Health and Research Employees' Association of New South Wales v Baptist Community Services NSW and ACT

THIRD RESPONDENT Catholic Commission for Employment Relations FILE NUMBER: IRC 7180 of 2001 CORAM: Wright J President Declaratory order - Application for - Award coverage - Award coverage by reference to employer membership of employer organisation - Employer resigns from organisation - Effect on award coverage of employees of that employer - Effect of award review pursuant to s 19 - Effect of making of new award replacing "reviewed" award - Costs.

CATCHWORDS : Declaratory relief - Considerations relevant to granting relief - Discretion - Costs.

Award interpretation - Application for declaratory order - Award coverage - Award coverage by reference to employer membership of employer organisation - Employer resigns from organisation - Effect on award coverage of employees of that employer - Effect of award review pursuant to s 19 - Effect of making of new award replacing "reviewed" award - Costs. LEGISLATION CITED : Conciliation and Arbitration Act 1904 (Cth) s 110 (since repealed) Industrial Relations Act 1996 s 12 s 16(4) s 19 s 154 "A" v Commission for Children and Young People & Anor (2001) 107 IR 211 Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 Bryce v Apperley (1998) 82 IR 448 Cepus v Heggies Transport Pty Limited (1994) 52 IR 123 Charitable Sector Aged Disability Services (State) Award, Re [2000] NSWIRComm 217 Ford v SAS Trustee Corporation (2000) 98 IR 444 Kingmill Australia Pty Ltd T/A Thrifty Car Rental v Federated Clerks' Union of Australia New South Wales Branch (2001) 106 IR 217 CASES CITED : Metal Industry Award 1971 (Part II) - Draftsmen, Production Planners and Technical Officers [1978] Current Review 543 Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 Perisher Blue v Australian Workers' Union (1999) 91 IR 274 Seamen's Union of Australia v Adelaide Steamship Company (1976) 46 FLR 444 Security Officers (Waterfront) Award, Re (1988) 26 IR 7 Short v F W Hercus Pty Limited (1993) 40 FCR 511 State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 Western Sydney Area Health v Gibson (2001) 109 IR 359 HEARING DATES: 02/25/2002 EXTEMPORE JUDGMENT DATE : 02/25/2002

APPLICANT Mr J V Murphy of counsel Mr M Williamson, State Secretary, Health and Research Employees' Association of New South Wales

FIRST RESPONDENT Mr P J Newall of counsel LEGAL REPRESENTATIVES: SECOND RESPONDENT No appearance

THIRD RESPONDENT No appearance

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President

THE HEALTH AND RESEARCH EMPLOYEES' ASSOCIATION OF NEW SOUTH WALES v BAPTIST COMMUNITY SERVICES NSW AND ACT AND OTHERS

Application by The Health and Research Employees' Association of New South Wales for declaratory relief under s 154 of the Industrial Relations Act 1996 JUDGMENT (Extempore) [2002] NSWIRComm 32

1 These proceedings relate to an application by the Health and Research Employees Association of New South Wales (HREA) for declaratory relief. The Baptist Community Services NSW and ACT, is named as the first respondent, the Aged Services Association of NSW and ACT (ASA) as the second respondent, and the Catholic Commission for Employment Relations (CCER) as the third respondent. 2 There has been no appearance on behalf of the second and third respondents. It is therefore assumed that the matter may conveniently be dealt with as between the applicant and the first respondent who will, for convenience, be referred to as the applicant and the respondent. 3 The declaratory orders sought by the applicant are in the following terms which also is the document which is marked Exhibit C.

1. Employees of the Baptist Community Services - NSW and ACT ('BCS') and/or aged or disability care facilities owned or operated by the BCS, who come within clause 49 - Area, Incidence and Duration of the Charitable, Aged and Disability Care Services (State) Award, are entitled to the rates of pay and conditions of employment provided for in that award. 2. The BCS and/or aged or disability care facilities owned or operated by the BCS are bound by the terms of the Charitable, Aged and Disability Care Services (State) Award in relation to employees who come within clause 49 - Area, Incidence and Duration of that award whether or not the BCS is a member of the Aged Services Association of NSW and ACT.

4 The grounds upon which the applicant seeks those orders and particulars of those grounds are to be found in the application filed in the following terms. 1. The Charitable, Aged and Disability Services (State) Award ('CADS Award') was made on 15 June 1999 by His Honour Justice Maidment with the consent of the applicant and the Aged Services Association of NSW and ACT ('ASA') and the Catholic Commission for Employment Relations ('CCER'). 2. At that time the BCS was a member of the ASA and not a member of either the Employers Federation of New South Wales ('EF') nor the Australian Nursing Homes and Extended Care Association (NSW) ('ANHECA'). 3. Clause 49 - Area, Incidence and Duration of the CADS Award provides in subclause (iii) that the award shall apply to all employees employed by the employers that are members of the ASA and/or CCER who come within those classes of employees described in subclauses (iii)(a), (iii)(b) or (iii)(c). 4. Subclause 49(vi)(b) provides that the CADS Award shall not apply to employers who were members of the ASA or the CCER and also members of either the EF or the ANHECA who elected not to be covered by the award, such election to be done by writing to the parties to the award on or before 1 September, 1999. The BCS did not purport to make such an election. 5. The BCS withheld payment of the increased rates of pay in the CADS Award to employees pending the outcome of an appeal against the making of the award by the New South Wales Nurses Association ('NSWNA'). This appeal was ultimately dismissed by a Full Bench of the Commission. 6. Following the dismissal of the appeal by the NSWNA, the BCS took steps to pay employees the rates of pay contained in the CADS award effective from the operative dated of the award, namely 10 November 1998. 7. In February 2001 the BCS advised employees that from 1 January 2001 "BCS left ASA, which means we will no longer be covered by the ASA/HREA (Consent Award)…" From 1 January 2001 the rates of pay for employees reverted to those contained in the Charitable Sector Aged and Disability Care Services (State) Award. 8. Despite its apparent resignation from the ASA, the BCS and/or aged or disability facilities owned or operated by the BCS remain bound by the CADS Award. F. Particulars 1. The BCS was a member of the ASA at the time the CADS award was made, and was bound by that award. 2. The CADS award applies to employers who were members of the ASA at the time of the making of the award. 3. Subclause 49(vi) of the CADS award provided a limited opting out mechanism for members of the ASA who were also members of the EF or the ANHECA. 4. The limited opting and mechanism only remained effective until 1 September, 1999. 5. The BCS was not entitled to utilise the limited opting out provisions. 6. When clause 49 of the CADS award is considered as a whole it is apparent that it would, to a large extent, render the limited opting out provision in subclause 49(vi) inoperative, if any employer bound by the award could opt out of the award simply by resigning from the ASA. 7. A literal reading of clause 49 of the CADS award supports the interpretation that the award applies to employers who were members of the ASA at the time the award was made, and continues to apply to such employers whether or not they remain members of the ASA.

5 The factual circumstances of the matter and the procedural complications which apparently led to the making of the application have been set out in some detail in the material provided by the parties and the parties have agreed, particularly in light of the fact that the grounds of reasons set out in the application have been verified by Mr Michael Williamson, the applicant's General Secretary, that the factual matters set out in those grounds of reasons may be taken to be agreed facts.

6 Similarly, the parties have also agreed that the factual matters set out in the particulars, except to the extent that they raise matters of contention, may also be taken as agreed. 7 It is clear from those matters that the question raised for consideration by the Commission in Court Session when the proceedings were commenced on 5 November 2001 and when, on 29 November 2001 the hearing today was fixed, were issues as to the coverage of the award made by Maidment J on 15 June 1999, which was made at that time by consent of the present applicant and two employer organisations, the ASA and the CCER. 8 As will emerge from factual matters subsequently referred to, the circumstances were complicated by proceedings on appeal by another organisation, the New South Wales Nurses' Association (NSWNA). However, the question for determination is whether, at relevant times, the respondent was bound by that award, notwithstanding that it resigned from the employer organisation of which it was a member in June 1999 at the time of the award's making and by virtue of which membership it was now bound by the award. 9 Before referring to the other agreed factual matters one or two of the factual matters set out earlier should be clarified. Paragraph 2 of the grounds states that the respondent at the time of the making of the award was a member of the ASA but not a member of other employer organisations. As will become clear, the parties have earlier today agreed that at that time, and at subsequent times relevant to these proceedings, the respondent was a member of the Employers' Federation of New South Wales. 10 The second matter relates to the relevant date. I should indicate as to paragraph 7 of the grounds that it is an agreed fact that the respondent ceased to be a member of the ASA from 1 January 2001. 11 The submissions filed on behalf of the applicant also contained other factual matters and the parties appropriately accepted that such matters could be regarded as agreed for the purposes of the proceedings, although one of the matters was the subject of clarification during the course of the proceedings. That matter related to the membership situation of the respondent as to the various employer organisations and the position as finalised during the course of the proceedings is as set out in paragraph 12 of the submissions included in paragraph [12] of these reasons. 12 The additional agreed matters, with the clarifications or changes as to paragraph 12, are set out in the applicant's submissions in the following terms: 1. During 1998/99 The Health and Research Employees Association of New South Wales ("HREA") conducted negotiations with the various employer organisations that had an interest in the Charitable Sector, Aged and Disability Care Services (State) Award ("Common Rule Award"). These organisations were: (a) The Aged Services Association of New South Wales (Industrial) ("ASA"). (b) The Catholic Commission for Employment Relations ("CCER"). (c) The Australian Nursing Homes and Extended Care Association of New South Wales ("ANHECA"). (d) The National Association of Nursing Homes and Private Hospitals ("NANHPH"). (e) The Employers Federation of New South Wales ("EF"). (f) The Chamber of Manufactures of New South Wales (Industrial) ("Chamber"). 2. Ultimately an agreement was reached between HREA and two organisations, ASA and CCER, for the making of a new award which would provide for a radical restructuring of the classification structure in the award which involved the creation of the classification of "Care Service Employee" ("CSE") with five grades. The duties and responsibilities of CSE comprised those previously exercised by a large number of disparate classifications and ranged over three streams; the Care Stream, the Support Stream and the Maintenance Stream. All employees to be covered by the new award would receive wage increases of various amounts but generally in the order of 10%. 3. The remaining employer organisations did not wish to be parties to the new award and did not consent to it covering their members. 4. At this time the Baptist Community Services, NSW and ACT ("BCS") was a member of ASA. 5. The New South Wales Nurses Association ("NSWNA") opposed the making of the award on the grounds that some of the duties and responsibilities of the proposed classification of CSE were properly those of nursing classifications. 6. The vehicle for the making of the new award was an application by HREA for a variation to the Common Rule Award (IRC 98/5969) which came before the Commission (Maidment J) on 3 December 1998. At that stage it had been agreed that the new award would only cover employer members of ASA or CCER and not members of the other employer organisations. Discussions were continuing between the parties on a process whereby employers who were members of either ASA or CCER, and also members of one or more of the other employer bodies, could have an election to be covered by, or be exempt from, the new award. Mr Gee from EF referred to this matter at p.5 of the transcript (annexure "A" hereto). 7. When the matter resumed on 25 February 1999 HREA tendered Exhibit A which was the proposed new award. Clause 48 of Exhibit A exempted from coverage of the proposed new award employers who where members of ASA or CCER and either NANHPH, ANHECA and EF "and who elect not to be covered by this award". Also exempted were two named aged care centres. 8. The hearing of the objection by NSWNA to the making of the new award proceeded on 25 February 1999, 26 February 1999 and 31 May 1999. The only employer organisations that entered appearances on those days were ASA and CCER. 9. During the proceedings on 31 May 1999 the advocate for ASA and CCER tendered Exhibit R which altered the proposed clause 50 - Area, Incidence and Duration of the new award (annexure "B" hereto). The advocate for ASA and CCER explained the proposal in Exhibit R as establishing a mechanism whereby employers who were members of ASA or CCER and also members of either ANHECA or EF would have the "ability to elect whether they wish to be part of this award or to maintain their present coverage under the Charitable Sector Aged and Disability Services (State) Award". It was further explained that two such employers who wished to be exempt from the proposed new award had been identified and that ANHECA and EF wished to have a little more time to attempt to find any other members who wished not to be covered. A period of three months was proposed for such purpose (annexure "C" hereto). 10. Exhibit R was subsequently amended to identify 1 September 1999 as the date by which joint members of either ASA or CCER and ANHECA and/or EF were required to notify in writing to the parties to the proposed award of their election not to be covered by the award (annexure "D" hereto). 11. No other basis for an employer, who was a member of ASA or CCER, to become exempt from the new award was proposed. 12. At that time BCS was a member of ASA and EF and not a member of ANHECA, or any other employer organisation. That position remained at the time of the submissions to the Full Bench of BCS (annexure "F" hereto) [this represents some variation on paragraph 12 in the original document]. 13. On 15 June 1999 Maidment J granted the HREA application and published his reasons (annexure "E" hereto). 14. NSWNA made an application for leave to appeal and an appeal against his Honour's decision. That appeal did not canvass the matter of exemptions of employers from the award. On 14 December 2000 a Full Bench of the Commission dismissed the appeal of the NSWNA. 15. During the proceedings before the Full Bench on 3 July 2000 Mr Newall of counsel appeared for BCS. On 7 July 2000 Mr Newall's written submissions were filed (annexure "F" hereto). Those submissions concede that BCS is "a respondent" to the award made by Maidment J.

