FEDERAL COURT OF AUSTRALIA

Shop Distributive & Allied Employees Association v Woolworths Ltd [2000]

 FCA 206

INDUSTRIAL LAW – interpretation of certified agreement – meaning of term “additional public holiday” – whether public holidays proclaimed under statutory authority constitute additional public holidays according to terms of the agreement

Workplace Relations Act 1996 (Cth) s413A

Industrial Relations Act 1988 (Cth) s170MC

Banks and Bank Holidays Act 1912 (NSW) s19

Woolworths Supermarkets – NSW/ACT Agreement 1998 cl 21

Retail Supermarket Industry – Woolworths – NSW/ACT Agreement 1995 cl 21

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION v WOOLWORTHS LIMITED & ORS

V712 OF 1999

MARSHALL J

20 MARCH 2000

SYDNEY (heard in Melbourne)

THE COURT ORDERS THAT:

1.         It is declared that each of 28 December 1999 and 3 January 2000 was not an additional public holiday within the meaning of cl 21.3 of the Woolworths Supermarkets - NSW/ACT Agreement 1998.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant, Shop, Distributive and Allied Employees Association (“SDA”) has applied pursuant to s413A(1)(b) of the Workplace Relations Act 1996 (Cth) (“the Act”) for an interpretation by the Court of the Woolworths Supermarkets – NSW/ACT Agreement 1998 (“the Agreement”).

2                     Section 413A(1)(b) of the Act provides that:

“The Court may give an interpretation of a certified agreement on application by:

….

(b)               an organisation or person bound by the certified agreement.”

3                     SDA is an organisation registered under the Act. It is a party to and bound by the Agreement. The other parties to the Agreement are the respondents. The first respondent, Woolworths Limited (“Woolworths”) is a major retailer which carries on business, inter alia, in New South Wales, Victoria and Queensland. Woolworths is a publicly listed company. The second and third respondents are wholly owned subsidiaries of Woolworths.

4                     Clause 3.2 of the Agreement provides as follows:

“This agreement shall be binding upon Woolworths Limited, Woolworths (Q’land) Limited and Woolworths (Vict.) Pty Ltd in respect of employees of those companies in the classifications specified in this agreement who are employed in the retail businesses operated by those companies (whether jointly or severally) under the following trading names:

            Woolworths Supermarkets, Safeway Supermarkets, Flemings Stores, Food For Less Stores, Pick of the Crop Stores, Mac’s Liquor Stores, Metro stores (excluding Town Hall), and Plus Petrol.

This agreement shall not apply to salaried Department and Store Managers.”

5                     The Agreement was certified by Deputy President Acton (as her Honour then was) of the Australian Industrial Relations Commission (“the Commission”). The Agreement came into force on 6 October 1998. Its nominal expiry date is 30 June 2001. The Agreement was certified pursuant to s170LT of the Act. As its title suggests, it applies in the State of New South Wales and in the Australian Capital Territory.

6                     The clause at the heart of the request for interpretation of the Agreement is cl 21 which deals with the topic of public holidays. A dispute has arisen between SDA and the respondents concerning the application of that clause to public holidays proclaimed by the Governor of New South Wales (“the Governor”) on 1 October 1999 pursuant to s19(1) of the Banks and Bank Holidays Act 1912 (NSW) (“The State Act”) with respect to 28 December 1999 and 3 January 2000.

Cause 21

7                     Clause 21 of the Agreement, provides as follows (so far as is material):

“21.     PUBLIC HOLIDAYS

21.1          Holidays

A weekly employee shall be entitled to holidays on the following days:-

21.1.1    New Year’s Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and

21.1.2    The following days, as prescribed in the relevant States, Territories and localities: Australia Day, Anzac Day, Queen’s Birthday and Eight Hours’ Day or Labour Day; and

21.1.3    In the Australian Capital Territory, Canberra Day.

21.2          Holidays in lieu

21.2.1    When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December.

21.2.2    When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 28 December.

21.2.3    When New Year’s Day or Australia Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on the next Monday.

21.3          Additional Holidays

Weekly employees shall be entitled without loss of pay to an additional public holiday or half day within the State or Territory or Locality, when such public holiday or half day public holiday is proclaimed or gazetted, and is to be observed generally by persons through the State, Territory or Locality.

