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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052913
COMMISSIONER HAMPTON
C2015/8038
s.739 - Application to deal with a dispute
Shop, Distributive and Allied Employees Association
and
Coles Group Supply Chain Pty Ltd T/A Coles Edinburgh Parks Distribution Centre
(C2015/8038)
Coles Group Supply Chain Pty Ltd Edinburgh Parks Distribution Centre Enterprise Agreement 2015
(ODN AG2015/3391)
[AE415237 Print PR570792]]
Adelaide
9.38 AM, WEDNESDAY, 23 DECEMBER 2015
PN1
THE COMMISSIONER: Yes. Good morning all. Please be seated and I will take the appearances.
PN2
MR WHITE: Yes. I seek permission to appear for the applicant in this matter, pursuant to section 596(2). Whilst we don't say that the matter is particularly complex, we think nonetheless we will be able to deal with the matter more efficiently if I was granted leave.
PN3
THE COMMISSIONER: Thank you.
PN4
MR WEST: May it please the Commission, I believe permission to appear has already been granted in the directions hearing, and I appear with (indistinct).
PN5
THE COMMISSIONER: Yes. Thank you, Mr West. All right. Yes, I think, Mr White, preliminary submissions were made during the directions conference and I think one of the earlier directions was that the Commission would be granted I think given the need to determine this matter relatively quickly, it was my view that the matter would be more efficiently dealt with by having permission granted.
PN6
MR WHITE: If the Commission pleases. Now, there is a dispute or an application in which it was made clear the subject matter of the dispute but further to directions that the Commission made, the parties agreed on the formulation of a question to be determined. That has been forwarded to the Commission.
PN7
THE COMMISSIONER: Yes.
PN8
MR WHITE: And despite a number of legal representatives looking at and agreeing this question is in error, you received - - -
PN9
THE COMMISSIONER: I thought you were giving me another month to decide it.
PN10
MR WHITE: Well, you've seen the error.
PN11
THE COMMISSIONER: Yes.
PN12
MR WHITE: Well - - -
PN13
THE COMMISSIONER: Easily done, I think, in the circumstances. But I understood what the question was. I take it you want me to treat it as if it referred both dates referred to December.
PN14
MR WEST: Yes.
PN15
MR WHITE: If the Commission pleases. And further to directions, both sides have filed submissions, and each side has filed a short affidavit. I'm unsure how the Commission wishes to proceed. I intend to call Mr Blairs and I've got a couple of supplementary questions that I want to ask. I think I've got one question more so to ask of Jamie Lake, and then if the Commission pleases, once that's out of the way then perhaps it would be a question of submissions.
PN16
THE COMMISSIONER: Yes.
PN17
MR WHITE: So first of all if I could call Mr Blairs.
THE COMMISSIONER: Yes. We will have Mr Blairs.
<DONALD BLAIRS, AFFIRMED [9.42 AM]
EXAMINATION-IN-CHIEF BY MR WHITE [9.42 AM]
PN19
MR WHITE: Mr Blairs, could you please restate your name and address?‑‑‑Donald Blairs, [address supplied].
PN20
You've made an affidavit in this matter?‑‑‑I have, yes.
PN21
Have you got a copy of that affidavit with you?‑‑‑I do, yes.
PN22
Are the contents of that affidavit true and correct?‑‑‑They are.
PN23
I tender that, if the Commission please.
PN24
THE COMMISSIONER: Mr West. I note, you have in your submissions raised an issue about, well, effectively the substance of the affidavit.
*** DONALD BLAIRS XN MR WHITE
PN25
MR WEST: Yes. I don't object to the statement going into evidence but I will make submissions about the relevance of the evidence and what weight ought to be given to it, if that please the Commission.
THE COMMISSIONER: Very well. Yes. The statement of Mr Blairs will be admitted and marked as SDA1.
EXHIBIT #SDA1 WITNESS STATEMENT OF DONALD BLAIRS
PN27
MR WHITE: Now, Mr Blairs, if you could look at exhibit 1 to your affidavit?‑‑‑Yes.
PN28
You can see there's an email to you from Mr Martin?‑‑‑Yes.
PN29
In which David Lang and Leroy Cook are referred to. Who are David Lang and Leroy Cook?‑‑‑They were delegates at the warehouse.
PN30
Yes. And to the best of your knowledge were they delegates in 2012, 2014?‑‑‑Mr Cook certainly was. David Lang is still employed at there. He has stepped down from the delegate role somewhere around that time but I can't tell you exactly when. But certainly Leroy is still a delegate.
PN31
Yes. Now, in well, can I ask you this. In terms of the current dispute before the Commission, how did you become aware of the dispute?‑‑‑It was raised or drawn to my attention by the delegates on the site.
PN32
Right. Now, in 2012, 2014, New Year's Day fell on a Sunday, and Australia Day fell on a Sunday. Are you able to advise the Commission whether in or what happened in respect of the payment for public holidays in 2012, 2014?‑‑‑I can't with any degree of certainty.
PN33
All right. Well, can I ask you to make an assumption. Given that the delegates raised the question with the union on this occasion, do you have any assumption as to whether the matter might have been raised had there been difficulties in 2012, 2014?‑‑‑Delegates on that site are very good delegates. They're very active delegates and if there was an issue they would have no hesitation in raising it with myself or well, myself directly.
PN34
Right. No further questions, if the Commission please.
*** DONALD BLAIRS XN MR WHITE
PN35
THE COMMISSIONER: Thank you. Questions, Mr West?
PN36
MR WEST: No, I have no questions of the witness.
THE COMMISSIONER: All right. Well, Mr Blairs, you're completed. You're released from your oath and you're free to make your way back to the Bar table. Thank you.
<THE WITNESS WITHDREW [9.45 AM]
PN38
MR WHITE: That's the evidence for the union. I understand the respondent has some evidence.
PN39
THE COMMISSIONER: Very well. Thank you, Mr White. Mr West.
PN40
MR WEST: Yes, Commissioner. I seek to call Jayme Lake.
THE COMMISSIONER: Yes. Ms Lake.
<JAYME LAKE, SWORN [9.46 AM]
EXAMINATION-IN-CHIEF BY MR WEST [9.46 AM]
PN42
MR WEST: Yes. Ms Lake, for the purpose of the transcript, could you repeat your full name and address?‑‑‑Jayme Lake, (address supplied).
PN43
And Jayme is spelt J-a-y-m-e?‑‑‑Correct.
PN44
Yes. And have you prepared a witness statement for the purposes of these proceedings?‑‑‑I have.
PN45
And is that witness statement true and correct in every particular?‑‑‑Mm.
PN46
It is?‑‑‑Correct.
PN47
A copy of that has been filed, Commissioner.
*** JAYME LAKE XN MR WEST
PN48
THE COMMISSIONER: Yes.
PN49
MR WEST: Can that be marked?
PN50
THE COMMISSIONER: Yes. Any objection, Mr White?
PN51
MR WHITE: Well, there will be submissions about the weight to be attached to some of those but no time to be wasted on objections.
