State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division - [2014] NSWIRComm 41 - NSWIRComm 2014 case summary — Zoe

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State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division

[2014] NSWIRComm 41

Industrial Relations Commission (NSW)|2014-04-30|Before: Walton J, Boland AJ, Staff J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2014-04-30

Before

Walton J, Boland AJ, Staff J

Catchwords

(2012) 248 CLR 378 City of Wanneroo v Holmes [1989] FCA 369
(2005) 144 IR 150 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

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Original judgment source is linked above.

Catchwords

(2012) 248 CLR 378 City of Wanneroo v Holmes [1989] FCA 369(2005) 144 IR 150 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Judgment (26 paragraphs)

[1]

ralian Tramway and Motor Omnibus Employees' Association (C Nos 21155 and 22123 of 1991, Print K8515) The Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Category: Principal judgment Parties: State Transit Authority of New South Wales (Appellant) Australian Rail, Tram and Bus Union, New South Wales (Respondent) Representation: M Seck of counsel (Appellant) I Taylor SC with O Fagir of counsel (Respondent) Henry Davis York Lawyers (Appellant) Haylen & McKenzie Solicitors (Respondent) File Number(s): IRC 1071 of 2013 Decision under appeal Jurisdiction: 9105 Citation: [2013] NSWIRComm 102 Date of Decision: 2013-12-06 00:00:00 Before: Staff J File Number(s): IRC 272, 700 and 701 of 2013

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[3]

First instance decision 3The issues that Staff J was required to determine arose out of disputes notified by the Australian Rail, Tram and Bus Industry Union, New South Wales ("RTBU" or "respondent") in August 2013. In the face of opposition by the RTBU, the appellant had sought to make two significant changes to how casual and part-time employees were to be utilised by: (a) expanding the use of casual bus drivers by rostering or using them in the first instance to cover all absenteeism including replacing full time and part time employees who leave the STA; (b) introducing part-time broken shifts, which would significantly expand part-time employment of bus drivers. 4The RTBU's opposition to the changes appears to have been motivated by its concern that engagement of part-time bus operators on broken shifts would produce inequitable and harsh consequences for them and that the proposal to use casual employees ahead of full-time operators would deprive full-time operators of a large portion of their income in circumstances where their pay was already low. 5Conciliation failed to resolve the issues in dispute and the matters were referred to arbitration. 6In his decision at first instance, Staff J identified the relevant award provisions, summarised the evidence, identified the relevant statutory provisions under which he was required to act, addressed the relevant principles governing interpretation of awards, identified with precision the issues he was required to determine and then proceeded to explain his reasoning and deliver his findings. 7His Honour identified the issues at [70]: [70] Two issues arise for determination in these matters. Firstly, whether the STA has the ability to engage and roster permanent part-time bus operators to undertake broken shifts. This would result in the introduction of part-time broken shifts. Secondly, whether the STA has the ability to roster casual employees, in the first instance, to fill vacant shifts, including replacing full-time and part-time employees who resign their employment with the STA. It was his Honour's view that each of the matters should be resolved in the negative. 8In relation to part-time broken shifts, the primary judge reviewed the history of the relevant award provision, which was subcl 13.3. That subclause provides: 13.3 It is agreed that new employees offered part time Bus Operator positions will not be offered or rostered for two shifts on any day. 9At [83]-[84] Staff J observed: [83] This clause reflects the agreement reached in April 2001 in respect of part-time bus operators working two shifts per day. In respect of cl 13.3 the STA takes, in my view, an overly "unreasonable and unnatural construction" given the background to the amendment of this subclause in contending that a broken shift is not two shifts on the one day, but one when worked by a part-time bus operator who receives no broken shift penalty. It submits cl 13.3 does not apply to prevent part-time employees working a broken shift. [84] However, the history of this clause, as set out in the evidence, and the nature of the agreement reached between the parties, gives rise to a different interpretation by the RTBU which is that the clause was, and does prevent part-timers being engaged on a split shift, or broken shift basis. On a proper reading of the Award and taking into account the intention of the parties which I will proceed to address, in my view, the construction contended for by the RTBU should be preferred. In addition, as I have already noted, if part-time drivers are rostered for a broken shift, they receive 25 per cent less pay than full-time employees because they are not paid for the period between the shift where no work is undertaken, unlike permanent bus drivers. 10At [88] the primary judge found that "both the intent and effect of subcl 13.3, was to prohibit the engagement of part-time employees on broken shifts." His Honour also found at [99]-[101] that there was an established custom and practice or usage that part-time bus drivers do not work broken shifts: [99] There is no dispute that part-time bus operators worked a broken shift for a period of time until the RTBU objected in 2001. Following this objection, an agreement was reached and part-time employees have not worked broken shifts since that time apart from those that had been employed as such prior to the agreement being struck. [100] In my view, and I find, a usage is established on the evidence, to which I have already referred, that part-time bus drivers do not work broken shifts. In these circumstances, the STA is not entitled to unilaterally alter a term of the employees' contracts which would depart from the custom and practice or usage. To do so, would be a breach of contract. [101] The Commission, therefore, in exercising its functions, should preserve the custom, practice and usage unless and until some industrially sound basis for its abandonment is identified. The fact that the STA will obtain some commercial benefit by change, which will visit harshness and unfairness on full-time employees is not an industrially sound basis for change. 11In relation to the utilisation of casuals, the principal award provisions with which his Honour was concerned were subcll 12.7, 32,3 and 32.4. Those clauses respectively provide: 12.7 A casual Bus operator will be utilised in the first instance, whenever practicable, to cover planned and unplanned absences of Part-time Bus Operators. ... 32.3 State Transit will establish a record book at each depot, in the Duty Office, for all permanent staff wishing to do additional duties/Voluntary Overtime on the day. 32.4 Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full-time employee is available, then a part-time employee, and if no part-time employee is available, then casual employees may be allocated the additional duties. 12His Honour again reviewed the history of the relevant award provisions and the parties' dealings in relation to them. At [124]-[125] the primary judge found the Award prevented the appellant from rostering casuals ahead of full-time permanent staff, other than as permitted by cl 12.7: [124] In my view, and I so determine, the proper interpretation to be given to the words "additional work" and "additional duties", as found in cl 32.4 is any work in addition to that which employees who are rostered Monday to Saturday are available to carry out. Any and all additional work must be allocated to full-time/permanent staff at first instance, as required by cl 32.4. On this interpretation, it is not possible for the STA to commence rostering casuals ahead of full-time permanent staff, other than as permitted by cl 12.7, which enables the engagement, on a limited basis, of casuals. This change was agreed by the RTBU in return for a pay rise of 0.5 per cent. [125] The clear intention of the parties was that casual employees would only be utilised to cover vacant shifts and lines of work caused by absenteeism if no full-time employee, or part-time employee was available. 13His Honour also found at [134] and [135] there was a custom and practice or usage that overtime would be allocated first to full-time employees, then part-time employees, then casuals: [134] Furthermore, in my view, and I find, in accordance with the principles set out earlier, that the method of allocation of overtime has risen to a level of a custom and practice, or a usage. The parties understanding of the method of allocation of overtime has been reduced to writing on at least two occasions and has been uniformly applied. I also find that it is a term of the contracts of employment of STA full-time employees that overtime would be allocated first to them, then part-time, then casuals. [135] In addition to the reasons set out above, having carefully considered the evidence, in my opinion, the industrial merits in this matter also favour the RTBU's position. 14The RTBU had contended before Staff J that the appellant was prohibited from introducing the changes in any event because of the terms of the no extra claims clause in the Award, which provided: 6.1 The parties agree that, during the term of the Award, there will be no extra wage claims, claims for improved conditions of employment or demands made with respect to the employees covered by the Award and, further, that no proceedings, claims or demands concerning wages or conditions of employment with respect to those employees will be instituted before the Industrial Relations Commission or any other industrial tribunal. 6.2 The terms of the preceding paragraph do not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing Award provisions. ... 15Staff J agreed with the RTBU's contention, finding at [143]: [143] The STA's proposals in this case will impact upon the use of part-time employees, casual employees, the allocation of broken shifts and allocation of overtime. Even if it be accepted that the STA's proposals are not specifically prohibited by the Award, in my view, the subject of part-time employment, casual employment, and the allocation of overtime, are within the category of claims referred to by the Full Bench in the above decision [Re Notification under section 130 by the New South Wales Teachers Federation of a dispute with Department of Education and Training re changes to TAFE teacher education programs [2008] NSWIRComm 117 at [63]]. They are "claims which are aimed at substantially [diminishing], at the expense of (particularly full-time employees), the employment conditions for (employees) authorised by the current Award". This, of course, is a complete answer to the STA's case. 16At [144] the primary judge expressed his conclusion as follows: [144] For the reasons outlined, the proposals by the STA in relation to the use of part-time employees, casual employees and the allocation of broken shifts and overtime, are precluded by the no extra claims clause of the Award, contrary to custom, practice and usage, and as I have endeavoured to explain, contrary to the intention of the parties and/or the terms of the Award. 17The determinations of the primary judge were expressed in the following terms: [145] In matter No IRC 700 of 2013, I make the following determination: Pursuant to s 136 and s 175 of the Industrial Relations Act 1996 that: the State Transit Authority's proposed reform initiatives "to utilise casual bus drivers to cover all absenteeism (caused by sickness, workers compensation, unapproved leave, resignation, retirement, or additional shifts is: (i) Contrary to existing custom, practice and usage; (ii) A change which, given cl 6 (no extra claims) of the State Transit Authority Division of Government Services Bus Operations Enterprise (State) Award 2012 cannot be unilaterally introduced during the term of the Award; and (iii) Not permitted by the Award, and in particular, is contrary to cl 32.4 of the Award. [146] In matter No IRC 701 of 2013, I make the following determination: Pursuant to s 136 and s 175 of the Industrial Relations Act 1996, a determination that: the State Transit Authority's proposed reform initiatives "to introduce part-time broken shifts" is: (i) Contrary to existing custom, practice and usage; (ii) A change which, given cl 6 (no extra claims) of the State Transit Authority Division of Government Services Bus Operations Enterprise (State) Award 2012, cannot be unilaterally introduced during the term of the Award; and (iii) Not permitted by the Award, and in particular, is contrary to cl 13 of the Award.

