C2005/4496, Transcript of Proceedings [2006] AIRCTrans 148 (9 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14026-1

COMMISSIONER RICHARDS

C2005/4496

AUSTRALIAN LICENCED AIRCRAFT ENGINEERS ASSOCIATION, THE
AND
SUNSTATE AIRLINES (QLD) PTY LIMITED
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/4496)

BRISBANE

10.07AM, FRIDAY, 20 JANUARY 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN BRISBANE

Reserved for Decision

PN1

MR B FARNHAM: If the Commission pleases I appear for the Australian Licenced Aircraft Engineers Association.

PN2

MS P DYBALL: If it please the Commission I appear for Sunstate Airlines Queensland Pty Limited and with me is MR S HILL who is the Line Maintenance Manager for Sunstate.

PN3

THE COMMISSIONER: Good, thank you Ms Dyball. If I can just indicate to the parties that I have read the submissions that have been submitted consistent with the direction's requirements, if that assists you in purpose of how you wish to present and make submissions today. Now that said I will turn to Mr Farnham.

PN4

MR FARNHAM: Commissioner, it is not my intention to reread the submissions over again, those submissions have been provided by the parties and the matters that are agreed by the parties have also been provided. Commissioner, I present my intention this morning to summarise our position briefly, in terms of what is the matter in dispute between the parties and the issues we are seeking the Commission to resolve.

PN5

THE COMMISSIONER: Okay, perhaps before you do, just one or two matters, I notice from the statement of agreed facts it would appear that you have now acceded to the company's view of the payments it made on the Saturday 25 December.

PN6

MR FARNHAM: No. The parties have not agreed to those, the parties have agreed that that is what company it is.

PN7

THE COMMISSIONER: Yes, sorry that is what I mean.

PN8

MR FARNHAM: Yes, I am sorry.

PN9

THE COMMISSIONER: That is what the company - - -

PN10

MR FARNHAM: I thought you were meaning that we have now agreed to those payments.

PN11

THE COMMISSIONER: No, you have agreed to the manner in which the company has representing payment - - -

PN12

MR FARNHAM: We have agreed that that is the manner in which the company paid the employees, we still do not believe that those payments accord with the terms of the agreement

PN13

THE COMMISSIONER: Okay, but there are two issues, if you are going to characterise the dispute for the jurisdictional purposes well and good, but can you just also make some comment on whether the clause in the applicable agreement also appropriately empowers the Commission, and I take it from the written submissions that this is not a contested area, and I will leave that to the parties just to - - -

PN14

MR FARNHAM: Commissioner, we believe it can be appropriately be dealt with under the settlement of the dispute provisions contained within the agreement, whether that is by way of - I think both parties have asked the Commissioner to make an order. Our view is that if the Commission made a recommendation in the matter. I believe that my colleague's position that on the base that we have notified the matter to the Commission we would be prepared to accept the recommendation from the Commission on this matter if that is the better alternative.

PN15

THE COMMISSIONER: Okay, the clause itself has had some complexity in it but I notice it has a final sentence that states - that is I am referring to clause 20 of the settlement dispute saying:

PN16

Licenced Aircraft Engineers Sunstate Airlines Enterprise Agreement 2003-2006.

PN17

Whilst that clause 20 has some complexity in it I note that the final sentence to that clause reads:

PN18

To the extent necessary to do so the parties are therefore committed to the Commission performing a private arbitration function necessary on matters contained in this agreement.

PN19

And I presume that refers to disputes arising in relation to this agreement and this is such a dispute.

PN20

MR FARNHAM: No.

PN21

THE COMMISSIONER: That is not a contested matter. Ms Dyball, is that the case?

PN22

MS DYBALL: Yes, that is correct.

PN23

THE COMMISSIONER: Good, thank you.

PN24

MR FARNHAM: No we agree with that Commissioner.

PN25

THE COMMISSIONER: Yes, thank you for that. Okay, Mr Farnham?

PN26

MR FARNHAM: Commissioner, if I can just summarise briefly, I suppose the dispute goes to the construction of the clauses in question, and that is particularly clause 9B(iv) and 11B(ii).

PN27

THE COMMISSIONER: Sorry, can I just interrupt you there. Sorry my mind was just stuck on something you mentioned a few moments ago, I am sorry to interrupt your flow Mr Farnham, that is twice that I have put you back on the blocks and I apologise. The other matter is you have asked the Commission to carry out a private arbitration function and mentioned you saw that by way of a recommendation or something of that sort, which the parties would accept as binding. So I take it that the parties' view is that the Commission is to carry out effectively, a private arbitration and there will be an outcome of that, that will be a decision and that that is the form in which the parties anticipate the Commission expressing the outcome of the private arbitration. I ask that question because there are different ways of doing it, of expressing the outcome.

PN28

I presume from what Mr Farnham has told me a decision should be made and the parties will take that as being the outcome of the private arbitration and enforceable on its own terms and they are not looking for an order to be made under the Act embodying that private arbitration. Is that how the parties see it as operating?

PN29

MR FARNHAM: The best I can put it Commissioner, we leave you to deal with it in which you believe is the most appropriate way. Whatever way the Commission deals with it, if there is a decision or recommendation, our policy has always been if we referred a matter to the Commission, if the Commission makes a recommendation well then we will abide by that decision.

PN30

THE COMMISSIONER: Okay.

PN31

MR FARNHAM: Now whether it is by light of recommendation, by way of an order in terms of the relevant clause of the agreement, I would say we would say whichever the Commission deems the most appropriate way to deal with the matter. I think our position is we just want to see the matter resolved.

PN32

THE COMMISSIONER: Ms Dyball?

PN33

MS DYBALL: Thanks Commission, look I will confer with Mr Farnham on this issue. We note that in the submissions I think both parties expressed a request for an order to be made but in the circumstances if it is more reasonable for the Commission to make a recommendation or produce it as a decision, we will abide by that.

PN34

THE COMMISSIONER: Yes, so it is really just a question of what the parties are seeking and what the terms of the agreement requires. But it appears to me that the submission of the parties jointly is that the parties are seeking this matter to be brought to finality irrespective of which the form that that ultimately takes.

PN35

MR FARNHAM: That is correct.

PN36

MS DYBALL: That is correct.

PN37

THE COMMISSIONER: Good, thank you Mr Farnham, I will now let you have your got.

PN38

MR FARNHAM: Commissioner, as I was saying it is our view the dispute to be determined arises particularly from the construction of clauses 9B(iv), 9BE(ii) and that is in regards to which day the Christmas Day penalty should apply to and clause 11 regarding which days were deemed to be public holidays for payment purposes of the Christmas period 2004. The question is whether there is any ambiguity in the language contained within those clauses of the Sunstate agreement. Which I suppose is one of the first things that I learned in this Commission many years ago and has been said to me by a number of commissioners, "Mr Farnham, read the words that are written", or as one Commissioner put it to me one day, "Read the words that are writ". It is our view that in terms of the revisions of the clauses that I have referred, we believe the way the clauses are written, that the company, it being the Christmas period 2004 - incorrectly applied those clauses of the award.

PN39

Now the first matter that is in dispute is it can be seen that for 2004 we may recall the state government proclaim, prescribe, gazetted, whatever the appropriate term is, that the Monday the 27th was a substitute holiday for Boxing Day and Tuesday the 28th was a substitute holiday for Christmas Day. The reason being as I can recall is that they did not open the shops on Boxing Day and they made the Monday the Boxing Day holiday, so for shopping purposes that is my recollection, but normally it would have been Monday Christmas Day, Tuesday Boxing Day, but in 2004 the state government reversed those days and that was the Monday was the public holiday for Boxing Day and the Tuesday was the public holiday for Christmas Day.

PN40

Now the first issue Commissioner is - and under those circumstances what the company did was applied the Christmas Day penalty which is double time and a half on the substitute holiday for Christmas Day which was Monday the 27th and they applied the normal weekend penalty for the Christmas Day on the Saturday, which is time and a half plus 50 per cent. Now it is our view that the agreement is quite clear in terms of what day should apply for the double time and a half and it cannot be any clearer. In the clause - and extracts of the agreement have been provided in our folders, Commissioner - but in regards to clause 9B(iv), clearly says:

PN41

All shifts worked on Christmas Day, 25 December and Good Friday, double time and a half.

PN42

Now it does not only say Christmas Day, if it said Christmas Day there may be some argument that the substitute holiday for Christmas Day then becomes Christmas Day for the penalty of the double time and a half, but the agreement quite clearly states the Christmas Day under the Sunstate agreement is deemed to be 25 December. It is again repeated in clause 11E(ii):

PN43

Shift workers who are rostered off on a public holidays shall be entitled to single time rate of pay for that day instead of a day in lieu.

PN44

Sorry I am reading from the wrong section.

PN45

A shift worker who is required to work on a public holiday shall be paid at a rate of double time for all time worked on that day, however in the case of Christmas Day (25 December) and Good Friday the shift worker shall be paid at the rate of double time and a half.

PN46

Again, Christmas Day is expressed as Christmas Day (25 December). Obviously the parties have agreed in the circumstances of this agreement, the day that the double time and a half penalty should apply is 25 December, Christmas Day. Now the company, in our view, incorrectly applied the agreement by applying the double time and a half penalty for the substitute day the 27th, and not 25 December.

PN47

Now I know there has been some reference to the Full Bench test case decision on public holidays, I think it should be noted that that decision was handed down in 1995, parties entered into this agreement in March 2004. Obviously the parties were aware, and I know there was some reference to that in terms of the Full Bench, but the parties have agreed in this agreement that appropriate for the people that work for Sunstate, bearing in mind those employees are 12 hour shift workers which is fairly unique in the industry, that the appropriate day for the public holiday penalty is 25 December, not any substitute day that may apply in regards to Christmas Day.

PN48

The other issue in contention, Commissioner, is clause 11C, which is under holidays, Sunday work - - -

PN49

THE COMMISSIONER: Can I just take you back to clause 9 again.

PN50

MR FARNHAM: Yes.

PN51

THE COMMISSIONER: So your argument is dependant on the reference to the specified date is it?

PN52

MR FARNHAM: Yes, Commissioner. It is the only public holiday that has a date aligned to it.

PN53

THE COMMISSIONER: So you ascribed a meaning to the inclusion of that date to be an express agreement between the parties to apply the penalty on that particular day only, such that the substitution effects of the latter clause, that is clause 11, do not have the effect of migrating the penalty to the substituted day when it occurs on a weekend, that being of the agreement the Monday the 27th?

PN54

MR FARNHAM: That is correct, Commissioner. I would argue that if it said Christmas Day the 25th, Boxing Day the 26th, the same would apply, that they were the days. But obviously the only day out of all the public holidays that has a nominated date is Christmas Day. And it is quite obvious, I do not believe that clause can be read in any other way, that the intention of the parties was that the day that the double time and a half applied was Christmas Day and to emphasise that point the date of 25 December was inserted in those two clauses. Clearly defined that was the day that the parties believed that the penalty should apply.

PN55

Otherwise Commissioner, there is to be no reason or no meaning for the parties to insert the date at all, it would just read as the other public holidays as the defined public holidays and whatever applied would apply.

PN56

As I say it has clearly been the intention of the parties, and I know there is a strong view amongst our membership in this industry that those who should receive the double time and a half are those people who actually work the Christmas Day. Bearing in mind that the majority, if not all of our members in this industry work 12 hour shifts, which means that they are pretty much away for the whole of the Christmas Day, which you know people see as being important being home with their wives and families and their children. And it is a fairly important issue to our members that in fact the day it should apply to is the 25th.

PN57

It is our view that it cannot be read in any other way. The parties' intention was that 25 December was the day that the double time and a half should apply. Now the company argues, "Well if that is the case well then we will have to retrieve the double time and a half from those people that we paid on the 27th." Now we tried to negotiate with the company, we tried to come to a settlement on this matter addressing that issue. We do not believe that - of course the company made an error in terms of the date that they applied the penalty to, they should now be saying, "Well we are going to go back and retrieve the payment from those we paid on the 27th". Now it might be argued they have a legal right to do so, but I suppose our argument would be, "Do they have a moral right?"

PN58

Again, our members clearly are of the clear understanding regardless of what the circumstances may be, and I have spoken to them over this issue, that there may be some attempt by the company to retrieve payment for those who were paid on the 27th, even those people that worked on the 27th say, "Well our view is that the people that worked on the 25th are those who should have received it and are entitled to it". But we do not believe it is fair or reasonable to say, "Well if we are told we should not have done that well we are now going to go back and take the money off them". But that is for the company, as I say we believe it is quite clearly indicated that 25 December is the day that the penalty should apply to and should apply into the future. Because again it is a matter that still remains in dispute between the parties.

PN59

Commissioner, the other issue in dispute, and again it is a matter of what the words say in the agreement, the other issue in dispute is clause 11C or probably B and C together.

PN60

When Christmas Day is the Saturday or Sunday, a holiday in lieu thereof shall be observed on 27 December. Where Boxing Day is the Saturday or the Sunday, a holiday in lieu thereof shall be observed on 28 December.

PN61

I will not read the next one. C is the applicable clause:

PN62

Where in a state/territory or locality public holidays are declared or prescribed on days other than those set out in A and B above, those days shall constitute additional holidays for the purpose of this agreement.

PN63

Again it is our view that the state government prescribed days on other than those days above. It may be argued, well it is a fairly moot point, all they did was prescribe Tuesday as the substitute holiday for Christmas Day and Monday as the substitute holiday for Boxing Day and that is a fairly moot point. The facts are that clause C quite clearly says that where those are declared or prescribed on days other than those set out above, and set out above says Christmas Day will be the 27th and Boxing Day will be the 28th, in fact the state government prescribed Boxing Day as the 27th and Christmas Day as the 28th.

PN64

Quite clearly under those circumstances where it says:

PN65

Where in the state/territory or locality public holidays are declared or prescribed on days other than those -

PN66

and they were days other than those set out in B:

PN67

those days shall constitute additional holidays for the purpose of this agreement.

PN68

Under those circumstances what we say is that the clause quite clearly states under those circumstances that Saturday is a public holiday, Sunday is a public holiday, Monday is an additional day in accordance with clause C and Tuesday is an additional day in accordance with clause C.

PN69

THE COMMISSIONER: Okay, can we just stop there and just run through - can we take the totality of your submission in respect of the Saturday the 25th, the day in which penalties, the 250 per cent penalty is to apply, as well as the second limb of your argument in relation to the additional days. Can we just work through what happens on each of those days in relation to entitlements. So on the basis of your submission you are saying that Saturday the 25th is a public holiday on which the 250 per cent premium should apply where shifts are worked by persons rostered on. Persons not rostered on on that day, what is your submission there?

PN70

MR FARNHAM: Commissioner, I suppose the best way to summarise it is this and that is that what we argue is correct and what the company argues is correct. If our submission is correct, and that is that Christmas Day, Boxing Day are both holidays and Monday and Tuesday are additional days, and that is our argument, what would happen under those circumstances? If our argument is correct about the 25th being Christmas Day, the totality of our argument is correct, those people who worked would be paid double time and a half for the Saturday, those who were rostered off would - they do not get an additional day, they would get an additional day's pay. Most of our other agreements they get an additional day, but the Sunstate agreement they get an additional day's pay.

PN71

So the people who worked would get double time and a half for Christmas Day, those who were rostered off would get a day's pay. For the Sunday, Boxing Day, those who worked would get double time, that happens to be the Sunday penalty anyway, but they would get double time. I am talking about now on our argument and those who were rostered off would get an additional day's pay in lieu.

PN72

Our argument is correct that the Monday and Tuesday are in fact additional days, those who worked on the Monday would get the public holiday penalty which is double time, those who were rostered off would get a day's pay. Tuesday, similarly, being an additional day, those who worked would get double time and those who were rostered off would get a day's pay. Now that is our argument.

PN73

In terms of the company's application, the company's argument, firstly they say that the Saturday was not the Christmas Day penalty; so what they applied was the normal Saturday penalty of time and a half but applied a further 50 per cent in accordance with the test case which is double time. But there was no day in lieu for that day for people who were rostered off or an additional day's pay. Similarly on the Sunday, because that was now not the Boxing Day holiday, double time would apply for those people who worked which was the normal Sunday penalty, those who were rostered off on that day there would be no additional payment. On the company's interpretation the Monday would now be the Christmas Day holiday, that is the day they applied the double time and a half and those who were rostered off on that day received an additional day's pay. No, sorry I got that wrong, sorry Commissioner, I got that wrong.

PN74

The Monday was the Boxing Day not the Christmas Day. The Monday was the Boxing Day, they would have got double time and a half on the Monday and a day in lieu. On the Tuesday, which was the Christmas Day holiday, double time and a half and anybody rostered off would have got an additional day's pay in lieu.

PN75

THE COMMISSIONER: So your argument is that but for the manner in which the gazettal instrument dealt with the Tuesday and the Monday, the company properly applied clause 11; but for that gazettal?

PN76

MR FARNHAM: With the words in the agreement.

PN77

THE COMMISSIONER: Yes, the words in the agreement were properly applied, but - - -

PN78

MR FARNHAM: If the words in the agreement - if state government had done nothing, in terms of the words of the agreement there would be a dispute about which day the - - -

PN79

THE COMMISSIONER: Yes, putting aside the penalty.

PN80

MR FARNHAM: Yes, the Christmas Day penalty should apply, but in terms of the agreement, in terms of additional day's pay for those - probably the best one to look at is those rostered off - yes, they would have complied with the agreement.

PN81

THE COMMISSIONER: So the proper application of clause 11 is always contingent upon the gazettal perspective of the state government?

PN82

MR FARNHAM: Yes.

PN83

THE COMMISSIONER: Well that is probably not correct because it was properly applied, but the effect for purposes of the additional days subclause, is contingent on the manner in which the state government gazettes.

PN84

MR FARNHAM: Well I suppose the answer to that is yes and no. If the state government gazetted the Monday and Tuesday as additional days there would be no argument, they would be additional days. But this clause goes further, if the clause said if the state government gazettes additional days those will be additional in accordance with the agreement, that is not what the clause said. And if you read any of our other agreements we had with other companies in the aviation industry that is basically what they say. If additional days are gazetted by the state government, they are additional days in accordance with the agreement. This agreement goes further, it says:

PN85

Where in the state/territory or locality a public holiday is declared or prescribed on days other than those set out in A and B.

PN86

If it said, "If the state government prescribed additional days they will be additional days in accordance with this clause of the agreement", there would be no argument. That is not what the clause says. The clause says if they are declared or prescribed on days other than those named then the days shall constitute additional days. Now although there may be a change in Christmas Day being the Monday and Boxing Day being the Tuesday, the days were prescribed on days other than contained within the agreement. And the agreement then becomes quite clear that in terms of the agreement, not as a result of the gazettal of the government, but by the words of this agreement those days become additional days.

PN87

THE COMMISSIONER: And your argument is that that conjunction of circumstances creates additional entitlements in respect of public holidays?

PN88

MR FARNHAM: Well there is nothing precludes the parties in terms of an enterprise agreement, negotiate an agreement which applies additional entitlements to employees. As I say the decision by the Full Bench was in 1995 these negotiations were in 1994, it is an enterprise agreement where parties are negotiating conditions appropriate to the enterprise, and quite obviously the words of that clause were deemed to be the appropriate provisions for the enterprise of Sunstate Airlines.

PN89

Now, as I say if the parties had have agreed that should the state government prescribe additional days, those additional days would apply. There will be no argument in terms of what the words mean. If they gazetted substitute days well then there would not be additional days. These words quite clearly that if the government prescribes days, and it does not say additional days, prescribes days on days other than those contained in this clause then they are additional days.

PN90

They are the words that the parties have agreed to and both parties were well aware of what was being agreed to and stood in this Commission and said that they agreed to the provisions contained within the agreement. As I say, they were deemed by the parties at the time that the conditions appropriate to the enterprise of Sunstate Airlines in their various establishments.

PN91

But bear in mind that there has been some reference in terms of the Full Bench decision that page 29 of that decision they say:

PN92

With this decision we see the Full Bench's task in constructing a safety net of prescribed public holidays as being completed.

PN93

Now the parties have not breached any safety net provisions in regards to the issues that we are talking about, they may be better than those contained within that decision, but that is the right of the parties in terms of negotiating the provisions of this agreement.

PN94

I think another thing was said in the company's submissions, that the intention of the test case was employees receive 11 public holidays a year, that is not correct. If the state government was to prescribe four additional public holidays a year well then there would be 15 public holidays in the year, so it is not limited to 11 public holidays a year. And nor were other parties in terms of negotiating the agreement, limited to 11 public holidays a year if the parties agreed to a provision which is more beneficial to the enterprise of Sunstate.

PN95

Commissioner, I did say earlier that my intention was to purely summarise our position. As I said earlier I believe the dispute goes to the question of construction of clause 9B(iv), 11B(ii) and 11C, I think it is, in regards to the three issues and whether there is any ambiguity in terms of the verbiage contained within those clauses of the agreement. It is our view there is not, it is our view that quite clearly that the day that the double time and a half penalty should apply is Christmas Day the 25th. The agreement quite clearly says that and there can be no ambiguity in regards to which day is deemed to be Christmas Day in accordance with this agreement.

PN96

As far as the clause C is concerned, well again we believe there is no ambiguity, it quite clearly says that if public holidays are declared or prescribed on days other than those set out in A and B above, those days shall constitute additional days for the purpose of this agreement. As I said, Commissioner, I have been advised many times in arguments in the Commission, "Mr Farnham, read the words, read the words that are written there". I think in this case we have read the words, we have read the words that are written there and it is our view that the way the company applied the provisions of those two clauses in the agreement for the Christmas period 2004 was incorrect, and that those errors should be corrected by the Commission. If the Commission pleases.

PN97

THE COMMISSIONER: Good, thanks Mr Farnham. Ms Dyball?

PN98

MS DYBALL: Thank you, Commissioner. I guess in terms of my submissions today I intend, as Mr Farnham has, just to summarise for the Commission's benefit the crux of the company's arguments in relation to the two issues in dispute. I think all parties are quite clear at this point on what payments were actually made for the Christmas period so I do not intend to rehash that again unless the Commission has any further clarity that it is seeking?

PN99

THE COMMISSIONER: No, the only permutation that I would like to have some advice or submission on was that if Mr Farnham's was accepted in relation to the day on which the Christmas penalty was to apply that being the 25th, what implication would that have for the penalties and other entitlements for the Monday and the Tuesday?

PN100

MS DYBALL: Yes Commissioner, if the ALAEA's position was accepted and it was deemed that the double time and a half Christmas Day penalty were to be paid on the Saturday 25 December, in effect that has a result that the Christmas Day substitute public holiday on the Monday 27 December would therefore be paid as a normal public holiday at double time. For those employees that worked on that day that is resulted then in an overpayment of 50 per cent, which the company would then seek to retrieve.

PN101

THE COMMISSIONER: What would happen to those not rostered on on that Monday?

PN102

MS DYBALL: If we are talking just in relation to the first issue at hand our position would be that that Monday still retains the substitute public holiday so therefore those not rostered on would still have been correctly paid the additional day in lieu because that would still be the public holiday for that entitlement.

PN103

THE COMMISSIONER: So if the 250 per cent penalty applied to the Saturday what would happen to those not rostered on that day?

PN104

MS DYBALL: On the Saturday?

PN105

THE COMMISSIONER: On the Saturday?

PN106

MS DYBALL: There would be no change.

PN107

THE COMMISSIONER: That is there would be no additional day's pay for those not rostered on that day?

PN108

MS DYBALL: Correct, because the argument of the ALAEA as I understand it in the first issue, is just the payment of the 250 per cent under clause 9. The second issue then comes to whether the 25th becomes a public holiday or not.

PN109

MR FARNHAM: Commissioner, I did mention, if I can assist, leave aside our argument about additional days, if the Monday and Tuesday had been substitute days for Christmas Day and Boxing Day, we would still argue that the 25th is the day the penalty should apply on for those working. But the day in lieu would apply to the substitute Christmas Day. We are not argument that the - because the people rostered off are not being affected as those people who are leaving their family to go to work, so we are not arguing that the 25th is the day the double time and a half should apply to, well then the day in lieu should also apply.

PN110

Leaving aside the additional day argument if Monday and Tuesday were substitute days we are saying the 25th is the day the double time and a half penalty should apply to, but the day in lieu would still be the substitute Monday and the substitute Tuesday.

PN111

THE COMMISSIONER: Yes, but if your second limb of your argument is accepted does that have implication?

PN112

MS DYBALL: I think I can answer that Commissioner, if the second portion of the argument is accepted in the ALAEA's favour, that effectively makes all four days public holidays, so those rostered off on the Saturday and Sunday would then be entitled to an additional day's pay, as a day in lieu.

PN113

THE COMMISSIONER: Yes, so I think that Mr Farnham when you initially addressed me on this it was on the assumption that we were talking about the totality of your case, wasn't it? In that the Saturday therefore became a public holiday in its own right, and therefore a day's pay was available to those who were not rostered on.

PN114

MR FARNHAM: That is on the basis that there then are four public holidays.

PN115

THE COMMISSIONER: Yes.

PN116

MR FARNHAM: In our argument there are two public holidays and two additional public holidays, which means four day's pay for those rostered off, as opposed to the company's argument that there is only two days so there would be two day's pay for those rostered off.

PN117

THE COMMISSIONER: Yes, but if the second limb of your argument falls away, but you are successful on that first limb the 250 per cent penalty would be in place but the day's pay in lieu would not be in place, that is the logical consequence.

PN118

MR FARNHAM: If our second argument was not successful.

PN119

THE COMMISSIONER: Yes, that is right, if that one failed and the first one - - -

PN120

MR FARNHAM: Yes.

PN121

THE COMMISSIONER: Ms Dyball is that your understanding of it?

PN122

MS DYBALL: It is yes, Commissioner.

PN123

THE COMMISSIONER: Yes.

