Allchin v Commissioner of Police

Appeal - Leave to appeal - Award interpretation - Fire Brigades Award - Recall to work overtime - Whether minimum payment of four hours at overtime rate is payable when period of recall abuts employee's rostered shift - Whether there was to be a break between a period of overtime and the commencement of the employee's next rostered shift in order to qualify for minimum overtime payment - Principles of award interpretation - Meaning of recall - Reading words into an award - Whether award provision created an absurdity - Leave to appeal granted - Appeals dismissed CATCHWORDS: Award interpretation - Appeal - Fire Brigades Award - Recall to work overtime - Whether minimum payment of four hours at overtime rate is payable when period of recall abuts employee's rostered shift - Whether there has to be a break between a period of overtime and the commencement of the employee's next rostered shift in order to qualify for minimum overtime payment - Principles of award interpretation - Meaning of recall - Reading words into an award - Whether award provision created an absurdity - Leave to appeal granted - Appeals dismissed

LEGISLATION CITED: Industrial Relations Act 1996 Interpretation Act 1987

Allchin v Commissioner of Police (No 2) (2007) 168 IR 170 Bolton and Others; Ex parte Beane (1987) 162 CLR 514 at 518 Byrne v Australian Airlines Limited (1995) 185 CLR 410 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 Fox v GIO Australia Ltd (2002) 56 NSWLR 512 General Construction (State) Award & Another (1969) AR (NSW) 149 Geo. A Bond & Co Ltd (in liquidation) v McKenzie [1929] 28 AR (NSW) 498 at 503 Harrison v Melhem [2008] NSWCA 67 K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Kingston and Anor v Keprose Pty Ltd (1987) 11 NSWLR 404 Local Government Electricity Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [1975] AR 697 Metalliferous Miners, etc, General (State) No 2 Conciliation Committee, Re [1940] AR 249 CASES CITED: Mills v Meeking & Others (1990) 169 CLR 214 Newcastle City Council v GIO General Limited (1997) 191 CLR 85 NSW FBEU v Director of Public Employment by her agent the Commissioner of NSW Fire Brigades (No. 2) [2008] NSWIRComm 7 NSW Fire Brigades Employees' Union v NSW Fire Brigades [2007] NSWIRComm 128 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 Public Hospital Nurses (State) Award, Re (1983) 5 IR 153 Race Clubs & Employees (Cumberland and Newcastle) Award, Re [1991] NSWIRComm 22 R v L (1994) 49 FCR 534 Saraswati v R (1991) 100 ALR 193 St John Ambulance Officers Case (Re Interpretation of the St John Ambulance Officers Award (1992) 59 SAIR 124 St John Ambulance Service of South Australia v The Ambulance Employees Association (South Australian Branch) [1992] SAIRC 30 Sydney Tower Restaurants Pty Ltd v Zhang (2004) 135 IR 93 United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853 Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales (2004) 135 IR 56

APPELLANT Ms T Anderson of Counsel Assisted by: Ms J Duncan New South Wales Fire Brigades LEGAL REPRESENTATIVES: RESPONDENT Mr J Nolan of Counsel Assisted by: Ms G Lowe New South Wales Fire Brigades Employees' Union

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J, PRESIDENT WALTON J,VICE-PRESIDENT SAMS DP Friday, 29 August 2008

DIRECTOR OF PUBLIC EMPLOYMENT BY HER AGENT THE COMMISSIONER OF NEW SOUTH WALES FIRE BRIGADES AND NEW SOUTH WALES FIRE BRIGADES EMPLOYEES' UNION

Application by Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades for leave to appeal and appeal against a decision of Deputy President Grayson given on 1.6.2007 in matter no. IRC 166 of 2007 Matter No IRC08/246 DIRECTOR OF PUBLIC EMPLOYMENT BY HER AGENT THE COMMISSIONER OF NEW SOUTH WALES FIRE BRIGADES AND NEW SOUTH WALES FIRE BRIGADES EMPLOYEES' UNION

Application by Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades for leave to appeal and appeal against a decision of Deputy President Grayson given on 4.2.2008 in matter no. IRC 166 of 2007

DECISION OF THE COMMISSION [2008] NSWIRComm 158 BACKGROUND 1 This decision determines two applications for leave to appeal and, if leave be granted, appeals filed pursuant to s 187 and s 188 of the Industrial Relations Act 1996 ('the Act'), by the Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades ('the appellant'). The appeals arise as a consequence of two decisions of his Honour Deputy President Grayson on the same subject matter. Shortly stated, the subject matter concerns a dispute between the New South Wales Fire Brigades Employees' Union ('the respondent') and the appellant as to the proper construction of Clause 9.6.1 of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 ('the Award'), which deals with the recall provisions in circumstances where off-duty firefighters are required to report for duty to maintain required staffing levels. The disputed clause is expressed as follows: 9.6.1 An employee off duty who is required to report for duty for the purpose of maintaining required staffing levels shall, on so reporting, be entitled to a minimum payment equal to four hours at overtime rates.

