Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Transport for NSW

Industrial Relations Commission (NSW)|2020-12-02

DECISION

On 10 September 2020 the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") notified the Commission of an industrial dispute pursuant to section 130 of the Industrial Relations Act 1996 ("Act"). The respondent to the dispute notification was Transport for NSW ("TfNSW"). The subject matter of the dispute was a claim by the PSA on behalf of two of its delegates, David Illingworth and Tim Smith, for two days paid special leave to attend an upcoming meeting of the PSA State Council ("Central Council"). The response from TfNSW was that there was no entitlement to special leave for the second of the two days claimed in the particular circumstances of this case.
The PSA based its claim on clause 8.7 of the Roads and Maritime Services Consolidated Salaried Award 2019 ("Award") which is in the following terms: 8.7 Special leave with pay will be granted for the following activities undertaken by a Union delegate as specified below: (a) annual or biennial conferences of their own Union, Unions NSW or the Australian Council of Trade Unions (ACTU); (b) attendance at meetings called by Unions NSW involving the Unions which requires attendance of a delegate; (c) attendance at their Unions National Executive, State Executive, Divisional Committee of Management (or equivalent), National Council or State Council; (d) giving evidence before an Industrial Tribunal or in another jurisdiction in proceedings as a witness for the Union, briefing counsel, appearing as an advocate on behalf of a Union or assisting Union officials with preparation of cases; and (e) attendance at meetings as a member of a vocational or industry committee.
The upcoming meeting was the Central Council Planning Day which was scheduled for Wednesday 16 September 2020 from 10.00am to 5.00pm at PSA House in Clarence Street, Sydney, to be followed by a dinner that evening. The PSA claimed that "this extraordinary meeting is in lieu of the PSA Annual Conference usually scheduled for three days".

Nathan Bradshaw

The PSA called Nathan Bradshaw, Manager for the Environment, Transport, Industry and Other Team at the PSA, to give evidence. Mr Bradshaw's witness statement dealt with the exchange of correspondence between the PSA and TfNSW in which the union claimed two days' special leave on 16 and 17 September 2020 for both Mr Illingworth and Mr Smith. Mr Bradshaw also gave evidence about a video conference of the parties that occurred on 8 September 2020 to discuss the issue in dispute. His witness statement contained the following: 10. On 8 September 2020, the parties conducted a video conference to discuss the dispute notification. In attendance at the meeting was Mr Greg Shaw Senior Industrial Officer for the PSA, Mr Smith, Mr Illingworth, Mr McKaysmith, Mr Andrew Barker, acting Director of Workforce and Management, Ms Elaine Keenan Manger of Industrial Relations for TfNSW and myself. 11. During the meeting Ms Keenan said words to the effect of: "The Department will only approve one day for the planning day and does not believe that the dinner is part of the formal PSA gathering". Mr McKaysmith said words of the effect of: "traveling time is not included in the Award". I replied with words to the effect of: "TfNSW has always approved special leave on every occasion in the past". I also stated words to the effect of: "It is illogical that travelling time is not included in release for Central Council, as usually these meetings begin at 5:00pm. If travelling time was not included, there would be no need for the PSA to request special leave on occasions that our delegates work morning shift. The Departments position would mean that Central Councillors would be required to travel back to their places of residence once the meeting finished, arriving home just before midnight, and then required to begin their shift at 5:00am. This is clearly illogical, and is the reason that the Department has approved Special Leave on every single prior occasion". In response, Ms Keenan said words to the effect of: "I was not aware that approval was being given ".
Mr Bradshaw then dealt with a further exchange of correspondence between the parties which preceded the filing of the dispute notification in this Commission by the PSA. His witness statement continued as follows: 18. The Central Council has held meetings on the following days this year: a. 10 February 2020; b. 9 March 2020; c. 20 April 2020; d. 1 June 2020 (via videoconference); e. 13 July 2020; f. 16 September 2020 (as part of the Planning Day mentioned below); and g. 21 October 2020. 19. Prior to September 2020 and with the exception of the 1 June 2020 meeting via videoconference, for each meeting, two days of special leave which included a day for travel, were requested by the PSA for Mr Smith and Mr Illingworth and were granted by TfNSW. Before September 2020, special leave had always been approved on every occasion… 20. In accordance with Rule 58, the PSA holds an Annual Conference in May each year. While the general Central Council meetings deal with the broader running of the PSA, the Annual Conference is held in accordance with Rule 67 of the Rules and includes General Secretaries Industrial Reports and Annual Reports from the bodies within the PSA. The Annual Conference runs for three days (including country conference) and is convened with a dinner on the final night of the Conference. 21. Due to the Covid-19 pandemic, the Annual Conference that was to be held in May this year was rescheduled to 16 to 18 September. In August 2020, it was decided to hold a planning/training day with a dinner at the end of the day instead of an annual conference so that the content usually discussed in the Annual Conference could still be addressed. The Planning Day was organised for 16 September 2020 and commenced at 9:00am for members of the Provident Fund and Finance and Audit Committee Meetings and at 10:00am for the rest of the members of the Central Council. 22. Due to the nature of the Planning Day, most of the scheduled events had to be attended in person and not via videoconference…
Mr Bradshaw was not challenged in cross-examination on his evidence at paragraphs 18-19 of his witness statement that, prior to September 2020, apart from the videoconference on 1 June 2020, both Mr Illingworth and Mr Smith were granted and paid for two days special leave by TfNSW for their attendance at Central Council meetings and for travelling home the following day.

David Illingworth

Mr Illingworth has been employed by TfNSW and its predecessor, Roads and Maritime Services, since March 2006. He currently holds the position of Traffic Commander, Hunter Region in Newcastle. He works shift work on a two week rotating roster. One week he works from 5.00am to 12.30pm (morning shift) and the following week from 12.00pm to 7.30pm (afternoon shift). The afternoon shift includes an on-call component until 5.00am the following morning.
Mr Illingworth has been a delegate to the PSA Transport Advisory Group since about 2014/2015. He was elected to the PSA Central Council in October 2016. To attend Central Council meetings, Mr Illingworth travels by train from Cardiff train station to Town Hall train station, Sydney, which takes about three hours.
In his witness statement, Mr Illingworth stated: 8. Central Council meetings are usually held on a Monday at 5pm and continue for several hours. The Transport Advisory Group meetings are held at around 3pm prior to the Central Council meeting. 9. Since I was elected to the Central Council in 2016, I have made many applications for special leave to attend Central Council meetings and the PSA Annual Conference. To the best of my recollection, I have never had an application for special leave queried or questioned before August/September 2020. The applications I have made for special leave to attend central council or annual conference since 2016 have all been approved. I0. If I am rostered on an afternoon shift the week of the Central Council meeting, I will usually travel down at about midday Monday, stay overnight in Sydney and return the next day and start my afternoon shift. If I am rostered to work a morning shift, then I usually take leave for the morning shift on both days. 11. On all previous occasions my request for special leave has been approved where I have applied for two days' special leave to include travelling time to and from Sydney and to ensure that I have an adequate break prior to the start of any shift, including for the Central Council meeting on 13 July 2020. No issue or concern was raised with me at that time. ………………………… 14. On 26 August 2020, the PSA communicated directly with TfNSW regarding the Central Council Planning Day, advising TfNSW that I would require two days' special leave to attend the planning/training day on 16 September 2020 including travel to and from the PSA… 15. …Soon after I received the letter, consistent with my usual practice, I applied for two days' special leave including travelling time to and from Sydney. The week of the Planning Day, I was rostered to work on the morning shift in Newcastle commencing at 5am. 16. I applied as usual using the online leave system Transport Equip and I attached the letter I received from the PSA. The request was sent to my manager Ms Marie Ormiston, Manager· Regional Operations - Hunter. Ms Ormiston has been my manager for about two years. 17. My application for special leave for two days was approved by Ms Ormiston in or around late August 2020. 18. About a week later, I was contacted via telephone by Mr Greg Shaw, Senior Industrial officer with the PSA who advised me that an issue had been raised by senior management at TfNSW about the application for two days' special leave for the Central Council Planning Day in relation to Mr Tim Smith and I. …………………….. 25. On 15 September, after my morning shift, I travelled to Sydney for the Central Council Planning Day that commenced at 10am on 16 September 2020. The Planning Day finished at around 6.15 pm that day. I then attended the dinner on level 11 of PSA House. I stayed overnight in Sydney and travelled back by train the next day on 17 September. If I had travelled back that evening via train after the Planning Day/dinner finished I would not have got home until around 3:00am and therefore, I would not have had enough rest or a sufficient break to commence my shift at 5:00am the next morning. The Department has a policy on fatigue management. 26. As my special leave for 16 and 17 September had been approved by my Manager, I was paid two days' special leave for these days.
In cross-examination, Mr Illingworth was not challenged on his evidence that his application for two days' special leave to attend the Central Council Planning Day on 16 September 2020 was approved by his manager and that he was, in fact, paid two days' special leave for 16 and 17 September 2020.

Timothy Smith

Mr Smith is employed by TfNSW in the position of Compliance Operations Inspector Northern Sector, within the Safety Environment and Regulation Division, based in Newcastle. He works a six day rotating roster comprising day shift from 8.00am to 4.00pm, afternoon shift from 4.00pm to midnight and night shift from midnight to 8.00am.
Mr Smith has been a PSA delegate since 2006, a member of the PSA Inspectors Advisory Group since its inception in May 2006 and a member of the PSA Central Council since the end of 2019.
Mr Smith's witness statement contained the following: 4. The PSA Central Council meets twice every quarter. In order to attend the meetings, I usually apply for two days of special leave to include travelling time and a letter is provided to my employer from Mr Stewart Little, General Secretary of the PSA. I also attach a copy of this letter to the Special Leave Application I submit to my employer. 5. If I have applied for two days of Special Leave, the first day would include travelling to attend and the second day travelling back home. Prior to August 2020, I have had my request for two days of special leave approved. Also my request for two days special leave to attend the Central Council meeting on 13 July 2020 had been approved, with no issue raised.
Mr Smith was not challenged in cross-examination on this aspect of his evidence.

