Bryce & Anor v Apperley

Bryce & Anor v Apperley (1998) 82 IR 448 Codelfa Construction Proprietary Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 CASES CITED: Eraring Energy and Construction, Forestry, Mining and Energy Union (NSW) NSWIRComm 13 Zoological Parks Board of New South Wales v Australian Workers Union (2004) 135 IR 56

APPLICANT Ms E Brus of counsel Ms J Duncan New South Wales Fire Brigades LEGAL REPRESENTATIVES:

RESPONDENT Ms G Lowe NSW Fire Brigade Employees Union

• 19 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

New South Wales Fire Brigades and New South Wales Fire Brigade Employees Union

Notification under s 130 by the New South Wales Fire Brigades of a dispute with New South Wales Fire Brigade Employees Union re industrial bans and application for interpretation of Award

1 On 29 November 2004 the New South Wales Fire Brigades on behalf of the Public Employment Office and the Premier's Department notified, pursuant to s 130 of the Industrial Relations Act 1996 ("the Act"), the existence of a dispute with the New South Wales Fire Brigade Employees Union ("FBEU") concerning industrial bans imposed on 26 November 2004. 2 A compulsory conference was held during which the FBEU agreed to the lifting of industrial bans. An unresolved issue concerned the proper interpretation of cl 10.1.1 Meals and Refreshments of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2004 ("the Award"). This Award has since been rescinded and replaced by the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005. However, for the purposes of these proceedings it was agreed between the parties that the Meals and Refreshments Clause contained in the 2005 Award was in identical terms to cl 10 of the 2004 Award. 3 A certificate of attempted conciliation was issued after which, pursuant to s 175 of the Act, the New South Wales Fire Brigades ("the applicant") sought an interpretation of cl 10.1.1 of the Award. 4 Section 175 of the Act is in the following terms: 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). 5 The central issue between the parties is the interpretation of the words "or any similar situation" that are found in cl 10.1.1. The relevant provisions of cl 10, Meals and Refreshments are: 10. Meals and Refreshments 10 Attendance at an Incident

10.1.1 For the purposes of this clause, an "incident" also includes hazard reduction or any similar situation where facilities comparable to those provided at fire stations are not available to partake of a meal.

10.1.2 Where an employee attends an incident which extends for two hours or more; 10.1.2.1 In the GSA, Newcastle, Broken Hill, Gosford, Wyong and Wollongong Fire Districts, refreshments shall be provided; 10.1.2.2 In all other Fire Districts, refreshments shall be provided as soon as possible after two hours but no later than three hours. ... 6 Clause 4 - Definitions of the Award defines "incident" as follows: "Incident" means a fire call or any other emergency incident attended by the New South Wales Fire Brigades. 7 Shortly put, it was submitted on behalf of the applicant, contrary to the contentions on behalf of the FBEU, that the payment of a refreshment allowance is determined by attendance at an "incident" which is defined as a fire call or other emergency and in respect of cl 10.1.1 includes hazard reduction or a similar situation. Hazard reduction is a physical fire fighting activity. 8 The applicant submitted that there had been an unfortunate omission of a comma after the word "situation" which would endorse the practice that had applied for many years in respect of the payment of a refreshment allowance. 9 Conversely, the FBEU submitted that the clause was not limited to the event of a fire or emergency, contending that the provision of meals and refreshments or subsequent payment of an allowance occurs in situations where members are away from their Station for periods of more than two hours.

Relevant Principles of Award Interpretation 10 There is a considerable body of jurisprudence developed by this Commission concerning the relevant principles of construction to be applied when interpreting Awards. 11 In Bryce & Anor v Apperley (1998) 82 IR 448 at 452, the Commission stated: 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". 12 These principles were reaffirmed by the Full Bench in Zoological Parks Board of New South Wales v Australian Workers Union (2004) 135 IR 56, where at [43] the Commission held: The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks Union of Australia (NSW Branch) (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used. 13 The Full Bench then went on to consider the ability of the Commission to consider the history of the relevant instrument in conjunction with an analysis of the plain and ordinary meaning of the words used stating at [44]:

The construction of an award may include the history of the instrument in some circumstances. The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all. We note, in this respect, the observations of Walton J, Vice-President in Fox v GIO Australia Ltd (2002) 56 NSWLR 512, 120 IR 401 at [46] as follows: The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 14 Approaching Award interpretation from that premise, the primary factor the Commission must take into account is the plain and ordinary meaning of the words used in the Award, the history of the Award and its surrounding circumstances. In Zoological Parks Board of New South Wales, the Full Bench made reference to the decision of Mason J in Codelfa Construction Proprietary Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 348 as follows: On the other hand, it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning - see, for example, the remarks of Knox C.J. in Life Insurance Co. of Australia Ltd. v. Phillips (1925) 36 CLR 60, at p 69. This has led to a recognition that evidence of surrounding circumstances is admissible in aid of the construction of a contract. So Lord Wilberforce in L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. [1974] AC 235, at p 261 was able to state the broad thrust of the rule in this way: "The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive." 15 Further, at 352 Mason J said: The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. See also Eraring Energy and Construction, Forestry, Mining and Energy Union (NSW) [2005] NSWIRComm 13. History of the Award and Relevant Provision 16 Ms E Brus of counsel appeared for the applicant and tendered affidavits of Ms J M Duncan, Manager, Employee Services of the New South Wales Fire Brigades and Superintendent K R King, a zone commander with the applicant. Each was required for cross examination. 17 Ms Duncan's evidence in respect of the history of cl 10 was that the predecessor of the refreshment provisions contained in subclause 10.1.1 of the 2004 Award was contained in cl 9 of the Fire Brigade Employees (State) Award ("the 1991 Award"). 18 Clause 9 provided, among other things, that refreshments were to be provided in specified Fire Districts when Officers/Firefighters performed watching and fire duty, where such duty exceeded two hours. The terms "watching" and "fire duty" were described by Ms Duncan as "archaic terms", and referred to post incident watching duties for the purposes of guarding against re-ignition of a fire or building security. Those terms have been extended to include what is now referred to as an "incident". 19 Ms Duncan stated that there were several earlier references to the provision of refreshments and meals at fires or "other emergencies" in documents known as "In Orders". These documents were in effect Standing Orders contained in policies of the New South Wales Fire Brigades. The "In Orders" dated from at least 1979, and continued to regulate the provision of refreshments until 1992. These "In Orders" contained the following clause: When a fire or other emergency attendance extends beyond two hours refreshments shall be arranged unless the personnel concerned will be returned to their stations before a further half hour expires. In these cases the refreshments will comprise tea or coffee and biscuits. The intention of this clause is to provide light refreshments for those incidents not exceeding 2½ hours. 20 Ms Duncan's evidence was that during negotiations that culminated in the 1997 Award, a decision was made, in the interests of simplicity and ease of reference, to incorporate the majority of references to meals and refreshments in one clause, namely, cl 10. 21 Ms Duncan stated that over the last two decades, the applicant has moved from being predominantly a fire fighting organisation to an emergency services response organisation which provides, additionally, hazardous material response, terrorist consequence management, motor vehicle and domestic rescue, urban search and rescue, natural hazards response, emergency life support and other emergency management capabilities. 22 Ms Duncan further stated that from the 1994 Award onwards, the word "incident" was defined in cl 4 - Definitions and has remained unchanged through to the 2004 Award. 23 Ms Duncan's evidence was that the words "watching" and "fire duty" were incorporated into the current words of attending an "incident" or "hazard reduction or any similar situation". The inclusion of the words "... also includes hazard reduction or any similar situation where facilities comparable to those provided at fire stations are not available to partake of a meal" was designed to provide some flexibility that would avoid the necessity of defining, in possibly lengthy detail, every situation that fell, or could fall, under the definition of an "incident". The inclusion of the words "hazard reduction" was an example of such an extension. 24 Superintendent King's evidence was directed to the circumstances giving rise to the initial dispute and the present proceedings. 25 Superintendent King stated that the Station Commander of Bateau Bay Fire Station and his crew attended Toukley Roads and Traffic Authority for the purpose of one fire fighter being examined for his heavy rigid licence. 26 The fire fighter undergoing the examination was paid a refreshment allowance on return to his station and the Station Commander was reimbursed for the purchase of coffee and cakes for his crew whilst awaiting the fire fighter to complete his examination. 27 Superintendent King was of the belief that the expenditure was outside that provided for in cl 10.1.1 of the Award as the crew was not attending an "incident or similar situation". 28 Advice was sought from the Industrial Relations Unit of the applicant who advised that the claim should be denied. 29 Superintendent King forwarded a memorandum to the Station Commander advising that the claim had been denied and instructing him to reimburse petty cash. The Station Commander advised that he had been informed by the FBEU not to repay the refreshment claim. 30 Ultimately, the moneys were recovered from the officers pursuant to cl 6.15.1 of the Award which deals with overpayments. 31 Superintendent King, in cross examination, acknowledged that the refreshment allowance had been paid to officers who attended the "Bluey Day" on 7 August 2003. The "Bluey Day" is a fundraising day for charity which is supported by the applicant. Superintendent King approved the payment of the refreshment allowance as it had previously been approved by an inspector who, in subsequent discussions with Superintendent King, agreed that such payment was outside the Award. 32 Ms Brus tendered a copy of cl 8 Meals and Refreshments from the Crown Employees (NSW Fire Brigades Retained Firefighting Staff) Award 2005. Retained firefighters are part time firefighters who are on call. 33 Clause 8. Meal and Refreshments of this Award is as follows: 8.1 Attendance at an Incident 8.1.1 For the purposes of this clause, an "incident" also includes hazard reduction.

The remaining provisions regarding meals and refreshments are not dissimilar to those provided for in cl 10 of the Award. 34 Ms G Lowe, who appeared for the respondent, called Mr C S Read, an Industrial Officer employed with the FBEU. Mr Read gave evidence that in 1997, the FBEU filed an application for new Awards which included new clauses providing for meals and refreshments. 35 At the time of the making of the Award, Mr Read was the State Secretary and principal negotiator for the FBEU. Mr Read stated that the proposed Award provided for refreshments and meals in instances where firefighters could not access facilities comparable to that of a fire station in which to partake of a meal. Mr Read's evidence was that it was not the view of the parties that an emergency was required before cl 10 became operative, particularly because a hazard reduction is not an emergency situation. Hazard reduction is a planned exercise where facilities comparable to that of a fire station are not available to partake of a meal. 36 Mr Read's evidence was that the reference to hazard reduction was intentionally included to extend the application of cl 10 beyond a fire call or emergency to planned exercises, devoid of the fire call/emergency characteristic of the term "incident". 37 Mr Read stated that the clear difference between hazard reductions and "incidents" explains its specific inclusion in the clause, that difference being that the former is not an emergency. The intention of the clause is therefore to ensure that refreshments are provided at fire calls and other emergencies as well as non emergencies where facilities comparable to that of a fire station are not available to partake of a meal. 38 Mr Read stated that the applicant had failed to provide an explanation for what it believed constitutes a similar situation and stated that the parties had agreed that a "similar situation" is one where a firefighter is denied facilities comparable to that of a fire station to partake of a meal. 39 Mr Read's evidence was that the words "where facilities comparable to those provided at a fire station are not available to partake of a meal" would have not been necessary if the intention of the parties had been for the clause to apply only to fire calls or emergencies. Mr Read observed that with the exception of a fire within, for example, a restaurant, all fires and emergencies will occur in situations "where facilities comparable to those provided at a fire station are not available". 40 According to Mr Read, these words were included with the express intention of clarifying that whilst a number of activities may be similar to a fire call or a planned activity, it is only when they are performed away from the station's amenities that refreshments are provided. 41 During cross examination, Mr Read agreed that the refreshment allowance was payable prior to 1997 in the circumstances set out in the In Orders. However, he contended that the "In Orders" were not exhaustive and the spirit and custom and practice at the time extended beyond the narrow payment of attendance at a fire or other emergency although no evidence in this regard was provided. 42 Mr Read agreed that he was the principal negotiator in 1997 for an Award for permanent firefighters and also for an Award in respect of retained firefighters. Mr Read accepted that if a retained firefighter was required to attend a hazard reduction, a fire or an "incident" as defined in the Award, such attendance would be no different to that of a permanent firefighter attending such situations. 43 Mr Read was asked by Ms Brus to explain the difference between the clauses relating to meals and refreshments (cl 10) in the Award and cl 8 of the Crown Employees (NSW Fire Brigades Retained Firefighting Staff) Award 2005. He stated that retained firefighters were not actually attached and employed at a fire station on an ongoing basis. They respond to incidents and/or otherwise generally respond to pagers and emergency incidents as and when required. Otherwise they are not allocated a set period to work at the station. Therefore, the reference to facilities if that had been included in the Retained Firefighters Award would have given rise to real confusion because the facilities comparable to those available at a fire station for permanent firefighters are considerably different to those for retained firefighters which were categorised as "generally inferior". Mr Read conceded that there are some fire stations which are jointly staffed by permanent and retained firefighters and where the retained firefighters would enjoy superior facilities, however, he speculated this would occur in 30 Stations out of 330. 44 Mr Read stated that when a fire station receives a call and the crew depart on a truck, they are required to be ready to attend to an emergency or "incident" as defined by the Award which may involve activity that is very physical, very demanding and which at some point in time will require some refreshment to be provided to the individual. Mr Read also agreed that hazard reduction may involve some level of physical activity on behalf of firefighters. 45 Mr Read was cross examined about a circular forwarded by the FBEU dated 10 January 2002, an annexure to Mr Read's affidavit. Relevantly, the circular provided: Members' entitlements for the bushfire emergency Date: 10 January 2002