[6]

Leave to appeal 21In support of a grant of leave to appeal the appellant submitted: 1. The matters raised in these proceedings have a significant impact on the commercial operations of a large public sector agency responsible for the provision of essential services to the NSW public. 2. The appeal raises a fundamental question as to the proper approach to the construction of award provisions in light of history and custom and practice or usage. 3. The appeal raises a fundamental question as to the proper approach in determining whether a custom and practice or usage exists so as to give rise to an implied term in an employee's contract of employment. 4. The appeal raises important questions of industrial principle about the right of an employer to engage part-time and casual employees on terms in an industrial instrument when not expressly restricted in an industrial instrument or contract. 5. The appeal raises an important question whether s136 and s175 empowers the Commission to make determinations declaring the legal rights of parties. 22The respondent opposed leave to appeal being granted. It was submitted: (a) The STA's contention that this case involves a matter of significant impact on commercial operations is made without any reference to the uncontradicted evidence of the STA's General Manager of Human Resources to the effect that the matter is "not significant". That statement is consistent with the offer in 2009 of a 0.08% wage increase in consideration for the part-time broken shift proposal. (b) The appeal does not raise any question as to the proper approach to construction of awards. The principles are not in dispute. (c) Similarly, the appeal does not raise any question as to the proper approach to identification of a custom and practice and those principles are not in dispute. The primary judge's determination that the existence of a usage was a relevant factor in his determination is entirely orthodox and consistent with Full Bench authority. (d) There is no question of general industrial principle relation (sic) arising in respect of the engagement of part-time and casual employees. The decision of the primary judge related closely to the particular (and idiosyncratic) facts of the case. No general point of principle arises. 23It was further submitted for the respondent: The STA's notice of appeal and submissions in truth raise little more than a miscellany of complaints directed to various aspects of the primary judge's decision. None of them raises any serious doubts as to the correctness of the decision below and none of them is sufficient to vitiate all three bases of the primary judge's decision. The nominal term of the Award ends in less than nine months at the end of 2014. The STA's concerns and its proposed changes can and should be pursued at that time through bargaining or arbitration. An approach whereby it attempts to discover in the interstices of the Award a license to introduce its "reforms" is not one which should be condoned by the Commission. In any event, there can at least be no serious doubt that the changes were contrary to the no extra claims clause in an award within its nominal term. That finding disposes of the appeal. In those circumstances there is no purpose in granting leave to appeal the other aspects of the case. For these reasons leave to appeal should be refused generally. Leave to appeal the decision on the additional ground of lack of jurisdiction. As noted above, the STA seeks by its proposed amended Notice of Appeal to take as an additional point that his Honour did not have power to make a determination under s173. The STA did not contend below that the primary judge lacked power to make a determination under s175. In fact the STA itself sought a determination of its own and specifically submitted that "the Commission has the power pursuant to s175 of the Act to make a determination as to the correct interpretation of the Award". It was therefore common ground (as the primary judge recorded at [67]) that the Commission was empowered to make a determination. The Notice of Appeal which commenced this appeal similarly seeks a determination. The STA's acquiescence below had significant practical effects on the conduct of the proceeding. The RTBU initially sought a declaration under s154 in the alternative to a determination under s175. It did so noting that such alternative relief would be pressed if a jurisdictional objection were taken. It did not press for s154 declarations after it became obvious that the STA acknowledged the Commission's jurisdiction to make the determination sought. It is trite that an appellant is ordinarily bound by its conduct of its case at trial: Coulton v Holcombe (1986) 162 CLR 1 at 7-8. It may be accepted that the general rule is subject to a caveat where the error alleges action ultra vires, but it does not follow that any jurisdictional question may be agitated on appeal regardless of whether it was raised at first instance. 24The arguments raised by the respondent in opposing leave, it must be said, were not altogether without merit. Nevertheless, we consider the appeal does raise important issues regarding the approach to be taken in interpreting awards and whether the primary judge conformed with the proper approach. There is also the important public interest issue of whether the determinations framed by his Honour were appropriate in the circumstances including whether they were appropriate for the purpose of resolving the extant industrial disputes. 25We propose to grant leave to appeal.

[7]

Award interpretation 26This appeal falls mainly to be determined by the application of principles governing the interpretation of awards. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, Walton J, President gave detailed consideration to the principles by reference to relevant authorities including the latest High Court authorities. 27His Honour was able to distil from the authorities the following statement of principles at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 28His Honour also addressed the question of the extent to which extrinsic material may be employed in award interpretation. In that respect, Walton J concluded: [127] Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. [128] In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible. 29His Honour considered that the history of a provision of an award may form part of the consideration of context. In that respect, Walton J referred approvingly to what Burchett J (with whom Drummond J agreed) said in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517-518 of the use of history in the interpretation of awards: No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it." ... True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. 30Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. 31Walton J completed his examination of the relevant authorities by stating the following conclusions: [142] Of course, a difference in the relative bargaining power of the parties is not relevant to the present matter but the requirement to have regard to all the circumstances of the case in which the actual words used are in harmony with the jurisprudence which I have reviewed above. In short, in the construction of an award, this methodology requires the Court to utilise a broad approach to the relevant words in their context, particularly their industrial context (and this may include relevant permissible extrinsic evidence but must disregard impermissible extrinsic evidence) in order to discern the meaning of those words which the drafters are properly taken to have intended. [143] The adoption of these principles will result, in my view, in avoidance, in the construction of awards, of a strict but unintended technical meaning being attributed to the particular words of an award or too much attention being given to mere infelicitous expression or inconsistencies. The Court should not strive for the discernment of an absurdity. The Court should endeavour to give a provision of an award a meaning consistent with the intention of the parties gathered from the words of the provision and from the whole award, having regard to the industry and industrial relations environment in which the award came to be made. As Kirby J put it, the construction should be one which contributes to a sensible industrial outcome, provided... such an interpretation may reasonably be available from the language used in the provision (that is, from the text of an award). [144] Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo at [57]: ...while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. We adopt his Honour's analysis and the principles and conclusions he draws from the authorities.

[8]

Broken shifts 32The appellant's position was that a textual analysis of the words of subcl 13.3, and reading the Award as a whole, meant that, giving the words their ordinary grammatical meaning, the provision was to be construed in the manner contended for by the appellant, that is, it allowed the appellant to offer part-time bus operators work on broken shifts. It was unnecessary, in the appellant's submission, and contrary to the applicable rules governing the interpretation of awards, to have recourse to extrinsic material such as the origin and history of the provision because there was no ambiguity or uncertainty about the meaning of the words used. 33Bringing the clause back into focus, subcl 13.3 provides: 13.3 It is agreed that new employees offered part time Bus Operator positions will not be offered or rostered for two shifts on any day. 34The appellant referred to various provisions of the Award that it submitted supported its interpretation of subcl 13.3 and which made it unnecessary to have recourse to extrinsic material. In particular, the appellant referred to the distinctions made in various clauses of the Award between a "shift" and "broken shift portions", which was used to describe the discrete time segments comprising a single broken shift (see subcll 14.6, 24.4, 28.6 and 28.9.2). It was submitted that a reading of the Award as a whole meant that "two shifts" in subcl 13.3 could not be construed as "two broken shift portions". 35The appellant further submitted the expression "two shifts" in subcl 13.3 must be read in light of the meaning of "shift" in subcl 13.4. For the purposes of cl 13, subcl 13.4 states that "shift" means a "single engagement" on any day of the week. Hence, it was submitted, under the Award a bus operator engaged on a broken shift was characterised as undertaking a "single engagement" comprising two separate portions broken by an unpaid break. Reference, in this respect, was made to the definition of broken shift in subcl 3.2 as meaning "... one in which there is a break other than for meal break in the employee's work after signing on and before finally signing off and for which he/she is not paid." On the finding of the primary judge, it was submitted, a broken shift was two shifts. That finding was inconsistent with a broken shift being defined in the Award as a "single engagement". 36The respondent, nevertheless, maintained the primary judge was correct and that the reference to "two shifts" in subcl 13.3 was a reference to "two broken shift portions".

