Bryce v Apperley

Bryce v Apperley - [2007] NSWIRComm 1033 - NSWIRComm 2007 case summary — Zoe

[14]

Mr Bradley Dives joined the NSWFB as a recruit firefighter on 30 June 1989. At all relevant times, Mr Dives: 2.1 wages and conditions were prescribed by the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 (352 IG 270) ("the Award"); 2.2 held the rank of Senior Firefighter ("SFF"); 2.3 was permanently assigned to Station 260 and, accordingly, was "attached to" (within the meaning of that expression in clause 6.7.3 of the Award) to Station 260; 2.5 was qualified to be "attached to" a BA/Hazmat section; 2.6 was recognised as a Qualified Rescue Operator by the State Rescue Board and, accordingly, entitled to be paid the allowance prescribed by 6.6.12 of the Award (because Station 260 is a Primary Rescue Station); 2.7 was qualified to operate a Major Aerial Appliance and, accordingly, entitled to be paid the allowance prescribed by 6.6.3 of the Award (because Station 260 has this equipment). 3. The Award was varied with effect from 6 March 2006 (361 IG 433) ... Prior to the variation of the Award, the relevant variations to clause 6, had been implemented by way of (the) Commission's ... Order 2005/25 with effect from 25 November 2005. 4. In October 2005, SFF Dives sustained an injury to his shoulder at work. This necessitated an operation to his shoulder. He submitted a workers compensation claim for the injury. The claim was provisionally accepted without dispute. 5. During the period from 11 December 2005 to 5 February 2006 inclusive, SFF Dives was absent on workers compensation. 6. During the period from 11 December 2005 to 5 February 2006 inclusive, SFF Dives was initially placed upon light duties at Newcastle F/S in a sedentary position. His role was to include project work, office duties and assisting the inspectors. It was then realised that SFF Dives was BA/Hazmat qualified and therefore he could be utilised in BA/Hazmat to service equipment etc. as long as the duties were consistent with the restrictions placed on his medical certificate. His medical restrictions from 06/02/06 to 04/03/06 were no lifting above 5 kg with left arm and from 05/03/06 the weight limit was increased to 10 kg. The duties he undertook at BA/Hazmat included: servicing airsets; repair of damaged airsets; periodic maintenance and testing of airsets, face masks and fully encapsulated suits; and data entry in the Hazmat database. He returned to his normal duties on A Platoon at Station 260 as from 8 April 2006. 7. SFF Dives was paid the allowances prescribed by clauses 6.6.3 and 6.6.12 for the whole of the period referred to in paragraph 6. He received the BA/Hazmat allowance of $25.89 per shift for eight shifts (two weeks) of this period, for a total of $207.12. For the balance of the pay periods approval was given for SFF Dives to be paid an additional amount equal to the difference between the total of those two allowances (i.e. the allowances prescribed by clauses 6.6.3 and 6.6.12) and the BA/Hazmat allowance. 8. SFF Dives had previously been rostered to undertake alternate duties at the Newcastle BA/Hazmat Section during the period from 22 April 2005 to 22 May 2005 (whilst recovering from an ear operation). For that period he was paid the BA/Hazmat allowance in addition to the Aerial and Rescue allowances.

[16]

12 Mr Bolwell submitted there were three limbs to the Union's case. Firstly, the plain and ordinary meaning of the relevant Award provisions. Secondly, the reality of the type of work SFF Dives was undertaking while working in the BA/Hazmat Section and thirdly, the broader public policy considerations. No evidence was called by the Union. 13 Mr Bolwell submitted that awards must be interpreted in light of the rules applicable to all statutory instruments and referred to the decision of the Full Bench of this Commission in Bryce v Apperley (1998) 82 IR 448 where Hungerford and Schmidt JJ stated 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. 14 Mr Bolwell submitted the decision of Boland J in New South Wales Fire Brigade Employees Union and New South Wales Brigades [2003] NSWIRComm 55 summarised the general approach of courts and tribunals to award interpretation where his Honour observed: In approaching the task of interpreting an award the starting point is the actual words of the award itself and their plain, ordinary English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley (1998) 82 IR 448 at 452. If the language of the award provision is clear and unambiguous and is consistent and harmonious with the other provisions of the award 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 (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 305 per Gibbs CJ). Although he was concerned with statutory provisions, the observations of the Chief Justice apply with equal force to an award: Bryce v Apperley at 453. The Award Provisions

[17]

15 Mr Bolwell submitted there was an entitlement to the allowance sought, provided the employee was "qualified for and attached to" the relevant BA/Hazmat section in accordance with cl 6.6.5 of the Award: 6.6.5 The BA/Hazmat Allowance set at Item 5 of Table 3 of Part D, per week, for Firefighters and Officers who are qualified for and attached to the BA/Hazmat sections at Sydney, Newcastle or Wollongong. 16 Mr Bolwell contended there was no dispute between the parties that SFF Dives was qualified for BA/Hazmat work. Rather, the dispute was whether or not he was "attached to" the Newcastle BA/Hazmat section. In that regard, Mr Bolwell relied upon cl 6.7.3 of the Award which describes five situations where a Firefighter may be considered to be attached to a station, section or location: 6.7.3 The term "attached to" within this Clause shall include employees who are permanently assigned to the relevant station or section, Relieving Employees whose base station is the relevant station or section and who are performing duty at some other location, Relieving Employees with base stations elsewhere who are performing duty at the relevant station or section, employees who are permanently assigned to the relevant station or section but who are performing an Outduty at some other location, employees who are permanently assigned elsewhere but who are performing an Outduty at the relevant station or section but subject to subclauses 6.6.7, 6.6.8, 6.6.9, 6.6.10 and 6.6.11 shall not include employees who perform duty at the relevant station or section pursuant to Clause 9, Overtime. 17 Mr Bolwell stated the words in cl 6.7.3 were clear and unambiguous. SFF Dives met all of the conditions and requirements and he clearly fell within the scope of cl 6.7.3 of the Award: employees who are permanently assigned to the relevant station or section but who are performing an Outduty at some other location ... Nature of the Work 18 Mr Bolwell submitted the Union contended SFF Dives "was either relieving out of Newcastle Fire Station into Newcastle BA/Hazmat, or he was completing an Outduty from Newcastle Fire Station into Newcastle BA/Hazmat." He contended SFF Dives was "qualified for and attached to" the Newcastle BA/Hazmat section in accordance with cl 6.6.5 of the Award and relied upon two separate situations where SFF Dives may be considered to be "attached" pursuant to cl 6.7.3: relieving employees with base stations elsewhere who are performing duty at the relevant station or section; or employees who are permanently assigned elsewhere but who are performing an Outduty at the relevant station or section. 19 In the alternative, Mr Bolwell contended SFF Dives had been transferred to the Newcastle BA/Hazmat section but conceded there was no evidence to support that proposition and his payslips "clearly state he was based at Station No 260 Newcastle and not BA/Hazmat". In support of this proposition, Mr Bolwell referred to the Statement of Facts where it was agreed that SFF Dives had undertaken Hazmat work "including the repair of airsets, face masks and fully encapsulated suits and data entry in the Hazmat database". Accordingly, the allowance was applicable to the Hazmat work undertaken by SFF Dives as claimed.

[25]

