Industrial Relations Secretary (on behalf of Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales

The evidence

1. The Notifier tendered three statements. The Respondent did not object to the tender of the statements to the extent they were considered relevant. No particular paragraph was submitted to be irrelevant. The statements were from: 1. Cathryn Hellams, Director Human Resources (Business Partner) Corrective Services NSW ("CSNSW)"); 2. Mick Dudley, General Manager of the Operations Scheduling Unit ("OSU") based at Silverwater; 3. Lisa Johnstone, HR Manager, Office of the Commissioner.
2. The Notifier also tendered a folder of documents entitled "Applicant's Documents". The documents were referred to in the statements identified above.
3. The Respondent tendered the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 as it stood at 24 August 2016 ("the Conditions Award").
4. In view of the way the arguments developed it is unnecessary to detail the evidence given by the witnesses. However some parts of the evidence are worth noting as providing the background against which the case was argued.
5. In her statement Ms Hellams summarised the history of the Island Award. She said it was made as part of the implementation of the "Way Forward" reform strategies in 2004. It provided a different set of pay and conditions to those set out in the awards covering staff at other correctional centres. She noted: 9. "In providing a different set of pay and conditions the 'Island' Award supported changes to reduce the cost of operating correctional centres, and included annualised salaries, flat rate of overtime, workplace flexibility, and cashing in of leave and RDOs."
6. Ms Hellams also drew attention to cl 5.1 of the Island Award which provides: 5. Principles of Understanding 5.1 The parties acknowledge that this Award has been entered into on the basis of a mutual commitment to operate cost efficient and commercially competitive Correctional Centre administration based on modern correctional practices. In meeting this commitment, the Award provides the terms and conditions of custodial and industrial officers working in roles at Kempsey, Dillwynia, Wellington and John Morony Correctional Centres which are aimed at increasing productivity and flexibility in the conduct of these Centres' operations. (Emphasis added in italics) and cl 94 of the Conditions Award which provides; 94. Overtime Meal Allowances 94.1 If an adequate meal is not provided by the Department, a meal allowance shall be paid by the Department at the appropriate rate specified in Item 19 of Table 1 - Allowances of Part B, Monetary Rates, provided the Department Head is satisfied that: 94.1.1 the time worked is directed overtime; 94.1.2 the employee properly and reasonably incurred expenditure in obtaining the meal in respect of which the allowance is sought; 94.1.3 where the employee was able to cease duty for at least 30 minutes before or during the working of overtime to take the meal, the employee did so; and 94.1.4 overtime is not being paid in respect of the time taken for a meal break. 94.2 Where an allowance payable under this clause is insufficient to reimburse the employee the cost of a meal, properly and reasonably incurred, the Department Head shall approve payment of actual expenses. 94.3 Where a meal was not purchased, payment of a meal allowance shall not be made. 94.4 Receipts shall be provided to the Department Head or his/her delegate in support of any claims for additional expenses or when the employee is required to substantiate the claim. 94.5 Notwithstanding the above provisions, nothing in this clause shall prevent the Department Head and the Association from negotiating different meal provisions under a local arrangement. (Emphasis added in italics)
7. Mr Dudley explained that the OSU manages the rostering system applied in Correctional Centres. Pursuant to the system each centre has a Business Partner (Grade 7/8 clerk) who is located in the OSU. The Business Partner provides advice to the Scheduling Officers about rosters, pay and leave. Each Correctional Centre has a number of Scheduling Officers under the supervision of a manager.
8. In effect the system permitted different interpretations of entitlements to develop and be applied at different Centres.
9. On 8 July 2019 CSNSW began implementing a new Workforce Management System ("WFM") including the introduction of a "contemporary rostering software package". A major advantage of the WFM according to Mr Dudley is that: "it no longer requires Scheduling Clerks to manually enter certain allowances to which employees are entitled under various CSNSW industrial instruments. This ensures that allowances are consistently paid in accordance with those instruments and removes the possibility of human error as consistency is built into the system."
