State Rail Authority of New South Wales v. Australian Federated Union of Locomotive Enginemen [1985] FCA 312

Interpretation of instruments - admissibility of extrinsic Material where no patent ambiguity - inadmissibility of

STATE RAIL AUTHORITY OF NEW SOUTH WALES v. AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE ENGINEMEN

BETWEEN : STATE RAIL AUTHORITY OF NEW SOUTH WALES Applicant AND: AUSTRALIAN FEDERATED UNION OF

Judge making order: Beaumont, J. Date order made: 12 July 1985.

Locomotive Enginemen's Award, 1966, where an engineman 15

"booked off" or otherwise released from duty during a broken shift, that interval of time is not time "in traffic" within

the meaning of cl.20(c) in Part II of the said Award.

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

BETWEEN : STATE RAIL AUTHORITY OF NEW SOUTH WALES Applicant AND: AUSTRALIAN FEDERATED UNION OF

Wales, applies pursuant to s.110 of the Conciliation and Arbitration Act, 1904 ("the Act") for the interpretation of

certain provisions of The Locomotive Enginemen's Award, 1966

("the Award"). The applicant, as successor to the Public Transport Commission of New South Wales, and the respondent, Australian Federated Union of Locomotive Enginemen, are

parties as to tne proper interpretation of cl.20 of the

Award in these circumstances. The applicant has proposed

the following roster for an engineman with his home station

9.43 a.m. At Broadmeadow sign on at engine shed and walk to station.

10.10 a.m. At Broadmeadow station take charge of engine on North Coast Daily Express.

1.56 p.m. Arrive Taree station and walk to engine shed.

4.33 p.m. At Taree sign on at engine shed and walk to station.

4.50 p.m. At Taree station take charge of engine on XPI.

7.51 p.m. Arrive Broadmeadow station and walk to engine shed.

The respondent opposes the introduction of this roster. A point of departure between the parties in this connection 1s the application, if any, of cl.20(c) of the

{a) Except in the case of accident or unavoidable necessity an engineman driving a suburban electric train shall not be required to work such train in excess of 152 miles ona shift.

driving a suburban electric train, shall not be required to work a shift where the mileage run exceeds 230 miles, more often than four times in any one week.

(c) Except in the case of accident or unavoidable necessity the rostered

working of an engineman shall not exceed 8 hours in traffic, if the distance to be worked in such

rostered shift exceeds 230 miles. (Emphasis supplied.) (The return journey from Broadmeadow to Taree 18 approximately 268 miles.)

(d) An engineman working in excess of 230 miles on a shift shall be relieved upon arrival at the terminal point of the train worked.

(e) An engineman working a double shall be relieved upon arrival at the terminal point on the return trip where the spread of a shift exceeds ten hours.

(f) A 'double' means a shift worked by an engineman when working on express, mail, passenger or fruit mail train from his home station to another station and return and the total mileage exceeds 160 miles,

provided that a minimum period of 30 minutes 1s rostered at the

turn-round point during which engineman could partake of a meal."

The applicant contends that, upon the true interpretation of the Award, where an engineman 1s booked off during a broken shift, such interval is not time "in traffic" for the purposes of cl.20(c). That is to say, according to the applicant's interpretation, in the case of the roster proposed, the period between 2.17 p.m. and 4.33

p.m. 1S time booked off and not time "in traffic" for the

In order to understand the respective submissions of the parties, it is necessary to mention certain other provisions of the Award. By cl.2(c) of Part II, dealing with New South Wales Railways, a ""shift" is defined asa turn on duty during which some actual work is performed. Limits of shifts are dealt with by cl.7 1n various ways. For present purposes, the relevant. limit is imposed by c1l.7(c) to the effect that an engineman of another train shall not be rostered to work more than 10 hours on a shift

instead of being booked off for rest away from his home station;

(ii) when he can return home in one shift after having been booked off for rest away from his home station;

(1ii) when he can work one shift from his home station to another station and after rest return from that station to his home station in one shift;

in which circumstances the rostered shifts may exceed 10

"(a) A broken shift is one during which an employee 1s released from duty

Bie! D a} - Mie one wt ~ Fa mepecgetnn ete wet eit 8 eat ee Tee oa -- -~

for other than meal breaks and consists of two working parts.

(b) An employee who has intervals during his time on duty when he is not required to work may be booked off; provided that where any such interval is in the day time (i.e., between the hours of 6 a.m. and 8 p.m.) the booking off shall be for not less than 2 hours ... Such times are to be exclusive of times allowed after arrival and before starting on the next trip.

