Members will be familiar with the fact that the Tasmanian Transport Association (TTA) through its entity the Australian Road Transport Industrial Organisation (ARTIO) Tasmanian Branch, provides members with individual and collective service through its direct involvement in Employment Law and Industrial Relations regulatory regime.
The following article highlights the involvement of the ARTIO National Council and its National Industrial Advisor, Paul Ryan, in a matter before the Federal Court involving one of the largest Industry Operators, the outcome of which provides significant clarity for all operators around the definitions of shift worker and day worker.
Case Outcome Summary
In 2012, the TWU instituted legal proceedings against one of the larger Industry Operators seeking a declaration from the Federal Court that a the Company EBA, when properly interpreted, meant that ‘day workers’ commencing work within the Award spread of hours, specifically between 5:30am and 8:30am, were in law shift workers and entitled to a paid crib (meal) break of 20 minutes per day.
This matter involved interpretation of ‘day workers’ commencing work between 5:30am and 8:30am. These workers only worked a ‘day shift’ and did not rotate to any other shift.
Justice Tracey found in favour of the Company, and by extension the industry generally. He traced the history of the Award and EBA to gain an understanding of how the wording of the particular clause was determined.
He was particularly reliant on the detailed material that Australian Road Transport Industrial Organisation (ARTIO) provided to the Company solicitors to assist in the preparation and argument of the case. ARTIO provided material going back to the making of the Transport Workers Award 1983 and subsequent negotiations that occurred throughout the 1980s on the introduction of shift work into the industry.
In conclusion, despite that on a literal interpretation the TWU’s claim had some technical merit, Justice Tracey found that the industry had a common understanding of how the ‘crib break’ provision operated for shift workers and that there was a distinction between ‘day shift workers’ and ‘day workers. He stated:
“In such circumstances the literal construction of Clause 26 must give way to the common understanding, over almost a quarter of a century, of the parties whose conduct it regulated.”
ARTIO argued successfully in the modern award review process, which concluded in late 2013 that the RTD Award should be varied to make it crystal clear that ‘day workers’ cannot be treated as shift workers, irrespective of the time they might commence work.