South Eastern Sydney and Illawarra Area Health Service (formerly Illawarra Area Health Service) v Health Services Union

Industrial Relations Commission (NSW)|2007-07-01|Before: Walton J, Marks J, Mr P

CITATION: South Eastern Sydney and Illawarra Area Health Service (formerly Illawarra Area Health Service) v Health Services Union (on behalf of Barry Alexander Peisley) [2007] NSWIRComm 157

APPELLANT (RESPONDENT ON CROSS APPEAL) South Eastern Sydney and Illawarra Area Health Service (formerly Illawarra Area Health Service)

PARTIES: RESPONDENT (APPELLANT ON CROSS APPEAL) Health Services Union (on behalf of Barry Alexander Peisley)

CORAM: Walton J Acting President; Marks J; Ritchie C

Application for leave to appeal by Union and employer - appeal from decisions of Commissioner - work bans imposed by security officers employed in hospital claiming payment of allowance for ancillary fire duties as prescribed by the Health Employees' (State) Award - no provision in Award describing ancillary fire duties but allowance described in Department of Health circular CATCHWORDS: Whether Commissioner had jurisdiction to deal with the matter under s365 - whether activities contemplated within description of ancillary fire duties were undertaken by security officers - whether security officers should receive payment of allowance over the prescribed wage for their classification - Commissioner determined that security officers were entitled to payment of allowance from date of decision - Commissioner failed to set out reasoning process - leave to appeal granted - principles of award interpretation - requirement that duties be in addition to responsibilities of normal employment situation - fire safety duties performed by security officers supplemented the duties and responsibilities of security officers employed in that capacity - further evidence admitted - only necessary that any one of the 'ancillary fire safety duties' be the subject of requirement entitling payment of allowance - no suggestion that work was performed in addition to normal work - no demonstration of entitlement to the payment of ancillary fire safety allowance - appeal by Union dismissed and appeal by employer upheld - decision of Commissioner quashed

Area Health Services Act 1986 s26 LEGISLATION CITED: Industrial Relations Act 1996 ss130, 191(2), 365, 380 Public Hospitals Act 1929 s40BA

Campbells Cash and Carry Pty Ltd v National Union of Workers, NSW Branch (No 2) (2001) 106 IR 429 Cepus v Heggies Transport Pty Ltd (1994) 52 IR 123 Health Employees Pharmacists Award and other Awards (No 2) (2005) NSWIRComm 264 Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 CASES CITED: Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12 Perisher Blue v Australian Workers' Union (1999) 91 IR 274 Re Notification under s130 by Illawarra Area Health Services of a Dispute with Health and Research Employees' Association of NSW re bans and limitations [2005] NSWIRComm 1122 Victims Compensation Fund v Brown [2002] NSWCA 155 YZ Finance Co Pty Ltd v Cummings (1963-1964) 109 CLR 395 Zoological Parks Board of New South Wales and the Australian Workers' Union, New South Wales and ors (2004) 135 IR 56

HEARING DATES: 14 February 2006; 15 May 2007

APPELLANT (RESPONDENT ON CROSS APPEAL): Mr R Moore of counsel Solicitor: Mr M McDonald Maguire & McInerney

RESPONDENT (APPELLANT ON CROSS APPEAL): LEGAL REPRESENTATIVES: Mr S Benson of counsel Mr A Coquillon Health Services Union

INTERVENOR: Mr S Prince of counsel Mr P Sargent The Health Administration Corporation

CORAM: Walton J, Vice-President Marks J Ritchie C

South Eastern Sydney and Illawarra Area Health Service (formerly Illawarra Area Health Service) v Health Services Union (on behalf of Barry Alexander Peisley)

Application by South Eastern Sydney and Illawarra Area Health Service (formerly Illawarra Area Health Service) for leave to appeal and appeal from a decision of Commissioner O'Neill given on 28 July 2005 in Matter No IRC 769 of 2003

Health Services Union (on behalf of Barry Alexander Peisley) v South Eastern Sydney and Illawarra Area Health Service (formerly Illawarra Area Health Service)

Application by Health Services Union for leave to appeal and appeal against a decision of Commissioner O'Neill given on 28 July 2005 in Matter No IRC 769 of 2003

1 These appeal proceedings involve applications for leave to appeal and an appeal from decisions of Commissioner O'Neill of 28 July 2005 and 1 September 2005 (Re Notification under s 130 by Illawarra Area Health Services of a Dispute with Health and Research Employees' Association of NSW re bans and limitations [2005] NSWIRComm 1122). The parties to the proceedings before O'Neill C were the Health Services Union and the Illawarra Area Health Service. On the appeals, the Health Administration Corporation ("HAC") was granted leave to intervene.

2 The proceedings before O'Neill C commenced by way of dispute notification brought under s 130 of the Industrial Relations Act 1996 ("the Act"). The proceedings resulted from work bans imposed by security officers at hospitals operated by the Illawarra Area Health Service. The security officers claimed payment of an allowance for ancillary fire duties. During the course of initial compulsory conferences O'Neill C raised with the parties whether the allowance claimed was provided for in the relevant industrial instrument, being the Health Employees' (State) Award ("the Award") or whether the Union, the Health Services Union, should more properly seek a variation of the Award to provide for payment of the allowance. After extensive negotiations between the parties it was agreed that the matter should proceed in the form of an application for recovery of money filed by the Union on behalf of its member, Barry Alexander Peisley, under s 365 of the Act. The claim was that the respondent, Illawarra Area Health Service, had failed to pay him the ancillary fire safety duties allowance prescribed by the Award. The applicant elected to have the matter dealt with as a small claim under that section. 3 Section 365 of the Act is in the following terms: s 365 Order for recovery of remuneration and other amounts payable under industrial instrument An industrial court may, on application, order an employer to pay any amount payable under an industrial instrument that remains unpaid to the person to whom it is payable.

