(Emphasis added)
56 Mr Nichols submitted that this expression did not distinguish a day or part thereof requiring an annual leave credit of an equivalent period of ordinary time that would have been worked, but for the public holiday.
57 Mr Nichols submitted that employees covered by the Federal Metal Industry Award provision would receive credit for the half day New Year's Eve holiday and so should employees of BHP subject to this application.
58 Mr Nichols relied upon a general advice to members by the Australian Industry Group (AIG) (exhibit 8), the principle employer respondent to the Federal Metal Industry Award, to support his contention of entitlement pursuant to the Federal Metal Industry Award. The advice from AIG states:
The following principles should apply to the application of the half day holiday (subject to any contrary provisions in the relevant award.
…. …
Employees on annual leave on 31 December 1999 are entitled to have added to the period of leave, the time they would ordinarily have worked between noon and midnight on 31 December 1999.
59 Mr Nichols referred to a decision of the Australian Industrial Relations Commission (AIRC) in Re Chisholm Manufacturing v Australasian Meat Industry Employees' Union (Dec 1486/99 Print No S1828), a dispute concerning the Blacktown Meat Centre Enterprise Agreement 1998 in which Harrison C made a determination following private conference that:
* a permanent employee rostered off on 31 December 1999, whose ordinary working hours include time between 12:00 noon and 12:00 midnight shall receive an additional 4 hours pay; and
* a permanent employee on leave on 31 December 1999, whose ordinary working hours include time between 12:00 noon and 12:00 midnight, shall receive an additional 4 hours pay.
60 Mr Nichols submitted that the distinction made by Mr Brotherson during cross examination between those parts of the Steelworks Awards which provide for part or portion of a day and the public holiday provisions is not a relevant or appropriate distinction, given the unique nature of the half day holiday granted on 31 December 1999.
61 The essence of the case put by Mr Nichols is found in his submission at page 59 of transcript, set out below:
"We contend that the awards have both an expressed and implied intention of providing added time to annual leave for public holidays that apply generally across the state. The Annual Holidays Act of 1944 in clause 3(8) talks about the adding of a day to annual leave for people where the public holiday falls within their annual leave. We would contend that the legislators of the day could not have contemplated a general half day holiday being gazetted at the end of the millennium or, for that matter, at the time of making that legislation they could not have taken into account the effect of the Y2K bug.
Now, the company will contend that a day is a day, not a half day and will, undoubtedly, refer to the Bank Holidays Act. The history of the half day holiday gazetted under that Act, as I've said previously, your Honour, have been gazetted on a locality basis for either show days or race days and the like and they have not been previously gazetted on a state-wide basis. So, we would contend that, given the clear uniqueness of this one-off half day holiday on New Year's Eve 1999, the provisions of the added days to annual leave clause of the awards mentioned in this application should be applied in the manner sought by the orders or, if the Commission determines that the award provides for only a full day to be added, then that should be the order that the Commission makes in these proceedings."
62 Mr Maher submitted that the half day public holiday gazetted for Friday, 31 December 1999 falls within the intention of the Awards subject to these proceedings. Mr Maher submitted that the intention that employees rostered off or on annual leave during that public holiday should have it added to their annual leave is obvious on examination of clause 15 and clause 23 of the Steelworks Award.
63 Mr Maher submitted a similar examination of clauses 17 and 23 of the Tubemakers Award arrives at the same conclusion.
64 Mr Maher submitted that the lack of specific reference to a half day in these awards should be regarded as accidental rather than intentional. Mr Maher relied upon the unique and exceptional nature of the half day holiday on 31 December 1999 to support this submission. Mr Maher went to the principles of interpretation, referring first to the Clothing Trades Award (68 CAR at 597) where the award states:
The court needs to find out what the words are, what they mean in their ordinary natural significance and if they find ambiguity they should be guided by the well known rules of law which are called to aid in these circumstances.
65 Mr Maher went to Northwest Beef Industries Ltd v Australasian Meat Industry Employees' Union, Western Australia (1985 AILR para 73):
"The correct approach to the interpretation of an industrial award is to read the document itself and give to the words use of ordinary common sense English meaning."
66 Mr Maher then went to Crown Employees' Overtime Award (1968 AR 60 at 60) where it is held:
"The Commission, through Sheldon J, adopted the view that industrial realities should be applied when dealing with ambiguity in the award and determining what was intended by those who made the award. The Commission is entitled to take into account custom and usage as a guide to arriving at an interpretation of an award provision."
67 Mr Maher further relied upon Minister v Day (1919)(18 AR at 19) where it is held:
"It follows also that there is the most ample scope for the continued existence of customs in the trade or industry running alongside the award. Customs of course, which if any dispute or question arises on them, must be proved to the Court in the ordinary way."