(e) Where the interval on aé_ broken shift is away from the home station, payment shall be made at the rate of one-half for such interval, subject to a minimum payment of one hour ... .

(f£) An employee working a broken shift shall be paid a minimum of 8 hours for each broken shift so worked.

(g) Excepting in cases of accident or of unavoidable necessity, a broken

Time allowances are dealt with by cl.15. Clause 15(b) provides that an engineman when relieved at a traffic

(12) 1f required to attend at the engine shed, 1f to sign off only, five minutes;

(i11) in travelling home by the quickest service avallable at the rate of his acting grade; and

(iv) waiting time at the acting grade up to one hour if in the day time, with half time thereafter cr up to two hours if at night time with half time

An engineman relieving at a traffic station on the road shall be allowed 10 minutes to sign on and take charge of his engine and if required to sign on at the engine shed shall be made a further allowance for walking time to be

The Award contains no definition of the phrase "in traffic" where used in cl.20(c). No other reference to the

The respondent seeks to refer to certain extrinsic material as an aid to construction of the Award. Since this is a contentious matter, I will defer consideration of it and I will deal in the first instance with the respective arguments of the parties as to the interpretation of the

The applicant's submission is simple enough. Tt says that the words "in traffic" should be accorded their ordinary meaning with the consequence that an engineman should not be regarded as so engaged when he is released from duty for the purposes of cl.8(a) by being booked off pursuant to the machinery provided by cl.8(b) or otherwise

the respondent seeks to avoid the applicant's construction of ¢c1.20(c) by submitting that cl.20 can have no application whatever to broken shifts. This construction, it 1s said, arises from the language and context of cl.20 itself. Further, it 1s suggested that a reading of the provision indicates that cl.20(c) is intended to apply to single journeys only so that return trips or "doubles" are excluded

In my opinion, the applicant's construction of cl.20(c) should be upheld. Prima facie, the words "in traffic" should receive their ordinary meaning. In its

definitions of "traffic", the Macquarie Dictionary includes

"1. the coming and going of persons, vehicles, ships, etc., along a way of passage or travel.

2. the persons, vehicles, etc., going along such a way.

6. the business done by a railway or other carrier in the transportation of goods or passengers."

It 1s, of course, possible that the context of a statutory or other provision under consideration may

indicate that an expanded notion of these concepts should be

attributed to a particular case. For example, in Harrington

v. The Wellington Harbour Board (1895) 14N.Z.L.R. 347, 5.4(5) of the Wellington Harbour Board and Corporation Land

Act, 1880 provided that "the lines of railway built on the said wharf and Waterloo Quay shall be maintained by Her Majesty the Queen, who may conduct the whole of the traffic on the said railway and Railway Wharf.". Prendergast, C.J.

"The word 'traffic' when used as to railways, seems to mean not only the mere passing and repassing of trains, but the business carried on on the railway; and so, with regard to a wharf, 'traffic' is not the mere passing and repassing of persons and vehicles, but the business carried on on the wharf."

But, in my view, even if it were possible to expand the notion of "traffic" sa as to pick up incidental activities of the type described by Prendergast, C.J., it would not assist the respondent. Where, as here, the engineman 1s actually released from duty and "booked off" accordingly, it 1s not, I think, possible to describe his activities, 1f any, as incidental tc the conduct of the applicant's operations in any sense: the shift has been broken and the engineman's time is his own for the purposes of the Award. (The position under worker's compensation legislation and the like may well be different but this

As has been said, ait 18 submitted on behalf of the respondent that cl.20 and, in particular, cl.20(c), should be read down so as not to apply to broken shifts nor to return trips. This interpretation is said to flow from the language of cl1.20 itself. The difficulty confronting the respondent in pressing this submission 1s that the terms of c1.20 contain no clue that any reading down along the lines

It may be accepted that the propriety of departing from the literal interpretation of a statute or similar instrument "extends to any situation in which for good reason the operation of the statute ona literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions" (per Mason and

Wilson, dd. an Cooper Brookes (Wollongong) Proprietary

Limited v. The Commissioner of Taxation of the Commonwealth of Austrailia (1981) 147 C.L.R. 297 at p.321). But, to borrow again the language of Mason and Wilson, Jd. in Cooper

Brookes, if "one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation 18 perceived to be unintended". In Cooper Brookes itself, that displacement arose because of

c1.20 or its general context which would warrant its being

read down so as not to apply to broken shifts nor to return trips in the manner contended for by the respondent. To the contrary, in my view, what emerges froma reading of the provisions of c1.20 specifically and of the Award generally is compelling evidence of an intention on the part of the draftsman to lay down a comprehensive code to cover every concelvable contingency which might arise. The detail of these provisions speaks best for itself. It follows that it is impossible to attribute to the draftsman any oversight of the kind now suggested. Any other conclusion would, I