By s 380, the Commissioner was empowered to deal with the application. 4 It was common ground between the parties that the relevant industrial instrument upon which the s 365 proceedings were based was the Health Employees' (State) Award. The Area, Incidence and Duration clause of that Award states that it applies "to persons employed in classifications contained herein employed in public hospitals, Health Services and Area Health Services in the State, excluding the county of Yancowinna." 5 The Award contains a number of provisions normally found in industrial awards. Clause 2 of the Award provides that employees shall not be paid less than the amounts set out in Table 1 - Salaries of Part B. Table 1 of Part B sets out monetary rates by reference to salaries of classifications of employees including Fire Safety Officers (levels 1 - 3) and Security Officers. There is not a similar operative clause of the Award providing for the payment of allowances. However, the Award does specify for allowances in Table 2 of Part B, which the parties have approached as containing provisions having legal effect. We shall proceed on that basis. Thus, Table 2 sets out monetary rates for "allowances". Included within the table of allowances is an allowance for "Ancillary Fire Safety duties - 100 beds or more" and "Ancillary Fire Safety duties - less than 100 beds". 6 There is no definition of the classification and expression "Ancillary Fire Safety duties" in the Award. The provisions of the Award do not otherwise make clear the circumstances in which such an allowance might be paid or become payable. 7 It was common ground between the parties that an ancillary fire safety allowance was provided for and defined in a Department of Health circular 94/114 published on 11 November 1994. That circular constituted a determination made under s 40BA of the then Public Hospitals Act 1929 and s 26 of the Area Health Services Act 1986. 8 The circular provided for a classification of full-time Fire Safety Officer. In addition, and relevantly for the purpose of these proceedings, it provided for a weekly allowance payable to those employees "who are approved to undertake additional duties of ancillary Fire Safety Officer". The allowance differed depending upon whether the hospital had 100 beds or more, or less than 100 beds. Contained within the circular is the following: Employees with Ancillary Fire Safety duties: When a hospital requires an employee to undertake ancillary fire safety duties the employee will be paid a weekly allowance depending on the number of beds. Their duties and responsibilities will include the following: · supervision of day to day fire prevention, protection and fire safety functions generally which would include the checking of general housekeeping; egress routes; fire and smoke doors; fire fighting equipment; emergency lighting; alarm systems (detection, sprinklers and manual); · ensuring that all staff participate in training including fire evacuation exercises; · maintenance or record of fire training, drills and exercises and fire equipment; · maintenance of records of all emergencies and provisions of reports on major fire occurrences. · may be required to undertake staff training.

The ancillary fire safety allowances shall not apply to employees whose maximum ordinary weekly rate of pay is in excess of that prescribed from time to time for a Hospital Engineer Grade II under the Hospital Employees Engineers (State) Award .

The allowance is not to be included as part of salary or for any leave purposes. It will only be applicable to those employees who are approved to undertake additional duties of ancillary Fire Safety Officer.

Where a full-time Fire Safety Officer is currently in receipt of a salary which exceeds the salary which would apply to a position graded in accordance with the above, the individual would retain his/her salary effective at the date of the determination pursuant to the prescriptions of Circular 90/6 as amended by subsequent circulars from time to time.

Employees with ancillary fire safety duties who are employed at hospitals with 100 beds or less and are required by the hospital, area or district to undertake staff fire safety training, will be paid at the higher (100 beds or more) level. Where there are any existing employees (covered by the Health and Research Employees Association) with ancillary fire safety duties who, due to their maximum salary exceeding that prescribed from time to time for Hospital Engineer Grade 2 under the Hospital Employees Engineers (State) Award , are excluded from payment of the allowance prescribed above, it has been agreed that these, although it is anticipated that the number will be minimal, may be referred to the relevant Area/District.

This Determination is effective from the beginning of the first pay period to commence on or after 28 March 1994 and is in full and final settlement of the Association's application for a new award (Hospital Employees Fire Safety Officers (State) Award) . Budget supplementation will be provided on the submission of claims, with workings, and for your convenience a schedule is attached for you to complete. The completed form should be forwarded to the Finance and Budget Branch of the Department by 11 November 1994.

John Wyn Owen Director- General 9 In the proceedings before O'Neill C, the HSU filed affidavits of Barry Alexander Peisley, John Deighan and Dawson Brown, all security officers employed within the Illawarra Area Health Service. The respondent filed an affidavit of Shane Pifferi, the Security and Fire Safety Manager at Wollongong Hospital. Each of the deponents gave oral evidence. 10 It was the evidence of each of Messrs Peisley, Brown and Deighan that as part of their duties as security officers they were required to ensure that all fire panels and early warning intercom system devices were operative. In addition, they were required to respond to alarms. Furthermore, they were required to ensure, in a general way, adherence to proper housekeeping policies, to regularly check all fire egress routes within the hospital and exit lights, to ensure that evacuation maps were appropriately displayed, to check phone and intercom systems, to complete records and documents concerning alarm procedures and to ensure the availability of those records and documents, and to undertake such training in fire safety procedures as was required of them. 11 Circulars issued by Wollongong Hospital under the hand of Mr Pifferi make it clear that security officers were required to monitor hospital alarms as part of their current role and to respond to them. There were a number of procedures that were to be undertaken by security officers if a fire alarm was activated. 12 Mr Pifferi, in his affidavit, agreed that permanent security officers were required, as part of their duties, to monitor security surveillance, access control and fire alarm systems, to respond to all alarms and to attend lectures concerning fires and fire response and like matters. However, Mr Pifferi denied that Mr Peisley and other security officers were required to check fire fighting equipment, to ensure written fire procedures were available, to ensure that staff participate in fire safety training, to maintain or keep records of fire equipment, to record fire training of employees including drills and exercises, to record or report major fire occurrences or other emergencies or to train other staff. It was on this basis that it was asserted that there were a substantial number of activities contemplated within the description of ancillary fire safety duties that were not undertaken by security officers and, therefore, the allowance should not be paid to them. 13 In affidavits in reply filed on behalf of the Union, it was said that security officers were responsible for the checking of fire equipment as part of their duties and that if any equipment was not in an appropriate condition it was to be removed and reported to the security manager. The security officer was required to complete a shift log record detailing these matters. It was also said that security officers were required to ensure that written fire procedures were available in the security office and that these were available for viewing by staff. Furthermore, that security officers were responsible for recording all security issues, including fires, and the undertaking of training of staff. 14 In cross-examination, Mr Peisley conceded that he did not keep records of other staff who had undertaken fire training. He also conceded that he did not organise staff training. Furthermore, Mr Peisley said that he had not been accredited as an ancillary Fire Safety Officer. 15 Mr Peisley said that he did not have overall responsibility for the administration of evacuation procedures in the event of a fire or other emergency. His duties were confined to those specifically allocated to him. The heads of departments would be responsible for ensuring evacuation in their particular area of operation. 16 In cross-examination, Mr Deighan agreed that overall responsibility for the complete evacuation of a hospital would rest with the Director of Nursing or the Coordinator Medical Administrator. The responsibility of security officers was as particularised in documentation issued by Wollongong Hospital. Mr Deighan also agreed that security officers did not test the fire alarm equipment, which was undertaken by a specialised contractor. Mr Deighan identified a Mr Wayne Johnson as the person responsible for conducting fire training of staff at Wollongong Hospital. 17 In terms of the availability of written fire procedures, both Mr Peisley and Mr Deighan said that these were retained in the security officers' control room where they were available for inspection by staff generally. 18 Mr Deighan also clarified the position with respect to the maintenance of records of fire equipment. He was only required to record equipment which was broken but not required to keep records generally of fire equipment within the hospital. Furthermore, he was only required to keep a log of fire training in which he had participated. 19 In submissions made to the Commissioner at the conclusion of the hearing, the Illawarra Area Health Service asserted that there was no jurisdiction under s 365 of the Act because the allowance was not payable under an industrial instrument but was payable only by virtue of the determination made under the former Area Health Services Act 1986. As an alternative submission it said that even if the entitlement to the allowance arose under the Award, Mr Peisley's duties did not entitle him to receive the allowance. 20 In his decision, the Commissioner noted that the Award did not contain provisions which described the circumstances in which the allowance would be payable. The Commissioner referred to the terms of the agreement reached between the parties as to the payment of the allowance as embodied in the determination earlier referred to in the context of the competing submissions made by the parties. 21 In the course of dealing with the matter, the Commissioner observed that there appeared to be no consistent approach taken to the circumstances in which the allowance would be payable "at various substantial hospitals throughout the State of New South Wales". The Commissioner then concluded, on the basis of the submissions of the parties and the evidence, including an inspection, that "I have formed the view that the fire safety duties which are vitally important to the security of the Hospital and reactions with respect to fire calls, could not be carried out unless the security officers were allocated specific tasks, which they are". After describing briefly the nature of those tasks involving response to fire alarms, the Commissioner said: "It is quite obvious, from all the evidence given that these emergency responses to fire duties must be carried out by the security officers as part of their duties in the event of a fire alarm, and is vital to the security of the hospital and for the safety of all persons, both employees and patients of the hospital…under the circumstances therefore, it seems to me quite appropriate that in future this hospital being a 100 bed hospital, and whilst it has not been paid in the past, the Fire Safety Allowance should be paid to each of the security officers concerned, as part of their normal duties".

The Commissioner then concluded: "given the fact that there are variations within the Area Health Services as to the relative application of this Allowance, I have formed the view that there is no claim for back wages in respect of this matter, and the Allowance should be paid effective from the date of this decision". 22 Both parties sought leave to appeal from this decision. The matter came on for further hearing before O'Neill C on 30 August 2005 for the purpose of making formal orders that could then be the subject of the appeal process. In a decision dated 1 September 2005, the Commissioner said that it was always his intention "to make the following points: 1. The fire officers are performing duties which now do attract the payment of the special allowance. 2. The Fire Officers must perform all the duties required of their employer. 3. The payments, or any back payment, should be made from the date of my decision, for the applicant person, being Barry Alexander Peisley, and consequently any such officers performing those duties. The Commissioner then made orders requiring Mr Peisley and all security officers at Wollongong Hospital to perform all the Fire Safety Officer duties requested of them. The Area Health Service was ordered to pay Mr Peisley and all security officers performing fire safety duties as requested of them the fire safety allowance set out in the Award and to pay Mr Peisley "and consequently all security officers performing fire safety duties, back payment from 27 July 2005". The Commissioner concluded by stating, "I make no further orders as to back payments in line with my decision of the 27th of July 2005". Further conciliation 23 It became clear during the course of submissions on the first day of the appeal hearing before us, that the Union was asserting an entitlement to payment of the Ancillary Fire Safety allowance in circumstances that went beyond those pertaining to Mr Peisley and went beyond those pertaining to the hospitals covered by the Illawarra Area Health Service. Because, arguably, the decision in these appeal proceedings might not be productive of any overall resolution of the wider industrial dispute, the parties were invited to consider whether it might be preferable to address the wider dispute with a hope that in so doing this might resolve the particular dispute concerning Mr Peisley and the other security officers employed within the Illawarra Area Health Service. The parties agreed to consider their positions and participate in conciliation proceedings conducted by Marks J. Conferences were conducted on 30 March, 2 June and 5 December 2006 (the gaps between each Conference reflecting the parties' deliberative processes). The parties were unable to resolve the broader industrial dispute and it was agreed that the best interests of the parties would then be served by concluding these appeal proceedings. Leave to Appeal 24 One of the grounds of appeal was that the Commissioner had failed to give adequate reasons for his decision. Other grounds were directed to the correctness of the decision and to jurisdiction. 25 It is clear from the decision at first instance that the Commissioner failed to set out his reasoning process. Ultimately, the Commissioner had been asked to make an order under s 365 of the Act. The Commissioner declined to do so, albeit having determined that the security officers in general, and Mr Peisley in particular, were entitled to payment of the allowance. No reason was given why the Commissioner declined to order payment of the allowance prior to the date of his substantive decision, namely 27 July 2005. On any view, in the absence of any reason to the contrary, once it had been determined that the allowance was payable, there was no reason why it should not have been ordered to have been paid for the totality of the relevant period. 26 Furthermore, the appeals raise important questions as to the circumstances in which this allowance becomes payable. These circumstances will apply throughout all relevant hospitals in New South Wales. Given these matters, the absence of adequate reasons, and taking into account the substantive question as to whether there was a sufficient basis to enable the Commissioner to determine that the allowance was properly payable, leads to the conclusion that it is in the public interest for leave to appeal to be granted. Consideration

