Federated Municipal and Shire Council Employees' Union of Australia, NSW Division v Wellington Shire Council

The parties to the award are committed to co-operating positively to increase the structural efficiency of Local Government and to provide employees with access to more fulfilling, varied and better paid work by providing measures to, for instance, * Establish skill related career paths, * eliminate impediments to multi-skilling * broaden the range of tasks which a worker may be required to perform, * achieve greater flexibility in workplace practices, and * eliminate discrimination.

SAFEGUARDS AND UNDERTAKINGS In his submissions, Mr Gibson stressed the extent of the safeguards provided for employees and in particular for those relating to the Hours of Work clause: * monitoring by Commission, * review of Leave Reserved clause, * industry award restructuring committee, * final resort to an industrial tribunal T34 in the event of non agreement. The following undertakings were given in relation to the new award: * No employee will suffer a reduction in pay as a result of the implementation of this award.

• Decisions arising from State Wage Cases and other economic adjustments shall apply to each employees; salary rate set within the framework of the award. This shall not override any existing agreements; which are contrary to this undertaking.

• Employees on incremental scales will not be disadvantaged where councils have no training plan in operation, unless the employee chooses not to undertake training, consistent with councils training plan.

• Employees in regular receipt of penalty and shift rates shall not suffer a reduction in their regular income as a result of the new hours clause. * Any change in hours of work for new or vacant positions or payment for those hours will be referred to the Consultative Committee for recommendation to council prior to advertising. [Emphasis added] 58 The Hours Clause (then clause 9) was of specific concern, commented upon by her Honour from page 24 of her Reasons for Judgment, followed by pronunciation relevant to the role and conduct of consultative committees:

HOURS OF WORK The Hours of Work clause had earlier provided the sticking point for MEU members at a time when all parties believed negotiations for the new award had been successfully concluded. Conferences before the Commission on 18 October 1991 had resulted in a recommendation that eventually overcame the impasse. However, it was stressed in these proceedings that if either council or the employee(s) wished to change the hours of work presently applying, such agreement needed to be genuine with no compulsion to agree.

The Hours of Work clause is designed to allow council and employees flexibility in setting hours of work by agreement. Work can be performed up to 12 hours per day Monday to Friday. Work can also be performed outside of the Monday to Friday spread of hours, i.e. on Saturdays and/or Sundays by agreement between management and the employee(s) concerned. The new award provides options as to how hours of work may be arranged, although, alternatively a different arrangement of hours may be agreed upon by management and the employees concerned. Hours can be arranged over one week, two weeks, three weeks, or four weeks with provision for a minimum number of days off. Employees will continue to work the same number of ordinary hours under the new award as they did under the previous awards i.e. 35 or 38 ordinary hours. The new award recognises all existing arrangements of hours as having satisfied the requirements for agreement to work a different arrangement of hours, including those outside the Monday to Friday spread. Existing hours of work shall continue to apply unless there is agreement to do otherwise. Agreements as to changes in hours/working arrangements of hours will need to be referred to the Consultative Committee for recommendation to the council. At any stage of discussions either the employee(s) or council may seek assistance from the appropriate union or association. If no agreement can be reached on either the spread or arrangement of hours then the matter can be referred to the Industry Award Restructuring Committee. If still no agreement can be reached the matter can be referred to the appropriate industrial tribunal. Any change in hours of work for new or vacant positions or payment for those hours will be referred to the Consultative Committee for recommendation to council prior to advertising.

The Industrial (Relations) Commission of New South Wales will monitor the operation of the Hours of Work clause with report backs on a regular basis for at least 18 months with liberty to seek relisting speedily in respect of any problems. The parties have agreed that the Leave Reserved clause will provide that the Hours of Work clause will be reviewed at the expiration of 6 months from the date of operation. CONSULTATIVE COMMITTEES The council must establish a Consultative Committee to provide a forum for consultation between council and its employees in order to co-operate positively in the implementation of award restructuring and to ensure workplace reform to enhance the efficiency and productivity of the council and to provide employees with access to career opportunities and more fulfilling, varied and better paid work. The functions of the Consultative Committee may include, but not be limited to: * The current position of the council on the restructure process * Commitment to equal employment opportunity principles * New work function descriptions * Organisation structure * Personnel policies and practices and employment arrangements * Work and management practices * Skills audit and job analysis * Council competency standards for progression within the skills-based award * Multi-skilling opportunities * New career paths within the terms of the skills-based award * Council agreements The Consultative Committee is an advisory body to council. It does not have power to make decisions but operates by making recommendations to the council or to management where that is appropriate. 59 It is relevant to note that the Hours of Work clause found in the 1992 Award by consent of the parties is in terms recommended by her Honour Glynn J in conciliation proceedings. The relevant comments are found at page 5 of a recommendation published by her Honour in matter 743 of 1991 on 18 October 1991, in the following terms: That clause, in my view, allows the flexibility sought by the LGSA and by the employees to be achieved in a co-operative fashion and, at the same time, safeguards the interests of all concerned. I am also of the view that there should be a leave reserved provision added in respect of that clause that provides that the parties will review the operation of Clause 9 - Hours of Work at the expiration of six months from the date of operation.