THE COMMISSIONER: All right. Very well. Then Ms Lake's statement be admitted and marked as exhibit Coles1.
EXHIBIT #COLES1 WITNESS STATEMENT OF JAYME LAKE
PN53
MR WEST: Yes. I have no further questions.
THE COMMISSIONER: Very well. Yes, Mr White.
CROSS-EXAMINATION BY MR WHITE [9.47 AM]
PN55
MR WHITE: Thank you. Ms Lake, is one of your concerns about the practicality of the operation of this clause, a concern that there may be insufficient number of volunteers to work on 26 December this year?‑‑‑I guess when we have to call for volunteers it's always a concern that we might not get through the sufficient quantity as to work on the day.
PN56
You're aware that the SDA and its delegates and members have agreed to apply the provisions of clause 16.2 of the agreement to work on the 26th. That is to put arrangements in place there are insufficient volunteers. You're aware of that, aren't you?‑‑‑Yes.
PN57
All right. Now, in paragraph 11 of your statement, you say that the position that Coles has had has always been the position you describe in paragraph 11. Can I suggest to you that the issue in the context of Boxing Day this year, was first raised by the SDA in October 2015?‑‑‑Incorrect. It was raised in January 2008, by myself, at a consultative committee meeting.
PN58
THE COMMISSIONER: Two thousand and what?‑‑‑2008.
*** JAYME LAKE XXN MR WHITE
PN59
MR WHITE: You see, what I want to suggest to you is that the position that Coles has put in respect of the treatment of Saturday, 26 December 2015 is a different position than has been adopted by Coles in previous years. That's true, isn't it?‑‑‑I believe there was an agreement made for Australia Day 2013.
PN60
And that agreement for Australia Day 2015 was the provisions of clause 16, point 2, 3 and 4 applied to work performed on Australia Day 2015. That's right, isn't it?‑‑‑It was provisions around voluntary work and members being able to choose if they worked on those holidays.
PN61
Okay. Thank you.
PN62
THE COMMISSIONER: Mr White, just on that, my understanding from earlier involvement in the matter was that that was, a well, without prejudice settlement.
PN63
MR WHITE: It was and we're not going to make anything of that. Ms Lake gave some evidence which is different from the evidence I expected.
PN64
THE COMMISSIONER: I see.
PN65
MR WHITE: But we're not going to be - - -
PN66
THE COMMISSIONER: Directly relying on that as a precedent.
PN67
MR WHITE: If it's no. If it's a without prejudice settlement, then it's a without prejudice settlement. We're not going to make anything of it.
PN68
THE COMMISSIONER: Before we return to Mr White Ms Lake, I just want to ask you a question and I should make it clear to the parties that this is a question that arises from the practicality of timing. It's not a question that goes to the correct and the proper interpretation of the agreement. But, Ms Lake, we're obviously, well, two or three days away from 26 December?‑‑‑Correct.
PN69
What arrangements has Coles made in relation the current relations have Coles made in relation to that day?‑‑‑The current arrangements are that team members are rostered to work their normal day.
PN70
All right. And what arrangements have you made for the Monday?‑‑‑It's a voluntary day, so we have called for volunteers well in advance. We already have volunteers for that day.
*** JAYME LAKE XXN MR WHITE
PN71
Anything arising from that?
PN72
MR WHITE: Well, yes, there is. You've known of this dispute and the fact that it is being dealt with in the Commission. Coles, I assume, would have put in some contingency plans in the event that the interpretation contended by the union is found by the Commission to be correct. That's right, isn't it?‑‑‑So up until this stage we have rostered team members. Obviously there's issues in dispute at the moment. We've got contingency plans as any normal business would do. However, we have not actioned those.
PN73
THE COMMISSIONER: Very well. Thank you. Anything arising, Mr West?
PN74
MR WEST: No, Commissioner. If the witness might be excused.
THE COMMISSIONER: All right. Yes. Thank you. Ms Lake, you're completed and you can make your way back in the hearing room, thank you.
<THE WITNESS WITHDREW [9.52 AM]
PN76
MR WHITE: Now, the Commission has had our written outline.
PN77
THE COMMISSIONER: Yes.
PN78
MR WHITE: I don't know whether it's the practice to mark that or not but - - -
THE COMMISSIONER: Well, I don't see any reason not to so let's all right. So, look, I will mark at least for identification the SDA's submissions as SDA2.
MFI #SDA2 SDA's SUBMISSIONS
PN80
MR WHITE: Hopefully I won't be repetitive of those written submissions but there are a number of matters which I wish to emphasize.
PN81
THE COMMISSIONER: Certainly.
*** JAYME LAKE XXN MR WHITE
PN82
MR WHITE: There is no dispute between the parties, at least in respect of the principles to be applied to the interpretation of agreements. You have probably since November 2014 grown tired of listening to Golden Cockerel submissions but - - -
PN83
THE COMMISSIONER: It has been quoted once or twice. Quite so.
PN84
MR WHITE: But that's a case which has been accepted as accurately summarising the principles and applied on numerous occasions in the Commission. There are a couple of key elements to that which are relevant to this case. The first task of the Commission in interpreting that agreement, or the a court, is to look at the words of the agreement, and determine whether or not there's a plain meaning to those words and what those words mean on plain meaning.
PN85
It's unnecessary in order to have regard to extraneous matters, to find an ambiguity. When I say extraneous matters surrounding circumstances. We say there is no ambiguity but the Commission is still nonetheless entitled to take into account a number of surrounding circumstances. Those surrounding circumstances obviously vary but can include matters which go to an objective determination of the subjective intention of the parties, and can include, in certain circumstances, evidence of prior negotiations, at least to the extent that those prior negotiations tend to establish objective background facts.
PN86
And just on this, we say that in large part that is why we say Mr Blairs' evidence is admissible because this is an agreement that's re-enacted, if you like, a clause which has been in existence for some time. And so the negotiations which have led to the re-enactment of the clause are relevant. And against sorry, the re-enactment against the way in which the clause has operated in the past is also, we say, evidence of prior negotiations admissible in the context of this agreement.
PN87
There's an extra element, we say, of prior negotiations also in this case, which we say is relevant. And that is the demand which was made in the employer's log in the making of this 2015 agreement, directed to or a claim made for the deletion of clause 16.54 described by the employer as double counting. The other matters the Commission can take into account - - -
PN88
THE COMMISSIONER: Just on that point, isn't the danger with having regard to that sort of material and placing too much weight on that sort of material, is that unless the parties agree why, you know, a claim isn't resolved or isn't acted on, can it go to the objective intention? In other words, sometimes parties make claims and then say, well, they don't need to advance it because they are satisfied with the provision that's there.
PN89
Now, I'm not saying whether that has occurred here or not but I'm just saying that there does appear to be a danger in placing too much weight on claims that are advanced in negotiations, unless there's some common agreed reason as to why it didn't proceed or it wasn't successful.
PN90
MR WHITE: There are dangers and we don't put it up as being determinative in this case but we put it up as part of the factual matrix forming the background. But a case, if it relied only on that, would be, we think, probably in some difficulty. But we don't only rely on that clause. One of the other things to have regard to in the construction of the agreement, apart from the language of the agreement, is the legislative context under which the agreement was made and under which it operates.
PN91
And that is particularly important in this case, having regard to the provision of the Holidays Act South Australia, and the NES provisions in the Fair Work Act. I don't want to belabour Golden Cockerel any more but the principles are to be applied.
PN92
THE COMMISSIONER: Yes, and I as with the respondent's material, I have read your outline and the parts of those principles that you emphasize.
PN93
MR WHITE: Yes. So can I as applying the Golden Cockerel test, first go to the words of the agreement and the structure of the clause. So clause 16 of the agreement deals with public holidays, and we say that that clause, looked at in its entirety, has a particular structure to it, and the structure is this. The first thing the clause does is to define or create for the purposes of the agreement, public holidays.
PN94
So once again we suspect it's agreed between the parties as a matter on proposition that it is up to the parties, the legislature, or the decision-makers in this case, the parties, to define what public holidays are. And we say it is done by subclause 1 of that agreement. That the parties are the ones to determine the creation of the agreement is, I think, emphasized in Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67. What we have done there we had prepared copies of decisions which we had referred to in our submissions and I think the respondent has done better and prepared copies of cases all of the cases that each of the parties refer to.
PN95
THE COMMISSIONER: Right.
PN96
MR WHITE: If that's the case - - -
PN97
MR WEST: I think we've covered every case that's referred to, at least in our submissions.
PN98
THE COMMISSIONER: Thank you, Mr West.
PN99
MR WHITE: The case is a full court, Federal Court case, Shop Distributors and Allied Employees Association v Woolworths [2011] FCAFC 67. You'll see at paragraph 10 of that decision if the Commission pleases, there's a much more succinct proposition or statement of the proposition that I've just made to you now. So what the parties have done by clause 16.1 is what was contemplated by the full court there in paragraph 10 and it's that is the agreement of the parties have determined what the public holidays are.
PN100
It names them. It's named relevantly for this case, proclamation day as a public holiday. As we understand it's not in contention that proclamation day even historically years ago was celebrated on the 28th - - -
PN101
THE COMMISSIONER: Yes, there is an irony here in South Australia about this but it's not presently relevant.
PN102
MR WHITE: No, so it's 26 December.
PN103
THE COMMISSIONER: Yes.
PN104
MR WHITE: So that's first thing the clause does. The second thing the clause does is by clause 16.2 is this. Having defined public holidays, it then sets out a mechanism for work to be performed on public holidays and calling for volunteers and the like and the pay to be accorded for work on those public holidays. So it's a mechanical provision. The clause says first defines and then it makes provision as to how they are to be worked and the pay to be earned or paid.
PN105
The third thing it does is make provision for the I'll perhaps use a neutral term at this stage an alternative day. So clause 16.5 of the agreement. What clause 16.5 does is this, it refers once again in subclause 16.5.1 to the named public holidays the defined public holidays earlier defined in subclause 1. Then it provides an alternative day to be observed as a public holiday perhaps this is the nub of the issue not created but observed in circumstances where those public holidays fall on the weekend, Saturday and Sunday.
PN106
So the first part of 16.5 we say picks up the definition of the public holidays earlier in the clause and then makes provision for the observation or celebration if you want to use the words used by Northrop J in Ophel v City of Yarra. I don't take the Commission to that but I've given reference to that in the submissions.
PN107
THE COMMISSIONER: Yes.
PN108
MR WHITE: Now, just stopping there. We say the words consistently in clause 16.5.1 where they name the public holidays obviously refer back to and pick up the defined public holidays in subclause 16.1. There is nothing we say that suggests any ambulatory meaning of those words. Christmas Day is Christmas Day. Boxing Day or Proclamation Day is Proclamation Day and they're defined as public holidays in subclause 1.
PN109
The second thing it does is to make provision for the observance or the celebration of those holidays in circumstances where they fall on the weekend. So they're the three things the clause properly understood does and the last thing it does by clause 16.5.4 is give the mechanism for how it works where public holidays fall on the Saturday or Sunday. So the clause defines public holidays, provides a mechanism for how they work and then provides for alternative and once again provides for mechanisms how the alternatives are to work.
PN110
Now, the mechanism as to how they the substitutions if you like work uses the device of referring back to the earlier mechanisms in subclauses 2, three and four. Importantly, not all of those subclauses are picked up because one of the distinguishing features I'll come to that shortly. Properly interpreted, we say there is a binary system set up and that binary system is between public holidays on the one hand and substitutions on the other.
PN111
That they are substitutions we say is clear from the words and in particular we say they are substitutions constituting days to be celebrated. They are not substitutions for the creation of new public holidays. I think that's essentially where the parties are at odds perhaps and so can I at this stage to make good the proposition that there's a clear distinction between the actual public holiday and the substituted day which would be celebrated as is, can I go to a number of things.
PN112
First of all, the legislative context in which this agreement operates. It includes a number of things. First of all, it includes the background including the Holidays Act South Australia. The Holidays Act South Australia which I shall turn up shortly - - -
PN113
THE COMMISSIONER: This is one of the smallest pieces of legislation in the statute books I think. That's why you can't find it.
PN114
MR WHITE: I'm addressing the Commission now on the distinction between actual and the observance of celebration on another day and the contention of the union that the substitution does not create a new public holiday. So when you look at the Holidays Act 1910, what it does is this. By section 3 it provides by subsection 2, 26 December will be a public holiday and a bank holiday. We're not relevantly concerned about bank holidays. That's not relevant.
PN115
So it creates and then it's got, "but if 26 December falls on a Saturday, the following Monday will be a public holiday instead of that day." So we say quite clearly it creates a new public holiday. We've given and that's we say in direct contra-distinction to words of subclause 16.5.4. In our written outline we refer to the NES which by reason of picking up the state legislation has the same effect. But here the words are diametrically different from the words of the Holidays Act which create a new day.
PN116
The distinction between actual days and substitute days for celebration we say has been recognised for significant periods of time, almost from the first major public holiday test cases. So for example in Print L45434 which is 1994 AIRC 1208 this was the Full Bench of the Industrial Relations Commission these all came about I think at times when Victoria was doing a few things with public holidays. There was a question before the Commission about whether there should be a standard federally having regard to the Victorian parliament.
PN117
When you look at the second page of the substantive contention once you get past all the awards, you'll see the question was about fulltime employees. You'll see that at about point 4 and then on the following page there was the description of the submission put where a substitute holiday was mooted. The following page recognised that the Commission didn't have the authority to declare public holidays and that's consistent with the submission of the parties themselves making them. Then the draft clause which the Full Bench made talked about and you'll see that appearing on the second last page of the page 26 of that print out.
PN118
It talks about a substitute day for any prescribed day. Now, to some extent that begs the question but there was a supplementary or an interim decision that followed that decision and that the decision in Print L7799 1994 AIRC 2227. This was an interim decision which was necessary because evidently some confusion arose from the orders that were made by the Full Bench in the earlier decision. Once again you will see on the first page after the list of awards of that decision, the Commission giving more detailed or an explanation as to what he meant by the clause that he'd made. It says:
PN119
The order reflects our view that a non-casual worker who works on an "actual" day should receive the appropriate penalty rate. The employee who enjoys the benefit of this provision and also works on the "substitute" day should be paid normal award entitlements.
PN120
Clearly it's well understood, we say, that in the context of those public holiday cases where the Commission was talking about substituting days that there was a distinction between the actual day and the substituted days. That distinction between actual and substituted days once again is in the related Full Bench public holiday test case, [1995] AIRC 443, Print L9178. On the second page of the substantive reasons after the listing of the awards so appearing on page 20 of the certainly of mine. Having referred to the earlier decisions to which I have taken the Commission already, on the following day once again the Commission says at the bottom point 8 at the page:
PN121
The employee, in our opinion, should not enjoy leave in respect of both the actual day and the substitute day.
PN122
And there's further reference to the distinction between actual days and substitute days, and I don't take the Commission to it but at the top of the following page you will see those distinctions carried on. Now, every clause obviously is not all identical but I'm taking the Commission to these provisions to make good the proposition that we say contextually and in the context of the legislation and prior practice, there's a clear distinction between actual and the substituted day.
PN123
In Woolworths Limited v Shop Distributive and Allied Employees Association which is the Full Court of the Federal Court at [2013] FCAFC 151; (2013) 217 FCR 31 now, I think that's the reference I'm using but you may have it in your bundle as [2013] FCAFC 151.
PN124
THE COMMISSIONER: Yes.
PN125
MR WHITE: So the clause itself is distinguishable but you will see that clause once again and you will see it set out on page 4 talks of the actual public holiday and not the substituted day. So it's a history which is, we say, using words which are clearly understood in terms of the distinction between actual and substituted days. In Shop Distributive and Allied Employees Association v Harris Scarfe [2014] FCA 283, a decision of Buchanan J once again, that decision doesn't apply here. That was an issue about whether or not a casual was rostered.
PN126
THE COMMISSIONER: Yes.
PN127
MR WHITE: So but it does have a clause in it, you will see, on page 4, or set out in paragraph 6 of the decision. Once again a distinction between actual and substitute days. It might be burdensome to continue but perhaps another couple of examples. Being Shop Distributive and Allied Employees Association v Coles Myer, Print R0368, [1998] AIRC 1713. And the Commission was asked to resolve a similar issue, I suppose, at about page 12 the bottom of page 12 of that print. Commissioner Wheelan, having regard to the issue, drew the distinction once again between employees working on actual days, and substitute days.
PN128
Once again we readily acknowledge that every agreement has to be considered and we note put these to the Commissioner as evidence as a matter of law such distinctions are always to be made but we do put that in the context of Full Bench decisions and a number of court decisions, clear distinctions have been drawn and maintained between the actual day which is the day created by the parties and the substitute day.
PN129
We say that comes from the plain meaning but when one looks at the surrounding circumstances and including the statutory context and the legal context in which this agreement applies then we say it's all consistent. Now, against our propositions, the respondent contends a number of things. It has filed an outline of submissions but with all due respect we contend that the respondent has set up a strawman in terms of our argument.
PN130
It doesn't we say accurately reflect the contentions that the union has put. At subparagraphs 1.11 through to 1.16, the respondent contends that the propositions put forward by the SDA in effect form an additional public holiday and you'll see they say that in paragraph 1.9. Once again we say with all due respect that's not what the SDA's argument is. Once again the distinction that the respondent draws is addressed by them in subparagraph 1.11 where it says it draws a distinction between the substituted public holiday and additional public holiday.
PN131
The respondent contends in that subparagraph:
PN132
If the substitution occurs, the substituted day is the public holiday.
PN133
Once again that misrepresents our argument. The public holiday remains the 26th Proclamation Day or Boxing Day but there is another day on which that day is celebrated.
PN134
THE COMMISSIONER: On the SDA's approach, what then is the status of Monday?
PN135
MR WHITE: The status of Monday the 28th is a day on which Boxing Day or Proclamation Day is celebrated and is observed.
PN136
THE COMMISSIONER: What does that mean in practice?
PN137
MR WHITE: What that means in practice is this. When you go back to the agreement being the sorry, go to 16.5, but Monday will be observed as the public holiday and the mechanism of that is earlier set out in 16.2.2, 16.2.3 and 16.2.4.
PN138
THE COMMISSIONER: So doesn't that mean in practice that there are two public holidays?
PN139
MR WHITE: No. No, there's not. One of the distinctions is that no, there's not. There's a distinction between the creation of a public holiday and the substituted day observed in the celebration of that particular day in the context of this agreement. There is a public holiday including Proclamation Day and then another day in certain circumstances to be observed as such. That picks up entitlements that would otherwise flow from the observing of that day.
PN140
The actual day that is Proclamation Day in this circumstance is not as the respondent contends in its argument a day on which the same benefits accrue because the same benefits do not accrue and the key difference is that if an employee doesn't work on the actual day, they're not entitled to pay.
PN141
THE COMMISSIONER: Sorry, just to be clear, you're saying that if an employee does not work on the actual day which you by that you mean the Saturday - - -
PN142
MR WHITE: Yes, they're not entitled to pay.
PN143
THE COMMISSIONER: They're not entitled to be paid. So run me through why you say that's the case.
PN144
MR WHITE: When you look at clause 16.5.4 there is a substitute day for the celebrations of the public holiday. The observation of the alternative or substitute day as a public holiday we say carries with it the observation of the entitlements. But 16.5.4, referring to work on the actual public holiday provides just bear with me - - -
PN145
THE COMMISSIONER: Certainly.
PN146
MR WHITE: It's out of order perhaps a little. There's an entitlement to pay if you work on a public holiday. That's the mechanism that this agreement adopts. There is no separate mechanism I might come back to this in the context of another way of putting the argument if the Commission pleases. Can you just bear with me a minute?
PN147
THE COMMISSIONER: Certainly.
PN148
MR WHITE: Perhaps I'll come back to that in a different way and I was going through the - can I approach it this way? Some of the cases to which you've been taken already involve circumstances where on the fact of the agreement there apparently was an entitlement to be paid if you worked both days.
PN149
So for example, one of the SDA v Coles cases, the Full Court said, "Well, in looking at that you look at the obviously intention and you don't get paid both days." We think the same would apply in this agreement to the extent that there was an entitlement to be paid on the face of the agreement; although there's no express provision for that except if you work. Then you would, we say, not be entitled to be paid twice for the two public holidays as if they were public holidays. The observance of the substitute day of the public holiday provides, we say, the benefits of the public holiday and then the mechanism for actual public holiday and work to be performed is by 16.2, 3 and 4. There's no obligation.
PN150
THE COMMISSIONER: So do say that if a worker works on both days, they're not entitled to public holiday rates on both days?
PN151
MR WHITE: Yes. If they work they get rates, but they don't get a paid day off.
PN152
THE COMMISSIONER: Right. So the difference in terms of the SDA's approach is that if an employee doesn't work on what you've described as the actual day, being the Saturday, they're not entitled to be paid.
PN153
MR WHITE: That's right. But otherwise it's treated in the same was as if it were a public holiday, because of the provisions of 16.5.4?
PN154
MR WHITE: Yes, that's precisely right, because of that provision. If the substitute day was a public holiday and created as a public holiday, then of course clause 16.5.4 would be completely otiose, because the normal provisions of public holiday - relating to work on public holidays would automatically apply.
PN155
So you can see once again it's the agreement - no comparison between different agreements and is not always necessarily a sure guide, but clause 16.5.4, we say is otiose if the day was an actual public holiday, and if it was the party's intention to create a new public holiday then there are clear words which could have been used to do so. For example, Coles have used those words in the Coles Supermarket Australia Pty Ltd and BiLo Ltd Enterprise Agreement; this is an Australia-wide agreement. Can I hand the Commission a copy?
PN156
So we understand this is an Australia-wide agreement and you will see by clause 5.1.4 the following:
PN157
If a public holiday or part-day public holiday is substituted by law of a State or Territory then the substituted day or part day is the public holiday. The original day or part-day is not a public holiday.
PN158
So we say if there is a clear intention to create a public holiday then there are no doubt clear words which could have been used, but clause 15.4 doesn't use those words of any such clarity and, indeed, words are used to the opposite including the - sorry, 16.4.
PN159
So to the extent that the respondent contends in paragraph 1.27 of its outline, once again we say mischaracterises our argument. You will see about halfway through paragraph 1.27 the respondent asserts that the effect of the agreement, the NES and the Holidays Act mean that the following Monday is the public holiday. We say that's - for reasons which we gone into - not correct.
PN160
In paragraph 1.28 of the respondent's argument, we say there are a number of problems in respect of the contentions contained in that. The first is that there is no direct equivalent of entitlements to work on both day or not working on both days. Secondly, where the respondent contends that it's not uncommon for agreements and other legal documents to reiterate key terms and conditions when it's unnecessary to do so, we say one of the tasks of persons interpreting agreements or documents is to give words meaning.
PN161
Every word and every phrase is to be given a meaning. The words used in clause 16.5.4 need to be given work to do and we say that's a fundamental premise to the interpretation of agreements and they are not there to be ignored as all being merely repetitive. If they were to be repetitive, no doubt the parties could have used the phrase referred to in the last sentence of the respondent's submission in 1.28, which says for the avoidance of doubt et cetera.
PN162
They're the words. Can I ask you to have regard to Mr Blairs' affidavit? There was a point taken in the respondent's submissions that all of his affidavit was inadmissible on this premise that evidence of subsequent conduct is inadmissible to aid the interpretation of agreement. We don't disagree with that proposition, but bear in mind that the conduct of which Mr Blairs deposes or to which he deposes is all prior conduct to the 2015 agreement. It's not subsequent conduct to the 2015 agreement.
PN163
Where there has been the implementation of a like clause in a particular way and that clause is re-enacted, adopted, readopted, then we say that's significant evidence to support the finding of objective background circumstances or surrounding circumstances that you are able to take into account, having regard to Golden Cockerel principles.
PN164
THE COMMISSIONER: Just in relation to that, I think what is attachment 2, the notice of employees on Saturday 26 December 2009.
PN165
MR WHITE: Yes.
PN166
THE COMMISSIONER: On its face it says, and presumably this is a Coles document that says Saturday 26 December is not a public holiday and then it sets out a range of operational restrictions.
PN167
MR WHITE: I understand that. That's why in our submissions we put it somewhat more opaquely and not as directly and I think if I can take you to paragraph 31 where - I don't want to describe my submissions as opaque - but where it says "benefits akin to public holidays have been provided."
PN168
THE COMMISSIONER: Yes. No, I understood the wording there.
PN169
MR WHITE: So those are the submissions.
PN170
THE COMMISSIONER: All right. I've just got a couple of questions for you, Mr White. If I can take you to the terms of the agreement itself in particular 16.1, here I'm just interested in exploring both how the agreement operates in the sense when read naively, which ultimately the Commission can't do, but also when read in context with the National Employment Standards. It seems from face value that 16.1.1 effectively replicates section 115. In other words it sets out public holidays and says - includes the phrase "and any other day or part day declared or prescribed under a law of the state be observed" et cetera. Now, I think the initial question is do those words on their own include substitute days under the Holidays Act?
PN171
MR WHITE: The answer to that depends upon whether or not there's a distinction between the observance of public holidays on the one hand and the creation of public holidays on the other.
PN172
So the legislation being considered by Northrop J in Ophel v Yarra City Council included the Victorian legislation which included days which were to be observed as public holidays. That language is directly - sorry, it is significantly different and distinguishable from the Holidays Act South Australia 1910. It doesn't use the words in section 3, "holidays to be observed or days to be observed as - - -
PN173
THE COMMISSIONER: No, they either are or are not public holidays.
PN174
MR WHITE: Yes, and so if there's a distinction, which we say there is between the question of observance of a day and the creation of a day in the context of this case a day to be observed, Proclamation Day specifically, to be observed on another day isn't the creation of a public holiday.
PN175
THE COMMISSIONER: Yes, but does 16.1 - because it allows for other days - any other day declared or prescribed. Now, I'm just trying to understand whether the SDA's position is that that of itself creates the 28th as a declared or observed public holiday, given the operation of the South Australian Holidays Act.
PN176
MR WHITE: In the context of this, probably not, in that if it was so then the substituted days provided for in clause 16.5 would be irrelevant.
PN177
THE COMMISSIONER: Yes.
PN178
MR WHITE: Yes, there would be no need for clause 16.5.
PN179
THE COMMISSIONER: And for what it's worth, I think that logic would also apply to the NES itself; that is, section 115 has subsection (2) which talks about substituted, so again applying that approach.
PN180
MR WHITE: Yes.
PN181
THE COMMISSIONER: All right. The next issue that I want to raise with you sort of follows a similar theme and this is connected with the relationship between the instrument and the NES et cetera. Now, I think the proposition is put in your submissions that the operation of section 115(3), my understanding of your position at least is that the substitute days provision, clause 16.5, is a term contemplated by section 115(3).
PN182
MR WHITE: Yes.
PN183
THE COMMISSIONER: And I say I'm not sure about that. Only that, at least on face value, section 115(3) talks about terms that allow an employer and employee to agree. The question is is a collectively agreed clause that doesn't relate to an employee consistent - - -
PN184
MR WHITE: Well, with the Act Interpretation Act, that the provision of singular means the plural and vice versa. But if it was read purely in the singular, it would lead to odd results if it was only to be considered in the singular, and then employees, each of them individuals, voted and approved a mechanism to substitute.
PN185
THE COMMISSIONER: Yes.
PN186
MR WHITE: The singular reading in that way, so as I understand the Commission's question, it contemplates does it mean I, Billy Bloggs, can go to the boss and say, "Look, can we agree that - - -
PN187
THE COMMISSIONER: Well, on a narrow reading it might mean that it contemplates terms where the agreement of the modern award allows that to occur. So individual workers and their employer might agree to have different substitute arrangement days - in fact, for all of the public holidays.
PN188
MR WHITE: But in the context of this act there the agreements are made with employees, it's not where they are not made with the unions, then I think one wouldn't read it in such a narrow way. Even if it was read in that way, we make the other point in our submissions that the agreement having been approved, obviously the Commission was satisfied as to the BOOT. It probably matters not where the authority comes or the legislative empowerment is sourced to make the different arrangements. The fact of the matter is the parties or the employees and the employer have made different arrangements and whether they're entitled to under the terms of the NEW, section 115 - - -
PN189
THE COMMISSIONER: Well, they can't contradict the NES. You can supplement it. You can add to it, but you can't contradict it.
PN190
MR WHITE: Well, the agreement has to be no worse off; better off overall and - - -
PN191
THE COMMISSIONER: Well, that's the BOOT test, but in terms of the NES it must be consistent. It can be incidental. It can be ancillary and it can be supplementary, and in other words it can certainly be better than the NES.
PN192
MR WHITE: Yes, but in any event we think to read it in the singular would be, I think, in my submission far too narrow.
PN193
THE COMMISSIONER: All right. You also refer immediately under that at paragraph 10 of the submissions to the award. I'm not sure what relevance the award provision has here.
PN194
MR WHITE: I suppose, Commissioner, it is by way of emphasis of the point that it is the parties who make the public holidays. They're empowered to do so and we say that derives from a number of sources. It is not strange that they are able to in effect legislate effectively for public holidays.
PN195
THE COMMISSIONER: Yes.
PN196
MR WHITE: It is contemplated in a range of places, including in the modern award, so the flexibility and all that sort of modern ambition has been given effect to by the parties.
PN197
THE COMMISSIONER: Well, certainly, just going back to my earlier question, it would seem to be that the Full Bench that made the 2010 award took a more general view of section 115(3), because they do allow for collective agreements.
PN198
MR WHITE: Yes.
PN199
THE COMMISSIONER: Just excuse me for a moment. Yes, thank you, Mr White. Mr West, do you want a short break?
PN200
MR WEST: No, Commissioner. I don't think I'll need too long to tidy up my thoughts.
PN201
THE COMMISSIONER: That's fine.
PN202
MR WEST: You may have to bear with me flicking through my papers.
PN203
THE COMMISSIONER: Mr West, I'm stating the obvious, but those issues that I put to Mr White, of course I'm interested in your views about all of that as well.
PN204
MR WEST: Yes. I'll deal with a few things first. May I first tender our submission? We'll just have it marked in the same manner as Mr White's with the correction of the reference to the 26 January noted.
THE COMMISSIONER: Yes, that will be marked as Coles 2.
EXHIBIT #COLES 2 RESPONDENT'S SUBMISSIONS
PN206
MR WEST: In terms of the evidence of Mr Blairs, I don't want to dwell on it too much, Commissioner, but the contention that we put forward is this, that there are two aspects to Mr Blairs' evidence essentially. He purports to give evidence about what has been, in effect, the practice in relation to public holidays on the weekends. The evidence he gives is in relation to the practice that postdates the insertion of this clause in an enterprise agreement (indistinct) the workplace. He talks in terms of the 2009 and we would say that if you're ascertaining the mutual intention of the parties on an objective test, it's what was intended at the time the document - the clause was included in an agreement.
PN207
There may some argument about its continued inclusion and agreement, but we would say that the relevant time to consider it is when it was first put in agreement and any evidence about what the parties did with it after that is not relevant to you in ascertaining that particular question.
PN208
On that basis, and I'd refer you to - the appropriate authorities about that, I think, are referred to in the submission. The CPSU v Telstra case, I think that's cited or footnoted in our submissions. It's CPSU v Telstra [2005] 139 IR at 141. A copy of the case is in the bundle.
PN209
THE COMMISSIONER: Yes, I have that, thank you.
PN210
MR WEST: At paragraph 42 the Full Bench in that case said:
PN211
Generally speaking, it is well-established that the subsequent conduct of the parties to a contract is not admissible as an aid to construction of the contract. The contrary view is expressed by Santow J in Spunwell Pty Ltd v B A B Pty Ltd, however even on the Spunwell approach subsequent conduct will only be relevant to the limited extent that the conduct evidences a clear and mutual subjective intention as to what the contract originally meant.
PN212
And a similar statement of the principle is set out in the Federal Court case of SDA v Woolworths [2006] FCA 616 at paragraph 31. We would say that the evidence of Mr Blairs falls well short of evidence that would satisfy the exception of that general rule and in particular, the attachment set out in - as attachment 1, I think to Mr Blairs' statement.
PN213
The notice to employers, that's attachment 1, begins with the sentence stating essentially that company's view is that Saturday, 26 December is not a public holiday under the EBA. Quite clearly there was no mutuality of intention evidence there that it was to be treated as a public holiday.
PN214
So whether or not you accept the evidence as having some relevance, you should give it no weight and in our submission you should not have regard to it. The second aspect of the affidavit relates to this question of the withdrawal of claim. It's a very brief statement at the end of Mr Blair's statement to the effect that the company's log of claims included a claim 21, the following claim:
PN215
Public holidays substitution date, clause 16.5, remove double counting.
PN216
And a copy of that log of claims is attached and it says:
PN217
This claim was not agreed to by the SDA and ultimately was not pursued by the company.
PN218
Well, I would submit that first of all that the document that's appended is very much a summary document. One is not able to ascertain from that document really what was the full intent of the company in a one-line statement. Secondly, the fact is that it was a matter that there was no agreement about and the company didn't pursue it.
PN219
In our submission, even if that evidence is accepted, it doesn't disclose anything as to the mutual intent of the parties at all. The fact that someone raises an issue in a log of claims and then that is subsequently not pursued is not evidence really of any intention, even on the part of the party making the claim, let alone the mutual intention of the parties to the negotiations.
PN220
So in our submission, that evidence ought not be - is not of assistance to you in the proper determination of the question before you and we urge you not to have regard to it.
PN221
Now, the next point I want to make - I want to make a general observation, if you could indulge me, Commissioner. I think the treatment of public holidays in the industrial law is best described as a dog's breakfast. I just was reflecting on the cases that Mr White had handed up and I was reminded of having appeared in the Public Holidays test case back in 1995 when the Full Bench had to reconvene because the original decision didn't properly take account of the situation with shift workers and I appeared for the television industry in that case and right from the very start, really the whole thing had become terribly complicated.
PN222
So we now have a situation where there are state public holiday laws, there is an NES, there are award provisions and there are then EBA provisions. Now, how the EBA operates in conjunction; some EBAs pick up the state legislation and say you'll get the public holidays that the state law says you get. Others do what this agreement does, which is purport to create the entitlement to public holidays itself, without reference to the state law.
PN223
And because it is such a complicated and variable jurisdiction, you need to be very cautious, we would submit, in trying to attribute as the SDA seem to be doing here the idea that the use of the words "actual public holiday" is some sort of term of art. People are struggling to explain these concepts, but there is no established terminology around it is my submission about this, and so when you look at this agreement, you need to try to understand in the objective way what it was the parties were really intending.
PN224
Now, the SDA attacks our submission at paragraphs 11 and 16 in relation to this argument that what has been - that their construction really purports to create an additional public holiday. I don't quite understand, really, what the distinction that's sought to be drawn here between a public holiday and the observation of a public holiday. I mean, in our submission there is no difference between the two.
PN225
The distinction we draw in our submissions is a clear one. There are certain historic, religious, social events which occur and the law maker, often state parliament, in this case the parties, decide to recognise those historic, religious or social events by granting a holiday.
PN226
Now, it is common practice for the holiday to be granted on the actual day of that particular event; that is more usual than not. It's not always the case though. I mean I, probably slightly tongue-in-cheek, in my submissions made reference to the Queen's Birthday. That can't be on the same event, because it's different in different states. The Queen would have about eight birthday's a year, but it's simply that there is an event, the sovereign's birthday, and parliament decides that it will be recognised or celebrated or observed, if you like, on a particular day of the year and that's the day that's a public holiday.
PN227
Proclamation Day, Christmas Day, Boxing Day, New Year's Day are all holidays that can fall on a weekend - sorry, are all events that can fall on a weekend and what the law maker does is decide which day to celebrate that event. Now, there are three different ways it can be done and there are three different ways it is done in the various agreements and legislation.
PN228
The first is simply to say you celebrate a public holiday on the day that the event occurs, wherever it fall.
PN229
THE COMMISSIONER: ANZAC Day.
PN230
MR WEST: ANZAC Day or - - -
PN231
THE COMMISSIONER: I think with one exception, but yes.
PN232
MR WEST: Yes, and I'll come to that in a moment, or you can celebrated on the next Monday, if it is on the weekend, and that's the public holiday that day, or alternatively you can celebrated on the actual day as a public holiday and you can celebrate it on the following Monday as well, that concept of the additional day's holiday.
PN233
Now, it is not always been the case that public holidays have been celebrated on the actual day of the event. I can will recall, probably because I go back longer than most here, but Australia Day used to be a long weekend at the end of January and it was always a Monday at the end of January. It didn't coincide with the 26th of January. And ANZAC Day, generally in my recollection, used to be a long weekend as well, and it was only in the early 90s when there was a resurgence of interest in ANZAC Day that the change was made to make sure that the actual day of the landings at Gallipoli was the day of the public holiday.
PN234
THE COMMISSIONER: It might be more patriotic here in South Australia.
PN235
MR WEST: Well, that may be the case, but in Victoria - - -
PN236
THE COMMISSIONER: That was tongue-in-cheek.
PN237
MR WEST: Yes, sir. So that's the distinction that we draw and we say that distinction runs through the way in which the Commission and the legislature has dealt with these things and we note this idea that somehow the day, Proclamation Day, somehow retains the character of a public holiday which is the SDA's submission, is at odds with the way in which the Holidays Act in South Australia deals with it. It basically says that there is a substitution:
PN238
When a day mentioned in part 2 of schedule 2 falls on a Saturday, the following Monday will be a public holiday instead of that day.
PN239
And the NES provides in subsection 115(2) that if under a law of a state or territory a day or part-day substituted for a day or part-day that would otherwise be a public holiday because of subsection (1), then the substituted day or part-day is the public holiday.
PN240
So this system of substitution, so-called substitution is really to say the event occurs on a particular day and the public holiday in that year goes to a different day. So what you have is the difference between public holiday and is simply a historic, social or religious event.
PN241
Now, there's a certain inconsistency in the argument that the union puts up here in relation to this, because what it's really saying is, well, in order to have the relevant clause work in the way that they want it to work, you are required to regard the Saturday, 26 December as public holiday, because the words referred to are the "actual public holiday", but then they say, well, it's not a public holiday in the sense of entitlements applying to it, it's somehow sort of a hybrid thing where it's a public holiday without being a public holiday. The fact is it's not a public holiday at all. It ceased to be a public holiday as soon as that date fell on a Saturday.
PN242
The effect of this is automatically the Monday is the public holiday and the Saturday is just on ordinary day.
PN243
Now, if you accept the interpretation though that the union accepts, you can't escape the fact that you end up with two public holidays. On their interpretation, 26 December remains a public holiday, although there is some question about whether all the full entitlements accrue for some reason which is not clear, but there is no doubt that the Monday is a public holiday because of the effect of 16.5.
PN244
Now, the Commission has been very clear about that there shouldn't be a perceived intention to create what we'd describe and what is described in the cases as "double-dipping." In the Public Holidays test case that's been referred to, that's Print L9178 on page 21, the earlier decision of the Full Bench, they say:
PN245
The non-standard week of a full-time worker may include Saturday, Sunday or both in accordance with our decision of August. The public holiday, other than Easter Saturday and ANZAC Day, which fell in such a day would be the subject of a substitution provision. The employee, in our opinion, should not enjoy leave in respect of both the actual day and the substitute day. In our opinion, the following alternatives are equitable -
PN246
And then it goes on to describe arrangements. So quite clearly in the annual leave - in the public holidays test case, there was an intention by the Commission not to provide for double-dipping.
PN247
The court has also expressed its opinion about the undesirability of the double‑dipping in the case involving the SDA v Woolworths, which in one of the cases that I've referred you to and provided a copy. I'm trying to find the citation to it. It's a decision of Marshall Tracey and Flick JJ, Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 (17 May 2011), and at paragraph 11 there's a fairly strong view expressed by the Full Court of the Federal Court.
PN248
I'll just read the paragraph, Commissioner:
PN249
The intention of the agreement when providing for a public holiday on 26 April 2010 was to allow employees who would not ordinarily be required to work on Sunday 25 April 2010 to have the benefit of a public holiday on 26 April 2010 which otherwise would have been denied to them. It could not have been the intention of the parties to the agreement to allow employees who were expected to perform their ordinary duties on Sunday 25 April 2010 to have that day as a public holiday as well as the following day, Monday 26 April 2010. "Double‑dipping" in respect of public holidays in that way would not have been within the reasonable expectation of the parties to the agreement or the arbitral body which certified it. The treatment of both 25 and 26 April 2010 as public holidays for a person who worked on both days as part of that person's ordinary duties would mean, in effect, that such a person received two ANZAC Day holidays. Such an absurd result would not have been in the reasonable contemplation of the parties to the agreement.
PN250
So you're seeing in the attitude of the court, it's the Full Court or the Federal Court and the attitude of the test case Full Bench of the Commission that there is a recognition that these provisions are not to provide for double-dipping, for people to enjoy, in effect, two public holidays for one event.
PN251
Now, it is true that there are specific provisions which do that. So that where the state parliament, for example, intentionally creates two public holidays as has happened, and that is recognised in agreements, the Commission is prepared to accept that, but that's where there is a clear intention to create an additional day. Here, where there is no such clear intent, we submit that the approach of the Court and the Commission would favour you construing this as not an attempt to create a double dipping.
