Courts and Judges - duty of judge or magistrate to give reasons for decision - rationale and content

High Court and Federal Judiciary - Federal Court - appellate jurisdiction - appeal from Industrial Magistrate imposing penalties under s.119 of Conciliation and Arbitration Act 1904 - jurisdiction exerciseable by single judge under Industrial Relations Act 1988 - transitional provisions - Industrial Relations (Consequential Provisions) Act 1988

Words Phrases and Maxims "appoint", "initiate", "co-ordinate", "promote".

Stone - Legal Systems and Lawyers' Reasonings (1968)

Pearce - Statutory Interpretation in Australia 2nd Ed.

Local Government Officers (Western Australia) Award 1975

Acts Interpretation Act 1901 s.8

Conciliation and Arbitration Act 1904 ss.113, 118A, 119

Industrial Relations (Consequential Provisions) Act 1988 s.3

Industrial Relations Act 1988 ss.50, 53, 56

The Federal Court of Australia Act 1976 s.28(1)

Pettitt v Dunkley (1971) 1 NSW LR 376

Carlson v R (1947) 64 WN (NSW) 65

De Iacovo v Lacanale (1975) VR 553

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247

Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Ltd (1983) 3 NSWLR 378

Public Service Board of NSW v Osmond (1986) 159 CLR 656

Brittingham v Williams [1932] VicLawRp 35; (1932) VLR 237

Australian Timber Workers Union v Monaro Sawmills Pty Ltd [1980] FCA 43; (1980) 29 ALR 322

Stojkovski v Fitzgerald (unrep. Supreme Court, WA 17.6.88, FCt)

The Clothing Trades Award (1950) 68 CAR 597 (Aust. Indus. Ct. F.C.)

Australian Timber Workers Union v W. Angliss & Co. Pty Ltd (1924) 19 CAR 172

Pickard v John Heine & Son Ltd [1924] HCA 38; (1924) 35 CLR 1

Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241

Seamen's Union of Australia v Adelaide Steamship Co. Ltd (1976) 46 FLR 444

Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248

Geo. A. Bond & Co. Ltd (in liq.) v McKenzie (1929) AR(NSW) 498

Australian Workers Union v Graziers Association of New South Wales (1939) 40 CAR 494

Re Health Administration Corporation; Re Public Hospital Nurses (State Award) (1985) 12 IR 122

Rogers Meat Co. Pty Ltd v Howarth (1960) AR(NSW) 291

Re Government Railways and Tramways (Engineers etc) Award (1928) AR 53

Royal Australian Nursing Federation v Martindale Hospital Pty Ltd (1978) WAIG 1251

Zatorski v South Australian Railways Commissioner (1982) 41 ALR 655

Cranford-Webster v McFarlane [1947] SAStRp 3; (1947) SASR 162

Gapes v Commercial Bank of Australia [1979] FCA 9; (1979) 38 FLR 415

Vehicle Builders' Employees Federation of Australia v General Motors-Holdens Pty Ltd (1977) 32 FLR 1006

Counsel for the Respondent: Mr A. Jackson

Solicitors for the Respondent: Australian Government Solicitor

The decisions of the Industrial Magistrate made 1 December 1988 whereby on complaints 419 to 423 of 1988 inclusive, he found the appellant to have breached s.119 of the Conciliation and Arbitration Act 1904 be set aside.

The fines imposed and orders for payment of back wages made by the Industrial Magistrate be set aside.

The complaints 419 to 423 of 1988 inclusive in the Industrial Magistrates Court will be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On 1 December 1988, in the Industrial Magistrates Court in Perth, the City of Wanneroo was found, on five complaints, to have breached the Local Government Officers (Western Australia) Award 1975 in failing to pay four of its employees working as Social Welfare Officers the minimum annual rate of salary prescribed by the Award, contrary to s.119 of the Conciliation and Arbitration Act 1904.

2. It is not in dispute that each of the employees was paid 90% of the rate applicable under the award to a Social Welfare Officer. None was appointed to a position so designated. However the respondent, an inspector appointed under the Conciliation and Arbitration Act, successfully contended before the learned industrial Magistrate, that the nature of their responsibilities and the work undertaken by the women put them into the category of Social Welfare Officers and attracted an entitlement to the full award rate for that position.

3. The City now appeals against the decisions seeking to have them quashed and orders made by the Industrial Magistrate, requiring the City in each case to pay arrears of salary, set aside. In lieu thereof orders are sought that the complaints be dismissed.

4. Of the five complaints, two related to one employee, Linda Marie McGowan, covering the periods 12 September 1983 to 2 March 1984 and 6 March 1984 to 29 October 1987 respectively. In the first period, according to the complaint, she was employed as a casual social welfare officer, but not paid the rate appropriate to that position. In the second period, it was alleged that she was employed as a social welfare officer and again underpaid. The remaining three complaints were in respect of Patricia Maree Townsend for the period 13 May 1985 to 29 October 1987, Kathleen Ethel Reid for the period 10 February 1986 to 29 October 1987 and Dawn Isobel Adams for the period 1 July 1982 to 31 January 1986.

5. The job specifications prepared by the City and relevant to each of the women, designated their respective positions as that of "Assistant Welfare Officer (Child Care)". In each case their "Basic Function" was described as:

"To meet the needs of children and their families in

terms of quality care for young children in a local area."

The job specifications indicated that each was responsible to the Social Welfare Officer (Child Care) and their specific responsibilities and duties as defined by the specifications were in terms identical or substantially similar to the following (taken from the job specification for Ms. Townsend):

"7.1 To assist Social Welfare Officers (Child Care)

to maintain a regular visitation programme to

registered Family Day Care Mothers, as

required by State Licencing Authorities

(Department for Community Welfare).

7.2 To assist with Support Servicing:

Transport;

Referral to parents;

Occasional emergency Child Care

7.3 To assist generally with administration

duties, eg.

Telephone duties;

Enrolment Sheets;

Maintain card index - record of children

enrolled;

Keeping records of visits made to registered

caregivers;

Quarterly Reports to Community Services and

Monthly Reports to Council.

7.4 To assist Child Care Officers generally to

maintain:

(a) Quality child care service to users

of scheme;

(b) Reliable support services to

registered minders working with the

City of Wanneroo Family Day Care

Scheme.

7.5 Responsible for the routine visits in Scheme 1

and as required.

Assist with subsidy interviews and new

caregiver applications.

7.6 Responsible for the maintenance of First Aid

Equipment and the organisation of courses for

Family Day Care mothers.