Provided that such additional public holiday or half day public holiday shall be treated as additional paid time off or pay in lieu, but work performed on these days or half days shall not attract public holiday penalty rates. Where the State government proclaims multiple locality days or half days not generally observed throughout the state the parties will confer to nominate one day or two half day additional public holidays to be observed as set out above.

21.4          Substituted Days

Where a store opens for trade on an actual public holiday which has had the substitution provision of subclause 21.2 applied, the following shall apply:-

21.4.1    If a weekly employee is ordinarily rostered to work on the actual public holiday and the substituted day, then that employee and the Store Manager shall by mutual agreement determine which day shall be the public holiday and receive the standard public holiday benefits on that day. The other day shall then be a normal rostered day subject to paragraph 21.4.4 below.

21.4.2    If a weekly employee is rostered to work on the actual public holiday and not the substituted day, the employee shall receive the standard public holiday benefits on the actual day.

21.4.3    If a weekly employee is rostered to work on the substituted day and not the actual Public Holiday, the employee shall receive the public holiday benefits on the substituted day.

21.4.4    In the case of Christmas Day where substitution occurs, work on the 25^th December will attract an additional loading of half a normal day’s wage for a full day’s work in addition to the Saturday/Sunday rate and the employee will also be entitled to the benefits of the substituted public holiday.

21.4.5    Casual employees employed on the actual day of the prescribed holiday shall be paid at the normal rate for the day and be paid the relevant holiday rate for the substituted day.

21.5          Payment for Holidays not traded

Where a store does not open for trade on a public holiday and an employee would have been rostered to work on such a day but is not required to work, the employee shall be entitled to payment for the day based upon their ordinary single hourly rate of pay for the hours normally rostered to work.”

The predecessor provision

8                                 The predecessor provision to cl 21 of the Agreement was cl 21 of the Retail Supermarket Industry – Woolworths – NSW/ACT Agreement 1995 (“the 1995 Agreement”), an agreement certified by the Commission under s170MC of the Industrial Relations Act 1988 (Cth).

9                     Sub-clauses 21.1 to 21.3 inclusive in the 1995 Agreement provided as follows:

“21.1   Holidays

            A weekly employee shall be entitled to holidays on the following days:-

21.1.1            New Year’s Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and

21.1.2            The following days, as prescribed in the relevant States, Territories and localities: Australia Day, Anzac Day, Queen’s Birthday and Eight Hours’ Day or Labour Day; and

21.1.3            One other day to be specified according to State, Territory or locality or on the following basis:-

AUSTRALIAN CAPITAL TERRITORY        -    Canberra Day

-       Picnic Day

21.2           Holidays in lieu

21.2.1            When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December.

21.2.2            When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 28 December.

21.2.3            When New Year’s Day or Australia Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on the next Monday.

21.3           Additional holidays

            Weekly employees shall be entitled without loss of pay to an additional public holiday where in a State, Territory or locality, public holidays are declared or prescribed on days other than those set out in subclauses 21.1 and 21.2, those days shall constitute additional days for the purpose of this Agreement.”

Competing contentions

10                  Mr R Tracey QC, with Mr T Ginnane of counsel appeared for SDA. Mr Tracey submitted that cl 21.3 of the Agreement is a stand alone sub-clause which, according to its terms, applied to make 28 December 1999 and 3 January 2000 additional public holidays over and above the public holidays referred to in sub-clauses 21.1 and 21.2. Mr Tracey conceded that if cl 21.3 of the Agreement was in the same terms as cl 21.3 of the 1995 Agreement his submissions would not be persuasive. He emphasised the presence of the wording in cl 21.3 of the 1995 Agreement of “on days other than those set out in sub-clauses 21.1 and 21.2”. He contrasted the provisions of the Agreement in which those words do not appear.

