Prestige Property Services Pty Limited v Liquor, Hospitality and Miscellaneous Union

BACKGROUND 5 The primary facts are not in dispute. The following is therefore taken from his Honour's recital of the facts. 6 The Union is an organisation of employees registered pursuant to the WR Act. It claimed the relief which was granted at first instance. Since the commencement of operations by the Trust of the Victorian Arts Centre at 100 St Kilda Road, Melbourne, Prestige has provided cleaning services to the Trust, and for that purpose has employed a number of persons in the cleaning industry. 7 At times material to the proceeding, namely 1 February 1998 to 1 June 2003, the relevant award was initially the Building Services (Victoria) Award 1994 (the 1994 Award), and subsequently from 23 January 2003 the Building Services (Victoria) Award 2003 (the 2003 Award). The 1994 Award was made by the Australian Industrial Relations Commission (the AIRC) under the Industrial Relations Act 1988 (Cth), which subsequently became the WR Act, and the 2003 Award was made by the AIRC under the WR Act. Each of the Union and Prestige is a party to, and bound by, each of the 1994 Award and the 2003 Award. 8 There is no need to list the persons employed by Prestige who were found to have been underpaid by Prestige, or particulars of their classification under the relevant award. There was no dispute about the nature of their work, or the rates at which they were paid from time to time, or the rates which were applicable to them if the Union's contentions were correct. 9 The issue was simply whether they should have been paid the additional rates specified from time to time under cl 8A(a)(ii) of the 1994 Award, and then under cl 15.3.1(b) of the 2003 Award. 10 Clause 4 of the 1994 Award specified its incidence as follows: This award shall apply to the employment of employees being members or not of the Australian Liquor, Hospitality and Miscellaneous Workers Union, engaged in or in connection with the industries and/or industrial pursuits of contract cleaning. 11 Clause 8 of the 1994 Award specified the classifications and wage rates, including wage rates for full-time employees in cl 8 (B). It is common ground that Prestige paid its employees engaged in cleaning services at the Victorian Arts Centre pursuant to those rates. Prestige did not pay, but it was found that it should have paid, the additional sums specified in cl 8A(a)(ii) of the 1994 Award. 12 Clause 8A relevantly provides: Excess Supplementary Payment That in addition to the rates of pay prescribed in clause 8 - Classifications and wage rates, the following payments shall be made for all purposes of the award. (a) … (ii) S.G.D.I.: In premises of State Government Departments and Instrumentalities. Full-time; per week Building Attendant Grade One $24.70 Building Attendant Grade Two $25.90 Building Attendant Grade Three $28.40 elipses … No other provisions of the 1994 Award were said to be relevant to the appeal. 13 The 2003 Award was relevantly in the same general terms and with the same general coverage and structure. Clause 15.2.1 specifies the minimum weekly rates for full-time employees. From its commencement, Prestige paid its employees engaged in cleaning tenancies at the Victorian Arts Centre pursuant to those rates. 14 Clause 15.3 provides for 'Additional payments', relevantly as follows: 15.3 Additional payments That in addition to the rates of pay prescribed in clause 15 - Classifications and wage rates, the following payments shall be made for all purposes of the award. … 15.3.1(b) S.G.D.I - in premises of State Government Departments and Instrumentalities Full-time Per week $ Building Attendant Grade 1 25.44 Building Attendant Grade 2 26.68 Building Attendant Grade 3 29.25

… 15 Prestige did not pay, but it was also found that it should have paid, the additional payments specified in cl 15.3.1(b) of the 2003 Award from its commencement. 16 Hence, the issue at first instance, and on appeal, is simply whether the Trust is a "State Government Instrumentality" so that cl 8A(a)(ii) of the 1994 Award and then cl 15.3.1(b) of the 2003 Award applied to Prestige's employment of cleaners at the Victorian Arts Centre. It was common ground on the appeal that the Trust was not a "State Government Department".

The DECISION AT FIRST INSTANCE 17 His Honour firstly referred to the legislative history of the Victorian Arts Centre Trust. As those findings also were not contested on appeal, it is convenient simply to summarise them.

18 The National Art Gallery and Cultural Centre Act 1956 (Vic) (the 1956 Act) recorded by preamble that a power to reserve certain land as a site for a National Art Gallery and Cultural Centre had been given to the Governor-in-Council under the Melbourne South Land Act 1946 (Vic) and that it was expedient to make provision for the vesting of land in a committee constituted for the purpose of raising funds and providing a suitable building on that site. The "National Art Gallery and Cultural Centre Building Committee" (the Committee) was established by s 3 of the 1956 Act as a body corporate. In 1972, by amendment to the 1956 Act, the name of the Committee was changed to the "Victorian Arts Centre Building Committee". Section 5 of the 1956 Act provided for the grant to the Committee of the land reserved for that purpose. Section 9(1) provided that the Committee would be entitled to the rents and profits of any land granted to it by the Crown. Amendments to the 1956 Act in 1959 included granting power to the Committee to borrow on terms and conditions approved by the Treasurer of Victoria, and the grant of a power to the Treasurer to guarantee the repayment of any sum borrowed by the Committee with the Treasurer's approval, including interest on such borrowing. 19 The VAC Act came into operation on 13 March 1980. It established the Trust. Section 4 provides: (1) There shall be established a body corporate by the name of the Victorian Arts Centre Trust which shall have perpetual succession and a common seal and shall be capable in law of suing and of being sued and of taking purchasing holding demising selling transferring conveying mortgaging or otherwise disposing of real and personal property for the purposes of and subject to this Act and of being and suffering in all acts matters and things which bodies corporate may by law do and suffer. (2) Subject to the general direction and control of the Minister the Trust shall be responsible for the management of the Centre. The Committee ceased to function on that day and the Trust became its successor in law. The property previously vested in the Committee became vested in the Trust. The word "Centre" is defined in s 3 of the VAC Act to include the land on which is now constructed the Victorian Arts Centre and associated buildings and improvements.

20 Section 5 of the VAC Act sets out the functions of the Trust. They are as follows: (1) The functions of the Trust are - (a) to control, manage, operate, promote, develop and maintain the Centre; and (b) to present and produce theatrical performances, operas, plays, dramas, ballets and musical and other performances and entertainment of any kind at any place; and (c) To promote the use of the theatres, concert hall and other places of assembly by suitable persons and bodies; and (d) to provide leadership in the promotion and development of the performing arts; and (e) to ensure the maintenance, conservation, development and promotion of the State collection of performing arts material; and (f) to oversee the exhibition of performing arts material from the State collection and make any performing arts material from the State collection available on loan to persons or institutions; and (fa) to establish, maintain, conserve, develop, promote and exhibit the public art collection; and (fb) to make any object from the public art collection available for study or loan to persons or institutions, subject to any conditions that the Trust determines; and (g) to carry on, whether within or outside Victoria, whether alone or in association with any other person or persons and whether or not in relation to the centre, a business of providing ticketing, inventory management of admissions, marketing and related services; and (h) to perform any other functions appropriate to the Centre as the Minister may approve; and (i) to carry out any other function conferred on the Trust under this Act. (2) In carrying out its functions, the Trust must endeavour to contribute to the enrichment of the cultural, educational, social and economic life of the people of Victoria. 21 Section 6 sets out the powers of the Trust, which his Honour described as 'the sorts of powers ordinarily conferred on a statutory corporation, with the addition of some that might be considered unusual for a government body'. His Honour noted as an example of those powers the following in s 6(2): … (e) to apply for and hold any licence or permit under the Liquor Control Reform Act 1998 or any other Act; (f) to register, purchase or apply for or otherwise acquire either wholly or in part any invention, copyright, trade-mark or other mark or design, patent, patent rights and privileges, licences, concessions or other like rights which in the opinion of the Trust will be of assistance to the Trust in carrying out its functions and to sell, dispose of, use, exercise and develop such rights or inventions or to grant licences or privileges in respect thereof; … (h) to install, use, work and maintain film cameras and projectors and broadcasting and television apparatus, and to grant the right of installing, using, working and maintaining the same within the areas under its control upon such terms and conditions and subject to the payment of such charges as may be determined by the Trust; (i) to print or reproduce in any manner or form and to publish or to arrange for the printing or reproduction or publishing of plays, music, programmes, posters and advertisements and such other material as the Trust may deem expedient and to acquire the copyright therein; (j) to commission plays, compositions, musicals, ballets, operas or other works; 22 Subsequently, ss 3A and 3B of the VAC Act were introduced to provide that the Trust has vested in it collections of performing arts material and artworks. Section 18 of the VAC Act provides that the Trust may not sell or dispose of any item that is part of those collections without advertising its intention. It also provides that, if any objection is received, the decision whether to sell is one for the Minister, or a delegate of the Minister, rather than the Trust. 23 As was previously the case with the Committee, the Trust's borrowing powers, conferred by s 7 of the VAC Act, are confined to borrowing with the approval of the Treasurer and subject to such terms, conditions and limits as the Treasurer imposes. Again, the Treasurer has power under s 7(3) to guarantee repayment of such borrowing including the payment of interest charges and expenses. Any liability under such a guarantee is to be met from the Consolidated Revenue Fund of Victoria. 24 His Honour noted two further features of the VAC Act. By amendment to the VAC Act in 2000, s 14(4) provided that a person employed by the Trust is not, in respect of that employment, subject to the provisions of the Public Sector Management and Employment Act 1988 (Vic). Also, by amendment to the VAC Act in 1994, s 18A was inserted to give the Trust powers to make by-laws. 25 His Honour then referred to the Arts Victoria Act 1972 (Vic) (the Arts Victoria Act) which creates the office of Director, Arts Victoria and provides for the appointment of a body called the Victorian Council of the Arts. He noted the functions and objects of the Victorian Council of the Arts and of the Department of the Premier and Cabinet under that Act. 26 His Honour then said that it was clear, as is now common ground, that the Trust is not a State Government Department for the purposes of the phrase "State Government Departments and Instrumentalities" in the relevant clauses in the 1994 Award or the 2003 Award. His analysis of the Arts Victoria Act and the respective responsibilities which it conferred indicated a clear contrast between the Trust and Arts Victoria, which is described as a division of a State Government Department. 27 His Honour then identified the relevant test for determining whether a particular body is an "instrumentality" of a State Government, within the ordinary meaning of that term. It was explained in Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation (1992) 175 CLR 442 at 448 where the Court (Mason CJ, Brennan and Gaudron JJ) said: It is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning. However, the expression "State instrumentality" is one that carries much the same meaning in popular usage as in a legal context. That meaning directs attention to the purpose or end served, so that a body is a State instrumentality if it is empowered to and does, in fact, serve some State government purpose. And that is so even if it is neither a servant nor an agent of the State. 28 The features of the Trust's role which the learned judge at first instance identified as significant included the extent to which it is subject to ministerial control. His Honour also described its principal purpose as holding title to, and managing, the public asset which is the Victorian Arts Centre, so that its extensive powers and functions, including to act "as an impresario and a promoter", were to serve that principal public purpose by managing the important public asset vested in it. The removal of its employees from the area of operation of the Public Sector Management and Employment Act 1998 (Vic) was, his Honour said, simply a means of achieving the degree of flexibility thought to be necessary for the Trust to exercise its range of powers. His Honour also had regard to the delegation of legislative power by the grant of the power to make by-laws as indicating that the Trust was established to serve a government purpose. 29 The judge at first instance then concluded: The examination of the legislative history, and of the current state of the VAC Act, makes it difficult to avoid the conclusion that the Trust is both empowered to serve, and does serve a State Government purpose. That purpose is the control and management of a significant public asset, which successive governments of Victoria have wished to make available for the economic and cultural enrichment of the citizens of Victoria. The information on the Trust's web site confirms this view. The Trust therefore falls clearly within the ordinary meaning of the phrase 'State instrumentality'. 30 His Honour then addressed the contention of counsel for Prestige that, by adopting a purposive construction of the expression "State Government Departments and Instrumentalities", and having regard to the history of the 1994 Award and the 2003 Award, the expression should not bear its ordinary meaning. 31 His Honour observed that, in about 1992, the Victorian Government generally began to contract out the cleaning of government premises. The Union or one of its predecessors applied to the Industrial Relations Commission of Victoria (the IRCV) to vary the Building Services (State Government Departments and Instrumentalities) Award (the BS (SGDI) Award (Vic)) by having inserted a clause which would ensure that conditions in that award, which were superior to those in the then Building Services Award (the BS Award (Vic)), would continue to be available to employees cleaning government premises in Victoria, despite the fact that by contracting out the cleaning of government premises, those employees were employed by contractors and not by the State of Victoria itself. 32 On 21 September 1992 Commissioner Pimm of the IRCV inserted into the BS (SGDI) Award (Vic) a new clause, designated as cl 1A Incidence of Award, which relevantly provided: The Building Services (State Government Departments and Instrumentalities) Award applies to the whole of the State of Victoria for persons engaged in the provision of building services in the occupations of building attendant, caretaker, cleaner, lift attendant or security officer, howsoever designated, employed - (a) By a contractor engaged by a State Government Department or Instrumentality. …

A new Building Services (State Government Departments and Instrumentalities) Award (the later BS (SGDI) Award (Vic)) came into force on 29 October 1992. It superseded the former award of that name. It also contained that clause. 33 It was contended on behalf of Prestige that the purpose of that Incidence of Award clause was to ensure that the superior terms and conditions of employment enjoyed by cleaners employed by the State of Victoria up to that time continued to apply when the State contracted out the cleaning of its premises. At that time and indeed since the commencement of its operation in 1981, cleaners at the Victorian Arts Centre had been employed by an external contractor, and so (it was argued) were not affected by the Incidence of Award clause as introduced in 1992. It is not in dispute that Prestige provided cleaning services to the Trust in respect of the Victorian Arts Centre since about 1981, so that at no relevant time were its employees at the Victorian Arts Centre earlier employed by the Victorian Government, and at no relevant time were its employees in fact paid under the BS (SGDI) Award (Vic) as in force from time to time. 34 On 1 March 1993, all awards of the IRCV expired upon repeal of the Industrial Relations Act 1979 (Vic): s 172(6), Employee Relations Act 1992 (Vic).