[9]

Whether ambiguity exists 37In order to make good its submission that the primary judge was correct, the respondent sought to identify an ambiguity in subcll 13.3 and 13.4. This was to allow it to introduce extrinsic material going to the history and purpose of the Award provisions. 38The respondent referred, first, to subcl 13.3 and the proscription against offering or rostering part-time bus operators for two shifts on any day. The respondent submitted the reference to two shifts could not be a reference to shifts worked continuously except for meal beaks and/or broken shifts as claimed by the appellant. This was because it was impossible to offer or roster two of such shifts on any day. 39In that respect, the respondent referred to subcl 13.4, which provides: 13.4 There shall be at least ten hours break between the finishing of a shift and the commencement of another shift. 40Reference was also made to subcl 28.8, which contains a similar provision to subcl 13.4: 28.8 No employee shall be called upon to begin a new shift without having been off duty for at least 10 consecutive hours, and no deduction of pay is to be made for ordinary time off duty occurring during this absence. 41Subclause 28.5 provides: 28.5 The ordinary hours of duty on any shift shall be no greater than nine hours and no less than seven. 42The respondent submitted that if, as the appellant contended, any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, a shift referred to in subcl 13.3 must be of at least seven hours' duration and, in accordance with subcll 13.4 and/or 28.8, there must be a 10 hour break between shifts. 43However, the respondent submitted, it was not possible under the Award for a part-time employee to be engaged on any day for two shifts of at least seven hours' duration with a ten-hour break between shifts. 44It was further submitted that if one ignored the minimum duration of a shift in subcl 28.5 on the basis it applies only to full-time employees and one regarded a broken shift, as defined in subcl 3.2, as a single engagement, a part-time employee working on a broken shift will work a minimum of three hours (and maximum of five) on each part of the shift and have an unpaid break between the two parts of not less than two hours: see subcll 28.6 and 28.9.2. That is a minimum eight-hour spread. It was not possible for a part-time employee to be rostered on two broken shifts in a day if there was to be a ten-hour break between broken shifts. 45It was submitted this analysis identified ambiguity as to the meaning of subcll 13.3 and 13.4. 46The ambiguity identified by the respondent might be avoidable by construing subcl 13.4 as an additional provision to subcl 13.3 in that it is referring to shifts on consecutive days. Subclause 13.3 would be construed as prohibiting two shifts (whether they be broken or straight) being offered or rostered on any day (meaning, according to the appellant, the period between midnight and midnight) and subcl 13.4 would be construed as requiring a 10 hour break between the end of one shift and the commencement of the next shift, which would be on the next day following. The employer could not, then, require an employee to work on an afternoon shift on one day and require the employee to commence on the day shift the following day without the employee having had a 10-hour break between the two shifts. 47The difficulty with this construction is that subcl 13.4 simply states "There shall be at least ten hours break between the finishing of a shift and the commencement of another shift." The provision does not say anything about when the next shift commences. Is it on the same day or the next day or does the 10-hour break provision apply regardless of which day the next shift commences? In order to construe subcl 13.4 as applying to work on consecutive days, additional words would need to be read into the provision. One would be reluctant to do so unless it was clear what mischief needed to be remedied: Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302 per McHugh JA. Moreover, the provision in subcl 13.4 regarding 10-hour breaks would appear to be superfluous in light of the catch-all provision ("No employee...") in subcl 28.8 of the Award. 48If subcl 13.4 is to be construed literally without reading additional words into it, the proscription in subcl 13.3 against rostering two shifts on any day is a duplication and unnecessary. That invites the question whether subcl 13.3 has some other purpose. 49There are additional matters requiring consideration. As we have already explained, the appellant contends, in effect, that "single engagement" in subcl 13.4 is used as a substitute for the definition of broken shift in subcl 3.2, so that the appellant may roster a part-time bus operator on a broken shift because it is a "single engagement" and not two shifts in the sense claimed by the respondent. 50If the intention was to allow the employer to engage part-time bus operators on broken shifts it is somewhat curious that rather than employ the expression "single engagement" subcl 13.4 did not simply state a provision to the effect that part-time bus operators may be offered or rostered on broken shifts. In using the expression "single engagement", the subclause also raises the question of what, if any, relationship that expression bears to the word "engagement" in subcl 13.5, which provides that: At the time of engagement, the employer and the regular part time Bus Operator will agree in writing, on a regular pattern of work, specifying at least the hours worked each day, which days of the week the Bus Operator will work and the actual starting and finishing time each day. 51That said, it is also curious that, if the intention was to preclude the use of part-time bus operators on broken shifts, why the authors of the Award did not simply state that to be the case rather than leave it in the ambiguous state expressed in subcl 13.3. 52Subclause 3.2, which defines a broken shift, does not refer to a broken shift as a "single engagement" and that expression is not otherwise defined or used elsewhere in the Award. Subclauses 13.3 and 13.4 have no counterpart in relation to any other type of employment covered by the Award, despite broken shifts being worked by full-time employees and temporary bus operators. The provisions are sui generis. It may be open to conclude, as the appellant submitted, that the reference to "single engagement" in subcl 13.4 is a reference to a broken shift. It may also be a reference to a shift worked continuously except for meal breaks - a straight shift. If the expression "single engagement" refers to both types of shift - broken and straight, the use of the expression in subcl 13.4 would appear to be superfluous. The provision could simply have read "For the purposes of this clause a shift is one agreed to be worked in accordance with subcl 13.5 but excluding Sundays." 53The expression "single engagement" would appear to be an attempt to make a distinction, but about what is not clear from the words of cl 13. The primary judge does not deal with the expression in any textual analysis of the words in cl 13. Nor does the respondent come to terms with the issue in its submissions on appeal. 54Subclause 13.4 defines a shift as a "single engagement" for the purposes of the clause. Thus, unless the contrary intention appears, wherever "shift" appears in the clause it is to be construed as a "single engagement". It follows that if "two shifts" in subcl 13.3 are to be construed, as the respondent contends, as two portions of a broken shift, they must also be regarded as two single engagements. Subclause 13.3 proscribes two shifts, that is, two single engagements, being offered or rostered on any day. It seems counter-intuitive that one "portion of a broken shift" (as the Award describes it) would be offered or rostered on any one day, but not the other portion unless a "portion" of a broken shift was regarded as a stand alone shift when the Award was varied to define a shift as a single engagement for the purposes of cl 13. However,we query the rationale of proscribing, as subcl 13.3 does, two straight shifts or two broken shifts (both being regarded as single engagements) being offered or rostered on any day given that the immediately following award provision, subcl 13.4, has that precise effect. 55The foregoing issues raise some ambiguity or uncertainty about the meaning of the words of cl 13, particularly those in subcll 13.3 and 13.4. The drafting leaves something to be desired. The issues we have identified also point to subcll 13.3 and 13.4 having been inserted into the Award for particular reasons and not as part of any general or routine variation. This is confirmed by the reference in subcl 13.3 to "new employees". The reference suggests that in relation to existing employees at the time subcl 13.3 was inserted into the Award, they would be subject to different arrangements, although the Award does not indicate what those different arrangements were. 56As Spigelman CJ observed in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Ors [2000] NSWCA 65; (2000) 48 NSWLR 548 at [116]: [116]... The use of the word "ambiguity" in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful. 57In these circumstances, we consider it necessary to move beyond a textual analysis of the words to a consideration of the words of the Award in their wider context. This includes the purpose and history of the relevant award provisions, the circumstances surrounding the making of the Award and relevant extrinsic materials. As Walton J observed in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury at [115], a relevant consideration in this respect is the mischief remedied by a provision.

[10]

