Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales v Fillery Antiwear Products and Sandblasting

NOTIFIER Ms S Hocking, Broken Hill Chamber of Commerce Inc. Ms T Oliver, Broken Hill Chamber of Commerce Inc.

RESPONDENTS: LEGAL REPRESENTATIVES: Mr B Campbell, Barrier Industrial Council and Broken Hill Town Employees Union Mr E Butcher, Construction, Forestry, Mining and Energy Union - Western District and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Ms R Greenwood, Broken Hill Town Employees Union and Shop, Distributive and Allied Employees Association INTERVENER (14/02/02) Mr T Plush, Pasminco Broken Hill Mine Pty Ltd (Administrator Appointed)

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Matter No IRC02/596 Notification under section 130 of the Industrial Relations Act, 1996 by the Broken Hill Chamber of Commerce of a dispute with Barrier Industrial Council, re interpretation of the Broken Hill Commerce and Industry Consent Award DECISION [2002] NSWIRComm 89

1 This is a dispute notification pursuant to s 130 of the Industrial Relations Act, 1996 ("the Act") lodged by the Broken Hill Chamber of Commerce ("the Chamber") on 4 February 2002. The dispute concerns the interpretation of clause 19:16 in the Metals Section of the Broken Hill Commerce and Industry Consent Award ("the Award") in regard to what conditions are to apply when award employees work on mine leases.

2 The proceedings commenced on 14 February 2002 via telephone conference to Broken Hill. Ms S Hocking and Ms T Oliver appeared for the notifier. Mr B Campbell appeared for the Barrier Industrial Council and Mr E Butcher for the Australian Manufacturing Workers' Union and the Construction, Forestry, Mining and Energy Union. Mr T Plush appeared for Pasminco Broken Hill Mine Pty Ltd (Administrator Appointed).

3 After preliminary submissions, the Commission invited the parties to provide detailed written submissions on the interpretation of the disputed award clause. Submissions were subsequently received from Mr Butcher on behalf of the Barrier Industrial Council and affiliated Unions and Ms Oliver on behalf of the Chamber. No submission was received from Pasminco.

4 Further proceedings were listed in Broken Hill on 11 April 2002, in which the parties submitted that despite the filing of a new consent award, the dispute remained outstanding. The parties requested the Commission consider the submissions filed earlier and determine the matter pursuant to s 175 of the Act. The new consent award was approved on that day.

5 The parties to the Broken Hill Commerce and Industry Consent Award 2001 (approved on 11 April 2002 in Matter IRC1503/02) have requested, pursuant to s 175 of the Act, that the Commission interpret Clause 19.16 of the Metals Section of the Award. The award provision is expressed as follows: Employees working on productive mining leases and in the Mining Companies interests shall receive the mine rate or wages and all mine privileges.

6 Both parties referred to, and relied on a statement made by Bishop, C on 24 February 1999 in matter IRC 1294/98, (Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales v Fillery Antiwear Products and Sandblasting) in which the Commissioner approved an increase in rates of pay for employees under the Award when working on mining leases. I shall refer, in some detail, to the Commissioner's findings and comments later.

7 The Unions submitted that because mine workers had previously worked 36 minutes compulsory overtime prior to the introduction of the 12 hour shift system in 1996, that such overtime should continue to be paid to employees under the Award who work on mining leases. The Unions said that this was the correct interpretation of Clause 19:16.

8 The Chamber submitted that the existing clause should be deleted and replaced by the following: a) Employees working on existing Pasminco Broken Hill productive mining leases shall receive 4.5% loading on the scheduled rate of pay and shall receive the provisions of Clause 5 Shift Allowances; and Clause 18 Overtime. b) In addition Lead Bonus will be paid for the period of time spent on the existing productive mine leases. c) Should the ownership of the mine change or the mine close during the currency of this agreement, the town employers have the right to renegotiate this clause within the currency of this agreement.

9 The Chamber argued that apart from the lead bonus, "all mine privileges" had now been "engulfed"(sic) by the 12-hour shift system for mineworkers. A 4.5% loading was recommended by Bishop C in the 1998 case to comprehend a comparison of historical Pasminco rates and the move to 12 hour shifts by mine workers in 1996. Existing shift allowances and overtime rates continue to be applied according to the relevant provisions of the Award.

10 The Chamber proposed deleting the words "in the mining companies interests". It said these words were ambiguous and inconsistently applied. Claims had been made when employees were not required to actually work on the mine site.

11 The Chamber submitted that at least one company, Cavill Power Products, was paying overtime after 7 hours to its employees. It was said the company had agreed to do so as a result of "industrial pressure." The Chamber said this payment was contrary to the overtime (cl 18) and ordinary hours (cl 5) provisions of the Award. The payment related to a non-existent mine workers condition. In view of Bishop C's conclusions, the entitlement should not continue. The company would not seek reimbursement of monies overpaid should the Commission find in favour of the Chamber's interpretation.

12 The Commission's power to interpret the Award is found at s 175 of the Act: 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).