7.7 Undertake any other duties specified by Social

Welfare Officer (Child Care) (355)"

The Social Welfare Officer (Child Care) was said to be responsible to the Chief Health Surveyor and have the following specific responsibilities and duties set out in her job specification:

"7.1 This Officer has four main areas of

responsibility within the scheme:

7.1.1 To the Local Community. To establish

priorities and to co-operate with

existing services and agencies to

provide a comprehensive and quality

child care service which meets the

local needs.

7.1.2 To the Parents. To select suitable

Family Day Care givers; to be readily

available to counsel parents and advise

on existing services, possible

alternatives and to help (them) in

their selection of a suitable

placement; to encourage parents in

furthering their understanding and

knowledge of child development and

child-rearing.

7.1.3 To the Family Day Care-Givers. To

provide support services for the

selected care-giver and to promote the

further development (Training sessions,

playgroups drop-in centres, meetings,

referral to other agencies etc.)

7.1.4 To the Children. To foster the link

between parent-child-family care giver;

to use her knowledge and understanding

of child activities and development to

provide a service geared to the needs

of the individual child.

7.2 The Officer's work load involves the following.

7.2.1 The development and daily management of

the Family Day Care scheme in a

selected area.

7.2.2 Community liaison including explaining

the concept of family day care.

7.2.3 Publicity including recruiting Family

Day Care mothers and children to be

care (sic) for.

7.2.4 Selection of care-givers which involves

several lengthy interviews.

7.2.5 Placement of children with a suitable

minder (which involves at least one

interview with parents and an

introduction of natural parents and

Family Day Care Home).

7.2.6 Ongoing support of Family Day Care

mothers.

7.2.7 Administration including liaison with

and reporting to, the appropriate

administrative officer of the

sponsoring organisation. Liaison with

and reporting to the Office of Child

Care, Department of Children's Services

with regard to registration of Family

Day Care home.

7.2.8 Devising record systems and developing

application forms.

7.2.9 Arranging payment of subsidies.

7.2.10 Home visits initially to facilitate the

development of a warm trusting

relationship between care-giver and

child, then for play session leaving

equipment and observation and

evaluation of the progress of the child

in the Family Day Care home.

7.2.11 Report on child's placement.

7.2.12 Availability to natural parents to

discuss child's placement.

7.2.13 Transport in emergency situations.

7.2.14 Purchase and maintenance of equipment.

7.2.15 Emergencies (sickness in Family Day

Care home or of child in care).

7.2.16 Initiating and arranging support

services.

7.2.17 Keeping accurate statistical

information for Office of Child Care.

7.3 Undertake all other duties as directed by the

Chief Health Surveyor."

6. Evidence was called by the complainant as to the nature of the duties carried out by each of the women. It occupied over three days of hearing time. No evidence was called by the City.

7. Rhonda Good who has been employed with the appellant since 6 July 1981 as a Social Welfare Officer (Child Care) described that job as being in substance that of a Co-Ordinator of Family Day Care. She is one of two Co-Ordinators and is responsible for the operation of a family day care scheme based at premises known as the Kingsley Day Care Centre. The service, evidently limited to a particular geographical area in the City of Wanneroo, is designated Scheme 1. A like service for the Whitfords area within the city is designated Scheme 2 and administered by another Co-Ordinator from premises at Mullaloo. Although operated by the appellant the services are funded by the Commonwealth Office of Child Care and are subject to the supervision of the State Government's Department of Community Services. It involves the recruitment and supervision of persons who provide in their own homes day care facilities for children of families living in the area. A care-giver licensing scheme operated by the State Government requires that prospective care-givers be interviewed and assessed and if found suitable, recommended by Mrs Good to the Department of Community Services for the issue of an appropriate licence. A document entitled "DUTIES AND RESPONSIBILITIES OF CO-ORDINATORS" published by the Department of Community Services was said to set out the responsibilities of persons in Mrs Good's position. These include under the heading "Administration" the selection and management of staff, the monitoring and evaluation of their roles, the payment of subsidies, budgeting, maintenance of records and filing, the selection and monitoring of care-givers, interviewing of parents and monitoring of their children, the facilitation of the development of care-givers, the maintenance of a toy library, provision of publicity and liaison with other welfare and community organisations.

8. Assistant Welfare Officers working with her in this case, Kathleen Reid and Patricia Townsend, are allocated particular territories and duties in relation to care-givers in those areas. Their duties include regular visitation of at least monthly frequency. The Assistant Welfare Officers conduct in Mrs Good's presence interviews with prospective care-givers and explain various aspects of family day care including regulatory framework and safety policies. Where an applicant for a licence wishes to proceed with the application after the initial interview, Mrs Good follow up with a visit to the applicant's home which she assesses for safety and suitability for family day care use. The Assistant Welfare Officers deal with inquiries about the availability of day care services from parents within the areas for which they were responsible. When an inquiry is received the relevant assistant, with Mrs Good, looks at the records to see if there is a vacancy with a view to matching up the parent with a care-giver. Once a week there is a meeting of staff where Mrs Good and the Assistant Welfare Officers in Scheme 1 report on their visits to care-givers, how the various placements are faring and what jobs are coming up. If there is any major problem with a care-giver Mrs Good visits the care-giver herself. She personally handles interviews with parents whose child or children have been allocated to a particular care-giver, enrolls them in the scheme and helps them with any application for assistance with fees. Her duties also involve budgeting and the supervision of the toy librarian and play group leader. There is a play group facility at Kingsley House run by the play group leader and with toys provided from a toy library. Care givers use the playgroup from time to time. Mrs Good is required to send reports to the Commonwealth Office of Child Care every quarter stating how many children she has in care, how much money she has spent on fees, subsidy in that quarter and an overall picture of the financial situation of the scheme.

9. Mrs Good described the principal duties of the Assistant Welfare Officers as being to support and visit the care-givers, to ensure that they worked within the regulations and to assist them with anything that they might require. Each was required to prepare a quarterly report for the Department of Community Services on each of the care-givers within her area of responsibility. In cross examination she accepted that the Assistant Welfare Officers are appointed to assist her and that she allocates functions to them.

10. Evidence was also given by Joan Mary Bowler, the Co-Ordinator of Scheme 2 otherwise known as the Whitfords Family Day Care Scheme. From 1981 to August 1985 she worked out of Kingsley House. In August 1985 the Whitfords Scheme acquired its own premises. Mrs Bowler's evidence as to the nature of the day care service and her role in it was to much the same effect as that given by Mrs Good. Initially she had the services of Dawn Adams as an Assistant Welfare Officer, services which were shared with Scheme 1. Later when Ms. Adams was engaged full time in Scheme 1, Linda McGowan was employed as Assistant Welfare Officer for Scheme 2. Asked about the duties of the Assistants Mrs Bowler said they were to maintain the regular visitation programe to care-givers. As to the degree of supervision she exercised, Mrs Bowler said that when carrying out visits to care-givers they operate on their own. However they usually discuss their visits and any problems with her on return to the office. In addition there are weekly staff meetings. At these staff meetings there is discussion of problems affecting particular children and the question whether referral to some other agency is indicated. One of the functions of the Assistant Welfare Officer involves organising social activities or excursions for care-givers and children under their care. This, according to Mrs Bowler, affords the care-givers an opportunity to come together and discuss common problems. It also gives to the children an opportunity to mix in a larger group than that available in the care-givers home. Mrs Bowler and Mrs Good in their respective Schemes make the decision whether a particular event should be organised and then leave it to be organised by the Assistant. This involves the Assistant in making bookings and contacting care-givers. In relation to the playgroup arrangements within Scheme 2, Mrs Bowler said that because of space limitations at the Kingsley House at the time that both Schemes operated out of it, she decided to start a regional playgroup at Whitfords. This was organised by Dawn Adams. Mrs Bowler decided that more regional playgroups would be desirable and another was organised at Heathridge by Linda McGowan. Ms. McGowan also had the idea of starting a drop-in centre for care-givers. Mrs Bowler obtained approval for this from the appellant, approached a local church and obtained the use of a room. Ms. McGowan then started the centre up and ran it for three or four months until a toy librarian was appointed to Scheme 2 who took over the running of the centre as part of her duties.

11. Mrs Bowler was taken through the list of co-ordinator's duties set out in the Department of Community Service document and item by item indicated that she did perform those duties. She did say however, in answer to a question from his Worship, that the assistants were capable of taking her place in any of the areas of responsibility if she happened to be absent. She described herself as being responsible for the overall peformance of the Scheme and its planning. She accepted in cross examination that observation was an important element of the Assistant's role when they visited a care-giver's home. If an Assistant became aware of anything out of the ordinary arising from a visit, then Mrs Bowler would intervene and take her own initiative in that situation.

12. The Assistant Welfare Officers were also called to give evidence as to their various functions. That evidence was to the same general effect as that of the two co-ordinators. Linda McGowan was first employed by the appellant on 16 August 1983 as a casual social welfare officer until March 1984 when she became a member of the permanent staff. Initially she was asked to organise what she called "outreaching playgroups" for both Schemes 1 and 2. This involved researching the needs of care-givers in the Scheme areas and the best locations for the playgroups to meeting those needs, arranging transport for care-givers who required it and considering the numbers and ages of children who were involved so that playgroups would be suitable for the care-givers they were trying to reach. She also had to buy equipment and liaise with other agencies in relation to the facilities. Through her involvement with the playgroups Ms. McGowan got to know the care-givers and the children. They asked for other support services and she discussed these with the co-ordinators, Goode and Bowler. They felt that if Ms. McGowan were to follow up these contacts with visits to the care-givers homes, they could be used as a means of educating them in the proper discharge of their duties. Her hours of employment as a casual were increased to give her time to make these visits. After she became a permanent employee in March 1984 Ms. McGowan was no longer responsible for the playgroups. Her services were utilised in visiting care-givers and providing support services within Scheme 2. She said in evidence that she was responsible for all visits within that Scheme and had to organise each month who was to visit whom. She described her role in organising the drop-in centre which, she said, involved finding premises, purchasing equipment, arranging attendance and advertising. The centre was in the nature of a facility enabling care-givers to come along at whatever time they required, for however long they wanted for relaxation and advice on problems that they might be experiencing.

13. Apart from the visits to care-givers a lot of Ms. McGowan's time was spent in answering phone inquiries from parents seeking child care placement for their child or children, enrolling the parents in the scheme and assessing, on the basis of their income, whether there was any fee relief available to them. She would also attend community meetings at lunchtimes and in the evenings. The purpose of these attendances was to give out information to promote the scheme and to gain information relevant to its operation. She has also arranged first aid courses for care-givers. This involved finding out what first aid courses were available in the locality, advertising them in the newspaper and preparing lists of people who wanted to attend them and booking them in. For new care-givers joining the scheme she would arrange a half day orientation in-service course where they would be informed about parent interviews, bookwork, taxation requirements and child development. Ms McGowan wrote up these courses and conducted them. She also spoke of organising social events for care-givers and children such as bowling nights, dinners and meetings with other members of family day care schemes at their respective venues. She also prepared a parent's information page to be inserted in a newsletter circulated to users of the Scheme.

14. Patricia Townsend told the court below that she had been employed as an Assistant Welfare Officer by the City of Wanneroo since May 1985. At the time of the hearing she was working in the family day care scheme at Kingsley. She described herself as Assistant to Rhonda Good who she called "our Senior Co-Ordinator". Her job is varied but the majority of her work involves visiting licensed care-givers. Of those in Scheme 1, she is responsible for 29, the nature of her responsibilities being broadly consistent with the description given by Ms. Good. She described the balance of her duties as the preparation of licensing progress reports, dealing with telephone enquiries from the public, referrals of children (presumably to particular care-givers or outside agencies), working with infant welfare nurses, other day care centres and referral agencies. Asked whether she engaged in promotional work, she said she did. This work was said to involve visits to new day care centres and infant welfare centres open in the region to introduce herself as a representative of the family day care scheme. Promotional work was also said by Ms. Townsend to be involved in her handling of telephone enquiries where:

"...you explain the role that we have and then

enquire of them as to whether they want family

based care or centre based care."

In this category she receives some 15 to 20 calls every day. She obtains information about first aid courses conducted by the Red Cross and provides that information to care-givers who might want to attend them. She also introduces care-givers to an assertiveness training course run through a community training centre in Leederville. She made some inquiries of the West Australian College of Advanced Education at Joondalup and found a course was about to be commenced for persons working with children. She obtained information about the course, passed it on to interested care-givers and attended the orientation evening. After about liaison work generally, Ms. Townsend said she maintained contact with various government departments, infant welfare centres, medical practitioners and an organisation called the Parent Help Centre.

15. In cross-examination she agreed with the proposition that a substantial part of her time was spent visiting care-givers, attending to the clerical side of her work, answering the telephonein relation to inquiries from parents and potential care-givers, answering general queries from the public, attendance at play groupsand discussions with Mrs Good and other colleagues. She was not otherwise challenged on her account of the content of her work.

16. Kathleen Ethel Reid has been employed by the City of Wanneroo since February 1986. She has worked since that time as an Assistant Welfare Officer at the Kingsley Family Day Care Centre. Her evidence as to her duties was broadly consistent with that given by Good and Bowler. She was involved in the provision of courses for care-givers. She assessed a pilot first-aid course set up by the Red Cross and the Department of Community Services and wrote a report on its suitability for child care workers. She organised a child abuse seminar for care-givers as well as a tax consultant to talk to them about taxation. She reviewed the schemes safety policy, a review approved by the Acting Chief Health Surveyor at the City of Wanneroo and ultimately adopted as safety policy for both the day care schemes run by the City.

17. Dawn Isobel Adams was employed by the City of Wanneroo between November 1979 and January 1986 as an "Assistant Co-Ordinator". In the first three years she worked in both Schemes 1 and 2 but when the later, the Whitford's Scheme, was able to be located in its own premises she continued working exclusively with it. When she commenced her employment the day care system was just getting started and she had in a sense "to create...the job itself". Again her evidence as to her routine duties was consistent with that given by the other witnesses, Good and Bowler and the other Assistant Welfare Officers.

18. The course of the hearing before the Learned Industrial Magistrate discloses little conflict on the central facts. The primary function of each of the Assistant Welfare Officers seems to have been to visit, maintain contact with and assist care-givers in the two schemes operated by the City of Wanneroo and to prepare reports of their general performance. In a number of instances they have from time to time taken initiatives in encouraging care-givers to increase their knowledge in areas related to the care of children in their charge. Assistant Welfare Officers have also participated in the process of assessing and selecting care-givers and matching them up with parents and childrens seeking to use the services. General supervision and responsibility for the administrative and financial aspects of the schemes and their day to day operations are clearly vested in the Social Welfare Officers, Good and Bowler.

19. The jurisdiction of the Industrial Magistrate to hear and determine the complaints derived from s. 119 of the Conciliation and Arbitration Act 1904 which was repealed with effect from 1 March 1989 by s.3 of the Industrial Relations (Consequential Provisions) Act 1988 and replaced by the Industrial Relations Act 1988. Section 119 now reflected, although not in identical terms, in s.178 of the Industrial Relations Act 1988 provided:

"119(1) Where any organization or person bound by

an order or award has committed a breach or

non-observance of a term of the order or award, a

penalty may be imposed by the Court or, except in

the case of a breach or non-observance of a term of

an order or award of the kind referred to in

sub-s.33(1), by any District, County, or Local

Court or Court of summary jurisdiction that is

constituted by a Judge, by a Police or Stipendiary

or Special Magistrate or by an Industrial

Magistrate appointed under any State Act who is

also a Police, Stipendiary or Special Magistrate.

.

.

.

(1D) The maximum penalty that may be imposed

under sub-section (1) in respect of a breach of a

term of an order or award is -

(a) where the penalty is imposed by the Court

(i) in a case to which sub-paragraph (ii)

does not apply - $1000; or

(ii) if the breach is a separate breach by

virtue of a provision included in an

order or award in accordance with

paragraph 41(1)(c) - $500; or

(b) in any other case - $250.

(3) Where, in any proceedings against an

employer before a Court specified in

sub-section (1), it appears to the Court that

an employee of that employer has not been paid

an amount to which he is entitled under an

order or award, that Court may order that the

employer shall pay to the employee the amount

of the underpayment but no order shall be made

in respect of so much of the underpayment as

relates to any period more than 6 years prior

to the commencement of the proceedings.

(4) Proceedings under this section in respect

of a breach of a term of an order or award may

be commenced at any time within 6 years after

the commission of the breach."

20. The relevant provisions of the Local Government Officers (Western Australia) Award 1975 are the definitions of the terms "Social Welfare Officer" and "Senior Social Welfare Officer" which were inserted in clause 5 of the Award by a consent order of the Conciliation and Arbitration Commission on 4 March 1981. The definitions are as follows:

""Social Welfare Officer" shall mean a person

appointed by Council to initiate, co-ordinate and

promote social welfare activities within the

district and, without limiting the foregoing, shall

include one or more of the following: care for the

family, children, the aged and supportive

counselling.

"Senior Social Welfare Officer" shall mean a

Social Welfare Officer who was appointed by Council

to supervise, direct or control the services of one

or two Social Welfare Officers."

There is no definition for the position of "Assistant Welfare Officer".

21. The Learned Industrial Magistrate's reasons were brief, and can be set out in full:

"THE INDUSTRIAL MAGISTRATE: The five complaints

before the court are brought against the City of

Wanneroo - an alleged failure to pay its employees

Kathleen Ethel Reid, Dawn Isobel Adams, Linda Mary

McGowan and Patricia Mary Townsend while employed

as social welfare officers the minimum rate of

salary to be paid to social welfare officers. It

is common ground that the defendant is bound by the

award and that the persons named were employed by

the defendant during the material times.

The complainant says that the women in question

were social welfare officers. The council say they

were not. It is common ground that they were paid

90 per cent of the rate for social welfare

officers. In the award "social welfare officers"

is defined in Clause 5(37) as:

Shall mean a person appointed by council to

initiate, co-ordinate and promote social

welfare activities within the district and

without limiting the foregoing shall include

one or more of the following: care for the

family, children, the aged and supportive

counselling.

In the job specification given to the employees the

basic function is to meet the needs of children and

their families in terms of quality care fore (sic)

young children in the local area. I am satisfied

on the evidence before the court that the employees

carried out this basic function. I am further

satisfied the function comes within the definition

of a social worker, namely care for the family and

children. While the employees may have been

appointed as assistant welfare officers, they did

the job of social welfare officers and should be

paid accordingly. See Zadorski -v- South

Australian Railways Commissioner and anr, Federal

Court, Industrial Division, 2nd April 1982. For

the reasons stated I find all five complaints proven."

22. There are some six grounds of appeal which are as follows:

1. The Learned Magistrate misdirected himself and

consequently erred in law by having regard to

the Award definition of "Social Worker" when

in fact the case purely concerned the question

of whether the employees, the subjects of the

application fell within the Award description

of "Social Welfare Officer".

2. The Learned Magistrate erred in law in failing

to make any or any sufficient findings of fact

after three days of evidence upon which to

condition his conclusion that each of the

applicants carried out the duties of a "Social

Welfare Officer" as defined in the Award.

3. The Learned Magistrate erred in fact and in

law in holding that the appellant's employees

carried out the duties of "Social Welfare

Officers" (as defined in the Award) in that

there was no sufficient evidence that the said

employees "initiated, co-ordinated and

promoted social welfare activities" (this

expression to be read conjunctively rather than

disjunctively) within the relevant district.

4. The Learned Magistrate erred in law to the extent

that he found (sub silentio) that each of the

applicants "initiated" social welfare activities.

5. The Learned Magistrate erred in law in failing

to distinguish what in this case the relevant

social welfare activity was for the purposes

of the Award definition of "Social Welfare

Officer" (ie. in failing to distinguish

between the overall scheme for child

minding/care in which the applicants worked

and which was a social welfare activity and

the tasks carried out by each applicant within

the scheme which were of a clerical,

administrative or inspectorial nature rather

than being properly characterised as social

welfare activities in their own right).

6. The Learned Magistrate erred in law and fact

in finding that the employees did the job of a

Social Welfare Officer - there being no

findings of fact in his judgment to identify

what in fact the job of a Social Welfare

Officer at the City of Wanneroo was and

whether each of such officers' tasks were

performed by the employees - the evidence in

the case establishing that the employees did

not carry out all the duties of the Social

Welfare Officer.

23. The appeal in this case was instituted by notice filed on 21 February 1989 and came on for hearing on 10 May. The appellate jurisdiction thus invoked was originally vested in the Australian Industrial Court by virtue of s.113 of the Conciliation and Arbitration Act 1904 which provided in sub-s.(1):

""113(1) The Court has jurisdiction to hear and

determine an appeal from a judgment, decree, order

or sentence of a State court (not being a Supreme

Court) or of a court of a Territory made, given or

pronounced in a matter arising under -

(a) this Act; or

(b) the Public Service Arbitration Act 1920."

"The Court" was defined in s.4 as "the Australian Industrial Court created by this Act". The powers of the Court on an appeal under s.113 were set out in s.115 of the Act. On 1 February 1977 Pt.VA was inserted into the Act to transfer jurisdiction from the Australian Industrial Court to the Federal Court of Australia. In particular, s.118A(1) provided:

"118A(1) On and after the commencement of this Part

-

(a) the jurisdiction and powers expressed by this

Act to be vested in or exercisable by the

Court or a Judge of the Court are, except in

relation to matters in respect of which the

hearing of proceedings in the Australian

Industrial Court had commenced or been

completed before that date, vested in and

exercisable by the Federal Court of Australia

or a Judge of that Court and, subject to this

section, are exercisable in accordance with

the Federal Court of Australia Act 1976; and

(b) a reference in this Act to the Court (other

than in sections 104, 105, sub-sections 111(1)

and (2) and sections 114, 115, 116, 117, 118

and 184) shall, in relation to, and to matters

arising out of, that jurisdiction or those

powers as so vested or exercisable, be read as

references to the Federal Court of Australia

in its Industrial Division."

Sub-section (2) it should be noted, did not derogate from the grant of jurisdiction and power conferred on the Federal Court by sub-s.(1). It did, however, change the definition of "the Court" in provisions of the Act other than those dealing with jurisdiction and power.

24. Sub-section 118A(4b) required that the appellate jurisdiction derived from s.113 be exercised by a Full Court. And this was the position at the time that the present appeal was instituted.

25. On 1 March 1989, the Industrial Relations Act 1988 commenced and so too did the Industrial Relations (Consequential Provisions) Act 1988 ("IRCP Act") by which the Conciliation and Arbitration Act 1904 and its various amendments were repealed. Section 8 of the IRCP Act provides, inter alia:

"8(1) Where, immediately before the commencement:

(a) a proceeding in a matter arising under the

previous Act was pending in the Court; and

(b) the hearing of the proceeding (other than any

interlocutory hearing) had not started;

Part III of the Industrial Relations Act as

modified by subsection (2) applies in relation to

the proceeding as if the proceeding had been

instituted under the Industrial Relations Act."

Part III of the Industrial Relations Act includes ss. 50, 53 and 56 which provide in the relevant parts:

"50(1) The Court has jurisdiction with respect to

matters arising under this Act in relation to which

.

.

.

(c) appeals lie to it under section 56;"

"53(1) Subject to subsection (2) the jurisdiction

of the Court may be exercised by a single Judge.

(2) The jurisdiction of the Court shall be

exercised by a Full Court in relation to:

(a) questions referred to the Court under sections

46 or 82;

(b) matters in relation to which applications are

made to the Court under section 153; and

(c) matters in relation to which applications are

made to the Court under section 294.

(3) (Not relevant for present purposes)"

"56(1) An appeal lies to the Court from a judgment

of a State court (other than a Supreme Court) or of

a court of a Territory in a matter arising under

this Act.

(2) It is not necessary to obtain the leave of

the Court or the court appealed from in relation to

an appeal under subsection (1).

(3) An appeal does not lie to the High Court

from a judgment from which an appeal may be made to

the Court under subsection (1)."

26. There is no modification of ss.50 or 56 effected for transitional purposes by s.8 of the IRCP Act. Modifications to s.53 merely extend the references in paras. 53(2)(a), (b) and (c) to pick up proceedings under the provisions of the Conciliation and Arbitration Act equivalent to those expressly mentioned in those paragraphs.

27. The effect of sub-s.53(1) read with sub-s.(2) and s.56 is that the appellate jurisdiction of this Court under the Industrial Relations Act may be exercised by a single Judge. The complaints heard by the Learned Industrial Magistrate were matters arising under the Conciliation and Arbitration Act and the jurisdiction of this Court to hear appeals in relation to them derived from s.113 of that Act until 1 March 1989. The appeal having been instituted on 21 February was, at the commencement of the Industrial Relations Act 1988, "a proceeding in a matter arising under the previous Act...pending in the Court" within the meaning of para.8(1)(a) of the Industrial Relations (Consequential Provisions) Act 1988. And at that date the hearing of the proceeding had not commenced. The conditions under paras.8(1)(a) and 8(1)(b) having been met, Part III of the Industrial Relations Act applied in relation to the appeal as if it had been instituted under that Act. Section 8 in effect requires an appeal pending at the commencement date, but not then part heard, to be treated as though instituted under the Industrial Relations Act. Whether or not the true source of the appellate jurisdiction is s.113 of the Conciliation and Arbitration Act read with s.8 of the Acts Interpretation Act 1901, Part III will apply on the assumption forced by the transitional provisions, that jurisdiction derives from that Part. In particular, s.53 of the Industrial Relations Act applies to enable the jurisdiction to be exercised by a single judge. In that regard I respectfully differ from the view expressed by Gray J. in Poletti v Ecob (unrep.; 8/6/89). And although when the matter came on for hearing in May it was listed before a Full Court, the parties agreed and the Court decided that it should be dealt with by a single judge.

28. Unlike the Conciliation and Arbitration Act 1904, the Industrial Relations Act makes no provision for the powers of the Court in the exercise of its appellate jurisdiction. As the former Act was the legislation by which the Australian Industrial Court was established, it was necessary to include provisions relating not only to its jurisdiction, but also its powers. There was no change to these provisions when the functions of that Court were transferred to the Federal Court. The Federal Court of Australia Act 1976 however, contains its own provision for the powers of the Court in the exercise of appellate jurisdiction and it was no doubt regarded by the draftsman of the Industrial Relations Act as unnecessary to modify or extend that grant of power in relation to the exercise of appellate jurisdiction under the Industrial Relations Act. Relevantly, s.28 of the Federal Court of Australia Act provides:

"28(1) Subject to any other Act, the Court may, in

the exercise of its appellate jurisdiction -

(a) affirm, reverse or vary the judgment appealed

from;

(b) give such judgment, or make such order, as, in

all the circumstances, it thinks fit, or

refuse to make an order;

(c) set aside the judgment appealed from, in whole

or in part, and remit the proceeding to the

court from which the appeal was brought for

further hearing and determination, subject to

such directions as the Court thinks fit;

.

.

.

(f) grant a new trial in any case in which there

has been a trial, either with or without a

jury, on any ground upon which it is

appropriate to grant a new trial;"

29. In his reasons for decision, the Learned Magistrate addressed one and only one aspect of the appellant's job specification for Assistant Welfare Officer, namely the description of the "basic function" which was:

"To meet the needs of children and their families in

terms of quality care for young children in a local area."

He found as a matter of fact that the work done by McGowan, Townsend, Reid and Adams "carried out the basic function". His additional observation that they "did the job of social welfare officers and should be paid accordingly", unadorned by elaboration, can only be seen as a re-statement of the conclusion at which he had already arrived.

30. The "basic function" is little more than a statement of the objective of the job described in the body of the specification. Taken by itself, it is as applicable to the functions of individual care-givers operating within the appellant's schemes as it is to those of the Assistant Welfare Officers.

31. The award description of the Social Welfare Officers' task, on the other hand, embodies elements of initiation, co-ordination and promotion of social welfare activities within the District. None of those are necessary features of the "basic function" of the Assistant Welfare Officers. And although the learned magistrate appears to have addressed the evidence of what they did sufficiently to consider that it was within the "basic function", that did not necessarily involve a consideration of whether they did those things which the award describes as features of the job of a Social Welfare Officer. Given His Worship's failure to refer to any of those things, it is reasonable to conclude that in truth he did not refer to them. He has therefore failed to address essential elements of the breaches alleged. And even if he had, sub silentio, considered these matters, he failed to adequately disclose the reasoning process used.

32. It is well established that a failure by a judge or magistrate to give any or adequate reasons for decision can amount to an error of law. Until recently judicial exposition of the duty rested largely upon the proposition that a failure to do so would encroach upon rights of appeal. This was the limiting criterion enunciated by Moffitt JA (with whom Manning JA agreed) in Pettitt v Dunkley (1971) 1 NSW LR 376 at 388:

"I do not think there is any judicial duty to give

reasons except so far as such duty can be related

to a right of appeal."

The various authorities referred to in his Honour's reasons and the judgment of Asprey JA. in the same case, provided support for that view - see especially Carlson v R (1947) 64 WN (NSW) 65 (Jordan CJ) and generally De Iacovo v Lacanale [1957] VicRp 78; (1957) VR 553, 558-559 (Monahan J.). But in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247, the Court of Appeal did not accept that limitation on the duty. The right of appeal there arose only on a question of law, a circumstance regarded by Kirby P. as enhancing the judge's duty to set out, however briefly, reasons for decision. Mahoney JA repeated the view he had expressed in Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Ltd (1983) 3 NSWLR 378 at 386 that the requirement was not confined to cases where there is an appeal and should be seen as an incident of the judicial process. That comment had been approved by the High Court in Public Service Board of NSW v Osmond (1986) 159 CLR 656, 667 (Gibbs CJ, Wilson, Brennan and Dawson JJ agreeing) with the qualification that the requirement is "a normal but not a universal incident". The third member of the Court of Appeal in Soulemezis, McHugh JA, considered that the statement of reasons for a judicial decision serves at least three purposes:

1. To provide the foundation for acceptability of the

3. To enable practitioners, legislators and membe rs of

the public to ascertain the basis upon which like

cases will probably be decided in the future.

A powerful justification for accountability as a means of demonstrating rationality in decision-making was enunciated in Julius Stone's Legal System and Lawyers' Reasonings (1968) at p 60:

"As long as men aspire to act rationally, that is,

explicably and not capriciously, they must have

resort to the forms of inference without which they

can account neither to themselves nor their fellow-

men for their behaviour. It has been a cardinal

rule of the common law, for instance, and it is

also the practice of the modern civil law, that

judges should so attempt to account by reasons for

their judicial behaviour."

And in more prosaic but no less cogent terms, Professor Wade wrote:

"The giving of reasons is required by the ordinary

man's sense of justice and is also a healthy

discipline for all who exercise power over others."

- adopted in Public Service Board of New South

Wales v Osmond (supra) at 668 (Gibbs CJ.)

There is no doubt a variety of useful purposes to be served by laying open to scrutiny by the parties and by the public the process of reasoning which leads to a decision in a given case. Not least is the consideration that the duty to formulate and express reasons may enhance the quality of decision-making. But being a judge-made duty it is not surprising that it will be supported by more than one rationale and that these may evolve.

33. The content of the duty will vary according to the circumstances of the case and in some cases reasons may not be necessary. As McHugh JA observed in Soulemezis (supra) at 279, neither the needs nor the appearance of justice require that reasons be given for every decision by a judicial tribunal. Many interlocutory matters, rulings on admissibility of evidence and the like, will not require explanation. The Victorian Full Court in Brittingham v Williams [1932] VicLawRp 35; (1932) VLR 237 said that:

"A case may turn entirely upon a finding in relation

to a single and simple question of fact, or be so

conducted that the reason or reasons for decision

is or are obvious to any intelligent person; or a

claim or defence may be presented in so muddled a

manner that it would be a waste of public time to

give reasons; and there may be other cases where

reasons are not necessary or even desirable."

Nevertheless I respectfully adopt the observation of McHugh JA. that "...when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons".

34. It may well be the case, that the list in the Industrial Magistrate's Court is such that it would be inappropriate to require the formulation of extensive analysis of the evidence and the law to support each decision. But as Sweeney and Evatt JJ said in Australian Timber Workers Union v Monaro Sawmills Pty Ltd [1980] FCA 43; (1980) 29 ALR 322, an appeal from the dismissal of a complaint for breach of an award:

"...in any case such as the present, the primary

Tribunal should state the facts found and the

reasons for the decision..."

The reasons given at first instance in that case, rather like those given in the present matter, were brief, comprising a statement of the question to be determined, the onus and standard of proof, a finding that the complainant had not discharged the onus and a finding that there did not exist between the "employee" and the defendant "employer" a relationship of master and servant. The defendant, it was said, had engaged the "employee" as an independent contractor.

