Royal Australian Nursing Federation (Tasmanian Branch) v Fawdry

EXTRINIC MATERIAL AND AWARD INTERPRETATION An issue arose during the hearing whether the Court could have regard to extrinic material in the interpretation of an award, or whether it was confined to examining only the terms of the award. There are divergent lines of authority on whether resort may be had to extrinsic material. The more cautious approach holds that extrinsic material should not be referred to unless there is some ambiguity in the meaning of an award. See Victoria v Australian Teachers Union (1993) 47 IR 328 at 334. Within this cautious approach there is authority for a further limitation. This further limitation holds that where even where an ambiguity permits admission of extrinsic material, regard may only be had to that extrinsic material for the purpose of demonstrating the mischief sought to be addressed by the award, rather than to construe the particular meaning of the award. See Bell v Gillen Motors Pty Ltd (1989) 27 IR 324 at 332. A more generous and recent approach relating to the construction of awards allows recourse to extrinsic material without requiring a threshold ambiguity test to be met. The generous approach is most fully expounded in the compelling judgment of Burchett J, sitting as a member of a Full Court of this Court, in Short v Hercus (1993) 40 FCR 511. After commenting on the importance of reading an expression in context, Burchett J said as follows at 518: "The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used." As will become apparent below the above passage is particularly apposite to the present matter. As is evident from my judgment in Barlow v Qantas (1997) 75 IR 100 at 113-114, where I was sitting as a member of a Full Court of IRCA, I prefer Burchett J's approach to award interpretation. There is no sound reason why recourse to probative extrinsic material by the Court should be conditional on identification of an ambiguity. Further, there is no sound reason why use of the extrinisic material should be limited to identifying the mischief sought to be addressed by the award, as distinct from construing the meaning of the award itself. But the debate is rather academic. I regard myself bound by the approach of Burchett J in Short v Hercus, Drummond J having agreed with his Honour's approach on the issue of award interpretation and the use of extrinisic material. SUBSEQUENT CONDUCT AND AWARD INTERPRETATION A further issue in respect of award interpretation was raised at the hearing. This issue related to whether it was permissible to have regard to the conduct of parties subsequent to the making of the award. In my view, the overwhelming weight of authority, supports the proposition that it is impermissible to have regard to such subsequent conduct. See Seaman's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444; Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444; Hawkins v Commonwealth Bank (1996) 66 IR 322. Mr Cavanough invited the Court to have regard to the conduct of the parties following the making of the GEC Award, ie the position embodied in an ATO Agency Bargaining Agreement 1996 ("the ATO Agreement") which came into operation after the GEC Award. In accordance with the Seaman's Union case, and subsequent authorities which apply that decision, I have not had regard to the ATO Agreement in forming my views on the proper interpretation of the GEC Award. THE GEC AWARD The GEC Award is a consent award made by Deputy President Harrison of the Commission. It came into operation on 14 December 1995. It has been subsequently varied but those variations have no material impact on the issue of interpretation which arises in this application. The GEC Award is directed to regulating the terms and conditions of employment of persons employed under the Public Service Act 1922 (Cth) ("the PS Act"). Paragraph 6.2.1 of the GEC Award provides that it must be read in conjunction with, inter alia, the the PS Act and the regulations to the PS Act. Paragraph 6.2.3 provides that the GEC Award forms part of a set of integrated awards including certain awards directed to classifications and particular agencies. The particular provision of the GEC Award required to be interpreted is cl. 11.1.1(c) which relevantly provides as follows: 11.1.1 Excess employee For the purposes of this clause an employee is an excess employee if: ... 11.1.1(c) where the duties usually performed by the employee are to be performed at a different locality, the employee is not willing to perform duties at the locality and the Secretary has determined that the provisions of Division 8C of the Act apply to that employee. ... The reference in cl. 11.1.1(c) to "Division 8C of the Act" is a reference to Division 8C of the PS Act which deals with the retirement and redeployment of public servants. The definition of "excess employee" in cl. 11.1.1(c) arises in the context of the redeployment, retirement or redundancy. In effect an employee who is properly an "excess employee" attracts the operation of the redeployment and redundancy provisions of cl 11 of the GEC Award. Clause 11 affords those who come within its scope certain benefits and protections. The effect of cl. 11.1.1(c) is that an employee becomes an "excess employee" when three cumulative requirements are met: · the duties usually performed by the employee are required to be performed at a different locality; and · the employee is not willing to perform duties at that different locality; and · the Secretary has determined that the provisions of Division 8C of the PS Act apply to that employee THE DISPUTED INTERPRETATION The applicant contends that, where cl. 11.1.1(c) refers to the transfer of duties to "a different locality", the clause comprehends not only transfers between metropolitan areas but also within metropolitan areas. At the hearing of the application, Mr Green urged the Court to make the following declaration: The reference to "at a different locality" in cl 11.1.1(c) of the Australian Public Service, General Employment Conditions Award 1995 includes a move within a capital city from one place of work to another provided that such a move is not merely a re-location from one building to another in the immediate vicinity.

