Consideration
86The principal question for determination is the meaning to be accorded to the words "directed to report for duty" which are contained in cl 14 of the Award. A secondary question arises in light of the words contained in cl 14(a) which provide that benefits are payable "unless otherwise agreed between the Service and the employee". This question may be disposed of immediately. The words clearly mean that to obtain some other benefit than that provided for in cl 14(a) an agreement must be reached between the relevant parties.
87The applicant's case is that when an officer volunteers for overtime and that offer is accepted by the Ambulance Service, such officer is then directed to report for duty at a station other than that to which he or she is appointed. This direction, so it was contended by the applicant, triggers an entitlement to overtime and expenses pursuant to cl 14.
88The respondent submits that the process of filling overtime shifts under the myShift process is and that this has always been the case, entirely voluntary. The parties agree on this point.
89The relevant principles of construction in respect of an award and the approach which should be applied to the interpretation of provisions in an award by which I propose to be guided, were recently stated by the Full Bench in Director of Public Employment (by her agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [38] - [47] as follows:
[38]The Interpretation Act 1987 (NSW) applies to the interpretation of awards (see s 3(1)), thereby entrenching the long held principle that awards are to be interpreted as any other enactment is interpreted: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503.
[39]There are four principles of statutory (and award) interpretation that are of particular relevance to the issue we have to decide in this case, which is whether cl 9.6.1 of the Award applies to the one or two hour periods Station Officer Brown worked immediately before the commencement of his rostered shifts.
[40]First, statutory construction must involve a purposive approach. Section 33 of the Interpretation Act gives statutory recognition to the common law purposive approach in the following terms:
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
[41]The approach required by s 33 does not depend on the existence of an ambiguity or inconsistency. It allows a court to consider the purposes of an Act in determining whether there is more than one possible construction: Mills v Meeking (1990) 169 CLR 214 at 235. However, the requirement of s 33 is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: R v L (1994) 49 FCR 534 at 538. In other words, in interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; 61 IR 32 at 67-68.
[42]This point was recently confirmed by Spigelman CJ in Harrison v Melhem [2008] Aust Torts Reports 81-951 at [14] and [16]
14However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].)
...
16The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius (Privy Council, 13 December 1995, unreported); Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].)
[43]Secondly, in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, in referring to the principle of contextual interpretation, the High Court stated:
... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.
See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Zoological Parks Board (NSW) v Australian Workers Union (2004) 135 IR 56 at [44].
[44]Thirdly, extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. Again, however, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision. As McHugh J observed in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113:
Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is "reasonably open". Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.
[45]This takes us to the fourth principle. In an address to the Clarity and Statute Law Society at Cambridge University in July 2002 ("Towards a Grand Theory of Interpretation, The Case of Statutes and Contracts"), Kirby J identified a number of general features of statutes and contracts that "may make it dangerous to assume that exactly the same approach to interpretation will be apt for both". In particular, his Honour noted:
Whilst a written contract between private parties having large consequences may, on occasion, involve the need for great precision and go through many drafts, ordinarily there is less formality about most written contracts. At least this is so when compared to the preparation of legislation. In the nature of writing that expresses binding public law, legislation is addressed to the community at large and usually has no stated termination date. It is typically prepared by highly trained and expert parliamentary counsel. It is ordinarily accompanied by explanatory memoranda. It is introduced into the legislature with a ministerial second reading speech. Typically, this degree of formality is missing from private instruments...
[46]Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie:
But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament.
[47]Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ).
90The evidence establishes that the myShift system requires an employee to make a request to be considered for overtime and the employee acknowledges, by an electronic election on the myShift website that the employee will travel to and from the designated location using private transport and there is no provision for the Ambulance Service to provide a vehicle or to pay travel or excess kilometres for this work.
91The applicant sought to assist its argument, that once an officer had volunteered for overtime, he or she was then directed to undertake the overtime shift by calling evidence of past practice. In my view, even if there had been clear evidence in the proceedings that there had been some consistent past practice where all officers in the Ambulance Service had recognised that clause 14 was activated in a voluntary situation, which is not the evidence, it does not assist the applicant in proceedings that seek a declaration. This is not a proceeding where I am called upon to exercise any discretion. In any event, the evidence discloses a completely diverse and inconclusive situation in respect of past practice and the application of cl 14.
92The evidence discloses that travel time is not paid for an overtime shift regardless of the circumstances throughout all areas of the Ambulance Service, including areas where there is a considerable amount of travel time required between stations. It was common ground that in the metropolitan area and in large regional areas, the payment of travel time has never been paid. This included the north coast region. The exception was where the evidence disclosed there had been a practice of paying travel time in the western (Orana) region and the Hunter New England region. However the evidence was by no means conclusive.
93There was disagreement between the parties as to whether the Orana agreement (to which I have earlier referred in dealing with the evidence (at [58] - [60])), was terminated when the 2010 MOU was executed. The Orana agreement provided that travel time would be paid to an officer who travelled to perform an overtime shift. Chief Superintendent Stonestreet's evidence was that the Orana agreement was terminated by the MOU. Clause 10 of the MOU provided:
10.Minimum Operating Levels and Local Agreements
10.1Minimum operating levels and local agreements will be replaced with a zone/sector deployment based model based on operational demand. This model will operate in accordance with the principles contained at Attachment 2.
