Bryce v Apperly [2007] NSWIRComm 60 | Case summary

1 These proceedings commenced by way of dispute notification under s 130 of the Industrial Relations Act 1996. Conciliation was attempted albeit unsuccessfully and the NSW Fire Brigade Employees Union now seeks orders in the following terms:- (i) That the respondent be ordered to pay Station Officer Harris the correct entitlement for his annual leave taken between 24 June 2005 and 21 July 2005. (ii) The correct annual leave entitlement is the rate of pay for an Operational Support Level 2 classification in June 2005 in accordance with the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 less annual leave payments already provided to Station Officer Harris for the period between 24 June 2005 and 21 July 2005. (iii) Interest. (iv) Other orders as the Commission sees fit. 2 A statement of agreed facts was tendered in the proceedings and is expressed as follows: (i) The parties to this dispute agree that: a) Between 18 February 2005 and 23 May 2005, Mr James Harris, Station Officer Level 2, was informed by the New South Wales Fire Brigades that his application to work as an Instructor Recruit Training at the Alexandria Training College for a period of up to 6 months had been successful. b) Instructor Recruit Training at the Alexandria Training College is classified as Operational Support, Level 2. c) Station Officer Harris began working as Instructor Recruit Training at the Alexandria Training College on 1 June 2005. d) By virtue of cl. 7.2 of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005, Mr Harris was entitled to be paid, for the period of relief, the difference between his usual rate of pay and the minimum rate of pay for the classification of Operational Support, Level 2. e) Whilst working as Instructor Recruit Training at the Alexandria Training College Mr Harris (as part of his assignment to the Annual Leave Group known as "D8") was directed to take annual leave from 24 June 2005 to 21 July 2005. f) Upon completing his annual leave on 21 July 2005, Mr Harris resumed duty as Instructor Recruit Training at the Alexandria Training College. g) On 16 October 2005, Mr Harris returned to work as a Station Officer at Hurstville Fire Station. h) During the period 24 June 2005 to 21 July 2005, Mr Harris was paid at the rate for Station Officer Level 2 and not at the minimum rate of pay for the classification of Operational Support, Level 2. During that period, the total weekly rate for the classification Station Officer, Level 2 was $1307.20. During that period, the minimum rate of pay for the classification of Operational Support, Level 2 was a total weekly rate of $1402.62. i) Prior to Mr Harris taking his annual leave form 24 June 2005 to 21 July 2005, New South Wales Fire Brigades did not inform him that his annual leave would not be paid at the minimum rate of pay for the classification of Operational Support, Level 2. 3 The dispute raises issues for determination concerning firstly, the proper construction of clause 7, Higher Duties, of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 (the Award); secondly, the proper construction of clause 17, Annual Holidays, of the Award and thirdly, whether and to what extent, the Annual Holidays Act 1944 (the A.H. Act) is applicable to firefighters covered by the Award. 4 As to the first issue, clause 7 Higher Duties of the Award relevantly provides as follows: 7(2) An employee performing higher duties shall be paid, for the period of relief, the difference between the employee's usual rate of pay and the minimum rate of pay for the classification in which the higher duties are performed. 5 As to the second issue, clause 17 Annual Leave of the Award relevantly provides: 17(1) Annual leave to the extent of thirty five consecutive days on full pay shall accrue to each employee in respect of each completed year of service and shall be taken in accordance with the leave roster. 6 As to the third issue, the A.H. Act provides at section 5 (1): The following provisions shall apply in every case where provision is made by an award, agreement or contract of employment for annual holidays or annual leave for any worker: a) where the worker is entitled under such provision to any benefit that is more favourable to the worker than the benefits provided by section 3, section 4 or section 4A, as the case may be, that section shall not apply to the worker b) where the worker is entitled under any such provision to any benefit that is not more favourable to the worker than the benefits provided by section 3, section 4 or section 4A, as the case may be, that section shall apply to the worker and no benefit shall be allowed to the worker under that provision in respect of any period of employment after the commencement of this Act in the case of a benefit not more favourable than that provided by section 3 or section 4 or, after the commencement of the Annual Holidays (Amendment) Act 1967, in the case of a benefit not more favourable than that provided by section 4A.