Appellant's contentions regarding purpose of award provision 58The appellant submitted the textual meaning of subcl 13.3 that it contends for is supported by the industrial purpose of the provision. It was submitted that subcl 13.3 was designed to address the potential mischief of engaging or rostering a part-time bus operator on two shifts to undermine the protections and entitlements afforded to bus operators working on broken shifts under the Award. 59The appellant commenced by outlining how subcl 13.3 should be construed in its operative effect: (i) A part-time bus operator has the same terms and conditions of employment as a full-time bus operator other than reduced hours and reduced pay and conditions calculated on a pro-rata basis (subclause 13.1). No reference is made in the clause to certain full-time conditions of employment as not being applicable to part-time bus operators. It follows that full-time and part-time bus operators have an entitlement to the same terms and conditions of employment. (ii) The appellant and the part-time bus operator must agree on a "regular pattern of work" specifying the hours worked each day, the days worked and the starting and finishing time each day (subclause 13.5). The agreement is made at the time of engagement. The bus operator must agree to any variation to the regular pattern of work and contract hours in writing other than in limited prescribed circumstances (subclause 13.6). (iii) For the purposes of the clause, a shift means a "single engagement for each day i.e. the specific agreed daily hours for each part-time bus operator in accordance with the roster including starting and finishing times (subclause 13.4). (iv) The minimum daily shift for a part-time bus operator is three consecutive hours on a shift (subclause 13.7). However, part-time bus operators can be utilised to perform work "in excess of their daily agreed hours"(i.e. the shift hours) in certain prescribed circumstances (subclause 13.2). If a part-time bus operator works "in excess of the hours as mutually agreed"(i.e. shift hours), such time worked must be paid at the overtime rates prescribed in the Award (subclause 13.9). (v) Sunday is excluded from the operation of these provisions (subclause 13.4) because all Sunday work is designated as outside ordinary hours of work (subclause 28.3.2 and 28.3.3) and paid at the rate of double time (subclause 29.2). (vi) The appellant is not allowed to offer or roster part-time bus operators to work 'two shifts' on a single day (subclause 13.3). A shift has the same meaning applied in subclause 13.2. For example, the appellant cannot offer or roster a part-time bus operator to work the AM shift and the PM shift. (vii) Accordingly, if the appellant wishes to require a part-time bus operator to work in two separate time segments on one day, it must reach an agreement with the part-time bus operator to change the "regular pattern of work" and "contract hours" to introduce the broken shift arrangement for that employee. The part-time bus operator cannot be compelled to work a broken shift arrangement. If an agreement is made, then the part-time bus operator has the benefits and protections of the provisions governing hours of work (see subclause 28.6, 28.7, 28.9, 42.14), penalty rates (subclause 35.1, 35.2 and 35.3), the duration of meal break times and signing on and signing off allowances (subclause 23.1, 53.1 and 53.2 and Tables 4 and 5 of Part B). 60Next, the appellant helpfully traced the history of subcl 13.3 and commenced by undertaking an examination of the origins of subcl 13.3. The starting point was the decision of Commissioner Lawson of the Australian Industrial Relations Commission to vary the New South Wales Government Bus Traffic Employees Award 1981 ("the 1981 Award") to allow the use of part-time and casual bus operators: State Transit Authority of New South Wales, The Australian Tramway and Motor Omnibus Employees' Association (C Nos 21155 and 22123 of 1991, Print K6513). In a supplementary decision given on 21 July 1993, Commissioner Lawson confirmed that the appellant had the right to utilise part-time bus operators in two separate shifts on a day and that the restrictions applicable to broken shifts for full-time bus operators did not apply to part-time bus operators including broken shift penalty rates: State Transit Authority of New South Wales and The Australian Tramway and Motor Omnibus Employees' Association (C Nos 21155 and 22123 of 1991, Print K8515). It would appear that in order to facilitate the implementation of part-time bus operators being able to work two shifts on one day, the 1981 Award was also varied to provide in subcl 43(f) that the 10-hour mandatory interval between shifts applied only to shifts on consecutive days and not on the same day. 61According to the evidence of Mr Eldridge, the appellant's General Manager - People and Bus Systems, following the award variation to the 1981 Award, the appellant began engaging a number of part-time bus operators to work two separate shifts on a day, but did not pay broken shift penalties as allowed under subclause 43(b)(iii) of the 1981 Award. The arrangement worked as follows: (a) Sign-on at the beginning of their first shift and sign-off at the end of their first shift; (b) Sign-on at the beginning of their second shift and sign-off at the end of their second shift; (c) Receive sign-on and sign-off allowances at the start and end of each shift in accordance with the then Award; (d) Not receive broken shift penalties; (e) Not be required to remain at the bus depot during periods between shifts where they were signed-off; (f) Part-time bus operators were also paid shift allowances for the time worked between 5.00pm and 7.00am in accordance with the 1981 Award; (g) Broken shift spread penalties were not paid to part-time bus operators in accordance with the 1981 Award. 62We also note the Bus Operations Handbook provides at paragraph 5.1(b) that "When starting a broken shift Bus Operators must sign on at the commencement of each half and sign off at the completion of each half." 63As the appellant submitted, the issue of part-time bus operators working two shifts on any one day became contentious again. On 21 March 2001, the respondent again pressed its opposition claiming that either part-time employees be paid the appropriate penalty or that they not be required to work two shifts a day. On 10 April 2001, the appellant indicated its intention to phase out the practice of engaging part-time bus operators on two shifts on one day. The letter from the appellant's General Manager - Human Resources to the respondent stated: ... 5. Part Time Split Shift Employees This issue was raised at the RTBU Peak Council by the RTBU, Current EBA's enable State Transit to roster part time employees on consecutive shifts on the one day, which have been defined by the RTBU as split shifts. State Transit has considered the position of the RTBU in relation to part time employees and despite having legal protection to roster part time employees on split shifts have decided to phase this practice out. Existing part time employees on split shifts will remain unchanged. However, no new offers of employment containing split shifts will be made to part time employees from 6 April 2001. Through attrition these shifts would also be phased out and it would be the intention of State Transit to employ part time employees with a single engagement per day. I trust that these issues are now resolved and I look forward to meeting with you again soon. 64As the appellant submitted, the position stated by it in its letter of 10 April 2001 became embodied in cl 10 of the State Transit Authority of New South Wales Bus Operations Enterprise Agreement 2002 ("the 2002 Agreement"), which has the same wording as subcl 13.3 of the Award. A number of consequential changes were made to the State Transit Authority of New South Wales Bus Traffic Employees Award 2002 ("the 2002 Award") including the removal of the bar to broken shift penalties for part-time bus operators (subcl 43(b)(iii) of the 1981 Award), the insertion of the definition of a shift as a single engagement on any day excluding Sunday (subcl 8.3.2) and the variation of the clause to apply the minimum 10 hour break between shifts regardless of whether the shifts occurred on the same day (subcll 8.3.2, 9.4 and 9.5). The appellant submitted: It is clear that these provisions were intended to address the respondent's opposition to part-time bus operators working two shifts on the same day without the application of broken shift provisions applicable to full-time employees. A provision on the same terms as subclause 13.3 in the Award has been contained in applicable industrial instruments since the 2002 Agreement. Once the industrial origins, purpose and operation of clause 13 are properly understood, the protection for part-time bus operators contained in subclause 13.3 becomes clear. It is an anti-avoidance provision designed to ensure that the appellant cannot circumvent the obligation to make the payment of broken shift penalties under subclause 35.1 and 35.2 by engaging or rostering employees on two shifts per day as part of their "regular pattern of work". Rather than proscribing part-time broken shift arrangements, subclause 13.3 ensures that the benefits and protections of broken shift arrangements applicable to full-time bus operators have the same application to part-time bus operators. 65The appellant's version of the history of cl 13.3 and how it came to be inserted in the Award is not materially different to the respondent's version. However, the parties' views about why the provision was inserted, and its effect, were at odds.

[11]

Relevant considerations arising from history of award provision 66There are a number of conclusions to be drawn from the history of subcl 13.3: (1)In 1993 Commissioner Lawson of the Australian Industrial Relations Commission allowed the use of part-time and casual bus operators. The Commissioner also decided part-time bus operators "engaged for two separate periods on one day" would not be entitled to the broken shift allowance payable to full-time operators. The Commissioner's rationale was that there be "greater flexibility in employment opportunities". The relevant industrial instruments were varied accordingly. (2)After the Commissioner's decision, the appellant began engaging a number of part-time bus operators to work two separate shifts on a day but did not pay broken shift penalties. The respondent remained opposed to this arrangement. (3)In 2001 the respondent wrote to the appellant stating: We condemn this approach and demand that either part time employees be paid the appropriate penalty or that they not be required to work two shifts a day as at present. (4)The appellant responded to the respondent's request by relevantly indicating that: (a)it had decided to phase out the practice of rostering part-time employees on split shifts, otherwise described by the appellant as "consecutive shifts on the one day"; (b)no new offers of employment containing split shifts would be made to part-time employees from 6 April 2001; (c)it was the intention of State Transit to employ part-time employees with a single engagement per day. (5)clause 10 of the 2002 Agreement was varied to insert the following provision: It is agreed that new employees offered part time Bus Operators positions will not be offered or rostered on two shifts on any day. (6)that provision was reproduced in the subsequent industrial instruments and survives as subcl 13.3 of the current Award; (7)at the same time as the introduction of the subcl 13.3 provision, the clause providing that part-time employees were not entitled to a broken shift penalty was removed; 67We should note that, consistent with the applicable principles, we have not had regard to submissions that no part-time employee has worked a broken shift since.. 68There is additional history provided in the first instance decision in [32]-[55] showing how the regulation of wages and employment conditions returned to this Commission's jurisdiction and remained there and how the issue of part-time employees working broken shifts erupted again as an industrial dispute in 2011. It is unnecessary to repeat that history. 69Having regard to the history of subcl 13.3 and the parties' dealings with respect to it, the primary judge found at [88] that both the intent and effect of the provision was to prohibit the engagement of part-time employees on broken shifts. His Honour referred to Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40], where it was stated: [40]... What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. 70The appellant submitted that Staff J erred in relying on Alphapharm. It was submitted the principles of contractual interpretation have no relevance to award interpretation: that contractual interpretation has a different objective and involves a different method for ascertaining meaning. It was submitted that in contractual interpretation, the aim is to determine the common intention of the parties as found in the meaning of the document. Statutory interpretation, on the other hand, is an exercise confined to the legal meaning of the provisions of the instrument ascertained by reference to the language of the statute viewed as a whole including its context. The approach to statutory interpretation was to be applied in interpreting an industrial instrument.

[12]

Mischief, history and purpose 71Referring to the principles identified by Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury, it is permissible in seeking to construe the meaning of an award provision to consider the mischief the provision is seeking to remedy. The tribunal may also consider the general purpose and objective of the provision and the circumstances surrounding the making of the award provision. This may include a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations and the forming of an agreement. It is not permissible to have regard to the subjective intentions of the parties such as that expressed in the appellant's letter dated 10 April 2001. Nor is it permissible to have regard to the conduct of parties subsequent to the making of the award. 72It is clear from the history that following Commissioner Lawson's decision in 1993 the appellant commenced to utilise part-time bus operators on broken shifts. The respondent was opposed to this. In 2001 the respondent demanded of the appellant that either part-time employees be paid the appropriate penalty or that they not be required to work two shifts a day. The appellant agreed that it would change the arrangement, but it contended that the changes made to the industrial instruments reflected an intention to pay part-time employees the appropriate penalty and not give up its award right, whenever it chose, to utilise part-time employees on broken shifts. 73It is apparent from the language used by Commissioner Lawson in 1993 ("engaged for two separate periods on one day") and the language used by the parties themselves in 2001 ("two shifts a day"; "split shifts"; "consecutive shifts on the one day") that the two "portions" of a broken shift were regarded as two separate shifts on one day and not as a single engagement. That this was so is supported by Mr Eldridge's evidence as to how the system worked under the 1981 Award (which continued to apply until it was replaced by the 2002 Award, which took effect from 15 July 2002), namely, signing on and signing off in relation to the "first shift" and the "second shift", payment of sign on and sign off allowances at the end of each shift and not being required to remain at the bus depot during periods when the employees were signed off. 74In light of that, do the words of the Award best reflect an intention to enable the appellant to utilise part-time bus operators on broken shifts and pay them the appropriate penalty or do they reflect an intention to prohibit part-time employees working on broken shifts?