Elaine Keenan

Evidence was given on behalf of TfNSW by Elaine Keenan, Manager, Industrial and Workplace Relations, People and Culture.
In her witness statement, Ms Keenan stated: Special leave 12. Special leave with pay can be requested and granted in a number of different circumstances under the Award. Clause 8.7 defines one example of how and when special leave with pay can be requested and granted, which are in circumstances where a union delegate undertakes certain union activities. 13. Clause 33 of the Award otherwise lists a number of other circumstances in which special leave with pay can be requested and granted. Where travel time is included as part of the special leave, the sub-clauses specifically reference the inclusion of travel time. 14. For example, clause 33.1(e) states "Special Leave - Citizenship - Employees are granted Special Leave including travelling time to attend their Australia Citizenship Ceremony''. Another example is contained in clause 33.1(g) which states "Blood Donation - Special Leave, including travelling time, is granted to Employees who do not require a relief, to donate blood". In circumstances that are captured by clauses 33.1(e) or (g), paid special leave includes travel time as expressly stated in the Award. 15. By way of comparison, clause 8.7 of the Award does not include reference to travel time and therefore special leave taken for the trade union activities contemplated by clauses 8.7(a) to (e), does not include travel time as part of "union activities".
Ms Keenan referred to the Joint Consultative Group - Policy Group, comprised of representatives of TfNSW, the PSA and other unions, which worked collaboratively between 10 October 2019 and 24 September 2020 to "review, develop, amalgamate and implement the amalgamated Special Leave Procedure (Procedure)… to provide clarity over the circumstances in which special leave applies". Clause 3.3.13.2 - Union delegate activities of the Procedure is set out in part at [5] above.
Ms Keenan outlined the history of the dispute that led to these proceedings and the responded to the statements of the PSA witnesses. That response included the following; 52. In response to paragraph 19 of Mr Bradshaw's statement, the PSA's primary argument is that TfNSW has previously approved 2 days of special leave in these circumstances. However, if this has occurred, it has been in error and not in accordance with the terms of the Award or the Procedure which is the agreed position between the parties as to how the Award applies. While TfNSW accepts that the Procedure has no relevance to the context of the general purpose and statement of policy which informed the establishment of the Award, it is the agreed position which the PSA is now departing from.
When Ms Keenan was giving her oral evidence, the following exchange occurred: COMMISSIONER Q. Ms Keenan, just so I understand your position in relation to clause 8.7 of the award, that's the relevant clause in dispute in this matter? A. Yes. Q. And I take it from what you say that that clause doesn't contemplate special leave for travel time under any circumstances? A. That's the position at this point in time, yes. Q. So, if I was an employee of Transport NSW and I was working in a location, for example Penrith-- A. Mm-hmm. Q. --and I was a member of the State Council of the PSA and the PSA had scheduled a meeting for 3 o'clock one afternoon and I came to work that morning and I have applied for special leave to allow me an hour to get the train from Penrith into Town Hall. So, the special leave that I'd be applying for would start at 2 o'clock. Are you saying that I'd be denied that on your understanding of the award? That hour from 2 to 3? A. I don't think that was really what we're saying. What we'd be saying is you're entitled to, as we've discussed, the practice has been that you would get the day to attend the meeting. Q. I'd get the whole day for a 3 o'clock meeting that might only go for an hour? A. Well, if it were in Sydney, maybe it would be different but my understanding is we're talking about for this situation for these people. But I believe that could be contemplated, yes, but you'd have to go to work for a couple of hours and then leave, yes. Q. I'm sorry, you'd have to what? A. That could be contemplated, that that would be the situation, that they would come into work for a few hours, then leave early, to go on the train. Q. And get special leave for that hour of travel time? A. Yes. Q. So there is a circumstance-- A. That's because of it's during work time. Q. Yes, but it's travel time, not actual attendance at a meeting time? From 2 till 3? A. Yes. Q. If I worked at Broken Hill and I was required to attend an all day meeting of the State Council and the only way I could do that, say the meeting started at 9 and went through till 5, and the only way I could do that would be to fly down the day before and fly back the day after. So, I'd be travelling the day before the meeting, be at the meeting and then on the third day I'd be travelling back. Do you say I only get the day of the meeting? A. Yes.

PSA in reply

In his witness statement in reply, Mr Bradshaw referred to the negotiations which culminated in the Procedure referred to by Ms Keenan (at [22] above).
Clause 3.2 - Applying for and taking special leave, of the Procedure contains the following: Make sure you only apply for the shortest time necessary to meet your requirements. Special leave includes any necessary reasonable travel time. You can apply for special leave for a minimum of 1 hour.
Annexed to Mr Bradshaw's statement in reply was a number of drafts of the Procedure with track changes and comments by Keith Stevenson, Human Resources Policy Officer for Roads and Maritime Services.
In an earlier draft of the document, clause 2.7.2 - Union Delegate - Special Leave Activities, contained "reasonable travelling time to and from conferences or meetings in respect of the abovementioned activities" which included "meetings of the union's Executive, Committee of Management or Councils". Mr Stevenson's comment in the margin was "Access to travel time as part of special leave now covered in 3.2 integrated draft". Clause 3.2 in the integrated draft included the provision which was contained in the final document as set out at [26] above. Mr Stevenson's comment in the margin was "Added here as a general rule to save repetition against specific types of Special Leave".
The PSA also relied upon witness statements in reply from Mr Illingworth and Mr Smith.

