Australian Workers' Union, New South Wales Branch and Zoological Parks Board of New South Wales [2003] NSWIRComm 49

HEARING DATES: 12/16/2002; 12/19/2002 DATE OF JUDGMENT: 03/13/2003

NOTIFIER Mr R Tripodi Australian Workers' Union, New South Wales Branch LEGAL REPRESENTATIVES: RESPONDENT Mr M Christie of counsel SOLICITORS Minter Ellison

JUDGMENT: - 35 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Matter No IRC02/5530 NOTIFICATION UNDER SECTION 130 BY THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES BRANCH OF A DISPUTE WITH ZOOLOGICAL PARKS BOARD OF NEW SOUTH WALES RE NON PAYMENT OF FOULED EQUIPMENT ALLOWANCE DECISION [2003] NSWIRComm 49

1 On 30 September 2002 the Australian Workers' Union, New South Wales Branch ("the AWU"), on behalf of a number of Unions, lodged a notification of dispute, pursuant to s130 of the Industrial Relations Act 1996 ("the Act"), with the Zoological Parks Board of New South Wales ("the respondent").

2 The dispute was expressed in short form as: Failure by employer to pay Fouled Equipment Allowance ("FE Allowance") as specified in the Enterprise Agreement.

3 The dispute proceedings were reallocated to me from Glynn J on 2 October 2002.

4 It is apparent that the dispute notification had its genesis in the recent round of enterprise agreement negotiations between the respondent and a number of unions with members employed at Taronga Park Zoo. A breakdown in these negotiations and industrial action in the form of work bans was the subject of an earlier dispute notification lodged by the respondent. That matter - IRC5489 of 2002 - came before her Honour Glynn J on 27 September 2002.

5 After compulsory conference proceedings on that day, her Honour issued the following recommendation: In a very frank conference that has proceeded over the last two hours, I have been informed by the parties of the problems each perceives in relation to the negotiations for a new agreement. The unions will prepare their proposed agreement and forward it to the Zoological Parks Board by Wednesday, close of business. The unions will forward by midday on Wednesday the points of their concern in relation to the agreement to the Board. There will be a meeting at 8 am on Thursday, attended by representatives for the unions and the Board and of those persons each of the parties believe will be of assistance in those discussions. In relation to the faeces allowance, the immediate way forward for that is for either a s130 dispute notification to be lodged or an application for an interpretation. That thus removes that issue from the proposed negotiations but it will become a matter for determination by the Commission. In the event that the Commission decides in favour of the interpretation sought by the unions, the question of any back pay is a matter which will be decided by the Commission. I am advised that the employees are rostered to start at 7 am on Monday. I strongly recommend that at that time the unions meet with their members and convey the recommendations of the Commission that the bans in relation to the faeces be lifted, and no further industrial action take place while the negotiations continue in relation to the new agreement. There is leave to the parties to seek to have the matter relisted in the event that becomes necessary. Matter adjourned for report back to Wednesday 9 October 2002 at 9.30 am. Matter IRC5489 of 2002 was subsequently reallocated to me and, at the date of this decision, the dispute remains unresolved.

6 The new agreement referred to by her Honour concerns an enterprise agreement between the respondent and the Australian Workers' Union, New South Wales Branch; New South Wales Plumbers and Gasfitters Employees' Union; the Construction, Forestry, Mining and Energy Union (New South Wales Branch); Electrical Trades Union of Australia, New South Wales Branch and Transport Workers' Union of Australia, New South Wales Branch ("the Unions"). The new agreement is to replace Works and Trades Employees, Taronga Zoo - Zoological Parks Board of NSW 2000 Enterprise Agreement, EA1/201.

7 This decision concerns an interpretation, pursuant to s175 of the Act, of cl 11.11 Fouled Equipment Allowance in the 2000 Agreement. The provision is expressed as follows: 11.11 An employee required to work on any pipeline or equipment containing body fluids or body wastes and encounters same, shall be paid an additional daily or part thereof allowance as set out in Item 9 of Table 3. This allowance shall not apply in circumstances where sub-clause 12.10 would normally apply. Hereinafter I shall refer to the clause as the "disputed clause" and the Fouled Equipment Allowance as the "FE Allowance".

8 The allowance is currently $4.66 a day for any time an employee is required to work on any pipeline or equipment containing body fluids or waste and encounters same.

9 The respective positions of the parties may be summarised as follows:

10 The respondent maintains that the correct interpretation of the disputed clause is that it applies only when an employee works on pipeline or equipment which contains human body fluids or waste. On the other hand, the unions contend that the clause applies to circumstances when an employee comes into contact with any body fluids or waste, be it human or animal. The Unions argued that the allowance has been paid to employees for a number of years based on their interpretation of the clause.

11 In performing my statutory duty to seek a resolution of the dispute through conciliation, the Commission chaired private talks with the parties on 10 October 2002. However, no agreement could be reached. In accordance with s135 of the Act, the Commission issued a certificate of unsuccessful conciliation, and listed the matter for arbitration. Directions were issued in preparation for the arbitration.

12 Evidence from the unions was provided in written and oral testimony from the following works and maintenance employees: Mr Terry McQuillan Leading hand - transport driver (seven years service) Mr Jeffrey Payne Leading hand labourer and delegate for the AWU (ten years service) Mr Ernie Tanner Plumber (ten years service) An AWU organiser, Mr Adam Stone also gave evidence.

13 The respondent's evidence was from: Mr Evan Yanitsas Operations Manager, Assets Division Ms Heather Turner Human Resource Consultant HR Synergy Pty Ltd Mr Garry Morgan (past) Manager, Technical Services

Mr John West Operations Manager, Life Sciences Division

14 Mr McQuillan's duties include the removal and transportation of animal faeces and waste. It was his understanding that when employees come into contact with animal waste and fluids they are entitled to claim the FE Allowance. Mr McQuillan said that the allowance was claimed by writing "FE" on the employee bundy cards.