This interpretation is resisted by all respondents. Mr Cavanough contended that the reference to "a different locality" in cl 11.1.1(c) does not encompass a relocation within a metropolitan area, eg from Cheltenham to Dandenong, but rather is directed to a relocation in the magnitude of an inter-city move, or a move on a similar scale, such that the employee would need to move house to remain employed. At the hearing Mr Cavanough urged the Court to make the following declaration: Clause 11.1.1(c) does not refer to compulsory transfers within the same metropolitan area. The test of a different "locality" is only met where the compulsory relocation of the duties performed by the employee is from one capital city to another, or on a similar scale, such as from a country town to a city, and it would generally be necessary and reasonable for the employee to move house in order to maintain employment. The third respondent contended that the declaration proposed by the applicant is contrary to the purpose of cl 11.1.1(c). However, the third respondent did not support the interpretation proposed by the first and second respondent. Rather, Mr Ramsey contended that there can be circumstances where both inter-city or intra-city relocations can constitute movement to "a different locality". The third respondent contended that this assessment depends on a number of factors including, but not limited to, whether there has been a change of town or city, the distance between the old and new locality, the availability of services in the new locality including transport, and the cost to the employees concerned. The third respondent submitted that the application should be dismissed and that no declaration be made. The effect of the third respondent's contentions is that the issue before the Court in this matter is not amendable to declaration, as any dispute as to whether a particular relocation constitutes a move to "a different locality" must be resolved on a case by case basis, having regard to a multitude of factors such as those referred to above. While the interpetation of cl 11.1.1(c) of the GEC Award by the Court does not turn on any factual dispute between the parties, it is useful to set out the factual background from which the difference over interpretation has arisen. The factual background is set out in the affidavit sworn on 21 March 1997 by Mr Jeffrey Lapidos, the Branch Secretary of the Taxation Officers' Branch of the applicant. Mr Lapidos deposed that in 1996 the Australian Taxation Office ("ATO") proposed a reorganisation of its operations which involved the transfer of ATO employees from certain ATO offices to other ATO offices within a region. In response to this proposal, the applicant sought advice from the Public Service and Merit Protection Commission ("PSMP Commission") as to the application of cl 11 of the GEC award to employees effected by the ATO's proposed reorganisation. In a letter dated 9 July 1996 the PSMP Commission advised that clause 11 would only apply: " ... where the relocation is from one capital city to another, or on a similar scale, and the employee is required to relocate their residence. The intra-city movement of staff is not considered to be a geographic relocation for [clause 11] ... purposes" The ATO has subsequently relied on this advice to deny that clause 11 has application to employees whose duties are transferred to a different branch office within a metropolitan area. CONSIDERATION The expressions "locality" or "different locality" are not defined in the GEC Award or the PS Act. During the course of his submissions Mr Green referred to a number of dictionary definitions. He referred to the definition of the term "locality" contained in The Macquarie Dictionary (The Macquarie Library, second edition) which reads as follows: locality ... 1. a place, spot, or district, with or without reference to things or persons in it. 2. the place in which a thing is or occurs 3. state or condition of being local or having place. He referred also to the definition in the Australian Concise Oxford Dictionary (Oxford University Press, Melbourne, 1993) which reads as follows: locality ... 1 a district or neighbourhood. 2 the site or scene of something, esp. in relation to its surroundings. 3 the position of a thing, the place where it is. These dictionary definitions are only helpful to the extent that they point broadly to the general meaning of the term "locality". In pure abstract terms and viewed alone, "locality" can have a variety of meanings, including a building, a suburb, a town, a city or a district. This does not materially advance a resolution of the issue in dispute. It is apparent that the specific meaning of the term "locality", in any particular usage, will depend on the context of its usage. The context delivers the necessary specificity of meaning. Having regard to Short v Hercus, it is to that context, which I will now turn. The provisions of the GEC Award governing the treatment of excess staff were preceded by a number of instruments. These instruments and their history were conveniently set out in an affidavit of Mr Peter William Miller sworn on 1 May 1997. Mr Miller is a Public Servant employed by the PSMP Commission. His affidavit was filed on behalf of the first and second respondents. The most materially relevant of the predecessor instruments is the RRR Award. The RRR Award came into force on 20 July 1987. Clause 5(e)(iii) of the RRR Award defined "excess employee" in terms materially identical to the definition of "excess employee" in clause 11.1.1(c) of the GEC Award. Below is a comparison of the relevant provision of the GEC Award and its predecessor provision in the RRR Award. GEC Award - Clause 11.1.1(c) RRR Award - Clause 5(e)(iii) 11.1.1 Excess employee 5 DEFINITIONS AND INTERPRETATIONS For the purposes of this clause an employee is an excess employee if: In this award: ... ... 11.1.1(c) where the duties usually performed by the employee are to be performed at a different locality, the employee is not willing to perform duties at the locality and the Secretary has determined that the provisions of Division 8C of the Act apply to that employee. (e) An officer is an excess officer if ... (iii) where the duties usually performed by the officer are to be performed at a different locality, the officer is not willing to perform duties at the locality, and the Board has determined that the excess officer provisions of the Act apply to that officer.