10. In August a Scheduling Officer at Kempsey realised she was unable to process an allowance which previously she had been able to enter manually under the old system. The allowance was payable to correctional officers employed under the terms of the Crown Employees (Correctional Officers, Department of Justice - Corrective Services NSW) Award 2016 ("the General Award"). The Scheduling Officer was advised that the allowance was not payable to staff at her Centre, who were employed under the Island Award. That advice was confirmed by the Senior HR Advisor Human Resources.
11. Mr Dudley sought a report regarding the payment of meal allowances at the other Centres covered by the Island Award. He was advised: "John Morony was paying the meal money when a double shift is completed even if it isn't a total of 8 hours overtime. Dillwynia was paying the meal money sporadically and Wellington was only paying officers when they completed full double shifts."
12. He further advised that: "Preliminary assessment of the 18/19 financial year CSNSW overpaid approximately $66,000 in meal allowances to [Island Award] employees. If the meal allowances were provided consistently to [Island Award] employees as provided for in the [General Award] then the cost is likely to be higher.
13. Ms Johnstone said that CSNSW wrote to the Respondent on 7 August to advise: "that overtime meal allowances that had been previously paid inconsistently across Mid North Coast, Dillwynia Wellington and John Morony Correctional Centre's would cease and that CSNSW would not seek to recover the overpayments."
14. The Kempsey sub-branch of the Prison Officers Vocational Branch ("POVB") of the Respondent advised that they were "appalled" at the erosion of their award conditions and gave 72 hours' notice of industrial action, in the form of overtime bans, if the allowances were not restored.
15. Thereafter discussions occurred between CSNSW and the Respondent that led to an agreement to maintain the status quo until 16 September to enable further discussions to take place.
16. On 11 September CSNSW advised that payment of the allowance other than in accordance with the Island Award would again cease. On 16 September the Dillwynia and John Morony sub-branches of the POVB decided to implement overtime bans from 2pm that day. The threatened industrial action led to CSNSW notifying this dispute.
17. The dispute was listed for compulsory conference at 11.30am that day. Conciliation was not successful. The parties were, however, able to reach agreement on an interim arrangement, which was recorded in transcript, and a timetable for the filing of evidence and submissions.

Submissions

1. The exchange of written submissions had the effect of narrowing the scope of the debate considerably. There was no disagreement between the parties about the principles of interpretation to be applied. It was the application of those principles which divided them.
2. For the Notifier, Mr Britt referred in particular to; 1. the decision of Walton J, President, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 in which his Honour "synthesised" the principles of interpretation of awards as disclosed in the authorities at [115] as follows: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted 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 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 1. and the decision of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
3. Mr Reitano for the Respondent also referred to the same passage in Kucks and the decision of French J (as he then was) in City of Wanneroo v Holmes [1989] FCA 369; 30 IR 362 at [43]-[44]. In those paragraphs his Honour said: The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words: Re Clothing Trades Award (1950) 68 CAR 597 (Aust Indus Ct, Full Ct). The words are to be read as a whole and in context: Australian Timber Workers Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award: Picard v John Heine & Son Ltd (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all: Seymour v Stawell Timber Industries Pty Ltd (1985) 13 IR 289at 290; 9 FCR 241 at 244 (Northrop J) (13 IR at 299; 9 FCR at 254) (Keely J) cf 13 IR at 309; 9 FCR at 265 (Gray J). The logs of claim and arbitrator's reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it: Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444, 446, disapproving Merchant Seamen's Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248. That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J said in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503: "… 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 … from an agreement between the 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. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award." - See also Re Crown Employees (Overtime) Award [1969] AR(NSW) 60 at 63; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123. 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).
4. Mr Reitano summed up the effect of the authorities in his written submissions in this way: "In simple terms the task is to have regard to the ordinary English meaning of the words of the clause and construe them in context having regard to the whole of the award and in accordance with their purpose."