15 Mr McQuillan said he had been paid the allowance on a daily basis for the last four years until it was stopped by Zoo management in July 2002. He said that Mr Yanitsas (Operations Manager) informed him in August or September 2002, that the allowance would only be paid in relation to human waste.

16 In cross examination, Mr McQuillan said he was originally told by his union delegate, Keith Johnson, that he was entitled to claim the allowance and he checked it with his supervisor, Robert Campbell. Mr McQuillan said he made claims in 1997, 1998 and 1999. He denied that he only started making claims after being told to do so by Mr Stone in 1999.

17 Mr McQuillan's evidence was that he was paid the allowance because he handles animal manure in SULO bins, which are tipped into a truck. He said manure would sometimes splash over employees when it was loaded. Shovels are sometimes used when there are spillages. The truck and other equipment must be cleaned.

18 Mr McQuillan agreed that it was the zoo keepers who clean the enclosures and shovel the waste into the SULO bins. The truck driver wheels the bin close to the truck and it is tipped in by the use of two levers. He said the majority of the time the contents go into the truck, but there can be spillages. When it does spill, the driver uses a shovel to clear the roadway.

19 Mr McQuillan gave other examples of coming into contact with animal manure and waste. A bobcat is used to push the animal waste into a pile for loading onto a truck. In this process, Mr McQuillan said pockets of methane in the pile are disturbed and "it goes all over the operator and the equipment".

20 Another example is where animals are transported in cages or boxes on trucks. Occasionally, the animals defecate or urinate and this spills out of the cage onto the equipment. The equipment is cleaned by a high pressure hose.

21 Mr McQuillan gave evidence of using a bobcat to clean out the giraffe house. The bobcat scoops the waste sawdust into a 4 tonne tipper. The waste comes into contact with the bobcat. The equipment is later cleaned by the operator.

22 In cross examination, Mr McQuillan was asked about occasions he had worked with a plumber on a sewer pipe containing human waste. He said the FE Allowance was also claimed for this work.

23 Mr McQuillan rejected the respondent's evidence that the collection of animal manure was previously paid as a dirt allowance. He said the FE Allowance was not "rolled up" into a $10 wage increase in 1994.

24 Further in cross examination, Mr McQuillan was asked about the enterprise agreement negotiations in 1999 and a claim by the unions at the time for an allowance for bobcat operation. He agreed he was aware of the claim, and said it must have been made because there was no existing allowance for bobcat operations.

25 Mr Payne's evidence was that, as part of his duties, he comes into daily contact with animal faeces and waste. He described the work of cleaning drains and animal enclosures and working with the drivers picking up waste and manure. Mr Payne said that if it is windy, contaminated sawdust blows around and there are sometimes spillages of animal waste on the road.

26 Mr Payne rejected Mr Morgan's evidence in which he said that he had never seen works and trades employees come into contact with animal manure, nor had Mr Morgan seen spillages of waste from the trucks.

27 In cross examination, Mr Payne agreed that the zoo keepers shovel the manure into a SULO bin which is left outside the enclosure, to be collected by the truck driver using an automatic tipping mechanism. He accepted the process was similar to household recycling or garbage collection.

28 Mr Payne said the giraffe house is cleaned about once a month. Shovels are used to move contaminated sawdust so it can be picked up by the bobcat. The shovels and equipment are cleaned by the operators.

29 Mr Payne gave evidence of other duties involving cleaning the Zoo's beaches. This can involve collecting condoms, syringes and soiled nappies. He agreed these items could not be regarded as pieces of equipment (for the purposes of the wording in the disputed clause).

30 Mr Payne said that the labourers assist in unblocking storm water drains. He gave evidence that the moat in the gorilla enclosure is cleaned by removing excreta from the pond after it is drained. Hoses, shovels, rakes and brooms are used.

31 Mr Payne said that when cleaning gutterings, there are often dead rats and bird droppings to be removed. He believed he was entitled to claim the allowance for this work.

32 Mr Payne understood that he was entitled to claim the FE Allowance for coming into contact with animal waste. For eighteen months prior to July 2002, all employees claimed the allowance when they came in contact with animal waste. Mr Payne could not remember when he first started to claim the allowance, but said it was long before AWU Organiser, Adam Stone was involved at the Zoo.

33 Mr Payne said the Zoo stopped paying the allowance in July 2002 at the same time negotiations over the new enterprise agreement broke down. He claimed that no one in management informed the employees the allowance would no longer be paid.

34 Mr Payne was involved in the 1999 enterprise bargaining negotiations. He said Mr Stone had been involved in these negotiations. Mr Payne believed the 1999 AWU log of claims was irrelevant to this dispute.

35 Mr Payne believed the $10 wage increase in 1994 was a "trade off" for height money, dirt money, wet money and confined space allowance only. It did not absorb the FE Allowance.

36 Mr Stone was the AWU organiser responsible for organising and servicing AWU members at the Zoo. He was formerly an official of the Plumbers and Gas Fitters Employees' Union.

37 In his statement, Mr Stone referred to a dispute some years ago over the FE Allowance with the Department of Public Works and Services ("DPWS"). He denied informing Zoo management in 2002 that this dispute was the basis for informing his members at the Zoo to claim the FE Allowance. He further denied telling Zoo management that the DPWS dispute was determined by the Commission.