2 Before outlining the competing positions of the parties, it will be helpful to provide a short background to the present appeals. Both in the proceedings before Grayson DP, and in these appeals, the argument was predicated on the basis of an Agreed Statement of Facts which we reproduce below: (i) Paul Brown joined the NSW Fire Brigades (NSWFB) on 21 July 1972 as a Recruit Firefighter. He was promoted to the position of Station Officer on 12 July 1996. He lives at Matcham Road in Buxton. (ii) The award covering Station Officer Brown's wages and conditions is the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 (the Award). (iii) A copy of the Award is attached and marked as Attachment A. (iv) On 11 April 2006, Station Officer Brown was transferred from Camden Fire Station (Station 248) to Cabramatta Fire Station (Station 49) on D Platoon. (v) At all material times Station Officer Brown was permanently attached to Cabramatta Fire Station (on D Platoon) at which the standard 10/14 roster is worked. (vi) The standard 10/14 roster is prescribed at clause 8.3 of the Award. (vii) Station Officer Brown's hours of duty when he is rostered to work a day shift at Cabramatta Fire Station is 0800 hours to 1800 hours. (viii) Camden Fire Station is manned by: one permanent firefighter who is a Station Officer who works the Special Roster who is prescribed by clause 8.6.1 of the Award (i.e. Monday to Thursday 0800 hours to 1630 hours and Friday 0800 hours to 1600 hours); and

retained firefighters who are employed under the Crown Employees (NSW Fire Brigades Retained Firefighting Staff) Award 2005 (the Retained Award). (ix) A copy of the Retained Award is attached and marked as Attachment B.

(x) On 13 April 2006, 19 April 2006, 20 April 2006, 26 April 2006, 27 April 2006 and 28 April 200, Station Officer Brown worked an outday (as defined in clause 4 of the Award) at Camden Fire Station. An outday attracts the payment of the relieving allowance prescribed by clause 12.6.1.2 of the Award. On those days he commenced work at 0600 hours and worked: between 0600 hours and 0800 hours due to retained firefighter unavailability;

the Special Roster applicable to the position of Station Officer at Camden Fire Station;

between the finishing time of the Special Roster and 1800 hours due to retained firefighter unavailability (xi) Station Officer Brown also worked outduties at Camden Fire Station on 1 May 2006, 2 May 2006, 3 May 2006 and 4 May 2006. On those days he commenced work at 0700hours and worked: between 0700 hours to 0800 hours due to retained firefighter unavailability;

the Special Roster applicable to the position of Station Officer at Camden Fire Station,

and, due to retained firefighter unavailability, on two of those days (i.e., on 1 May 2006 and 3 May 2006) he continued to work after the finishing time for the Special Roster. On those two days his finishing times were as follows: 1 May 2006 - 1800 hours 3 May 2006 - 1830 hours (xii) The dates specified in paragraphs 10 and 11 have been chosen by the FBEU and NSWFB as representative samples. (xiii) When the number of staff available to respond from Camden Fire Station falls below 4, either: retained firefighters from another retained station may be required to stand by at Camden Fire Station pursuant to clause 6.8.1 of the Retained Award; or