11                  Mr G Hatcher, of counsel, appeared for the respondents. He submitted that the change in wording between the 1995 Agreement and the Agreement in cl 21.3 was merely one of drafting style. He contended that there was no other logical interpretation to cl 21.3 of the Agreement other than one which read the entitlement to “an additional public holiday” as an entitlement to a public holiday in addition to the public holidays provided for in the two prior sub-clauses.

12                  Central to Mr Hatcher’s submissions was the identification by him of 28 December and 3 January as days which had acquired public holiday status by the application of cl 21.2 of the Agreement, thus making them substitute public holidays for Boxing Day and New Years Day, each falling on a weekend day. Mr Hatcher contended that when the Governor proclaims “an additional public holiday” it will only be an additional public holiday for the purposes of the Agreement if not already made a public holiday by the Agreement. To make good that point counsel referred to a situation where Easter Monday fell on Anzac Day, emphasising that employees would not receive two public holidays for the day.

Consideration

13                  Inter alia cl 21.1 of the Agreement provides an employee with an entitlement to a holiday on New Years Day, Christmas Day and Boxing Day without loss of pay. Clause 21.2 provides for “a holiday in lieu” of Christmas Day to be observed on 27 December when Christmas Day falls on a weekend day. It also provides for “a holiday in lieu” to be observed on 28 December when Boxing Day falls on a weekend day. It further provides for “a holiday in lieu” to be observed “on the next Monday” when New Years Day falls as a weekend day.

14                  Clause 21.4 is instructive in demonstrating how public holiday entitlements are accorded to employees in the event of Christmas Day, Boxing Day and New Years Day falling on a weekend day when trading occurs.

15                  The effect of cl 21.4 may be summarised as follows:

·        If an employee is rostered to work on Christmas Day which is a Saturday (for example as part of a roster in which she is not required to work on a Thursday or Friday), the employee is entitled to Monday 27 December as a substitute holiday and by mutual agreement with her employer may treat either the Saturday or the Monday as the public holiday.

·        If an employee is rostered to work on Christmas Day but rostered off on the Monday (for example as part of a roster which does not require work to be performed on Monday or Tuesday), then Christmas Day (the Saturday) will be treated as the public holiday.

·        If an employee is rostered to work on the Monday but rostered off on the Saturday (for example as part of a roster which does not require work to be performed on weekends), then the Monday will be treated as the public holiday.

·        The same approach would apply to Boxing Day (the Sunday) with respect to 28 December (the Thursday) and also to New Years Day (the Saturday) with respect to 3 January (the Monday).

·        In none of the above examples is the employee entitled to the usual public holiday and the substituted day. In truth 28 December and 3 January are not additional public holidays within the meaning of cl 21.3 of the Agreement but in the context of cl 21, when read as a whole, they are public holidays for which provision has already been made by cl 21.2 of the Agreement.

16                  I can discern no significance in the alteration in the wording of cl 21.3 of the 1995 Agreement when compared to cl 21.3 of the Agreement. I accept Mr Hatcher’s submission that the change appears to involve a different drafting approach to achieve the same end. One might legitimately ask when cl 21.3 refers to an entitlement to “an additional public holiday”, additional to what? In my view the true construction of the sub-clause requires the following answer – “additional to those provided for in cl 21.1 and cl 21.2, in circumstances where  cl 21.2 embraces substitute public holidays”.

17                  In my opinion 28 December and 3 January were not additional public holidays when cl 21 is considered as a whole and in proper context. Consequently the interpretation sought by SDA must be rejected.

Order

18                  To give effect to the request of SDA for an interpretation of the Agreement it is appropriate to order as follows:

“It is declared that each of 28 December 1999 and 3 January 2000 was not an additional public holiday within the meaning of cl 21.3 of the Woolworths Supermarkets - NSW/ACT Agreement 1998.”

Associate:

Dated: