Bryce v Apperley

Applicable law - principles of construction

1. The Commission's power to interpret the provisions of an industrial instrument is found at s. 175 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).
2. The Commission has powers to provide an interpretation of a clause in an award pursuant to s.175 if that is a step necessary for the purpose of exercising its powers under s.136. The powers of the Commission under s.175 do not stand alone, permitting applications for declaratory relief simpliciter. Rather they may be exercised 'for the purpose of exercising [the Commission's] functions in a matter before it', in this case the powers set out in s.136 of the Act: Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67]; Health Services Union v Director-General, Department of Health (NSW) [2010] NSWIRComm 42; (2010) 193 IR 359 at [57] - [58].
3. The relevant principles applied by the Commission to award interpretation are well settled. The Full Bench of the Commission in Bryce v Apperley (1998) 82 IR 448 at 452 observed as follows: 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.
4. In New South Wales Fire Brigade Employees Union and New South Wales Brigades [2003] NSWIRComm 55, Boland J endorsed the principles applied in Bryce as follows: [9] 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. However, as French J observed in City of Wanneroo, "That is not to say the words (of an award) must be interpreted in a vacuum divorced from industrial realities." French J referred to the decision of Street J in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 where his Honour said: [I]n 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.
5. The principles in Bryce were reaffirmed by the Full Bench in Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales (2004) 135 IR 56 where the Commission held: [43] 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, New South Wales 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.
6. NSW Ambulance referred to two decisions in support of its primary submission that the meaning of cl. 23(b)(ii) can be discerned from the text of cl. 23 read as a whole. Polan v Goulburn Valley Health [2016] FCA 440 was cited as articulating the general principles of interpretation applicable to industrial instruments: [32] Like other instruments creating normative rules, such as statutes and regulations, industrial instruments are to be construed in accordance with their language (or text), taking into account their context in the wider scheme or structure of the instrument, and the purpose of the provisions, again as seen in the wider scheme or structure of the instrument: see generally Lacey v Attorney-General (QLD) [2011] HCA 10; 242 CLR 573; Certain Lloyd's Underwriters v Cross [2012] HCA 56; 293 ALR 412 at [24]-[25]. In the latter case, French CJ and Hayne J said at [25]: Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials.
7. Reliance was also placed on Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158, where a Full Bench of the Commission confirmed the necessity of undertaking a purposive approach in construing awards, consistent with s. 33 of the Interpretation Act 1987 (NSW): [46] Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: 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. [47] Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ).
8. The HSU's primary submission was also that the Commission must first give the words of the Award their ordinary meaning, applying a textual analysis of the sub-clauses, the clause overall and the Award overall. They contended that, adopting that approach, the Commission cannot be satisfied any ambiguity exists on the face of the Award. The HSU relied upon the decision of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 at [101] to [144], where Walton P summarised the correct approach as follows: [143] Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo v AMACSU at [57]: "[57] … while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language.' "

Construction of cl. 23(b)(ii)

1. NSW Ambulance contends that the obligation to pay overtime ceases at the commencement of the employee's next rostered shift, even if the duties associated with the call-out continue after such commencement time. The HSU contends that overtime rates should be paid until completion of the duties associated with the call-out. The question therefore is, does an obligation to pay overtime rates 'penetrate the frontier' of that normal commencement time?
2. The first step is to consider the plain, ordinary meaning of the actual words of cl. 23(b)(ii), giving consideration and weight to every part of the Award, in order to ascertain the provision's meaning. If cl. 23(b)(ii) is unambiguous, 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.
3. It is only if the provision is ambiguous considered from that perspective that reference to extrinsic materials is permissible. Accordingly, I turn first to the wording of the clause, in the context of the other provisions of the Award.

Relevant provisions - cl. 23(b)

1. Clause 23(b) provides as follows: Employees on call 23(b)(i) Time on call shall not be counted as time worked unless an employee is called to duty, in which case the employee shall be paid for a minimum of four hours at overtime rates for each time he or she is recalled; provided that where a second or subsequent call is received by an employee whilst he or she is still performing duties associated with the first call he or she shall attend the second or subsequent call without additional payment, unless the total time exceeds four hours, in which case payment shall be made for the actual time worked at overtime rates. (ii) Where an employee is on-call and is recalled to duty and such recall merges with the employee's normal commencing time, such work shall attract overtime for the actual time worked and not a call out. (iii) A callout shall be deemed to commence at the time the employee is tasked by the Operations Centre and shall be deemed to be complete when all duties associated with the case/s are complete.

HSU Submissions

1. The HSU submitted as follows: 1. clause 23(b)(ii) excludes the obligation at cl. 23(b)(i) to pay the '4 hour' call out and expressly entitles the payment of overtime for the period of 'actual time worked'; 2. the words 'actual time worked' appear at cl. 23 (b)(i) and cl. 23 (b)(ii). In cl. 23(b)(i), 'actual time worked' has a well understood meaning, being the 'duties associated with the case/s'; 3. the words 'actual time worked' in cl. 23 (b)(ii) must have the same meaning as in cl. 23(b)(i), the consequence of which is the entitlement to overtime survives for so long as the duties associated with the case for which the paramedic was called out continue to be performed; and 4. the words 'not a call out' in cl. 23(b)(ii) refer to the obligation to pay the 4 hour minimum; 5. in order for it to have the effect contended for by NSW Ambulance, words would need to be read into cl. 23(b)(ii) to expressly say 'for actual time worked up to and until the commencement of the next rostered shift and not a call out'; and 6. the words 'actual work' also appear in cl. 23(c) where it is not in dispute as meaning duties associated with one or more call outs.
2. The HSU submitted that NSW Ambulance has not advanced a construction that addresses the words of cl. 23(b)(ii) as they appear. Accordingly, the Commission cannot be satisfied that any ambiguity exists on the face of the Award.

NSW Ambulance submissions

1. NSW Ambulance stated in its written submissions that 'at a superficial level' it might be argued that where the duties associated with the call-out are not completed by the employee's normal commencing time, the call-out continues after that time, and the period of time in which the work is performed would attract overtime rates under cl. 23(b)(ii). This is an acknowledgement that the 'frontier' on the payment of overtime past the normal shift commencement time does not arise on a reading solely of the words of cl. 23(b). However it was submitted that this construction should be rejected when the context in which cl. 23(b)(ii) appears is considered and appropriate weight given to other provisions of the Award.
2. In this regard, other relevant provisions of the Award relied upon by NSW Ambulance were as follows: Hours of duty 20(b) The ordinary hours of duty shall be: (i) An average of 38 per week, to be worked in shifts of eight hours duration on no more than 19 days per 28 day period. Shift workers shall be free from duty for not less than two full days in each working week or four full days in each two working weeks, unless otherwise agreed between the parties. (ii) Where work is performed on a modified hours roster the maximum length of a shift shall not exceed 12 hours, except in operation centres where the maximum length of a shift shall not exceed 12 hours and 15 minutes. The average of 38 hours per week to be calculated over the modified our roster cycle. Roster of hours 22(a) The ordinary hours of duty prescribed by clause 20, Hours of Duty, shall be worked according to rosters which shall be exhibited at least seven calendar days before the commencement date of the roster and shall show the hours of duty for the agreed roster period or 28 days whichever is the greater. Casual employees are not subject to this clause. Employees on call 23(a)(i)Time on call means time during which an employee who is rostered off duty is required to hold himself or herself in readiness to answer a call. In any one day where an employee answers telephone calls when not on call he or she is to be paid for one hour at ordinary rates of pay. (ii) The provisions for employees recalled to work are contained in this clause. A recall under this clause shall not be treated as overtime for any other purpose and shall not be treated as time worked for the purposes of clause 22 Roster of Hours. … (v) A period of on call is to be regarded as commencing at the completion of duty on one rostered shift to the commencement of duty on the next rostered shift. … 23(c) Where an employee who is on-call is called out for duty which in total involves four hours or more actual work within eight hours of the scheduled commencement of their next rostered shift, he or she shall be entitled to exercise the Rest Options provision of the Services Fatigue Management Standard Operating Policy.
3. NSW Ambulance submitted that the wording of cl. 23(b)(ii), considered in the context of these provisions, does not create an entitlement to overtime after the normal shift commencement time. I understood the interpretation advanced by NSW Ambulance to be based on the following contentions: 1. the HSU's interpretation should be rejected because it has the consequence of converting time worked on duties associated with the call-out after the commencement of the rostered shift (according to rosters established under cl. 22(a)) from ordinary hours to being part of a call-out. This results in a shortfall of ordinary hours over a rostered cycle, due to the effect of cl. 23(a)(ii) which expressly states that a recall shall not be treated as time worked for the purpose of cl. 22 (Roster of Hours); 2. it would result in a recall being regarded as extending beyond the period that an employee is on-call. Clause 23(a)(v) delineates a period of on-call as from the completion of duty on one rostered shift to the commencement of duty on the next rostered shift. Clause 23(a)(ii) notes that the 'provisions for employees recalled to work are contained in this clause [23]'. Clause 23 is therefore concerned with periods of on-call and how an employee is to be paid during those periods, not periods of rostered ordinary hours. Clause 23(b)(ii) applies in substitution for cl. 23(b)(i), which is concerned only with circumstances where time on call is to be counted as time worked, being time during the period of on-call. If the HSU's interpretation is correct, cl. 23(b)(ii) would apply to a period of time (being time after the normal shift commencement time) that is not otherwise dealt with by cl. 23(b)(i), or cl. 23 as a whole, which deals with the specific subject matter of periods where employees are on-call; and 3. the answer to the question 'what work is encompassed in the words 'such work' in cl. 23(b)(ii)?' should be 'work already referred to in cl. 23(b)(ii)'. Clause 23(b)(ii) applies to a period 'where an employee is on-call and is recalled to duty', not a period where the employee is not on-call, but rather rostered to work ordinary hours. That on-call period then merges, in the temporal sense, with the employee's normal commencing time. On this basis, 'such work' (attracting overtime rates) is only the work performed pursuant to the recall, in the period preceding the recall merging with the employee's normal commencing time.
4. On NSW Ambulance's interpretation it is unnecessary for cl. 23(b)(ii) to expressly state, as the HSU contended, that overtime is to be paid 'for actual time worked up to and until the commencement of the next rostered shift and not a call out', in order to be clear. This is because the 'frontier' for payment of overtime arises from the context of the whole of cl. 23 in which cl. 23(b)(ii) appears, and its interaction with other provisions of the Award, specifically cl. 20 and cl. 22 relating to ordinary hours and rostering.