10.2The list of local agreements replaced by the zone/sector deployment model are contained in the document at Attachment 3.
94Attachment 2 of the MOU relevantly provided that:
All current local Essential Staffing Level (ESL)/Minimum Operating Levels (MOL)/Agreed Rostering Levels (ARL) agreements cease and [are] substituted with an operational deployment model.
95His evidence was the Orana Agreement was an agreement about minimum operating levels and it had guidelines contained within it regarding how to fulfill those operating levels. It also had business rules attached to it to allow both parties to understand how to go about filling overtime shifts. He rejected the proposition that it went beyond establishing minimum operating levels. To the extent relevant in my view, the Orana Agreement was terminated as a result of the 2010 MOU because it was one of the agreements of the nature that was described in the MOU as being terminated.
96In relation to the Hunter/New England sector, the evidence of Chief Superintendent Hescott was that a variety of practices existed in relation to the payment of travel time. In some cases, travel time was claimed and paid as such. On other occasions, it was incorporated in claims for time off in lieu ("TOIL"), a practice which was not supported by any provision of the award. On other occasions travel time had been incorporated in a claim for overtime rates and paid as overtime. Mr Harrison agreed with Chief Superintendent Hescott's evidence that there was a variety of practices in relation to the payment of travelling time. In addition, the evidence of Mr Flanagan demonstrated that in the overwhelming number of cases throughout New South Wales, travel time was not paid at all.
97In my view, and I find, that the evidence in respect of historical practices does not amount to a basis that assists the applicant in its construction of cl 14.
98I turn to consider the meaning of the words "directed to report for duty" and to construe cl 14 according to its terms and in the context of other provisions within the Award.
99In the context of cl 14, in my view, the term "directed to report" should be read as meaning that the employee is summoned or commanded to undertake a task which carries with it consequences for the employment relationship if the direction is not followed. This is neither the position that exists here in respect of myShift nor was it the position that existed prior to its introduction.
100Mr Pollard's evidence was that when an officer applies for an overtime shift by using the myShift system, he is advising the Ambulance Service that he is available to undertake the shift. This is subject to an agreement with the Ambulance Service. Mr Pollard in his evidence, agreed that that was the basis upon which the employee then proceeded to undertake the shift. There is no additional or subsequent step required by the officer who once the offer is conveyed is advised where he/she is required to undertake the overtime shift.
101However, even after the officer has offered to undertake an overtime shift, he or she is free to withdraw that offer at any time and cannot be directed or compelled to undertake the shift. This is not, in my view, a technical distinction, nor does it provide a narrow construction or interpretation to the meaning of cl 14 as Mr Murphy submitted.
102Having volunteered for overtime, the Ambulance Service then notifies the officer if he or she has been successful and provides the details of the overtime shift. Securing the overtime shift is all at the initiative of the officer. If an officer never volunteers for overtime, then that officer will never be offered an overtime shift.
103This arrangement therefore reflects the integrity of the voluntary nature of doing overtime work. This position may be compared and contrasted with cl 16 of the Award. This clause deals with Relieving Other Members of Staff. It provides that where an employee is called upon to relieve another employee (cl 16(a), the Ambulance Service shall decide whether an employee travels to or from their relief duties in rostered hours. If the travel is to be accomplished outside rostered hours, the employee shall be reimbursed at ordinary rates for the time spent travelling in excess of the normal time taken to travel between his or her home and the station to which he or she is appointed (cl 16(e)). If the Ambulance Service directs an employee to relieve another employee who is, for example on sick leave, then cl 16 provides for travelling time. There is no voluntary aspect so far as an officer is concerned in respect of a cl 16 direction.
104Similarly, the Award makes it clear that if an employee is not on call and the employee is off duty, that employee cannot be required or directed to perform any work. This is made clear by the provisions of cl 23(d) which provides:
An employee who is not on call shall only be recalled to duty with the employee's agreement. Such a recall is subject to the same provisions as recalls performed when an employee is on call.
105Similarly, s 26(a) provides that an employee who is required to work overtime outside normal rostered hours may be compensated by way of time off in lieu of payment for overtime.
106In my view, when the terms of s 14 are considered in the context of other provisions in the Award, there is a clear distinction between compulsion and direction that underpin s 14 of the Award and the voluntary requirements of myShift.
107The evidence has demonstrated that the history of the implementation of cl 14 is inconsistent with the contentions of the applicant and the proper construction of cl 14 that an officer who volunteers for, and is offered an overtime shift, can then be said to have been directed to report for duty at a station, thus attracting the provisions of cl 14 of the Award. It follows that the application should be dismissed.
108Mr Murphy submitted that if I were to find against the applicant, which I now have, that the consequences of the ceasing of paid travelling time in remote areas would be that instances of single officer responses would increase. That, so it was submitted, was the natural and obvious consequence of refusing relief for the applicant because it would become more difficult to attract officers to volunteer to perform overtime shifts without any compensation. Shifts would be left unfilled which, Mr Murphy submitted, was an entirely untenable situation because it would expose the community and indeed officers to unnecessary risks. Such consequences cannot be addressed in proceedings brought pursuant to s 154 of the Act. If this becomes a reality then the grievance should be addressed in accordance with cl 42 Issue Resolution of the Award. The merits of a grievance can be properly considered by the respondent and if unable to be resolved, an application can be filed in the Industrial Relations Commission of New South Wales.