The parties are directed to confer further as to appropriate guarantees in line, with the spirit of the discussions that took place in the Commission on 15 October 1991.

On that last point the Commission is prepared to monitor the situation with report backs on a :regular basis for at least eighteen months, with the understanding that any urgent or unexpected problems that arose would be speedily brought before the Commission. 60 Her Honour's recommendation became Clause 9, Hours of the 1992 Award (272 IG at 706), with the undertaking by Mr Gibson in transcript and restated in the Reasons for Judgement published 25 May 1992 that any agreement to alter the spread or arrangement of hours pursuant to the award must be genuine and without duress. The 1992 Award was varied with effect from 27 May 1993 to add clauses 16 to 21 (281 IG at 497). None of those variations went to the Hours clause. 61 The 1992 Award as varied was replaced by the Local Government (State) Award (289 IG 276) ('the 1995 Award'), made by consent of the parties without change to the Hours clause other than its placement at clause 14 thereof (289 IG at 296). 62 The 1995 award was subsequently overtaken by the 1997 award made by consent of the parties. In this award the Hours clause appears as clause 12 (305 IG at 1194). The only change to the Hours clause compared to that found in the 1992 and 1995 awards is the inclusion on the face of the award of the undertaking formerly found in transcript and the Reasons for Judgement published by her Honour. The undertaking is inserted as sub-clause (vii) of Part A and sub-clause (v) of Part B. 63 There are minor changes to sequence and numbering of sub-clauses which are not of significance in this matter, and the addition of the words "and or payment for" in sub-clauses A(iii), (iv) and (vii) found emphasised above. 64 The implementation of the 1992 award was subject to a concerted co-operative effort by the parties at industry level. A joint publication was produced by the LGSA, the MEU, the Health and Building Surveyors' Association of NSW, the Local Government Engineers' Association of NSW, and the Local Government Clerks' Association of NSW. This publication formed the basis of communication to councils throughout New South Wales and is used as a continuing reference material. Book 4 of the four book set is titled "Structure of the New Award", a copy of which is found as attachment 9 to the affidavit of evidence of Mr Gibson (exhibit 6). 65 This publication provides an explanation of the flexibility of hours provision in the following terms: Unless it has previously been the practice to work broken shifts, for example, cleaning, then the work would be carried out in one continuous period per day. All employees will be entitled to an unpaid meal-break of at least 30 minutes within the first five hours of continuous work. A paid meal-break not exceeding 20 minutes shall be given and taken after a further five hours continuous work. This means that any employee who works ordinary hours of 10 hours or more continuously shall be entitled to an additional 20 minutes pay.

The parties have agreed that employees who are in regular receipt of penalty rates and/or shift allowances shall not suffer a reduction in their regular income as a result of the new hours clause. If an employee is in receipt of a penalty rate or shift allowance then the council may choose to incorporate that rate in the employee's rate of pay and transfer the employee to the correct band and level at that rate.

If council chooses to incorporate the penalty and/or shift rate in the normal rate of pay then the employee should be advised accordingly and the matter referred to the consultative committee. Alternatively, council in recognition of market forces and the need to attract employees to work the agreed hours may continue to pay some form of penalty rate or shift allowance.

The flexibility of the hours of work clause can provide benefits for both employees and council. For example, in country areas, employees may be required to camp on the job. Traditionally, these employees have worked eight hours per day Monday to Friday. With the new hours clause employees and council can benefit from a working day of up to 12 hours. The benefits to the employees in such an arrangement is that they complete their working week in three or four days, resulting in increased leisure time. The benefits to council include the maximum utilisation of plant and equipment and the ability for the council to be more competitive. This increases productivity and efficiency with the result that the council is better off and ratepayers are receiving more value for their rates.

Local Government is a service industry and those services must reflect the needs of the community. The flexible working arrangements allows employees and the council to reach agreements which can meet those community expectations. Agreement may be reached, for example, to keep council offices open for longer hours each day or to coincide with late night shopping or weekends. This could enable rates to be paid, building and development applications to be lodged, building inspections to be conducted on weekends, at times which better suit the community. Employees may wish to take time off at less traditional times when recreational or other facilities are not as crowded.