27 The proper approach to the interpretation of awards has been recently authoritatively stated by the Full Bench in Zoological Parks Board of New South Wales and the Australian Workers' Union, New South Wales and ors (2004) 135 IR 56, particularly at paragraphs [43] to [47]. The Full Bench said: 43 The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used.

44 The construction of an award may include the history of the instrument in some circumstances. The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all. We note, in this respect, the observations of Walton J, Vice-President in Fox v GIO Australia Ltd (2002) 56 NSWLR 512, (2002) 120 IR 401 at [46] as follows: '[46] The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408.'

45 The principle of considering the surrounding circumstances in interpreting the words of a written instrument was discussed by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 348 in the following way: 'On the other hand, it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning - see, for example, the remarks of Knox C.J. in Life Insurance Co. of Australia Ltd. v. Phillips (1925) 36 CLR 60, at p 69. This has led to a recognition that evidence of surrounding circumstances is admissible in aid of the construction of a contract. So Lord Wilberforce in L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. (1974) AC 235, at p 261 was able to state the broad thrust of the rule in this way: "The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive."

His Lordship noted that evidence of surrounding circumstances is an exception to the rule, but he had no occasion to discuss its scope for there it was not, as it is here, a critical question.' (At p348)

46 This issue has also been referred to more recently by the High Court in Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated at [10]: 'In Codelfa , Mason J (with whose judgment Stephen J and Wilson J agreed) referred to authorities (In particular, speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1383-1385; [1971] 3 All ER 237 at 239-241; L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 261; and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-997; [1976] 3 All ER 570 at 574-576) which indicated that, even in respect of agreements under seal, it is appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. In particular, an appreciation of the commercial purpose of a contract ( Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574): "presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating".

Such statements exemplify the point made by Brennan J in his judgment in Codelfa (1982) 149 CLR 337 at 401:

"The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used."'

47 It is clear from the authorities that whilst it is permissible to have regard to the surrounding circumstances in construing a written document, it is impermissible to consider 'evidence of user'." 28 It will be seen from that decision that the starting point for our analysis should be an interpretation of the Award based upon the actual word used in that instrument bearing upon the controversy between the parties. As we have earlier noted, the matter proceeded before us upon the basis that the relevant question for interpretation was whether the allowance described as 'Ancillary Fire Safety duties' would apply to persons engaged in the classification 'security officer' with the subject employer for the purposes of the Award. It was not contended that the employees who are the subject of this application should be classified as 'Fire Safety Officers', but rather whether they should receive a payment by way of allowance over the wage prescribed for their classification of security officer under the Award. 29 The question arises then as to what is intended by the Award as constituting the circumstances in which an employee should receive a 'Ancillary Fire Safety duties' allowance (we observe, in this respect, that there is no dispute that, if the allowance was payable, the higher allowance for one hundred beds or more would be applicable in this case). 30 The approach to that analysis should not be too strict or too literal as the words will often be derived (as in this case) from an agreement between parties in an industrial context: Cepus v Heggies Transport Pty Ltd (1994) 52 IR 123 at 127-128; Perisher Blue v Australian Workers' Union (1999) 91 IR 274 at 283.

31 The expression 'Fire Safety Duties' is plainly a reference to the performance of tasks which concern fire safety, although it is not clear from the Award itself whether those duties reflect, in part, the duties of Fire Safety Officers. The word 'ancillary' is important because it is a descriptor of the duties under consideration.