PSA submissions

Written submissions filed by the PSA contained the following: Background 1. The Respondent (Transport) employs persons covered by the Roads and Maritime Services Consolidated Salaries Award 2019 (the Award). The Applicant is entitled to represent the industrial interests of, and has members among, these workers. 2. A number of the PSA's members in Transport hold positions on the various forums and committees which make up the PSA's internal structure. 3. These officeholders include Tim Smith and David Illingworth, who are both Central Councillors and delegates. Both live and work in the Newcastle region. 4. In this role, they are from time to time required to attend to union business at times when they would otherwise be working - for example, attending the PSA's annual conference. These events are generally held at PSA House in the Sydney CBD, requiring travel of approximately three hours each way for both Mr Smith and Mr Illingworth. 5. Clause 8.7 of the Award requires Transport NSW to grant special leave with pay to its employees undertaking these activities. 6. In the past, where Mr Smith and Mr Illingworth have been required to attend single-day union events, in periods when they were rostered to work day shift they would then travel down on the day of the activity, stay overnight at the PSA's expense, and travel back to Newcastle the next day. 7. This is identical to the approach Transport takes when requiring its Newcastle workers to attend training events in the Sydney CBD. The travel time is such that it would be impracticable, including from a fatigue management perspective, for them to do otherwise. 8. Until the events leading to this dispute, they would apply for two days of special leave. This was historically approved by Transport without issue. 9. The PSA held a 'Central Council Planning Day' on 16 September 2020. There is no contest that this was a union activity within the scope of clause 8.7. 10. This meeting was effectively the union's annual conference, rebranded and shortened to accommodate COVID-19 restrictions. It consisted of a full day of conference events, which ended around 6.15pm, followed by a formal dinner. 11. Mr Smith and Mr Illingworth were each rostered to work day shift on 16 and 17 September 2020. Mr Illingworth was rostered to start at 5am and Mr Smith at 8am. 12. Accordingly, each applied for two days of special leave - i.e. 16 and 17 September - in accordance with their standard practice. 13. To their surprise, Transport refused to approve the second day. Although ultimately it was approved, it is subject to the outcome of these proceedings and Transport has made clear that it does not intend to do in the future. 14. At issue in this dispute is whether the special leave provided by cl.8.7 encompasses reasonable travel time to and from the event, or is, as Transport apparently contends, restricted to only time actively spent in the relevant activity. Principles of interpretation 15. The principles of interpretation of awards are well-established, and were recently summarised by a Full Bench of the Commission in NSWNMF v Health Secretary obo Western NSW Health District [2019] NSWIRCOmm 1025 at [21]-[25]. To summarise: a. interpretation is a purpose by which the Commission deduces the objective intention of the authors of the award, as demonstrated by the text; b. while the text is central, and remains both the starting and finishing point, it must nevertheless be understood in context and with regard to the purpose of the particular clause and the instrument as a whole; and c. a 'narrow and pedantic' interpretation should be avoided, and a generous construction is preferable, notwithstanding that the Commission cannot depart from the text to implement its own idea of a desirable policy. 16. It is similarly well-established that existing custom and practice is a guide to the correct interpretation of an award, and may be taken into account: Minister v Day (1919) 18 AR 19; Crown Employees Overtime Award (1968) AR 60 at [60]. The existence of a custom and practice is a matter for evidence: AMWU v BHP Steel Long Products (2000) NSWIRC 164 at [14]. 17. This is particularly so where an interpretation has been relied and acted on by parties for a long period of time. Where a clause is ambiguous, an interpretation which confirms with a long-standing practice is to be preferred where it is available on the text: Merchant Service Guild of Australia (1958) 1 FLR 248; see also Re Hospital Employees' Conditions of Employment (State) Award (1999) 96 IR 245 AT 262. 18. However, this principle only attaches to practices existing up to the date of the making of the Award. Ordinarily, subsequent conduct cannot be used to shape interpretation: PKIU v Davies Bros (1986) 18 IR 444 at 452. The clause 19. Clause 8.7 relevantly provides: 'Special leave with pay will be granted for the following activities undertaken by a Union delegate: (a) annual conferences ... of their own Union... 20. The purpose of the clause is evident on its text: it is to facilitate the participation of union delegates in certain specified activities without loss of pay. 21. Significantly, the clause is not in its terms limited to time spent on the activity. No textual indicators otherwise indicate that this was intended to be so. The clause does not, for example, say that leave will be granted 'for time spent in attendance'. Notably, attendance is not even specifically indicated in respect of annual conferences, indicating that it is the broader activity (usually multi-day and notorious for side events) that is in contemplation. 22. Such a limitation cannot sensibly be implied into the text. As a matter of common sense, attendance at any meeting will require more time away from the workplace than the length of the meeting itself. Absent an ability to teleport, the need to take time to travel to and from the event is implicit. 23. By way of illustration, consider an employee who works in Sydney's inner west, half an hour away from PSA House, and is rostered to work 8am to 4pm on the day of a 9am to 5pm council meeting. 24. A construction which would only require Transport to grant her leave from 9am to 5pm would operate to frustrate full participation in the activity: she simply could not arrive in time. This is contrary to the purpose of the clause, and unlikely to be correct. 25. Of course the example is more extreme for Mr Smith and Mr Illingworth, who each have to travel three hours rather than thirty minutes and Mr Illingworth was rostered to work at 5 am - but the point is the same. 26. It is, incidentally, no answer to say that other forms of leave might be available. Other forms of leave exist but are discretionary; the point of the clause is to guarantee participation without loss of pay. 27. The fact that the clause cannot be read as confining leave to the precise hours of attendance sheds light on what its true meaning must be: the amount of leave reasonably necessary to facilitate attendance and full participation in the relevant activity. 28. This will vary on a case by case basis. However, in the instant case, it is tolerably clear that two days were necessary. It would not be reasonable to expect Mr Smith or Mr Illingworth to travel back in time to make their respective shifts. This would involve either unsupportable fatigue management consequences (caused by an unsustainably early start or late or - by requiring them to leave Sydney early - frustrate their full participation in the activity. 29. Accordingly, the Commission should make the orders sought.