Bushfire emergency entitlements 1. All members: Refreshments and Meals Both permanent and retained members are entitled to refreshments after two hours attendance at an incident and to a substantial meal after four hours at that incident, followed by a further substantial meal each and every four hours thereafter... Whilst the provision of refreshments and meals is clearly tied to attendance at incidents, it is reasonable in the current emergency for many Brigades to be considered to have been attending one continuous (and very large) incident. That is to say, members responding from one incident to another in rapid succession who couldn't return to their station/base for over four hours would still be entitled to both refreshments and a substantial meal - even though they may have technically attended more than one incident. And the bushfires aside, if (for example) City of Sydney's Flyer was (sic) responded to so many successive calls that its members could not return to their Station for over two hours, then refreshments should be provided. ... 46 The terms of paragraphs 1 and 2 of the FBEU's circular were identical to a memorandum forwarded by Mr D Messenger, Manager, Operational Personnel of NSW Fire Brigades to a number of groups, zones and firefighters dated 10 December 2002. 47 Mr Read's evidence was that the circular was directed to bushfire emergency entitlements. When pressed by Ms Brus that the circular refers to incidents in general, Mr Read stated that this was far too narrow a reading of the circular. 48 Mr Read accepted that every call is regarded as an emergency situation and when officers attend to a call they are attending, at least in theory, to an emergency situation or an incident as defined by the Award. 49 Mr Read accepted that the Award did not provide for any payment in respect of morning or afternoon tea with the exception of officers attending training courses. When asked whether there was a similarity between the refreshment allowance and the provision of morning and afternoon tea, Mr Read agreed there was not. 50 In re-examination, Mr Read was asked why the parties to the Award had not merely transferred the wording contained in the "In Orders" into the new Award when drafting cl 10. Mr Read explained that the reason was "that we attempted to give effect to the practical application, the actual custom and practice that applied at the time and the spirit and intent that was occurring with the payment of meals and it wasn't limited strictly to the attendance at fires and emergencies". Consideration 51 Essentially, the applicant contends that the true and proper meaning of cl 10.1.1 is that the meal/refreshment allowance is only payable in those circumstances when an officer/s is required to attend an incident as defined in cl 4 - Definitions, for a period greater than two hours. 52 The FBEU contends that cl 10.1.1 provides for the payment of an allowance in just about any circumstance where there is an absence from a fire station for more than two hours. 53 In considering the words used in cl 10.1.1, the disputed clause must be considered in its context: Zoological Parks Board of New South Wales at [43]. The title, indicates that cl 10 applies to meals and refreshments. 54 The disjunctive "or" which appears in cl 10.1.1, in my view, relates to the words that follow being "any similar situation where facilities comparable to those provided at fire stations are not available to partake a meal". Read literally, these words, in my view, do not connect with the words "hazard reduction". Rather, they deal with a situation when officers are away from the Station. Construed this way, the provision is clearly ambiguous. 55 An important factor, it seems to me, is that what cl 10.1.1 does is extend the provision for refreshments/meals beyond an emergency situation. What is not clear is what the words "similar situation" refers to in 10.1.1 and how far the provision is extended. However, on a literal reading, what is clear is that the clause extends the situations where meals/refreshments are required to be provided. 56 Ms Brus submitted, by way of a concession, that if a comma was inserted after the words "or any similar situation", the meaning of cl 10.1.1 would be quite clear. Of course, to do so would be to act contrary to the settled principles of Award interpretation. 57 The FBEU's construction is to read the words "or any similar situation..." as requiring the payment of a refreshment allowance where similar meal making facilities to those provided at a fire station are not available. 58 Although it is instructive to look at the Award as a whole and those provisions that deal with the same subject matter, the overall meaning of cl 10.1.1 still remains unclear. This approach does not provide enough guidance to resolve the issue. 59 This gives rise to a need to pay regard to the surrounding circumstances and the purpose for which the provision was intended. 60 The evidence of the applicant is that prior to the 1997 Award, "In Orders" provided that refreshments were to be provided "when a fire or other emergency attendance extends beyond two hours". 61 The purpose of cl 10.1.1 is to provide a more extensive basis for meals/refreshments than found in the definition of "incident". The clause is extended to include a hazard reduction situation and situations where facilities comparable to those in fire stations are not available to partake of a meal. 62 It seems to me that the expansion of the definition of "incident" to include "hazard reduction" diminishes the applicant's contention that the refreshment allowance is limited in the manner that it was under the "In Orders". 