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].)
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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].)