Mr Green and Mr Cavanough both referred to other provisions of the GEC Award, many of which dealt with allowances, where the terms "locality" and "location" were utilised. Mr Green and Mr Cavanough submitted that this broader textual analysis supported the alternative declarations each sought in respect of cl 11.1.1(c). Mr Ramsey contended that this textual analysis was of limited utility given the particular history of the GEC Award. I accept Mr Ramsey's contention. It is apparent that the GEC Award dealt with employment conditions which had previously been dealt with by a multitude of separate predecessor Awards and instruments, the RRR Award being one such predecessor award. The RRR Award, in contrast, dealt exclusively with redeployment, retirement and redundancy. Clause 5(e)(iii) of the RRR Award and the usage of the expression "at a different locality" in that clause were formulated to deal with those contingencies. The importation of that provision into the GEC Award as cl 11.1.1(c) does not materially alter the "context" in which the expression the subject of debate is to be construed. This is especially given that the prescription of the RRR Award remained substantially unchanged when incorporated as cl. 11 of the GEC Award. On 20 July 1997, the same day that the RRR Award came into operation, administrative instructions issued by the Public Service Board pursuant to section 76X of the PS Act, also came into operation ("the Excess Staff Circular"). The RRR Award was attached as "Attachment A" to the Excess Staff Circular. Where mandatory language was used, the Excess Staff Circular was binding on Secretaries of Commonwealth Departments. It set out instructions on the redeployment and retirement of excess staff including geographic relocation. In his affidavit, Mr Miller deposed that the Excess Staff Circular was "... issued by the Public Service Board for application in conjunction with the [RRR Award]" and that the RRR Award and the Excess Staff Circular, "... were agreed to by the Commonwealth and all union parties." This evidence was not challenged by way of cross examination by the applicant or the third respondent. Mr Cavanough characterised the Excess Staff Circular and the RRR Award as an "agreed package". Mr Ramsey conceded that "... there was some intent to have the two things go forward simultaneously in terms of operation." Mr Green submitted that "...on its face [the RRR Award] does not seem to be an award made by consent". Having regard to the uncontradicted affidavit evidence of Mr Miller, and the common operational date of the RRR Award and the Excess Staff Circular, I accept Mr Cavanough's characterisation of the two documents as an "agreed package." The relevant provisions of the Excess Staff Circular are set out below. Clause 2 of the introductory section of the Excess Staff Circular provides as follows: New Redudancy Framework 2. The new framework for handling excess staff is : ... (c) the Australian Public Service Redeployment and Retirement (Redundancy) Award 1987; (the text of the Award as in force at 20 July 1987 is set out at Attachment A to this circular) ; and (d) these instructions. All of the provisions itemised above come into operation on 20 July 1987 Clauses 1.2 and 1.9 of Part 1 of the Excess Staff Circular provide as follows: PART 1: PRELIMINARY Circumstances and timing of advice to unions of potential redundancies 1.2 Circumstances which may give rise to potential redundancies can include: ... (g) unwillingness by officers to transfer with their jobs from one locality to another (however the application of redundancy provisions in situations of this kind requires the Board's approval in each instance). ... 