7 For its part, the FBEU argued that annual leave taken during a period of relieving in a higher duties position should as a matter of law and (consistently with the objects of the IR Act) as a matter of fairness and justice, be paid for at the higher duties rate. The legal basis upon which the FBEU argument rests begins with the award prescription entitling firefighters to annual leave "on full pay" for each completed year of service. 8 The term "full pay" is not defined in the award and the FBEU argued that the definition of "ordinary time rate of pay" in the A.H. Act should apply. That definition, in part, speaks of the rate of pay fixed by reference to ordinary time which would have been worked "if the worker had not been on annual holidays" (see section 2(2) of the A.H. Act) and the FBEU contended, on a proper construction of the A.H. Act that the plain meaning of that phrase would entitle firefighters such as Mr Harris to have their annual leave paid for at the higher rate of pay, if as in Mr Harris' case, the leave was taken during a period of relieving in a higher duties position. In other words, if Mr Harris had not been on annual holidays, he would have been performing higher duties as an Instructor Recruit Training and he would have been paid the allowance prescribed by the Award for performing those higher duties. 9 Whilst I might have considerable doubt that the definition and the broad concept of ordinary pay or ordinary time rate of pay as contained in the A.H. Act would necessarily lend itself to the construction for which the FBEU contended, the question arises whether the A.H. Act has any role to play in determining the rights and entitlements of firefighters covered by their own award and it is this question which must be answered as I am disposed, before consideration can be given to the FBEU argument as to the meaning of the term "ordinary time rate of pay" contained in the A.H. Act. I would also add that the absence in the Award of an express definition of the term "full pay" does not of itself preclude interpretation of the term within its award context and it does not of itself require resort to the A.H. Act for the purpose of interpretation. 10 Ms Anderson for the respondent argued that the terms of section 5 (1) of the A.H. Act apply to exclude the operation of that Act in the case of firefighters. This is because the quantum of annual leave provided to firefighters under the award (i.e. thirty five days for each completed year of service) is a benefit which is more favourable than the benefits provided by the relevant benefit sections of the A.H. Act (see sections 3, 4 and 4A of that Act). 11 As to that, the FBEU submitted that section 5(1) of the A.H. Act only operates to exclude the benefit sections of the Act and leaves open the operation of section 2, Interpretation of the Act which contains among other things, the definition of "ordinary time rate of pay" upon which the FBEU relies. With respect, I cannot see how that would be so given that the interpretation section of the A.H. Act is plainly a facilitative section of the Act designed to give content and meaning to words and phrases used in other sections of the Act including the benefit sections. If the benefit sections are displaced by the more favourable provisions of the firefighters award, it is difficult to see how the interpretation provisions particularly in the case of "ordinary time rate of pay" which is directly referrable to the benefit sections, can still have application beyond the displaced benefit sections. 12 In that regard, I agree with and accept Ms Anderson's submissions that such a construction would not be inconsistent with principles of statutory construction and in particular with the purposive approach to statutory construction ( see section 33 of the Interpretation Act 1987). 13 Turing 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. 14 Further and as Boland, J observed in NSW Fire Brigades Employees Union v NSW Fire Brigades [2003] NSWIRComm 55 to which I was taken, it is necessary to approach the task of interpreting awards in this way: 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. 15 Notwithstanding, as the FBEU correctly submitted, that the term is not expressly defined I am of the view that the Award by its reference to the entitlement to thirty five days annual leave "on full pay" should be interpreted to mean full pay at the rate fixed for the position to which the employee is substantively appointed. That construction seems to me to be consistent and in harmony with the proposition for which the respondent contended namely, that the award entitlement to payment of the higher duties allowance accrues by virtue of clause 7(2) of the Award, from the actual performance of the higher duties. 16 I accept the respondent's contention in that regard and consider it to be a correct interpretation of the award prescription. Having so concluded, it follows that the FBEU's primary application must fail and I dismiss it accordingly. 17 The FBEU submitted in the alternative that the Commission would order that payment for annual leave be calculated on a pro-rata basis having regard to the proportion of a given accrual year - that is, the year in which the annual leave accrues - which is spent in the performance of higher duties. The example given by Mr Bolwell was that of an employee who might work for six months at the rate of $700 per week and six months at the rate of $900 per week. The Commission was invited to order that such an employee would be entitled to have a corresponding proportion of annual leave for that year calculated and paid for at the higher rate. Plainly, to make such an order would be to create an entitlement to higher duties pay during periods of annual leave when the award, as I have interpreted it, creates a contrary entitlement. The alternative claim by the FBEU must therefore be refused. 18 Given however, that the alternative proposal was advanced by the FBEU late in the proceedings and without notice, an opportunity was afforded to Ms Anderson in the interests of exhausting all reasonable avenues of conciliation, to take instructions as to whether the respondent would consent to such an outcome. Whilst no such instructions were forthcoming, the respondent was able to reiterate its earlier stated position that the policy which applied across the public sector could also be applied to firefighters and that is, that payment at the higher duties rate would be made to employees on annual leave who had performed higher duties for a period of twelve months or more. 19 In all the circumstances, I consider such an arrangement, consistent as it is with arrangements across the broader public sector, to have industrial merit and would commend it accordingly. 20 These proceedings are concluded.

Bryce v Apperly

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