TfNSW submissions

Written submissions filed by TfNSW set out the background to the dispute and then framed the issue to be determined by the Commission as follows: Question to be determined 16. The question to be determined by the Commission is: Does the granting of special leave with pay to undertake activities by a union delegate under clause 8.7 of the Award include reasonable travelling time to and from the activities referred to in the clause? (the Question).
The submissions then cited a number of authorities on the principles of award interpretation, which principles are not in dispute between the parties. The submissions then continued as follows (footnotes omitted): Interpretation and application of the Award provisions 21. Clause 8.7 of the Award states that: Special leave with pay will be granted for the following activities undertaken by a Union delegate as specified below: (a) annual or biennial conferences of their own Union, Unions NSW or the Australian Council of Trade Unions (ACTU); (b) attendance at meetings called by Unions NSW involving the Unions which requires attendance of a delegate; (c) attendance at their Unions National Executive, State Executive, Divisional Committee of Management (or equivalent}, National Council or State Council; (d) giving evidence before an Industrial Tribunal or in another jurisdiction in proceedings as a witness for the Union, briefing counsel, appearing as an advocate on behalf of a Union or assisting Union officials with preparation of cases; and (e) attendance at meetings as a member of a vocational or industry committee. (Emphasis added). 22. Clause 8.7 of the Award states that an employee will be granted special leave to undertake certain activities including "attendance at" eligible meetings contained in clauses 8.7(a), (b), (c) and (e). 23. When considering the legal meaning of the provision of the Award, the intention of the provision must be deduced. It is the duty of the Commission to give the words of the Award a meaning that the authors of the Award are taken to have intended by them. 24. The textual context of clause 8.7 of the Award is therefore important. Clause 8.5 of the Award applies to meetings that are called "with the Employer" and states: Where a workplace meeting is called with the Employer, including meetings under the Dispute Settlement Procedure, Union delegates that attend will be paid by the Employer any travel and/or accommodation costs necessarily and reasonably incurred. 25. Clause 8.5 expressly states that when union meetings are called "by the Employer", travel and/or accommodation costs, necessarily and reasonably incurred, will be paid by the Employer. In this context, the travel costs must be "necessary and reasonably" incurred. The context of clause 8.5 is informative in that the language used is limited to necessary and reasonable travel "costs". 26. By comparison, clause 8.7 of the Award provides no entitlement to be paid for travel time or for "costs" associated with travel to and from the union activity including the meetings referred to in sub-clauses 8.7(a), (b), (c) and (e). Clause 8.7 only provides for special leave with pay for "attendance at" meetings including the Council meetings referred to in clause 8.7(c), which is the subject of the current dispute. The words "Attendance at", on their ordinary construction means the time attending at the meeting. It does not and cannot be said to extend to time not in attendance at the meeting (including for instance travel time). 27. The Award also contains other provisions which require consideration for the purposes of the textual context of clause 8.7 of the Award. Clause 8.7 of the Award provides for paid special leave in respect of certain union activities. 28. Clause 33 of the Award otherwise deals with the other circumstances in which special leave can be requested and granted. Clause 33 of the Award contain numerous different circumstances in which special leave can be granted. Where special leave covers ''travelling time" to and from the activity, the Award expressly refers to that entitlement (see for example, clauses 33.1(e) and 33.1(g)). 29. Clauses 22.2.2 and 22.2.3 of the Award otherwise sets out the circumstances in which an employee is entitled to claim payment or time off in lieu for travelling time, which does not apply in respect of special leave for union activities under clause 8.7 of the Award. 30. The Respondent submits that when considering the provisions of the Award, in context, the ordinary meaning of the words in clause 8.7 are unambiguous. Clause 8.7 of the Award contains a reference to "attendance at" eligible union meetings in clause 8.7(a), (b), (c) and (e). The Respondent submits that this means that a union delegate gets paid for the time they attend the eligible union meeting. 31. It is well accepted that the Commission cannot assign a meaning to a term of an Award in order that the Award provide what the Commission considers appropriate. Put simply, clause 8.7 of the Award does not provide for an entitlement to be paid for the travelling to and from that union activity as asserted by the PSA. Extrinsic material not needed to establish the meaning of clause 8.7 32. In the Secretary of Treasury Decision, His Honour also addressed the question of the extent to which extrinsic material may be employed in award interpretation. In that respect, Walton J concluded: [127] Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. [128] ln order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible. (Emphasis added). 33. The evidence filed by the PSA in these proceedings, relies exclusively on extrinsic materials to establish its case. The Respondent submits that the Commission is not required to have regard to those extrinsic materials in circumstances where the text and context of the words of the text are unambiguous. The extent to which any extrinsic materials are considered by the Commission, those extrinsic materials cannot displace the meaning of the text of clause 8.7 of the Award. 34. The extrinsic materials relied on by the PSA relate primarily to its argument that any historical application of clause 8.7 of the Award weighs in favour of the PSA's interpretation of clause 8.7 of the Award. 35. The Respondent submits that erroneous application is not determinative of how an award provision should be applied. The Respondent accepts that on prior occasions, special leave requests may have been granted for days that a union meeting was not held. The Respondent submits that in doing so, the Award provisions were not correctly applied. Further, to the extent to which those leave days were granted previously, they do not inform or reflect the correct application of the Award provisions. 