32 The Macquarie Dictionary defines 'ancillary' as meaning "an accessory, subsidiary or helping things or person". The Oxford English Dictionary defines 'ancillary' as meaning "subservient, subordinate". The dictionary meaning of 'ancillary' is also "to be established in connection with something else". 33 Muirhead J in the Supreme Court of the Northern Territory in Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12 in commenting on the meaning of the word 'ancillary' albeit in the context of consuming alcoholic liquor ancillary to consuming a meal, said: "It is important to note that the word 'ancillary' has a special meaning. It means less than supplementary or supplemental to - it means 'subservient' or 'subordinate' the derivation being from the Latin 'ancillaris' - 'ancilla' being a handmaid - a person who in the good old days was regarded as subservient to her mistress and perhaps even to her master. So the meal is clearly the principal thing that inspired the legislature to extend the time during which the patrons enjoyment of the meal - and no doubt of the company - could be enhanced by the supply of liquor." (At 14) 34 Adopting this meaning, and having regard to the need to consider the provision in the context in which it appears in the Award (Zoological Parks), the use of the word 'ancillary' conveys the intention that the duties and responsibilities described must be something that is undertaken in addition to the duties and responsibilities of the employee performed as part of his or her normal employment situation.

35 It follows from this analysis that, in order for a security officer to claim the additional payment for the performance of 'Ancillary Fire Safety duties' that employee would need to perform duties which are additional (but supplementary) to the duties ordinarily required of an employee performing that classification. To this may be added the requirement that those duties must at least consist of duties that concern 'fire safety'. 36 On one view of the matter, the resolution of the issue before us may be resolved in a relatively straightforward way. The evidence which was before the Commissioner, in broad terms, indicated that, whilst security officers perform fire safety duties, those duties supplemented the security duties they perform. The evidence revealed that the duties were not in addition to the security duties ordinarily required of them. In other words, the evidence would suggest that the duties relied upon by the security officers to attract the payment of the allowance may have been comprehended in the wage paid to security officers under the Award and, hence, not comprehended in an allowance payable only for the performance of those ancillary duties. 37 However, we have concluded that it is not safe to resolve the matter entirely on this basis, as there is no definition of fire safety duties in the Award and there is some ambiguity as to whether the duties actually performed by the security officers might be fully comprehended within the duties comprehended by the Fire Safety duties allowance. 38 It is, therefore, in our view, necessary to have regard to both the history of the Award and, in doing so, various extrinsic material. The history of the Award indicates the circumstances under which the allowance came to be inserted in the Award, and offers a guide to what may have been intended by the Ancillary Fire Safety duties. The extrinsic material arising out of that history, and in particular the circular, does give a particular reference to the nature of the duties which may attract the allowance. This additional material enables a proper assessment as to whether the duties performed by the security officers, in fact, may be properly described as 'Ancillary Fire Safety duties', that is additional duties over those required of security officers. Indeed, in order to enable the analysis to proceed on that basis, we made a decision to admit further evidence in the proceedings pursuant to s 191(2) of the Act. 39 That this approach conforms with relevant principles can be easily ascertained by reference to two authorities. First we refer to the decision of the Full Bench in Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 at [67] and [68] where it was stated: 67 The application of those principles, we think, should occur in conformity with general approaches to the construction of enactments and other instruments. In this respect, we note, with approval, the observations of Walton J, Vice-President, in Perisher Blue v Australian Workers' Union (1999) 91 IR 274 at 283 - 284: Speaking generally, awards should be interpreted in a similar fashion to other enactments: Geo A Bond & Co Ltd (in liq) v McKenzie [1929] 28 AR (NSW) 498 at 503 ; Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 520. In the construction of the general order, and in conformity with general principles of award interpretation, the Commission should consider the wider context of the making of those provisions. Burchett J in Short v F W Hercus describes this approach to the interpretation of an award as follows: "The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is part, or to other documents with which there is an association. Context may also include, in other cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read." (at 518)

(See also Western Newspapers Pty Limited & Another v Warren (1994) 56 IR 340 at 351).