It will be noted that six annexures lettered annexures A to F inclusive referred to in the above agreed facts are not reproduced, although some reference will be made to relevant parts of them.

13 The statement of Mr Gee referred to in paragraph 6 of the applicant's document as Annexure A, was in these terms: Just briefly your Honour. The Employers' Federation is aware of and understands the contents of the document Ex 1. We consent to the application as it is before the Commission subject to an agreed process to finalise the exemptions clause, being cl 48 of the Area Incidents ( sic ) and Duration clause, being cl 56. That agreed process has been discussed between ourselves, the ASA and HREA and ought to be finalised in the next few weeks. 14 Annexure B refers to a document tendered during the proceedings before Maidment J on 31 May 1999 which became Exhibit R. That document was in the following terms: Delete clause 48 - Exemptions. Insert a new sub-clause 50(iv), and renumber the current sub-clause 50(iv), as follows: (iv) This award shall not apply to: (a) Novices, aspirants or persons who have taken the vows of religious orders. (b) Employers who are members of the employer organisations that are party to this award who elect not to be covered by this award. (c) Employers who are members of the employer organisations that are party to this award and either the Employers' Federation of New South Wales of the Australian Nursing Homes and Extended Carer Association (NSW), who elect not to be covered by this award. These include: The Don Geddes Catalina Memorial Residential Aged Care Centre, 171 Dorrington Road, RATHMINE NSW 2283 Macquarie Shores Residential Aged Care Centre, 12 The Ridgeway, BOULTON POINT NSW 2283 (d) For the purposes of this clause, an employer who elects not to be covered by this award shall do so by writing to the parties to this award to advise them of the election, on or before ______________________. In such cases this award shall be deemed never to have applied and the Charitable Sector Aged care & Disability Services (State) Award (281 IG 1011) shall continue to apply. (v) This award shall take effect on and from the beginning of the first, full pay period to commence on or after __________________________________, and shall have a nominal term of 24 months. Insert a new sub-clause 49(ii): (ii) Area and Incidence of the award, insofar as it describes employer to who the award does not apply.

15 Annexure C, which is referred to towards the foot of paragraph 9, includes a two paragraph statement by Mr Liggins, the advocate for the ASA in the proceedings before Maidment J, and that part of the transcript is in the following terms: LIGGINS: The significant change here your Honour is (iv)(d) and also (v). The intention is we have some members as to the Catholic Commission for Employment Relations who are also members of either the Australian Nursing Homes and Extended Care Association or the Employers Federation. We have attempted to allow those organisations with joint membership the ability to elect whether they wish to be part of this award or to maintain their present coverage under the Charitable Sector Aged and Disability Service (State) Award. For the past ten months both of those other employer organisations have been aware it was our intention to automatically cover all of our members and the Catholic Commission for Employment Relations members under this award unless they identify any particular facility or organisation being a joint member wishes not to be covered. During that time they have identified two organisations which are included in this and the previous version of this clause. Those two employer organisations wish to have a little more time to attempt to find any members jointly who wish not to be covered, they have asked us to extend the time frame available to identify if any other organisations who wish not to be party to that award. For that purpose the applicant parties being ourselves, the Catholic Commission for Employment Relations and HREA agree that with your Honour's permission that we be allowed to take out to a three month period to identify any further organisations. But as I have said, they have been aware of this for the past ten months, they have had a copy of the award application, it went through and they have not, at this stage, identified any others. They just don't want to be tied in case there are. That is the change.

16 So far as annexure D, which is referred to in paragraph 10, is concerned, there were two relevant changes. The first, as paragraph 10 indicates, was that a relevant date was inserted in the last part of sub cl 48(iv), being 1 September 1999, and paragraph (b) of that sub clause was omitted and the former paragraphs (c) and (d) were relettered accordingly; although, on one view, the new paragraph (b) involved in a practical sense a removal of the previous apparent overlap between paragraphs (b) and (c). 17 As to annexure E to the document referred to in paragraph 13 of paragraph [12] above, it is common ground that there is no particular part of his Honour's decision which bears on this particular issue. It is sufficient to note that the issues in contention between the parties and the intervening NSWNA related to matters quite different to the issues in these proceedings and indeed the part of the Area, Incidence and Duration provision cited in his Honour's judgment understandably, therefore, does not set out the exemptions and related provisions important for present purposes. His Honour prefaced the relevant part of his decision with these words: "Leaving aside certain exemptions which are not presently relevant the proposed Award would contain the following provisions as to its scope."

18 The last annexure is annexure F which is the three page submission of counsel appearing for the respondent in the proceedings before the Full Bench. In order to place it in an appropriate context reference will be made to it again after some other aspects of those proceedings are noted. 19 The NSWNA lodged an appeal from the decision of Maidment J. A copy of the relevant Notice of Appeal was marked as an exhibit in these proceedings. It makes clear that the issues raised related to the appropriateness of the Commission having made an award which did not maintain a distinction which the appellant in the proceedings, the NSWNA, submitted had hitherto been found in awards in the relevant part of the industry. That is, a distinction between the work of HREA members and members of the NSWNA. The question of employer respondency to the award did not figure at all in the Notice of Appeal. 20 On 14 April 2000 the Full Bench issued a statement and made directions to the parties by providing to them a document entitled "Statement and Directions of the Full Bench". In the Statement the Full Bench advised that it had concluded that appellable error had been demonstrated in the matter and that leave should be granted. However, the Full Bench indicated that it may be appropriate to determine the appeal by varying the award made at first instance so that an interim award otherwise in similar terms might be initially made pursuant to s 16(4) of the Industrial Relations Act 1996. It accordingly directed the parties to confer in respect of arrangements appropriate in the future as to: (a) award respondency; and (b) union coverage in the area of the coverage of this Award.