[13]

Does the award provision evince an intention to prohibit part-time employees working on broken shifts? 75If a "portion" of a broken shift is to be regarded as a shift for the purpose of subcl 13.3 then, giving the words of the subclause their ordinary grammatical meaning, the provision proscribes a broken shift being offered or rostered on any day to a part-time bus operator because it consists of two shifts. The two shifts referred to in subcl 13.3 would each be a single engagement for the purpose of subcl 13.4. Each of the two shifts referred to in subcl 13.3 would be a shift for the purpose of subcl 13.7, which requires the employer to roster a regular part-time bus operator for a minimum of three consecutive hours on any shift. 76To regard each portion of a broken shift as a "single engagement" for the purposes of cl 13 would not be inconsistent with the definition of a broken shift in subcl 3.2. It defines a broken shift as "one in which there is a break other than for meal break in the employee's work after signing on and before finally signing off and for which he/she is not paid." Thus, there are two separate periods of engagement for work signified by two episodes each of signing on and signing off, with a break between the two periods that is unpaid. The evidence was that the part-time employee was free to leave the depot. This is consistent with Mr Eldridge's evidence of how the broken shift system worked, noting also that Mr Eldridge referred to the two portions as the "first shift" and the "second shift". 77The provision in subcl 13.4 that a part-time bus operator is to be given at least ten hours' break between the finishing of a shift and the commencement of another shift is not inconsistent with subcl 13.3 if it is to be construed as prohibiting the offering or rostering of part-time bus operators on a broken shift on any one day. 78According to the history of the Award and its predecessors, in order to facilitate the implementation of part-time bus operators being able to work two shifts on one day, following the decision of Commissioner Lawson the 1981 Award was varied to provide that the 10-hour mandatory interval between shifts applied only to shifts on consecutive days and not on the same day. Following the dispute in 2001 about part-time bus operators working broken shifts, the 1981 Award was varied, inter alia, to apply the minimum 10-hour break between shifts regardless of whether the shifts occurred on the same day. The 10-hour break provision in subcl 13.4 may be seen as complementary to subcl 13.3. Subclause 13.3 prohibits two shifts being rostered or offered on the same day. If, however, a part-time bus operator was rostered to work from, say, 3.00 pm to 7.00 pm that operator could not commence his or her next shift until he or she has had a 10-hour break, meaning the next shift could not commence before 5.00 am the next day. If the operator was rostered to work from 5.00 am to 10.00 am, he or she could not commence their next shift until after midnight because of the proscription in subcl 13.3 against working two shifts on any one day. 79The variation to the 1981 Award in 2002 (the variation included replacing the 1981 Award with the 2002 Award) also removed the bar to broken shift penalties for part-time bus operators. The appellant submitted this demonstrated the correctness of its contention that the intention was to address the respondent's opposition to part-time bus operators working two shifts on the same day without the application of broken shift provisions applicable to full-time employees. On the other hand, of course, a provision barring part-time operators from receipt of broken shift penalties was otiose if such operators were not to be offered or rostered on broken shifts on any one day and its removal supports the respondent's contentions. 80A part-time bus operator could work two shifts on any one day, but one of those shifts would be overtime. Clause 13 relevantly works this way: (1)At the time of engagement, the employer and the regular part-time Bus Operator will agree in writing, on a regular pattern of work, specifying at least the hours worked each day, which days of the week the bus operator will work and the actual starting and finishing time each day: subcl 13.5. (2)Any variation to the regular pattern of work is to be recorded in writing. Contract hours cannot be changed without the agreement of the employee concerned, except where new rosters are built to accommodate School Vacation times, Service Reviews etc. When this occurs, actual start and finish times of each shift and total hours of work for a day may be varied by up to 60 minutes at the discretion of the employer. Where practicable, the employee is to be allocated shifts which have hours of work as near as possible to the employee's current contract of employment: subcl 13.6. (3)The employer is required to roster a regular part-time bus operator for a minimum of three consecutive hours on any shift: subcl 13.7. (4)Part-time employees can be utilised to perform work in excess of their daily agreed hours if full-time bus operators at the Depot are unavailable to undertake the work required to be performed to maintain service delivery on the day: subcl 13.2. (5)All time worked in excess of the hours as mutually arranged will be overtime and paid for at the rate prescribed in this Award: subcl 13.9. 81Thus, at the time of engagement the employer and part-time employee agree on a regular pattern of hours to be worked specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing time each day. Except in certain defined circumstances, the agreed pattern of work may not be changed other than by agreement. A limitation on what might be a regular pattern of work is that the part-time bus operator may not be offered or rostered on two shifts on any one day. That is, the employee could not be offered or rostered to work 5.00 am to 10.00 am and on the same day, 2.00 pm to 7.00 pm because that would be two shifts and prohibited by subcl 13.3. The employee could, however, be rostered for a straight shift from, say, 7.00 am to 3.00 pm on any one day, which would be a single engagement. Once the regular pattern of hours is fixed, the part-time employee may be offered an extra shift on any one day in the circumstances permitted by subcl 13.2, but it would be overtime. In that sense it would not be a shift for the purposes of the mandatory 10-hour interval between shifts. Our opinion is that the 10-hour break applies to rostered shifts paid at ordinary rates. 82We note subcl 28.8, which provides: 28.8 No employee shall be called upon to begin a new shift without having been off duty for at least 10 consecutive hours, and no deduction of pay is to be made for ordinary time off duty occurring during this absence. 83Applying the maxim generalia specialibus non derogant, we think subcl 28.8 is a provision of general application that must give way to the specific provision applying to part-time employees in subcl 13.4. 84Having regard to the foregoing analysis, we find nothing inconsistent in the Award with an interpretation of subcl 13.3 to the effect that the provision proscribes offering to part-time bus operators, or rostering such operators for, two shifts on any day including the two shifts that make up a broken shift.

[14]

Is the intention of the award provision to enable the appellant to utilise part-time bus operators on broken shifts and pay them the appropriate penalty? 85We turn to the appellant's assertion that the words of the Award best reflect an intention to enable the appellant to utilise part-time bus operators on broken shifts and pay them the appropriate penalty. 86Following the supplementary decision of Commissioner Lawson in 1993, the 1981 Award was relevantly varied to provide for the engagement of part-time bus operators. Paragraph (iii) of subcl 43(b) of the 1981 Award provided that broken shift penalties were not to apply to part-time bus operators. 87In 2001, the respondent raised again with the appellant its objection to part-time employees working broken shifts and claimed, "either part-time employees be paid the appropriate penalty or that they not be required to work two shifts a day as at present." 88In June 2002, the 2002 Agreement was made by the Australian Industrial Relations Commission. That Agreement was to be read in conjunction with the 1981 Award (see cl 4). Relevantly, cl 10 was included in the 2002 Agreement. That provision was in the same terms as subcl 13.3 in the Award. At the same time, par 43(b)(iii) of the 1981 Award continued to proscribe the payment of broken shift penalties to part-time bus operators. 89Clause 10 of the 2002 Agreement did not reflect an intention to reserve a right to engage part-time bus operators on broken shifts and pay them the appropriate penalty. What is more, payment of the penalty remained proscribed by the 1981 Award. Clause 10 reflected more so the position contended for by the respondent, namely, that the appellant would no longer be entitled to engage part-time bus operators on the two shifts that make up a broken shift. 90In July 2002, the 2002 Award replaced the 1981 Award. The 2002 Award was to be read in conjunction with the 2002 Agreement (containing, as it did, cl 10). The 2002 Award removed the bar to broken shift penalties for part-time bus operators, inserted the definition of a shift as a single engagement on any day excluding Sunday (subcl 8.3.2) and in respect of part-time employees, applied the minimum 10-hour break between shifts regardless of whether the shifts occurred on the same day (subcl 8.3.2). 91The removal of the bar to broken shift penalties might be consistent with the appellant's contention, but it is also consistent with cl 10 of the 2002 Agreement prohibiting engagement of part-time employees on the two shifts that make up a broken shift. Defining a shift as a single engagement might also support the appellant's contention if a broken shift were to be regarded as a single engagement. However, the weight of the evidence supports the view that, at the time the definition was inserted into the 2002 Award, a single engagement was regarded by the parties as one of the shifts making up a broken shift. As for the 10-hour break provision, it will be recalled the 1981 Award provided that the 10-hour mandatory interval between shifts applied only to shifts on consecutive days and not on the same day. This facilitated the engagement of part-time employees on the two shifts that make up a broken shift. To vary that provision so that the 10-hour interval applied to shifts worked on both the same day and consecutive days is not consistent with an objective of part-time employees being able to be rostered for two shifts on the one day.