68 Mr Maher relied upon the evidence brought to demonstrate historical application of the Awards subject to these proceedings to provide a credit to annual leave for employees rostered off or on leave on the occurrence of a public holiday.
69 Mr Maher submitted that to apply the half day public holiday by addition of the same amount of time to annual leave for those persons rostered off or on annual leave would be consistent with the intent of the award provisions.
70 Mr Brotherson relied primarily on a written outline of submissions (exhibit 19). Mr Brotherson supported these submissions with substantial case law, conveniently collected by him and tendered exhibit 21.
71 Mr Brotherson referred to a judgement of his Honour, Mr Justice Hungerford in Kelloggs Australia Pty Ltd v National Union of Workers, NSW Branch (89 IR 391). Mr Brotherson notes that his Honour concluded that the principles of interpretation of awards and industrial instruments in declaratory proceedings pursuant to s.154, or industrial disputes pursuant to s.175, are effectively the same.
72 Mr Brotherson relied then upon a comprehensive analysis of the principles of interpretations detailed by Hungerford J in Kelloggs from page 392 to 395, which he put should be followed in this matter. This analysis is of appropriate relevance and significance to this matter and is restated below:
The factual circumstances in which this matter developed were not really in dispute. The determination of the right of Kellogg to introduce changes to its product distribution function depends upon the proper conclusions to draw from those circumstances, as a matter of fact, and in the context, as a matter of law, of the true construction of the provisions of the Award in that latter respect. Mr Holmes relied on the decision of Glynn J in Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123 at 125 for the proposition that awards are to be interpreted in a practical and commonsense way by reference to the view expressed by Street J, as he then was, in Geo A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 at 503-504 as follows:
"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 the same extent as any other statutory enactment. 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. 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."
Given that the approach there stated depended upon a meaning to be given "consistent with the general intention of the parties to be gathered from the whole award", it is helpful in considering the proper approach to the construction of an industrial instrument to refer to what was said recently by a Full Bench (Hungerford and Schmidt JJ, Marks J dissenting) of the Court in Bryce v Apperley (1998) 82 IR 448 at 452 thus:
"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.'
Indeed, after referring with approval to what was said by Street J in Geo A Bond & Co Ltd (In liq ), as recited earlier, French J cautioned as follows in City of Wanneroo v Holmes (1989) 30 IR 362 at 379:
'It is of course no part of the court's task to assign a meaning in order that the award may provide what the Court thinks is appropriate - Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award ( 1985) 12 IR 122; Rogers Meat Co Pty Ltd v Howarth [1960]AR (NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J).'
The seeming dilemma and rationale for the proper approach to the construction of an industrial award was, with respect, cogently dealt with by Olney J in Norwest Beef Industries Ltd v Australian Meat Industry Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 in this way:
'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.
The approach there stated, with which we agree, is consistent with that applied to the construction of instruments generally, such as in statutory construction. For instance, in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Mason J, as he then was, and Wilson J made the following comment at 321:
'Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations. as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.'
Gibbs CJ similarly referred in that case to the object in interpreting a statute as being 'to see what is the intention expressed by the words used' (at 304) and then his Honour said (at 305):
'However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher & Sons Ltd v London Society of Compositors [1913) AC 107, at 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently fails to be applied.'
I regard the above-stated passages as representing a longstanding and settled approach to the present task confronting me and I propose to follow it. Before turning to the Award itself, however, it is necessary to first characterise the issue between the parties in light of the facts and then to apply the findings thereon to the relevant provisions of the Award.
73 Mr Brotherson submitted that on close analysis the application of these principles results in a conclusion against the interpretation sought by the unions.
74 Mr Brotherson placed emphasis on the requirement to look at the actual words used in their plain ordinary meaning, submitting that the principles of interpretation do not allow that the words used be given a meaning they are not capable of bearing; nor is it open for the Commission to determine what is appropriate, particularly where there is a plain and unambiguous meaning.
75 Mr Brotherson submitted that the relevant provisions of the awards speak only in terms of a day, which cannot be extended to include part of a day. Mr Brotherson submitted that, for the purposes of the awards, a day is properly interpreted to be a full shift.
76 Mr Brotherson relied upon clause 23(v) of the Tubemakers Award, where a shift worker working a 12 hour shift is afforded 12 hours pay for each additional day of annual leave, to emphasis this argument.
77 Mr Brotherson relied then on paragraphs 10 to 18 of the outline of submissions (exhibit 19), in which he argues that the awards provide for the addition of a day to annual leave for employees rostered off on annual leave or long service leave on the occasion of a public holiday. Mr Brotherson's submissions at paragraphs 17 and 18 are restated below: