NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Sutherland Shire Council

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia NSW Branch [2001] NSWIRComm 141

APPLICANT Klower J - the Union Oppitz R - the Union LEGAL REPRESENTATIVES: RESPONDENT Crowe R, barrister Williamson B, solicitor

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Sutherland Shire Council

Notification under section 130 by the NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Sutherland Shire Council and another re alteration of work roster of a member

1 The Commission has before it a dispute notification lodged by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("the Union") of a dispute with Sutherland Shire Council ("the Council" and "the Respondent") and another re alteration of work roster of a member. 2 The dispute notification was stated as follows: "a. Council are insisting that our member accept a substantial alteration to her roster that includes a requirement to work on weekends and a requirement to substantially alter her hours of work during the week. b. Our member has been employed by Council for over thirteen years and during this time has maintained a consistent roster which did not in any shape or form resemble the roster now proposed by Council.

c. Despite all efforts by the Union and our member to resolve this matter with Council, Council refuses to alter its stance.

d. The Union respectfully requests the assistance of the Commission in resolving this dispute." 3 The dispute notification was lodged on 30 August 2006 and re-allocated to Commissioner McKenna. Apart from the parties listed above, the other party listed in the dispute notification was the Local Government and Shires Association. 4 The dispute notification was listed before McKenna C on 6, 13, 20 September and 1 November 2006 for compulsory conferences, in Wollongong. 5 The Local Government Association of NSW was named in the dispute notification but did not appear at any time whatsoever. There is correspondence of 5 September 2006, on that organisation's letterhead, to say that the Council did not require representation by that organisation. 6 At the compulsory conference of 1 November 2006, the Union advised that negotiations had broken down and sought the setting down of a Hearing on the construction of the relevant industrial instruments. That is, the Union's argument was that the Council was not able to unilaterally alter the effected member's hours of work - given the construction of the relevant industrial instruments.

Mr Williamson agreed that conciliation was at an end. McKenna C duly issued a Certificate of Attempted Conciliation.

Mr Williamson made a s 173 disqualification application as well. 7 Pursuant to the s 173 application Wright J, President referred the file to the head of the Southern Panel, Grayson D P, who in turn, re-allocated the file to myself, Commissioner Macdonald. 8 My office set the matter down in Wollongong for Directions for Hearing on 13 November. A Hearing program was not put in place as further conciliation was agreed by the parties to take place. 9 Further conciliation was attempted before myself on 11 December but to no avail. A Hearing program was put in place: filing dates for evidentiary material and a two day Hearing in February 2007. 10 The matter was relisted on 15 and 20 February 2007 over non-compliance with the filing directions and the possible impact on going ahead with the two day Hearing on 22 and 23 February 2007.

Arising out of the proceedings of 20 February, the parties agreed to confer early on the first day of the Hearing to work through the objections to each other's witness statements. There were to be twelve (12) witnesses: seven for the Union and five for the Council. 11 On the first day of the Hearing, 22 February, the Commission was advised that the parties had conferred beforehand and had come to an agreement that the case would proceed without calling any of the witnesses. Thus, the case would proceed on the basis of oral submissions - supported by documentary material.

At the Hearing, the Union's case was put by Mr Jack Klower, assisted by Mr Rudi Oppitz.

The Council's case was put by Mr Rod Crowe, barrister, assisted by Mr Brian Williamson, solicitor. BACKGROUND

12 The union member at the centre of the dispute notification is Leonie Ewings who has been an employee of the Council for thirteen (13) years. Ms Ewings has spent all those years as a receptionist at the Sutherland Shire Council Leisure Centre. She began as a casual employee in 1993 and commenced full time employment in 1995 - working 38 hours per week: Monday to Friday. 13 At the time that Ms Ewings became an employee, the hours of opening of the Leisure Centre for the public was seven days per week. 14 The Council engaged casuals to cover the opening of the Leisure Centre on Saturdays and Sundays. 15 Ms Ewings was asked in 1999 and 2003, by the Council, to change her roster so as to include weekend work. She declined to do so on both occasions and relied upon the then relevant enterprise agreement which, she said, required the consent of an employee to agree to shift changes. 16 In June 2006, the Council's Acting Business Unit Manager, Manjeet Grewal presented Ms Ewings with a proposal to change her hours of work to include weekend work. By this time, the reception area of the Leisure Centre only had one full time employee, Ms Ewings. The remainder comprised part-timers and casuals.

