Industry understanding of “shift worker” prevailed over literal interpretation

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Industry understanding of “shift worker” prevailed over literal interpretation

A common understanding of what was meant by “shift worker” and “day worker” was preferred over a literal interpretation that was suggested by the union; and so workers who were currently day workers were not to be treated as shift workers.

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A common understanding of what was meant by “shift worker” and “day worker” was preferred over a literal interpretation that was suggested by the union; therefore workers who were currently day workers were not to be treated as shift workers.

[Full text of this case: Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 (8 August 2014)]

The Transport Workers' Union argued for a literal reading of the award provisions, and this approach would have resulted in workers who were currently day workers being treated as shift workers. The workers started work no later than 6 am and finished at around 2.30 pm, five days each week. The employer argued, however, that the relevant provisions needed to be read and understood in light of their historical development and the common understanding between the parties that day workers were not day-shift workers.

Common understanding prevails


Justice Tracey in the Federal Court examined the history of the provision and the relevant case law in coming to a conclusion in favour of the employer.

The court noted that a literal reading of the definition of “day shift” in the relevant agreement rendered each of the relevant employees a shift worker working the day shift. As a day-shift worker, each was entitled to a paid crib time of 20 minutes.

Support for a literal reading of the relevant provisions was found in the decision of Moore J in Australian Liquor Hospitality and Miscellaneous Workers’ Union v Broadlex Cleaning Australia Pty Ltd (1997) 78 IR 464. The decision in that case held that an employee who regularly commenced work at 6 am and finished work at 2.30 pm each weekday satisfied the definition of “shift work” in the relevant award. Other case were also referred to as favouring such an approach.

Literal interpretation never intended by makers of agreement

In none of these cases was attention directed to the development of the provisions in question with a view to ascertaining whether or not a common understanding of the meaning of the provision could be discerned from its origin and its subsequent application.

The evidence in the present case established that the benefit of a crib break was, historically, made available to shift workers. It was not made available to those working within the ordinary span of hours provided for in the 2004 and 2010 Awards and their predecessors. It was a benefit that had implications for the way in which employers organised working arrangements within their businesses. The 2004 Award, like its predecessors, contained many provisions that distinguish between “day workers” and “shift workers”.

History

The concept of a “day shift” was introduced into the 1983 Award for the first time in August 1987.

A review of the award had supported the conclusion that the parties had, by their conduct, demonstrated that they held a common understanding that the provisions relating to crib time applied only to shift workers and that the large majority of workers who were treated as “day workers” were not “day shift” workers within the meaning of the award.

The court concluded by saying that in such circumstances the literal construction of the clause here must give way to the common understanding, over almost a quarter of a century, of the parties whose conduct it regulated.

The bottom line: Courts interpreting industrial instruments have a range of issues to consider, including the intentions of the parties who were responsible for making the instrument (award/agreement).

Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 (8 August 2014)

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