38 In cross examination, Mr Stone said he had no doubt employees were entitled to the allowance. He rejected the suggestion that his members looked to him for guidance in claiming the allowance. However, Mr Stone accepted that he had encouraged employees to claim "their rightful allowances under the enterprise agreement".

39 Mr Stone believed that the FE Allowance was payable for cleaning animal faeces. It was Mr Stone's belief that employees were entitled to the allowance when mucking out a pen, lifting manure bins, using bobcats or cleaning equipment. He believed that some employees would come in contact with animal waste every day and others, such as carpenters, would do so from time to time. He said he had been told that when spillages occurred, employees are "covered in animal faeces".

40 Mr Stone denied that claims for the allowance "skyrocketed" after 1999. He believed claims had been made since 1993. After being shown annexures to Mr Yanitsas' statement, Mr Stone agreed that the allowance started to be claimed in a major way from 1999. However, he pointed out that these documents were unreliable as they related to all allowances paid, not only the FE Allowance.

41 Mr Stone commented on a meeting with Zoo management on 20 August 2002. He said Ms Noack, General Manager Human Resources, had said that there appeared to be a sudden increase in claims for the allowance. Mr Stone had taken credit for this increase in claims.

42 Mr Stone acknowledged that certain allowances including dirt money were rolled up into a $10 wage increase in 1994.

43 Mr Tanner was particularly critical of the evidence of Mr Yanitsas and Mr Morgan. He claimed neither of them had a proper understanding of the work and duties performed by employees at the Zoo.

44 Mr Tanner gave evidence that all the major African animals defecate in water (Mr Yanitsas disagreed). He said this may cause a blockage requiring a plumber and/or a labourer to clear the effluent from storm water drains. Mr Tanner drew a distinction between animal chokage and sewer chokage; the latter obviously being less common at the Zoo.

45 Mr Tanner had observed labourers/drivers collecting animal waste in the morning before the Zoo is opened to the public. Mr Tanner said that works and trades employees work together and use machinery and equipment to clear animal waste and effluent. Sometimes a bobcat driver works alongside a tradesman to work on a sewer or stormwater line which contains animal effluent. Invariably, the equipment needs to be cleaned.

46 Mr Tanner's evidence was that employees had been claiming the allowance for many years - as far back as 1991 and, on the respondent's evidence, at least from 1993. He believed the increase in claims in recent years arose as employees became more aware of their (industrial) rights.

47 Notwithstanding that Mr Yanitsas commenced employment at the Zoo on 3 April 2002, he rejected any suggestion that he was unaware of the duties performed by the Zoo's works and trades employees.

48 Mr Yanitsas' interpretation of the disputed clause was that it only applies when an employee works on a pipeline or equipment containing human body fluids or human body wastes which the employee comes into contact with. He believed this would usually occur when an employee assists a plumber on a sewer chokage. Mr Yanitsas had come to this view from his understanding of industry practice. He accepted that the disputed clause did not specify the word "human".

49 Mr Yanitsas commented on the work of driver/labourers and driver/operators. He said that the bulk of their duties did not involve contact with animal manure. It was the zoo keepers who cleaned out the animal enclosures. The closest works and trades employees would come to animal waste would be when carrying out duties on the animal waste truck. He believed that even then, the contact would be incidental, because the truck operation was mechanical. 50 Mr Yanitsas did not believe that works and trades employees could ever be said to "work on any pipeline or equipment containing body fluids or body wastes" even if the body waste was from an animal.

51 In cross examination, Mr Yanitsas acknowledged that the FE Allowance had been paid to employees for work involving animal manure. However, he had made inquiries about the circumstances in which the FE Allowance had been claimed in recent times. He submitted that: a) in the mid 1990's a number of special rates were "rolled up" into a $10 wage increase. He agreed these did not include the FE Allowance or chokage allowance;

b) it was only in the last few years that works and trades employees had started to regularly claim the allowance. More recently, some of the employees had claimed the allowance each day they attended for work; c) the respondent's payroll records and a set of graphs demonstrated that there had been a dramatic increase in claims for the FE Allowance in recent years. In cross examination, Mr Yanitsas did not know why the payroll records were missing for the years 1997 and 1998. He confirmed the records did not disaggregate the FE Allowance from other allowances that had been paid over the period.

d) until recently, employees would claim the allowance by writing "FE" on their bundy card. The cards were then sent to payroll by the supervisor. Mr Yanitsas had introduced a new system which required a form to be filled out as to the reason for claiming the allowance. In oral evidence, he confirmed that no employee had been paid the allowance since the new form had been introduced.

52 Mr Yanitsas was shown copies of employee bundy cards. He could not say whether managers had rubbed out the notation "FE" on the bundy cards or whether the bundy had been signed by someone other than the employee. 53 In late August or early September 2002, Mr Yanitsas had directed the leading hands that the allowance would only be paid in relation to human waste and not animal manure. The claim form (referred to above) had to be completed by the employee.

54 Mr Yanitsas referred to the recent round of enterprise bargaining negotiations. He said the issue of the FE Allowance arose at a meeting on 20 August 2002, when Ms Noack had said that some employees were claiming an allowance to which they were not entitled. At the meeting Mr Stone had pressed their right to the allowance. It was agreed the matter would be referred to the Commission. Mr Yanitsas denied that the enterprise bargaining negotiations broke down over this issue.

