [42]
    Here the key Award clause is subclause 19.1(b), which says:
  1. A non-continuous shift worker proceeding on annual leave is entitled to receive the following payment:
  1. an amount equal to the wage rate being paid to the employee immediately before the employee takes the leave for the period of such leave calculated according to the employee's roster or projected roster including any shift, weekend or public holiday penalties; or
  1. an amount equal to the wage rate being paid to the employee immediately before the employee takes the leave for the period of such leave, excluding any shift, weekend or public holiday penalties plus a further 17.5% of this amount, whichever is the higher.
  1. [43]
    It is trite to observe that the minimum standards of the QES can be the subject of enhancement or improvement by way of award or certified agreement provisions. To a degree, I accept the Applicant's submission that the Award provides for permissible enhancements to, or supplements in the form of things additional to, the minimum rights and benefits provided by the IR Act's QES provisions dealing with annual leave.
  1. [44]
    For the first question then, the category of employees is those who would be entitled to be paid the appropriate penalty rates for working on a public holiday. To be clear, they are not in a class of employees who receive the additional week's leave in lieu of penalty rates for working on public holidays.
  1. [45]
    Subject to the operative effect of ss 31(2) and (3) of the IR Act, which I will come to shortly, I have no difficulty in construing subclause 19.1(b) of the Award. That is to say that I do not find it to be affected by a genuine ambiguity. The opening words of the clause contain a fundamental or threshold premise. That is stated within the words (my emphasis), "A non-continuous shift worker proceeding on annual leave is entitled to receive the following payment…". This is, I construe, a threshold that the drafters have set in place. It gives meaning to the rest of the clause. The employee must, in my opinion, be on annual leave for the day in question before they are entitled to either of the payments set out in subclauses (i) and (ii). A further indication that this is, by design, a critical threshold fact is that subclause (ii) provides for the annual leave loading sum of 17.5% of the ordinary rate of pay.  It cannot otherwise be sensibly construed that this clause deals only with what the relevant employee is to be paid when he or she is on annual leave. In my opinion, this clause does not operate unless an employee is on annual leave for the day or days in question.
  1. [46]
    The Award provides that for this category of employee, when they work a public holiday, they must be paid at double time and a half or a 250% loading with a minimum period of four hours.[26] That is obviously higher than the 17.5% annual leave loading. The next step is to construe the meaning of the phrase "…calculated according to the employee's roster or projected roster, including any shift, weekend or public holiday penalties".
  1. [47]
    I accept the submissions and evidence that both the roster and the projected roster are subject to change. That is provided for in the Award itself and can be done with as little as 24 hours' notice. That must be the case having regard to context. That context is that the business of running a health service, like any other, must be able to cope with unplanned staff absences as well as peaks and troughs in demand.
  1. [48]
    Noting that the terms are not defined, the Respondent argues that the word "roster" means the record of hours actually worked, whereas the phrase "projected roster" means an aspirational program of hours to be worked, subject to change. I do not find that to be a difficult proposition to accept. I observe that the word "or" separates these two alternatives. The drafters appear to have set out a rate of pay to be derived by referring to either of the two documents to see what they revealed was the shift the employee was rostered to work.
  1. [49]
    But the roster and projected roster are often changing. That then begs the question - at what point in the roster's potentially ever-changing state did the drafters intend this reference point to be? Was it when the roster was published? Or was it earlier, when it was a draft sent around for consultation? Or was it earlier still, when a pattern of work can be estimated before even a draft roster is prepared? There is no express indication of when in time this reference point is to be. But it is obviously implied in my opinion. Such an early reference point as the draft roster would be at odds with the industrial context of the Award in my opinion. That is because it would mean that once an employee was rostered to work a public holiday, even if they were on the draft roster for just a day before that draft was changed at their request, they would still be entitled to be paid public holiday penalty rates for a day that they had at some point in time, even very briefly, perhaps even accidentally, been rostered to work. That construction would lead to an absurd outcome in my opinion. The reference point can only reasonably be the roster as it was on the day/shift in question. That is, the exercise to be carried out is to refer to the roster as it was on the day in question to see what the rostered shift was for that day. That interpretation gives a sensible meaning to all of the words the drafters have used. It also allows for the industrial context, in particular the mechanism for changing rosters, which is obviously essential and is expressly provided for in the Award.
  1. [50]
    It is clear that there are three classes of penalties captured by subclause 19.1(b). They are shift penalty rates, weekend penalty rates and the public holiday penalty rates. Each is only due when the employee works those shifts. I accept that the clause is triggered when an employee, who would otherwise be entitled to be paid public holiday penalty rates for working on a public holiday, is on annual leave on a public holiday that the projected roster has depicted them as due to work. The important point here, however, is that the employee must be on annual leave that day. I have highlighted that above. The subclause only has work to do when the employee is on annual leave.
  1. [51]
    Here is where the parties' arguments about the operative effect of s 31 of the IR Act, as well as the QNMU decision and the QNMU Appeal Decision, are most relevant.
  1. [52]
    I do not accept the submission that the QNMU decision is of little relevance. As noted above, the QNMU decision was upheld on appeal. In the QNMU Appeal Decision, his Honour, Martin P, explained in detail the construction of ss 31(2) and (3) of the IR Act. That is something that has come up in this matter and does impact on interpreting clause 19 of the Award in my opinion. The above summary of the parties' submissions discloses that too.
  1. [53]
    On how s 31(2) of the IR Act operates, Martin P explained in the QNMU Appeal Decision (my emphasis)[27]:

[20] Section 31(2) deals with the situation where a public holiday falls during a period of annual leave. The effect of it is that annual leave pauses at midnight before the day of the public holiday and then recommences at midnight of the public holiday. Thus, for example, an employee who takes 4 weeks annual leave from Monday 1 October will have the benefit of the Queen’s Birthday public holiday and will not return to work until Tuesday 30 October.

[21] The next subsection commences with the word “however …” which serves to announce that there is an exception to the previous rule. It will only apply where a public holiday falls within a period of annual leave. Under this exception such a public holiday is included in the annual leave and, so, using the previous example, the employee would be required to return to work on Monday 29 October.

  1. [54]
    His Honour went on to explain that the IR Act did not provide the necessary entitlement for when this exception applies, which one had to consider relevant awards to find. Where an award provides for "additional annual leave as compensation for working on a particular public holiday", as is the case here, his Honour found that that was where the exception applied[28].
  1. [55]
    His Honour held there need only be an award entitlement providing for additional leave as compensation. Where a fixed number of extra days of annual leave is prescribed, no matter how many public holidays are worked, that was sufficient to trigger the exception. That is the case with the Award, at subclause 19.2.
  1. [56]
    Noting also the effect of s 32C of the Acts Interpretation Act 1954 (Qld) on s 31(3) of the IR Act, his Honour concluded that the use of the word "particular" simply allowed an award to identify the public holidays to which compensation applied. Some, but not other public holidays, could be stipulated in an award. His Honour observed that there was nothing in s 31 of the IR Act that required the compensation to be quid pro quo.[29]
  1. [57]
    So, an award could set a fixed number of days as compensation no matter how many public holidays were worked,[30] and for those employees captured by such a provision, that will trigger for them the exception in s 31(3) of the IR Act. His Honour went on to conclude that s 31(3) of the IR Act did not require an employee to actually work on a particular public holiday or holidays. The test was whether the employee was entitled to additional annual leave for working on a particular public holiday, not whether they worked on a particular public holiday. Thus, his Honour concluded, the correct construction of s 31(3) of the IR Act was that where an employee is entitled to compensation for working on a particular public holiday or holidays then public holidays are inclusive of annual leave.[31]
  1. [58]
    In the present case, the Award does provide for an entitlement to such compensation for some employees. But not to those in this first category of employees. Following in his Honour's footsteps, I am of the view that in a case like this first scenario, where the relevant category of employees is not entitled to additional annual leave for working on a particular public holiday, the exception in s 31(3) of the IR Act is not triggered. Accordingly, I consider the rule that his Honour identified in s 31(2) applies to this first category of employees. For them, as his Honour put it, annual leave pauses at midnight before the day of the public holiday and then recommences at midnight of the public holiday. The day in question is a public holiday, paid for at ordinary pay. No annual leave day should be deducted from the relevant leave balance/s.
  1. [59]
    It is true that the Award can, and does, provide for enhancements to the entitlements in the IR Act. But as I have noted above, subclause 19.1 of the Award contains an important threshold in order for the entitlements within it to be due. The employee must be on annual leave for the day in question for the entitlements in subclause 19.1(b) to be due. Whilst it can certainly be the case in relation to shift work and weekend work, which can attract higher penalties than the leave loading of 17.5%, for this first category of hypothetical employees, it is not possible for the public holiday loading to be due. That is because for this first category, to whom the s 31(3) IR Act exception does not apply, the construction that his Honour set out in the QNMU Appeal Decision must be applied. This category of employee is therefore not on annual leave for the day that is a public holiday. They are receiving the benefit of the public holiday, not at work, on full (ordinary) pay.