I note that a similar approach was adopted by the former Industrial Commission in re Butter, Cheese and Bacon Factories and Milk and Cream Condensories &c. (State) and Butter Cheese and Bacon Factories and Milk and Cream Condensories, &c. (Newcastle and Northern) Awards (1950) 49 AR 62 at 64 where it was held that the meaning of words within an award (which are not expressed or precise) may be ascertained by "placing upon the words their ordinary meaning as applied to the subject matter with respect to which they are used". 68 The authorities set out in Bryce considered the circumstances in which it may be appropriate to apply the award-maker's intentions to the circumstances in which the award was made and to the practical effects of a particular construction. The decision in Perisher Blue indicated the desirability of considering the terms of an award in the context in which they appeared and emerged. Those principles apply with equal force to the circumstances in which it may be appropriate to have regard to other aids of construction such as the "major and substantial" or "principal purpose" tests. 40 There is a reference to the use of extrinsic material of the kind admitted by way of the new evidence admitted in these proceedings in the judgment of Marks J in Cepus v Heggies Transport Pty Ltd (1994) 52 IR 123, previously referred to, and in particular agreements actually reached between parties. At 144 - 145, his Honour said: "There is authority for the proposition that a Court should not have regard to negotiations between parties which culminate in the making of an agreement which is ultimately reflected in an industrial award. See, for example, Seymour v Stawell Timber Industries Pty Ltd (1985) 13 IR 289 at 290 (per Northrop J and the cases cited by his Honour). The rationale is that as negotiations leading up to the making of an agreement are evolutionary in the processes adopted, it is unwise to rely on anything which is said or done during the negotiation process in determining the meaning of the agreement ultimately achieved. In the Seymour case, a Full Bench of the Federal Court of Australia was required, inter alia, to consider prefatory remarks made to the making of an Award by a Commissioner of the Australian Conciliation and Arbitration Commission. In determining whether the professed intention of the Tribunal or of the parties should be taken into account as an aid to a proper interpretation of the provisions of the Award Gray J commented as follows: 'Mr Ginnane contended that it was not permissible for the Court to look at such a preface, even a preface to a consent award, which preface was agreed to by the parties. He relied on T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177, especially at 183-4. An examination of that passage, which is in the judgment of the High Court of Australia, tends to suggest that it was permissible to look at the reasons expressed by a commissioner for failing to make any provision in an award for a particular subject. The Court did decide that such expression of reasons did not show that the Commissioner intended to cover the field of that subject by excluding State law from operating with respect to it. There are difficulties in deciding whether it is proper to look at the reasons of an arbitrator in announcing his decision on the making of an award. In the ordinary case when an award is being construed, the personnel manager of the employer and the shop steward representing the employees will not be expected to have available to them documents such as the reasons for decision of a commissioner, or a statement of the parties prefacing an award. On the other hand, organisations of employers and employees will normally have access to such materials, and those who find themselves charged with the task of interpreting awards in relation to particular matters arising in the work place will normally turn to such organisations for advice and support. It is well recognised that the drafting of documents such as awards so as to exclude all ambiguity is impossible. If a court is required to face the task of construing an ambiguous provision in an award, and if the means exist of resolving that ambiguity by reference to the actual expressed intention, either of the arbitrator, or of the parties in the case of a consent award, it is difficult for the court to turn its back on such means. I therefore favour the view that resort should be had to such means as will assist in ascertaining the intention of the maker or makers of the award, in the case of an ambiguity.' (At pages 308-309). I respectfully agree with his Honour's observations in that case. In my opinion the actual expressed intention of the arbitrator and of the parties where an Award is made by consent will be of assistance and may properly be taken into account in interpreting the meaning of the industrial award. 41 We shall now turn to consider the question of interpretation of the Award having regard to that Award history, the evidence introduced in the appeal proceedings by leave and the extrinsic material, in particular circular (containing a definition of 'employees with Ancillary Fire Safety duties'). It is now necessary to have regard to the provisions of the circular that contain the only detail about an ancillary fire safety allowance. 42 The Union sought to have introduced as fresh evidence in the appeal proceedings affidavits sworn by Dennis Ravlich, Craig Robert Thomson and Jill Hankinson. Leave was granted to adduce this fresh evidence under s 191(2) of the Act on the basis that there were "special grounds" which permitted its receipt. For completeness, it should be noted that some parts of the affidavits of Mr Thomson and Ms Hankinson were struck out. 43 This new evidence concerned an application brought by the then Health and Research Employees Association of New South Wales for the making of a new award being the Hospital Employees' Fire Safety Officers (State) Award and the subsequent agreement between the parties leading to the issuing of the circular. That application was filed in the Commission on 17 November 1993. It sought to create a classification of Fire Safety Officer and four grades of such officer. Fire Safety Officers were those employed in a hospital, area or district health service. The proceedings came before Maidment J in the Commission and the application was amended from time to time. 44 Included within the Award application was a weekly allowance to be paid to a classification described as "secondary Fire Safety Officer." There is reference in the transcript of the proceedings before Maidment J by counsel who appeared for the Union to the payment of that allowance to "persons who do this fire safety work as their secondary role…". 45 It appears that the application did not proceed. The affidavits of Mr Thomson and Ms Hankinson were to the effect that negotiations between the parties resulted in an agreement that was consummated by the issue of circular 94/114. Indeed, the circular commenced with the following: Agreement has been reached between the Health and Research Employees' Association of New South Wales and the Department concerning full-time Fire Safety Officers and allowances to be paid to certain employees who have ancillary fire safety responsibilities." The agreement was said to have been implemented by way of the determination, which was referred to in the circular. 46 The proceedings before O'Neill C were conducted on the basis that the creation of the allowance and the circumstances in which the allowance would be payable could be ascertained by reference to the determination embodied in the circular, the provisions of which have been earlier set out. There was a dispute before us as to the extent to which the Commission may have regard to the circular, but, in our view, reference to it is necessary at least to resolve any ambiguity in the Award proceedings. We consider it is clear on the material before us that entitlement to the allowance arises under and by virtue of the provisions of the Award that fixes the amount of the allowance. The circumstances in which the allowance becomes payable are those ascertained by reference back to the provisions of the circular. On this basis, therefore, the Commissioner had jurisdiction and power to deal with the matter under s 365 of the Act. 47 As will be seen, notwithstanding the provisions of the circular, there was controversy between the parties as to the circumstances in which the ancillary fire safety allowance becomes payable. The most significant controversy was whether each of the duties and responsibilities, which are described in the circular, had to be carried out by an employee or whether it was sufficient that an employee undertook any one of them as 'approved' in order to attract payment of the allowance. 48 There was a reference in the affidavit of Ms Hankinson, who was involved as an Industrial Officer with the Union in the negotiations with the Department which commenced in 1989/1990, as to whether it was necessary for all of the duties and responsibilities to be undertaken before the allowance was payable, or only a number of these duties. There were similar observations made in the affidavit of Mr Thomson. However, neither of these witnesses was able to state with any certainty that any particular understanding was reached between the parties about the circumstances in which the allowance would be payable. Nevertheless, the Union sought to rely on this evidence as establishing a basis for asserting that it was sufficient that two or more of the duties be undertaken to attract the allowance. 49 In our opinion, it would be unsafe to rely too heavily on the evidence of Mr Thomson and Ms Hankinson as to their recollections concerning any negotiated agreed position, because the evidence does not establish with any degree of certainty that there was agreement about the circumstances in which the allowance would be payable. However, they do provide useful background to the creation of the circular and Award. 50 As we have mentioned, it is clear on the basis of the authorities to which we have referred that we should, in determining these proceedings, consider the provisions of the circular in determining the circumstances in which the allowance becomes payable. 51 The circular provides that the allowance applies in circumstances where a hospital 'requires' an employee to undertake Ancillary Fire Safety duties and that, furthermore, the allowance is only payable to those employees "who are approved" to undertake those duties. 52 It was submitted by the HAC, intervenor in the proceedings, and the Area Health Service, that the allowance would only be payable where an employee could demonstrate that he or she had been required to undertake the relevant duties and that the undertaking of those duties had been approved by the hospital. It was said that there was no evidence that Mr Peisley had been specifically asked to carry out the duties or that there had been any approval process, presumably embodying not only the undertaking of the duties but the payment of the allowance. 53 Because the proceedings before O'Neill C were conducted ultimately on the basis of a s 365 application confined to the circumstances of Mr Peisley, albeit that the proceedings were something of a test case for other security officers, there may not have been a focus of attention on the wider circumstances involving any protocols or procedures established by a hospital or by the HAC with respect to any process by which an employee could be required to undertake Ancillary Fire Safety duties and any process by which approval needed to be given for those duties to be undertaken and, presumably, an allowance paid. Having regard to the text of the circular, if an employee is required by a hospital to undertake duties and assume responsibilities of the kind described in the circular, then it must follow that they have been 'approved' by the hospital. A contrary view is that, even though an employee may be required to carry out those duties, there was, nevertheless, a discretion in the hospital to approve the payment of the allowance. Such construction would be contrary to the tenor and intent of the circular. Whilst, admittedly, care was obviously taken in the drafting of the circular to emphasise that employees must be approved to undertake the additional duties of an ancillary Fire Safety Officer, there was no suggestion that where an employee performed those duties he would not necessarily receive the allowance.

54 Accordingly, in the context of the instruments under consideration in this case, once an employee has been required to undertake those duties, it must follow that, ipso facto, the employee has been approved to undertake those duties. Seen in this way, this would preclude an employee from asserting that he or she had undertaken the duties and should be paid an allowance, accordingly, in circumstances where the hospital had neither required nor approved of the particular employee carrying out those duties. 55 As will have been seen from the extract of the circular previously set out, there are six different duties that are listed. The last one of those is expressed in permissive terms, that is: "may be required to undertake staff training." (It should be stated for completeness that all of the parties agreed that "undertake" means "conduct" rather than "undergo".) 56 The Area Health Service and HAC submitted that the inclusion of the sixth duty expressed in a permissive sense indicated that the first five duties were mandated in the sense that each and every one of them must be undertaken before the allowance was payable. The Union submitted that because there was a reference to 'duties' it was only necessary that more than one of the duties described be undertaken so that if two or more of them were carried out by an employee, then the allowance would be payable. 57 The circular as expressed is, in our opinion, ambiguous. There is no specification that all of the duties, some of the duties or any one or more of the duties need to be undertaken before the allowance is paid. This ambiguity is probably the source of the dispute in the present matter. 58 We now return to what is intended by the words "their duties and responsibilities will include the following" which immediately precede the listing of the six duties and responsibilities in the circular. The word 'includes' is capable of either describing the totality of something or of indicating the component parts of something. 59 The word 'includes' focuses attention on whether it is indicative of an inclusive on the one hand or a complete and, therefore, exclusive reference. The meaning will be determined as a matter of construction of the instrument under consideration, however, the usual approach where the word 'includes' is used is that among the words following it are words which extend or explain the meaning of the term defined: Campbells Cash and Carry Pty Ltd v National Union of Workers, NSW Branch (No 2) (2001) 106 IR 429 at [14] and [15]. 60 The difficulty in construction is referred to by Kitto J in the High Court of Australia in a passage which is often cited in connection with the use of the word 'includes' in YZ Finance Co Pty Ltd v Cummings (1963-1964) 109 CLR 395 at 401-2: Unlike the verb 'means', 'includes' has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v. Commissioner of Stamps (1899) AC 99, at pp 105, 106 should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word 'includes'. Strictly speaking, that word cannot be equivalent to 'means and includes'. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if 'means' had been the verb instead of 'includes'. The question whether a particular provision is exclusive although 'includes' is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole.