(Emphasis added) 66 The evidence of Mr Robertson is that he has been Secretary of the Environmental Health and Building Surveyors' Association of New South Wales (EHBSA) for over 16 years and in that capacity participated directly as the EHBSA principle negotiator in the establishment of the 1992 Award. 67 Mr Robertson deposed that in those negotiations the LGSA were seeking to provide for an open span of hours which was met with varying degrees of reluctance. Mr Robertson deposed that, so far as the EHBSA was concerned, they were enthusiastic about providing flexibility because he saw opportunities for members to work in different ways that would suit themselves and the Council. . 68 Mr Robertson noted that this came about in the context of the implementation of the structural efficiency principles introduced in the State Wage Case 1989 ((1989) 30 IR 107) and the establishment of a role for the consultative committee. Mr Robertson deposed that his understanding is that the reference to the consultative committee was a communications process which, amongst other things, would give the union an opportunity to derail any proposal if it was so minded. 69 Mr Robertson testified that in his view the relevant provisions of the 1992 award did not operate so as to impose upon a council a need to reach agreement in respect to payment for a particular spread of hours, only that the process was to be referred to the consultative committee. 70 Mr Robertson gave an example of building surveyors who work a four day week, Wednesday, Thursday, Friday and Saturday, with no penalty payment for Saturday, adding (at page 128 of transcript): "I suppose inherent in that is some sort of penalty because you'd be getting five days work in four days - five days pay for four days work. But it seemed that that would be the sort of flexibility where you could - there would be clear benefits to the Council, as well as advantages to the employee. I actually used it to try and sell the award both prior - in the process of working it up and at the time when we had meetings to accept or reject the proposal ." 71 Mr Harris is the General Secretary of the MEU, a position he has held since 2 November 1998, having previously occupied various positions with the MEU from 1966. In addition to evidence of record Mr Harris gave evidence of internal discussion and some dissension within the MEU concerning the Hours clause. Mr Harris was not then a direct participant in the negotiations. Mr Harris deposed that Mr Hodges, then a principal representative of the MEU, could not recall events and accordingly was not called to give evidence. 72 I regard this evidence as unnecessary, extraneous material in the circumstances of this matter, the proceedings of record before her Honour being of sufficient detail and substance so as to require no further examination of that issue. 73 A further aspect of the evidence of Mr Harris goes to the operation and implementation of the Hours clause in which he deposes that: "The MEU has at no time accepted that the provisions of the award contemplate the payment of no reward for weekend work."

74 The relevant evidence of Mr Harris is found at paragraphs 32 and 33 of his affidavit (exhibit 3) in the following terms: 32. Since the ratification of the State Award in October 1997 the Award has been the subject of a statutory review pursuant to section 19 of the Industrial Relations Act 1996, being proceedings IRC 782 of 1999. During these proceedings the MEU raised concerns with the Commission regarding the operation of council agreements. The amended clause, which is now clause 31, makes it clear that hours of work are an appropriate subject for the negotiation of a council agreement and can be referred to the Industrial Relations Commission for review.

33. A range of council agreements and other arrangements for the incorporation of penalty rates have been negotiated by the MEU during the terms of the 1992, 1995 and 1997 Awards. I am not aware of any situations where councils argued that the Award meant that no payment at all would be made for weekend work. In practice council agreements have been the principal Award mechanism whereby councils, employees and Union(s) have regulated the payment of penalties under the State Award. Examples of some of these arrangements are identified below:

(1) Ashfield Council 1999 Rangers Agreement This document is attached hereto and marked with the letter "H". The agreement identifies a Monday to Sunday roster together with an all purpose salary rate and salary range recognising both skills and performance.

(2) Auburn Council Agreement: Auburn Botanic Gardens, April 1998 This agreement, attached hereto and marked with the letter "I" implements the seven day roster incorporating one weekend in every four weeks. Shifts and hours of work are identified at clause 8 of the agreement. Employees are remunerated by way of a $90.00 a week allowance paid in addition to council's salary system. Full rosters are published at appendix "A" of the agreement.

(3) Bankstown City Council Rangers Agreement, May 1999 This document is attached hereto and marked with the letter "J" regulates weekend work consisting of 36 hours per week including not more than two Sundays and four Saturdays over an eight week period. The agreement identifies an incorporated rate of pay together with performance bonus arrangements.

(4) Bathurst Olympic Pool Council Agreement, October 1997 This document is attached hereto and marked with the letter "K" was negotiated between the MEU and council with the assistance of the LGSA following a dispute listed before Commissioner Connor regarding the stripping of penalty rates for new employees at the Bathurst Pool. The agreement recognises a Monday to Sunday spread and incorporates a flexibility allowance paid in lieu of penalties.

(5) Bathurst Hall of Fame Council Agreement, September 1997 This document is attached hereto and marked with the letter "L" implements a seven day spread for a range of employees at the Bathurst Hall of Fame. As with the Olympic Pool Agreement implements a flexibility allowance.

(6) Coffs Harbour City Council International Sports Stadium Council Agreement July 2000 This document is attached hereto and marked with the letter "M". This agreement implements a range of workplace reforms including a seven day spread of hours incorporating a 15% loading in lieu of penalty rates of pay.

(7) Kiama Council Waste Management Services Agreement, July 1997 This document is attached hereto and marked with the letter "N". This agreement specifically deals with the Gerroa Waste and Recycling-Centres. It allows for a Monday to Sunday spread of hours incorporating a 10% loading as a penalty factor for working Saturdays, Sundays and public holidays.

(8) Leichhardt Council Ordinance Inspector's Agreement, July 1998 This document is attached hereto and marked with the letter "O". This agreement implements a range of workplace reforms including a seven day spread of hours incorporating 15% loading to compensate for weekend work. Rosters require staff to work one weekend in each three week period.

(9) The Orange City Council Cook Park Agreement This document is attached hereto and marked with the letter "P". This agreement implements a number of workplace reforms including a requirement to work on every second weekend as part of a normal roster. While the work is of a seasonal nature a 15% increase in aggregate payment of hours worked on the weekend is provided.