1.9 Procedures relating to geographic relocation of functions and staff are set out in Attachment B. In situations approved by the Board as attracting redundancy conditions, Secretaries should notify unions under the Award of any potential redundancies as soon as possible after the date that is set for officers under notice of relocation to advise the department of their decision on relocation. Any proposal to commence redundancy processes prior to that time must be cleared with the Board's Office in Canberra. Attachment B of the Excess Staff Circular materially provides as follows: Attachment B GEOGRAPHIC RELOCATION These provisions should be read in conjunction with sub-section 9/S in Volume 8 of the Personnell Management Manual and any guidelines or instructions issued by the Committee on the Location of Australian Government Employment. 2. As provided in Order 9/S/3, the Board and relevant unions should be notified when a decision is made to transfer the positions and staff of a work area to a different geographic location. In cases where the relocation will be from one capital city to another, or on a similar scale, the Board's approval under sub-section 7(3)(c) of the Public Service Act should be sought for the application of the redeployment and retirement provisions of Division 8C of the Act to any staff who decline relocation and cannot be placed at level within their own department. The above provisions of the Excess Staff Circular constitute a scheme whereby certain types of compulsory relocations amount to relocations at "a different locality" within the meaning of clause 5(e)(iii) of the RRR Award. This scheme is as follows. As specified in the contemporaneous RRR Award, the Excess Staff Circular acknowledged that a redundancy situation could arise where officers were unwilling to transfer in their employment with their current duties from one locality to another. However, it was contemplated that the magnitude of the relocation had to be from "one capital city to another, or on a similar scale" before the redeployment or retirement provisions of the PS Act came into operation (see Attachment B clause 2). My conclusion regarding this scheme is fortified by the relevant terms of the subs 9/S in Volume 8 of the then Personnel Management Manual ("the PMM") which is referred to in Attachment B of the Excess Staff Circular. I set out below the relevant provisions of subs 9/S of the PMM: 9/S/1 Definition (a) Compulsory transfers take place where part or all of a department is moved to a new locality following a Government decision. In these cases, officers who move to the new locality in order to remain in their positions are compulsory transferees, provided that they are not: · being temporarily relocated; · changing locality as a result of a move from one position to another; · employed on work which, by its nature, would be expected to result in relocation from time to time; or · officers who were aware, on taking up their position, that the position would be relocated. ... 9/S/2 Inter-city and intra-city transfers Compulsory transfers fall into two categories, inter-city and intra-city transfers. The procedures and conditions described in Orders 9/S/3 to 9/S/10 apply only to inter-city transfers, where all officers who accept transfer are forced to move house. Intra-city moves, where officers would generally not be forced to move house, are dealt with in Order 9/S/11.