21 Since the respondent has relied on certain parts of that Statement, including its first paragraph, to submit that the issue of award respondency, in a sense relevant for the present proceedings, was referred to in it, it may be appropriate here to set out the Court's conclusions on that aspect. 22 Although it is not necessary to set out the whole of the Statement a consideration of it reveals that the concern of the Full Bench of the Commission was closely associated with the concerns of, and the reasons for, the appellant lodging its appeal. That is, the question of de facto exclusion of an apparently hitherto effective union from an area arguably within its coverage whilst, on the other hand, emphasising the importance of "the desirable objectives of giving appropriate weight to consent arrangements and the resulting prospects for workplace reform." That quotation is taken from paragraph 8 of the Full Bench's Statement. The whole of that paragraph is in the following terms: The interim award approach raised for the parties' consideration and the associated proposals for consultation as to award respondency, union coverage, etc may represent an appropriate balance between, on the one hand, the desirable objectives of giving appropriate weight to consent arrangements and the resulting prospects for workplace reform and, on the other hand, the importance of ensuring that any changes in award respondency and union coverage , only occur after appropriate consultation and, in the absence of agreement or, in the case of contest, by orderly use of the processes of the Commission. (emphasis added) 23 When the reference to award respondency in the first paragraph of the Statement is considered in the context of the overall Statement, and particularly in relation to what is said in paragraph 8, noting the phrases "award respondency" and, "union coverage" in the clause "ensuring that any changes in "award respondency and union coverage" are referring to approximately the same notion, it is to be seen that the reference to respondency is not a reference to employer respondency to the award made by Maidment J but rather to union respondency to the award and union coverage of persons under the award. 24 That then is the context in which the submissions of counsel for the present respondent (annexure F referred to earlier) are to be seen. They were to be seen in a situation where the issue of employer respondency was not a major issue in the appeal (or perhaps, more correctly was not an issue at all), although the effect of the appeal had raised some questions as to the time frame for the "opting out" provision which had been included in the original scope provision of the award. 25 This had led to the present respondent seeking to safeguard its position in the appeal proceedings and it did so by a submission which included the following: 3. The Award as made by Maidment J, [included] within Clause 49, Area, Incidence and Duration, a subclause (iv)(b) in the following terms: 'for the purposes of this clause, an employer who elects not to be covered by this award shall do so by writing to the parties to this award to advise them of the election, on or before the first of September 1999. In such cases this award shall be deemed never to have applied and the Charitable Sector Aged and Disability Care Services (State) Award (281 IG 1011) shall continue to apply.' 4. That clause was, of course, inserted by consent. BCS considered its position at the time that the consent award was made. BCS decided at that time not to make an election not to be covered as provided for in Cl 49(iv)(b). That decision was essentially arrived at on the basis that the consent award was a single union award made by consent. BCS has previously been respondent to the existing Charitable Sector Award (281 IG 1011) which was a single-union award to which the Health and Research Employees' Association ('HAREA') was the union party and was content to be respondent to the new award on the same basis. 5. Has BCS been aware that the consent award was to be, or could be, an award to which the NSWNA and HAREA were both union parties, it would have taken a different view. 6. In BCS' submission it is both fair and appropriate that if the consent award is now to be made anew, sub-clause 49(iv)(b) should appear with a date which permits, as the consent award did when it was made, prospective parties to the award a short period in which to exercise the option to make an election not to be covered by the new award. Such a clause was an important aspect of the consent award as it was made, and had the consent of the employers and of HAREA. It was not, as BCS understands it, the subject of any criticism on appeal. There is no basis to departs from the approach taken by Maidment J in the making of the award as to that aspect of it. 7. Clause 49 should be contained within any new or remade award, as it demonstrably reflects the intentions of the parties to the consent award. However, to make the award anew, or amended, but leave the date of 1 September 1999 in Clause 49, would be to make an award clause without any utility at all. That would, it is submitted, not be an appropriate use of the award-making powers. … 9. If the award is altered by the addition of the NSWNA as a party, and a fresh date permitting parties to exercise an option not to be bound is not inserted, that will have the effect that employers are obliged to be respondent to an award of a kind which they never understood it to be when they declined to exercise their option in Cl 49(iv)(b) at the time. It is submitted that that is not an appropriate course for the exercise of the Commission's powers to make consent awards. … 11. If the Commission were not minded to include in any new award a Clause 49 with a fresh date in subclause (iv)(b), BCS submits that BCS, at least, having made these submissions, should be afforded a window of opportunity to make an election of the kind permitted by the consent award.

(It should be noted that there are other ingredients of the BCS's submissions which have been omitted from the foregoing extracts. It seems, however, that what has been extracted sufficiently sets out the gravamen of them). 26 There were subsequent proceedings before the Full Bench and, on 14 December 2000, the Full Bench issued its final decision in which, because of certain developments (again not relevant to the present proceedings), had led it to determine to revoke the grant of leave and to dismiss the appeal. See Re Charitable Sector Aged Disability Services (State) Award [2000] NSWIRComm 217 at [8], where the Full Bench said: There were two intervening events that should be noted at this juncture. First, as part of the consent arrangements before Maidment J, Cl 49, Area, Incidence and Duration, of the award had permitted exemption from it to any employer who had made an election to that effect in writing prior to Wednesday, 1 September 1999. That time frame has, of course, now been exceeded by the appeal process and the exemption has become redundant. The position of Baptist Community Services in the appeal proceedings was to preserve that right of election in the event of an interim award now being made (ie 28 days from the date that any such new interim award comes into effect). For reasons we shall shortly outline, it is not necessary to further consider that matter. (emphasis added)