55 In respect to Mr Payne's evidence, Mr Yanitsas responded as follows: a) Mr Payne rarely claimed the FE Allowance between 1995 and 2000.

b) Cleaning work on the Zoo's two beaches is carried out once a day by one or two employees. Mr Yanitsas agreed syringes and condoms may contain human body fluids.

c) Removing silt from drains would involve minimal contact with animal manure.

d) Works and trades employees would rarely encounter animal manure in enclosures as it is the duty of the zoo keepers to clean enclosures (see also contrary evidence of Mr Tanner and Mr McQuillan).

e) Cleaning roof gutters occurs about once a month and involves cleaning out leaves, not animal manure.

f) Storm water drains do not contain human waste or fluids. In any event, any animal waste would be broken down and become indistinguishable from silt.

g) Cleaning moats would occur four to six times a year and any animal manure would also be broken down and become indistinguishable from silt (see also Mr Tanner's contrary evidence).

56 In respect to Mr Tanner's evidence, Mr Yanitsas said the chokage allowance was not paid to plumbers working on storm water lines as the lines do not contain human waste. Accordingly, the FE Allowance would not be paid to works and trades employees assisting a plumber on storm water lines (see also Mr McQuillan's evidence).

57 Mr Yanitsas rejected Mr Tanner's claim that employees transport animal waste "numerous" times a day. It was his understanding that the animal waste collection occurs once a day in the morning.

58 Mr Yanitsas replied to Mr McQuillan's evidence by deposing that: a) the Zoo had not stopped paying the FE Allowance. Rather, it is paid when employees work on clearing a choke in a sewer line and only when the appropriate form is completed. b) the payment of the FE Allowance had not been specifically approved by him or his predecessors.

c) the breakdown in the recent enterprise agreement negotiations was not over the FE Allowance but, as Mr Stone had said, it was because of a claim for a 3 per cent wage increase and back pay.

d) Mr McQuillan exaggerated the extent of the spillages of waste from the trucks. Waste could not " splash over them " (the employees) as it is dry.

59 In cross examination, Mr Yanitsas agreed there may be occasional spillages from the trucks. Employees are required to clean the equipment, including cages which transport animals. He emphasised that the works and trades employees do not clean out the enclosures. Mr Yanitsas said he had checked the information about the giraffe house and found that, every two months, a bobcat is used to clean the giraffe house of waste sawdust shavings.

60 Ms Turner's company has provided human resource advice to the respondent since April 2002. Ms Turner provided two statements, but was not required for cross examination.

61 Ms Turner had been involved in the recent enterprise bargaining negotiations at the Zoo. During the negotiations management had reviewed samples of employee bundy cards and had concluded that some employees had been claiming the FE Allowance when it appeared they were not entitled to it.

62 Ms Turner deposed that the issue of the FE Allowance first arose at a meeting with Unions on or about 20 August 2002. At this meeting, Mr Stone had said that he had won a dispute with the DPWS over the interpretation of the FE Allowance in relation to pigeon droppings. Mr Stone claimed it was on this basis that he believed employees at the Zoo were entitled to be paid the allowance for handling animal manure. Ms Noack had said that employees had suddenly started to claim the allowance in 1999. Mr Stone had taken credit for this.

63 Ms Turner later investigated the DPWS dispute referred to by Mr Stone. She had spoken to a representative of the DPWS who informed her that approximately five years ago, Mr Stone from the Plumbers Union had raised the issue of the FE Allowance being paid for cleaning drains, downpipes, gutters and removing pigeon droppings. The DPWS had refused the claim - maintaining that the allowance was only payable for chokage work on sewer pipes. The Union threatened to take the matter to the Commission, but had not done so.

64 Mr Morgan said that during his period as Manager, Technical Services he had not been aware that works and trades employees were claiming the FE Allowance. This was because the supervisors signed off and approved all claims for allowances. The normal process was for the supervisors to send pay claims direct to payroll. No supervisor had ever raised the issue of the allowance with him and he trusted his supervisors to ensure that allowances claimed were justified.

65 It was Mr Morgan's understanding that the FE Allowance was only payable if a works and trades employee worked with a plumber on a broken sewer line or was required to clean the equipment used to fix a sewer line. In cross examination, Mr Morgan agreed that works and trades employees clean their trucks and the bobcat after contact with animal manure.

66 Mr Morgan recalled that in the enterprise bargaining negotiations in late 1999, Mr Tanner had claimed that the FE Allowance should be paid to employees who washed out trucks which had contained animal manure. The Zoo had disagreed and the issue was not raised again during the negotiations.

67 Attached to Mr Morgan's statement was the AWU 1999 log of claims. It included a claim for a separate allowance for certain job specifications such as welding, bobcat operation, forklift operation and drain cleaning. In oral evidence, he agreed that the log of claims had been an ambit claim and didn't relate to the actual outcome of the negotiations in 1999.

68 In responding to the Union's evidence, Mr Morgan deposed that: a) he had never seen employees come into contact with animal manure while cleaning roof gutters. He acknowledged that employees were on ladders when performing these duties.

b) he had never seen spillage from the animal waste trucks, let alone seen it " splash all over employees" (see Mr McQuillan's evidence). However, in cross examination Mr Morgan agreed he wasn't at work when the waste collection was carried out early in the morning.

c) works and trades employees do not clean the giraffe enclosure. If a works and trades employee entered the giraffe house, it would be to operate a bobcat. In cross examination Mr Morgan conceded that works employees would assist the keepers in cleaning the enclosure.

d) cleaning the moat in the gorillas' enclosure had only occurred twice in the two and a half years Mr Morgan was manager. He said there was no contact with animal waste as the silt was sucked out by a hose. He could not recall any works and trades employee using a shovel, rake or broom to remove silt or algae from the bottom of the moat.

e) damaged storm water pipes had occurred about six times in the two and a half years he was manager. He said that cleaning storm water drains is carried out by use of a water blaster. It would be rare, therefore, for an employee to come into contact with animal manure, even if it was distinguishable from the silt or sludge. In cross examination, Mr Morgan agreed that he had not conducted an analysis of the waste material.