5. In his written submissions in reply Mr Britt identified the central difference between the parties as: "the meaning of the phrase 'where payment shall be made in accordance with clause 94, Overtime Meal Allowance of the Crown Employees (Public Service Conditions of Employment) Award 2009.' "
6. Applying the principles identified by both counsel, Mr Britt submitted that the phrase imported all of the incidents of cl 94 of the Conditions Award. He submitted: "Applying an ordinary and grammatical meaning to the expression 'in accordance with' means in 'a way that agrees with or follows' or 'it is done in the way that the rule or system says that it should be done'. The Applicant submits that the plain English meaning of the expression 'in accordance with' requires that the conditions in clause 94 to be satisfied prior to their being a payment."
7. In further support for his construction, he referred to the differences between subcll 12.2.1 and 12.2.2 and 12.2.3. The last two subcll refer specifically to the requirement to pay an allowance. Were it intended that subcl 12.2.1 would operate in the same way as the last two subclauses it would have been expressed in the same way.
8. Mr Britt also relied on the general purpose of the Island Award as revealed in cl 5.1 and cl 4.1 the latter of which is in the following terms: 4.1 The following Awards, or their replacements, insofar as they fix conditions of employment applying to officers covered by this Award, which are not fixed by this Award, shall continue to apply: Crown Employees (Correctional Officers, Department of Justice - Corrective Services NSW) Award Crown Employees (Public Service Conditions of Employment) Award 2009 Crown Employees (Transferred Employees Compensation) Award
9. The construction advanced by the respondent would have the effect that an officer who worked as little as an additional minute would be entitled to an allowance even if the officer: 1. was not directed to do so; 2. had not incurred expenditure obtaining the meal; or 3. when able to cease duty before or during the overtime for at least 30 minutes did so in order to take the meal and overtime was not paid for the time taken for the meal break.
10. Such an outcome would be incompatible with cl 5.1 - in particular the words emphasised at [5].
11. In his oral submissions in reply Mr Britt also submitted that subcl 12.2.2 would be otiose if subcl 12.2.1 had the effect submitted by the Respondent. It would be unnecessary because the entitlement to the allowance would be the same whether an officer worked 10 minutes, I hour or 8 hours in additional hours.
12. The Notifier also submitted that additional hours under the Island Award are overtime.
13. Mr Reitano submitted that the starting point is the ordinary grammatical meaning of the words. He suggested that task was best approached by breaking down each of the constituent parts. He continued: "a. First, the words 'Members of staff are not entitled to meal monies' means that there is no entitlement to meal monies, or, in other words, there is no right to meal money - this can be regarded as what is intended to be the ordinary or general rule; b. Second, the word 'except' is used to convey that there will be a departure from the ordinary or general rule in a given circumstance or in given circumstances; c. Third, the words 'when working additional hours' is the (only) circumstance when the general rule does not apply. Working means whilst at work. 'Additional hours' means all hours 'beyond a standard 8 or 12-hour shift or, in excess of 152 hours per roster cycle' (as to which see cl.10 of the Award); d. So far, the combined effect of a, b and c is that there is only one circumstance where there is a right to meal money which is when a person is working additional hours. Standard hours can be rostered for up to 12 hours for both day workers and shift workers. Whether worked as a day worker, or as a shift worker, standard hours worked beyond 8 hours do not qualify for meal money. That this is so is reinforced by the closing words of cl. 6.1 and 6.2. lt should also be noted that there is no concept of overtime known to the Award (a matter to which these submissions will later return); working overtime is not, and nor can it be, a circumstance that attracts a right to meal money under the Award; e. Fourth, where the circumstance that gives rise to the right to meal money, the working of additional hours then (and only then) is payment to be made. Again, the word payment is an ordinary English word meaning to hand over money. Payment ls not the same as 'entitlement' or 'right' - it is the execution of an entitlement or right that is satisfied by money; f. Fifth, the payment to be made is to be 'in accordance with clause 94 Overtime Meal Allowance of the Crown Employees (Public Service Conditions of Employment) Award 2009 or its replacement'. The words 'in accordance with' mean 'in conformity with' or 'consistently with' - the payment is to be one that conforms to those in cl.94 of the Conditions Award; and Finally, there is one important exception created to the payment that is required to be made, which is in the case of double shifts, where the rate of payment is set at [twice] the dinner rate specified in cl 94 of the Conditions Award." (Emphasis added in bold) At the outset of the hearing Mr Reitano noted that the word "twice" in the ultimate paragraph above should be deleted. It was one of two errors (the other to the same effect in a later paragraph) in his written submissions which should be deleted.
14. The Respondent's written submissions added a second ground in support of its construction based on the concept that "overtime" is not "known to the [Island] Award" in this way: "Apart from the ordinary grammatical meaning of the words in cl.12.2 there is a second basis for rejecting the CSO Submissions concerning the meaning of cl.12.2. This is because on the CSO Submissions construction of the cl.12.2, the clause could never operate to require the payment of meal money because at least two of the conditions giving rise to the entitlement could never be satisfied in the case of employees working under the Award - in particular, there would be no way of satisfying cl.94.1.1 and 94.1.3 as there is no concept of overtime (far less no concept of directed overtime) known to the Award such that those conditions could never be met.
15. Counsel developed the argument as to why the concept that "overtime" is not known to the Island Award in his oral submissions. It is based upon the construction of two clauses of the Island Award and two clauses of the Conditions Award. The clauses are: 1. In the Island Award: 6. Hours of Work 6.1 The ordinary hours of employment for day workers shall be an average of 38 per week in each roster cycle to be worked Monday to Friday inclusive, provided that, by agreement between the parties, ordinary hours up to a maximum of 12 hours per day may be rostered without the payment of additional hours as prescribed in clause 10 of this Award. Meal allowances are not applicable. 6.2 The ordinary hours of employment for shift workers shall be an average of 38 hours per week in each roster cycle, provided that, by agreement between the parties, ordinary hours up to a maximum of 12 hours per day may be rostered without the payment of additional hours as prescribed in clause 10 of this Award. Meal allowances are not applicable. 6.3 Time taken in partaking of meals shall not count as working time, unless such meal is taken as a crib break. 6.4 A crib break is an entitlement to a paid break of 20 minutes to be taken between the third and fifth hour after the commencement of a shift. The break is to be taken away from the direct work location wherever possible (but still within the correctional centre or work location, but away from inmates) with officers being available to respond to any situation should they be required during this break. 6.5 If a crib break referred to in subclause 6.4 is not able to be taken, a Crib Break Penalty may be applicable as set out in clause 12, Meals of this Award. 10. Single Rate for Additional Hours 10.1 Officers who work additional hours beyond a standard 8 or 12-hour shift, or in excess of 152 hours per roster cycle shall be paid at a single rate of $51.88 per hour for all additional time worked. 10.2 No payment or other compensation for additional hours shall be paid to officers above the rank of Senior Correctional Officer or Senior Overseer, except in cases of emergency. 10.3 For the purposes of this Award, emergencies are classed as situations such as riot, fire or hostage. 10.4 The rate prescribed in sub-clause 10.1 of this award shall be subject to any variation made in accordance with clause 28, Savings of Rights of this award. 1. In the Conditions Award: 11. Working Hours 11.1 The working hours of employees and the manner of their recording, shall be as determined from time to time by the Department Head in accordance with any direction of the Secretary. Such direction will include the definition of full time contract hours as contained in clause 3, Definitions of this award. 11.2 The employee in charge of a division or branch of a Department will be responsible to the Department Head for the proper observance of hours of work and for the proper recording of such attendance. 11.3 The Department Head may require an employee to perform duty beyond the hours determined under subclause 11.1 of this clause but only if it is reasonable for the employee to be required to do so. An employee may refuse to work additional hours in circumstances where the working of such hours would result in the employee working unreasonable hours. In determining what is unreasonable the following factors shall be taken into account: 11.3.1 the employee's prior commitments outside the workplace, particularly the employee's family and carer responsibilities, community obligations or study arrangements, 11.3.2 any risk to the employee's health and safety, 11.3.3 the urgency of the work required to be performed during additional hours, the impact on the operational commitments of the organisation and the effect on client services, 11.3.4 the notice (if any) given by the Department Head regarding the working of the additional hours, and by the employee of their intention to refuse the working of additional hours, or 11.3.5 any other relevant matter. 