... 9/S/4 Officers declining transfer ... (b) Officers who decline compulsory transfer may be declared eligible for redeployment under Division 8C of the PS Act. Streamlining Booklet No. 7 (Excess Staff) gives details of procedures for identification and declaration of staff who decline compulsory transfer. The booklet also gives details of procedures and conditions for other officers who are declared eligible for redeployment or issued with Notices of Redundancy. ... 9/S/11 Intra-city compulsory transfers (a) Where an intra-city move has been approved by Cabinet or the relevant Minister, departments should notify staff, staff organisations and DIR as with inter-city transfers (see orders 9/S/3(a) and (b)) (b) Intra-city transfers do not normally cause disruption to staff to the same extent as inter-city moves and therefore do not normally require 12 months' notice of transfer to staff. Three (3) months' notice of an intra-city transfer would normally suffice. The PMM was in existence at the time of the making of the RRR Award as evidenced by the reference to it in the Excess Staff Circular. Sub-section 9/S of the PMM deals with compulsory transfers. Sub-section 9/S/2 distinguishes between two categories of transfers, namely intra-city and inter-city transfers. The procedures and conditions to be followed in inter-city transfers are dealt with by subs 9/S/3/ to 9/S/10. Sub-section 9/S/4 provides that officers who decline a compulsory transfer may be declared eligible for redeployment under Division 8C of the PS Act and refers back to the Excess Staff Circular for details of procedures to be followed where staff decline a compulsory transfer. Sub-section 9/S/11 of the PMM deals exclusively with intra-city transfers "where officers would generally not be forced to move house" (see subs 9/S/2). Sub-section 9/S/11 does not contemplate that Division 8C of the PS Act would have application to intra-city transfers. This survey of the subs 9/S of the PMM makes it apparent that it was contemplated that in the ordinary case only inter-city transfers were contemplated as giving rise to a redundancy situation. When subs 9/S of the PMM is considered together with the relevant terms of the Excess Staff Circular - they point to scheme whereby the notion of "at a different locality" in the RRR Award was intended encompass a move the magnitude of which was inter-city, or of a similar scale, such that the employee would be required to move house to maintain her or his employment. In my view, the Excess Staff Circular and the PMM constitute part of the "context" in which cl 5(e)(iii) of the RRR Award should be considered. See Short v Hercus at 518. This is apparent from the implementation of the RRR Award and the Excess Staff Circular as an agreed package and with the common operational date in respect of both instruments. So, when cl 5(e)(iii) of the RRR Award was transplanted to cl 11.1.1(c) of GEC Award, to quote Burchett J in Short v Hercus, it "... brought with it some of the soil in which it once grew". This reasoning leads me to the conclusion that the reference in cl 11.1.1(c) of the GEC Award does not refer to compulsory transfers within the same metropolitan area. I accept the submission of Mr Cavanough, that the test of a different "locality" is met where the compulsory relocation of the duties performed by the employee is from one capital city to another, or on a similar scale, such as from a country town to a capital city (for example, as Mr Cavanough suggested, from Albury to Melbourne), and it would generally be necessary and reasonable for the employee to move house in order to maintain employment. ORDERS The Court makes the following orders:

1. It is declared that cl. 11.1.1(c) of the Australian Public Service, General Employment Conditions Award 1995 ("the Award") properly interpreted does not contemplate compulsory transfers within the same metropolitan area of a city.

2. It is declared that cl. 11.1.1(c) of the Award properly interpreted imposes a test of different "locality" which is only met where the compulsory relocation of the duties performed by the employee is from one capital city to another, or on a similar scale, such as from a country town to a capital city, and it would be necessary and reasonable for the employee to move house in order to maintain employment.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Counsel for the Applicant: Mr Nicholas Green with Mr Christopher O'Grady

Solicitor for the Applicant: Ms Linda White

Counsel for the First and Second Respondent: Mr Anthony Cavanough QC with Mr Ross Frazzetto

Solicitor for the First and Second Respondent and Respondent: Australian Government Solicitor

Solicitor for the Third Respondent Mr Steve Ramsey

Date of Hearing: 9 & 10 December 1997

Date of Judgment: 20 March 1998