The Construction of Clause 12(e)(2)
24 The principal issue dividing the parties remains the correct construction of clause 12(e)(2). Given the agreement of the parties that the terms of each of the three Agreements were relevantly identical, only the terms of the 2003 Agreement need presently be referred to.
25 Clause 12 of the present Agreement is, like clauses in other industrial instruments, to be "understood in the light of its industrial context and purpose": Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2], 222 CLR 241 at 246 per Gleeson CJ and McHugh J. Such a provision is to "be read in context" and having regard to "the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it …": [2005] HCA 10 at [30], 222 CLR at 253 per Gummow, Hayne and Heydon JJ.
26 In the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. …
These observations were cited with approval in Amcor Ltd: [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039, 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515, 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512, 176 IR 183 per Jagot J at [82]. The "words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].
27 Adopting this approach, in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84, 152 FCR 18 it was concluded that the term "appeal" as used in a certified agreement did not include a claim for prerogative relief. Nicholson, Jacobson and Lander JJ there reasoned that "(T)he framers could hardly have had in mind that disputes under an agreement which includes matters such as worker safety could be delayed for many years while appeal steps in the Commission are pursued and then followed up by a claim for constitutional writs in the High Court": at [64]. Their Honours previously observed at [53] that "the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement...". Reference was there made by the Full Court to the judgment of Burchett J in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 518. His Honour was there considering a clause in a Metal Industry Award and observed (references omitted):
… The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. … Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. … That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an 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. …
28 It is against this background that clause 12 is to be interpreted.
29 Clause 12 of the 2003 Agreement in its entirety provides as follows:
12. SATURDAY, SUNDAY AND HOLIDAY WORK
(a) Saturday Work
The rate of pay for all Monday to Friday employees for all Saturday work will be double time. Weekend rostered employees will be paid at the rate of time and one half for the first four hours and double time there after.
(b) Sunday Work
The rate for all Sunday work will be double time.
(c) Recognised Holidays
The recognised holidays will be - New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Queen's Birthday, Easter Tuesday, Christmas Day and Boxing Day, or any day observed by the public in New South Wales in lieu thereof, together with all other days gazetted from time to time as public holidays which are observed generally by the public in NSW.
(d) Transfer of Recognised Holidays
Agreement may be reached between the Company and the majority of employees affected at the Mine to observe any holiday on a day other than the day prescribed. In such case the day agreed will become the holiday for the purposes of this Agreement and the actual holiday will be an ordinary working day.
(e) Payment
(1) Qualifying. An employee not required to work on a recognised holiday who, without a Doctors Certificate or the express permission of the manager, fails to work on the employee's last working day immediately before a recognised holiday or the employee's first working day after such holiday will not be entitled to payment for such holiday.
(2) Employees not required to work. An employee not required to work on a recognised holiday and who qualified will be paid for that day at the employee's rostered hours at single time.
(3) Employees required to work a Public Holiday will be paid double time for all hours worked up to normal shift length. All hours worked beyond the normal shift length on the public holiday only will be paid at triple the ordinary rate of pay.
(f) Rostered Days Off Falling On A Holiday
Where an RDO falls on a Public Holiday the RDO will be reallocated to another day. Such arrangements will be agreed between the parties.
Also of potential relevance to the interpretation of clause 12 are the following definitions in clause 2, namely:
In this Agreement except where otherwise indicated :
…
2.12 "Non working day" means any day on which an employee by virtue of the employee's roster is never rostered to attend for rostered hours of work.
2.13 "Rostered day off" means any day on which an employee by virtue of the employee's roster
is not rostered to attend for rostered hours of work and does not include non working days.
30 The learned Industrial Magistrate construed clause 12(e)(2) as referring to those employees who were rostered to work on a public holiday but who were not required by their employer to work on such a day. In doing so he relevantly concluded as follows:
… In those circumstances, I find that the normal and ordinary meaning to be applied to the words "not required to work" as they appear in Clause 12(e)(2) of the Agreement, to mean that in relation to employees who would otherwise be rostered to perform rostered hours of work on a public holiday, the employer may elect to not require an employee to attend for work in which case they are to be paid at single time pursuant to (e)(2), or the employer may require the employee to attend for work notwithstanding the fact that it is a public holiday, in which case the employee must work but is to receive the additional penalty rates found in (e)(3). In my view, the provisions of Clause (e)(2) and (3) have no work to do and were not intended to provide a benefit to an employee in circumstances where the public holiday falls on a "non-working day" as defined in Clause 2 of the Agreement.