69 From 1 July 2001 to December 2001 Mr West had temporarily held the position of Operations Manager of the Assets Division (now occupied by Mr Yanitsas). Mr West provided a short statement and was not required for cross examination.

70 Mr West deposed that, when he was Operations Manager, he was not aware that works and trades employees were claiming the FE Allowance. Mr West said he signed off the employee time sheets after the supervisors completed the sheets based on the information on the employee bundy cards. The sheets would then be sent directly to the payroll section.

71 Mr Tripodi, for the Unions, submitted that cl 11.11 of the enterprise agreement is aimed at providing an allowance to employees who, in the course of their duties, come into contact with body fluids or wastes, whether human or animal.

72 Mr Tripodi argued that there is nothing in the disputed clause, either in its precise terms or by reference to its history, which says it applies only to contact with human waste. Mr Yanitsas had been forced to accept this view even though the respondent had required employees to fill out a form based on its "erroneous and unlawful view".

73 The word "containing" in the clause should be given its plain English meaning. In any event, the custom and practice at the Zoo had been that the allowance was paid when employees were required to work on any pipeline or equipment that had been fouled by animal fluids or waste.

74 Mr Tripodi submitted that the uncontested and consistent evidence was that employees had been claiming the allowance well before 1999 and before Mr Stone was involved as a union organiser for the site.

75 Mr Tripodi said that it was the intention of the parties to the enterprise agreement that the FE Allowance would be payable according to custom and practice. He put that it must have been intended to operate differently to the chokage provision in the Crown Employees (Skilled Trades) Award (325 IG 749) because it was identified separately in the agreement. He emphasised that the same clause in the industry award was not at issue. Even so, Mr Tripodi said, the language in the award clause would not allow for the interpretation contended for by the respondent.

76 Mr Tripodi said that Mr Yanitsas came to his view about the disputed clause from his reading of both the award and the enterprise agreement and his understanding of practice in the industry. However, Mr Tripodi put that Mr Yanitsas lacked any basic knowledge of the employees' duties or the Zoo's operations. Mr Tripodi said that as a new manager, Mr Yanitsas had "invented" his own interpretation of the clause.

77 Further, Mr Tripodi said Mr Yanitsas was a witness of no credit and little credibility. He claimed Mr Yanitsas would not accept basic propositions generally understood by the common person. For example, Mr Yanitsas said that he had not smelled methane; that he did not know that African animals defecate in water; that effluent didn't cause blockages in storm water lines or that he did not know effluent could appear in liquid or gas form.

78 Mr Tripodi said that the annexures to Mr Yanitsas' statement being the record of allowances paid to employees was incomplete and did not provide an accurate reflection of the extent which the FE Allowance was claimed prior to 1999.

79 Mr Tripodi submitted that the FE Allowance had been stopped in the context of the stalled enterprise agreement negotiations. He said it wasn't until August 2002 that anyone in management had told employees the allowance would only be paid for contact with human waste.

80 Counsel for the respondent, Mr Christie, described this dispute as having both a legal and factual dimension. He submitted that this is not a case about preserving custom and practice. This case is concerned with the future, not the past.

81 As to the interpretation of the disputed clause, Mr Christie submitted that on a straight forward reading of the clause, it could not apply to the duties of works and trades employees as claimed by the Unions. This view is supported by the context in which the clause operates, its history and past practice (see Short v FW Hercus Pty Ltd (1993) 40 FCR 511 and Cepus v Industrial Court of New South Wales (1995) 60 IR 113.

82 Mr Christie traced the history of the disputed clause from its origins in the Crown Employees (Skilled Trades) Award. He put that the clause must be viewed together with the chokage provision in the Award. Such a link must mean the clause involves only human waste and fluids. The only relevant contact with such waste would be in assisting a plumber on a sewer chokage. He drew a distinction to the animal house allowance which was included separately in the Award at the time the chokage and FE Allowance were introduced.

83 Mr Christie strongly argued that, even if the clause included animal waste and fluids, it still required that employees "work on any pipeline or equipment containing body fluids or wastes". This was not the primary duties attested to by the Union witnesses. He said that working with, or using equipment, is not working on the equipment. In any event, bins, bobcats, moats and roof gutters are not pipeline or equipment.

84 Mr Christie emphasised that it was the zoo keepers who clean out the animal enclosures. Even on the Union's own evidence, most of the relevant duties of works and trades employees are performed infrequently and by few employees.

85 Mr Christie put that the type of duties, for which the Unions are claiming the allowance, are more aptly compensated for by other allowances such as the animal house allowance and dirty work allowance, which had been incorporated in the wage rate since 1994.

86 In referring to the annexures to Mr Yanitsas' statement, Mr Christie put that this demonstrated that claims for the FE Allowance were sporadic from late 1999 to early 2002 when some employees began claiming the allowance every day. It would appear that Mr Stone began advising employees to claim the allowance after the AWU unsuccessfully sought certain allowances during the 1999 enterprise agreement negotiations.

87 Mr Christie said that although the respondent had unknowingly and incorrectly paid the allowance over the last few years, this can be no basis for requiring the payment to continue (see Application by the TWU for an Ellison's Bulk Haulage Coal Allowance Award [1995] NSWIRComm 136). He conceded that several changes in management over this time had not helped the Zoo identify the incorrect payment.

88 Further, Mr Christie argued that an order requiring the respondent to continue to pay the FE Allowance had no industrial merit and was in breach of the no extra claims commitment given by the Unions in the Memorandum of Understanding (see Application by New South Wales Nurses' Association for variation Re Increased Remuneration and New Allowance IRC6802 of 2001, 21 October 2002).

89 Finally, Mr Christie strongly criticised the attack on Mr Yanitsas' credibility. He said this attack was totally without basis.