Consideration

1. I consider that the proper approach to construction of cl. 23(b)(ii) is to view the matter broadly in order to discern the general intention of the parties from the whole Award, not a focus solely on the wording of the challenged clause. In my view, the position advanced by NSW Ambulance does not involve an unreasonable or unnatural construction being placed on the words of cl. 23(b)(ii) when properly considered in the context of relevant provisions of the Award.
2. In contrast, the HSU's interpretation of cl. 23(b)(ii) fails to give appropriate weight to clauses 20, 22, 23(a)(ii) and 23(a)(v). The shortfall in ordinary hours in the rostered cycle that arises from extension of overtime into the rostered shift, rather than confining overtime to 'such work' performed during the on-call period up to the normal commencement time, is an important contextual matter.
3. NSW Ambulance submitted, correctly in my view, that the HSU's interpretation involves a reclassification of hours. It is not merely imposing a penalty on ordinary hours. The hours worked on re-call work after the normal shift commencement time are no longer ordinary hours. This flows from cl. 23(a)(ii) which prevents a recall being treated as time worked for the purpose of cl. 22, Roster of Hours.
4. This created the problem explained in Mr McKenna's evidence, of an employee who claimed overtime for on-call duties that extended beyond her normal shift commencement time. She was paid her 38 ordinary hours and overtime in respect of the same period, due to the payroll system defaulting to 38 ordinary hours. It was not disputed that the payroll system is not currently equipped to handle what the HSU contends is the entitlement, which resulted in this overpayment. However it appears that if the payroll system did provide for the hours to be paid as overtime, there would be a problem with a shortfall in ordinary hours. No satisfactory solution to the impact of cl. 23(a)(ii) and its interaction with cl. 20 and cl. 22 was provided by the HSU.
5. The HSU contends that the NSW Ambulance interpretation requires words to be read into cl. 23(b)(ii) - 'for actual time worked up to and until the commencement of the next rostered shift and not a call out'. However the HSU's interpretation faces the same problem. If the intention was to extend the obligation to pay overtime past the 'frontier' of the normal shift commencement time (overcoming the impact of clauses 20, 22 and 23(a)(ii) in respect of rostered ordinary hours), cl. 23(b)(ii) could have specified this - 'for actual time worked while he or she is still performing duties associated with the call-out'. Such words were included by the drafters in cl. 23(b)(i) to make clear how payment would be dealt with in the situation dealt with in that provision.
6. I do not agree with the HSU's submission that the words 'actual time worked' in cl. 23 (b)(ii) must have the same meaning as in cl. 23(b)(i) and/or cl. 23(c), being 'the duties associated with the case/s'. In cl. 23(b)(i), express reference is made to what occurs when an employee is 'still performing duties associated with the first call' when they attend a subsequent call. Similarly cl. 23(b)(iii) specifically refers to 'all duties associated with the cases'. Clause 23(b)(ii) makes no such reference.
7. It could be argued that on NSW Ambulance's interpretation, cl. 23(b)(ii) does not operate harmoniously with cl. 23(b)(iii). When construing a statutory provision, a court or tribunal should strive to give meaning to every word in the provision and should avoid a construction which leaves any provision as superfluous, void or insignificant: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
8. Clause 23(b)(iii) specifies when a call-out commences and completes and thus delineates the period of the call-out, being 'when all duties associated with the case/s are complete'. However NSW Ambulance submitted that the duration of a call-out is important in determining if the call-out merges with the employee's normal commencing time (cl. 23(b)(ii)), and if the employee is still performing the duties associated with the first call when a second or subsequent call is received (cl. 23(b)(i)). I agree that on this basis, cl. 23(b)(iii) has a discernible purpose separate and distinct from the operation of cl. 23(b)(ii) and does not militate against NSW Ambulance's interpretation.
9. Accordingly, the answers to the questions framed by the HSU are as follows: 1. Does cl. 23(b)(ii) of the Award entitle those covered by that Award, in the event of a call-out merging with a shift, to payment of overtime rates for actual time worked? Answer: cl. 23(b)(ii) does not create an entitlement to overtime for time worked on a call-out that continues after the commencement of an employee's normal commencement time. 2. In 23(b)(ii) do the words actual time worked mean the completion of duties associated with a call-out? Answer: No.
10. I note for completeness the HSU evidence from affected members of perceptions of unfairness of not paying overtime past the normal shift commencement time. This evidence described various adverse impacts of continuing work into the employee's normal rostered shift, after performing duties on-call.
11. The HSU appropriately conceded that matters of fairness and hardship were not relevant to the question of interpretation of cl. 23(b)(ii) as currently drafted, but would rather form part of an application for a new award. If the language of the provision is consistent and harmonious with the other provisions of the Award and can be intelligibly applied to its subject matter, as I have found, it must be given its ordinary meaning even if it leads to a result that may seem inconvenient or unjust: New South Wales Fire Brigade Employees Union and New South Wales Brigades [2003] supra.

Extrinsic materials

1. The primary submission of both parties was that the meaning of cl. 23(b)(ii) could be discerned on the face of the Award, albeit different meanings. In the alternative: 1. NSW Ambulance submitted that its interpretation is confirmed by the history of cl. 23 and past conduct of the parties evidencing their intentions; and 2. the HSU submitted that there was no ambiguity that warranted reference to extrinsic materials, and if there was, such materials did not evidence a common understanding of the parties' intention in respect of the application of the clause.