31 Clearly enough, clause 12 is susceptible to competing constructions - those competing constructions arising in large part from the fact that there is no definition within the Agreement as to the phrases "not required to work" or "required to work".
32 Notwithstanding that difficulty, it is considered that the correct construction of these phrases may be resolved by reference to the objective sought to be achieved by clause 12 construed in the context of the entirety of the Agreement of which it is but a part.
33 The objective of clause 12 is simple enough. It is aimed at prescribing the rates at which employees are to be paid for work on Saturday, Sunday and recognised holidays. Clauses 12(a) and (b) deal with work on Saturday and Sunday; clauses 12(c) to (f) deal with work on a "recognised holiday". The concern of clause 12 is relevantly twofold - it recognises that a holiday is a day when an employee would ordinarily have the benefit of a day off without loss of pay and, also, the clause recognises that an employee who is required to work on a "recognised holiday" is to receive the payment set forth in clause 12(e)(2).
34 An employee who is not rostered to work on a Saturday or Sunday or a public holiday thus has the benefit of not having to work on any of those days and suffers no loss of pay. An employee who is rostered to work on a "recognised holiday", but who is not required to work, equally has the benefit of not having to work and receives the payment set forth in clause 12(e)(2). Such an employee suffers no detriment by not being required to work on a day upon which he was rostered to work. An employee who is required to work receives payment at the rate prescribed by clause 12(e)(3). It is not considered to be any part of the function of clause 12 to confer a benefit upon any employee who is not rostered to work on "recognised holiday" and who does not work. To conclude otherwise would be to embrace a conclusion which would confer upon an employee who is not rostered to work on a "recognised holiday" an entitlement to not work on any of those days and also an entitlement to be paid. Such a conclusion, with respect to the Appellant Union, is not consistent with the either the terms of clause 12 itself or the purpose that that clause serves in the Agreement as a whole.
35 Limited support for such a conclusion is also gleaned from clause 12(f). That provision directs attention to those circumstances where a "rostered day off" falls on a day which is otherwise a holiday. Such ambiguity as may arise from a possible difference between a "holiday" and a "Public Holiday" may be left to one side. Although clause 12(c) defines what is to constitute a "Recognised Holiday", no distinction (it should be noted) was sought to be drawn in submissions as between a "recognised holiday" or a "public holiday". Having defined that which constitutes a "recognised holiday", clause 12(d) permits agreement to be reached to identify a day as a holiday in lieu of an actual holiday.
36 The significance of clause 12(f) is that, embraced within the objective sought to be achieved by clause 12, is the objective of ensuring that those employees who have a rostered day off are not to be disadvantaged if that day coincides with a holiday. Such employees are to have their entitlement to a rostered day off allocated to another day. They are not to be disadvantaged by having a rostered day off coincide with a day upon which they would otherwise not be required to work because the day is a designated public holiday.
37 Within the confined context of clause 12, it is thus the case that that clause itself exposes a difference between an employee who is "not required to work" on a recognised holiday and an employee who has a "rostered day off" which falls on a public holiday. If the reference to a requirement to work was not intended by the draftsman to add something to the significance of a rostered day off, clause 12(f) would add little to clause 12(e)(2).
38 This construction of clause 12 confines the objective of clause 12(e)(2) and (3) to identifying the rates at which employees are to be paid in those circumstances where they are rostered to work and where they are either "not required to work" or "required to work". It was no part of the objective of clause 12 to confer any additional benefit to payment on employees who were not rostered to work on a "recognised holiday".
39 Clause 12 - like other provisions of the Agreement - evinces an intention to not deny an employee the benefit they would be entitled to receive but for the occurrence of a "Public Holiday". Clause 12 thus ensures that an employee whose rostered day off coincides with a "Public Holiday …will be reallocated … another day": clause 12(f). A similar drafting intent is evident in clause 16(g). Clause 16 deals with "Annual leave" and clause 16(g) provides as follows:
Recognised Holiday Falling During Period Of Leave
If a recognised holiday falls within an employee's annual leave and is observed on a day which ordinarily would have been a working day for that employee, there will be credited to the employee one day, being an ordinary working day paid at ordinary rates, for each such recognised holiday.
Again the drafting intent is to direct attention to the consequences of a recognised holiday coinciding with a day upon which an employee is otherwise entitled to a day off and to ensure that the employee is credited with another day in lieu. The same comment may be made in relation to clause 15(e), being a clause in relation to the coincidence of holidays during the period of an employee's "long service leave".
40 There is no evident intent to confer any such benefit upon an employee not rostered to work - such as would be the effect of accepting the alternative construction being urged by the Appellant Union.