The answer to the first question

  1. [60]
    For the foregoing reasons, the answer to the first question is that where a non-continuous shift worker not receiving the additional week's leave was rostered on a public holiday takes annual leave over the period, the employee is not entitled to payment of public holiday penalties in lieu of 17.5%. In short, that is because she or he is not actually on annual leave that day.

The second question

  1. [61]
    To recap, the second question is:

In circumstances where a non-continuous shift worker who is in receipt of the additional week's leave (Award clause 19.2), was rostered on a public holiday, e.g. Easter Saturday, and takes annual leave over the period, having regard to clause 19.1 (b) of the Award, is the employee entitled to payment of  projected roster (including public holiday penalties) in lieu of 17.5% when the projected roster is higher?

  1. [62]
    The scenario depicted in the second question is, as I have mentioned above, quite a different one legally. That is the case where the relevant employee is entitled to additional annual leave as compensation for working on a particular public holiday. Thus, the s 31(3) IR Act exception that his Honour, Martin P, mentioned in the QNMU Appeal Decision is triggered.
  1. [63]
    What that means is that this category of employee can be on annual leave on the same day that a public holiday falls. That will bring subclause 19.1 of the Award into play, most relevantly for present purposes, in respect of any public holiday penalties that the employee would have earned had they not been on annual leave that day.
  1. [64]
    But what of an employee who is removed from the roster to work on the said public holiday? The employer has a very clear right to change the roster with as little as 24 hours' notice. Where the employer lawfully reduces staff required for a particular public holiday shift by amending the roster, those employees whose public holiday shifts were "dropped" are no longer entitled to be paid those public holiday penalties according to the roster or projected roster in my opinion. By amending the roster the employer has exercised the right to "drop" those shifts. I accept the submission that those employees whose public holiday shifts were "dropped" are thereby no longer entitled to be paid those shift penalties according to the roster or projected roster.
  1. [65]
    As I mentioned earlier, if the relevant employee is in the category of employees who receive the extra week's leave as compensation for working public holidays, then the s 31(3) exception applies. That category of employee can be on annual leave on a day that is a public holiday. The relevant employee can potentially therefore be legally entitled to be paid the public holiday penalty rates they would have earned by working on said public holiday but for the fact they were on annual leave that day. But whether they are actually entitled to those penalty rates is a question of fact. The important factual turning point between 'can be entitled to' and 'is entitled to' is the roster as it was at the time the day in question came to pass.
  1. [66]
    This is where the employer's right to amend the roster, draft or projected, with as little as 24 hours' notice is key. The words in subclause 19.1(b)(i) "calculated according to the employee's roster or projected roster" seem to me to reflect the situation that, but for taking annual leave, the employee was rostered to work that day. That is – the employer expected the employee to work and the roster/projected roster reflected that expectation. The context of scheduling staff for working shifts over weekends and public holidays by rostering is obvious throughout the Award. It is clearly a mechanism by which the employer can convey a direction, and expectation, for employees to work (or not) particular shifts set out in the roster and employees can know when they are working.
  1. [67]
    Where the roster is lawfully amended pursuant to subclause 15.2(d) of the Award, and certain shifts are dropped from the roster, I see that as being a situation where the employee is no longer expected or required to work on the shifts dropped. Using the monarch's birthday holiday example, in 2025 that public holiday is the King's Birthday celebrated on Monday 6 October by way of a public holiday gazetted for that day. Where an employee in this second category (for whom the s 31(3) IR Act exception applies) is on annual leave that day, if the roster or projected roster are not amended by at least 24 hours' notice in advance of that day to provide that the employee is no longer required to work that day, they will be entitled to be paid the public holiday penalty rate they would have earned according to the rostered shift worked on the public holiday. Conversely, if the employee was on annual leave that day but the roster is amended with 24 hours' notice before 6 October 2025, then they should be paid 17.5% loading pursuant to subclause 19.1(b)(ii) of the Award. That is because in those circumstances the roster, as amended, did not provide for the employee working that day. Therefore, calculating what they would have earned "according to" the roster means observing the fact that, as of 6 October, the roster did not provide for the employee to be working on that public holiday.