permanent firefighters (such as Station Officer Brown) may be required to perform an outduty at Camden Fire Station (xiv) Clause 9.6 of the Award covers "Recall to Maintain Required Staffing Levels". Clause 9.6.1 of the Award states: "An employee off duty who is required to report for duty for the purpose of maintaining required staffing levels shall, on so reporting, be entitled to a minimum payment equal to four hours at overtime rates." (xv) A provision similar to clause 9.6.1 of the Award has been included in previous Awards for permanent firefighters. (xvi) In accordance with its usual practice NSWFB paid Station Officer Brown a payment equal to two hours at overtime rates for the period 0600 hours to 0800 hours in relation to the dates specified in paragraph 10 above. On those dates he was also paid at overtime rates for the period between finishing time of the Special Roster and 1800 hours. (xvii) In accordance with its usual practice NSWFB paid Station Officer Brown a payment equal to one hour at overtime rates for the period 0700 hours to 0800 hours in relation to the dates specified in paragraph 11 above. On 1 May 2003 he was also paid at overtime rates for the period between the finishing time of the Special Roster and 1800 hours. On 3 May 2003 he was also paid at overtime rates for the period between the finishing time of the Special Roster and 1830 hours. (xviii) On 18 October 2006, the FBEU wrote to the NSWFB seeking a minimum payment equal to four hours pay at overtime rates for the period between 0600 and 0800 hours in relation to the dates specified in paragraph 10 above. The FBEU claims that clause 9.6.1 of the Award requires the payment of 4 hours pay at overtime rates for those periods. A copy of that letter is attached and marked as Attachment C. (xix) The NSWFB rejected the FBEU's claim by letter dated 8 December 2006. A copy of that letter is attached and marked as Attachment D. (xx) The NSWFB contends that the 0600 hours and 0700 hours starts on the dates specified in paragraphs 10 and 11 above were not recalls when Station Officer Brown was off duty as comprehended by clause 9.6.1 of the Award but merely overtime before the start of a shift and, accordingly, such overtime should be remunerated on the same basis as overtime worked after the end of the shift. 3 The parties accepted that the above example of Station Officer Brown's circumstances was representative of the issue the Commission was required to determine. We intend to proceed with determining the appeals on that basis. The issue may be crystallised as follows: is cl 9.6.1 of the Award applicable to the one or two hour periods Station Officer Brown worked immediately before the commencement of his rostered shifts (see paras (x) and (xi) of the Agreed Statement of Facts) or, as the appellant argued, do the general overtime provisions apply? The practical effect of the competing interpretations of the disputed clause is, respectively, a minimum four hour payment at overtime rates (seven hours pay) as opposed to time and a half for two hours work (three hours pay). 4 We set out hereunder the relevant Award provisions found at cl 9: 9. Overtime 9.1 Overtime shall be paid for at the rate of time and one-half for the first two hours and at the rate of double time thereafter, provided that an employee who is required to work overtime shall be entitled to payment for at least 15 minutes of overtime on each occasion that the employee is called upon to work overtime. 9.2 For meal allowance entitlements where an employee works for more than two hours after the rostered finishing time of the shift, see Clause 10, Meals and Refreshments. 9.3 When it is reasonably necessary for an employee who has returned to the station either before or after the ceasing hour of the shift to clean up before leaving the station, and thereby justifiably leaves the station after the ceasing hour, the time so reasonably and necessarily occupied beyond the ceasing hour shall be paid for as overtime; provided, however, that on return to the station the employee draws the situation to the attention of the Officer-in-Charge of the station and that during the next working shift applies in writing for the overtime due under this subclause, specifying the grounds of the claim; provided, further, that if an employee is prevented by duty or other reasonable cause from making the claim on the next working shift the employee shall make the claim on the next ensuing working shift. 9.4 The hourly rate of pay for an employee for the purpose of this clause shall be ascertained by dividing the appropriate weekly "rate of pay" for such employee by forty. 9.5 Recall to Incident 9.5.1 An employee who is off duty and who is called upon, pursuant to subclause 9.5.2, to report for duty to attend an incident shall be entitled to a minimum payment equal to two hours at overtime rates. 9.5.2 Notwithstanding anything elsewhere contained in this clause, in the case of an incident, all employees off duty shall be liable to be called upon to report for duty and if called upon shall report immediately for duty 9.5.3 An employee who is on annual leave or long service leave and who reports for duty to attend an incident shall, in addition to payment pursuant to subclause 9.1, be credited with consolidated leave equal to the amount of time so worked. 9.5.4 For meal allowance entitlements when the employee remains on duty for a period of four hours or more in connection with a recall pursuant to subclause 9.5.1, see Clause 10, Meals and Refreshments. 9.6 Recall to Maintain Required Staffing Levels 9.6.1 An employee off duty who is required to report for duty for the purpose of maintaining required staffing levels shall, on so reporting, be entitled to a minimum payment equal to four hours at overtime rates. 9.7 Where an employee recalled pursuant to either subclauses 9.5.2 or 9.6.1: 9.7.1 Is required to transport the employee's gear from the station/location at which the gear is located to another station/location in order to perform the duties of the recall, such employee shall be paid the amount set at Item 23 of Table 3 of Part D, for the distance travelled on the forward journey between the two locations. In the event that the Department is unable to transport the employee's gear back to the station/location at which the gear was located, the employee shall also be entitled to be paid return kilometres equal to the forward journey. For the purpose of this subclause "distance travelled" means the agreed distance or, if the distance is not covered by a Matrix, the actual kilometres travelled. 9.7.2 Incurs a toll as a consequence of using a bridge, tunnel or motorway when travelling to perform the recall, such employee shall be reimbursed for the cost of the toll. 9.8 On such nights as may be fixed by the Department or by the Commissioner on reasonable notice in the circumstances not exceeding two nights in any week, an employee shall work such overtime as is reasonably necessary for usual Brigade inspections, or for giving instructions to Retained Firefighters. 9.9 When overtime work is necessary it shall, except in the case of an emergency, be so arranged that employees have at least eight consecutive hours off duty between the work of successive shifts. Where an employee works so much overtime between the termination of the employee's ordinary work on any day or shift, and the commencement of the employee's ordinary work on the next day or shift, that the employee has not had at least eight consecutive hours off duty between these times, the employee shall be released after completion of such overtime until the employee has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. 9.9.1 If on the direction of the employee's authorised supervisor, such employee resumes or continues work without having had such eight consecutive hours off duty, the employee shall be paid at the rate of double time until the employee is released from duty for such period, and the employee shall be entitled to be absent until the employee has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. 9.9.2 Provided that while recalls shall be paid for at overtime rates in accordance with this Award, where the actual total time worked on a recall or recalls is less than 3 hours it shall not count for the purpose of determining whether an employee has had an eight hour break pursuant to this subclause.