90 Before ruling on the interpretation of the disputed clause, I would make a number of observations on the evidence adduced in the proceedings.

91 It seems clear that the main area of controversy was the extent and frequency to which works and trades employees come into contact with animal waste during the course of their duties at the Zoo.

92 It is not disputed that the clean up and collection of animal waste from the enclosures is the responsibility of the zoo keepers. The waste is placed in SULO bins outside the enclosure and then collected by a truck operated by a works and trades employee. The truck picks up the bin and empties the contents by means of an automatic pick up mechanism - a process not dissimilar to ordinary household garbage collection. This occurs once a day, early in the morning.

93 It must be accepted, I think, that from time to time the waste may need to be cleaned up from the roadway after spillages or overfills. It is not entirely clear to me how often this occurs; although I am not convinced of the regularity of the spillages as attested to by the Union witnesses.

94 As to the cleaning of moats, ponds and storm water drains, I am satisfied that such work would involve works and trades employees coming into contact with animal waste or fluids, albeit in soluble or sediment form which is likely to be less noxious than raw waste. However, there was no conclusive evidence to ascertain the degree of breakdown of the animal waste in the waste water. On the other hand, it must be acknowledged that this work is not done on a regular basis - blockages of storm water drains are infrequent, while cleaning animal moats is undertaken four to six times a year.

95 The daily cleaning of the Zoo's two beaches may occasionally result in the collection of syringes and condoms. I cannot be certain of the frequency of such incidents, although I think it would be most unusual.

96 The Commission heard evidence that (employees are) "covered in animal faeces" (T.p36) and "this manure splashes all over us" (Ex"2"). I have difficulty accepting this evidence. Although I accept such evidence was well intentioned, I find it to be somewhat exaggerated.

97 Generally then, I cannot agree with the Unions' witnesses as to the extent and degree to which employees physically come into contact with animal waste.

98 At the very least, however, I am satisfied that works and trades employees are operating machinery and handling equipment which collects and removes animal waste. It seems likely that the employees would experience pungent and unpleasant odours and gases. From time to time the fouled material may spill on the employees or their clothes. Occasionally, employees would be required to clean spillages from the roadway. The employees are required to clean their equipment and machinery, which obviously is fouled by animal waste. In my opinion, these duties must mean the employees come into contact with animal waste.

99 Mr Tripodi described Mr Yanitsas as a witness of no credit and little credibility. I do not agree. Admittedly, Mr Yanitsas displayed a less than comprehensive understanding of the history and circumstances of when, and for how long, the FE Allowance had been paid. However, I did not find him to be a witness who deliberately sought to misrepresent the evidence or mislead the Commission.

100 In my opinion, Mr Yanitsas' evidence was understandable in the context of his recent employment by the respondent and the complex industrial environment he inherited. In any event, Mr Yanitsas was perfectly entitled to have an opinion of how the disputed clause was to operate. He was certainly entitled to introduce a procedure to ensure the allowance was properly claimed.

101 In my assessment, the evidence of the other respondent witnesses didn't address the crucial issue to be determined here. Much of it was directed to peripheral issues, such as what Mr Stone said at a particular meeting or blaming supervisors for permitting the FE Allowance to be claimed over the years. In addition, I do not see any relevance to what was contained in the AWU ambit log of claims in 1999.

Commission's powers to interpret industrial instruments

102 The Commission's power to interpret the provisions of an industrial instrument is found at s175 of the Act: 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).

103 The definition of an industrial instrument, which includes an enterprise agreement, is to be found at s8 of the Act: In this Act, industrial instrument means an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement.

104 The first question to be determined is what should be the approach to the construction of an enterprise agreement? Plainly, the approach to be adopted to the construction of awards is now very well settled. Before referring to the lead authorities on the approach, it seems to me to be entirely logical to apply the same approach to the construction of an enterprise agreement as that which is applied to awards.

105 In a recent Full Bench decision, the Commission reaffirmed the principles applying to the interpretation of awards. In State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159, the Full Bench said at para 20: The principles applying to the interpretation of awards were authoratitively stated in this jurisdiction in Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks Union of Australia, New South Wales Branch (2001) 106 IR 217 where the Commission emphasised the need to approach the construction of an instrument by reference to the actual words used and their plain, ordinary English meaning.