31 Ms Anderson submitted it was an agreed fact that SFF Dives "was permanently assigned to Station 260 and, was 'attached to' (within the meaning of that expression in cl 6.7.3 of the Award) Station 260". Referring to the term "attached to" in cl 6.7.3, Ms Anderson said SFF Dives was never permanently assigned to the BA/Hazmat Section and contended the clause made no provision for a firefighter who was permanently assigned to both a fire station and a section. 32 With reference to the Union's contention that SFF Dives fell within the scope of cl 6.7.3 as an employee who was permanently assigned to Station 260 but was performing an Outduty in the Newcastle BA/Hazmat Section, Ms Anderson submitted the phrase "normally reports for duty" set out under cl 4, Definitions of the Award was obviously quite different to the term, "permanently assigned": "Outduty" means a period of duty performed by a Firefighter, not being a Relieving Employee, where the Firefighter either commences or ceases duty at a station other than the station where the Firefighter normally reports for duty. 33 It was the respondent's submission that an Outduty only arises in the context of performing relief duties and it was clear that SFF Dives was not relieving at the Newcastle BA/Hazmat Section. Moreover, an Outduty also involves a firefighter either commencing or ceasing duty at a station other than the station where the firefighter normally reports for duty. An Outduty "is not directed to the situation where somebody has got hurt and is unable to undertake their normal duties". Accordingly, Ms Anderson submitted that the Union's proposition that SFF Dives was continuously undertaking an Outduty between 6 February and 3 April 2006 was not sustainable, particularly given the agreed fact that he was permanently assigned to Station 260. 34 Ms Anderson submitted SFF Dives was unable to undertake his full duties at Station 260 and was similarly unable to undertake full duties within the BA/Hazmat Section if he was there to perform an Outduty due to his injuries and medical restrictions. SFF Dives was simply undertaking light duties in the Section and he commenced and ceased duty in that section. Ms Anderson contended that it was clear that while SFF Dives was undertaking light duties, "the relevant station or section to which he normally reported for duty was the BA/Hazmat Section". 35 Ms Anderson sought to test the Union's construction of the Award and referred to a recent decision of Grayson DP in NSW Fire Brigades Employees Union v NSW Fire Brigades [2007] NSWIRComm 60 where his Honour was required to determine concerning firstly, the proper construction of cl 7, Higher Duties and cl 17, Annual Holidays of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 and, whether and to what extent the Annual Holidays Act 1944 was applicable to firefighters. At [13], his Honour stated: Turning then to the Award, it is the respondent's contention that clause 7 (2) set out above makes it clear that payment of the minimum rate of pay for the classification in which higher duties are performed applies only to the period of relief in which the employee concerned is actually performing higher duties and further, that clause 7(2) is the sole provision within the Award dealing with the payment of a higher duties allowance. Were the words of the clause to be given other than their plain, ordinary English meaning (see City of Wanneroo v Holmes (1989) 30 IR 362; Bryce v Apperly (1998) 82 IR 448) it may, as Ms Anderson submitted, lead to a result where the respondent would be paying the higher duties allowance to one relieving employee on annual leave and at the same time, to another relieving employee actually performing the higher duties, a circumstance which on a proper construction of the provision could not have been intended. In that regard Ms Anderson relied upon the dicta of Mahoney J in Cole v Department of Youth Services (1987) 7 NSWLR 541 who said at 546: It is, of course, proper to test a construction by the consequence of it. 36 Ms Anderson submitted an Outduty was directed to the normal work situation where some relief was required and was not intended to apply where an employee was undertaking light or alternate duties. She asserted the practical effect of the Union's construction was that SFF Dives would receive a windfall: ... an employee who is unable to take the full range of duties in either Station 260 or BA/Hazmat Section would received a windfall by being placed on alternate duties in the BA/Hazmat Section. In other words, by not being able to perform a full range of duties at Station 260, and by being placed on light duties or alternate duties elsewhere, he would be entitled to receive the three allowances in full. He could keep the rescue allowance. He could keep the aerial appliance allowance and all of a sudden he would receive a windfall. Namely, he would receive the BA/Hazmat allowance, notwithstanding that he couldn't do the BA/Hazmat job in full.

[31]

43 The Commission has developed a distinctive body of jurisprudence concerning the relevant principles of construction to be applied when interpreting Awards and the approach is both settled and longstanding. The starting point of award interpretation therefore is to examine the terms of the award itself to find what the words mean in their ordinary and natural significance or, their clear commonsense English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley at 452. The plain and ordinary meaning of the actual words used in the Award is therefore a primary factor that the Commission must take into account. The principles stated by the Full Bench of this Commission in Bryce v Apperley 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] it was 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. 44 The Full Bench then went on to consider the ability of the Commission to have regard to 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.

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