35. Keely J. was of the view that the absence of findings of fact and reasons for decision constituted an error of law. Sweeney and Evatt JJ. on the other hand, held that while the failure to provide reasons made their task more difficult than it should be, it did not amount to an error of law. I take that to be an observation limited to the case then before the Court and not laying down any general principle. In my opinion the reasons given in this case were so brief as to constitute a breach of the judicial duty and therefore an error of law.

36. One option open to the Court is simply to set aside the decisions and penalty and send the case back to the Industrial Magistrate for further hearing and determination subject to appropriate directions. Another would be to order a new trial. Each of those options would undoubtedly incur considerable additional expense for both parties. If the proper outcome can be determined without the need for a new trial then that is, in my opinion, the better course to follow. In the Monaro Sawmills' case evidence had been called at first instance by both the appellant and respondent. Sweeney and Evatt JJ (at 324-325) noted that there were only minor points of conflict between them and considered that they were in as good a position as the Magistrate to decide what inferences could be drawn from the evidence. There was no question of credibility involved. Where there is, then a different course may be necessary - Stojkovski v Fitzgerald (unrep. Supreme Court, WA 17.6.88, FCt) per Brinsden J. at p 8.

37. The present case is one in which the appellant called no evidence in the court below and although there was extensive cross-examination of the respondent's witnesses, no real conflict emerged on the salient facts. There is, in the circumstances a stronger argument than in Monaro Sawmill for the proposition that this Court should now determine the proper outcome of the complaints on the basis of the evidence before the Industrial Magistrate. It is appropriate for that purpose to begin by addressing the principal findings of fact that can be made on the evidence previously summarised.

38. There is no dispute that the City of Wanneroo is and was at all material times bound by the terms of the Local Government Officers (Western Australia) Award 1975. Nor is there any dispute that the Award was amended by a consent order on 4 March 1981 to include the new job classifications of "Social Welfare Officer" and "Senior Social Welfare Officer" and to prescribe rates of pay applicable to them. It is common ground that the four employees mentioned in the complaints held offices with the appellant designated by the title "Assistant Welfare Officer" and in that capacity were paid 90% of the rate applicable under the Award to a Social Welfare Officer.

39. Each was employed in the operation of a family day care service conducted by the City and run initially from a centre at Kingsley and later from that centre and another at Mullaloo to cover the Whitfords area. The service, funded by the Commonwealth Office of Child Care and supervised by the State's Department of Community Services, uses residents of the municipality who are prepared to provide in their homes day care facilities for the children of families living in the area. A large part of the role of the City of Wanneroo in administering the scheme involves the recruitment, vetting and selection of persons who will be suitable care-givers, their supervision and support for them in the discharge of their functions. The City is also responsible to the Commonwealth Office of Child Care for the expenditure of funds used to pay care-givers and otherwise associated with the operation of the scheme. Fees are collected from users but may be remitted under a subsidy system. The appointment of individual care-givers is subject to their licensing by the Department of Community Services, which requires quarterly reports from the City on each person so licensed. The statutory basis for the licensing system was not before the court below and is not necessary for the disposal of the present case.

40. The service is and was at all material times organised into two "schemes" operating in different areas within the City boundaries and ultimately run from Kingsley and Mullaloo rspectively. Each had, since 1981, been administered by a Co-ordinator, Mrs Good, in relation to the Kingsley scheme and Mrs Bowler in relation to the Whitfords scheme. They were each employed under the designation "Social Welfare Officer (Child Care)" and paid as Social Welfare Officers under the award. Their job specifications have been set out earlier in these reasons but it appears that their duties also accorded with a statement published by the Department of Community Services under the heading "Duties and Responsibilities of Co-ordinators" to which reference has also been made. The evidence is, I think, clear enough that they were in effect the managers and administrators of the family day care service in the scheme areas for which they respectively had responsibility.

41. The four women employed as Assistant Welfare Officers were involved in the day to day operation of the service. Consistently with their job specifications and the evidence given at trial, their principal function was to visit, maintain contact with and generally assist care-givers. Their role may be said to have involved a monitoring function in so far as they were required to report quarterly to the Department of Community Services on each care-giver. They assisted in the selection of new care-givers and interviews with persons seeking fee subsidies. Handling telephone inquiries, enrolling parents in the scheme and matching up children and particular care-givers was also part of their function. Their duties extended to organising courses to be attended by day-care mothers. They have, from time to time, taken initiatives in encouraging care-givers to increase their knowledge in relation to children in their care.

42. I do not detect any significant divergence on the evidence between the tasks that the Assistant Welfare Officers carried out and the job specification to which reference has already been made. The question then is whether or not the nature of the employment brings them within the category of Social Welfare Officer under the Award. The answer to that question requires an interpretation of the Award and its application to the facts to which I have already referred.

43. The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words - The Clothing Trades Award (1950) 68 CAR 597 (Aust. Indus. Ct. F.C.). The words are to be read as a whole and in context - Australian Timber Workers Union v W. Angliss & Co. Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award - Pickard v John Heine & Son Ltd [1924] HCA 38; (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all - Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241, 244 (Northrop J.), 254 (Keely J.) cf. 265 (Gray J.). The logs of claim and arbitrator's reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it. - Seamen's Union of Australia v Adelaide Steamship Co. Limited (1976) 46 FLR 444, 446, disapproving Merchant Seamen's Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Asociation (1958) 1 FLR 248. That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J. said in Geo. A. Bond & Co. Ltd (in liq.) v McKenzie (1929) AR(NSW) 498 at 503:

"...it must be remembered that awards are made for

the various industries in the light of the customs

and working conditions of each industry, and they

frequently result...from an agreement between the

parties, couched in terms intelligible to

themselves but often framed without that careful

attention to form and draughtsmanship which one

expects to find in an Act of Parliament. I think,

therefore in construing an award, one must always

be careful to avoid a too literal adherence to the

strict technical meaning of words, and must view

the matter broadly, and after giving consideration

and weight to every part of the award, endeavour to

give it a meaning consistent with the general

intention of the parties to be gathered from the

whole award." - see also Re Crown Employees

(Overtime) Award (1969) AR(NSW) 60, 63; Re Hospital

Employees Administrative and Clerical (State) Award

(1982) 2 IR 123.

It is of course no part of the Court's task to assign a meaning in order that the award may provide what the Court thinks is appropriate - Australian Workers Union v Graziers Association of New South Wales (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co. Pty Ltd v Howarth (1960) AR(NSW) 291; Re Government Railways and Tramways (Engineers etc) Award (1928) AR 53, 58 (Cantor J.).

44. The part of the Local Government Officers (Western Australia) Award now under consideration is unaccompanied by evidence of any relevant history or industry background. Neither the consent order which introduced the terms "Social Welfare Officer" and "Senior Social Welfare Officer", nor the body of the award itself offers any significant contextual aid to interpretation. The Court is therefore principally concerned with the natural meaning of the language used in the definition of "Social Welfare Officer". It is nevertheless clear that the term "Senior Social Welfare Officer" reflecting, as it does, the existence of a hierarchy imposes some limitation on the scope of the language in the earlier definition.