13 The interpretation of awards is not approached in exactly the same way as the interpretation of statutes. When interpreting an award provision, considerations arise such as the intentions of the parties at the time the award was made, examining the words in the context of the award as a whole and avoiding a too literal interpretation of the strict technical meaning of the words used. These considerations were discussed by Schmidt J in The Australian Workers' Union, New South Wales v New South Wales Technical and Further Education [2001] NSWIRComm 25: 15 The approach to be adopted to the construction of awards was discussed by the majority of the Full Court in Bryce v Apperley (1998) 82 IR 448, particularly at pp452 to 454. That approach requires that if the words used are capable, in their ordinary sense, of an unambiguous meaning, then it is not permissible to look further, unless it can be demonstrated that the effect was unintended. The true meaning of the award has to be ascertained from the actual words used, according to their plain, ordinary English meaning. That must be so even if the view is reached that the words used did not give effect to the intention of the award maker. On the other hand, the circumstances in which the award was made and the purposes for which it was intended are not irrelevant, but cannot justify a meaning, which the words are not fairly capable of bearing. 16……… 17……… 18……… 19 The interpretation of awards is, of course, not to be approached in exactly the same way as the interpretation of statutes. In Apperley reference was made to the approach discussed by Street J, as he then was, in GEO A Bond & Co Ltd (In Liq) v McKenzie [1929] AR (NSW) 498 at 5034: Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to same (sic) extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for 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. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award. 20 That approach, however, envisaged that the parties' general intention be gleaned from the award as a whole. It cannot provide a basis for departure from the meaning of words, which have not been used in any technical sense or in the context of the customs and working conditions of a particular industry. Again, there was no evidence from which such considerations could be said to arise in this case. 21 Thus it is that the meaning of the clause must be ascertained from the words used themselves in the context of the Award as a whole. See also Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales Branch 89 IR 391 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales v BHP Steel Long Products [2000] NSWIRComm 164.

14 There is another particularly relevant consideration applicable in this case. Whether, as a result of changed circumstances, the words in an award are able to maintain their original meaning, or intent, in a different contemporary environment.

15 I am satisfied this matter can be appropriately determined by reference to the findings and conclusions of Bishop C in Matter No. IRC 1294 of 1998. In that matter the Commissioner was asked by the Unions to interpret the same Award provision which is the subject of this dispute.

16 Notwithstanding the seemingly unequivocal wording of the clause, Bishop C refused to accept the claim of the Union. She cited the dramatic change in the mineworker's hours of work and associated conditions which rendered a like to like comparison to the award employee rate as inappropriate and "virtually impossible."

17 The Commissioner said at p.2 of the decision: I am not prepared to grant the application as sought by the Union. That application was that contractors covered by the Broken Hill Commerce and Industry Award who go onto mine sites be paid, pursuant to clause 16 of that Award. The actual mine hourly rate of pay that would be applicable to a mineworker. I do this because history has changed over the last two or three years. Up to and including 1996, mine workers were paid in the traditional way receiving a weekly rate which was then reduced to an hourly rate that then had shift allowances, overtime and other penalties added to it.

18 She then detailed the range of payments comprehended by the adoption of the 12 hour shift system by mine workers and said: It is therefore virtually impossible to now totally equate the hourly rate for a mineworker or a tradesman with the hourly rate for a contractor going on site because the rates and the basis for the rates for the mineworkers and tradesman have changed too dramatically.

19 The Commissioner ratified an agreement to increase the Award rate by 18.5% to employees covered by the Award when working on a mine lease.

20 In the supplementary decision on 24 February 1999, the Commissioner reaffirmed her earlier conclusions and said: As I said in that decision on 13 November, it is no longer possible, in any way whatsoever, to achieve exact parity between a town contractor going on a mine lease, and a mine worker, because the town contractor is still on an eight hour shift, not on a four on, four off roster, and not on an annualised salary. A town contractor still receives shift allowances and overtime, as per the Town Agreement. Therefore, it was the intention to try for the first time to strike a rate that would apply to town contractors when they went on a mine lease.

21 The Commissioner concluded: I therefore now further confirm that contractors engaged under the Town Agreement and working on a mining lease should receive the following rates of pay: As From 1.8.98 $578.91 As From 1.1 99 $596.28 As from 1.7.99 $620.13 As from 1.7.2000 $644.94 Quite clearly in addition to the rates that I have outlined above the provisions of the overtime and shift allowances clauses still apply in the town agreement. Overtime and shift penalties are payable on top of those rates. Those rates reflect work that is done on a seven or a seven point six hour shift basis and not a 12-hour shift basis. It has also been clarified during proceedings today that the lead bonus which continues to be paid to mine workers will also continue to be paid to contractors going on site.

22 In my view, the correct analysis of the contemporary position is no different to that which was resolved by Bishop C in 1998 and 1999. I respectfully concur with the Commissioner's soundly based conclusions. I see no reason to revisit or overturn the Commissioner's reasons or findings. Indeed, as I am being asked to interpret the same provision, I intend to apply the same principles to this matter.

23 I reaffirm that the mineworkers' conditions of employment and the basis for such conditions have changed too dramatically such as to make it impossible for a comparable assessment to the rates and conditions under the Award.

24 The Award clause should be interpreted and operate in the following manner: A 4.5% loading is applicable to the Award rates of pay. The rates of pay in the Award comprehend all "mine privileges"; save for the lead bonus, which will continue to be paid. It follows that employees under the Award shall receive shift penalties, and overtime rates according to the Hours of Work, Overtime and Shift provisions of the Award, not according to past practice or the former mineworkers' agreement.

25 As my interpretation of the clause should make it abundantly clear as to what is to apply in the future, I do not consider it appropriate to vary the clause in the manner sought by the Broken Hill Chamber of Commerce. I am reluctant to do so for two reasons. Firstly, a new Consent Award was made recently by the Commission in Matter IRC 1503 of 2002, on 11 April 2002. Secondly, a first enterprise agreement binding the prospective buyer of the Broken Hill Mine, Peryilya Pty Ltd, and the Unions was ratified by the Commission on 19 April 2002. The parties to this dispute may well wish to review their present arrangements in light of the terms and conditions in the Perilya Broken Hill Mine Enterprise Agreement 2002.

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