27 This statement by the Full Bench confirms the view I have independently reached as to the significance of the respondent's submissions in the proceedings. That is, they were to reserve its position in case there was a material alteration in the award qua union respondency in which case it might seek to reconsider its own respondency situation. 28 As earlier observed, it seems reasonably clear that when these proceedings were commenced last year and, indeed, when the hearing of the proceedings commenced today, both parties considered that the issue between them related to the terms of the award as made by Maidment J in June 1999. It was only when the Court raised some concerns in determining the matter whether it was sufficient to have before it, in terms of the relevant award, only the particular clause, that is cl 49, the Area, Incidence and Duration provision, that the parties were obliged to investigate a related question. That is, whether the award had been published in the Industrial Gazette. They then obtained a copy of the whole document so that it might be tendered before the Court. 29 These inquiries led to the discovery of a much more complex situation. For example, it indicated that not only had the relevant award been published in the Industrial Gazette at (1999) 315 NSWIG 1302 but that the award had been varied by Glynn J on 14 July 1999; see (1999) 315 NSWIG 1497 and that two subsequent awards had been made which successively rescinded and replaced the 1999 award. The first of those awards was made by Grayson DP on 18 May and 8 August 2001; see (2001) 330 NSWIG 1023. 30 The award made by Grayson DP arose from an award review pursuant to s 19 of the Industrial Relations Act, and although the award was expressed to be made under s 19 and its term as to duration was as set out as follows in cl 49 (i): 49. AREA, INCIDENCE AND DURATION (i) This award was made following a review under s 19 of the Industiral Relations Act 1996. It shall take effect on and from 18 May 2001 and shall have a nominal term of twelve months;

the relevant Area, Incidence and Duration clause was otherwise in relevant respects unaltered so that it included the previous opting or electing out provision with the cut off date of 1 September 1999 preserved, although that date had well passed. 31 The second subsequent award, or at least an HREA print thereof, was tendered and became Exhibit N. It has apparently not been published in the Industrial Gazette. It was made by Commissioner Neal in October 2001, with effect from 26 October 2001. 32 The time frame covered by the award is set out in sub cl (v) of clause 51 Area, Incidence and Duration in the following terms: (v) This award shall rescind and replace the Charitable, Aged and Disability Care Services (State) Award made on 18 May 2001 (unpublished) and all variations thereof. This award shall take effect on 26 October 2001 but by administrative action will commence from the beginning of the first pay period on or after 1 July 2001, and shall have a nominal term till 30 June 2003. Otherwise the only alteration material for present purposes is the omission of the "elect out" or "opt out" provision previously found in sub cl (iv) of the clause. 33 Before referring in some further detail to the submissions of the parties, it is necessary to make certain observations. It is clear that there is an underlying difference between the parties in this matter relating to award coverage of what appears to be a significant number of employees concerning a major employer in this sector of the welfare industry in this State. They are circumstances which could, in other contexts, be reasonably described as an industrial dispute or circumstances which illustrate the existence of an industrial dispute including a likely or probable dispute. That situation, particularly when considered with the greater or additional complexity in the matter which emerged during the hearing today, raises some real doubts as to the overall utility of a declaration or declarations being made in these proceedings. 34 An overall appreciation of the factual circumstances of the matter also tends to indicate that the proceedings have amongst their purposes (and by that reference it is not suggested in any way the purpose would be extraneous or collateral), should the applicant be successful in obtaining a declaration, that it would provide a basis for recovery of award wages for members of the applicant. 35 As to the question of the utility of declaratory relief, it is well established that the grant of declaratory relief is discretionary and that one of the important principles governing the exercise of the discretion to grant declaratory relief is or relates to the utility of doing so. See, for example, statements of principle in the learned texts such as Young, O'Leary and Hogan Supreme Court Civil Procedure - New South Wales, Second Edition 1987, at page 120 and Young Declaratory Orders, Second Edition 1984, pages 46, 62 and 74. 36 An example given in the texts is by reference to the judgment in High Court in Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 where it had been said that that where the claim was for a declaration as to a breach of contract for sale of land, it may be of limited utility to make a declaration where it may become necessary to finalise the litigation by further orders such as an order for specific performance or an award of damages. 37 It may be accepted that for present purposes the use of declaratory relief has now become such, including in this jurisdiction, that such considerations may no longer be seen to be entirely compelling so as to be crucial matters in the exercise of discretion. See, for example, the judgments of the Court Session in Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126 - 127; Ford v SAS Trustee Corporation (2000) 98 IR 444 at 476; State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 at [20]; "A" v Commission for Children and Young People & Anor (2001) 107 IR 211 at [8] (on appeal) and Western Sydney Area Health v Gibson (2001) 109 IR 359.