The Deputy President's Decisions 5 In NSW Fire Brigades Employees' Union v NSW Fire Brigades [2007] NSWIRComm 128 ('the first decision'), Grayson DP observed at [8] that the disputed clause was introduced into the Award on 3 November 1978 and, since that time (almost 30 years), has been consistently applied in the manner contended for by the appellant. 6 After outlining the parties' respective contentions, his Honour identified the significance of the contextual approach to statutory interpretation and referred to the High Court authority in K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309. His Honour then proceeded to interpret the disputed clause by posing "whether the circumstances in which Station Officer Brown finds himself constitutes a true recall in the context of the award such that the provisions of cl 9.6.1 should apply". 7 At this juncture, we note that there was no dispute that his Honour directed himself to the appropriate question that he was required to answer by way of interpretation of the disputed clause, pursuant to s 175 of the Act. 8 What followed was that his Honour was presented with a number of competing interpretations of the concept of 'recall' in a number of awards and, in some instances, in circumstances not directly analogous to those pertaining here. After consideration of two different approaches, it is clear that his Honour rejected a number of single member decisions of this Commission (and its predecessors): see General Construction (State) Award & Another (1969) AR (NSW) 149; Race Clubs & Employees (Cumberland and Newcastle) Award [1991] NSWIRComm 22; and Public Hospital Nurses (State) Award (1983) 5 IR 153, and preferred the approach adopted by McCusker J of the South Australian Industrial Relations Commission in the St John Ambulance Officers Case (Re Interpretation of the St John Ambulance Officers Award (1992) 59 SAIR 124). In this respect, Grayson DP observed: [25] As may be seen, a critical feature of McCusker J's reasoning was that the natural and ordinary meaning of the word 'recall' focussed on the act of returning to work and did not permit the act of being released from work to be imported into it. Thus the latter element did not constitute or form part of the meaning of the word 'recall' in the award. 9 His Honour noted that the view of McCusker J was upheld on appeal by the Full Court of the South Australian Industrial Relations Commission in St John Ambulance Service of South Australia v The Ambulance Employees Association (South Australian Branch) [1992] SAIRC 30. His Honour then concluded: [27] With every respect to the earlier decisions which have guided and until now been accepted by the industrial interests in this jurisdiction and notwithstanding Ms Anderson's vigorous submissions to the contrary (which I apprehend were based largely on the desirability of comity) I find the reasoning in St John Ambulance Officers , affirmed as it was on appeal, to be highly persuasive. To the extent that it supports the interpretation for which the union contends in this case, I propose to follow it. [28] Having said that, it may be appropriate for the parties to consider, going forward, whether in the wider context of the award, a firefighter who is told before ceasing work in one shift, that he or she is required for an early start prior to the next or subsequent shift (for whatever reason) can then claim to be entitled to payment for recall rather than general overtime. As McCusker J observed in St John Ambulance Officers , a recall focuses on a situation of return to work on request after having completed the usual stint and before the time arranged for the next commencement in the ordinary course. It is the quality of the uncontemplated and unexpected that marks it. It is an extra to the arrangement generally in existence between employer and employee. I am of the view that such an approach would be consistent and in harmony with the general overtime provisions of cl. 9.1 of the award and the recall provisions of cl. 9.6 of the award. 10 The first decision of Grayson DP was appealed on 27 June 2007 and came before a Full Bench of the Commission on 20 August 2007 as to a threshold issue, namely, an application, pursuant to s 191(2) of the Act, to call further evidence in the appeal. After hearing submissions and receiving further oral evidence, the Full Bench concluded: In the circumstances, we shall adjourn the proceedings until his Honour, Deputy President Grayson, has dealt with the further application intended to be put by the present appellant, namely, that the proceedings presently before him yet to be the subject of the making of an order for the purposes of section 175 of the Act would be reopened for the purpose of considering any other relevant matters raised by the appellant, presumably including the matters that have now been raised afresh on the appeal. We consider that the adjournment should be granted so as to permit that opportunity. There is plainly a basis upon which the proceedings at first instance may be reopened in all the circumstances and as a matter of discretion we can presently see no reason why that step might not be taken by the Deputy President; if his Honour is minded to reopen the proceedings and make a further determination accordingly; then in that event we would stand those proceedings over until that determination was made and the parties report that fact to us and the consequences that may have to the appeal. If his Honour refuses to reopen the proceedings and thereby they are concluded, then we reserve fully the rights of the parties to agitate further any of the submissions they presently advance on the appeal or further matters arising or to give consideration to the other proceedings which may obviate the need for appeal to be proceeded with in due course. ... We should indicate that nothing that has fallen from us in relation to the question of reopening has any bearing on the determination of the issues raised on this appeal. We simply noted that there is a proper basis upon which his Honour may take that step at first instance. 11 In his Honour's second decision (NSW FBEU v Director of Public Employment by her agent the Commissioner of NSW Fire Brigades (No. 2) [2008] NSWIRComm 7) Grayson DP granted leave to reopen the proceedings and received further evidence from Mr Alfred McGrath, the appellant's retired Director of Human Resources and Administrations, Mr Paul Bailey, Duty Commander and Mr Marcus Baker, Acting Chief Superintendent. Notwithstanding this further evidence, his Honour was not persuaded to depart from his earlier decision and he made an order pursuant to s 175 of the Act. At [13] and [14] his Honour said: [13] I observe at this point after careful scrutiny of the history provided by Mr McGrath including the judgments of Cahill J in 1975 and the 1978 transcript of proceedings before Mr Conciliation Commissioner Dunn that nowhere can I see any conclusion, express or implied, or any part of the Commission's reasoning which disentitles a recalled firefighter to the minimum four hours pay at overtime rates merely because the recall abuts a normal rostered shift for that firefighter. [14] That is the nub of the proposition for which the employer contends and with every respect, I am unable to see how that proposition is advanced by the fresh evidence now relied upon. Having said that, the cost implication of paying recalled firefighters a minimum of four hours at overtime rates is not lost upon the [sic] me and this is the issue to which Commander Bailey's evidence goes. It must be borne in mind, however, if the award construction for which the FBEU contends - that is, the interpretation determined by the Commission in [2007] NSWIRComm 128 be the proper construction, firstly, that the employer has been legally liable for it since the inception of the provision in 1978 and secondly, that the four hours overtime provision, on the face of it, as directed at replacing the expectation of a more costly eight hours overtime as contemplated by Cahill J in his supplementary judgment extracted at [9] above.

CONSIDERATION AS TO LEAVE TO APPEAL 12 Ms T Anderson of counsel for the appellant submitted that it was in the public interest that leave to appeal be granted as, in addition to the very substantial cost burden on the appellant arising from Grayson DP's interpretation of the disputed clause, the appeals raised important questions with respect to the proper construction of the Award and New South Wales industrial jurisprudence. 13 Mr J Nolan of counsel for the respondent submitted that leave to appeal should not be granted merely because the respondent does not wish to pay outstanding monies. In any event, he said, any ongoing cost implications could be dealt with in Award negotiations that were currently being undertaken. He further submitted that Grayson DP's decisions were consistent with the accepted principles of award interpretation and no error in the application of these principles had been established. 14 We have decided to grant leave to appeal in these matters. In Allchin v Commissioner of Police (No 2) (2007) 168 IR 170, the Full Bench recently summarised the principles relevant to the grant of leave. At [14] and [15] the Full Bench said: 14 Whether leave to appeal should be granted involves quite distinct considerations. The starting point in relation to an application for leave to appeal in this jurisdiction is s 188 of the Industrial Relations Act 1996. Under s 188(2) the Full Bench may grant leave to appeal if, "... the matter is of such importance that, in the public interest, leave should be granted". This public interest test has been the subject of much judicial comment. In Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380, the Full Bench observed (at 381) that, under s 188(2), "... leave will not lightly or automatically be granted". The decision adverted to some instances where leave may be appropriately granted under the section, including whether the appeal, "... raises substantial issues of principle or law or has wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application" (at 382). 15 Other decisions have sanctioned leave to appeal where demonstrable error has been disclosed in the first instance decision or where the exercise of a discretion has miscarried. In King v State Bank of New South Wales (No 2) (2002) 126 IR 407, the Full Bench, in adopting this approach when granting leave to appeal, observed (at [54]): [54] Having regard to the submissions of the appellant on the question of leave in his appeal, it is plain that in large measure, the appeal seeks to challenge the findings of fact made by his Honour. As was made clear by the Full Bench in Knowles an appeal which seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in obtaining leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]: "In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave."

Comments to similar effect were made by the Full Bench in Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [4]-[6]. 15 We consider that the appellant has amply demonstrated that it is in the public interest for leave to appeal to be granted. There is no doubt that there are very significant cost implications for the appellant. However, that a decision may significantly increase costs would not usually, of itself, be a sufficient reason to grant leave. In the present case, though, the appeals raise a substantial issue with implications for the Commission's jurisprudence in that Grayson DP opted not to follow a number of decisions of this Commission and its predecessors regarding the interpretation of recall provisions in awards. A refusal to grant leave runs the risk of leaving open to doubt the proper interpretation of these provisions that, although not uniformly worded across awards, often have common elements. SUBMISSIONS OF THE PARTIES For the appellant 16 Ms Anderson submitted that cl 9.6.1 of the Award only applied in circumstances where a firefighter was recalled to duty and released from duty at the conclusion of the recall. It did not apply to a situation (exemplified by Station Officer Brown's circumstances) where there was no break between a period of overtime and the commencement of the firefighter's next rostered shift, which was, in effect, an early start. 17 Ms Anderson said that the fresh evidence, admitted in the proceedings before Grayson DP, demonstrated that the clause was originally necessary to overcome a 'mischief' that had arisen in dealing with the problem of unexpected absences that arose as a consequence of the introduction of the 10/14 shift roster in 1975. Counsel explained that after the introduction of the 10/14 roster there was no award provision to address a call-in, other than in an emergency situation. The problem was addressed by the introduction of a recall roster. The roster was maintained on the basis that off duty firefighters who were recalled to work to cover staff shortages, could have an expectation that they were being recalled to duty for the remainder of the shift. 18 Ms Anderson referred to one of the principles of award interpretation, that regard may be had to the history of the award and the context in which a provision was included, when determining the proper construction of the provision. Counsel submitted that Grayson DP had not applied this principle in so far as he failed to give proper weight to the understanding disclosed in the 1978 consent Award proceedings before Conciliation Commissioner Dunn, that a four hour minimum payment was the standard found in most industry recall provisions. 19 Ms Anderson referred to the consistent line of authority in the New South Wales jurisdiction commencing with Richards J's decision in the General Construction (State) Award Case and Grayson DP's alternative reliance on the South Australian St John Ambulance Officers' Case, which he had described as "highly persuasive". Counsel submitted that this later decision could, in no way, affect the context in which cl 9.6.1 was inserted in the Award in 1978 or the 'mischief' to which it was directed. His Honour merely compared the literal words in the Award and had not considered their context. In this regard, Grayson DP had failed to adopt the contextual approach to the interpretation of the provision and adopted a strictly literal reading of the words. 20 For 30 years the appellant, without demur from the respondent, had routinely treated overtime immediately before a rostered shift in the same way as overtime worked immediately after a rostered shift. The Deputy President's error was further demonstrated, Ms Anderson said, by the fact that he had ignored the respondent's own letter to the appellant dated 8 June 1990, which disclosed that the respondent was aware that cl 9.6.1 did not apply to overtime worked immediately before a rostered shift. 21 The Deputy President had also ignored the approach adopted and accepted in the New South Wales jurisdiction for nearly 40 years with respect to a 'true' recall. His Honour had said that he could not find any conclusion, expressed or implied, in Commissioner Dunn's decision which disentitled a recalled firefighter to a minimum of four hours at overtime rates, merely because a recall abutted a normal rostered shift. However, Ms Anderson contended that this question simply did not arise, and could not have arisen, in the proceedings before Commissioner Dunn. 22 Ms Anderson sought to demonstrate what counsel referred to as the absurdity of the challenged interpretation by observing that a firefighter who was recalled to attend an incident under cl 9.5 (a 'true' callback) was paid a minimum three hours' pay, whereas a firefighter reporting for duty one hour early before his/her normal shift would receive a minimum of seven hours' pay. 23 In further oral submissions, Ms Anderson said that if the interpretation of Grayson DP were allowed to stand, it would have significant cost implications for the appellant. In addition to any retrospective obligations, it was estimated to have an annual recurrent cost of over $500,000. 24 Ms Anderson emphasised that his Honour had adopted a purely literal approach to the words in the disputed clause. While his Honour did mention, and had referred to, the correct principles of award interpretation, he had failed to apply them. 25 Ms Anderson conceded that in his first decision, Grayson DP did not have the benefit of the evidence as to the context in which the disputed clause was inserted or the 'mischief' to which it was directed. However, he did have the context in considering the second decision and, although there may be some ambiguity in the provision, it was clearly directly towards a 'true' recall situation and in a situation where the absence was for a whole shift, not one or two hours. 26 In developing the appellant's submissions on the correct approach to award construction, Ms Anderson relied on Fox v GIO Australia Ltd (2002) 56 NSWLR 512. She said that when the Award was viewed as a whole, the appellant's approach must be correct. Ms Anderson also relied on Geo. A Bond & Co Ltd (in liquidation) v McKenzie (1929) AR (NSW) 498 and Sydney Tower Restaurants Pty Ltd v Zhang (2004) 135 IR 93. 27 Ms Anderson referred to the history of how the provision had been applied and accepted by the respondent for almost 30 years. The appellant had only paid the minimum four-hour recall where a firefighter had gone home after being called in, and not where the ordinary shift followed immediately thereafter. She said that the appellant's approach had been with the full knowledge, acquiescence and, indeed, at the request of the respondent: see United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853. 