11.4 The application of hours of work is subject to the provisions of this clause. 11.5 The ordinary hours may be standard or flexible and may be worked on a full time or part-time basis. 11.6 The Department Head shall ensure that all employees employed in the Department are informed of the hours of duty required to be worked and of their rights and responsibilities in respect of such hours of duty. (Emphasis added in bold) and 88. Overtime - General 88.1 An employee may be directed by the Department Head to work overtime, provided it is reasonable for the employee to be required to do so. An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working unreasonable hours. In determining what is unreasonable, the following factors shall be taken into account: 88.1.1 The employee's prior commitments outside the workplace, particularly the employee's family and carer responsibilities, community obligations or study arrangements, 88.1.2 Any risk to the employee's health and safety, 88.1.3 The urgency of the work required to be performed during overtime, the impact on the operational commitments of the organisation and the effect on client services, 88.1.4 The notice (if any) given by the Department Head regarding the working of the overtime, and by the employee of their intention to refuse overtime, or 88.1.5 Any other relevant matter. 88.2 Payment for overtime shall be made only where the employee works directed overtime. 88.3 Where a flexible working hours scheme is in operation, overtime shall be deemed as the hours directed to be worked before or after bandwidth or before or after the time specified in a local arrangement made pursuant to the provisions of clause 10, Local Arrangements of this award provided that, on the day when overtime is required to be performed, the employee shall not be required by the Department Head to work more than 7 hours after finishing overtime or before commencing overtime. 88.4 Payment for overtime worked and/or on-call (standby) allowance shall not be made under this clause if the employee is eligible, under any other industrial instrument, to: 88.4.1 Compensation specifically provided for overtime and/or on-call (standby) allowance; or 88.4.2 Be paid an allowance for overtime and/or on-call (standby) allowance; or 88.4.3 A rate of salary which has been determined as inclusive of overtime and/or on-call (standby) allowance.
16. Mr Reitano also noted the other clauses dealing with overtime in the General Award being cll 89 and 90.
17. Referring to the Conditions Award, counsel drew attention to the reference to "additional hours" in cl 11.3. He then referred to cl 88 and submitted that the concept of overtime was different to that of additional hours in the Conditions Award which signified that the concept of Additional Hours in the Island Award was not "overtime" but a different concept.
18. That was the basis of his submission that "overtime as a concept was "unknown to" the Island Award. Given it was a concept unknown to the Award a meal allowance could never be paid to officers working under the Island Award except in accordance with subcll 12.2.2 and 12.2.3. On that basis the cl 12.2.1 would be otiose. That effect is overcome by the grammatical construction outlined in [33].
19. In further support of the idea that overtime was unknown he drew attention to the rate of payment for Additional Hours being a flat rate. Traditionally, he submitted, overtime attracted a penalty such as time and a half or double time. The fact that the Island Award provides for a single rate for additional hours indicates that "Additional Hours" are not "overtime".
20. In his oral submissions in reply Mr Britt agreed with Mr Reitano that the clause could have been more clearly drafted. However, it is necessary to interpret the clause which exists. In doing so one should have in mind the guidance flowing from the authorities that the drafters "were likely of a practical bent of mind".