35 Shortly thereafter, the Union sought a Federal award for cleaners. On 25 October 1993, a Full Bench of the AIRC published a decision following a review of wage fixing principles. One principle provided that: In awards regulating the employment of workers previously covered by a State award or determination, existing State award rates and conditions prima facie will be the proper award rates and conditions. 36 Negotiations about a Federal award led to a Memorandum of Agreement dated 16 March 1994 between the Union and certain employer organisations. It relevantly recorded that its parties would jointly apply for a Federal award that prescribes rates of pay and allowances as prescribed for the cleaning industry in the former BS Award (Vic) and in the later BS (SGDI) Award (Vic), and other awards in Victoria. The proposed award was to prescribe common conditions of employment for the cleaning industry. 37 The Memorandum of Agreement acknowledged that the implementation of that arrangement should be in two stages. The first was an application to the AIRC for a minimum rates award in similar terms to those in the former BS Award (Vic). The second stage was to incorporate the paid rates in the former awards applicable to the cleaning industry as separate parts into the proposed Building Services Award. Following the Memorandum of Agreement, the 1994 Award was made by the AIRC by consent on 26 April 1994, operative from 1 February 1994. It was, at the time. a minimum rates award, in terms similar to the BS Award (Vic) in its scope and incidence. 38 His Honour accepted that cl 8A of the 1994 Award was inserted into the 1994 Award without opposition to give effect to the Memorandum of Agreement of 16 March 1994, and reflected the second stage contemplated for its implementation to preserve the rates applicable to the contract cleaning industry in Victoria previously covered, inter alia, by the later BS (SGDI) Award (Vic). 39 His Honour said: This history might be of some assistance to the respondent's case if there were any evidence that the non-payment of rates specified in the Building Services (State Government Departments and Instrumentalities) Award to those employed as cleaners at the Victorian Arts Centre had ever been the result of a conscious decision not to apply those rates, or an awareness that, for some reason, they were inapplicable. For present purposes, I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken, however, to distinguish a common understanding from common inadvertence. If the only reason why the government instrumentality rates were not paid at the Victorian Arts Centre was that neither the union nor the employer adverted to the possibility that there was an obligation to pay them, no common understanding results. In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no-one has thought about the issue. 40 His Honour did not think that there had ever been a common understanding that the persons employed as cleaners at the Victorian Arts Centre should be paid only under the paid rates prescribed in the BS Award (Vic). Although it appeared that they had been paid under that award or its predecessors from the time the Trust took possession of the Victorian Arts Centre in 1981, his Honour thought that it was only in recent years that the Union had realised that there was a possibility that those employed as cleaners at the Victorian Arts Centre had been underpaid. He found that no-one had adverted to the status of the Trust, and in particular as to whether it was a State Government instrumentality for the purposes of either of the earlier State awards or the 1994 Award, when the 1994 Award was introduced. Consequently, he said, no common understanding ever existed. He did not accept that the Union had changed its mind about the scope of application of cl 8A(a)(ii) of the 1994 Award, or cl 15.3.1(b) of the 2003 Award, but simply that no common understanding ever existed as to the scope of application of those clauses. 41 Nor did his Honour accept the further argument that the phrase "State Government Departments and Instrumentalities" had become a term of art in relation to industrial agreements operating in Victoria by the time of the 1994 Award. He did not accept that the capitalisation of the word "Instrumentalities" in each of cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award, and the earlier Victorian award, indicated that a particular meaning of that word had been intended. There was also no separate definition of the word "Instrumentalities" in any of those instruments.

42 Finally, his Honour rejected the further argument that possible anomalies might arise from the application of cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award to high rise buildings, occupied by a mix of tenants, only some of which were State Government entities. As his Honour pointed out, that hypothesis did not apply to the Victorian Arts Centre which is occupied by the Trust. 43 His Honour then proceeded to consider other arguments in support of a purposive construction of the 1994 Award. As his Honour pointed out, the Memorandum of Agreement did not expressly advert to the present circumstances. It was clearly to preserve rates of pay 'as they were prescribed'. However, in recognising that, and therefore in recognising that the purpose was to preserve the higher rates of pay for those employed in cleaning in the premises of 'State Government Departments and Instrumentalities', his Honour did not consider any support emerged for the proposition that the Trust was not included within that description. 44 For those reasons his Honour concluded that the Trust was a State government instrumentality, and that Prestige had been obliged to pay the additional payments referred to above to its employees engaged in cleaning the Victorian Arts Centre.

THE GROUNDS OF APPEAL 45 Prestige's Notice of Appeal contains five grounds, but they are merely assertive: that the decision at first instance was erroneous, that the Trust is not a State Government instrumentality for the purposes of the two Awards; that the judge at first instance gave excessive weight to elements of the nature of the Trust's status and powers; that the two Awards did not oblige Prestige to pay the additional allowances; and that his Honour gave insufficient weight to the circumstances prevailing at the time of the 1994 Award. Those circumstances were said to be that none of the employees of Prestige employed in cleaning the Victorian Arts Centre had ever been employed by the Trust as cleaners, nor had ever been paid the allowances prescribed by cl 8A(a)(ii) of the 1994 Award or cl 15.3.1(b) of the 2003 Award; and that until the 1994 Award those employees had been paid under the BS Award (Vic) and not under the BS (SGDI) Award (Vic). Prestige also pointed out in its Notice of Appeal as one of the relevant matters to which insufficient weight was given that neither the Union nor any of the affected employees, some of whom were said to be "industrially militant", had complained that the rates of pay were inappropriate until after the 2003 Award. It is not suggested his Honour misapprehended any of those facts but that he did not give them sufficient weight. 46 In essence, the appellant re-argued the matters which had been argued at first instance and contended that the conclusion reached at first instance should not have been reached. As noted above, there were two contentions at first instance which would have reached the result that the appellant was not obliged to pay its employees engaged in cleaning the Victorian Arts Centre the allowances prescribed by cl 8A(a)(ii) of the 1994 Award and by cl 15.3.1(b) of the 2003 Award. They were firstly that the Trust is not a State Government Instrumentality as that term is used in those clauses of the respective awards, having regard to the historical, legislative and industrial context in which those clauses came to be part of those respective Awards. It would be fair to say that the appellant's emphasis on the appeal was upon that contention. Secondly, and alternatively, it was argued that the Trust is not a State Government Instrumentality within the normal meaning of that term in any event. 