36. The Applicant relies on an argument that the existing custom and practice can be used as a guide to the correct interpretation of the Award. The Applicant submits that this is particularly so "when the interpretation has been relied and acted on by parties for a long period of time". The Applicant concedes that "this principle only attaches to practices existing up to the date of the making of the Award" and that "Ordinarily, subsequent conduct cannot be used to shape interpretation". 37. In The Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch the Full Bench stated: "...Second, assuming that such a custom and practice exists, it cannot prevail over the plain meaning of the industrial instrument: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-9. Third, to the extent there is a history of the interpretation of a particular term with a particular meaning, it must be determined that there was a common understanding between the parties to an industrial instrument that the term has such a meaning: Shop Distributive and Allied Employees' Association v Woolworths Ltd [2006] FCA 616; (2006) 151 FCR 513 at 520. No such evidence of a common understanding taken during negotiations of the 2017 Award or any other award has been adduced. Fourth, if the parties to predecessor instruments acted upon a common understanding based on inadvertence as to the true meaning of the document, the parties are not legally bound to adopt it in legal proceedings: Australian Rail, Tram and Bus Industry Union v KOR Victoria Pty Ltd tlas Yarra Trams [2013] FCA 330 at [22]." 38. TfNSW submits that the words of clause 8.7 of the Award are not "susceptible to more than one meaning", however to the extent to which the circumstances that surrounded the making of the Award assists the Commission, a brief history of the Award has been set out below. History of the Award informative but not determinative 39. In the Secretary of Treasury Decision, His Honour considered that the history of a provision of an award may form part of the consideration of context. In that respect, Walton J referred approvingly to what Burchett J (with whom Drummond J agreed) said in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517-518 of the use of history in the interpretation of awards: No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it." … 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. 40. The Roads and Maritime Services Consolidated Salaried Award 2014 (Award 2014) took effect from 1 July 2014. On 24 May 2013, RMS, at the time, made an application pursuant to s 10 of the Act for a new consolidated award. The application sought to consolidate the award regulation previously provided by the: a. Crown Employees (Roads and Maritime Services Division of the Government Service of New South Wales - Salaried Staff Salaries and Conditions of Employment) Award 2012; b. Crown Employees (Roads and Maritime Services Division of the Government Service of New South Wales - Salaried Staff) Award 2012; c. Professional Engineers (Roads and Maritime Services Division of the Government Service of New South Wales - Salaries) Award 2012 (Professional Engineers Award); d. Enterprise Agreement 11/5 Maritime Authority of NSW (trading as NSW Maritime) Enterprise Agreement 2010-2013; e. Maritime Authority of NSW Award 2007; f. Agreement Number 8411 of 1990 - The Roads and Traffic Authority of New South Wales and the Public Service Association of New South Wales (Inspector - Vehicle Regulation); g. Industrial Agreement for Inspectors Vehicle Regulation (contained in Personnel Circular Number 95/5. 41. There were six industrial unions of employees that were party to the prior industrial instruments, each of whom became parties to the consolidated Award 2014. Justice Staff described the process which led to the making of the Award 2014 as follows: [4] After extensive discussions between the parties, which occurred over a period of two years, including assistance provided by the Commission in a number of conciliation conferences, the unions have reached an agreement in respect of all but one clause, that being the insertion of a "No Extra Claims" clause in the Consolidated Award. 42. The Professional Engineers Award was the only award (of the 7) that contained trade union activities leave. Clause 14.4 of the Professional Engineers Award stated: 14.4 APESMA Delegate - Special Leave Activities (a) APESMA delegates are granted paid special leave to attend the following activities during ordinary working hours: (i) annual or biennial conferences of APESMA, (ii) meetings of APESMA's Executive, Committee of Management or Councils, (iii) annual conference of Unions NSW and the biennial Congress of the Australian Council of Trade Unions, (iv) attendance at meetings of Unions NSW involving APESMA which requires their attendance, (v) assisting APESMA's counsel or acting as APESMA's advocate, (vi) giving evidence before an Industrial Tribunal as a witness for APESMA, and (vii) reasonable travelling time to and from conferences or meetings in respect of the abovementioned activities. (Emphasis added). 43. Importantly, when clause 8.7 was inserted into the Award 2014, the reference to "reasonable travelling time to and from" conferences or meetings in respect of the union activities was removed. On the basis on which the Award 2014 was formed, the parties therefore intended for payment for "travelling time to and from" union activities to be excluded from the Award 2014. 44. The PSA later appealed the decision of Staff J and sought to challenge His Honour's decision to include a no extra claims clause in the Award 2014. The PSA did not appeal any other provisions of the Award 2014, including clause 8.7. The appeal was dismissed by a Full Bench. Generous construction 45. In the Secretary of Treasury Decision, Walton J cited with approval authorities to the effect that awards should receive a generous construction. Referring to the passage in Kucks cited by His Honour: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. 46. The Respondent submits that its position in respect of clause 8.7 reflects the practicalities of taking of special leave for union activities. There are limited circumstances in which attendance at union meetings cannot be facilitated via video conference. To the extent to which unions and union delegates want to network outside of ordinary working hours, this should not be at the public's expense. 47. The Award provisions must be applied in a practical and reasonable manner that reflects the industry, industrial relations environment, policy standards and the public's expectations. It is clear that the payment of travelling time to and from union meetings was removed when it was included in the Award 2014. The Respondent submits that on this basis, clause 8.7 of the Award should be interpreted to mean paid special leave for attendance at eligible union meetings but not travelling to and from such meetings. Conclusion 48. For the forgoing reasons, the Application should be dismissed. 49. The Respondent may seek leave to make further submissions in the event that the PSA files submissions in reply. On this basis, the Respondent may also wish to be heard on the question of costs.