The answer to the second question

  1. [68]
    The second question really needs to be split. Having regard to my reasons above, I would rephrase second question as two and answer them this way:

for a non-continuous shift worker who is in receipt of the additional week's leave (Award subclause 19.2), who is on annual leave on a day that is a public holiday:

  1. where the projected roster is varied at least 24 hours before that public holiday to advise the employee that they are not required to work the rostered shift that day, then the employee is not entitled to payment of public holiday penalty rates in lieu of 17.5% leave loading; and
  1. where the projected roster is not varied at least 24 hours before that public holiday to advise the employee that they are not required to work that day, then the employee is entitled to payment of public holiday penalty rates they would have earned had they worked the roster.
  1. [69]
    This also answers the issue raised by the Applicant where an employee in this category has leave approved so far in advance of the relevant public holiday that the employee is not rostered to work on either the draft or projected roster when that day falls. In that case, the employee in this second category, who can be on an annual leave day when a public holiday falls, is not entitled to the public holiday penalty rates in my opinion. That is because at the time the public holiday in question arrives, calculating their rate of pay "according to the employee's roster or projected roster" reveals that they are not rostered to work. They therefore would not have earned any penalty rates "according to the employee's roster or projected roster".
  1. [70]
    In coming to this conclusion, I am mindful of the fact that the Award was the product of compromise and, in my opinion, subclause 19.1 is a clear manifestation of the balance between competing purposes.[32] On the one hand, there is provision for employees to receive, when on annual leave, what they would have earned (if higher than the 17.5% leave loading) for shifts they were rostered to work. On the other hand, there is provision for the employer to manage its resources according to cost and demand, sometimes at short notice.
  1. [71]
    There is nothing necessarily unlawful, as the Applicant has suggested might be, about an employer reducing its operating costs by thinning out the number of staff required to work on days where demand might be lower, especially if those days are public holidays that attract a higher penalty rate for staff. So long as it is done lawfully, which in this case means giving no less than 24 hours' notice, the employer may adapt its resources to meet days where there is a reduced demand. In some cases, demand might be higher on a public holiday and that is one of several scenarios where the ability to reasonably require employees to work on public holiday comes in. In this case, it is the business of providing health care. But that will just as easily apply to a range of industries such as retail, hospitality, clerical, manufacturing or automotive repairs, to name just a few.  Public holidays are a typical example where employers may choose to reduce or increase the staff on hand due to an anticipated need. They may choose to not open for business at all. There is nothing unusual or necessarily unlawful about reducing the number of staff directed to work on a given day, even when a reason for doing so is to avoid waste incurred by rostering on staff who are not actually needed.

Conclusion

  1. [72]
    For the foregoing reasons, I conclude that the answer to the first question is:

for a non-continuous shift worker who is not in receipt of the additional week's leave as compensation for working public holidays, who was rostered on a public holiday that falls during a period of annual leave, they will not be entitled to receive public holiday penalties for a public holiday. As matter of law, subclause 19.1 of the Award will not come into operation in that situation. That is because for this category of employee, to whom the s 31(3) IR Act exception does not apply, annual leave is exclusive of public holidays that fall during that leave.

  1. [73]
    I conclude that the answer to the second (rephrased) question is:

for a non-continuous shift worker who is in receipt of the additional week's leave (Award subclause 19.2), who is on annual leave on a day that is a public holiday:

  1. where the projected roster is varied at least 24 hours before that public holiday to advise the employee that they are not required to work the rostered shift that day, then the employee is not entitled to payment of public holiday penalty rates in lieu of 17.5% leave loading; and
  1. where the projected roster is not varied at least 24 hours before that public holiday to advise the employee that they are not required to work that day, then the employee is entitled to payment of public holiday penalty rates they would have earned had they worked the roster.
  1. [74]
    I order as follows:

Order

  1. The answers to the arbitration questions are as provided within paragraphs [72] and [73] of these reasons.

Footnotes

[1] Hospital and Health Service General Employees (Queensland Health) Award State 2015 cl 3 ('Award').

[2] Santos v Flour [2025] QSC 184.

[3] Herzfeld & Prince, Interpretation (Thomson Reuters, 3rd ed, 2024) [16.110], ('Interpretation'), citing Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, [22] ('TWU v Coles').

[4] Interpretation (n 3) [16.110], citing Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd (2006) 149 FCR 209, [44].

[5] Interpretation (n 3) [16.110], citing Civil Air Operations Officers' Association of Australia v Air services Australia [2004] FCA 55, [22], BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124, [20] ('BHP Billiton').

[6] Interpretation (n 3) [16.120], citing City of Wanneroo v Holmes (1989) 30 IR 362, 378 ('Holmes'); Kucks v CSR Ltd (1996) 66 IR 182, 184 ('Kucks'), BHP Billiton (n 5) [23].

[7] Interpretation (n 3) [16.130], citing Holmes (n 6) 378.

[8] Interpretation (n 3) [16.130], citing BHP Billiton (n 5) [20].

[9] Interpretation (n 3) [16.150], citing George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498, 503-504 ('McKenzie').