38 The other discretionary consideration is raised by the judgment of Northrop J of the Federal Court entitled Re Metal Industry Award 1971 (Part II) - Draftsmen, Production Planners & Technical Officers [1978] Current Review 543. His Honour there expressed doubts as to the jurisdiction of the Federal Court to grant an application for interpretation of an award pursuant to s 110 of the Conciliation and Arbitration Act 1904 (Cth) because the proceedings were, in fact, proceedings for recovery of wages under an award. His Honour also expressed doubts as to the appropriateness, in those circumstances, of the exercise of discretion to make the order. Accepting that there were considerations in that case which are not applicable here, namely certain constitutional considerations of the power of a Federal Court to grant relief and associated questions, nevertheless, the matters raised by his Honour are matters which I consider also go to the question of utility and discretion. 39 Such matters were raised with counsel during the course of proceedings, although it should be noted, not by reference to the texts or cases referred to. Counsel, although appreciating the concerns of the Court, and although not unanimous on the key issues in the case, were unanimous on a number of matters. It is appropriate to interpose here to record the approach appropriately taken by both parties to ensure that where there was no real issue between the parties as to the facts before the Court and that the facts were in a conveniently agreed form. 40 As noted earlier, the parties were significantly at issue on a number of questions to be determined. They, however, were ad idem that it would not be appropriate for the Court to find that the utility of declaratory relief would be limited or that the Court should exercise its discretion not to deal with the proceedings. 41 Although it is fair to say the respondent's submission in that respect did not detract from its primary submission that the application was not made out and that one of the appropriate ways of dealing with that situation was to dismiss the application, as I understand the respondent's submissions, it equally says that if it was successful that might result in a declaration re-formulated in a way which embodied the approach it submits should be taken in these proceedings. 42 It seems to me that the circumstances as they have unfolded today do leave the Court in somewhat of a dilemma. There must be doubts as to the utility of declaratory relief in finally resolving all of the issues between the parties. On the other hand, the authorities in this jurisdiction speak of the practical usefulness (although different phrases are used) of declaratory relief in assisting parties in industrial situations to resolve their differences. The conclusion I have therefore reached is as follows. 43 I consider that there are some areas in which fairly firm conclusions can be reached and there are others where because of the way in which the issues have evolved today I would have some hesitancy in expressing a final conclusion. In those circumstances, the Court should deal with the matter to the extent it considers appropriate and then invite short further submissions as to a number of areas, including whether declaratory relief in a final sense should be made. 44 I am conscious that the parties have taken a certain stance on the question of costs and consistent with that would be an attempt to ensure that any further costs in the matter are limited. It seems to me that what further needs to be done may possibly be done by short further written submissions, although of course it would be open to either party to request a further hearing if it considered its interests would be best served in that way. 45 Before I express my conclusions I should refer to the question of costs. As there is some doubt as to the parties' respective position on the question of costs, the Court raised the issue with the parties and pointed to the interconnection between the proceedings and the industrial rights of the respective parties and their members. The earlier proceedings before the Full Bench were pursuant to the arbitral or industrial jurisdiction of the Commission and other avenues which were available, or may arguably have been available, for these questions to be dealt with, are in areas of the Commission's jurisdiction where there was either no or very limited power to award costs. 46 These considerations were raised with the parties in the context of whether an issue of principle or of practice was raised by the proceedings as to whether it would be appropriate or inappropriate for the Commission to consider costs issues in proceedings which could be truly said to be intimately related to its industrial or arbitral jurisdiction or whether such considerations were relevant to the exercise of the discretion to award costs. 47 In response to those considerations, the applicant made clear that it had not sought, and did not seek, a costs order should it be successful in the proceedings. The respondent's view was that it had accepted that in proceedings such as the present it was open to the Court to take such "industrial" considerations into account in the exercise of its discretion. 48 However, counsel for the respondent emphasised that such considerations should also lead to any doubts as to the exercise of the discretion to grant relief being resolved in favour of the Court granting rather than to declining relief on discretional grounds. 49 The submissions of the applicant were in the following terms: 16. The written submissions also noted clause 49 - Area, Incidence and Duration subclause (iv)(b) of the award which contained the provision for employers who wee joint members of ASA or CCER and ANHECA and/or EF to elect not to be [bound by the award]. 17. The written submissions go on to state that BCS did not make an election at that time on the basis that the award was a "single union award made by consent". BCS state that, had it been aware that the consent award was to be, or could be, an award to which NSWNA and HREA were both union parties, it would have taken a different view. BCS sought a "short period in which to exercise the option to make an election not to be covered by the new award". 18. The written submissions of BCS were fundamentally misconceived. The consent award never provided an election "at large" to employers to be covered or not covered. The election was confined to joint members if ASA or CCER and ANHECA and/or EF. BCS was, at no stage, a member of this class of employer. In any event, the stated purpose of BCS's concern, namely the potential for NSWNA to become a joint union party to the award with HREA, ceased to be a cause of concern with the dismissal by the Full Bench of the appeal by NSWNA. 19. Subsequent to the dismissal of the appeal by NSWNA the position was that BCS, as a member of ASA at the time the award was made, was covered by the award and was not entitled to elect to be exempt from the award. 20. It was always the intention of the parties to the consent award (HREA, ASA and CCER) that their members at the time of the making of the award would be, and would remain, covered by the award. This included BCS. The only exemptions were those employers who also belonged to ANHECA and/or EF who elected not to be covered by the award prior to 1 September 1999. This did not include BCS. 21. It was never intended by any party to the consent award that individual employers who were covered by the award could simply opt out of the award by resigning from ASA or CCER. Such an outcome would have effectively rendered the deliberately confined "opting out" provision in subclause 49(iv) of the award otiose. 22. To permit an interpretation of clause 49 of the award which provides that the award's legal effect on an employer, in terms of that employer's obligations to employees in relation to rates of pay and conditions of employment, will cease upon the resignation by that employer from ASA or CCER would be contrary to the objects of the Act as well as the intentions of the parties. 23. Such an outcome would be contrary to the well accepted approach to the interpretation of award provisions which is identified in the authorities cited in Cepus v Heggies (52 IR 123).