28 Ms Anderson said that with the introduction of the 10/14 roster system, recall overtime duty of eight hours was worked only on the second and third days off during a firefighter's 96 hours, or four days rostered off. Clause 9.6.1 was only directed towards this circumstance. The present situation could not have been in the mind of Commissioner Dunn nor the respondent in 1978, because it just did not happen. What the respondent now sought was to use cl 9.6.1 for something that did not exist at the time of its introduction. There was no early start because the recall was for eight hours on the second or third days of a four-day rostered off period. For the respondent 29 Mr Nolan submitted that the decisions of Grayson DP were without error and demonstrated the correct approach to the construction of the disputed clause. Mr Nolan addressed the cost burden issue by putting that the ongoing operation of the disputed clause should be addressed in the current award negotiations. He added that the appeals should not be granted merely because the appellant does not wish to pay past and future award obligations. 30 Mr Nolan said that the Deputy President's decisions were consistent with the accepted principles of award interpretation and that his Honour had given proper weight to the original and supplementary evidence in the proceedings. 31 Mr Nolan rejected the appellant's interpretation of the 1978 proceedings before Commissioner Dunn, in which a four-hour recall payment was said to be the industry standard. Mr Nolan said that this was in the context of recalls on the second and third day of the 96 hour off cycle, and not to recalls immediately prior to the start of a shift. 32 Mr Nolan submitted that Grayson DP's reliance on the St John Ambulance Officers' Case was not in reference to the Award's context and history, but in support of the proper construction of the disputed clause. Mr Nolan contended that the decisions in the Public Hospital Nurses' Case and the Race Clubs & Employees' Case dealt with different questions than the issue to be determined here. Mr Nolan rejected the appellant's reliance on the respondent's 1990 letter, as it contained no reference to recalls prior to the commencement of shifts. 33 As to the "absurdity" referred to by Ms Anderson, regarding a lesser payment for a recall to an incident, Mr Nolan submitted that this "absurdity" would continue to exist whether the recall was before the start of the shift or at some other time during the shift. 34 In further oral submissions, Mr Nolan submitted that if one "drills down" to the essential issue in these appeals, it seemed to be, according to the appellant, a single trigger which invoked cl 9.6.1 - that is, that recall to duty required an employee to go home before they came back to resume duty. When one looked at the actual words of the clause, such a notion was plainly dispelled. The disputed clause was expressed very simply and unambiguously. It required the happening of a number of readily ascertainable events, namely, a firefighter who was required to report to duty to maintain required staffing levels, and upon doing so, being entitled to a minimum of four hours' pay at overtime rates. While the entitlement might arise, even after a few seconds, no amount of "baggage" could be brought to bear to give it the meaning proposed by the appellant. 35 Mr Nolan said that Grayson DP applied the correct approach to award interpretation and only in the absence of some overwhelming or compelling contrary indicators would that approach be rejected. Mr Nolan submitted that the historical material did not contradict the accepted construction of clauses such as this and nothing in the decisions relied upon by the appellant would compel a construction of the clause which was urged by the appellant. He added that it was simply not a matter discussed when the Award was varied to introduce cl 9.6.1. The preoccupation then was a firefighter recalled on his/her rostered day off. When his Honour had looked carefully at the supplementary historical material, it did not provide assistance in the proper construction of the disputed clause in the present circumstances. Mr Nolan concluded that the historical picture fell well short of providing the clarity for which the appellant now contended. 36 Mr Nolan submitted that when one considered the words "maintain required staffing levels", and in the context of the preceding clause dealing with recalls to an incident, it must be said that there was an "element of arbitrariness" about the provision. Mr Nolan agreed that there was no distinction between the situation of a recall with notice and a recall in the context of being summoned to return. He said that, even so, these situations were a "world away" from the kind of recall discussed by Richards J in the General Construction Case. Mr Nolan said that if the historical context did not assist, then one was driven back to the actual words used. In reference to the South Australian decisions at first instance and on appeal, Mr Nolan said there was nothing surprising in the approach there taken, nor was there anything surprising in Grayson DP adopting that approach. CONSIDERATION Principles of Award Interpretation 37 The consideration of these appeals, as it was before Grayson DP, arises from the Commission's power, found at s 175 of the Act, to interpret the provisions of an industrial instrument. The section relevantly provides as follows: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 38 The Interpretation Act 1987 applies to the interpretation of awards (see s 3(1)), thereby entrenching the long held principle that awards are to be interpreted as any other enactment is interpreted: George A Bond & Co Ltd (in liquidation) v McKenzie [1929] 28 AR (NSW) 498 at 503. 39 There are four principles of statutory (and award) interpretation that are of particular relevance to the issue we have to decide in this case, which is whether cl 9.6.1 of the Award applies to the one or two hour periods Station Officer Brown worked immediately before the commencement of his rostered shifts. 40 First, statutory construction must involve a purposive approach. Section 33 of the Interpretation Act gives statutory recognition to the common law purposive approach in the following terms: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 41 The approach required by s 33 does not depend on the existence of an ambiguity or inconsistency. It allows a court to consider the purposes of an Act in determining whether there is more than one possible construction: Mills v Meeking and Others (1990) 169 CLR 214 at 235. However, the requirement of s 33 is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: R v L (1994) 49 FCR 534 at 538. In other words, in interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton & Others; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 459. 42 This point was recently confirmed by Spigelman CJ in Harrison v Melhem [2008] NSWCA 67 at [14] and [16] 14 However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. ( Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].) … 16 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].)