PN124

MS DYBALL: I think in terms of the company's submissions, the first point I would like to make is that Mr Farnham states that there is no ambiguity in these clauses, I would submit that by virtue of the fact that the parties are still here and are fairly strong on their each differing interpretation that there is an implied ambiguity there. In terms of how the company reached its treatment in the first issue regarding the payment of the 250 per cent Christmas Day loading, the confusion arose there out of clause 9 of the EBA which in clause 9B(iii) states that:

PN125

All shifts worked on a public holiday as defined in clause 11A with the exception of Christmas Day (25 December) and Good Friday double time -

PN126

It then goes onto the subsection 4 which the ALAEA is relying on. The public holidays as defined in clause 11A we say did not actually apply for the 2004 public holiday period as they were substituted under clause 11B. With that particular confusion I guess and question over when the 250 per cent would be paid, the company did look back to the 1995 Full Bench decision in the Public Holidays Test Case, which is referred to as decision four. If I can take you to that decision now, Commissioner, because I think it fairly clearly explains why the company made the payments that it did. The decision is located at tab R3 of the company's submissions. The decision is print number L9178 and was issued by a Full Bench comprising of Senior Deputy President Hancock, Senior Deputy President MacBean and Commissioner O'Shea on 20 March 1995. The Commission considered at page 26 of that decision really the same thing and the same thought process the company was going through at the time, and in doing so it stated that:

PN127

Work on a Saturday or Sunday ordinarily attracts higher wages than work on other days.

PN128

Which is the case in Sunstate, they then posed the question:

PN129

Should the penalty be even higher if the day would, but for substitution, be a prescribed holiday?

PN130

And their answer that they came up with to that was, "We think not". The principle that came out of that was as the employee enjoys the benefit of the substitution it is fair for the payment that to be made at the normal Saturday or Sunday rate. The Commission further considered the implications specifically of Christmas Day and on page 26 of that decision again under point 3 Christmas Day, at the end of that paragraph they came to the conclusion that:

PN131

In our opinion the employee should receive the Saturday or Sunday payment as appropriate.

PN132

In this case it was the Saturday payment, plus a loading of one half of a normal day's wage for a full day's work. Thus if the ordinary Sunday rate is double time then the employee who works on Christmas Day when it is Sunday will be paid two and a half times. In this situation it was the employee worked on a Saturday which is normally paid at half time, they got paid a hundred per cent.

PN133

Just on that issue as well, I note that Mr Farnham made submissions that these are 12 hour shift workers who are away for the whole day of Christmas Day and therefore entitled to some further payment and compensation for that; I would just like to clarify these were actually 11 hour shift workers and as per company practice in 2004 no additional maintenance work was scheduled on that day and all employees were released as soon as practicable and were not required to finish their entire shift, but remained paid for that.

PN134

Unless the Commission has any questions in relation to the first issue I might move onto the second issue.

PN135

THE COMMISSIONER: If Mr Farnham made a point that in his view the reference to the date the 25th was determinative in his view, but your argument I presume, is that does not arise because in your view 11B was the applicable clause and not 11A, is that right?

PN136

MS DYBALL: Yes, the company took the view that - - -

PN137

THE COMMISSIONER: In any event that is what gives rise to the ambiguity?

PN138

MS DYBALL: In any event, yes correct. That if Christmas day, for the intents of clause 11B moves, therefore the payment for that also moves.

PN139

THE COMMISSIONER: And that is the issue of ambiguity.

PN140

MS DYBALL: Correct.

PN141

THE COMMISSIONER: Okay, thanks.

PN142

MS DYBALL: In relation to the second issue, we see this really as a clear case of the ALAEA basically trying to double dip on the public holidays under the EBA. If you take a look at clause 11, we say that clearly and if I can borrow Mr Farnham's words, reading the words that are written, 11B there is no doubt that subclause 11B did apply in 2004, Christmas Day was a Saturday and therefore under the EBA was required to be observed as a day in lieu on 27 December which is what the company has applied. Boxing Day was a Sunday and then under clause B(ii) was therefore required by the EBA to be observed on 28 December.

PN143

We say that clearly the intent of clause C is to cover circumstances that Mr Farnham alluded to whereby the state government may declare an additional or a new public holiday other than those prescribed in the agreement during the life of the agreement and the employees would definitely have the benefit of that if that were the case. So if Queensland per se decided to observe Picnic Day or insert a Labour Day into their public holiday calendars. We do not agree with the submissions of the ALAEA that by virtue of the fact that the Queensland state government swapped the days that they gazetted Christmas Day and Boxing Day on as substitute that that makes them public holidays other than those set out in clause 11A and clause 11B.