50 It is, of course, clear that those submissions were made in relation to the original 1999 Award. As to the subsequent awards, it was submitted that such considerations were equally applicable to them. As to the award made by Grayson DP, it was submitted, there could be no intention in the context of the s 19 review to vary the award so as to remove coverage from a significant number of employees, nor could such an intention be attributed to the making of the further award in October 1999. 51 Those submissions as to the second and third awards, of course, must be seen in the context of the applicant's contentions as to the award made by Maidment J being accepted. Clearly, if the applicant's submissions as to that award were not accepted then neither of the subsequent awards could be held to cover the respondent's employees. 52 The respondent's primary submission was that the applicant's application was not made out and declaratory relief should be refused. In the alternative, it was submitted that if relief was granted it should be granted in a form which embodied its approach to the proper construction of the original award and also as to later or subsequent awards which were placed before the Court. 53 It was submitted that the Statement of the Full Bench of April 2000 expressly dealt with the question of respondency and it was in that context that the respondent had made the submissions to the Full Bench. The respondent contested the applicant's submissions that issues in these proceedings did not arise in those earlier proceedings approximately two years ago. 54 That aspect of the respondent's submissions have already been dealt with in substance and the submission that the present issues were directly raised with and either directly or inferentially dealt with by the Full Bench, is not accepted and thereby rejected. 55 The balance of the respondent's submissions, however, present greater difficulties to the applicant's position. Indeed, the respondent frames its submissions under a series of propositions headed "The fundamental proposition" and it submits that the starting point is that the award as expressed in terms in clause 49 applies only to employees of employers which are members of ASA or CCER. There is nothing ambiguous about these words or the phrase "that are members". The respondent submits "the words 'that are members' must be given effect and cannot be ignored". 56 It may be appropriate here to set out the relevant provision which is cl 49 of the 1999 Award, subject to of course the modifications to it by the second and third awards: 49. AREA, INCIDENCE AND DURATION (i) This award shall apply to all employees employed by employers that are members of the ASA and/or CCER, excluding those in the County of Yancowinna, who are: (a) Within the jurisdiction of the Voluntary Care Association Employees' (State) Industrial Committee who come within the Constitution Rule of the Health and Research Employees' Association of New South Wales. (b) Employed by or in connection with voluntary, religious, charitable and non-profit making private retirement villages, nursing homes and hostels for the aged in the private health, health-related and aged care industries, and nursing homes for the disabled in the private disability services industry, and who come within the Constitution Rule of The Health and Research Employees' Association of New South Wales. (c) Employed by or in connection with other accommodation support services and/or community residential units for disabled persons owned, managed or conducted by voluntary, religious, charitable and other non-profit making organisations in the private disability services industry and who come within the Constitution Rule of The Health and Research Employees' Association of New South Wales (ii) Provided that this award shall not apply to persons substantially engaged in counselling, social welfare advice and referral, assessment of disability, design of disability services programs, or community development work in connection with services for the disabled or social workers or social educators properly so-called; provided this exclusion does not apply to persons eligible to become members of the Health and Research Employees' Association who are employed as Residential Care Workers or Residential Services Assistants, and persons primarily engaged in supervising the work performed by disabled persons, or in domestic duties in Sheltered Workshops for the disabled. (iii) Provided that with respect to the Grand United Centenary Nursing Homes, employees employed prior to 15 July 1996 shall continue to be entitled to receive any benefit or benefits obtained in the Aged Care General Services (State) Award as varied which are greater than the benefit or benefits that are contained in this award. (iv) This award shall not apply to: (a) Novices, aspirants or persons who have taken the vows of religious orders. (b) Employers who are members of the employer organisations that are party to this award and either the Employers' Federation of New South Wales or the Australian Nursing Homes and Extended Care Association (NSW), who elect not to be covered by this award. These include: The Don Geddes Catalina Memorial Residential Aged Care Centre, 171 Dorrington Road, RATHMINES NSW 2283 Macquarie Shores Residential Aged Care Centre, 12 The Ridgeway, Boulton Point NSW 2283 For the purposes of this clause, an employer who elects not to be covered by this award shall do so by writing to the parties to this award to advise them of the election, on or before the first of September 1999. In such cases this award shall be deemed never to have applied and the Charitable Sector Aged and Disability Care Services (State) Award (281 IG 1011) shall continue to apply. (c) Persons who are employed in providing home care services to clients in private residences which are not operated as an adjunct to a retirement village, nursing home, hostel, accommodation support service or community residential unit or where the provisions of the Miscellaneous Workers Home Care Industry (State) Award, as varied, apply. (emphasis added) 57 The respondent also contends that the award is to be read as having application throughout its life and that its terms will be given effect at each point throughout its life; "the word 'are' is a part of the verb 'to be' and is in the present tense, it therefore has application in the present tense throughout the life of the award." Accordingly, it is said that it is a precondition to an employer being a respondent to the award at any given point of time that it be a member of ASA or of CCER at that time. That being so, the award can only at any given time have application to the class of members of ASA or CCER at that time. It cannot apply at that time to such employers who are not then members. 58 The respondent then submits that the relevant provision does not say that the award applies to employers "who were at the time of making this Award members of ASA or CCER"; if that was the meaning of the clause it could be expected to have been expressed in those terms. It is also submitted that the approach of the applicant is to seek to include additional words in the particular clause which are not present; that the applicant's focus and reliance on the "opt out" prohibition in cl 49(iv) is misconceived and avoids the central issue, that is the meaning of the words "who are members". 59 The respondent continues: "The opt out provision is not, as implied by the applicant, a provision of general application to all respondent employers which gives the only means by which employers party to the Award cease to be a party. Rather, as is clear from the applicant's response, applied for a specific and limited period and only to a limited class of employers who are in the position of having dual position and gave those employers an opportunity to elect to be bound by another Award it did not apply to all members to be bound by the Award". 60 The principles to be applied in interpretation of awards have been recently comprehensively stated by the Full Bench in Kingmill Australia Pty Ltd T/A Thrifty Car Rental and the Federated Clerks' Union of Australia New South Wales Branch (2001) 106 IR 217, particularly at 228 - 230 in paragraphs [63] - [69]. 61 There are other important statements in this jurisdiction of the approach appropriate to the construction of awards such as Bryce v Apperley (1998) 82 IR 448 at 452 - 454. However, in my view there are aspects of the decision in the Kingmill case which have particular application to the present circumstances which did not arise for consideration in other cases such as Bryce v Apperley. For example, the final paragraphs (paragraphs [67] to [69]) of the passage earlier referred to from Kingmill are in the following terms: [67] The application of those principles, we think, should occur in conformity with general approaches to the construction of enactments and other instruments. In this respect, we note, with approval, the observations of Walton J, Vice-President, in Perisher Blue v Australian Workers' Union (1999) 91 IR 274 at 283 - 284: "Speaking generally, awards should be interpreted in a similar fashion to other enactments: Geo A Bond & Co Ltd (in liq) v McKenzie [1929] 28 AR (NSW) 498 at 503 ; Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 520. In the construction of the general order, and in conformity with general principles of award interpretation, the Commission should consider the wider context of the making of those provisions. Burchett J in Short v F W Hercus describes this approach to the interpretation of an award as follows: '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 part, or to other documents with which there is an association. Context may also include, in other 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.' (at 518) (See also Western Newspapers Pty Limited & Another v Warren (1994) 56 IR 340 at 351). I note that a similar approach was adopted by the former Industrial Commission in re Butter, Cheese and Bacon Factories and Milk and Cream Condensories &c. (State) and Butter Cheese and Bacon Factories and Milk and Cream Condensories, &c. (Newcastle and Northern) Awards (1950) 49 AR 62 at 64 where it was held that the meaning of words within an award (which are not expressed or precise) may be ascertained by 'placing upon the words their ordinary meaning as applied to the subject matter with respect to which they are used'." [68] The authorities set out in Bryce considered the circumstances in which it may be appropriate to apply the award-maker's intentions to the circumstances in which the award was made and to the practical effects of a particular construction. The decision in Perisher Blue indicated the desirability of considering the terms of an award in the context in which they appeared and emerged. Those principles apply with equal force to the circumstances in which it may be appropriate to have regard to other aids of construction such as the "major and substantial" or "principal purpose" tests.

