And later at p 157:
That Richards J simply restated a generally accepted industrial reality is indicated by the fact that there was no appeal from his decision. Furthermore, since 1969 there have been few decisions made on the subject.
20 In Race Clubs etc Employees (Cumberland and Newcastle) Award [1991] NSWIRComm 22, Cullen J followed the reasoning of Richards and Glynn JJ in concluding that, in effect, there must be a discrete or separate interval of work which abuts a normal or rostered interval of work before the recall to work provisions of the racing industry award would apply.
21 In Electrical Trades Union of Australia NSW Branch v Boral Hardies Pty Ltd (1993) 51 IR 412 Maidment J is said by Mr Nolan to have applied the plain ordinary English meaning test in construing the provisions of the Electricians etc (State) Award notwithstanding the effect of doubling payment or in other words, payment of a penalty on a penalty (in that case, the payment of a stand-by allowance and also a re-call payment). It is this approach which should commend itself to the Commission in the present case, according to the union argument and it is of no moment that the end result may be to confer upon firefighters in Station Officer Brown's circumstances, a benefit which is thought by the employer to be unduly generous. Mr Nolan submitted that the way in which to test the industrial merit of the provision, if the employer is so disposed, is to file and prosecute an application to vary the award.
22 That, however, is not a matter for these proceedings and should not distract the Commission in its approach to the task of properly construing cl. 9.6.1 of the award.
23 In that regard I was also taken by Mr Nolan to a South Australian case which involved the interpretation of a recall clause that for all practical purposes, is materially indistinguishable from the clause under consideration here. As will be seen, it also involved consideration and analysis, in some detail, of the decisions of Richards and Glynn JJ in the cases discussed above.
24 In Re Interpretation of the St John Ambulance Officers Award (1992) SAIRC 14 (27 March 1992), McCusker J of the Industrial Court of South Australia, after setting out the relevant provisions of the St John Ambulance Officers' Award, said this:
I remind myself that the interpretation of an award begins with the consideration of the natural and ordinary meaning of the words, read as a whole and in context. If there is no ambiguity, that ordinary meaning and effect must be upheld: see City of Waneroo v Holmes (1989) 30 IR 362 at 378, per French J, Atwood Oceanics Australia Pty Ltd v Commissioner of Taxation (1989) 30 IR 58 at 64 per Lee J, Re Health Administration Corporation (1985) 12 IR 122 per Sweeney J.
Mr Lieschke, for the Ambulance Employees' Association, contended essentially this. That once an employee, having completed his hours of employment, and not being an employee rostered on call, was recalled, his active compliance with the recall entitled him to an immediate sum equivalent of three hours at overtime rates. If he took ten minutes or if he took two hours fifty nine minutes, his reward was the same. Therefore, if the act of recall was made and complied with at any point in time before the commencement of rostered ordinary hours of duty for that officer, that whole sum became instantly due and owing, and had no connection with the sum which became due when the officer commenced his rostered ordinary time. In effect, as a result of Mr Lieschke's argument, if the officer received a recall at say 0500 hours, and had been rostered to commence ordinary hours at 0700 hours, and further, stayed at work, then for his recall he would receive three hours at the appropriate overtime, and from 0700 hours onward, would receive his ordinary rate of pay besides. Mr Beasley, for the St John Ambulance Service, argued that in the hypothetical case, the worker would be entitled to two hours at overtime, but as employment in the arranged sense followed, that truncated the three hour minimum at appropriate overtime rates provided in Clause 9(4). Mr Beasley's argument was that to do otherwise would result in double counting, the period 0700 to 0800 hours being rewarded twice, (i.e. double time for Clause 9(4) and at ordinary time). This, he argued, could not have been the intent of the award maker.