106 The decision in Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia examined in some detail the principles of award construction and I quote the relevant passage: 63 The interpretation of awards are, in our view, to be approached in accordance with the principles authoritatively stated by the Full Bench of the Commission in Court Session in Bryce . Hungerford and Schmidt JJ stated there (at 452): In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314: "The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light." 64 Their Honours approved the approach adopted by Olney J in Norwest Beef Industries Ltd v Australasian Meat Industries Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 as follows: If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd , 30 WAIG 539, at 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said: "It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties." In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless. 65 The principles stated in Bryce have been applied on a number of occasions by this Commission: see, for example, Kellogg (Aust.) Pty Limited v National Union of Workers, New South Wales Branch (1998) 89 IR 391 at 392 - 395; Re Hospital Employees Conditions of Employment (State) Award (1999) 96 IR 245 at 255 - 256 per Wright J, President and Schmidt J; ALHMWU v Manilla RSL & Ex-Servicemens' Club Limited [2000] NSWIRComm 122 at [40]-[42] per Boland J; Australian Workers' Union, New South Wales v New South Wales Technical and Further Education [2001] NSWIRComm 25 at [15] and [17 - 19] per Schmidt J. 66 We consider that Hungerford J was correct in observing, in Kellogg (at 395), that the passages cited by the majority in Bryce represented a "long-standing and settled approach" to the task of award interpretation. 67 The application of those principles, we think, should occur in conformity with general approaches to the construction of enactments and other instruments. In this respect, we note, with approval, the observations of Walton J, Vice-President, in Perisher Blue v Australian Workers' Union (1999) 91 IR 274 at 283 - 284: Speaking generally, awards should be interpreted in a similar fashion to other enactments: Geo A Bond & Co Ltd (in liq) v McKenzie [1929] 28 AR (NSW) 498 at 503 ; Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 520. In the construction of the general order, and in conformity with general principles of award interpretation, the Commission should consider the wider context of the making of those provisions. Burchett J in Short v F W Hercus describes this approach to the interpretation of an award as follows: "The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is part, or to other documents with which there is an association. Context may also include, in other cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read." (at 518) (See also Western Newspapers Pty Limited & Another v Warren (1994) 56 IR 340 at 351). I note that a similar approach was adopted by the former Industrial Commission in re Butter, Cheese and Bacon Factories and Milk and Cream Condensories &c. (State) and Butter Cheese and Bacon Factories and Milk and Cream Condensories, &c. (Newcastle and Northern) Awards (1950) 49 AR (NSW) 62 at 64 where it was held that the meaning of words within an award (which are not expressed or precise) may be ascertained by "placing upon the words their ordinary meaning as applied to the subject matter with respect to which they are used". 68 The authorities set out in Bryce considered the circumstances in which it may be appropriate to apply the award-maker's intentions to the circumstances in which the award was made and to the practical effects of a particular construction. The decision in Perisher Blue indicated the desirability of considering the terms of an award in the context in which they appeared and emerged. Those principles apply with equal force to the circumstances in which it may be appropriate to have regard to other aids of construction such as the "major and substantial" or "principal purpose" tests. 69 Those principles apply to a clause which establishes the coverage of an award in the same way as they do to other clauses in the award. It is thus appropriate to consider the scope clause of the award in the context in which it appears and, in particular, by reference to the other provisions of the award. 70 It should be noted that the application of aids to construction, such as the "major and substantial" or "principal purpose" tests, should be approached with caution. The automatic adoption of such an approach may, depending on the terms of the award, have the potential for awards to be interpreted inconsistently with their plain words and, therefore, unnecessarily restrictively. This potential may be greatest when the scope of the award's coverage clause is expressed in broad and inclusive terms.

107 See also City of Wanneroo v Holmes (1989) 30 IR 364; Hotville v NSW Nurses' Association [2002] NSWIRComm 338; National Union of Workers v Graincorp Operations (2002) 117 IR 136; New South Wales Fire Brigade Employees' Union and New South Wales Fire Brigades [2003] NSWIRComm 55 and my consideration in Australian Workers Union NSW and WJ & A Seery [2000] NSWIRComm 62.

108 If I might summarise then, the key principles to be applied when interpreting awards or enterprise agreements: 1) Interpretation of awards or agreements cannot be approached in exactly the same way as the interpretation of statutes. 2) The actual words used should be given their plain, ordinary English meaning.

3. If the words are unambiguous, it is not permissible to extend or limit their ordinary commonsense meaning.

4. A too literal interpretation of an award or agreement provision should be avoided.

5. It may be appropriate to consider the intention of the industrial parties who drafted the award or agreement.

6. The meaning of a particular clause may be ascertained in the context of the award or the agreement as a whole.

109 Having spent some time discussing the principles to be applied to award or agreement construction, I turn now to the actual words in the disputed clause.

110 Obviously, if the word "human" had been used as an adjective to body fluids or waste, there would be absolutely no ambiguity at all. However, the absence of the word "human" is what has created the present argument. It seems to me that the relevant question to ask is - is it permissible to construe the meaning of the words by importing a completely new and limiting word to the expression? I think not, both as a matter of logic and construction.

111 Further, one can ascertain the meaning of the words in the context of the industrial environment in which the agreement operates.

112 It is trite to observe that a zoo is a highly specialised and unique workplace. To state the obvious, employees are working with animals which have bodies that contain body fluids and which excrete body waste.

113 It was pointed out to the Commission that the precise terms of the disputed clause are reflected in other public sector awards. It must be accepted, I think, that in the context of other public sector employment and as a general rule, the only body fluids or waste that would be encountered by employees, would be human. The expression, for all practical purposes, would therefore only apply to human fluids or waste. However, that cannot possibly be the case in the unique work environment of a zoo. I cannot think of another area of public sector employment comparable to that which exists here.

114 Consequently, I do not accept that it is relevant to rely on how the clause is interpreted and applied under other public sector awards.

115 I turn then to the issue of what was intended by the industrial parties when the enterprise agreement was negotiated in 1999. Firstly, I would observe that there was no evidence that the disputed clause was ever an issue during the 1999 negotiations.

116 Moreover, employees had been receiving the FE Allowance for some time based on the interpretation of the clause now pressed by the Unions. There was no evidence that the respondent made any approach or suggestion during the last enterprise agreement negotiations to alter this arrangement. I simply cannot accept that management was unaware of what was being claimed and under what circumstances.

117 In other words, the industrial parties concluded an enterprise agreement with the full knowledge and understanding that the FE Allowance was being paid for contact with animal waste.

118 At this juncture, I am reminded of what the Full Bench said in Broken Hill Chamber of Commerce and Industry Consent Award [2002] NSWIRComm 252: 8 Parties should, as a matter of principle, consider their situation very carefully and deliberately before conducting themselves in such a manner. It is extremely important in industrial and employment relations that parties adhere to considered agreements entered into by them.

119 I hasten to add that whether the disputed clause in its existing form or otherwise remains in the next agreement is, of course, a matter for the parties. This is not a matter upon which I am required or inclined to comment at this point.