(10) Warringah Council: The Kimbriki Centre Workplace Agreement, February 1994 This document is attached hereto and marked with the letter "O". This agreement implements a Monday to Sunday spread of hours that includes a penalty factor applicable to all time worked being 10%. Employees are to work no more than fifty two days on a weekend in twelve month period (that is one weekend per fortnight).

(11) Warringah Council: Beach Services Agreement, July 1997 This document is attached hereto and marked with the letter "R". This agreement allows for a Monday to Sunday spread and penalty rates to be paid for weekend work dependent on the number of full weekends worked per roster, A loading has been calculated as 15% for staff working two full weekends per four week roster and 17.5% for staff working an alternating roster that requires staff to work seven weekends in twelve. 75 Mr Harris deposes that the removal of any weekend penalty for work on Saturday or Sunday is contrary to appropriate practice within the Local Government industry and that the MEU holds genuine concerns that, should Wellington Council succeed in establishing a unilateral right to the employer to remove penalty conditions for new and vacant positions, this would adversely affect relations between employees and councils throughout New South Wales.

76 In addition to his evidence of record detailing the events before Glynn J found in his affidavit of evidence (exhibit 6), Mr Gibson puts two further affidavits. Exhibit 7 is an affidavit sworn by Mr Gibson which details the identity of union and LGSA officers involved in award negotiations arriving at the 1992, 1995 and 1997 Awards. Exhibit 8 is a collection of correspondence directed to Mr Gibson from the councils identified by Mr Harris as having come to an agreement. 77 The information detailed in exhibit 8 reveals that the agreements entered were developed with existing employees, in some cases with the intent of covering existing and future employees. The information found in exhibit 8 is that no penalty is applied to Saturday and Sunday work at the Bathurst Regional Art Gallery, the Orange Visitor Information Centre and Art Gallery, and Orange Road Rehabilitation and Mechanical Patching Agreement; and that the arrangements made in respect to the Bathurst National Motor Racing Museum (Hall of Fame) no longer apply. SUBMISSIONS 78 Mr Searle relied upon the evidence advanced to support his submission that clause 12, Hours, of the 1997 Award does not empower employers, in this case Wellington Council, to require employees to work on a Saturday or Sunday without some form of weekend penalty payment or flexibility allowance. 79 Mr Searle canvassed the agreements detailed in the evidence of Mr Harris as conclusive of the intent and application of the relevant award provisions. 80 Mr Searle submitted that clause 12 of the 1997 Award is in simple and straightforward language and, read as a whole, prescribes that which is permissible in the issue of spread of hours. 81 Mr Searle argued that clause 12, read as a whole, refers to all employees whether they be current or future employees; and that item 7, dealing with new or vacant positions cannot properly be taken to be a provision allowing contracting out of the primary requirements of clause 12, but is properly read as an additional safeguard. 82 Mr Searle described the operation of the clause at page 159 of transcript in the following terms: "The way it is submitted that the award clause should be read, is that in relation to changing the spread of hours for an employee in an existing position, it is clear in placitum 4 that there must be an agreement and that the agreement should be referred to the Consultative Committee for the recommendation to council. And then after the Consultative Committee has made that recommendation, obviously, the council makes the final decision.

In relation to a new or vacant position, the procedure would be this, that the matter should be referred to the Consultative Committee prior to advertising that position, as provided for in placitum 7, and that after the Consultative Committee had considered the matter and had made a recommendation to the council and the council then makes a decision about whether or not to advertise - when that position has been advertised and filled, the procedure envisaged in placitum 4 should also be followed through. So it is, if you like, a dual process. It does not invite the situation that I think my friend averred to yesterday, of councils being obliged to negotiate with people who may, in theory, become council employees at some future point, but rather, it does require, it is submitted, them to consult with people who are becoming council employees.