PN252
If you accept the union's interpretation, then you have to come to the conclusion that there is a double-dipping involved, because the person receives all the benefits of 28 December and then on the union's interpretation, if they worked on the 26 December, they will attract all of the benefits that go with doing so as if it's a public holiday.
PN253
So now coming back to our submissions generally, I won't go through and reiterate all of the points we make in detail, but I do want to make this point about this expression "actual public holiday". If you accept our submission that the effect of the substitution under clause 16.5 is that 25 December ceases to be a public holiday upon substitution, then how are you to interpret the words "actual public holiday".
PN254
What you have to accept though, to get the SDA's interpretation, you have to accept that the words "actual public holiday" don't mean "actual public holiday", they mean the actual day which is no longer a public holiday, but is the event giving rise to the public holiday. In other words, you have to accept it is the date isn't holiday, the reverse of what the words actually say.
PN255
We would submit that our interpretation, which is simply to say that this is confirming that when substitution occurs, work on the substitute day which is the actual public holiday, is both voluntary and attracts payments is a sensible and reasonable interpretation of those words, and does not require you to read them as if they say the reverse of what they say.
PN256
The final point we make is that you are required as part of the dispute settling clause, Commissioner, to have regard to the objects of the agreement itself. And those objects are set out in clause 5 of the agreement and they broadly-speaking are objectives to encourage the efficient operation of the company and to recognise it's need to meet the needs of its customers.
PN257
Now, evidence has been given by Ms Lake as to the effect of having two public holidays and that fact that if the union interpretation were correct and there would be an issue about volunteerism on two days which would not be conducive to the efficient operation of the business.
PN258
So we would submit that in terms of weighing up on the balance of the reasonable person test, one of the factors you can have regard to is, well, which interpretation would best serve the overall objective of the agreement, which is quite clearly set out in clause 5. So it is a matter of weighing up various factors. We acknowledge that and this is one of the factors we say you should take into account.
PN259
So other than that and to adopt the submissions that we have made in writing, unless the Commission has any questions, that's as much as we wish to put.
PN260
THE COMMISSIONER: Yes. I don't know whether you want to comment on those matters that I raised with Mr White.
PN261
MR WEST: I'm not sure whether I now recall what they were.
PN262
THE COMMISSIONER: That's all right. They concern the operation of the agreement and in particular whether clause 16.1.1 creates an additional public holiday because of its reference to "any other day declared or prescribed."
PN263
MR WEST: I think our submission would be - and I think it's not at odds with Mr White, is that that that's really referring to other events, other than the Proclamation Day, Adelaide Cup Day and so on. I think if we were to have a special holiday for the Commonwealth Games or something, yes. So in that sense - and I think the cases are supportive of that. I was trying to find the (indistinct) case, but I couldn't in the short time.
PN264
THE COMMISSIONER: All right. I think the other specific issue I raised was how section 115(3) should be applied and whether or not the substitution clause here should be treated as a clause consistent with that provision of the Act.
PN265
MR WEST: Yes. We would say it should. In any event, because of the substitution in the Holidays Act itself anyway, there's no inconsistency between the agreement and the NES, because the NES would pick up the substitution from the Holidays Act and all we have done really is replicate that when we signed the agreement.
PN266
THE COMMISSIONER: And one further matter, Mr West, if I can direct your attention to 1.27.
PN267
MR WEST: 1.27 of?
PN268
THE COMMISSIONER: Of your submissions, sorry.
PN269
MR WEST: Yes.
PN270
THE COMMISSIONER: Now, what I am interested in is the last part of that submission.
PN271
MR WEST: Yes.
PN272
THE COMMISSIONER: And in particular, what your - - -
PN273
MR WEST: Point we're making there.
PN274
THE COMMISSIONER: About the SDA's submission. I must say, I don't understand the point you are making there.
PN275
MR WEST: I see. It might be too (indistinctina) anyway, but if the parties to an agreement wish to create an additional day, they could state in plain terms that the public holiday will be observed on the actual day, Proclamation Day and in addition on the Monday. So you create two public holidays, or you might somehow - well, so you have to create it. You have to deem that Monday to be the public holiday. The effect of clause 16.5.4 on any fair reading, couldn't be said to deem the Proclamation Day, the 26th, as a public holiday, that the best the union are doing is arguing that it already is and it's just reflecting the consequences of that. So it doesn't act like a clause to create the additional holiday. On their interpretation they presume there is, but we say the presumption is wrong. Please the Commission.
PN276
THE COMMISSIONER: Thank you, Mr West. Mr White, anything in reply?
PN277
MR WHITE: I don't think so. I think the issues were - I think have been fairly met as between the parties. We are obviously at odd with what the words "the actual public holiday" mean and after all, hundreds of words - maybe it is as simple as the public holidays as defined in subclause 1, the actual public holiday is preferable to a non-ambulatory term.
PN278
Just one general observation in respect of the objects of the agreement, of course the objects of the agreement are broader than making the company money. They do include such things as to improve the working environment and to recognise the contribution of all parties, that there's obviously referrable to the employees.
PN279
To the extent that the respondent wants to rely on what it perceives to be some extra cost or inconvenience to support a proposition that the SDA interpretation would be contrary to the object, at least in that respect the evidence of Mr Blairs becomes relevant, regardless of whether or not it be, as discussed, precisely reflective of a mutual subjective intention. But putting that to one side, the payment of moneys, "akin to" is what we contend for here and in the past suggests that it's not inimical to the objectives of the agreement. Unless there's anything else, I've got nothing in reply.
PN280
THE COMMISSIONER: Thank you, Mr White. I propose to reserve a decision in the matter. I am however aware of the practicalities of the situation and I will endeavour to provide an answer in relation to the dispute as soon as possible. I should foreshadow that given the necessary sort of contingency arrangements, it is conceivable at least that I might initially give you effect of my decision and later publish reasons. I will reserve the right to do that, but ultimately I will give you a decision in writing at the earliest opportunity. I appreciate the very constructive submissions of both counsel. The Commission will adjourn.
ADJOURNED INDEFINITELY [11.22 AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
DONALD BLAIRS, AFFIRMED......................................................................... PN18
EXAMINATION-IN-CHIEF BY MR WHITE.................................................... PN18
EXHIBIT #SDA1 WITNESS STATEMENT OF DONALD BLAIRS............. PN26
THE WITNESS WITHDREW.............................................................................. PN37
JAYME LAKE, SWORN....................................................................................... PN41
EXAMINATION-IN-CHIEF BY MR WEST...................................................... PN41
EXHIBIT #COLES1 WITNESS STATEMENT OF JAYME LAKE.............. PN52
CROSS-EXAMINATION BY MR WHITE......................................................... PN54
THE WITNESS WITHDREW.............................................................................. PN75
MFI #SDA2 SDA'S SUBMISSIONS..................................................................... PN79
EXHIBIT #COLES 2 RESPONDENT'S SUBMISSIONS................................ PN205
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