41 Clause 12 is thus to be construed as relevantly achieving two objectives, namely:
· to prescribe the rate of pay where an employee is rostered to perform work on a "recognised holiday" and in fact "required to work" on that day; and
· to ensure that an employee does not lose "having a day off" where his rostered day off coincides with a public holiday.
Clause 12(e)(2) is not to be construed as conferring an entitlement upon all employees, including employees who were otherwise not rostered to work.
42 This construction of clause 12 is not only considered to be supported by the terms of clause 12 itself and by the use of the same terminology as used elsewhere in the Agreement, it is also considered to be a construction which gives effect to the Agreement.
43 To so construe clause 12 is not considered to be impermissibly approaching the construction of the clause or the Agreement "to give effect to some anteriorly derived notion of what would be fair".
44 In further support for this construction of clause 12, the Respondent also relied upon the evolution of the Agreements and the manner in which they had been negotiated.
45 It was to this subject matter that the second part of the Respondent's Notice of Contention was directed. That part of the Notice sought to challenge the conclusion of the Chief Industrial Magistrate as to the "assistance" that may be gleaned when interpreting clause 12 from the evolution of the three Agreements and the negotiations involved. Although this part of the Notice of Contention was less specific than the Respondent's challenge to jurisdiction, presumably the Notice sought to focus attention upon the following conclusions of the Chief Industrial Magistrate:
[18] The Respondent relies upon evidence that the Respondent has acted upon its construction of the Clause during the whole of the period that the three Certified Agreements have been in place, and that it was only relatively recently that the Applicant raised the issue. In my view, such evidence is, in isolation, of no assistance to the Court. The evidence provided by the parties concerning the process of negotiation of each of the three Certified Agreements referred to, reveals that neither party saw any difficulty with the wording of Clause 12 (or its predecessor clauses) at any stage when the three Certified Agreements were the subject of a negotiation process. If a document is so drafted as to provide two possible meanings, a delay in the raising of the issue for interpretation does not of itself favour one competing construction over the other. It might be relevant to the question of the intention of the parties at the time the agreement was reached, but this is of little assistance when the evidence is clear that the issue was not picked up by either party or debated at any stage during the negotiations in question.
The Notice of Contention refers to the "ongoing operation of clause 12" being of "no assistance", but what was intended to be conveyed by "ongoing operation" was perhaps less than self-evident.
46 Such reliance as is sought to be placed by the Respondent upon the manner in which clause 12 had previously been construed and applied, together with the absence of any intention on the part of the Union negotiators involved in the 2003 Agreement to depart from the relevant provision in the earlier Agreements, is considered to be equivocal and certainly not as fatal to the Appellant's case as the Respondent would contend. Prior to the June 2005 memorandum, the claimed entitlement of the employees had simply not been a matter that attracted consideration. If clause 12 upon its proper construction bore the meaning now being advanced by the Appellant Union, the fact that that entitlement had not previously been enforced would not deny the ability to have the entitlement now paid. At best, that prior history lends limited support to the Respondent's construction of clause 12.
47 More certain support for the construction of clause 12 being advanced by the Respondent, however, may be found in the evidence of Mr Small, a member of the Appellant Union and a person on the negotiating team for all three of the Agreements in issue. Mr Small was taken in cross-examination to the June 2005 memorandum and thereafter asked his understanding of entitlement to payment in the case of Christmas. The following exchange occurred (without alteration):
Q. In a circumstance for example then, when Christmas Day falls on a Saturday and it's gazetted then the following Tuesday as well. You've conceded that you would have been - you would receive a public holiday - a public holiday on the Tuesday, correct?
A. Mm
…
Q. I am asking that you don't serious suggest that you should also be paid for Christmas day on a Saturday, do you?
A. If you're not - I don't know how you - you're not working it are you - you're not - you're a Monday to Friday worker so why would I.
Q. Because you are getting it on a Tuesday, its observed isn't it?
A. Yeah, that's yeah. True.
Q. It's a ludicrous suggestion to say you should also be paid for it on a Saturday?
A. You only get paid once, wouldn't you?
The construction being advanced by the Respondent is thus consistent with both what is considered to be the natural meaning of the words employed in clause 12 and, for present purposes, consistent with the understanding of those involved in its drafting. It is not without significance to note that the Appellant Union did not press that part of the Ground of Appeal which contended that the construction embraced by the Chief Industrial Magistrate was:
"d) contrary to the meaning intended by the framers of the clause in the context of the relevant industry; and
e) contrary to the evident purpose of the clause."