So, it is submitted that that is the appropriate reading and meaning of that clause of the award and it is one that sits most comfortably with industrial principle." 83 Mr Searle put that the alternative would be that persons seeking to enter a new or vacant position would merely accept or reject that which was on offer from the employer. Mr Searle submitted that this would create an unfair and untenable position when viewed in circumstances of restructure or re-organisation, which he noted is a continuing aspect of local government. 84 Mr Searle put that where a position was found to be redundant or redesigned with a new position resulting in existing employees then being faced with what he described as a fairly stark choice of taking the "new job" with no payment for weekend work, or ceasing employment. Mr Searle put that such an approach left persons entering employment or subject to redeployment with no protection as to their rights; a proposition so far removed from industrial principle, fairness, or equity that it cannot be accepted as the intention of the parties or the Commission in the making of a consent award. 85 In dealing with the role and function of the consultative committee, Mr Searle went to the ordinary meaning of "recommendation" to ground his argument, relying upon the Macquarie Dictionary meaning (tendered for reference) of: "A representation in favour of a person or thing" 86 Mr Searle submitted that for the award to function the consultation in the committee must be meaningful in that the employer must give a serious and proper consideration to the views of the consultative committee, even where the employer does not agree with those views. 87 Mr Searle relied upon the evidence of Mr Dray, which reveals that the Wellington Council Consultative Committee did not make a recommendation in the matters here subject to dispute. Mr Searle submitted that advertisement of the position by Council in the absence of a recommendation by the consultative committee is a breach of the award by Council. 88 Mr Searle further submitted that the Council was in breach of the requirement of clause 12A (vi) and clause 12B(iv)(c) which require: " any agreement to alter the spread of hours as provided in this subclause must be genuine, with no compulsion to agree." 89 Mr Searle went to the Macquarie Dictionary definitions of "agreement", "compulsion" and "genuine", and to Stroud's Judicial Dictionary of Words and Phrases Volume 1(a) to (c) in respect to the definition of "undue influence", which he put is equated to coercion which is equivalent to compulsion. 90 Mr Searle took me to particular definitions of undue influence found in Stroud's at pages 161 and 162 of transcript, emphasising the following: "The expression undue influence need not connote any wrong doing on the part of the party benefiting from a transaction but may be found to have been exerted once a special relationship has been found to exist." … … "Undue influence may be defined for this purpose as the unconscientious use by one person of a power possessed by him over another. A party to a transaction though consenting to it, may not give a free consent because he is exposed to such influence from the other party as to deprive him of the free use of his judgment. In such a case equity will set the transaction aside." … … "The expression undue influence is to my mind, one of ambiguous purport. It is not confined to those cases in which influence is exerted to secure a benefit for the person exercising it, but extends also to cases in which a person of imperfect judgment is placed or places himself under the direction of one possessing not only greater experience, but also such force." … … "In the second class of cases, the Court interferes not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy and to prevent relations which existed between the parties and the influence arising from them being abused in circumstances where proof of the actual exercise of undue influence may be difficult if not impossible to establish." 91 Mr Searle poses the issues in the following terms:

"The question is, is it reasonable to assume that people would give up their weekends and enter into such agreements to do so for no additional benefit or reward and it is submitted that it is not. In relation to Mr Cubby, he was in a position of economic vulnerability, he was on a limited term traineeship and we have heard the evidence of how important financial security was to him… …"