[10] Interpretation (n 3) [16.130], citing Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 (AIC) ('Adelaide Steamship Co'); Holmes (n 6) 379.

[11] Interpretation (n 3) [16.130], citing King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123, [43] ('King').

[12] Interpretation (n 3) [16.140], citing Tempo Services Lt v Robinson (2005) 91 SASR 439, [41] ('Tempo Services').

[13] [2018] QIRC 050, [73] ('QNMU').

[14] QNMU (n 13) [73].

[15] [2019] ICQ 12 ('QNMU Appeal Decision').

[16] citing Finance Sector Union of Australia v Commonwealth Bank of Australia [2022] FedCFamC2G 409, [131].

[17] In the matter of Annual Leave Standards and provisions relating thereto contained in Awards and Industrial Agreements of the Industrial Conciliation and Arbitration Commission of Queensland (1973) 84 QGIG 1217, 1217-1220.

[18] Industrial Relations Act 2016, s 31(2).

[19] Interpretation (n 3) [16.110], citing Transport TWU v Coles (n 3) [22].

[20] Interpretation (n 3) [16.120], citing Holmes (n 6) 378; Kucks, 184; BHP Billiton (n 5) [23].

[21] Interpretation (n 3) [16.130], citing Holmes (n 6) 378.

[22] Interpretation (n 3) [16.150], citing McKenzie (n 9) 503-504.

[23] Interpretation (n 3) [16.130], citing King (n 11) [43].

[24] Interpretation (n 3) [16.140], citing Tempo Services (n 12) [41].

[25] Interpretation (n 3) [16.130], citing Adelaide Steamship Co (n 10); Holmes (n 6) 379.

[26] Award (n 1) cl 23(a).

[27] QNMU Appeal Decision (n 15) [20]-[21].

[28] Ibid [22].

[29] Ibid [31].

[30] Ibid.

[31] QNMU Appeal Decision (n 15) [33].

[32] Interpretation (n 3) [16.140], citing Tempo Services (n 12) [41].

Close

Editorial Notes

  • Published Case Name:

    Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health)

  • MNC:

    [2025] QIRC 217

  • Court:

    QIRC

  • Judge(s):

    Pratt IC

  • Date:

    19 Aug 2025

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
BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124
2 citations
Jump To
Cite 1 - [2006] WASCA 124
Cite 2 - [2006] WASCA 124
City of Wanneroo v Holmes (1989) 30 IR 362
2 citations
Jump To
Cite 1 - (1989) 30 IR 362
Cite 2 - (1989) 30 IR 362
Civil Air Operations Officers' Association of Australia v Air services Australia [2004] FCA 55
2 citations
Jump To
Cite 1 - [2004] FCA 55
Cite 2 - [2004] FCA 55
Geo A Bond & Co Ltd (in liq) v McKenzie (1929) AR NSW 498
2 citations
Jump To
Cite 1 - (1929) AR NSW 498
Cite 2 - (1929) AR NSW 498
Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd (2006) 149 FCR 209
2 citations
Jump To
Cite 1 - (2006) 149 FCR 209
Cite 2 - (2006) 149 FCR 209
King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123
2 citations
Jump To
Cite 1 - [2021] FCAFC 123
Cite 2 - [2021] FCAFC 123
Kucks v CSR Ltd (1996) 66 IR 182
2 citations
Jump To
Cite 1 - (1996) 66 IR 182
Cite 2 - (1996) 66 IR 182
Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2018] QIRC 50
2 citations
Jump To
Cite 1 - [2018] QIRC 50
Cite 2 - [2018] QIRC 50
Queensland Nurses and Midwives' Union of Employees v State of Queensland (Department of Health) [2019] ICQ 12
2 citations
Jump To
Cite 1 - [2019] ICQ 12
Cite 2 - [2019] ICQ 12
Santos v Fluor [2025] QSC 184
1 citation
Jump To
Cite 1 - [2025] QSC 184
Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444
2 citations
Jump To
Cite 1 - (1976) 46 FLR 444
Cite 2 - (1976) 46 FLR 444
Tempo Services Lt v Robinson (2005) 91 SASR 439
2 citations
Jump To
Cite 1 - (2005) 91 SASR 439
Cite 2 - (2005) 91 SASR 439
Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148
2 citations
Jump To
Cite 1 - [2014] FCAFC 148
Cite 2 - [2014] FCAFC 148
Weir v Storry [2022] FedCFamC 2
2 citations
Jump To
Cite 1 - [2022] FedCFamC 2
Cite 2 - [2022] FedCFamC 2

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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