47 The first of those contentions led the appellant to say in its written submissions that the expression "in premises of State Government Departments and Instrumentalities" in each of the clauses of the 1994 Award and the 2003 Award is a reference to: … premises of a State government department or instrumentality where cleaning work has been contracted out which was previously undertaken by direct employees of the department or instrumentality, who had an entitlement to a higher rate of pay (being a paid rate) than the rates prescribed in the minimum rates industry award, i.e. the Building Services Award 1992 (Vic) and its predecessors. 48 The respondent pointed out that the consequence of that construction of the relevant clauses would be that some "State Government Departments and Instrumentalities" in the ordinary sense would be encompassed within their scope and others would not, depending upon whether the instrumentality had previous directly employed cleaners, and perhaps also depending upon whether the contractors engaged to clean the premises of that instrumentality had in fact received the paid rate. More importantly for immediate purposes, the respondent also contended that the issue thereby raised was not put at first instance, and should not now be entertained, as the respondent may have responded to it by calling further evidence or may have conducted its case differently. In particular, it initially argued that it may have called further evidence about the circumstances in which the earlier BS (SGDI) Award (Vic) was varied by the IRCV on 21 September 1992. 49 Allied to that objection of the respondent is the Notice of Contention of the respondent. In the event that the Court concluded that it is appropriate to look to the purpose for which, in particular, cl 8A(a)(ii) of the 1994 Award was included in the 1994 Award, the respondent referred to the findings of the judge at first instance in the following passage: In or about 1992, the Victorian Government began to contract out the cleaning of government premises. As a consequence, the applicant or one of its predecessor unions applied to the Industrial Relations Commission of Victoria to vary the Building Services (State Government Departments and Instrumentalities) Award. The variation sought was the insertion of a clause that would ensure that the conditions in that Award, which were superior to those in the Building Services Award, would continue to be available to employees cleaning government premises in Victoria, although those employees were employed by contractors and not by the State of Victoria itself. The respondent contended that his Honour erred in making those findings, and that they should not have been made. If those findings had not been made, so the contention runs, the contextual or purposive construction of cl 8A(a)(ii) of the 1994 Award and its successor cl 15.3.1(b) of the 2003 Award for which the appellant contended could not be supported. There was, says the respondent, no evidence to support those findings and indeed such evidence as there was on the topic went the other way. 50 In our view, the argument that cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award should be construed in their historical, legislative and industrial context was squarely raised at first instance. 51 A substantial part of his Honour's judgment addresses that very argument. It may be that the precise expression of the construction contended for by the appellant was not enunciated in the way that the written submissions on appeal express it. But it is clear that the appellant at all times contended that it was not caught by the operation of the relevant clauses because it had at all material times provided cleaning services to the Trust and had properly paid its employees under the BS Award (Vic) or its predecessors prior to the 1994 Award, and continued to do so notwithstanding the amendment to the earlier BS (SGDI) Award (Vic) and its continued expression in the later BS (SGDI) Award (Vic), both of which events occurred in 1992, because the amendment was not intended to apply to it (or employees in similar circumstances). It is also plain that evidence to support that contention was adduced and tested during the hearing at first instance. The oral and written submissions of the appellant put at first instance also confirm that to be the case. It was a matter for the parties to determine what evidence they adduced on that issue. It was then for the learned judge at first instance to make findings on that evidence as he considered appropriate. If there is other evidence which might have been, but was not, adduced by the respondent on that issue at the hearing, we reject the proposition that it may not have done so because the issue was not squarely before the Court. The principles identified in Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418 at 438 and Coulton v Holcombe (1986) 162 CLR 1 at 7-9, and applied, for instance, in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 and in Li Pei Ye v Crown Limited [2004] FCAFC 8 at [76] - [80], do not operate to restrict the appellant from pursuing that contention on the appeal. The issue was raised at first instance, and there is no injustice to the respondent in it being raised on appeal in the way it is now expressed. 52 The parties agreed that not all relevant material on the background of, and context to, cl 8A(a)(ii) of the 1994 Award was drawn to his Honour's attention at first instance. That may be because, at the time, the judge at first instance was told that the relevant change to the earlier BS (SGDI) Award (Vic) occurred to extend its reach from persons employed by a State Government department or instrumentality to persons employed by a contractor engaged by a State Government department or instrumentality. His Honour specifically asked for the history of the incidence clause as it existed before that date and was told that the history was not readily accessible, and that given the purpose of the change, would not be likely to be helpful. 53 On appeal the parties agreed that there was other information relevant to that history. In particular, we were provided with the statement of reasons of the Building Services (State Government Departments and Instrumentalities) Conciliation and Arbitration Board established under the Industrial Relations Act 1979 (Vic) (Decision D91/0081, published on 20 March 1991); reasons for decision of the IRCV (Decision D92/0429, published 29 September 1992); and the reasons for decision of Commissioner Pimm of the IRCV (Decision D93/0030, published on 12 February 1993) for inserting the new cl 1A Incidence of Award clause into the BS (SGDI) Award (Vic) on 21 September 1992, as referred to in [32] above. With the consent of the parties the Court was invited to have regard to that material. 54 The respondent acknowledged that, had it had the opportunity to present evidence on the contention which it says was a new argument, that is the material it would have relied upon. Consequently, as the parties have consented to that material being considered on the hearing of this appeal, in any event there is no prejudice to the respondent in that argument now being addressed. 55 Before turning to consideration of the contentions, it is also appropriate to refer briefly to the notice of contention of the respondent. It was filed only during the submissions of the respondent on the appeal, and prompted by an exchange between counsel and the Court. For the reasons which appear below, it is not necessary to address that contention as we consider that the appeal should be dismissed. We note, however, that there was some evidence of the State of Victoria contracting out cleaning services variously from about 1962, or from the late 1960s.

CONSIDERATION 56 The first and principal contention of the appellant requires a long temporal stride in reasoning to succeed. The starting point both at first instance and on this appeal was that the issue depends upon the language of the particular clauses of the 1994 Award and the 2003 Award referred to, as understood in their industrial context and purpose: see e.g. per Gleeson CJ and McHugh J in Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2]. See also per Burchett J in Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 518.

57 The common position that the parties adopted at first instance was that the expression "State Government … Instrumentalities" in cl 8A(a)(ii) of the 1994 Award, and later in cl 15.3.1(b) of the 2003 Award, had the same meaning as the identical expression as introduced into the earlier BS (SGDI) Award (Vic) on 21 September 1992. As is apparent from the discussion above, the immediate context of the 2003 Award is simply it being the successor of the 1994 Award. It is appropriate, therefore, to focus on the proper construction of cl 8A(a)(ii) of the 1994 Award. 58 The immediate context of the 1994 Award is the Memorandum of Agreement of 16 March 1994. It was to give effect to the decision of the Full Bench of the AIRC of 25 October 1993 indicating that prima facie the employment of workers previously covered by a State award should be covered by an award with the same award rates and conditions in the circumstances created by the operation of s 172(1) of the Employee Relations Act 1992 (Vic). 59 The appellant's first contention, however, requires a long temporal stride because the relevant context is said to include the decision of the Building Services (State Government Departments and Instrumentalities) Conciliation and Arbitration Board leading to the first BS (SGDI) Award on 14 March 1991. That award expressed its jurisdiction clause to encompass contractors engaged by a State Government department or instrumentality, and it included a base rate and a supplementary payment (inter alia) for persons employed as cleaners. It indicated that the amount of minimum rates adjustment may be absorbed into any then existing over award payment. There is also a reference in Decision D92/0429 referred to above to the establishment of a separate private sector Building Services Conciliation and Arbitration Board. 60 The reasons for approval of the decision of the Building Services (State Government Departments and Instrumentalities) Conciliation and Arbitration Board, published on 20 March 1991, indicate that that Board itself had been established on 13 March 1991 by decision of the Full Bench of the Victorian Conciliation and Arbitration Commission, replacing and amalgamating various Boards including the Cleaners Conciliation and Arbitration Board. They also show that the first BS (SGDI) Award (Vic) was to incorporate all provisions of (inter alia) the Cleaners Award (Vic), and that the employer members of the Board expressed no opposition to that award being a paid rates award. It was to ensure continuity of rates of pay and conditions under the Cleaners Award (Vic). 61 There is nothing in those reasons to indicate the rate at which cleaners employed by the appellant or by other contractors supplying cleaning services were entitled to be paid under the pre-existing Cleaners Award (Vic) made by the Cleaners Conciliation and Arbitration Board. Nor did the employer members of the Building Services (State Government Departments and Instrumentalities) Conciliation and Arbitration Board apparently seek to distinguish between the position of those contractors supplying cleaning services to State Government instrumentalities whose employees had not at any time been directly employed by the State of Victoria as cleaners and those whose employees had at some past time been employed by the State or one of its instrumentalities. They also did not apparently seek to distinguish the position of any contractors who, at any particular time in the past, may have commenced supplying cleaning services to State Government instrumentalities whose employees may have been paid by a particular instrumentality under a paid rates award and who may thereafter have been paid on a different basis. 62 There was also no evidence adduced at first instance about how many contractors supplying cleaning services to a State Government instrumentality in Victoria supplied those services from the commencement of operations of that instrumentality, that is that the instrumentality never employed its own cleaners. Nor was there evidence at first instance about how many contractor cleaners supplying cleaning services to a State Government instrumentality at the time of the Cleaners Award (Vic) made by the Cleaners Conciliation and Arbitration Board employed cleaners previously employed by a particular instrumentality, and how those persons were paid at particular times. The terms of the Cleaners Award (Vic) were also not adduced in evidence, although it was described as a common rule award with rates slightly lower than those applicable to persons who were, or had been, employed as cleaners directly by a State Government department or instrumentality. 63 The fact that the Cleaners Award (Vic) reflected the provisions which applied under the pre-existing award, was again recognised in the IRCV reasons for decision of 29 September 1992. That decision explained that the proposed paid rates classification structure was to replace the existing minimum award rates and the overaward payments made under the State Incremental Payments Scheme (SIPS). It approved the amendment of the BS (SGDI) Award (Vic) to give effect to an agreement apparently between the respondent and the Victorian Government, without opposition from the employer organisations which appeared, namely the Victorian Employers' Chamber of Commerce and Industry and the Australian Chamber of Manufacturers. The approved amendments related to wage rates and to conditions of employment. The reasons record: It should be noted that, although the award covers employees of contractors, the agreement provides that only the rates of pay for the employees of contractors are to be specifically determined in this Award. It is agreed that the non-wage conditions of employment of employees of contractors should be those which apply under the private sector Building Services Award. I note that the background to the SIPS arrangements is discussed by Ryan J in P & O Services Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Services Union [1999] FCA 1129 at [35]. 64 Again, that was an opportunity for the employer representatives to identify any issues as to the proposed amended terms of the BS (SGDI) Award (Vic) or to seek to clarify the scope of operation of that proposed amendment. There is no evidence to indicate that any such issue was raised, whether concerning the appellant's particular circumstances, or concerning those of contractors providing cleaning services to State Government departments and instrumentalities which also fell into either of the categories referred to in [61] above. 65 The third document referred to in [53], namely the reasons of Commissioner Pimm of the IRCV of 12 February 1993 attracts the same comments. The Incidence of Award clause then inserted into the BS (SGDI) Award (Vic) was discussed by the learned judge at first instance: see at [32] above. Commissioner Pimm's reasons disclose that the two employer organisations referred to each supported the insertion of that clause. Again, there is nothing to indicate that any issue was raised concerning the particular circumstances of the appellant or those of other contractors within the same two categories. 66 An illustration of that approach to the construction of cl 8A(a)(ii) of the 1994 Award is provided by the decision of Marshall J in Liquor, Hospitality and Miscellaneous Union v Prestige Property (2005) 141 IR 105. In that case, the respondent (the appellant in this appeal) provided cleaning services to the owners of two commercial buildings of which, in one instance, a State Government Department was a tenant of some floors and, in the other case that Department occupied the whole building. His Honour concluded that cl 8A(a)(ii) was intended to make payable to those persons employed as cleaners, and who had previously been entitled to the rates prescribed by the BS (SGDI) Award (Vic) the allowance which would maintain their former entitlements under that Award. Hence, the difference in wording between the relevant clauses of the 1994 Award and the BS (SGDI) Award (Vic) did not result in their different application. As it appears to have been common ground that the BS (SGDI) Award (Vic) did not apply to the respondent (the appellant in this appeal) where its contract to supply cleaning services was with a building owner who had a government department as a tenant, it was therefore not obliged to pay its employees cleaning those buildings the additional payment prescribed by cl 8A(a)(ii) of the 1994 Award. 67 On this appeal, it was common ground that cl 8A(a)(ii) of the 1994 Award had the purpose of, and should be construed as, securing for the employees to whom applied the paid rates previously prescribed by the BS (SGDI) Award (Vic). That is clear from the history and industrial context referred to above and by the judge at first instance, as well as from the evidence. It was to the effect that, at the time the Memorandum of Agreement was negotiated, there was no discussion about extending the scope of application of the BS (SGDI) Award (Vic) and the particular circumstances of the appellant were not discussed. It does not follow that there was any intention to exclude the appellant, or other contract cleaners, from the operation of cl 8A(a)(ii) of the 1994 Award. That issue was simply not discussed. 68 It does not follow from that decision that a contract cleaner such as the appellant who contracts directly with a State Government instrumentality to provide cleaning services necessarily is obliged by cl 8A(a)(ii) of the 1994 Award to pay its employees those benefits to equate the rates payable under the BS (SGDI) Award (Vic). Marshall J was not called upon to address that particular issue. 69 Indeed, the issue on this appeal must be addressed not by identifying what the appellant prior to 1994 had in fact paid its employees engaged in cleaning the Victorian Arts Centre. There is nothing in the contextual materials or in the background to the 1994 Award to suggest that the appellant's particular practice in that regard is relevant to, much less indicative of, the proper construction of cl 8A(a)(ii) of the 1994 Award. There is no evidence that the appellant's particular circumstances (as a contract cleaner to a State instrumentality) from the time the instrumentality first required cleaning services, or as a contract cleaner to a State instrumentality which, at the time the new Clause 1A Incidence of Award was inserted into the BS (SGDI) Award (Vic) on 21 September 1992, was paying its employees under the BS Award (Vic)), should be taken to be relevant background. The reformulation of the appellant's proposed construction of the expression "in premises of State Government Departments and Instrumentalities" set out in [47] above acknowledges those matters. 70 The appellant, by the additional material adduced on the appeal, has now traced the general history of the ancestor awards of the BS (SGDI) Award (Vic). That material goes only to a certain point, as noted in the reference to that material above. It does not, in our view, demonstrate that the purpose of Clause 1A Incidence of Award inserted into the BS (SGDI) Award (Vic) on 21 September 1992 was prospectively to preserve for cleaners at that time employed by State Government departments and instrumentalities the benefits of their paid rates award (previously the SIPS payments) when and if their work was contracted to a contract cleaner and they became employed by such a cleaner. Nor does the Memorandum of Agreement of 16 March 1994, nor the steps taken to give effect to it, demonstrate that purpose. 71 Accordingly, subject to considering one further contention of the appellant, in our judgment the appellant has failed to show that the construction of cl 8A(a)(ii) of the 1994 Award adopted by the judge at first instance was erroneous. 72 In addition to the history of cl 8A of the 1994 Award, the appellant also relied upon the fact that the respondent, in support of the application to insert cl 8A into the 1994 Award, referred to s 170UB(1)(b) of the Industrial Relations Act 1988 (Cth) (repealed by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), cl 42). Section 170UB(1)(b) provided that the section applied if the wages and conditions of employees of a particular kind in an industry have customarily been determined by a paid rates award or a State award in the nature of a paid rates award. Section 170UB(2) then provided that the AIRC: … must vary the existing award so as to be a paid rates award, in so far as it determines wages and conditions of employment, of employees of that kind in that industry, that have customarily been determined by a paid rates award or a State award in the nature of a paid rates award. The obligation imposed on the AIRC by s 170UB(2) did not apply in the circumstances referred to in s 170UB(3), but they are not said to be directly relevant. 73 The reliance upon s 170UB(1)(b) is said to indicate that cl 8A of the 1994 Award was intended to apply to those State Government instrumentalities encompassed within the operation of the BS (SGDI) Award (Vic), namely those instrumentalities which at some time had directly employed its cleaning staff, so that they were covered by that award. 74 In the light of the background material referred to, and the industrial context in which cl 8A of the 1994 Award came to exist as disclosed by the material now before the Court, we do not consider that the reliance by the respondent on s 170UB in the circumstances referred to takes the appellant's position any further. That is principally because the evidence does not show, beyond the particular circumstances of the appellant, that contractors providing cleaning services to State Government departments or instrumentalities, where the department of instrumentality had at no time itself employed its own cleaners, had customarily not paid the paid rates prescribed by cl 8A(a)(ii) of the 1994 Award or the earlier awards. Nor does the evidence show that contractors providing cleaning services to State Government departments or instrumentalities, after the department or instrumentality had contracted out its cleaning services and its cleaners became employed by a cleaning contractor, had customarily not paid the rates prescribed by the BS (SGDI) Award (Vic), including when cl 1A Incidence of Award was inserted into that award. In addition, we would not be prepared to draw the conclusion from all the circumstances including the reference to s 170UB, or from the reference to s 170UB taken by itself, that the parties then intended that cl 1A of the BS (SGDI) Award (Vic) should be construed as having the refined meaning for which the appellant contended on this appeal, as set out in [47] above.