(See also Spigelman CJ in the New South Wales Court of Appeal in Victims Compensation Fund v Brown [2002] NSWCA 155 at [28] and following.) 61 In our opinion, a consideration of the list of duties and responsibilities in the context of them not attracting a payment of the allowance unless there has been a requirement and approval process as previously referred to, is more indicative of the list being intended to describe what is included under the rubric 'Ancillary Fire Safety duties' rather than being a prescriptive list of each and every mandated component. This is particularly so given the permissive aspect of the final duty contained in the list. 62 Seen in this way, it is only necessary that any one of the duties be the subject of requirement and, therefore, approval in order to attract entitlement to payment of the allowance. In coming to this conclusion, we are conscious that we differ from the approach to interpretation favoured by the Union, which submitted that there must be two or more of the listed duties undertaken because of the reference to 'duties' in the circular. We disagree with the Union's submission because in the context that a number of duties and responsibilities as listed are intended to be covered as Ancillary Fire Safety duties, it necessarily follows that as a matter of ordinary English usage, the plural 'duties' will be employed, notwithstanding that any one or more of the duties need only be undertaken as required and approved, to attract the allowance. 63 However, the circular, when read in the context of the Award provisions, makes clear that overarching all of the duties is the requirement that they be ancillary, that is, subservient to and additional to those duties ordinarily performed by the employees in the course of their normal employment duties (that is as a security employee). In practical terms, it then becomes a matter for a hospital to designate which of the specified duties are to be performed and thereby 'approve' of them so as to attract the allowance. 64 Obviously, as will be seen from the brief survey of the evidence in the proceedings before O'Neill C, there is an overlap in some respects of the duties undertaken by security officers in hospitals with those that are set out in the list of Ancillary Fire Safety duties in the circular. No doubt, as a matter of industrial reality, it is this overlap that has motivated the security officers in general, and Mr Peisley in particular, to pursue this claim through the application made by the Union. As earlier mentioned, the determination of this issue, therefore, requires an analysis of the work that Mr Peisley performed as part of his normal duties and those that are envisaged by the description contained in the circular. 65 All of the evidence given by Mr Peisley and other security officers in the proceedings before the Commissioner was to the effect that the duties and responsibilities as described were part and parcel of the ordinary duties and responsibilities of security officers employed in that capacity. There was no suggestion that any of the work that was performed by them was in addition to or ancillary to their normal work. Furthermore, such involvement in general housekeeping, egress routes, fire and smoke doors, fire fighting equipment, emergency lighting and alarm systems, was confined to good housekeeping and the checking of these facilities, as well as response to specific alarm situations together with the completion of records and documents consequent upon these activities. There was no overall supervisory function allocated to security officers. This is not unexpected because Mr Pifferi was employed at Wollongong Hospital in a full-time capacity, inter alia, as Fire Safety Officer. Again, the involvement of Mr Peisley and the other security officers with respect to the other duties described in the circular was more in the nature of specific attention to matters that directly impacted upon their duties, rather than being directed to the overall circumstances of the hospital. In other words, it was not their responsibility to ensure that written fire procedures were available in a general sense, but that they were accessible in their office. In the same vein, there was no overall responsibility to ensure staff participation in training, but merely to participate and assist staff in any training organised by others. The same situation prevailed with respect to the maintenance of records. Again, there was a direct duty to ensure that security officers kept and maintained records of such matters referred to in the circular as directly impacted upon their own specific activities, but not an overall responsibility to ensure that such records involving all employees at the hospital and the totality of the hospital operations were maintained or recorded. 66 On this analysis, it is clear that neither Mr Peisley, nor the other security officers who gave evidence, was entitled to be paid the Ancillary Fire Safety allowance as the performance of Fire Safety duties is not 'ancillary' to their duties as security officers. The controversy, as we have said, arose because of the overlap between certain activities of security officers, and in particular Mr Peisley, and those described in the circular. 67 The controversy was no doubt fuelled by submissions made on behalf of the HAC in proceedings before a Full Bench of this Commission in Health Employees Pharmacists Award and other Awards (No 2) (2005) NSWIRComm 264. They were proceedings in which the Health Services Union sought, inter alia, to create a classification structure within definitions of security officer in the Health Employees (State) Award. During the course of the proceedings, reference was made by the Union to fire safety responsibilities undertaken by security officers. Evidence was given that security officers were required to monitor fire and other alarm systems as additional duties undertaken by them. The HAC submitted in part that under the Award, provision was made "for the payment of an allowance to those employees...who have responsibilities in relation to fire safety." (See [68] of the Full Bench decision.) 68 The Full Bench rejected the claim made by the Union, on grounds that did not require it to take into account the payment of any allowance to security officers with respect to involvement in fire equipment and the like. However, no doubt, the representation in general terms by the HAC as to the availability of the allowance to security officers would have created some expectation that the Ancillary Fire Safety allowance would be payable to them by reason of their work as security officers. We regard these representations, to the extent that they were made, as regrettable but not representations the nature of which may dictate or determine in any way the outcome of these proceedings. 69 We conclude, on the basis of the foregoing analysis, that Mr Peisley has not demonstrated on the evidence any entitlement to the payment of an Ancillary Fire Safety allowance. To the extent that O'Neil C may have found to the contrary, we would conclude that he was in error. Unfortunately, it is not clear that the Commissioner made any finding that Mr Peisley was entitled as of right to the payment of any allowance. As the Commissioner acknowledged, he endeavoured, while determining the s 365 application, to resolve the underlying industrial dispute which pervaded the totality of the proceedings. As we understand the effect of the decision of 1 September 2005, there was something in the nature of a declaration that "Fire Officers" (presumably a reference to security officers) were then performing duties "which now do attract the payment of the special allowance". This is then followed by an exhortation that "the Fire Officers must perform all the duties required of their employer." This was followed by a number of orders including an order that the Illawarra Area Health Service pay Mr Peisley "and consequently all security officers performing fire safety duties, back payment from 27 July 2005". 70 Many of the Commissioner's conclusions became irrelevant to the determination of the s 365 application, but, rather, concerned the merits of the competing positions in the industrial dispute. Those matters may still arise for consideration in any application to vary the Award, and may have properly arisen in the present context if the matter had proceeded on the basis of an application to interpret and/or vary the Award (an approach, we observe, which has hitherto been a conventional one in resolving disputes of this kind).

71 Strictly speaking, both appellants have established a proper basis for the grant of leave to appeal and for the upholding of the appeal, having regard to the errors within the Commissioner's decision. However, for the reasons we have given, the HSU has been unsuccessful in sustaining that part of the Commissioner's decision which, in any respect, gave relief to Mr Peisley or other officers by way of a finding that the fire safety duties allowance was payable to them in their role of security officers. It also follows that the Union was unsuccessful in the pursuit of the additional matters sought in its appeal in Matter No IRC 4307 of 2005. In those circumstances the appropriate orders are to grant leave to appeal to both appellants, to uphold the appeal in Matter No IRC 4297 of 2005 so as to quash the Commissioner's decisions and orders of 27 July and 1 September, 2005 and dismiss the appeal in Matter No IRC 4307 of 2005. We order accordingly.

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

[2005] NSWIRComm 1122

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Judgment (44 paragraphs)

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Cases Cited (19)

Cited By (3)