[18]

The key question 98The appellant identified the "key question" being whether subcl 32.4 was limited to employees performing "additional work" on the day an employee had already been rostered to work. It was submitted that in the context of the Award, the adjective "additional" was used to describe "extra" work required to be performed by a bus operator on the same day. 99In other words, the appellant's contention was that where it was necessary to allocate overtime additional to an employee's rostered work on a day, that overtime was to be offered first to a full-time employee. However, in any other case where overtime was required to be allocated, the appellant was entitled under the Award to engage casual employees in the first instance to perform the work. 100In pressing its interpretation, the appellant submitted it was helpful to compare and contrast the different language used in subcll 12.7 and 32.4. Subclause 12.7 directed that casual bus operators be given first preference to cover "planned and unplanned absences" of part-time bus operators. It was submitted the term 'absence' in the Award referred to a circumstance where a bus operator was on leave or otherwise did not perform work for the whole or part of a shift that person had been rostered to work. Subclause 12.7, it was submitted, governed the allocation of work in the event of such a situation arising for part-time bus operators. Subclause 32.4 used different language. It referred to the allocation of 'additional work' and 'additional duties'. The appellant submitted the use of different language indicated that subcl 32.4 was directed to something else. 101Counsel for the appellant submitted the context of subcl 32.4 suggested that 'additional work' or 'additional duties' referred to work performed on the same day on which a bus operator has worked on shift. Subclause 32.3 established the process for identifying bus operators who may wish to perform voluntary overtime/additional duties. It required the permanent bus operators to record their desire to work voluntary overtime/additional duties in a record book held in the duty office at each bus depot 'on the day'. The appellant submitted the use of the definite article suggested it was the same day that the additional work must be performed in addition to work already performed. 102The primary judge took the view that the words "on the day" in subcl 32.3 meant "any day". His Honour said in this regard at [121]: [121] The words "on the day", given their ordinary meaning, are, to my mind, a reference to additional work on the day a full-time bus operator is working or on a day known in advance of the actual day that additional work is required. That is, "on the day" means "any day". ... 103The appellant submitted that, if subcl 32.3 intended to refer to 'a day' or 'any day' rather than 'on the day' worked, then the expression 'on the day' would be otiose. Unless there was a compelling reason otherwise, all words must be given some meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382; Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 200; (2004) 60 NSWLR 558 at [74]; Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 at [172]. 104The appellant next referred to the structural antecedents and industrial context of subcl 32.4. It was noted that subcll 32.3 and 32.4 originated from cl 32 of the State Transit Authority of New South Wales Bus Operations Enterprise Agreement 2004 ("the 2004 Agreement"). It provided: 32.1 The Parties agree that Part-Time employees can be utilised to perform work in excess of their daily agreed hours if full time Bus Operators at the Depot are unavailable to undertake the work required to be performed to maintain service delivery on the day. 32.3 State Transit will establish a record book at each depot, in the Duty Office, for all permanent staff wishing to do additional duties/Voluntary Overtime on the day. 32.4 Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full-time employee is available, then a part-time employee, and if no part-time employee is available, then casual employees may be allocated the additional duties. 105Counsel for the appellant submitted that, read in its original context, it was apparent that the parties had intended to address additional work performed in excess of agreed daily hours performed by a bus operator on the day. The appellant observed that subcl 32.1 of the 2004 Agreement is the present subcl 13.2 of the Award. It was moved, according to the appellant, as part of the making of the State Transit Authority Division of the Government Bus Operations Enterprise (State) Award 2007 ("the 2007 Award") aimed at consolidating earlier industrial instruments into a single instrument and re-organising the structure of the provisions to be more logical. The separation of the subclauses to different places in the instrument did not alter the meaning. 106The respondent's contention regarding the key question, and accepted by the primary judge, was that "additional work" was a reference to any and all "voluntary overtime" and, in accordance with subcl 32.4, was required to be allocated first to full-time employees, if no full-time employee was available then to a part-time employee, and if no part-time employee was available then to casual employees.

[19]

Uncertainty regarding the meaning of "additional work" 107Our opinion is that, notwithstanding the appellant's attempts to reconcile various provisions of the Award, it is not clear from subcl 32.4 what is meant by "additional work". Presumably it means work to be done in overtime given that the provision appears under the heading "Working of Voluntary Overtime", but beyond that some uncertainty exists. 108The uncertainty arises when one considers subcl 12.7. That subclause provides that a casual bus operator will be utilised in the first instance, whenever practicable, to cover planned and unplanned absences of part-time bus operators. On the appellant's submission, subcl 32.4 does not prevent it using casuals in the first instance to fill vacant shifts which otherwise might have been filled by a full-time employee, part-time employee or temporary employee. The vacant shift might arise because of a planned or unplanned absence of a part-time employee. 109If the limitation in subcl 32.4 is only that full-time employees must be given priority where there is additional work to be performed on a day following rostered work on that day, and does not affect the appellant's right to otherwise use casual employees in the first instance, including for the purpose of filling a vacant shift caused by a planned or unplanned absence, subcl 12.7 is unnecessary. 110A further uncertainty about the meaning to be attributed to cl 32.4 arises in the following way: subcl 32.3 may be read as establishing an arrangement whereby a book is kept in the relevant depot in which permanent staff record a willingness to perform "additional duties/Voluntary Overtime on the day." The use of the words "additional" and "on the day" might suggest, as the appellant contends, that what the permanent staff are indicating in the record book is a willingness to work overtime on the day they are working their normal shift. 111In providing that "full-time staff" are to be given priority, subcl 32.4 does not state that it is those "permanent staff" who have indicated a willingness to perform additional duties pursuant to subcl 32.3. But even if that were the case, on the appellant's submission it is necessary to imply additional words in subcl 32.4 such that it would read to the effect that, "Should additional work be allocated, it is to be allocated in the first instance to full-time staff who have made themselves available in accordance with subcl 32.3....", or "... made themselves available to do additional work/voluntary overtime after their rostered shift...." As we earlier indicated, it would not be appropriate to reads words into the award provision unless it was clearly understood what mischief the provision was seeking to remedy. 112Furthermore, whilst subcll 32.3 and 32.4 might be susceptible to the meaning attributed to them by the appellant, the respondent contends that "on the day" is a reference to "additional duties/voluntary overtime" that has arisen "on the day". In other words, a record book is kept of permanent employees who are willing to be called in to perform additional duties/voluntary overtime where an employee has failed to attend for his or her shift "on the day" he or she is rostered to work. In those circumstances, according to the respondent, a full-time employee who has indicated his or her availability to work the vacant shift is given priority to work the vacant shift. If the full-time employee is not available then in accordance with subcl 32.4 a part-time employee is offered the shift and if no part-time employee is available, it is offered to a casual employee. The respondent's interpretation is not implausible or improbable, although it is not immediately evident from the text that the interpretation should be adopted, particularly because of the enigmatic use of the words "on the day" in subcl 34.3.

[20]

History 113In light of the uncertainty surrounding the words in question we turn to the history of the relevant award provisions. As we earlier explained, the appellant was given the right to engage casuals after the decision of Commissioner Lawson in 1993 and as a consequence the 1981 Award was varied. The 1981 Award also prohibited the working of overtime by part-time bus operators except in emergencies and otherwise agreed circumstances. 114The 2002 Award continued to allow for casual employment, but it no longer contained any specific restriction on part-time employees working overtime. However, the evidence was that part-time employees were not utilised to undertake overtime work. 115The 2004 Agreement saw the introduction of provisions expressly permitting the use of part-time employees on overtime. Clause 32 was in the following terms: 32. Part Time Employment 32.1 The Parties agree that Part Time employees can be utilized to perform work in excess of their daily agreed hours if full time Bus Operators at the Depot are unavailable to undertake the work required to be performed to maintain service delivery on the day. 32.2 State Transit will establish a record book at each depot, in the CSC Office for all permanent staff wishing to do additional duties/VOT on the day. 32.3 Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full-time staff is available, part time employees may be allocated the additional duties. 116Subclause 32.1 of the 2004 Agreement permitted part-time employees to perform work in excess of their daily agreed hours if "full-time operators are unavailable to undertake the work required to be performed to maintain service delivery on the day". Subclause 32.2 provided for a record book whereby permanent staff could nominate their interest in doing additional duties/Voluntary Overtime "on the day". Subclause 32.3 required additional work to be allocated to full-time staff in the first instance, but if such staff were unavailable, part-time employees may be allocated the work. 117Clause 32 in the 2004 Agreement was somewhat convoluted and lacked a consistency of language, which adds to the difficulty of ascertaining its meaning. Subclause 32.1 provided that part-time employees may perform overtime work if full-time bus operators are unavailable on the day the work is to be performed. That seems to have meant full-time operators had to be given priority in the allocation of the overtime work if they were available (presumably, whether full-time employees were available on the day would be determined by consulting the record book in subcl 32.2). Subclause 32.3 then stated that full-time staff had to be given priority over part-time employees in the allocation of additional work. Subclause 32.3 would seem to be superfluous in light of subcl 32.1 unless subcl 32.3 was inserted to provide emphasis or, as the respondent submitted, subcl 32.3 established a general condition that any additional work, "on the day" or otherwise, was to be offered to full-time operators in the first instance. 118In 2007, the appellant's employees were transferred from the federal to the state industrial relations system, and a consolidated State award was made by consent in November 2007. In that award the provisions in subcll 32.3 and 32.3 of the 2004 Agreement were moved from the part-time employment clause to a different clause headed "Voluntary Overtime" and were re-numbered 33.3 and 33.4 respectively. Subclause 32.1 remained in a clause dealing with part-time employment. 119The evidence was that although there had been nothing in the industrial instruments limiting the type of work that could be undertaken by casual employees, the respondent had consistently opposed the use of casual bus operators. In 2009, the appellant pressed for greater use of casuals. Consequently, the parties agreed to relax the restrictions on allocation of work to casuals to the extent that casuals were permitted to be used in the first instance to cover absences of part-time operators. Accompanying the introduction of that provision (which is the existing subcl 12.7 in the current Award) was a variation to subcl 33.4. Before the amendment it read: Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full-time Employee is available, part-time employees may be allocated the additional duties. 120After the amendment subcl 33.4 (which later became subcl 32.4 in the current Award) read: Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full-time employee is available, then a part-time employee, and if no part-time employee is available, then casual employees may be allocated the additional duties. 121It hardly seems likely, in our opinion, that there would be an agreement to allow limited use of casuals such that a casual bus operator could be utilised in the first instance to cover planned and unplanned absences of part-time bus operators (subcl 12.7), and at the same time effect a variation to what is now subcl 32.4 to allow the appellant to utilise casual employees in the first instance where "additional work" is required to be allocated. As we earlier observed, if subcl 32.4 is to be construed in the manner proposed by the appellant, subcl 12.7 is otiose.