120 Turning then to other of the arguments advanced by Mr Christie. Some emphasis was placed on the 1999 log of claims and, in particular, a claim by the AWU for "Payment of allowances associated certain job specifications such as welding, bobcat operation, forklift operation and drain cleaning" (see Annexure A to Mr Morgan's affidavit dated 10 December 2002). I do not understand the relevance to this case of the 1999 log of claims. These proceedings concern the interpretation of an enterprise agreement provision. Ambit claims for allowances for particular categories of work in 1999, which in any event never came into effect, are not at all the issue here.

121 Another argument advanced by the respondent was that the collection of animal manure was covered by a dirt allowance which was "rolled into" a $10 wage increase in 1994. If this was so, one must logically ask why the FE Allowance continued to be paid for years after? However, the evidence clearly established that the FE Allowance was not "rolled up" in the 1994 wage increase (see Mr Yanitsas' evidence particularly).

122 The next argument raised by the respondent was that even though the Zoo had incorrectly and unknowingly paid the FE Allowance for a number of years, this was insufficient grounds for the practice to continue.

123 I have difficulty accepting the notion that the FE Allowance was paid "unknowingly". This was not some minor oversight by the payroll office that went unnoticed. It involved approval from supervisors and affected many employees. On its own admission, the respondent accepted that the FE Allowance had been approved, without question, by a number of managers and supervisors over many years. The respondent is a relatively large employer with, presumably, expert industrial relations advice. I find the explanation that there had been a number of changes of management which had not helped to clarify the situation to be unconvincing.

124 The Commission raised with the parties whether the principle of "condonation" applied in these circumstances. In other words, did the employer waive its rights to challenge the payment of the FE Allowance in circumstances where it had condoned its payment for many years?

125 Of course, the principle of employer condonation is usually applied in unfair dismissal matters. However, it seems to me to have relevant and general application to the particular circumstances of this case.

126 In Burge v BHP Steel Pty Ltd (2001) 105 IR 81, the Full Bench said at p344: In any event, we are satisfied the conduct of the appellant referred to has been condoned by the respondent or that it has waived any right it may have had to dismiss him for serious and wilful misconduct. As Macken J observed Australian Transport Officers' Association v Department of Motor Transport (1988) 25 IR at 235 and 244, "the doctrine of condonation has always formed a part of the law applied by the NSW Industrial Commission".

127 The respondent asserted that works and trades employees only started to regularly claim the FE Allowance after being told to do so by union organiser, Adam Stone, in late 1999. In my judgement, this assertion did no more than "muddy the waters". It was irrelevant what Mr Stone did or did not do. Mr Stone's involvement is not the issue at all. The fact is that management accepted the claims without complaint for at least three years - probably longer. In any event, it was Mr Yanitsas' evidence that the increase in claims was more marked in 2001 and early 2002.

128 In another submission, Mr Christie referred me to Application by the TWU for an Ellison's Bulk Haulage Coal Allowance Award as authority for the proposition that generally the Commission will not intervene to require the payment of an over award allowance which has been discontinued by the employer.

129 Again with respect, that is not the principle which I am being asked to consider. The FE Allowance is not an over award payment but an allowance paid according to the provisions of an enterprise agreement. As such, Ellison is entirely distinguishable from the circumstances of this case.

130 An alternative argument put by the respondent was that even if the term "body fluids and waste" was interpreted to include animal fluids or wastes, the words "required to work on any pipeline or equipment" were relevant to the test of whether the employees' duties involved work on any pipeline or equipment. It was argued that by the use of the word "on", the clause meant employees must repair or do something to the pipeline or equipment. In other words, merely operating the equipment did not fit within the terms of the clause. I cannot agree with this proposition.

131 Firstly, as a matter of common sense, equipment would include all the tools of the trade operated or used by the employee in the course of his/her employment. This would include small trucks, bins, bobcats, loaders and other equipment cited in the evidence.

132 Secondly, in my opinion "to work on equipment" includes operating and using the equipment, not merely repairing or doing something to the equipment. Moreover, it seems entirely logical that "doing something to the equipment" must include doing something which causes the equipment to operate.

133 Accordingly, I would not read the words in such a limited fashion as suggested by Mr Christie.

134 Mr Christie further contended that the claim by the Unions was contrary to, and presumably in breach of, the 2001 Memorandum of Understanding between the respondent and Unions - the breach being in respect to the no extra claims commitment in the Preamble to the Memorandum. 135 I do not find it necessary to detail the terms of the Memorandum as I reject the respondent's contention. The Memorandum of Understanding is, in my view, irrelevant to these proceedings. This case is not about a claim for a new allowance, but rather it is about whether the existing industrial instrument is to be read in a particular way.

136 Finally, having regard for the recent history of this matter, I have some doubts as to the motivation of the respondent in pursuing this matter in the context of its recent enterprise agreement negotiations with the Unions. There is nothing remarkable about an employer seeking to reduce its costs by closely examining all of its operations. However, in the context of regularly negotiated agreements, I do not think it was very wise, and perhaps naïve, to discontinue an allowance that had been paid for years on a particular basis. The decision probably had more to do with leveraging the negotiations. However, I take this matter no further.

137 Accordingly, for the aforementioned reasons, pursuant to s175 of the Act, I would interpret the disputed clause in the enterprise agreement as being applicable to animal and human body fluids and waste.

138 However, I am concerned that claims for the FE Allowance should be made on a sensible basis and not merely by writing the initials "FE" on the employee's time sheet. To this end, I consider a claim for the allowance should be made on an appropriate claim form which expressly provides for the nature of the claim to be spelt out and for the claim to be approved by the relevant supervisor and signed off by management.

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