Extrinsic materials

1. In support of its alternative submission that historical matters are relevant to the interpretation of cl. 23, NSW Ambulance relied upon Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829: [36] A further aid to construction was referred to in submissions. It related to the possibility that the parties had, historically, adopted a common understanding as to the meaning and effect of disputed provisions in the relevant instruments. [37] Decisions of the Court accept that, in some circumstances, resort may be had to the manner in which a particular industrial instrument or provision in it, has evolved. Differences, however, have emerged as to matters such as whether such an approach is permissible only in order to resolve ambiguity and as to how willing the Court should be to enter this field. [38] In Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 Burchett J (with whom Drummond J agreed on this point) affirmed that any provision appearing in an industrial instrument had to be read "in its context". He cited the example of "an expression [that] was first created by a particular respected draftsman for the purpose of stating the substance of a suggested term of an award, [which] was then adopted in a number of subsequent clauses of awards dealing with same general subject, and finally was adopted as a clause dealing with that same general subject in the award...". In construing such a provision, his Honour said, "the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use." (at 517). In supporting this proposition his Honour referred to the dictum of Isaacs J in Australian Agricultural Company Limited v Federated Engine-driver's and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 or 272 in which Isaacs J cited Lord Halsbury LC as saying: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it." His Honour concluded (at 518) that: "Where the circumstances allow the court to conclude that a clause in award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. 'Sometimes', McHugh J said in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation 'can be discerned only by reference to the history of the legislation and the state of the law when it was enacted.' Awards must be in the same position." [39] Gray J addressed the issue in Australian Liquor, Hospitality and Miscellaneous Workers' Union v Prestige Property Services Pty Ltd [2006] FCA 11; (2006) 149 FCR 209, and Shop Distributive and Allied Employees' Association v Woolworths Limited [2006] FCA 616; (2006) 151 FCR 513. [40] In ALHMWU his Honour was concerned to determine whether the Victorian Arts Centre Trust was an "instrumentality" within the meaning of two awards. The respondent had argued that it was not. His Honour said (at 222) that: For present purposes, I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken, however, to distinguish a common understanding from common inadvertence. If the only reason why the government instrumentality rates were not paid at the Centre was the neither the union nor the employer adverted to the possibility that there was an obligation to pay them, no common understanding results. In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of mind, no consensus, if no-one has thought about the issue.
2. The interpretation of cl. 23(b)(ii) does not meet the threshold for reference to the historic materials referred to by NSW Ambulance. It is not a situation of 'wilful blindness', or the Commission preferring to 'peer unaided' at obscure language in the provision. I do not consider ambiguity exists and accordingly reference to extrinsic material is not permissible. However even if it were, I do not consider the materials referred to by NSW Ambulance would materially bear upon the interpretation of cl. 23(b)(ii), for the reasons set out below.

Memorandum of Agreement

1. NSW Ambulance relied upon a Memorandum of Agreement made in 1988 between the Health Administration Corporation and the Health and Research Employees' Association of Australia, NSW Branch ('Memorandum'). The Memorandum arose from a decision of Commissioner McArdle on 18 July 1988 granting a 4% increase in wages under the then restructuring and efficiency principle of wage fixation.
2. The Memorandum relevantly stated as follows: Call Outs Where an officer is on-call and is recalled to duty and such recall merges with the officer's normal commencing time such work shall attract overtime for the actual time worked and not a call out. This reflects the method of payment throughout the Health Industry and recent decisions of the Industrial Commission. On-call To improve the efficient operation of the Service and to avoid uncertainty, a period of on-call is to be regarded as commencing at the completion of duty on one shift to the commencement of duty on the next shift."