[69] Those principles apply to a clause which establishes the coverage of an award in the same way as they do to other clauses in the award. It is thus appropriate to consider the scope clause of the award in the context in which it appears and, in particular, by reference to the other provisions of the award . (emphasis supplied) 62 Of course the references to "major and substantial" and "principal purpose" are not relevant here. However, the passages which are relevant are those which cite with approval the decision of Walton J, Vice-President, in Perisher Blue v Australian Workers' Union (1999) 91 IR 274, which in turn refers to the judgment of Burchett J in Short v F W Hercus Pty Limited (1993) 40 FCR 511 and to the appropriateness in particular cases of referring to the context in which an expression may be used and that the context may include not only the entire document, of which the particular provision is a part, but also other documents with which there is an association. Also in point is the holding of the Full Bench in Kingmill that "[t]hose principles apply to a clause which establishes the coverage of an award in the same way as they do to other clauses in the award. It is thus appropriate to consider the scope clause of the award in the context in which it appears and, in particular, by reference to the other provisions of the award." 63 The applicant also relies upon the judgment of the then Industrial Court in Cepus v Heggies Transport Pty Limited (1994) 52 IR 123 at 127 - 128. It is submitted that of the principle in that judgment which is particularly relevant is the principle numbered (7) which refers to the need to consider the context of the award. In Heggies Transport it was held that consideration should occur "in the first instance and not merely when ambiguity might be thought to have arisen". I do not consider it is necessary for me to explore that distinction in present proceedings because I consider that although the words of sub-cl 49(i) on their face seem unambiguous, that conclusion does not remain when it is read in its overall context including when read in the light of cl 49(iv). 64 When the provision (that is, cl 49) is read as a whole it is to be seen that the award provisions relating to coverage of employers and particularly as to employers who are members of the relevant employer organisation (ASA and CCER) do raise some degree of ambiguity. 65 Even accepting and giving full weight to the strenuous submissions of the respondent that sub cl(i) and the "opt out" provision do not provide a direct contrast, one with the other, the question that has to be considered is: does the existence of the so called "opt out" provision raise an ambiguity as to the primary provisions such as cl 49(i) as to the meaning of the word "coverage"? In my view it does. I consider, having regard to the industrial realities of the situation, the inclusion of that provision indicates a concern on the part of the employers affected to have one last opportunity to "opt out" and indicates an intention on the part of the hypothetical (in this case) award maker that the award was intended to cover members of the affected employer organisations throughout its life. 66 I consider that is the conclusion which should be reached here by an objective consideration of all the circumstances which include not only the provisions referred to but also the whole course of the proceedings before Maidment J which refer to a highly considered reorganisation of an important part of the industry; that is, the part of the industry represented by the ASA and the CCER; and it could not be objectively considered likely that what was to result in a differential award coverage based largely upon workplace reorganisation and corresponding changes in the terms of an award would be a situation which could be put aside, at least as to the consequent benefits to employees, by the unilateral act of the employer. 67 The applicant sought to describe that situation as one which could occur in circumstances which could be described as a "whim". I should not be taken as necessarily accepting that word as an appropriate description of what has occurred in this matter. Indeed, one could accept that the employer could have a well founded basis to opt out of certain award coverage by resigning from membership of a certain employer organisation. The significant consideration, however, is whether it would be properly said to be the intention in making the award that such significant changes at the workplace which were reflected in qualitative changes in the award could at least to important aspects of them be altered during the duration or term of the award by the unilateral act of one side of the industrial equation. The overall circumstances in my view do not permit that as a likely construction of the 1999 Award. 68 Before leaving that aspect, another circumstance which confirms the objective consideration reached is the terms of s 12 of the Industrial Relations Act. That provision is in these terms: SECTION 12 PERSONS BOUND BY AWARD 12(1) An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award. (2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry. (3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award. 69 Although important parts of that provision are plainly expressed to be subject to the precise terms of any particular award, nevertheless the clear legislative intention is that awards are intended to be binding on those employers, employees and industrial organisations which were a party to the making of the award and although it is possible that the parties could agree that some of the parties to the award could, as it were, come and go by unilateral act, such a construction should only be concluded if the very plain words of the award permit that to occur. 70 It should be emphasised that the view reached as to the 1999 Award was reached without referring to the terms of s 12. For the reasons referred to in the last paragraph, the terms of that section should be seen as confirming the conclusion reached. It was observed during the course of argument that the submissions of the parties were finely balanced and it should be recorded that in reaching that conclusion the Court has found the question of some difficulty but nevertheless considers that the view reached is appropriate in all the circumstances referred to. 71 However, those considerations demonstrate the difficulty of applying that reasoning to the subsequent two awards made in May 2001 and in October 2001. It is not intended to reach firm and final conclusions as to those instruments because of the concern earlier referred to and also because it is considered that the parties should be given some further opportunity to consider the implications of s 19 reviews to the question of award coverage. 72 Without expressing a firm conclusion as to the award made pursuant to s 19, the question which arises in relation to the May 2001 Award is whether it could be considered likely, on an objective basis, that the intention when an award was made in the context of a s 19 review was (presumably without the Commission or the parties expressly saying so) that the coverage of the award would be altered. 73 True it is that when one applies the Court's reasoning as to the 1999 award to the October 2001 award it seems difficult to conclude that the respondent was bound by that award because at the time the ambiguity discerned by the Court had ceased to be manifest in the award and it seems (without expressing a final view) that the plain words of the award did not extend to employers not members of the relevant employer organisations. But that question in turn may depend on an assessment of the proper construction of the May 2001 award, which emphasises the importance of the Court receiving submissions on the s 19 aspect of the matter. 74 There is a matter which I omitted from my earlier consideration. It is the reference to the submissions of the respondent in the appeal proceedings before the Full Bench in the year 2000. Although they could be said to confirm the approach of the applicant in this matter as to the 1999 Award and thus the conclusion the Court has reached on that aspect, it should be stated that the Court has not taken those matters into account as to that matter for the following reason. Conceptually it may be that reliance upon that submission is really no more than reliance on the way in which the parties subsequently approached or applied the award. That seems contrary to the principle, for example, in Seamen's Union of Australia v Adelaide Steamship Company (1976) 46 FLR 444. In that case a Full Bench of the Australian Industrial Court held, at 445, that it was inappropriate to treat as relevant to interpretation of an award, evidence of such conduct or "evidence of user". 75 That decision was followed by the Industrial Commission of New South Wales in Court Session in Re Security Officers (Waterfront) Award (1988) 26 IR at 7 - 8. I consider those cases represent the better view of the correct approach in principle, although it may be difficult in certain cases to distinguish plainly in practice between evidence of subsequent conduct of the parties and the context in which the award was made. However, I do not consider it is difficult to make that distinction in this case. It is therefore considered appropriate to disregard such matters on the question of construction, as the submissions of the respondent in the proceedings before the Full Bench, notwithstanding that they were argued by the applicant as supporting its case. 76 That means in a practical sense I have determined the coverage of the first award in terms of Mr Murphy's submissions. I have said in effect that applying that reasoning to the last award it is difficult to see how the same result would follow. However, in a real sense, any final conclusion as to the last award may depend on the conclusion as to coverage as to the second award, which, in turn, shows the importance of the assistance the Court be provided as to the effect of s 19 on the matter. That is not to detract from what has been said as to the first award. This may be addressed after the parties have considered this decision. Perhaps, because of the concerns as to costs, this might be done by written submissions. The proceedings are adjourned accordingly.

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