[21]

Extrinsic materials 122The evidence included a number of documents that recorded agreements in relation to how the relevant award provisions were to be construed. 123Following variations to the 1981 Award to introduce casual employment for the first time, on 8 November 1993, the appellant reached an agreement with the RTBU's predecessor regarding how casuals were to be engaged. The agreement, which was contained in an internal memo, relevantly provided under the heading "Casual Staff": Considerable discussion took place regarding introduction of casual staff for Sydney Buses and the following was agreed to with the PTU: All known work to be placed in the roster prior to 4.00 p.m. Monday to Friday. On-call staff to be arranged for the following day as per the EBA guidelines. All shifts that require coverage from 4.00 p.m. onwards be staffed by the on-call staff rostered for the next day, in the first instance. If on-call staff are unavailable casuals to be brought in. On the day and when on-call staff have been utilised, casuals would then be brought in for all other absences on the day. Part-shifts requiring coverage on the day wherever possible would be covered by voluntary overtime. If at any time on-call staff volunteers are not available all shifts requiring coverage would be staffed by casuals. If additional work is available on the day such as emergency rail work casuals would be brought in to assist in that process. Our objective now is to introduce casual staff for Sydney Buses from the week commencing 5 December 1993. The above represents the broader picture of the agreement with the PTU and considerable work will now be undertaken regarding recruitment and general conditions etc. Again this information will be forwarded to you by close of business on Wednesday, 10 November, 1993. Would you give your personal involvement in the development of these part-time rosters to ensure your Business Unit is in a position to implement part-time rosters week commencing 12 December, 1993. 124We note the references to "on the day" and "additional work". Noting that in 1993 part-time employees were not permitted under the 1981 Award to work overtime except in certain circumstances, it is reasonably clear that under the 1993 agreement: (1)where it was known there would be absences on the following day, arrangements were made to fill any vacancies using, first of all, permanent staff who were on-call. If permanent staff on-call were not available, casual employees could be utilised; (2)where it became apparent only on the day a shift was to be worked that the employee rostered to work the shift was absent, provided on-call staff had been used in the first instance, casuals could be utilised to fill the vacant shift. Part-shifts requiring coverage on the day wherever possible would be covered by voluntary overtime; (3)if, at any time on-call staff volunteers are not available, all shifts, including presumably part-shifts requiring coverage, would be staffed by casuals; (4)if a need arises "on the day" for "additional work" to be carried out such as emergency rail work (buses replacing trains presumably) casual employees may be brought in to "assist". A distinction is here made between "additional work" and the need to fill vacant shifts because of an absent employee. The use of the word "assist" would suggest that casuals would not have a primary role in carrying out the "additional work" but would supplement, where necessary, permanent staff. 125In 2010, an industrial dispute arose regarding the payment of overtime under the 2009 Award. The circumstances of the dispute and the contents of documents relating to the dispute were comprehensively addressed in the primary judge's reasons at [43]-[47]. 126In a reply to the RTBU dated 30 October 2010 dealing with the appellant's attitude to the dispute, Mr Eldridge stated: There is a history of agreement between the union and STA concerning the allocation of voluntary overtime. The Agreement outlines the principles under which voluntary overtime (and DOC's) is allocated. The current award does not substantially alter or amend what has been agreed and practiced (sic) for the past thirteen years; it simply puts in place a process for offer of voluntary overtime. Mr Eldridge then quoted subcll 33.4 (which is subcl 32.4 of the Award) and 12.7 (which is numbered the same in the Award) of the 2009 Award. 127The "Agreement" to which Mr Eldridge referred in his letter was an Agreement signed by the parties in February 1997 and titled "Implementation Agreement for the Working of Voluntary Overtime". The Agreement relevantly stated under the heading "Voluntary Overtime": Voluntary overtime is to be offered to staff who have signed the voluntary overtime book, with those having the lowest previous allocated hours being given first opportunity where practicable. 5. Where available rostered spares are to cover staff failures on the day, before voluntary overtime is allocated. 6. Where rostered shifts cannot be covered by spares, District Managers or their nominee have the authority to bring in staff as required who have signed the voluntary overtime book to work the full shift as DOC. This is conditional on there being adequate time to call in staff to cover the work required. 128It is not challenged that the voluntary overtime book referred to in the Agreement is the record book referred to in subcl 32.3 of the Award. It is apparent from par 6 of the 1997 Agreement that the process of filling a vacant full shift was to commence by calling in full-time staff (it is only full-time staff who indicate a willingness to work voluntary overtime) that have signed the "voluntary overtime book". 129Mr Eldridge was cross-examined about the February 2010 letter and the 1997 Agreement. Mr Eldridge accepted that the words in subcl 33.4 (now 32.4) substantially reflected the 1997 Agreement that was attached to the letter. We note that Mr Eldridge also agreed with the proposition that under subcl 32.4, "any additional work on the day which was less than a full shift was supposed to be allocated on the basis that it would firstly be offered to those staff already working on the day". However, he went on to agree that if those staff "were unable to fill the hours then it next be offered to a full-time employee, not available on the day". 130It appears the parties were unable to resolve the dispute between themselves. The parties were summoned to a compulsory conference before Grayson DP on 9 December 2010. An agreement was reached and recorded on the transcript of the proceedings. The terms of the agreement are also recorded in the primary judge's reasons at [46]. 131Mr Eldridge agreed in cross-examination that it was "crystal clear" the agreement reached before Grayson DP was that the sequence of allocating overtime was to first approach full-time operators, then part-time operators, then casual employees. 132The agreement also provided that: This procedure shall take effect from Friday 10 December 2010 and will apply until the commencement of a new Bus Operators' Award in 2011. 133In relation to the agreement reached before Grayson DP the appellant submitted that: The agreement has expired and has no present relevance. In the course of seeking to resolve industrial disputes, the parties may make commitments designed to act as a bridge until the parties enter into a new industrial instrument. In the present case, the making of the agreement did not concede the question of the proper interpretation of the clauses. It cannot be used as a means of contradicting the plain meaning of the relevant terms. 134In addressing that contention the respondent submitted it should be rejected for the following reasons: (a) The agreement did no more than re-state or explain the existing requirements of the award - a matter clear from a comparison with the 1997 Agreement and eventually conceded by Eldridge in cross-examination, at least in respect of the depot subject of the dispute proceedings. Given the Government wages policy in force at that time, it could not have been otherwise; the STA could not make any agreement which improved conditions, at least not without a quid pro quo in the form of employee-related savings. (b) The reference in the document to its expiry on the commencement of the following award did no more than confirm that the agreement was not binding in perpetuity and that the STA was free, if it wished, to agitate the matter in award negotiations and/or attempt to procure an award change permitting departure from the status quo. It did not mean that it was free to unilaterally alter the procedure on the expiry of the award. (c) The STA did not give any indication during the negotiations for the Award that it intended to abandon the Grayson Agreement. Rather it acted consistently with it at all times up to and including the present. The Award should be read in the context of STA's failure to indicate any future intention to abandon its agreement. 135We consider it is permissible to have regard to documents associated with an award provision under consideration (see Short v FW Hercus at 518) in order to elucidate the purpose of the provision (see Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 248 CLR 378 at [70] per Crennan and Bell JJ). We have not had regard to the 1993 agreement, the 2010 letter of Mr Eldridge, the 1997 Agreement and the agreement before Grayson DP for the purpose of ascertaining the subjective intention of either party or the parties jointly. 136It cannot be doubted that, in our opinion, the extrinsic materials point unequivocally to the purpose of subcl 32.4 of the Award being one of prescribing the order in which "additional work", including the filling of vacant shifts, was to be allocated. The order of priority, according to the subclause, is full-time employees who have declared their availability, then part-time employees if no full-time employees are available, then lastly casual employees if no part-time employees are available. 137The purpose elucidated by the extrinsic material is not inconsistent with the historical development of the relevant award provisions. It is apparent that in 2009 an agreement was reached between the parties to insert subcl 12.7 into the 2009 Award to allow limited use of casuals to cover planned and unplanned absences of part-time bus operators. At the same time, subcl 33.4 of the 2009 Award was varied to allow casuals to be used in the last resort to fill vacant shifts. It would lead to an absurd result to insert subcl 12.7 in the 2009 Award in order to enable the appellant to utilise casual employees in the limited manner described in the subclause and at the same time vary subcl 33.4 to allow for the use of casuals at first instance on a broader scale, including in the circumstances dealt with in subcl 12.7. 138The words of the relevant award provisions are consistent with the purpose we have identified. We consider that subcl 32.3 reflects an intention to have full-time employees record their availability in a book to be called in to undertake "additional duties/voluntary overtime" in circumstances where the need for that overtime only becomes evident "on the day". That is, "on the day" a bus operator rostered to work fails to report for duty. 139In other words, a record book is kept of permanent employees who are willing to be called in to perform additional duties/voluntary overtime where an employee has failed to attend for his or her shift on the day he or she is rostered. In those circumstances, a full-time employee who has indicated his or her availability to fill a vacant shift, is given priority in accordance with the priorities set by subcl 32.4. 140If a full-time employee, regardless of whether they have indicated availability in the record book, is not available (noting that subcl 32.4 only refers to full-time staff and not permanent staff who have signed the record book), then in accordance with subcl 32.4 a part-time employee is offered the shift and if no part-time employee is available, it is offered to a casual employee. We do not consider subcl 32.4 allows casuals to be utilised in the first instance to fill vacant shifts other than in accordance with subcl 12.7. 141The filling of the vacant shift is to be regarded as falling within the term "additional work" in subcl 32.4. Additional work, however, is not limited to the filling of a shift left vacant because the employee rostered to work the shift does not attend for duty "on the day". "Additional" means "added" or "supplementary". In the context of a clause dealing with voluntary overtime "additional work" is to be construed as work done as voluntary overtime that is in addition to "known work", which is to be rostered: subcl 43.1. Additional work would include, for example, emergency rail work that arises "on the day". 142If it were merely voluntary overtime that was to be performed according to an order of priority then there would be no need to refer to the work as "additional work" in subcl 32.4. The subclause would simply read, "Should voluntary overtime be allocated...." 143The exception to additional work being voluntary overtime is casuals. Where a casual employee is called upon to perform "additional work" in accordance with subcl 32.4 the casual will be employed by the day for no less than three hours and no more that nine and paid an hourly rate of pay (see cl 12). It would not be expected that in the ordinary course a casual employee would be called in to perform the additional work as voluntary overtime. 144We note that the focus of the appellant's case on appeal in relation to the use of casuals was whether the Award permitted the use of casuals to fill vacant shifts. The RTBU's contention, however, accepted by the primary judge, was that "additional work" encompassed all voluntary overtime. Indeed, according to the primary judge's determination at [145], the appellant's proposed reform initiatives "to utilise casual bus drivers to cover all absenteeism (caused by sickness, workers compensation, unapproved leave, resignation, retirement, or additional shifts" (sic) was not permitted by the Award, and in particular, was contrary to cl 32.4 of the Award. 145We consider the primary judge erred in determining that the utilisation of casual bus drivers to cover all absenteeism including resignation or retirement was not permitted by the Award. The provision is directed to short term absences that require the working of voluntary overtime to fill any shifts left vacant by the absence. Where there is a short term absence requiring the working of voluntary overtime to fill shifts left vacant by the absence, subcl 32.4 precludes casuals being used in the first instance. However, where there is a long-term absence or a resignation or retirement requiring a replacement employee to be rostered on to fill shifts that would otherwise be vacant, then subcl 32.4 does not apply because it would not involve "additional work" to be worked as voluntary overtime.