Determination

The issue for determination before the Commission is whether subclause 8.7 of the Award (at [2] above) provides for the grant of special leave with pay for travelling by a union delegate to and from meetings of the PSA Central Council and, in particular, whether Mr Illingworth and Mr Smith were entitled to paid special leave for 17 September 2020 when they travelled home from Sydney following their attendance at the Central Council Planning Day the previous day.
The principles of award construction were helpfully summarised by the former Chief Commissioner Kite SC in Fire Brigade Employees' Union of NSW v Fire And Rescue NSW [2020] NSWIRComm 1022 as follows: Interpretation of awards 7. The principles for the interpretation of awards are reasonably well settled: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] - [16]. The last decision referred to by Commissioner Seymour in that review of the authorities was Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23. In that decision, after an extensive review of the authorities Walton J, President, provided the following summary at [115]: "Putting aside for one moment the refinements applicable to award interpretation to which Street and French JJ alluded, these statements of principle may be synthesised as follows: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ)." (Emphasis added) 8. The "refinements referred to by Street and French JJ" were those in their Honours' decisions in George A. Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 [3] respectively. In Bond Street J said: 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. (Emphasis added) In City of Wanneroo French J said to like effect at [53] and [57]: 53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part or to other documents with which there is an association". It may also include "... ideas that gave rise to an expression in a document from which it has been taken" - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J). ... 57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. (Emphasis added) 9. The last decision warranting specific recognition in this matter is the decision of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182. In an oft quoted passage his Honour said: "It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. (Emphasis added)
I have carefully considered the evidence and submissions placed before the Commission by the parties.
TfNSW contends that the words "attendance at" in subclauses 8.7(b), (c) and (e) of the Award means the actual physical presence of the delegate at the relevant meeting. Contrary to what is put at paragraph 30 of TfNSW's written submissions (at [32] above) these words are missing from subclause 8.7(a) which deals with annual or biennial conferences. In my opinion this interpretation of the provision constitutes "too literal adherence to the strict technical meaning of words" George A. Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; fails to adopt a "generous construction over a strictly literal approach" City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]; and constitutes a "narrow or pedantic" approach "to the interpretation of an award" and is "misplaced" Kucks v CSR Ltd (1996) 66 IR 182.
Attendance by a union delegate at a meeting requies travel to and from the meeting. During her oral evidence, Ms Keenan conceded that a delegate who worked at Penrith and who left work a 2.00pm to travel to the city to attend a PSA Central Council beginning at 3.00pm would be paid special leave for the one hour spent travelling to the meeting, as well as the time actually spent in attendance at the meeting (at [24] above). I regard this as a sensible interpretation and application of clause 8.7 of the Award in such a circumstance. I see no qualitative difference to the entitlement under the provision for delegates, such as Mr Illingworth and Mr Smith, who have to travel longer distances to attend union meetings and then return home.
This interpretation of clause 8.7 and, in particular, subclause 8.7(c) of the Award also conforms more closely with the objects of the Act than does the interpretation contended for by TfNSW. Those objects, which are set out in section 3 of the Act, include the following: (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies,
I reject the propositions put by TfNSW at paragraphs 24-25 of its written submissions (at [32] above). Clause 8.5 of the Award does not relate to special leave for delegates to undertake union activities. It relates to attendance by delegates at a workplace meeting called by the employer. As such, time spent by a delegate at such a meeting and travelling to and from the meeting during normal working hours would be properly regarded as working time and paid accordingly. The reference to "travel… costs" in clause 8.5 is a reference to such things as train fares and the like, not to the time spent travelling to and from the meeting.
Similarly, clause 3.3.13.2 of the Procedure, to the extent that it states "travel, meals or accommodation are not reimbursed by TfNSW", has no relevance to the matter before the Commission. This dispute is not about a claim for reimbursement for expenses incurred but, rather, about a claim for Mr Illingworth and Mr Smith to be paid special leave to travel home from Sydney on 17 September 2020.