That raises the question of whether, as a matter of industrial principle, this is consistent with considerations of fairness and equity. It could also lead to situations of people working side by side in the same line of work where some people are receiving a reward for giving up their weekends and their family and social life to a decree and others who are not, which of course could lead to some feelings of ill will amongst co-workers." 92 Mr Searle submitted that the evidence of Mr Harris of the agreements struck with various councils is a demonstration of the intent and meaning of the parties to the award. Mr Searle submitted that the award did not enable the parties to depart from the principle that giving up weekends is worth something, although that value may be negotiated and may vary in quantum and form, though did not descend to a nil value. 93 Mr Searle further submitted that in the respondent's position the award allowed a series of individual agreements which could undermine collectivism in the local government sector which, given the award was made by consent of the union, could not be taken to be the intent of the parties. 94 Mr Hodgkinson put that the award had been developed at an industry level with supervision and assistance of this Commission; and if the award has a capacity to undermine collective representation of employees, that arises as a consequence of the 1992 agreement expressed as the 1992 consent award and subsequent consent awards not capable of change in proceedings of the instant nature; and is irrelevant to the current proceedings. 95 Mr Hodgkinson put that the real position of the MEU in these proceedings has not been the resolution of a particular dispute but the rewriting of the award, without meeting the legislative requirements for award variation, to express the preference of current MEU officials. 96 Mr Hodgkinson submitted that the evidence of Mr Harris concerning the making of the award is irrelevant in that Mr Harris took no part in the process leading to the 1992 award. 97 Mr Hodgkinson noted that the principle negotiator for the MEU in the process leading to the 1992 award was Mr Colin Hodges, who was not called, and in respect to whom Mr Harris deposed that on interview for these proceedings was found to have an almost complete loss of memory in respect to the matters. 98 Mr Hodgkinson submitted that the evidence of Mr Robertson and Mr Gibson, who were direct negotiators, is to be preferred. Mr Hodgkinson submitted that the evidence of Mr Robertson and Mr Gibson is that the parties set out to treat differently people in existing positions from those who were new or vacant positions. 99 Mr Hodgkinson notes the breakdown in the negotiating process and the resolution by acceptance of a recommendation put by her Honour Glynn J. Mr Hodgkinson relied upon the comments of her Honour to support his description of the relevant provisions of the 1992 award as a move away from restrictive award provisions to facilitative provisions, which he put was consistent with the then structural efficiency principle. 100 Mr Hodgkinson put that for existing employees the award provides authority for entering agreement with existing employees to alter their spread of hours within the span of each day and beyond Monday to Friday; that agreement once reached must then be referred to the consultative committee for its recommendation. 101 Mr Hodgkinson put that the agreements found in the evidence of Mr Harris are all agreements with existing employees made in the manner prescribed. 102 Mr Hodgkinson further submitted that on the authorities the fact of these agreements are not available, admissible or relevant to the interpretation issue as they occur after the award was made. 103 In dealing with new and vacant positions Mr Hodgkinson rejected the two tiered process of negotiations advanced by Mr Searle as inconsistent and unworkable. 104 Mr Hodgkinson submitted that if the undertakings in the 1992 and 1995 awards, now clause 12A(c) and 12B(d) of the 1997 award, were read to require agreement with future employees, no council would be able to advertise a position on known conditions. 105 Mr Hodgkinson put that the notion that the horticulturalist position, for example, be advertised and post-selection council be required to obtain agreement from the successful applicant, now an existing employee, would be an unworkable nonsense. Mr Hodgkinson put that the position was advertised on the known terms and conditions which attracted Mr Cubby's interest; and, on offer to him, his acceptance. 106 Mr Hodgkinson put that the comments of Glynn J. surrounding her recommendation on hours, and in making the award, reveal in clear terms the intention that applicants for new and vacant positions would be treated differently to employees in existing positions. Mr Hodgkinson put that employees have always held the right to offer over award terms and conditions to attract applicants, in this case with reference to the consultative committee. In this regard Mr Hodgkinson noted the evidence of Mr Robertson that this mechanism provided an opportunity for the union to take action if opposed to the proposal. 107 Mr Hodgkinson submitted that it is not proper to elevate the consultative committee to the extent advanced by Mr Searle as to do so would allow lack of a recommendation of a consultative committee to bind a council to inactivity. 108 In addressing the instant matter, Mr Hodgkinson submitted that the consultative committee had the opportunity to consider the relevant positions prior to advertisement and decided that it chose not to make a recommendation but to limit its response to an expression of concern. 109 Mr Hodgkinson further submitted that the relevant award provision has, in substantive form, been in place since 1992; renewed with minor amendment by consent of the parties in 1995 and 1997; and accordingly there had been ample opportunity for the MEU to address any problems, which it had not. 110 Mr Hodgkinson submitted that the argument going to employees displaced in a restructure should be put aside as it does not arise in this matter. 111 Mr Hodgkinson put that the positions subject to this dispute are new and vacant positions, noting that the Japanese Gardens have been specifically developed by the Council as a tourist attraction, necessitating seven day operations with a significant importance on Saturday and Sunday operations. 112 Mr Hodgkinson put that in these circumstances the Council has undertaken a legitimate exercise of right, clearly confirmed by the award, to determine the hours to suit the operation and appropriately referred that arrangement to the consultative committee prior to advertisement. 113 Mr Hodgkinson submitted that Mr Cubby and two other applicants were well aware of the terms of employment offered and pursued appointment, and that neither of the other two applicants have expressed any difficulty or opposition nor been called to give evidence. 114 In addressing the issue of the meaning of the word "coercion" Mr Hodgkinson referred me to a recent judgement of Gyles J in the Federal Court of Australia in the matter of Finance Sector Union of Australia v Commonwealth Bank of Australia ([2000] FCA 1468) in which it is held that coercion has to be in the nature of an improper or illegal act. Mr Hodgkinson put that the Council could not be regarded as having acting improperly or illegally in this matter. 115 Mr Hodgkinson further submitted that if the proposition of coercion advanced by Mr Searle were accepted, each and every offer of employment could be regarded as coercive, which he put is unsustainable. 116 In addressing the instant matter Mr Hodgkinson put that Mr Cubby was keen to obtain permanent employment and, by the virtue of the facilitative nature of clause 12 of the award, arrangements were made which allow Mr Cubby to meet both his desires of completing his apprenticeship within the framework of a full time permanent position, which without the award flexibility may not have been open to him. 117 In dealing with the literal meaning of relevant terms as advanced by Mr Searle, Mr Hodgkinson noted that the dictionary definitions relied upon became circular in that Mr Searle arrived at "undue influence" via "coercion", and on examination of "undue influence" is sent back to "coercion. Mr Hodgkinson put that the difficulty with the definitions from Stroud's is that they come from probate and family law where the concepts and issues are of a different nature to that found in the industrial jurisdiction. 118 Mr Searle and Mr Hodgkinson expanded upon the principles of interpretation, referring me to: Australian Municipal, Administrative, Clerical and Services Union v The Treasurer (Cth) ((1998) 80 IR 345), a decision of Marshall J in the Federal Court of Australia; Bryce and Another v Apperly ((1998) 82 IR 448), a judgement of the Full Bench of the Commission in Court Session, Hungerford, Marks and Schmidt JJ; Printing and Kindred Industries Union and Another v Davies Bros Ltd ((1986) 18 IR 443), a judgement of Gray J in the Federal Court of Australia; and Short v F W Hercus Pty Ltd ((1933) 40 FCR 511). 119 In referring to the judgment of Gray J in Davies Bros Mr Hodgkinson went to the following passage at page 451: "In the absence of evidence of the subjective intention of those who acted on behalf of the union in drawing it, it is possible only to speculate as to what the union might have been desiring to achieve. Such speculation would not assist in the construction of the agreement. The fact is that whatever considerations might have motivated the respondent to commence negotiating with the union the two parties eventually entered into the SEM Agreement in its present form and they must be regarded as having intended to agree in that form and their common intention must be judged from the document itself and not from evidence of what the representatives of one party intended to achieve." 120 Mr Hodgkinson went also to the judgment of Marshall J (80 IR 345) to demonstrate the divergent approach to consideration of extrinsic material in award interpretation. In particular, Mr Hodgkinson took me to page 346 where his Honour said: "The more generous and recent approach relating to construction of awards allows recourse to extrinsic material without requiring threshold ambiguity tests to be met. The generous approach is most fully expounded in the compelling judgment of Burchett J sitting as a Member of the Full Court."