PN144

I mean quite practically Christmas Day and its substitute day and a public holiday on 27 December is covered in clause B. Boxing Day and a substitute public holiday and 28 December is covered in clause B(ii). If we were to follow through the ALAEA's argument that clause C by virtue of the positioning of the Queensland's proclamation creates additional public holidays we would come up with an absurdity whereby there is no clear right in that clause that C would override B and Christmas Day and Boxing Day would revert back to where they were in subclause A. So therefore we would come up in the position where you know Monday 27 December was Christmas Day and also Boxing Day. Similarly Tuesday 28 December would have been Boxing Day and also Christmas Day.

PN145

I think by virtue of the fact that it produces such an absurdity, we say that that cannot be the intent of the parties and is not the correct operation of the clause. Once again I think - and the ALAEA and also Sunstate have been involved in many an EBA negotiation and where there is an intent of the parties to create a situation that is an additional entitlement or which would be the ALAEA's argument in this case, it is very clearly expressed and I believe that if the parties did intend in this case to create some kind of additional benefit from the public holidays as they existed at the time, that would be very clearly spelt out and not in the roundabout kind of way which comes about purely because of an administration anomaly in the Queensland government's proclamation for that year. Thank you.

PN146

THE COMMISSIONER: Thanks Ms Dyball.

PN147

MR FARNHAM: Commissioner, just a couple of quick things. My colleague here referred to page 26 of the test case provisions. Last paragraph, pertinent:

PN148

Where the employee's normal roster includes both the actual and substitute days, the employee is required to work on both days employee's are entitled to compensation.

PN149

I have got to say in this case that did not happen. Those who worked at Sunstate on the Christmas Day were not necessarily those people who worked on the substitute holiday, in fact they were not. But is also says:

PN150

The work on the actual day subject to any special provisions for Christmas Day.

PN151

This agreement has special provisions for Christmas Day and those special provisions are that Christmas Day is 25 December and that is the day that the penalty should apply to. Now, Ms Dyball also says, you know, "In reading the clause the intent of the parties was", it is not the intent of the parties, it is in fact what the words say in the agreement. If we read any clause of the award and say, "Well the intent of the parties was in terms of this clause", that is not what the issue is about. It is not the intent of the parties, it is what the clause in fact itself says. Now the clause that we are referring to in regards to the additional public holidays, I have not got another agreement with me, Commissioner, or another award, but you would be conversant, normally the agreements or awards say, "If an additional holiday is gazetted or proclaimed by a state/ territory or within the territory, those days will become additional public holidays for the purpose of this award or agreement". That is the normal clause that applies in awards or agreements.

PN152

That is not the clause that is written in this agreement, if it was the intention of the parties to have that and that was the clause that was dealt with by the Full Bench in the test case, that is what would have gone into - and I should have brought the General Aviation Award, because the public holiday provisions in the General Aviation Award, which this company has responded to, say exactly that. Where an additional holiday is gazetted, proclaimed by a state government or territory government or locality, I forget exactly the words, that will be an additional day. Now the parties changed those words, they changed those words and if they were the words that were in this agreement there would be no dispute and they are the words that were dealt with by Commissioner Raffaelli in looking at the dispute in regards to this matter with Qantas, they were the words contained within that agreement and other agreements.

PN153

This agreement is entirely different, this agreement says that if they are prescribed on other days, well then they will constitute additional days. Those words are entirely different, they are words contained within this agreement only. It is not what the intent of the parties was when they negotiated this agreement, it is what do the words say and what do the words mean. There is no doubt that the state government prescribed days on other than those contained in A and B and in that case Monday and Tuesday for the employees concerned are additional holidays and there is no doubt that 25 December is the day that the penalty should have applied to. Thank you Commissioner.

PN154

MS DYBALL: Commissioner, without the benefit of the General Aviation Award in front of me I cannot irrefutably deny Mr Farnham's recollection of what is in it, suffice to say that my recollection of how this EBA came about was from a consolidation of the General Aviation Award some three EBAs ago in Sunstate and my understanding at this stage, but I could be proven wrong, was that that clause was lifted out of the GA Award at the time and was not changed by the parties.

PN155

THE COMMISSIONER: Okay, thanks everyone for your submissions today and your compliance with directions in respect of the written submissions. The decision is reserved and I will adjourn thank you.

<ADJOURNED INDEFINITELY [11.01AM]