I was referred to two decisions, namely General Construction Award (1969) NSW (AR) 149 and Re Public Hospital Nurses (State) Award (1983) 51 IR 153. In the first of these, the circumstances concerned storm damage on a highway and the requirement for men to attend urgently to repairs. On the Monday, the day before the storm, they had completed ordinary hours, (with no overtime). On the next day, the Tuesday at 0515 hours, they were phoned and advised of recall and were collected by truck at 0530 hours. At 0700 hours, the damage was cleared and the men returned to their depot where ordinary hours commenced at 0730 hours. The award provided that when an employee was recalled to work after leaving his job, he shall be paid for a minimum of three hours at overtime rates. The workers argued they were entitled to the three hours at overtime rates and thus for the first hour, namely 0730 to 0830 hours, should have received pay at time and one half instead of ordinary time. As will be seen, the workers argued for less than Mr Lieschke argues in the subject case. The employer in the General Construction Case argued this was not recall, but merely the employees being summoned to start work earlier, and thereby entitled to the general overtime clause calculation. Richards J concluded the facts did not amount to a recall to work within the meaning of the award. He stated at [151]:-
The employees were summoned to return to work, after leaving their job on one day before the commencement of work on the next day, without having been given prior notice in an emergency situation, but I think it was a summons to commence their normal work early rather than a recall to work. Clauses 34 and 24 were, in my opinion, intended to cover the type of case where an employee was summoned to return to the job during the night, or in the early hours of the morning, to do an urgent job, and when the job was completed, he would return to his home before being required for his next normal days work.
The employees in the present case however, were summoned to work less than three hours prior to the commencement of their normal working time, travelled to work to do the job and on completion of the job merely presented themselves for their normal work. In such a case they did not incur the inconvenience of the extra journeys to and from their work which would occur in a true recall under cl. 34 and cl. 24 of the awards. The overtime rate would apply to them as employees starting early and their ordinary rate of pay would apply once their normal working hours commenced.
In Re Public Hospital Nurses (State) Award , the nursing staff employed in a hospital worked two shifts from 0830 hours to 2200 hours. Two members were called back to the hospital at 0600 hours to attend an emergency. They worked from 0700 hours through to 0830 hours when their normal shift commenced. They were paid overtime for the period 0700 hours to 0830 hours. It was regarded as one to one and a half hours in excess of the rostered daily ordinary hours of work. The award stated that all time work (sic) by employees in excess of the rostered daily ordinary hours of work was overtime. The award also stated an employee recalled to work overtime after leaving the employer's premises shall be paid for a minimum four hours work at the appropriate rate for each time so recalled.
The reasoning of the Industrial Commission includes discussion of the reasons for the minimum payment being provided for in call back situations. However, as a generality, the reasons that move an award maker to put similar provisions in other awards cannot, in my view, displace or substitute for the normal and ordinary consequence of the unambiguous language used. In this, the curial approach will have different disciplines to the arbitral approach. It is no part of the court's task to assign a meaning in order that the award may provide what the Court thinks is appropriate: see Australian Workers' Union v Graziers Association (NSW) (1939) 40 CAR 494. On the other hand, obvious absurdities of result must be presumed not to have been intended. The Commission in Re Public Hospital Nurses (State) Award decided the matter by adopting the limitation of what, recall, constituted, described by Richards J in the General Construction Award case. That is, the employee had to return home, or at least be released from duty by the employer at the completion of the emergency work, for it to become recall work. That means that, despite the employer recalling the employee, it was not until the employee finished the work and was released or returned home before normal starting time, that the recalling became a 'recall'.
The decisions referred to me deserve the utmost respect and are of a significant persuasive nature. But I am not ruled by them. In the end, I am not in agreement with their reasoning. One absurdity of the result is described by the learned Judge in Re Public Hospital Nurses (State) Award , namely a nurse recalled and who completes the work in one hour and returns home gets the equivalent of six hours wages, when the nurse recalled and works for three hours up to a normal starting time, will be entitled to four hours wages equivalent. Moreover, I am unconvinced that as a matter of legitimate approach, I am entitled to define recall in terms of return home when its ordinary usage does not necessitate or infer that. In my conclusion, a recall focuses on a situation of return at request to work after having completed the usual stint and before the time arranged for the next commencement in the ordinary course. It is the quality of the uncontemplated and unexpected that marks it. It is an extra to an arrangement generally in existence between employer and employee. Moreover, of prime importance to me is the usage, "shall be paid as for a minimum of three hours work". That is not concerned with the period the worker shall actually work, but rather the computation of the minimum reward that an employee shall receive, 'if recalled', and that reward in my view is not subject to qualification. This is the answer to the contention that the approach argued by Mr Lieschke necessitates the error of double counting. The worker, once recalled, is entitled to the full amount at the moment he complies, and that entitlement is quite disparate from the entitlement he will have when he starts work at the ordinary rostered time, the latter being referable to and wholly determined by different parts of the award. I am satisfied that such an approach allows Clause 9(1) work to do in those cases of overtime which are not brought into being by recall.
The answer therefore is that if the Ambulance Officer is recalled to work, otherwise than in an accordance with a direction given prior to the end of the Officer's shift, and less than three hours prior to the start of his/her next (planned) shift, though remaining at work until the commencement of that shift, the Officer is entitled to an amount equal to three hours overtime at the appropriate overtime rate, (as determined by Clause 9(2)), in any event and shall be paid for the whole shift worked besides.
25 As may be seen, a critical feature of McCusker J's reasoning was that the natural and ordinary meaning of the word 'recall' focussed on the act of returning to work and did not permit the act of being released from work to be imported into it. Thus the latter element did not constitute or form part of the meaning of the word 'recall' in the award.
26 The appeal against McCusker J's decision in St John Ambulance Officers (supra) was dismissed by the Full Court of the Industrial Court of South Australia (Stanley J, President, Allan and Crathorne JJ, Deputy Presidents) [1992] SAIRC 30 with the President observing:
In my opinion, it has not been shown that the learned judge erred in the interpretation which he placed on the provision in the award in the passage just quoted. In fact, I entirely concur with it. If I give the words contained in that award provision their normal grammatical meaning, a recall to work means simply that after a worker has left his place of work, the employer has requested him to come back there to carry out some unexpected or unplanned duties. There is no ambiguity in the sub-clause. Once an employee covered by this award has completed his work for the day and left the workplace and is recalled or summonsed to come back to work by the employer to perform duties, he is entitled to minimum payment for three hours work, no matter how long he remains there. It is the recall to duty which triggers the entitlement to the minimum payment. What occurs thereafter is irrelevant to that entitlement. To suggest that an employee must return home or leave the workplace before he becomes entitled to the minimum three hours payment is not a construction properly available on the working of this provision.
27 With every respect to the earlier decisions which have guided and until now been accepted by the industrial interests in this jurisdiction and notwithstanding Ms Anderson's vigorous submissions to the contrary (which I apprehend were based largely on the desirability of comity) I find the reasoning in St John Ambulance Officers, affirmed as it was on appeal, to be highly persuasive. To the extent that it supports the interpretation for which the union contends in this case, I propose to follow it.
28 Having said that, it may be appropriate for the parties to consider, going forward, whether in the wider context of the award, a firefighter who is told before ceasing work in one shift, that he or she is required for an early start prior to the next or subsequent shift (for whatever reason) can then claim to be entitled to payment for recall rather than general overtime. As McCusker J observed in St John Ambulance Officers, a recall focuses on a situation of return to work on request after having completed the usual stint and before the time arranged for the next commencement in the ordinary course. It is the quality of the uncontemplated and unexpected that marks it. It is an extra to the arrangement generally in existence between employer and employee. I am of the view that such an approach would be consistent and in harmony with the general overtime provisions of cl. 9.1 of the award and the recall provisions of cl. 9.6 of the award.
29 For the purpose of these proceedings, I determine that the proper interpretation of cl. 9.6.1 of the award is that for which the union contends. The proceedings are concluded accordingly.