21. Meaning has to be given to each of the subclauses and the construction advanced by the Notifier does that. To the contrary, the construction advanced by the Respondent effectively renders cl 12.2.2 redundant for the reasons outlined at [31].

Grammatical construction

1. Looking at the words of cl 12.2.1 in isolation I prefer the construction advanced by the notifier. The words "in accordance with" in an ordinary sense mean consistent with the terms referred to or as Mr Britt submitted, noted at [26]; "in 'a way that agrees with or follows' or 'it is done in the way that the rule or system says that it should be done'." or as Mr Reitano submitted, noted at [33]: "The words 'in accordance with' mean 'in conformity with' or 'consistently with'"
2. The approach advanced by Mr Reitano relies entirely, at least grammatically, on the word "payment". Even if one accepts the first four propositions at [33], and, as noted at [42], the first half of the fifth proposition, the logic breaks down with the second half of the fifth proposition, that is: "the payment is to be one that conforms to those in cl.94 of the Conditions Award" (Emphasis added in italics)
3. There is no reason advanced to explain why the conformity is confined to the amount of the allowance. Nor any explanation which "appropriate rate" is to apply. It was noted during the submissions that although there are four rates specified in Table 1, Breakfast, Lunch, Dinner and Supper, the first three are in the same amount. The Supper rate is significantly less. There appears to be nothing in the Conditions Award to indicate the points or times distinguishing between the rates, so presumably the ordinary meanings would apply. Some guidance may perhaps be obtained from cl 12.2.3 which specifies when the rates (other than the Supper rate) are to be paid. In terms of identification of the rate, the Respondent's construction is in no worse or better position than would be the case for an application of cl 94 standing alone.
4. Conformity with cl 94, however, may lead to no entitlement to payment. I do not consider that the first three propositions advanced at [33] lead to the conclusion that an entitlement to payment of a meal allowance arises when the condition of exception is met. Rather the occurrence of the exception gives rise to a right to be considered for a meal allowance. The words "payment shall be made" are not to be understood in isolation from the following words. Nothing is advanced to explain why a reference to cl 94 should be understood as a reference to one aspect, the rate, of the clause only.
5. "Payment" depends upon conformity with cl 94 of the Conditions Award. To pay when the specified conditions are not met is not to conform to, or accord with the clause.
6. That construction is reinforced by the context. Subclauses 12.2.2 and 12.2.3 prescribe that a payment is to be made when the conditions identified in those subclauses are met. Subclause 12.2.1 follows the same structure albeit that the conditions for payment are specified in another Award.
7. Moreover, as Mr Britt submitted, there would be no reason for subcl 12.2.2 (save for, in my view, the possibility of avoiding the application of the Supper rate) if subcl 12.2.1 had the operation advanced by the respondent. It also seems to me consistent with the progression from no entitlement to meal allowances for ordinary hours, which may be as many as 12 in a shift, to limited entitlement to payment if the conditions in cl 94.1 are met for some additional hours (less than eight) and specific entitlement to the dinner rate if a double shift is worked.
8. Mr Reitano's written submissions in original form provided a point of distinction in that an officer working a double shift was to receive twice the dinner rate. Once the acknowledged errors were deleted there was no alternative submission advanced as to the distinction between 12.2.1 and 12.2.2 on the Respondent's construction of the former.

Overtime unknown to the Island Award

1. This proposition is fundamental to the Respondent's argument and in my view, despite its ingenuity, is wholly misconceived.
2. In my view "Additional Hours" under the Island Award are overtime. There is nothing unusual about the concept of overtime. It is well understood as the time worked in excess of ordinary hours. The introduction of various flexible working arrangements has meant that the definition of it has to take into account those arrangements but it remains, fundamentally, the extra hours an employee is directed to work beyond ordinary hours. "Additional Hours" in the Island Award is exactly the same concept. So much is apparent from the terms of cl 10.1 - see [35(1)].
3. Nor is there anything to be discerned from the fact that "Additional Hours" are paid at a single, that is only one for all ranks entitled, hourly rate rather than a multiple of the ordinary hourly rate. That is so for several reasons.
4. First, as the Respondent submitted there are various methods of accommodating compensation for overtime. It may be, for example by imposing penalty rates, time off in lieu or annualised salaries. The method of compensation has no bearing on whether the hours worked in excess of ordinary time are "overtime".
5. Second, the Island Award does recognise the concept of overtime, if using the word constitutes recognition of the concept. Ranks above Senior Correctional Officer and Senior Overseer are paid annualised salaries and according to clauses 1.1 and 3.1.1 of Part B, Schedule 1: "The above salaries are annualised and include compensation for overtime, penalty rates, incidental allowances, shift allowances and 10 Rostered Days Off per annum." (Emphasis added in bold)
6. Clause 10.2 indicates that cl 10.1 is confined in its operation to ranks up to Senior Correctional Officer and Senior Overseer except in cases of emergency. That is consistent with overtime for the higher ranks being compensated by the annualised salaries prescribed by the Award.
7. Subclauses 6.3, 6.4 and 6.5 deal with time for the taking of meals, crib breaks and crib break penalties. The last is cross-referenced to cl 12. Subclause 12 .2.3 prescribes the crib break penalties and 12.2.5 provides that the Crib Break Penalty "is in lieu of overtime".
8. Each of these factors contradicts the Respondent's submission that overtime is a concept unknown to the Island Award. In my view the difference between "Additional Hours" and "overtime is semantic only.
9. The second aspect of the argument depends upon the proposition that the Conditions Award draws a distinction between the concepts of additional hours and overtime. That submission is based upon the use of the words in cl. 11 of the Conditions Award. I was not referred to any authority which had considered cl 11 nor did I have the benefit of a full debate on its meaning.
10. In essence the submission is that the term "additional hours" is used in cl 11 in contradistinction to the word overtime and therefore it must be a different concept. That requires an acceptance of consistent use of language as a hallmark of the Conditions Award.
11. Nevertheless, on a plain grammatical construction of cl 11 the effect is to require, or permit, Department Heads to determine working hours and the means of recording an employee's hours of work. It also empowers Department Heads to direct employees to work hours additional to the determined working hours. It does not deal with the consequences of giving such a direction. Relevant definitions in cl 3 of the award include: 3.13 Daily span of hours means, for an employee required to work standard hours, the full time standard hours defined in this award. For an employee required to work flexible hours, the "daily span of hours" means the hours which normally fall within the bandwidth of the scheme applicable to the employee and which do not attract payment for overtime, unless otherwise prescribed in this award. 3.21 Flexible working hours credit means the time exceeding the contract hours for a settlement period and includes any time carried over from a previous settlement period or periods. 3.23 Flexible working hours scheme means the scheme outlined in clause 21, Flexible Working Hours of this award which enables employees, subject to operational requirements, to select their starting and finishing times and which replaces the Flexible Working Hours Agreement No 2275 of 1980. 3.26 Full day means the standard full time contract hours for the day, i.e. seven or eight hours depending on the classification of the employee. 3.28 Full-time contract hours means the standard weekly hours, that is, 35 or 38 hours per week, depending on the classification, required to be worked as at the date of this award. 3.36 Normal hours of duty means: for an employee working standard hours - the fixed hours of duty, with an hour for lunch, worked in the absence of flexible working hours; for an employee working under a flexible working hours scheme or local arrangement negotiated under clause 10, Local Arrangements - the hours of duty the Department Head requires a staff member to work within the bandwidth specified under the flexible working hours scheme or local arrangement. 3.43 Overtime means all time worked, whether before or after the ordinary daily hours of duty, at the direction of the Department Head, which, due to its character or special circumstances, cannot be performed during the employee's ordinary hours of duty. 3.58 Secretary means the Industrial Relations Secretary, as established under Part 4, Division 6 of the Act. 3.62 Standard hours are set and regular hours of operation as determined by the Secretary, or by the Department Head in accordance with any direction of the Secretary. Standard hours are generally the hours which were in operation prior to the introduction of flexible working hours or have been determined as standard hours for the organisation since the introduction of flexible working hours.
12. I note there are no definitions of "ordinary hours", notwithstanding the reference to the concept in the definition of "overtime, or "additional hours". It is unclear to me what flexibility remains to Department Heads to determine the hours of work given the definition of "normal hours of duty", the specification of: standard hours, cl 20; bandwidth and core time, cl 21; the requirement of agreement with the Association to develop "local arrangements", cl 10; and the requirement to comply with a direction of the Secretary in determining standard hours. Each of these observations undermines the idea that the Conditions Award has been carefully drafted to ensure consistent use of language.
13. Accordingly I prefer the plain reading of the clause. It deals with the specification of hours of work and the right of a Department Head to give directions from time to time, subject to the considerations specified, to depart from those normal or ordinary hours. The consequences of a Department Head giving a direction to work additional hours are found in other clauses of the Conditions Award such as cll 16, 88, and 89.
14. I reject the argument that there is a distinction of significance in the use of the terms "additional hours" and "overtime". Much less is there such a distinction which has the effect of supporting the proposition that overtime is a concept unknown to the Island Award.

Relief

1. In its Outline of Submissions the Notifier sought: 1. a recommendation or order that the PSA cease or refrain from taking industrial action in respect to the payment of meal allowances at Kempsey, Dillwynia, Wellington and John Morony Correctional Centres" and 2. for the purpose of exercising its functions in connection with this dispute, pursuant to s 175 of the Act, a determination that the entitlement to a meal allowance for employees covered by the Crown Employees (Correctional Officers, Department of Justice - Corrective Services NSW) for Kempsey, Dillwynia, Wellington and John Maroney Correctional Centres Award 2007 is governed by clauses 12.2.1 and 12.2.2 of the Crown Employees (Correctional Officers, Department of Justice - Corrective Services NSW) Award 2007 for Kempsey, Dillwynia, Wellington and John Maroney Correctional Centres Award and/or clause 94 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009.
2. At the conclusion of submissions I invited the Notifier to submit whether it had a preference for an order or recommendation in the event its arguments were successful. Mr Britt advised that the Notifier pressed only a recommendation at this stage. I posed the same question to the Respondent who advised it had no preference.
3. On reflection, I am not satisfied that the terms of the determination proposed are sufficiently directed to the resolution of the issue as it developed following the filing of the Respondent's written submissions. I am inclined to the view that the determination is better expressed as follows: 1. for the purpose of exercising its functions in connection with this dispute, pursuant to s 175 of the Act, the Commission determines that the entitlement to a meal allowance pursuant to cl 12.2.1 of the Crown Employees (Correctional Officers, Department of Justice - Corrective Services NSW) for Kempsey, Dillwynia, Wellington and John Maroney Correctional Centres Award 2007 is dependent upon the employee meeting the conditions specified in cl 94 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009.
4. For the reasons expressed above I propose to make the determination in [66(1)] and I make the recommendation in [64(1)].
5. The parties did not have the opportunity to consider this revised form of the determination. I will therefore grant the parties seven days to make submissions as to the proposed form of the determination. Any alternative form proposed should give effect to these reasons.

Other matters

1. In addition to the observations made at [44] and [61] there are several other examples of what appear to be infelicities of expression in the Conditions Award. A prime example is the use of the terms "ordinary daily hours of duty" and "normal hours of duty" to refer to the same thing. Such infelicities provide a cautionary note against investing too much weight in the use of a particular word in one context and a synonym in another context. These infelicities should be addressed in the s 19 Award review currently in progress.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2019