[24]

Disposition of the appeal 150There was an issue raised by the appellant regarding the jurisdiction of the primary judge to make the determinations that he did. The appellant submitted: In arbitration proceedings, the Commission's powers are set out in s 136(1) of the Act. The Commission does have a general power to make a 'determination' under s 136. It is true that the Commission has the power to determine any question concerning the interpretation, application or operation of any relevant law or instrument under s 175 of the Act. However, s 175 is not a general power to grant declaratory relief. That power is conferred on the Industrial Court as a superior court of record under s 154(1) of the Act. The appellant invited the respondent to request for the Commission to be reconstituted and make an application under s 154(1). The respondent elected not to do so. Section 175 is an auxiliary power to enable the Commission to determine questions of interpretation or application of a relevant law or instrument in the course of exercising another function conferred on it under the Act e.g. whether the relevant power is constitutionally valid (Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd, Re [2007] NSWIRComm 50 [21]); the Commission's jurisdiction to hear and determine a claim (Fish v Solution 6 Holdings Limited (2006) 225 CLR 180 [163]); or the interpretation of an award in connection with making a recommendation or direction (Rail Corporation New South Wales and Australian Rail Tram and Bus Industry Union, New South Wales [2008] NSWIRComm 101 [87]). However, s 175 cannot be used as a de facto power given to the Commission to make binding determinations on the proper interpretation or applications of industrial instruments or industrial laws. In the present case, if the Commission determined that the Award did or did not allow the appellant to introduce the proposals, then it could have made a recommendation or a direction to that effect under s 136(1)(a) of the Act. However, the Commission did not have the power to make a determination in the nature of a declaration of the parties' legal rights. 151The respondent challenged the appellant's contentions regarding lack of jurisdiction. In supplementary submissions sought by the Full Bench in relation to the jurisdictional issue the appellant submitted: [I]n the event that error is identified in the making of the determinations, the Full Bench has the power to: (a) quash or vary the determinations to correct the errors contained therein; and (b) substitute its own determinations made under s 175(1) as to whether, on the proper interpretation of the Award, the appellant is permitted to introduce part-time broken shifts and the use of casuals to fill vacant shifts. In dealing with the extant industrial disputes, the Full Bench may direct the parties to consider the substituted determinations made on appeal to ascertain whether the industrial disputes have been or can be resolved, and if not, inform the Full Bench of the parties' position within a reasonable time frame. The Full Bench then may decide either to: (a) direct a member of the Commission to take further action under the Act to carry its decision into effect (s 192(1)(b)), such as making a recommendation that the parties comply with the Full Bench's determination (s 136(1)(a)); or (b) refer the matter back to a member of the Commission, with such directions and recommendations as the Full Bench considers appropriate (s 192(1)(c)), to resolve the extant industrial disputes. 152In its supplementary submissions the respondent indicated that what the appellant proposed was broadly acceptable, but that the better course was for the Full Bench to determine the substantive aspects of the appeal by considering to what extent, if at all, the determinations made need to be varied and then remit the matter to a single member for final disposition, including to consider whether recommendation(s) or award variation(s) should be made. 153Section 175 provides that the Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 154The determinations made by the primary judge were within the scope of s 175. In the context of industrial disputes notified to the Commission under s 130 of the IR Act his Honour was requested to determine, inter alia, whether the Award permitted the respondent to implement its reform initiatives in respect of the use of part-time and casual employees. The questions his Honour was required to determine were in connection with an industrial dispute and concerned the application or operation of award provisions. 155His Honour also purported to make determinations under s 136 of the Act. Indeed, the determinations the primary judge made under this section were in precisely the same terms as the determinations he made under s 175. 156Section 136(1) permits the Commission, in arbitration proceedings, to do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). 157The determinations made by the primary judge, purportedly pursuant to s 136, could not be regarded as a recommendation or direction, they did not constitute the making of an award or variation of an award and they were not dispute orders. Section 136(1)(d) provides that the Commission may make any other kind of order it is authorised to make (including an order made on an interim basis). Section 136(1)(d), however, is merely facilitative; it directs the Commission to the relevant express power in the statute under which the order may be made: Police Association v NSW Police (No 3) [2005] NSWIRComm 243; (2005) 144 IR 150. It does not appear to us that the determinations fall under any other express power in the Act other than, of course, s 175. 158Even if power existed under s 136(1) to make the determinations in the decision under appeal (and we query whether the determinations constituted an award or order setting conditions of employment), s 136 is directed at resolving industrial disputes by arbitration. Any award or order made under s 136 may be enforced: see Ch 7 of the IR Act. It remains unclear whether the determinations made by the primary judge will have the effect of resolving the industrial dispute or are enforceable. A determination, for instance, that a proposed course of action is contrary to custom, practice and usage is not in the nature of a recommendation, direction, award or order aimed at resolving an industrial dispute. Nor is it an instrument that on its face is enforceable under the IR Act. The same may be said of a determination that a proposed course of action cannot be unilaterally introduced during the term of the Award. Such a determination would not be the subject of a prosecution for contravention. The prosecution, if any, would be for contravention of the no extra claims clause in the Award. 159 We note further in this respect, the respondent's concession that: Even were the STA to wholly succeed in its attack upon Justice Staff's substantive findings and the orders set aside the dispute will not be resolved; similarly if the STA is not successful then the dispute remains to be resolved, unless the STA accepts that the findings are determinative of the outcome. 160In the result, the "determinations" the primary judge purported to make under s 136 of the Act should be quashed. The industrial disputes about which his Honour purported to arbitrate remain unresolved in the absence of any awards, orders, recommendations or directions under s 136 of the Act. The appropriate course is to remit the disputes to a member of the Commission as allocated by the President for the purpose of resolving any extant industrial dispute in accordance with this decision, including the making of any order, recommendation or award variation pursuant to s 136 of the Act. 161We have also found that the primary judge erred at [145] in making a determination under s 175 in the terms that his Honour did regarding the utilisation of casual bus drivers. We, therefore, propose to quash that determination. If there is any residual issue regarding the utilisation of casuals in light of this decision it could be addressed in the remitter we have proposed to deal with any unresolved dispute. Whilst we consider the primary judge was broadly correct at [146] in making the determination under s 175 that State Transit Authority's proposed reform initiative "to introduce part-time broken shifts" was not permitted by the Award, the most appropriate course, in light of our intention to remit the disputes, is to quash the determination. Again, any residual issue may be addressed in the remitter having regard to our findings on appeal.

State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division

At a glance

Court

Decision date

Before

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Source

Catchwords

Judgment (26 paragraphs)

Parties

Cases Cited (36)