and later, dealing with the issue of subsequent conduct and award interpretation, determines the following: "This issue related to whether it is permissible to have regard to the conduct of parties subsequent to the making of the award. In my view, the overwhelming weight of authority supports the proposition that it is impermissible to have regard to such subsequent conduct." 121 Mr Hodgkinson put that this determination reduces the evidence of Mr Harris so far as the subsequent agreements are concerned. 122 The principles of interpretation are conveniently and succinctly set out by their Honours Hungerford, Marks and Schmidt in Apperly (82 IR at 452) in the following terms. "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." Indeed, after referring with approval to what was said by Street J in Geo A Bond & Co Ltd (In Liq ), as recited earlier, French J cautioned as follows in City of Wanneroo v Holmes (1989) 30 IR 362 at 379: "It is of course no part of the court's task to assign a meaning in order that the award may provide what the court thinks is appropriate - Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co Pty Ltd v Howarth [1960] AR (NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J)." … … … …The seeming dilemma and rationale for the proper approach to the construction of an industrial award was, with respect, cogently dealt with by Olney J in Norwest Beef Industries Ltd v Australian Meat Industry Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 in this way: "If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning, (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd , 30 WAIG 539, at 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said: 'It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties.' In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless." The approach there stated, with which we agree, is consistent with that applied to the construction of instruments generally, such as in statutory construction. For instance, in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Mason J, as he then was, and Wilson J made the following comment at 321: "Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended." 123 Mr Hodgkinson relied on the principles of interpretation determined by Burchett J in Hercus in advancing his submission that the relevant hours clause is that provided by the recommendation of her Honour Glynn J's and does not allow the consideration of extraneous material. Mr Hodgkinson submitted that the rationale of Hercus allows examination of the context, including time and circumstances under which the instrument is made, with an emphasis on the immediate context, which he put is that described in the proceedings before her Honour, detailed in the transcript of those proceedings and the judgment published. 124 Mr Hodgkinson put that the dispute is completely resolved by interpretation of the award which he put emphasises the Council has a specific right in respect to new and vacant positions and that there is no capacity to impose additional terms of employment where a council has exercised its right pursuant to the award. 125 Mr Hodgkinson went to the evidence of Mr Cubby which he submits is not a claim for additional payment, but an expression of inconvenience associated with weekend work, which Mr Hodgkinson put Mr Cubby was well aware of when he applied for and accepted the job. Mr Hodgkinson noted that Mr Cubby's strong desire to obtain a permanent position was his primary motivation. Mr Hodgkinson put that the other persons who had been offered and accepted the restructured positions involving weekend work without additional penalty did not give evidence or make any specific claim. 126 Mr Searle denied that the MEU was seeking to change an award present management did not like. Mr Searle relied on the evidence of Mr Harris that the meaning and application of the award was presented at the time of acceptance and consent to it to be something other than now proposed by the Council. Mr Searle put this succinctly at page 183 of transcript in the following terms: "The whole of this award was based on mutual trust. The consultative committee was meant to be a forum where issues would be aired and where there would be fruitful discussion prior to decisions being made. That is, the union and its members had to trust that the employer would take seriously what they had to say and on the other hand the employer had to trust that the processes of the consultative committee would not be abused and therefore the consultative committee wouldn't seek to unfairly adjourn matters in order to deprive the Council of the ability to proceed." CONSIDERATION 127 Management of Wellington Shire Council have advertised two positions in the Japanese Gardens and one position in the water treatment plant on the basis of a Monday to Sunday spread of hours, and propose a roster which requires employees to work each alternate Saturday and Sunday as ordinary hours with time off on two other days during the week. Council contend that clause 12 of the Local Government (State) Award (1997) permits this arrangement and that they have complied with the consultative requirements specified therein. 128 The MEU contends that the award does not permit the unilateral action by Council to introduce an arrangement; and that the council has not complied with the consultative obligations imposed by the award. 129 There is no dispute between the parties that agreement is required between the Council and employees in respect to existing positions. There is some conjecture between them whether agreement with employees in existing positions also requires agreement with the MEU. 130 In order to resolve the industrial dispute it is necessary to interpret clause 12 of the Award, which I proceed to do pursuant to s175 of the Act. 131 I agree with the submissions of Mr Searle that the clause must be read as a whole, and find that it is not open to separate clause 12A (vii) or sub clause B (v) dealing with new or vacant positions for isolated application. 132 I come to the view that the terms of clause 12, Hours of work of the 1997 Award are clear and unambiguous on their terms. Sub clause A, Spread of hours and sub clause B, Arrangement of hours contain within them facilitative provisions which allow alteration of hours to meet the needs of a particular council by agreement with existing employees, with specific provision for representation of those employees by a registered industrial organisation if they so require. In any event, an agreement between an existing employee and a council must be referred to the consultative committee, which, among other aspects, is a means of informing union representatives of the agreement. In the absence of consensus, the parties, or any one of them, may invoke the dispute settlement procedure prescribed by Clause 24 of the 1997 Award. 133 In my view the award is not capable of being read to allow an unfettered right to management to unilaterally opt out of award provisions, in particular the provision of clause 12A(i) without consultation, agreement or resolution of a dispute concerning such matter pursuant to the grievance and dispute handling procedure. 134 I do not accept the assertion by Mr Searle that the Council must negotiate with persons as existing employees once they are engaged in new or vacant positions. Council must be able to advertise positions on known and certain conditions which are properly established in accordance with the consultative committee process or by the grievance and dispute resolution process. 135 I do not accept the submission of Mr Hodgkinson that councils risk being bound to inactivity by procrastination of a consultative committee as the grievance and dispute settlement procedure is equally available to a council as it is to a union. 136 This interpretation of the award is supported by the history as detailed in the evidence of record. This evidence supports the ultimate submission of Mr Searle, which I restate:

"The whole of this award was based on mutual trust. The consultative committee was meant to be a forum where issues would be aired and where there would be fruitful discussion prior to decisions being made. That is, the union and its members had to trust that the employer would take seriously what they had to say and on the other hand the employer had to trust that the processes of the consultative committee would not be abused and therefore the consultative committee wouldn't seek to unfairly adjourn matters in order to deprive the Council of the ability to proceed." 137 I do not accept that the parties set out to treat existing employees and the circumstances of new and vacant positions differently. The award, in my view, recognises that change may be necessary and appropriate and puts in place a facilitative mechanism to achieve such change. The basis of the mechanism is communication and negotiation between the parties as demonstrated in the negotiation and consensus with assistance in conciliation which brought the award into existence. 138 The particular provision of clause 12 recognises and provides for the involvement of existing employees in established positions and provides a process through the consultative committee for new and vacant positions. 139 Such interpretation of the award does not elevate the consultative committee to a decision making body. The role of the consultative committee is as an important mechanism of communication, consideration and assessment of opinion for recommendation to council. This process will in the majority of cases, as demonstrated by the evidence of examples presented by Mr Harris, and confirmed by Mr Gibson, produce agreement with mutually satisfactory outcomes. In the event that agreement is not achieved the grievance and dispute settlement procedure remains available. The requirement of clause 12A(v) that assistance may be sought from the appropriate union or association at any stage reinforce this conclusion; as does the requirement of 12A(vi) that agreement be without compulsion. 140 The dispute notification contends that the Council had not achieved consensus through the consultative committee and had not shown why there is a genuine need to alter the spread of hours for the water treatment plant operator, or to implement a spread of hours that is inconsistent with the rest of the organisation. 141 The evidence discloses that the consultative committee has not discharged its obligation of making a recommendation to council. In the first instance criticism of the consultative committee and its members is invited for this failure. An expression of concern does not discharge the obligation of the consultative committee to make a recommendation, whether that be a unanimous recommendation or a minority report containing divergent views. I stop short of this criticism as the evidence shows that the consultative committee was frustrated in the process by the failure of management to provide information sought on shift rosters. 142 I find that the award does not afford Council the right to unilaterally advertise a position with a spread or arrangement of hours inconsistent with clause 12A(i) and/or clause 12B(i) without completion of the consultative process for new and vacant positions. I find that Wellington Council has failed to discharge this obligation and accordingly has acted in a manner inconsistent with the award. 143 I determine that Mr Cubby and Mr Parkes be continued in their employment at the Japanese Gardens and water treatment plant, respectively, and that their hours of work and conditions of employment be subject to negotiation between the Council and the MEU in accordance with the dispute settlement procedure. I note that in the absence of agreement between the parties, the dispute settlement procedure culminates in a notification to the Commission for determination of the matter. 144 Some evidence from Messrs Ramsland, George and Baker went briefly to the question of justification by the Council of a genuine need to alter the spread of hours and implement arrangements inconsistent with the rest of the organisation.

There is evidence that Mr Parkes is required to work on a roster with another employee for whom the spread of hours is Monday to Friday and who accordingly would be paid the prescribed overtime payment for work on a Saturday and Sunday; whilst Mr Cubby is subject to a special arrangement by which he continues to complete his apprenticeship whilst in full time, permanent employment.

These matters, which I consider of relevance and appropriate for consideration in the negotiation process, were not developed during the course of the proceedings, the parties in effect reducing this matter to the dispute between them concerning interpretation and application of the award. 145 In my view it is inappropriate that I determine hours of work and conditions of employment in these proceedings as the issue of award interpretation has frustrated the ordinary course of discussion and negotiation between the parties who, in my view, are obliged to traverse each step of the dispute settlement procedure prior to bringing a matter to the Commission for determination. I note the substantive success of the parties in negotiation and resolution of disputes in accordance with this dispute settlement procedure. 146 I am of the view that I am further restrained in determining the hours and conditions of employment for the positions in these proceedings as the notification filed does not seek such determination, directing itself to the compliance or non compliance by Council with the award obligations. 147 I so determine. 148 Matter No IRC 6637 is so concluded.

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