It follows, in my view, that cl.20 is capable of application to any type of shift and also to "doubles". It further follows, in my opinion, that the phrase "in traffic" should bear its ordinary meaning with the consequence that an engineman who 1s released from duty and "booked off" accordingly is not engaged "in traffic" for the purposes of

As has been indicated, the respondent sought to adduce evidence of certain extrinsic material as an aid to construction of the Award. I admitted the evidence subject to the applicant's objection to its relevance. The evidence sought to establish a long standing practice that the

respondent would roster engineman so that any long mileage

"double" exceeding 230 miles would be completed within eight

hours. Particular reliance was placed upon a "Stable

Rostering Code" issued by the respondent in July 1980.

(i) Round trips & doubles (Passenger trains 10 hours (Freight trains 11 hours.

Note: Enginemen working such turns of duty which entail more than 230 miles are not to be rostered for a period of more than 8 hours 'in traffic' ie; from the time of departure from the home station to the time of arrival at the home station and must be relieved

Enginemen MUST NOT be rostered for more than four (4) such turns of

In my opinion, the evidence tendered 15 not admissible. Evidence of surrounding circumstances 1s admissible to assist in the interpretation of an instrument if the language is "ambiguous or susceptible of more than

contradict the language of the (instrument) when 1t has a

plain meaning" (per Mason, J. ain Codelfa Construction

Proprietary Limited v. State Rail Authority of New South

Wales (1982) 149 C.L.R. 337 at p.352; Gilberto v. Kenny (1983) 48 A.L.R. 620 at p.623). Moreover, much of the evidence tendered, including the respondent's "Stable Rostering Code", constitutes an impermissible attempt to adduce evidence, on a pure question of construction, of the

Manufacturers Ltd. v. Pulp and Paper Workers' Federation of

Australia (1981) 55 F.L.R. 303 at p.308 and the cases there cited): the views of the parties, evidenced by their conduct or otheriwse, as to the legal interpretation of the instrument in question cannot deprive the court of 1ts jurisdiction to determine that question which is necessarily one of law (see L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. C1974] A.C. 235 at p.261; Codelfa at p.348;

Seamen's Union of Australia v. Adelaide Steamship Co. Ltd.

(1976) 46 F.L.R. 444 at p.445; Jennings Construction Limited v. FR. Coyle Pty. Limited (Court of Appeal, N.S.W. Supreme

I reject the respondent's extrinsic material accordinaly. It may well provide good reasons for varying the Award, a matter for others to judge, but it is strictly

inadmissible on the legal question of its construction.

Finally, it is submitted by the respondent that the

Court, in its discretion (see The Corporation of the City of

Australia, Keely, J., unreported, 23 May 1985 at p.10 and the cases there cited), should decline to exercise its jurisdiction under s.110 of the Act. It is pointed out that changes 1n the timetable for the North Coast Daily Express are proposed. It is also suggested that the applicant is attempting, by this application, to achieve a situation

where it may appear that the Court has given its imprimatur

In my view, neither of these considerations is of sufficient weight to justify the Court's declining to construe the Award. The limited powers of the Court in the exercise of its jurisdiction under s.110 are well

established (see Master Builders' Association of Victoria v.

Australian Building Construction Emplovees' and Builders Labourers' Federation (1981) 54 F.L.R. 359), and, one must

assume, understood in the industry. In the circumstances, 1t 1s hardly necessary to say that, whatever the Court's interpretation of cl.20(c), it is not to be perceived as expressing any view on the merits or otherwise of the proposed roster. On the other hand, a difference of legal opinion having arisen as to the meaning of cl.20, there 1s no discernible prejudice accruing to either party if the Court were to exercise the jurisdiction contemplated by 3.110. To the contrary, there 1s reason to suppose that, even 1f the present dispute as to the roster and timetable

for the Broadmeadow-Taree sector were resolved, the same or

@ Similar question as to the meaning of c.20(c) could arise

1. Declare that, on the interpretation of The Locomotive Enginemen's Award, 1966, where an engineman is

"booked off" or otherwise released from duty during a broken shift, that interval of time 1s not time "in traffic" within

the meaning of cl.20(c) in Part II of the said Award.

"i Justice Beaumont. 7 oS Halules Associate "sted 12-37-89