63 Hazard reduction involves a physical activity being undertaken by firefighters which can be characterised as a firefighting activity. As stated by Mr Read, it would also normally involve a planned activity. Mr Read's evidence was that attendance at a hazardous activity may involve physical activity required by the firefighter. It may not be an emergency in that there is a life or property at risk, but it is, nevertheless, a firefighting activity which requires the wearing of firefighting equipment and safety gear. Hazard reduction is therefore not an emergency and clearly extends the entitlement to an allowance from those situations found in the definition of incident. 64 The history of the refreshment allowance makes it clear that a particular circumstance, that being a fire or other emergency attendance, (an incident) must exist before the allowance is paid. It has never been the case that a refreshment allowance has been paid if an officer is away from a fire station, for any reason, for more than two hours. That situation is not now created by cl 10.1.1. 65 If this had been the situation that the parties had in mind when drafting cl 10.1.1, it would have been a simple exercise to make that intention clear. However, a consideration of the history and the present circumstances demonstrates that something has changed. 66 A further matter is the terms of cl 8.1.1 of the Crown Employees (NSW Fire Brigades Retained Firefighting Staff) Award. This Award was negotiated at the same time as the Firefighting Staff Award with Mr Read, the chief negotiator for the FBEU. Retained firefighters are required to attend incidents and emergencies in the same way as their permanent firefighting colleagues. However, there is an absence in cl 8.1.1 of the words "or any similar situation where facilities comparable to those provided at fire stations are not available to partake of a meal". Mr Read's evidence was that the difference between the Awards was because retained firefighters are not allocated to Stations. He conceded that shared Station arrangements did exist between some retained firefighters and permanent firefighters. It would therefore have been illogical to include the additional words found in cl 10.1.1 in circumstances where retained firefighters do not enjoy the facilities provided to permanent firefighters. 67 However, it is inappropriate to construe instruments having regard to the subjective intentions of the parties. The Full Bench stated in Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44]: The reliance on the subjective intention of the parties in the interpretation of the industrial instruments involves an error of principle thus requiring appellate intervention. 68 Furthermore, in respect of the purpose for which the provision is intended, I do not necessarily see why a meals/refreshment provision would be connected to an emergency type situation only as apart from access to meals generally. 69 Although the FBEU relied on evidence of what occurred during the Sydney Olympics, attendance at training courses and situations involving overtime in support of its interpretation of the Award, each of these examples seem to me to be irrelevant and of no assistance in interpreting cl 10.1.1. The examples given are dealt with by other provisions in the Award. 70 Ms Duncan's evidence is that the applicant has moved from predominantly being a firefighting organisation to an emergency service response organisation which provides, additionally, hazardous material response, terrorist consequence management, motor vehicle and domestic rescue, urban search and rescue, natural hazards response, emergency life support and other emergency management capabilities. 71 I have considered these examples of the work of modern firefighters and it seems to me that attendance at each example given by Ms Duncan would fall into cl 10.1.1 even though some examples are not hazard reduction, or involve fire or an emergency. 72 The examples appear to me to involve similar situations to the hazard reduction example or give rise to circumstances where officers are called away to perform specialist functions all of which seem to me to have a connection with hazard reduction but may not specifically involve a hazard reduction in terms of the definition in cl 10.1.1. 73 In my view if the clause is read beneficially it should capture these situations. I do not see why such entitlements should be limited to emergency type situations. In respect of the specific situation that gave rise to this matter, I am unable to decide whether it would fall within the definition in cl 10.1.1. On the one hand the officer needed to equip himself with a licence so as to enable him to deal with the situations mentioned by Ms Duncan and that arise from cl 10.1.1. On the other hand, it is unclear why it was necessary for a number of officers to attend the RTA with the officer undertaking the examination. 74 Furthermore, Ms Duncan agreed that the additional words found in cl 10.1.1 were designed to provide some flexibility to avoid the necessity of defining, in possibly lengthy detail, every situation that fell, or could fall, under the definition of an "incident". 75 The evidence in respect of the above issues is scant and I am unable to conclude that cl 10.1.1 can be construed as narrowly as the applicant contends. On its face, as I have observed, the provision gives rise to an ambiguity. 76 I am therefore, at this stage, unable to conclude the matter any further than I have set out in this decision. 77 In these circumstances I direct the parties to consider the matters that I have raised and to engage in conferences with a view to resolving their differences. The Commission has before it experienced parties who should know what they meant and intended by cl 10.1.1. 78 The parties are to report back to the Commission at 9.30 am on 2 June 2005. 79 Should the parties require the further assistance of the Commission in the intervening period, leave is given to each party to have the matter restored to the list upon 48 hours notice to the Industrial Registrar.

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