3. Annexure 3 to the Memorandum set out the position of the Directorate of Ambulance Services as follows: 2. CALL OUT Proposal Where an officer is recalled to duty before the commencement of his/her shift and the time worked on the recall merges with his/her ordinary rostered hours of work, the time worked shall be paid for overtime in lieu of being treated as a call-out attracting a minimum payment of four hours at overtime rates. Current Position Because of historical practices officers who are recalled to duty before their normal rostered hours of work commence are paid for a call out irrespective of whether or not the actual time worked merges with the normal rostered hours of work. This practice gives the ambulance officers a financial reward above that of industry in general and the Health industry in particular, and runs counter to prevailing industrial case law. See subclause (ii) of clause 8, Employees On Call."
4. NSW Ambulance submitted that cl. 23(b)(ii) of the Award reflects the wording used by the parties in the Memorandum. In the absence of an alternative reason for introducing cl. 23(b)(ii), they contend it is reasonable to assume that the parties intended to formalise the method of payment adopted in the Memorandum. The purpose of cl. 23(b)(ii), as explained by the Memorandum, is to displace the application of cl. 23(b)(i) in circumstances where a recall merges with the employee's normal commencing time.
5. I think this is right. Clause 23(b)(i) deals with situations where an employee is performing duties associated with a call out that do not merge with their next shift, and cl. 23(b)(ii) deals with situations where they are performing such duties which do merge. In the first situation, they are entitled to the four hour minimum payment at overtime rates regardless of how long the duties take (subject to the other conditions in that sub-clause applying to further call-outs). In the second situation, they are not entitled to the four hour minimum, only overtime rates for the time worked performing the duties associated with the call-out.
6. However, nothing in the Memorandum specifically addresses the payment of overtime after the normal commencement time, if the duties associated with the call-out continue past that 'frontier'. Clause 23(b)(ii) displaces the application of cl. 23(b)(i) in respect of the entitlement to the four hour minimum. It does not automatically follow that it also displaces the entitlement to overtime if call-out duties are continuing past the employee's normal commencing time.
7. I do not agree that the Memorandum discloses the intention of the parties to the Award that overtime ceases to be payable past the normal shift commencement time. NSW Ambulance conceded there is no suggestion in the material relating to the application heard by Commissioner McArdle that time worked after commencement of an employee's normal shift would be paid at overtime rates. They submitted that the purpose of introducing the different method of payment, rather than to require payment for a minimum of 4 hours at overtime rates, was to achieve cost savings for the employer. However there is no evidence that the cost savings arose from the restriction of overtime in the specific circumstances described in cl. 23(b)(ii), in addition to the removal of the minimum 4 hour payment.
8. NSW Ambulance acknowledged the Memorandum was addressing one issue only at that point in time, namely the fact that where a merger occurred, the employee would receive a minimum of four hours' pay, even in circumstances where they may have worked half an hour. What was redressed was that the employee should be paid for the actual time worked. The Memorandum does not, in my opinion, shed light on whether the normal shift commencement time imposed a restriction on overtime payment for that actual time worked. Rather, I have found that this interpretation arises on the ordinary and natural meaning of the words of cl.23(b)(ii), considered in the context in which they are used.
9. As submitted by the HSU, there is a 'limited principle' that where there is clear evidence the parties where acting on a common understanding, it can be considered relevant evidence of the parties' intention, with respect to the interpretation of the clause: Transport Workers Union of Australia v Linfox Australia Pty Ltd supra. at [41]. I do not consider that clear evidence exists here.
10. Inaction arising from common inadvertence cannot sustain a finding that there was a common understanding: Transport Workers Union of Australia v Linfox Australia Pty Ltd supra. at [41]. The Memorandum does not expressly evidence that the parties turned their minds to the question of overtime payable after the shift commencement time. Their focus was on the removal of the four hour minimum and the cost savings arising therefrom. The Commission could not be satisfied there was a meeting of minds or consensus about the meaning of cl. 23(b)(ii) on the basis of the Memorandum and its annexures.
11. NSW Ambulance also referred to the decisions of the Industrial Commission mentioned in the Memorandum, said to be consistent with the position that the parties' intention, at the time of the Memorandum, was that ordinary rates of pay would apply to actual work performed on a call out that continued after the normal commencement time. NSW Ambulance noted that these cases were divergent. In any event, they relate to the interpretation of different award provisions and circumstances to those in the current matter. Even if extrinsic material were admissible, which I have found it is not, the cases would not be relevant.