Ms Ewings was opposed to the proposed change in her roster. She again relied upon the relevant enterprise agreement to say that her consent was required in order for there to be a change in her roster. Council did not agree with her interpretation of the relevant enterprise agreement. 17 This difference of opinion as to the Council's ability to legally alter Ms Ewings' roster from, Monday to Friday only, to a roster including weekend work, was at the centre of the dispute notification lodged by the Union. CONSIDERATION

18 The Commission has before it a dispute notification lodged by the Union. The subject matter of the dispute is the Union's claim that the Council is unable to direct a certain employee, Ms Leonie Ewings, to work a roster that includes weekends. Currently, and for many years, Ms Ewings has worked only a Monday to Friday working pattern. 19 The Union relies upon Clause 16 (iii) and 16 (v) of the Local Government (State) Award ("the 2004 Award") (Ex 6) to assert that the Council cannot unilaterally vary Ms Ewings' pattern of working hours. Such variation can only be by agreement of management and the employee(s) affected. 20 The Council submits that the pattern of working hours of Ms Ewings, can be varied by the operation of Clause 4.15 of the Sutherland Shire Council Employees Core Enterprise Agreement ("the 2004 Enterprise Agreement") (Ex 4).

Under the heading, Leisure Centre Staff found within Clause 4.15, there is a provision which states that the spread of hours for employees is 152 hours over four weeks over a 7 day period for employees at three Leisure Centres, one of which is Sutherland which is where Ms Ewings is employed.

Ms Ewings is an employee engaged as Leisure Centre Staff.

The Council then submits that it can direct Ms Ewings to vary her working pattern from her current five day working week (Monday to Friday) to a seven day working week. 21 The issue before the Commission is the resolution of the competing submissions of the parties and this requires the Commission to consider the principles to be applied to award interpretation. 22 The Commission sets out below the relevant extract on the approach to award interpretation taken by a Full Bench of this Commission in Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 at

"[63] The interpretation of awards are, in our view, to be approached in accordance with the principles authoritatively stated by the Full Bench of the Commission in Court Session in Bryce . Hungerford and Schmidt JJ stated there (at 452): "In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light." [64] Their Honours approved the approach adopted by Olney J in Norwest Beef Industries Ltd v Australasian Meat Industries Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 as follows: "If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd , 30 WAIG 539, at 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said: It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties. In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless." [65] The principles stated in Bryce have been applied on a number of occasions by this Commission: see, for example, Kellogg (Aust) Pty Ltd v National Union of Workers, NSW Branch (1998) 89 IR 391 at 392-395; Re Hospital Employees Conditions of Employment (State) Award (1999) 96 IR 245 at 255-256 per (2001) 106 IR 217 at 229. Wright J, President and Schmidt J; ALHMWU v Manilla RSL & Ex-Servicemens' Club Ltd [2000] NSWIRComm 122 at [40]-[42] per Boland J; Australian Workers' Union, NSW v NSW Technical and Further Education [2001] NSWIRComm 25 at pars 15, 17-19 per Schmidt J. [66] We consider that Hungerford J was correct in observing, in Kellogg (at 395), that the passages cited by the majority in Bryce represented a "long-standing and settled approach" to the task of award interpretation. [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 Ltd (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 Ltd 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 (NSW) 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 (2001) 106 IR 217 at 230 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. [70] It should be noted that the application of aids to construction, such as the "major and substantial" or "principal purpose" tests, should be approached with caution. The automatic adoption of such an approach may, depending on the terms of the award, have the potential for awards to be interpreted inconsistently with their plain words and, therefore, unnecessarily restrictively. This potential may be greatest when the scope of the award's coverage clause is expressed in broad and inclusive terms." 23 There are two industrial instruments that apply to hours of work for Ms Ewings - the 2004 Enterprise Agreement and the 2004 Award. 24 To determine which industrial instrument applies, the Commission will now apply the principles of award interpretation, to resolve firstly, which industrial instrument applies and secondly, the extent to which each industrial instrument applies with respect to hours of work and any prohibition on altering hours of work. 25 The first step in applying the principles of interpretation is to consider the plain, ordinary meaning of the words in question. 26 The 2004 Award contains a provision on Hours Of Work, which states that "the ordinary hours for all employees shall be worked between Monday and Friday inclusive ..." (Clause 16A. (i)) 27 The 2004 Enterprise Agreement states that it will be necessary for employees to work over a seven day spread (including Saturday and Sunday). (Clause 4.15 Hours of Work) 28 Given that the 2004 Award speaks of a five day week (Monday to Friday) (and the need for consent for an employee to change their hours of work) and the 2004 Enterprise Agreement speaks of an ability for the Council to unilaterally direct an employee to work a different pattern of hours, then there is a conflict between the two provisions, and hence an inconsistency. 29 The Respondent's Submissions/Statement Of Contentions does not accept the above conflict - inconsistency scenario. The Respondent's Submissions state that the 2004 Enterprise Agreement stands alone and does not require a reference to the 2004 Award.