75 As to the appellant's second and alternative contention, it was common ground that the popular meaning of "State instrumentality" as explained in Re Anti Cancer Council of Victoria 175 CLR at 448 is an appropriate starting point. 76 In that case it was decided that the Anti-Cancer Council of Victoria, established by the Cancer Act 1958 (Vic), was a State instrumentality. The context was a dispute about whether its employees were eligible to be members of an organisation of employees registered under the Industrial Relations Act 1988 (Cth) as persons "… employed in any State instrumentality". As it happened, its employees were eligible for membership of the union under another expression in the coverage clause, as the Council was an undertaking carried on by a public authority under a State statute. On the particular point in issue, the only activities of the Council said to demonstrate that it had a State Government purpose were that it received cancer reports from hospitals and others, and that it kept a Cancer Register. The Council also received some government funding to assist with that role. It had no obligation in relation to the Government with respect to the reports received, or with respect to the Cancer Register. Its receipt of the cancer reports, and the reporting obligation imposed on others to provide it with the cancer reports, was to facilitate its principal non-governmental activities including co-ordinating and promoting and funding cancer research. 77 Their Honours, by footnote, referred to two earlier decisions in support of their description of a State instrumentality. The first in time was Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation (1919) 26 CLR 508. That well known case determined that municipal corporations established under State laws were not exempt from the application of Commonwealth legislation under s 51(xxxv) of the Constitution in their operations involving the making, maintenance, control and lighting of public streets. (The alternative, and unsuccessful, contention was that, in performing such functions, municipal corporations were instrumentalities of the States and so were immune from the reach of Commonwealth legislation. That unsuccessful contention, based on the concept of implied intergovernmental immunity under the Constitution, was of course exposed in Amalgamated Society of Engineers v Adelaide Steamship Company Limited (1920) 28 CLR 129). In Melbourne Corporation 26 CLR at 530 - 531, Isaacs and Rich JJ drew the line where the "Crown exemption" applied, in relation to a municipal corporation, to circumstances where it: … either (1) is legally empowered to perform and does perform any function whatever for the Crown, or (2) is lawfully empowered to perform and does perform any function which constitutionally is inalienably a Crown function - as, for instance, the administration of justice … Justice Higgins at 541 referred to matters of "strictly governmental character". Justices Gavan Duffy and Powers agreed in the result. 78 The second case referred to by their Honours was Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133. It held that the Electricity Trust of South Australia was exempt from the application of the Landlord and Tenant (Control of Rents) Act 1942-1949 (SA) as an instrumentality of the Government of South Australia, because it was a statutory corporation formed for the purpose of managing an undertaking belonging to the Crown. The Trust expressly held its assets for the Crown, and was directed to perform its functions in the interests of the general public. It had borrowing powers subject to the consent of the Treasurer of the State. Its board was appointed by the Governor. Its accounts were audited by the Auditor-General. It was required to report to the Minister annually, and that report was laid before Parliament. The overall role of the Trust was to acquire and carry on as a governmental activity the undertaking of the supply of electricity to the public of South Australia. Justice Ligertwood concluded at 140 that the Trust served the purpose of the Crown in managing Crown assets in the interests of the State. 79 If we were to reject the principal contention of the appellant, as we do, in our view the conclusion of the judge at first instance should be upheld also in relation to the alternative contention. The analysis of the VAC Act, establishing the Trust and identifying its functions and powers and accountabilities indicates that, in the popular or normal meaning of the term, the Trust is a State instrumentality. 80 The Trust was established to develop the Victorian Arts Centre and to operate it in the interests of the general public of Victoria, including by the presentation and production of performing arts. However, it was and remains subject to the general direction and control of the Minister. It is only able to borrow moneys with the approval of the Treasurer and upon such terms as the Treasurer imposes. The Treasurer may guarantee its approved borrowings and any liability under such a guarantee will come out of Consolidated Fund of the State. 81 The Trust's composition is determined by the Governor: s 8. Its chief executive may be appointed by the Trust only with the approval of the Minister: s 14(1B), and the chief executive may only be removed from office with the approval of the Minister: s 14(1D). The Victorian Arts Centre Fund established by the Trust in accordance with s 16(1) for all moneys received by the Trust may only be paid into a banking institution approved by the Treasurer: s 16(2A), and the investment of moneys held in that Fund may only be with the approval of the Treasurer: s 16(3). 82 Upon its establishment, the property vested in the Building Committee became vested in the Trust: s 2(d). That included the State collection, and the public art collection of the Building Committee. Both of those collections were able to be increased by the Trust over time: ss 3A and 3B. The Trust was entitled to dispose of any object from either of those collections only after following a process which included public notice of its intention, and in the event of an objection by any person, the decision to dispose of that object becomes that of the Minister: s 18. 83 As his Honour noted, the existence of the by-law making power may also be relevant. The Trust's power to make by-laws under s 18A is confined to regulating or prohibiting admission to or removal of persons from the Victorian Arts Centre, the care protection and maintenance of the Victorian Arts Centre, and the preservation of good order and decency in the Victorian Arts Centre. However, the existence of such a power, is also suggestive of a governmental activity: State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 651. 84 For the same reasons as those of the judge at first instance, we consider that the Trust therefore falls within the ordinary meaning of the expression "State instrumentality". It holds and manages the Victoria Arts Centre for the State Government purpose of providing, through the Victorian Arts Centre, a facility for the cultural benefit of the general public of Victoria. The history of the Victorian Arts Centre and the roles of the Governor, the Minister and the Treasurer in relation to the Trust firmly point to the conclusion that the Trust performs its functions for the Government of Victoria.

CONCLUSION 85 For those reasons, we are of the view that the appeal should be dismissed. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North & Mansfield.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION

REASONS FOR JUDGMENT BESANKO J 86 In my opinion, this appeal should be dismissed. The facts and relevant legislative provisions are set out in the reasons for judgment of North and Mansfield JJ. As to the appellant's submission that the Victorian Arts Centre Trust ("Trust") is a State Government instrumentality within the ordinary meaning of that expression, I agree, subject to some observations about two cases relied on by the appellant, with the reasons of North and Mansfield JJ. As to the appellant's alternative submission that the expression should be read to reflect the purpose lying behind the making of the 1994 Award, I reject that submission for reasons I will give.

Ordinary meaning of State Government Instrumentality 87 As I have said, I agree with the reasons of North and Mansfield JJ. 88 The appellant referred to R v Industrial Court of South Australia; Ex parte Australian Broadcasting Commission (1976) 13 SASR 460 ("Australian Broadcasting Commission") and submitted that it strongly supported the contention that the Trust was not a State Government instrumentality. The question in that case was whether the Australian Broadcasting Commission ("the Commission") was an instrumentality of the Government of the Commonwealth within s 114 of the Industrial Conciliation and Australian Act 1972-1975 (Cth). Bray CJ (with whom Sangster J agreed) said that a distinction should be drawn between an instrumentality of the Commonwealth and an instrumentality of the Government of the Commonwealth. He said that, having regard to the legislative provisions relating to the Commission, the Commission may be an instrumentality, but was not an instrumentality of the Government of the Commonwealth. 89 The test of what is a State instrumentality was authoritatively stated by the High Court in Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation (1992) 175 CLR 442 in the passage referred to in the reasons of North and Mansfield JJ (at [27]). That fact, and the different legislative provisions in relation to the Trust, distinguish this case from the Australian Broadcasting Commission case. 90 The appellant also referred to the decision of the Full Court in Paul Dainty Corporation Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495. The trial Judge was not referred to that case. In the case, the Court held that the Trust, in providing a commercial service in the form of a Bass ticketing service, was not operating under the shield of the Crown. The Trust's power to provide a ticketing service is conferred by s 5(1)(g) of the Victorian Arts Centre Act 1979 (Vic). The case was concerned with the question whether the Trust was entitled to the shield of the Crown in relation to its ticketing function. That is a narrower question to the one before us: Australian Broadcasting Commission per Bray CJ at 473, and the decision that the Trust is a State Government Instrumentality for the purposes of the 1994 Award (and the 2003 Award) is not inconsistent with the decision of the Court in that case.