Conduct of parties

1. NSW Ambulance further submitted that its interpretation was confirmed by the past conduct of the parties. The evidence is that except in respect of the employees affected by this dispute, the practice of NSW Ambulance has always been to pay employees at their ordinary rate after commencement of their normal shift, regardless of whether work associated with the recall to duty continued past that 'frontier'. Further, the HSU has not historically sought payment of overtime for time worked after the normal commencement time. NSW Ambulance says that the HSU was 'complicit' in this practice as a party to the Memorandum, as evidence of the mutual intention of the parties to the Award in respect of cl. 23(b)(ii).
2. The conduct of the parties is not determinative of the matter, which must be decided based on an interpretation of the words of the Award: TWU v Linfox Australia Pty Ltd [2014] FCA 829 at [40]. In view of the determination of the meaning of cl. 23(b)(ii), past conduct of the parties to the Award is not a consideration that impacts upon this decision.

Resolution of dispute

1. The HSU sought a recommendation that the alleged overpayments be set aside and in the alternative, a recommendation that NSW Ambulance engage in discussions with the HSU and affected employees to arrange a repayment plan ('Outline of Remedy Sought' filed 23 February 2017). However in the HSU's written submission dated 26 June 2017, a slightly different alternative recommendation was sought, namely, that NSW Ambulance waive the overpayment on the basis that the employees in question acted in good faith. This is not a recommendation that the overpayments be set aside because there is no entitlement to the payments under the proper interpretation of the Award.
2. NSW Ambulance consented to the dispute being resolved as follows: 1. NSW Ambulance completes its audit of the amounts of overtime overpaid to employees based on claims of extension of shift overtime and advises the affected employees of the outcome of this audit; 2. NSW Ambulance, the HSU and the affected employees engage in discussions to arrange a reasonable repayment plan with respect to the overpayments identified by NSW Ambulance; and 3. If those discussions do not result in a repayment plan being agreed, in respect of any specific employee, within 28 days of notification to affected employees under (i), the parties have liberty to apply for the matter to be re-listed.
3. NSW Ambulance submits there is nothing about the circumstances which would warrant the Commission making a recommendation that the alleged overpayments be set aside if the HSU's argument is not accepted. I do not agree. I understand that NSW Ambulance has a responsibility in respect of the proper expenditure and recovery of public funds. However I consider there are particular circumstances in this matter that warrant the exercise of discretion to not press for recovery of the payments to the affected employees.
4. NSW Ambulance noted Mr Fisher's evidence that extended overtime has been claimed based on his interpretation of the Award and advice given by him to other members and if he is not entitled to the payment, he is prepared to repay any monies overpaid and other members of the sub-branch have informed him this is also their view. In my view, this willingness of the affected employees to repay the amounts if their interpretation of the Award is determined to be incorrect supports the HSU's initial submission of good faith.
5. Mr Fisher's evidence is that he formed the firm view that the entitlement to payment at overtime rates is payable until the duties associated with the callout were completed, based on the words of cl. 23(b)(ii). He has 'consistently and earnestly believed' this interpretation is correct. As Vice-President of the sub-branch, he advised members by email 3 April 2013 to claim the overtime and he takes 'full responsibility for approving and issuing' that advice. The meaning of the clause has been the subject of dispute between the parties and not inconsiderable submissions and evidence before this Commission. In my view, while Mr Fisher's interpretation has ultimately been found to be incorrect, it cannot be said to be fanciful or completely lacking in substance.