Further, I am not assisted by the Award history set out at paragraphs 40-44 of the TfNSW submissions. There is no evidence before me as to what the practice, if any, was in relation to the grant of special leave for delegates to travel to and from meetings of the PSA Central Council prior to the making of the Roads and Maritime Services Consolidated Salaried Award 2014 ("2014 Award"). However, it would be surprising if the employer simply began paying for such travel time after the making of that award in circumstances where there was no express requirement in the award for it to do so. Further, it would also be surprising if APESMA simply relinquished the entitlement for its delegates to be paid for reasonable travelling time to and from conferences or meetings provided for at subclause 14.4(a)(vii) of the Professional Engineers Award unless there was an understanding that the practice would continue. Clause 3.2 of the Procedure (at [26] above) suggests that this may have been the case. All this is speculation and conjecture but in the absence of any evidence about the practice, if any, around reasonable travel time for union delegates to attend union meetings prior to the making of the 2014 Award, which evidence could have been tested in the proceedings, I am unable to infer that it was the intention of the parties to that award and subsequent awards that special leave would not be granted to PSA delegates to travel to and from meetings of the PSA Central Council in circumstances where the undisputed evidence of the PSA witnesses is that it was.
Further, I reject the proposition contended for by TfNSW that, when paid special leave has been granted in the past to delegates for time spent travelling to and from meetings in what would otherwise be working time, this was done in error (see paragraph 52 of Ms Keenan's witness statement at [23] above and paragraph 35 TfNSW's written submissions at [32] above).There is no evidence before the Commission to support this proposition. The undisputed evidence of the PSA witnesses is that special leave for travelling time was granted in the past by TfNSW managers and there is nothing before the Commission which would establish that, when they did so, these managers were acting in error. On the contrary, when the managers granted special leave for "necessary and reasonable travel time", they were acting in accordance with TfNSW's own policy as set out in clause 3.2 of the Procedure (at [26] above).
I generally agree with and adopt the submissions of the PSA set out at [30] above with the exception of paragraph 19 which cites subclause 8.7(a) of the Award as the relevant provision. The meeting conducted by the PSA on 16 September 2020 was not its annual conference. It was a meeting of the PSA Central Council which was characterised as a Planning Day and held in substitution of the 2020 annual conference due to COVID-19 restrictions. The relevant provision of the Award, which is the subject of the dispute before the Commission, is subclause 8.7(c).
I am of the opinion that the dinner which followed the formal meeting on 16 September 2020 was an integral part of the Planning Day. The evidence before the Commission discloses that the dinner was not a purely social event but an occasion which allowed the delegates to network and discuss union matters in a more informal setting. Such dinners are not uncommon as part of events such as the Planning Day. I regard the suggestion that Mr Illingworth and Mr Smith could have returned home after the formal part of the Planning Day at around 6.15pm and missed the dinner as unreasonable. It was entirely appropriate that they attended the dinner and stayed in Sydney overnight, returning home the next day.
The issue whether these two delegates are entitled to paid special leave for the second day when they travelled home. I have determined that they are.
Attendance at a meeting of the PSA Central Council will necessarily involve travel by delegates to and from the meeting of various distances. Ms Keenan conceded that a delegate who came to work at Penrith and left at 2.00pm for a meeting at PSA House at 3.00pm would be paid special leave for the hour spent travelling to the city on the train as well as for the time spent at the meeting which would otherwise have been working time. This is the only sensible interpretation of subclause 8.7(c) of the Award that is available in such a situation.
The interpretation of subclause 8.7(c) of the Award should not vary depending on the distance travelled by the delegate.
With respect to the dispute before me in these proceedings, I answer the question posed by the PSA at paragraph 1 of the Application (at [7] above) in the affirmative in circumstances where the travel time occurs during what would otherwise be working time.
Pursuant to section 175 of the Act, it is my determination that, pursuant to subclause 8.7(c) of the Award, both Mr Illingworth and Mr Smith were entitled to paid special leave for 17 September 2020.
I decline to make the order sought by the PSA at paragraph 3 of the Application. Whilst the matter was not the subject of detailed debate in the proceedings, I very much doubt that the Commission has the power to make such an order pursuant to section 136, or any other provision, of the Act.
Instead, I strongly recommend that TfNSW grant paid special leave to PSA delegates for necessary and reasonable travel time to undertake the activities set out in clause 8.7 of the Award, during what would otherwise be working time. John Murphy Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2021

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (23)