Restricted meaning of State Government Instrumentality 91 Before the trial Judge, the appellant submitted in the alternative that if the Trust was a State Government instrumentality within the ordinary meaning of the term, the ordinary meaning was not the proper meaning, having regard to the purpose lying behind the making of the 1994 Award, and that meaning also applied to the 2003 Award. 92 In order to understand the appellant's alternative submission as to the meaning to be attributed to the words, "State Government Instrumentality", it is necessary to say something about the history. 93 It seems that certain buildings on the Arts Centre land were completed in about 1981. From that time, a company called Kennedy Cleaning Services, which the Court was told was the present appellant's predecessor in the sense that it was an earlier name for the appellant, was engaged as a contractor to provide cleaning services in the Centre. The company hired its own employees and the Trust never directly employed cleaners. The cleaners employed by Kennedy Cleaning Services and, later, the appellant, were paid under the Building Services Award during the period it applied and were never paid, what in earlier days was called, a Supplementary Income Payment Scheme amount or SIPS. 94 Cleaners directly employed by the State Government were paid SIPS. At some point, the State Government commenced engaging contractors to perform the cleaning services in its buildings and those contractors employed the cleaners. The relevant award was amended so that the cleaners did not lose part of their existing benefits by reason of the State Government's change of practice. 95 In essence, the appellant's submission is that having regard to these facts (which, to this point, I have only mentioned in broad outline) the reference to State Government Instrumentality in the 1994 award should be read down so that it only applies: 1. "to ensure that superior terms and conditions of employment enjoyed by cleaners employed by the State of Victoria continued to apply when the State contracted out the cleaning of its premises" (the trial Judge's summary of the appellant's submission); or 2. "to the premises of a State Government department or instrumentality where cleaning work has been contracted out which was previously undertaken by direct employees of the department or instrumentality, who had an entitlement to a higher rate of pay (being a paid rate) than the rates prescribed in the minimum rates industry award; that is, the Building Services Award 1992 (Vic) and its predecessors" (the appellant's submission on appeal). 96 Having referred to the fact that, prior to 1992, the terms and conditions of employment in the contract cleaning industry were regulated pursuant to Victorian law and that the two main awards were the Building Services Award and the Building Services (State Government Departments and Instrumentalities) Award, the trial Judge made the following finding: "In or about 1992, the Victorian Government began to contract out the cleaning of government premises. As a consequence, the applicant or one of its predecessor unions applied to the Industrial Relations Commission of Victoria to vary the Building Services (State Government Departments and Instrumentalities) Award. The variation sought was the insertion of a clause that would ensure that the conditions in that Award, which were superior to those in the Building Services Award, would continue to be available to employees cleaning government premises in Victoria, although those employees were employed by contractors and not by the State of Victoria itself. On 21 September 1992, Commissioner Pimm made an order, inserting into the Building Services (State Government Departments and Instrumentalities) Award a new clause, designated as cl 1A Incidence of Award. So far as is relevant to this proceeding, that clause provided: 'The Building Services (State Government Departments and Instrumentalities) Award applies to the whole of the State of Victoria for persons engaged in the provision of building services in the occupations of building attendant, caretaker, cleaner, lift attendant or security officer, howsoever designated, employed - (a) By a contractor engaged by a State Government Department or Instrumentality.'" 97 Those findings are challenged by the respondent in a notice of contention it has filed. I will come back to that challenge but, for the moment, it is convenient to follow through the reasoning of the trial Judge. 98 The trial Judge next refers to the fact that when, on 29 October 1992, the Industrial Relations Commission of Victoria, in full session, made a new Building Services (State Government Departments and Instrumentalities) Award, to supersede the former award of that name, the incidence clause appeared in Part A of the Award. 99 The trial Judge referred to the "substantial flight from Victorian state awards to federal awards, as unions attempted to avoid new Victorian legislation". He referred to a decision of a Full Bench of the Commission on 25 October 1993 following a review of wage fixing principles. One of the principles for the making of first federal awards was as follows: "In awards regulating the employment of workers previously covered by a State award or determination, existing State award rates and conditions prima facie will be the proper award rates and conditions." 100 The trial Judge then referred to the fact that following negotiations about the making of a federal award for the contract cleaning industry, the respondent entered into a memorandum of agreement on 16 March 1994 with the Australian Building Services Association, the Property Services Council of Australia, the Victorian Employers Chamber of Commerce and Industry, the Australian Chamber of Manufacturers and Eski Cleaning Services. The memorandum of agreement provided relevantly as follows: "The parties agree: 1. To make a joint application for a Federal Award that preserves rates of pay and allowances as they were prescribed for the contract cleaning industry in the expired awards of the former Industrial Relations Commission of Victoria, known as the Building Services Award, the Building Services (State Government Departments & Instrumentalities) Award, the Miscellaneous Workers Post-Secondary Education (TAFE) Award and the Cleaners and Domestic Arts Assistants (Government Schools) Award. 2. That the Award made prescribe common conditions of employment for the industry, other than where to prescribe such common conditions of employment would result in a reduction in income contrary to Point 1 of this agreement. It is acknowledged by the parties that the implementation of 1 and 2 of this agreement shall be staged as follows: (a) An initial application to the Commission for a minimum rates award, the scope and Incidence of that award being in similar terms to the Incidence of the former Building Services Award. (b) A second stage where the paid rates applicable in the former paid rates awards applicable to the cleaning industry are incorporated as separate parts into the Building Services Award'." 101 On 16 March 1994, a representative of the respondent told Deputy President Acton of the Australian Industrial Relations Commission that the respondent sought the making of an award in accordance with the memorandum of agreement. The representative said: "The award that I would be asking that the commission make, arising out of today's proceedings is a minimum rates award, the incidence of which is in similar terms to the incidence of the former Building Services Award of the former Industrial Relations Commission of Victoria. There will be a second stage in the implementation of this agreement at which time the parties will approach the commission and seek to have the award which we would have made today, amended to incorporate rates of pay which were expressed in the former state awards known as the Building Services State Government Departments and Instrumentalities award, the Miscellaneous Workers Post-secondary Education TAFE Award, and the Cleaners and Domestic Arts Assistance Government Schools Award, and that will be the subject of subsequent application to the commission, and of course there will need to be detailed negotiations between the parties as to the final form of such variations to the award." 102 The representative also said that the proposed award reflected the situation as it was when the Building Services Conciliation and Arbitration Board and Building Services State Government Departments and Instrumentalities Conciliation and Arbitration Board had been restructured by a decision of the Industrial Relations Commission of Victoria on 7 March 1991. The Commission made the consent award sought by the respondent. 103 As foreshadowed to the Commission on 16 March 1994, a further application was made to the Commission to incorporate into the 1994 Award the specific rates derived from several former Victorian Awards, including the Building Services (State Government Departments and Instrumentalities) Award. The application, which was not opposed by representatives of the employers, was made on 20 July 1994 and it ultimately formed the basis of the introduction of cl 8A into the 1994 Award. 104 Having referred to the history, the trial Judge addressed the appellant's submission. He said: "This history might be of some assistance to the respondent's case if there were any evidence that the non-repayment of rates specified in the Building Services (State Government Departments and Instrumentalities) Award to those employed as cleaners at the Victorian Arts Centre had ever been the result of a conscious decision not to apply those rates, or an awareness that, for some reason, they were inapplicable. For present purposes, I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken, however, to distinguish a common understanding from common inadvertence. If the only reason why the government instrumentality rates were not paid at the Victorian Arts Centre was that neither the union nor the employer adverted to the possibility that there was an obligation to pay them, no common understanding results. In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no-one has thought about the issue." 105 The trial Judge then said none of the witnesses called before him gave evidence of a common understanding. In his opinion, no one considered the status of the Trust and whether it was a State Government instrumentality for the purposes of either the earlier State award or the 1994 award. 106 The respondent submitted that this Court should not entertain the appellant's submission that the term, State Government Instrumentality should be given a meaning other than its ordinary meaning because this was a new argument raised for the first time on appeal. I reject that submission. It may well be that the argument now put is articulated in a different way and is put in more detail than it was below, but I am satisfied that it was not only put below, but was dealt with by the trial Judge. In any event, largely by agreement of the parties, this Court now has all of the material the respondent would wish to rely on to meet the appellant's argument. 107 The proper approach to the interpretation of the provisions of an award has been the subject of observations in the authorities. In George A Bond and C Ltd (in liq) v McKenzie [1929] AR (NSW) 498, Street J said (at 503-504): "Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. 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. 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." 108 In Short v FW Hercus Pty Ltd (1993) 40 FCR 511, Burchett J said (at 518): "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 a part, or to other documents with which there is an association. Context may also include, in some 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." 109 In Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 79 ALJR 703 at 705 [2], Gleeson CJ and McHugh J referred to the fact that interpreting an industrial agreement turned on its language understood in the light of its industrial context and purpose. 110 French J discussed the proper approach to the interpretation of an award in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [50]-[57]. His Honour made the point that it is not necessary to identify an ambiguity in the language under consideration before regard may be had to the purpose of the award. 111 The provisions of the Acts Interpretation Act 1901 (Cth) are also relevant: see s 46 and the Legislative Instruments Act 2003 (Cth) (see s 7(1) item 18 of that Act). 112 In considering the appellant's alternative submission, the following matters should be borne in mind. First, although it is not necessary to identify an ambiguity in the words used before reference may be made to contextual matters, the ordinary meaning of "State Government Instrumentality" is clear and there would need to be good reason to depart from it. Secondly, there was no evidence before the trial Judge and there is no evidence before this Court as to whether there were any other bodies at the relevant time which would be caught by the ordinary meaning but not by the more restricted meaning advanced by the appellant. Thirdly, the qualification the appellant seeks to place on the ordinary meaning of State Government instrumentality may itself be expressed in different ways and this is a weakness in the appellant's submission. 113 The evidence would seem to support the conclusion that the 1994 Award was intended to have no greater field of operation than the State awards it replaced. It then becomes necessary to look at the context in which the relevant State awards were made. In my opinion, there is no difficulty in saying that the purpose of the insertion of cl 1A (Incidence of Award) in the Building Services (State Government Departments and Instrumentalities) Award was to ensure that cleaners employed by contractors engaged by a State Government Departments or Instrumentalities were covered by that award. However, that leaves for consideration by reference to ordinary principles of construction the question of what was a State Government Department or instrumentality. The fact that the State Government may have started to contract out cleaning services may explain why the parties were moved to act, but it cannot control the meaning of the words used. Even if, in theory, it could have that effect, it is by no means clear on the evidence that that was the only purpose which motivated the amendment. In the absence of clear evidence of the purpose of the parties or the Industrial Relations Commission of Victoria, the appellant's submission must fail. In other words, it is open on the facts to conclude that the parties or the Commission were not directing their attention to what was a State Government Department or instrumentality but, rather, to the fact that, whatever the definition of such a body, a cleaner employed by a contractor engaged by such a body was to be in the same position as a cleaner directly employed by such a body. 114 In my opinion, the trial Judge was right to reject the appellant's alternative submission. 115 The respondent filed a notice of contention challenging the findings of the trial Judge set out in [96] above. The respondent submitted that there was no evidence that contracting out occurred in 1992 and that there was evidence that it occurred in the 1960's. The respondent submitted that there was no evidence that the variation of the Building Services (State Government Departments and Instrumentalities) Award was as a consequence of contracting out. The respondent submitted that there was no evidence that the variation sought was to ensure that the conditions in that award, which were superior to those in the Building Services Award, would continue to be available to employees cleaning government premises in Victoria, although those employees were employed by contractors and not by the State of Victoria itself. If these contentions are correct, there is even less support for the appellant's alternative submission because there is simply no evidence of the precise context or purpose. 116 Although it is not strictly necessary for me to consider the notice of contention, it is appropriate to say that I would have upheld it. In fairness to the trial Judge, the evidence as to the history of the relevant awards was not such that it facilitated the making of clear findings. Even with the additional information presented on appeal, the relevant history has not been clearly presented. 117 Mr Terrence Breheny is the assistant secretary of the respondent. He gave evidence that although he was not in a position to say that contract cleaning in the government sector commenced in the early 1960's, it was happening when he started employment with the Federated Miscellaneous Workers Union in 1982. Mr Breheny said that there was a common rule award from at least since 1982 which covered employees of cleaning contractors in State Government Departments and Instrumentalities. Mr John Lazzari is the group general manager of the appellant in Victoria and Tasmania. His evidence was that he first entered the contract cleaning industry in December 1962 and that, at about that time, the State Government started to outsource the cleaning of its own buildings and that was done through the Public Works Department. Mr John Grant was on the State Executive of the Building Services Contractors Association for 12 years, he was president of the State body for three years and on the national executive for eight years. He said that certain buildings occupied by government "went from in-house government cleaners in the late 1960's to being contracted out to contract cleaning companies". 118 On or about 14 March 1991 the Federated Miscellaneous Workers Union (Victorian Branch) applied to the Building Services (State Government Departments and Instrumentalities) Conciliation and Arbitration Board for the making of an award for the trades for which the Board was constituted. The background to the application was described by the chairperson of the Board (Ms J Bornstein) as follows: "The application follows Decision D91/0067 of the Commission in Full Session which, on application by the FMWU; and arising from an agreement between the parties, abolished the Cleaners Conciliation and Arbitration Board, the Lift Conciliation and Arbitration Board and the Caretakers Conciliation and Arbitration Board at the conclusion of 13 March 1991 and established the Building Services (State Government Departments and Instrumentalities) Conciliation and Arbitration Board to operate on and from 14 March 1991. The jurisdiction of the Board applies to: 'Persons engaged in the provision of building services in the occupations of building attendant, caretaker, cleaner and lift attendant a security officer howsoever designated - (a) By a contractor engaged by a State Government Department or Instrumentality, or (b) Pursuant to s 41A of the Public Service Act 1974, by a State Government department; or (c) By a State Government Instrumentality The jurisdiction of the Board does not apply to persons subject to the jurisdiction of the Boarding School Employees Board, the Builders Labourers Board, the Cleaners and Domestic Arts Assistants (Government Schools) Board and the Miscellaneous Workers Post-Secondary Education (TAFE) Board, and persons, engaged other than by a contractor, who are covered by the Health and Allied Services Board or the Restaurant, Catering and Accommodation Board.'" 119 On 14 March 1991, the Board resolved to make an award to incorporate the jurisdiction of the Board and to incorporate all provisions of, inter alia, the Cleaners Award. In her reasons, the chairperson said: "The award of the Board ensures that, as a consequence of the abolition of three pre-existing Boards and the creation of the Building Services (State Government Departments and Instrumentalities) Board, continuity of rates of pay, conditions of employment and other provisions previously applicable to Cleaners, Caretakers, Lift attendants and Security Employees employed in the State Government Departments and Instrumentalities previously covered by the jurisdiction of the Cleaners, Caretakers, Lift and Security Employees Conciliation and Arbitration Boards, are maintained through the creation of a new four part award which is identical in all respects, save for jurisdiction, to the pre-existing Cleaners, Caretakers, Life and Security Employees Awards. The operative date of the award of 14 March 1991 also ensures that continuity prevails." 120 An award of the Board was made accordingly. 121 In the reasons of the Industrial Relations Commission of Victoria in Full Session dated 29 September 1992, the Commission referred to the initial award made on 14 March 1991 and said that it reflected provisions which applied under pre-existing awards, and it referred to the over-award payments made under the SIPS. 122 Furthermore, it would seem to be relevant to the history that the order made by Commissioner Pimm on 21 September 1992 inserting cl 1A (Incidence of Award) was made in the context of the abolition of conciliation and arbitration boards on or about 1 August 1992 so that there was nothing, absent an incidence of award clause, to define the scope of the Building Services (State Government Departments and Instrumentalities) Award. 123 Having regard to no more than the evidence I have outlined, it seems to me that contracting out by the Victorian State Government commenced before 1992, and probably well before that time, and that there was an award providing for payment of the supplementary payment to cleaners employed by a contractor engaged by a State Government Department or Instrumentality before 1992, perhaps some time before that date. If that is so, then, as I have said, there would be even less support for the appellant's alternative submission because there is no evidence of the circumstances surrounding the making of the relevant amendment to the award. However, it is not necessary to pursue the notice of contention further because the decision of the trial Judge should be upheld on the findings made by him.

Conclusion 124 For these reasons, this appeal should be dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Dated: 22 August 2007 Counsel for the Appellant: Mr M McDonald SC with Mr D Murphy

Solicitor for the Appellant: Tanya Cirkovic & Associates

Counsel for the Respondent: Mr M Bromberg SC with Mr C Dowling