The Commission rejects this submission. 30 The 2004 Enterprise Agreement makes reference to the Local Government (State) Award 2001 (the 2001 Award) - see clause 1.4(a) Scope of This Agreement.

The 2004 Award states that it rescinds and replaces the 2001 Award (Clause 40(ii) Area, Incidence And Duration) of the 2004 Award.

Therefore, the 2004 Enterprise Agreement (in making a reference to the 2001 Award), is to be read as making a reference to the 2004 Award. By "reference", the Commission means, that the 2004 Enterprise Agreement " is to be read in conjunction with " the 2004 Award. (Clause 1.4(a) Scope of This Agreement.)

Further, there is another limb to this "reference". Thus, the 2004 Enterprise Agreement also states, " Where this Agreement (the 2004 Enterprise Agreement) is inconsistent with this Award (the 2004 Award) then this Agreement shall prevail ." (Clause 1.4 (b))

Accordingly, the Commission rejects the Respondent's Submission that the 2004 Enterprise Agreement stands alone when considering conditions of employment of employees. 31 In summary of the foregoing, there is an inconsistency in the treatment of the hours to be worked by employees, depending on whether the 2004 Award or the 2004 Enterprise Agreement, is applied. There is an inconsistency because both of the abovenamed industrial instruments deal with the same subject matter, which is the spread of the hours of work. 32 Further to the above, the Commission will now deal with an aspect of Mr Crowe's submission that the Commission only has before it one industrial instrument, for consideration because of the operation of s 41(i) of the Act. 33 Section 41(i) states that "The provisions of an enterprise agreement prevail over the provisions of any State award of the Commission that deal with the same matters ..." However, section 41(i) goes on to qualify the foregoing as follows, "This subsection is subject to the terms of the enterprise agreement." In the matter before the Commission, the 2004 Enterprise Agreement states that, "This Agreement is to be read in conjunction with the Local Government (State) Award 2001, or as varied, ..." (Clause 1.4(a))

So, the above Clause 1.4(a), has the legal effect of still having two industrial instruments at play in respect of employees' conditions and therefore in respect of being before this Commission for consideration. 34 Prima facie, the conflict between these two industrial instruments as to which prevails, is settled in favour of the 2004 Enterprise Agreement. Thus, the 2004 Enterprise Agreement provides that employees, engaged as Leisure Centre Staff, can be rostered to work 152 hours each four weeks in a rotating cycle over a seven day spread. (Clause 4.15 Hours of Work)

The 2004 Award provides that the ordinary hours of employees shall be worked between Monday and Friday inclusive. (Clause 16(i) Hours of Work A. Spread of Hours)

There is a conflict between these two provisions and, prima facie, the 2004 Enterprise Agreement prevails.

However, there is a form of a savings provision contained in the 2004 Award which has application for certain employees only. (Clause 16(A)(iii))

The sub-clause reads as follows: "(ii) All working hours existing at the operative date of this award that have been validly entered into or which were in accordance with the hours clauses of the awards which preceded the Local Government (State) Award 1992 shall be deemed to have satisfied subclause (iii) of Part A of this clause ." 35 Ms Leonie Ewings is an employee whose working hours were in existence at the operative date of this 2004 Award (first pay period on or after 1 November 2004). 36 Sub-clause (ii) of Clause 16(A) goes on to say that if one of the two conditions set out in that sub-clause has been met then such working hours shall be deemed to have satisfied sub-clause (iii) of Clause 16. Hours of Work. Part A

37 Sub-clause (iii) of Clause 16A reads as follows: "(iii) Commencing and or finishing times provided for in subclause (i) of Part A of this clause and / or payment for the spread of hours may be altered by agreement between management and employee(s) concerned and the terms of the agreement referred to the consultative committee for recommendation to the council. "

The operation of sub-clauses (ii) and (iii) is to this effect: If an employee satisfies sub-clause (ii), then sub-clause (iii) is deemed to be satisfied. As Ms Ewings satisfies one of the two conditions contained in sub-clause (ii), that is, her hours of work (Monday to Friday) were in effect before 1 November 2004, then sub-clause (iii) is deemed to have been satisfied. 38 The significance of this deeming effect is that sub-clause (iii) states that her commencing and finishing times provided for in sub-clause (i) may be altered by agreement between management and herself. That is, management cannot unilaterally vary her commencing and finishing times. 39 Sub-clause (i) reads as follows: "(i) The ordinary hours for all employees shall be worked between Monday and Friday inclusive and shall not exceed twelve (12) hours in any one-day exclusive of unpaid meal breaks. "

This sub-clause does not refer to commencing and finishing times but, upon the Commission's reading, the spread of hours for all employees.

Although this is confusing, the Commission notes that Clause 16. Hours Of Work has two Parts: A and B. Part A is labelled, "Spread of Hours" and Part B is labelled, Arrangement of Hours. The Commission reads the reference to commencing and finishing times provided for in sub-clause (i), as meaning a reference to commencing and finishing times limited to the concept of a five day working period found in sub-clause (i). The five day period in question is Monday to Friday only.

The Commission also comments on its reliance upon Clause 16A (i) of the 2004 Award for resolving the issue before itself.

Initially, the Commission held that the 2004 Enterprise Agreement provision as to spread of hours (Clause 4.15) prevailed over the 2004 Award provision as to spread of hours (Clause 16A (i)). In saying that , the Commission was only stating that Clause 16A(i) became inoperative, as opposed to extinct.

The Commission has found that Clause 16A (i) is now operative, because of a savings provision that applies to Ms Ewings. 40 In summary so far, the Commission has found, prima facie, that the spread of ordinary hours of work over a seven day week set out in the 2004 Enterprise Agreement, prevailed over the spread of ordinary hours of work set out in the 2004 Award.

The Commission then considered whether there is any provision , as in a savings provision, that would alter this prima facie finding. The Commission considered a form of a savings provision found in the 2004 Award. The Commission found that the operation of this savings provision applied to Ms Leonie Ewings. The effect of that finding is that management cannot unilaterally change Ms Ewings spread of ordinary hours of work. That is, Ms Ewings would need to give her consent to any proposed change to her present Monday to Friday pattern of working ordinary hours of work. 41 Be that as it may, the Commission then considered whether there was a savings provision, on the same subject matter, in the 2004 Enterprise Agreement. If there is, then that 2004 Enterprise Agreement savings provision would over-ride the 2004 Award savings provision because Clause 1.4 Scope of This Agreement (a) states that "Where this Agreement is inconsistent with this Award then this Agreement shall prevail." The Commission has not been able to find a savings provision on the same subject matter in the 2004 Enterprise Agreement. Accordingly, there is no equivalent savings provision in the 2004 Enterprise Agreement that would prevail over the savings provision in the 2004 Award. CONCLUSION

42 Accordingly, the savings provision contained in Clause 16 at (ii), (iii) and (i) have effect and apply to Ms Leonie Ewings.

The practical effect of this finding is that management need the non-compulsion agreement (Clause 16(v)) of Ms Leonie Ewings, in order to alter her spread of ordinary hours of work now worked only Monday to Friday.

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