6. The overpayment is of limited extent. Mr McKenna's evidence is that the practice of claiming the overtime is restricted to the affected officers at Evans Head and potentially at a few other stations around New South Wales. Mr Fisher's evidence is that the occurrence of claims is infrequent and payments of this nature make up a very small sum in the context of the affected employee's overall remuneration. Mr McKenna provides a total indicative figure for the period June 2015 to April 2017 of $5,765.35. While this figure would increase once an audit is completed for the preceding period back to April 2013, it remains a small amount of overpayment.
7. Importantly, NSW Ambulance made the payments for an extended period. Mr Fisher stated that he started claiming overtime rates for time worked on callouts that extended beyond normal commencement time approximately 3 years ago. He has personally claimed the overtime without dispute since that time. His timesheets were reviewed by management each fortnight and previous and current payment systems allowed the payment to be made.
8. While denying that the payment systems were designed to recognise these payments as an entitlement, Mr McKenna acknowledged it was conceivable that under the previous and current payroll system, wrongfully claimed overtime rates were paid from time to time due to administrative oversights by either the Station Manager or the Duty Operations Manager approving the timesheet in question. He noted that New South Wales Ambulance is reviewing its current payroll processes to prevent the system making the overtime payment in the future.
9. I also note the evidence of Mr Fisher that his email of 3 April 2013 stating his interpretation and intention to act in accordance with that interpretation, was copied to Glen Eady who was at that time Duty Operations Manager. There is no evidence that Mr Eady, or any member of management, objected to Mr Fisher's interpretation or issued him with an instruction not to claim the payment and to cease providing incorrect advice to members. It was not until 20 April 2016 that a memorandum was issued to all paramedics in the Northern Zone that the interpretation was incorrect, and affected employees should make arrangements to repay the moneys.
10. In an industrial dispute the Commission is not restricted to considering the relief sought by the parties, but may deal with the dispute as it sees fit within the powers available under the Act, and specifically under s.136: Act, s.136(2); Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) (2005) 146 IR 388 at [36]-[37]. The Commission is expressly required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: Act, s.163(1)(c).
11. No action was taken by NSW Ambulance to cease the payment of these amounts for a period of approximately 3 years. Accordingly, while the employees may be willing to repay, the failure of NSW Ambulance to identify the issue increased the amount of the overpayment for which the employees are liable. If the issue had been identified and rectified promptly by management, I would be inclined to make the recommendation sought by NSW Ambulance. However, in light of the unique circumstances outlined above, I consider waiving the overpayments as being a fair resolution of the dispute.

Orders

1. The notifier's amended application for interpretation pursuant to s.175 of the Act is dismissed.
2. I recommend, pursuant to s.136(1)(a) of the Act, that NSW Ambulance waive the alleged overpayment in respect of the affected employees.
3. If the recommendation is accepted by the parties, the HSU is to file a Notice of Discontinuance within 7 days. JANE SEYMOUR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2017