45. The first requirement for the position of "Social Welfare Officer" is that he or she be a person "appointed" by the Council to do the various things which are there set out. The use of the word "appointed" does not limit the operation of the definition to persons formally designated as Social Welfare Officers by their employers. The question is one of fact to be determined by reference to the duties actually attaching to the position, rather than its title - Royal Australian Nursing Federation v Martindale Hospital Pty Ltd (1978) WAIG 1251 at 1251 (Wickham J.) and 1252 (Brinsden J); cf. Zatorski v South Australian Railways Commissioner (1982) 41 ALR 655, 661 (Full Court). The latter case was referred to by the Learned Industrial Magistrate following his determination that the employees "did the job of social welfare officers and should be paid accordingly". In that regard Zatorski was of limited application for the award there in issue did not use the term "appointed". Decision-making in the present case is facilitated by the fact that there is no marked divergence between the City's job specification and the work done by the Assistant Welfare Officers.

46. The question that then arises is whether or not these officers were, in the relevant sense, appointed to initiate, co-ordinate and promote social welfare activities within the District. Each of the key words "initiate", "co-ordinate" and "promote" is potentially applicable to a range of responsibilities from the trivial to the complex. An upper limit on the co-ordination responsibility is defined by the next position in the hierarchy, that of Senior Social Welfare Officer. Whatever the responsibilities of Social Welfare Officers for co-ordinating social welfare activities, they do not extend to directing or controlling the services of other Social Welfare Officers. Selection of the relevant range of conduct is aided by consideration of the content of the "social welfare activities" which are to be the subject of initiation, co-ordination and promotion. The activities in question are limited geographically to "the District", which I take to be a reference to the area contained within the boundaries of the relevant Local Government Authority.

47. The definition of Social Welfare Officer being in form a description of a class of persons by reference to the range of their responsibilities goes on to include "without limiting the foregoing...one or more of the following: care for the family, children, the aged and supportive counselling". This fractured and illogical prose may be met by a generous and liberal approach to interpretation. That does not put it beyond criticism. Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties. While that fact has been seen as supporting a rule of strict construction - Cranford-Webster v McFarlane [1947] SAStRp 3; (1947) SASR 162, 166 (Mayo J.) - it must not be forgotten that proceedings for breach of an award are not criminal in character - Gapes v Commercial Bank of Australia [1979] FCA 9; (1979) 38 FLR 415 disapproving Vehicle Builders' Employees Federation of Australia v General Motors-Holdens Pty Ltd (1977) 32 FLR 100. Accepting the serious and binding nature of industrial awards, a strict approach is not in my opinion appropriate and would be inconsistent with the general principles of interpretation to which I have already referred. Where there is, as in this case, a drafting error embodying logical absurdity which goes beyond the merely typographical, the Court should proceed cautiously before effectively re-writing it in an intelligible form - see generally Pearce - Statutory Interpretation in Australia 2nd Ed. paras. 19-21. Exercising all due caution, I am satisfied that the reference to "care for the family, children, the aged and supportive counselling" is intended to set out specific examples of the "social welfare activities" to which the award relates. If a person can be said to have been appointed by the Council to initiate, co-ordinate and promote child care activities within the District, that person will answer the description of a Social Welfare Officer. It is not sufficient that a person be appointed to only one of those tasks, all three elements must be present to a greater or lesser degree. And if that means that the coverage of the award is deficient in certain cases, then the remedy may lie in its further variation.

48. The Shorter Oxford Dictionary definition of "initiate" includes "...to introduce, set going, originate". "Co-Ordinate" means, inter alia, "to place (things) in proper position relatively to each other and to the system of which they form parts". To "promote" in the relevant sense is to "further the growth, development, progress, or establishment of (anything); to further, advance, encourage". The concept of initiation cannot require that the Social Welfare Officer be engaged in establishing new systems for the delivery of social welfare services. The two co-ordinators Good and Bowler, were essentially concerned with the maintenance and oversight of existing child-care schemes. It is evident that they are regarded by their employer as Social Welfare Officers, notwithstanding that the initiating phase of the day care services as a system has passed in their respective scheme areas. Initiation of social welfare activities in this context cannot be limited to the setting up of a whole new service. The relevant initiating activity must operate at a lower and continuing level. In my opinion the relevant level in this case is that of the recruitment and selection of new care-givers. That is a responsibility which, under the Council's job specifications, rests upon the co-ordinators - see cls. 7.2.3 and 7.2.4. The Assistant Welfare Officers have an ancilliary role in this regard and that is defined by cl.7.4 of their job specification - "assist with subsidy interviews and new care-giver applications". The evidence disclosed that they conduct initial interviews in the presence of the co-ordinator who carries out the follow-up visit and assessment.

49. Although it is clear that the Assistant Welfare Officers organise courses, social activities and excursions for family day-care mothers, these are incidental to the operation of the day-care scheme and would not, in my opinion, represent a level of activity to which the term "initiate", as used in the Award, is directed.

50. There is an element of co-ordination in the role of matching up parents with particular care-givers, but again on the evidence, this is done in conjunction with the co-ordinator. Given the primary responsibility of Good and Bowler in this connection, I do not regard the job of Assistant Welfare Officer as involving co-ordination at the level contemplated by the Award. Nor do I accept that liaison with other agencies for referral purposes in particular cases, comes within that description.

51. As to promotion of the service, there is little doubt that the Assistant Welfare Officers have been expected to and have participated in promotional activities of various kinds, including the preparation and distribution of pamphlets and posters, the preparation in one case, of an information resources booklet and the conduct of public relations stalls at Wanneroo and Warwick Shopping Centres.

52. Their principal duties however, were clearly as described by Mrs Good, namely to support and visit the care-givers, to ensure that they worked within the regulations and to assist them with anything that they might require. I do not therefore consider that the definition of Social Welfare Officer as presently drawn in the Award extends to the position of Assistant Welfare Officer. Responsibility for initiation, co-ordination and promotion in the relevant senses rests with the co-ordinators. It may be that the distinction thus drawn is invidious and that the language of the award sets too high a threshold for the duties of the Social Welfare Officer. That is a matter for resolution in some other forum. In my opinion the Assistant Welfare Officers were not entitled under the award to payment at the rates appropriate to a Social Welfare Officer and the complaints should have been dismissed.

53. For the foregoing reasons the appeal will be allowed. The decision of the Industrial Magistrate and the orders made pursuant to that decision will be set aside and in lieu thereof I will order that each of the complaints be dismissed.