43 Secondly, in CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384 at 408, in referring to the principle of contextual interpretation, the High Court stated:

... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. See also Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales (2004) 135 IR 56 at [44].

44 Thirdly, extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. Again, however, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision. As McHugh J observed in Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113: Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. 45 This takes us to the fourth principle. In an address to the Clarity and Statute Law Society at Cambridge University in July 2002 ("Towards a Grand Theory of Interpretation, The Case of Statutes and Contracts"), Kirby J identified a number of general features of statutes and contracts that "may make it dangerous to assume that exactly the same approach to interpretation will be apt for both". In particular, his Honour noted: Whilst a written contract between private parties having large consequences may, on occasion, involve the need for great precision and go through many drafts, ordinarily there is less formality about most written contracts. At least this is so when compared to the preparation of legislation. In the nature of writing that expresses binding public law, legislation is addressed to the community at large and usually has no stated termination date. It is typically prepared by highly trained and expert parliamentary counsel. It is ordinarily accompanied by explanatory memoranda. It is introduced into the legislature with a ministerial second reading speech. Typically, this degree of formality is missing from private instruments… 46 Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. 47 Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 48 We turn to the competing contentions regarding the purpose of cl 9.6.1. On the one hand, the appellant maintained the provision was designed to compensate an employee who was required to report for duty whilst the employee was off duty for the purpose of maintaining staffing levels, but that the provision did not apply to a situation where there was no break between a period of overtime (that is, where the employee was released from duty) and the commencement of the employee's next rostered shift. In other words, where the employee was required to report for duty to work overtime for the purpose of maintaining staffing levels and the overtime abutted the commencement of work by the employee on a normal rostered shift without the employee having been released from duty, the overtime worked was to be regarded as merely "an early start" and did not attract the minimum payment provided by cl 9.6.1. 49 The respondent, on the other hand, contended that it mattered not that the overtime worked pursuant to cl 9.6.1 abutted a normal rostered shift; that the words of the provision were plain and unambiguous and the employee was entitled to the minimum payment prescribed by the provision. 50 Clause 9.6.1 appears under the sub-heading "Recall To Maintain Staffing Levels". Whilst the provision does not use the word "recall", the provision that follows, cl 9.7, states in the preamble, "Where an employee recalled pursuant to either subclauses 9.5.2 or 9.6.1…" It may be concluded that cl 9.6.1 is concerned with a recall to duty. That conclusion is consistent with the context of the provision and how it is constructed. It refers to an "off duty" employee who is required to "report for duty" for the purpose of maintaining staffing levels. That is, to act, for instance, as a replacement for another employee who has not reported for duty in circumstances where there is a requirement for a fire station to have a minimum number of staff. Logically, an employee would not be "required to report for duty for the purpose of maintaining required staffing levels" under cl 9.6.1 at a time when he had already been rostered to work a normal shift, so the provision must be taken to be addressing a situation where the employee reports for duty at a time when the employee is off duty, hence the overtime payment. 51 The ordinary meaning of "recall" is to "call back" or to "summon to return". Thus, if the employee is off duty and is then summoned to return to duty, the employee has been recalled. Importantly, where there is a need to recall an off duty employee or summon them to return to work to perform overtime work, it embodies the notion of an unstructured, unforeseen or unplanned event that is required to be dealt with at short notice. Employers are usually required to pay a premium on such recalls for the sudden interruption caused to the employee's rest or leisure time and the premium also acts as a deterrent against employers requiring employees to work unnecessary or excessive overtime: see Re Metalliferous Miners, etc, General (State) No 2 Conciliation Committee [1940] AR 249 at 255; Re Local Government Electricity Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [1975] AR 697 at 699. 52 We consider that the circumstances to which cl 9.6.1 is directed are quite different to one where an employee may have had prior notice of planned or rostered overtime in order to maintain staffing levels, because it is known in advance that there will be a requirement to replace absent employees. We do not consider cl 9.6.1 has any application to this latter situation, because it could not be regarded, in the ordinary sense, as a recall, but rather scheduled overtime of which the employee has had notice. 53 We consider that the purpose of cl 9.6.1 is to compensate an off duty employee in circumstances where the employee is recalled to duty at relatively short notice to work unplanned or unforeseen overtime in order to maintain required staffing levels. Upon so reporting for duty, the employee is entitled to be paid at overtime rates for a minimum period of four hours.

54 In Saraswati v R (1991) 100 ALR 193 at 207 McHugh J repeated the substance of what he said in Kingston and Another v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 that, "In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the 'ordinary meaning' to be applied". This is one of those cases. The words are not ambiguous. We do not consider there is any need to place a strained construction on the words used in order to give effect to the purpose of cl 9.6.1, nor do we consider it is necessary to imply or 'read in' words to produce an interpretation that is consistent with the purpose of the provision. 55 The elements of cl 9.6.1 that need to be satisfied in order to attract the payment prescribed by the provision are that: (i) the employee is off duty; (ii) the employee is required to report for duty; (iii) the purpose of the employee being required to report for duty is to maintain required staffing levels; and (iv) the employee reports for duty. 56 The appellant contended, however, that Grayson DP failed to have regard to the history of the provision, including the reason why it was inserted into the Award in 1978 and how the provision had been applied for the last 30 years. Further, that his Honour failed to have regard to other decisions of the Commission that supported the appellant's interpretation. The appellant relied on Sydney Tower Restaurants and Fox v GIO for the proposition that Grayson DP failed to have regard to the wider context in construing cl 9.6.1.

57 The appellant's reliance on Sydney Tower Restaurants and Fox v GIO is misplaced. Those decisions do acknowledge that the history of an award may be taken into account in construing its terms and that the context of an award provision (which may include extrinsic material such as the history of the provision) is to be considered in the first instance and not later when ambiguity might be thought to arise. However, even though the history of the provision may suggest a certain construction and the award maker's stated intention may be known, this will not necessarily prevail over the words used in the award provision. As we earlier observed, whilst the use of extrinsic material is permissible in interpreting a statutory provision, it cannot be used to construe the provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. 58 Two stark examples of how the courts have given primacy to the words of the statute even over clear statements about Parliament's intention are Harrison v Melhem, to which we previously referred, and Re Bolton; Ex parte Beane, where it was stated by Mason CJ, Wilson J and Dawson J at 518: The words of a Minister must not be substituted for the text of the law. ... It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law. 59 In construing awards we may have regard to a lack of "attention to form and draughtsmanship which one expects to find in an Act of Parliament", as Street J in Bond v McKenzie suggested. However, accommodating infelicity of language does not, in our opinion, extend to providing a special charter to construe the award so that it complies with the award maker's intention, if that means implying words into the provision that give it a completely different meaning to the ordinary meaning to be gleaned from the words of the provision.

60 The effect of what the appellant contended was that we should read into the award provision a limitation in its application so that the entitlement to the minimum payment only arises if the employee is recalled to duty and then released from duty at the conclusion of the recall. We do not consider such a construction is reasonably open. Provided the first three elements of the provision are satisfied, the trigger for the entitlement to the minimum overtime payment is the employee reporting for duty. To construe the provision as meaning that the employee is only entitled to the payment if the employee is released from duty, would be to add an element or condition to the provision that it is not capable of bearing. 61 All words in the provision must, prima facie, be given some meaning and effect. It would put to naught the effect of the words "on so reporting" if we were to read into the provision a requirement that the employee had to be released from duty at the conclusion of the recall before an entitlement accrued to the minimum overtime payment. Indeed, we consider that to construe the clause so as to require a return to home in order to attract the operation of the provision would be to place a meaning upon the words "on so reporting" which they could not reasonably bear.

62 As for the decision of Richards J in General Construction, which was followed by Glynn J in Public Hospital Nurses, we say firstly, with respect, for the reasons we have already expressed we have some reservations about the approaches adopted of reading words into the respective award provisions. We consider the approach in the South Australian decisions in the St John's Ambulance Officers cases is to be preferred (although we would note that those decisions seem to have approached the interpretation of the provisions there under consideration as if there was an ambiguity in the provisions). 63 Secondly, however, the provisions that were the subject of the proceedings in General Construction and Public Hospital Nurses were quite different to that we are concerned with in the present appeal proceedings. In General Construction the relevant provision was in the following terms: When an employee is recalled to work after leaving his job he shall be paid for a minimum of three hours work at overtime rates. 64 As it has been explained, the effect of the decision of Richards J was that for it to become a recall the employee had to return home, or at least be released from duty by the employer at the completion of the work. That meant, as McCusker J observed in St John Ambulance Officers Award that, "despite the employer recalling the employee, it was not until the employee finished the work and was released or returned home before normal starting time, that the recalling became a 'recall'". 65 The relevant provision in Public Hospital Nurses was: An employee recalled to work overtime after leaving the employer's premises shall be paid for a minimum of four hours work at the appropriate rate for each time so recalled. If the work required is completed in less than four hours, the employee shall be released from duty. Provided that this subclause does not apply to a Director of Nursing, Deputy Director of Nursing, nursing staff that reside at the hospital and nursing staff on close call who remain at the hospital.

66 Neither of the provisions considered by Richards J and Glynn J contained such an unequivocal executory provision as that prescribed by cl 9.6.1, namely, that the employee "shall, on reporting for duty" be entitled to the minimum payment prescribed.

67 The appellant referred to what it described as an absurdity if the provision was construed according to the respondent's approach. The absurdity being that the minimum payment applicable to an employee who is recalled to attend an incident is three hours' pay (two hours at overtime rates - see cl 9.5.1 of the Award), whereas the minimum payment for an employee under cl 9.6.1 is seven hours' pay (four hours at overtime rates). 68 We fail to see how this gives rise to an absurdity. Even if we were to agree with the appellant's contentions regarding the limits on cl 9.6.1, if an employee was recalled to maintain staffing levels in circumstances where the overtime worked did not abut the commencement of a rostered shift, the employee would still be entitled to seven hours' pay. Clauses 9.5.1 and 9.6.1 are simply two different provisions and whilst they might produce an inequity, do not indicate that cl 9.6.1 constitutes an absurdity. As Mr Nolan submitted: It is not necessarily absurd, it has an element of arbitrariness because, if you forget about the problem of something abutting the shift for a moment, say you are called in at 4 o'clock in the morning to maintain required staffing levels, you are there for an hour between 4 and 5 and the person who was thought to be absent turns up, you are told to go home, you get four hours at overtime rates. It has to be the way the clause would be read. Whereas if you are called out to fight a fire and you are there for three hours, you get three hours at overtime rates, you are short changed compared to the person who came into the fire station and put their feet up for an hour until the person who they thought was going to be away turns up and walks away with four hours pay in his pocket. There is no rhyme or reason between those two scenarios because necessarily there is an element of arbitrariness in it. 69 We find that Grayson DP did not err in his decision that the proper interpretation of cl. 9.6.1 of the Award was that for which the respondent contended. We have, therefore, decided to dismiss the appeals. ORDERS

70 Pursuant to s 188 and s 192 of the Industrial Relations Act 1996, the Full Bench of the Commission orders that: 1. Leave to appeal in Matter Nos IRC 1056 of 2007 and IRC 246 of 2008 is granted. 2. The appeals are dismissed. __________________________________

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.