The Australian Workers' Union, New South Wales v New South Wales Technical and Further Education

• 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

Matter Number IRC 2780 of 2000 THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION Application for declaratory relief under section 154 of the Industrial Relations Act 1996 JUDGMENT

1 This is an application for declaratory relief pursuant to s154 of the Industrial Relations Act 1996 ('the Act'). The application was brought by the Australian Workers' Union, New South Wales ('AWU') and supported by the other union party to the Award, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('PSA'). The Technical and Further Education Commission and Department of Education and Training (collectively referred to as 'TAFE') appeared to oppose the declaratory relief sought by the AWU. The Public Employment Office ('PEO') appeared at the hearing, but were granted leave to withdraw from the proceedings after announcing that: 'We have no submission in relation to this. We are not the employer for industrial purposes of the employees who are the subject of this dispute. While this is a sector wide award, there are probably about one or two other employees throughout the public sector that would be considered to be covered by this award so we feel we have not further interest in this matter and seek leave to withdraw.' 2 The application concerns the proper construction of paragraph (viii) Tea Money of clause 11 Overtime of the Crown Employees (Tradesmen's Assistants) Award (1991) 266 IG 785 ('the Award'). The clause provides at p802: '(viii) Tea Money - An employee required to work overtime for one and a half hours or more shall be paid by the employer the amount set in item 25 of Table 2 for a meal and after the completion of each four hours on continuous overtime shall be paid an additional amount set in item 25 for each subsequent meal in addition to his overtime payment but such payment need not be made to employees living in the same locality as their places of work who can reasonably return home for meals.'

3 It was common ground between the parties that there were two competing interpretations of the clause, both of which were operating in practice at TAFE. That position had arisen from historical factors. The majority of workplaces at TAFE operated under the second practice set out below. In the AWU's written submissions they were described as: (i) An employee required to work overtime will be paid tea money after 1 1/2 hours overtime and then again after 4 hours overtime. Example: An employee who works 5 hours overtime starting at 5pm would be paid the first tea money at 6.30pm and the second at 9pm. (ii) An employee required to work overtime will be paid tea money after 1 1/2 hours and then again after another 4 hours overtime. Example: An employee who works 5 hours overtime starting at 5pm would be paid the first tea money at 6.30pm and the second at 10.30pm.'

4 The issue in dispute between the parties was thus summarised as "Is the tea money after 4 hours overtime or after 51/2 hours overtime?' 5 Unsurprisingly perhaps, the unions contended for the first interpretation, which would be the more generous of the two for employees working overtime and TAFE for the second. Reference was made to the history of the Award, and to advice given to TAFE by the Director General of the Premier's Department in May 1997, which supported the construction advanced by the unions. There was no evidence as to what had occurred in the proceedings before the Commission when the Award was made in 1971, or when it was altered to its current form in 1982. It is thus unknown whether the clause resulted from an agreement between the Award parties accepted by the Commission or from an arbitration. Nor were any decisions as to the meaning or operation of the clause referred to. 6 The proper construction of the clause has been an issue between the parties for some time. This application apparently resulted from a suggestion emanating from Harrison DP in dispute proceedings. The Award parties are also presently involved in proceedings before the Commission where the Award is being reviewed in accordance with the provisions of s19 of the Act. It was foreshadowed that the outcome of these proceedings would become relevant in the s19 review and might lead to an application for variation of the Award.

The case for the AWU 7 It was submitted by Mr I Latham of counsel that in construing the words in issue, they had to be given their plain and ordinary meaning. Reference to surrounding circumstances and the purposes for which the provision was intended could be considered, but could not justify a meaning being given to the words which they were not fairly capable of bearing. Even if the view were reached that the words used did not give effect to the intention of the award maker, the Court had no power to attribute anything to the words other than the true meaning. 8 It was also submitted that a proven custom or practice in an industry could be relevant to the interpretation of an award, but nothing of that kind arose here. 9 The plain and ordinary meaning of the words was that: '(i) an employee required to work overtime for one and a half hours or more shall be paid the first tea money (ii) an employee shall be paid a further tea money after the completion of each four hours on continuous overtime (iii) tea money need not be made to employees living in the same locality as their places of work who can reasonably return home for meals.'

10 This construction was submitted to be consistent with the Premier's Department's advice to TAFE in 1997. That approach also accorded with other provision of the Award, for example clause 11(iii) Call backs and 11(xi) Cribs. 11 It was further submitted that the construction advanced for TAFE required the clause to have added to it the word 'thereafter', so that it read: 'an employee required to work overtime for one and a half hours or more shall be paid the amount set in Item 25 of table 2 for a meal [tea money] and thereafter after the completion of each four hours on continuous overtime shall be paid an additional amount set in item 25 for each subsequent meal in addition to his overtime payment but such payment need not be made to employees living in the same locality as their places of work who can reasonable return home for meals.'

12 Ms E Brus of counsel for TAFE submitted that the clause was ambiguous and that its proper interpretation was consistent with the practice of the vast majority of TAFE institutions. The advice of the Premier's Department in 1997 was irrelevant to the construction of the Award, it reflecting but one view as to its proper construction. 13 The construction advanced by TAFE was submitted to be consistent with commonsense and with the crib break provision of the Award. The call back provisions on the other hand provided no assistance at all. 14 While TAFE did not disagree with the description of the second interpretation advanced by the AWU, it was submitted that the proper approach to the construction of the clause would involve the reading of the word 'further' in the clause, so that it read: 'an employee required to work overtime for one and a half hours or more shall be paid the amount set in Item 25 of table 2 for a meal [tea money] and after the completion of each further four hours on continuous overtime shall be paid an additional amount set in item 25 for each subsequent meal in addition to his overtime payment but such payment need not be made to employees living in the same locality as their places of work who can reasonable return home for meals.'

Consideration 15 The approach to be adopted to the construction of awards was discussed by the majority of the Full Court in Bryce v Apperley (1998) 82 IR 448, particularly at pp452 to 454. That approach requires that if the words used are capable, in their ordinary sense, of an unambiguous meaning, then it is not permissible to look further, unless it can be demonstrated that the effect was unintended. The true meaning of the award has to be ascertained from the actual words used, according to their plain, ordinary English meaning. That must be so even if the view is reached that the words used did not give effect to the intention of the award maker. On the other hand, the circumstances in which the award was made and the purposes for which it was intended are not irrelevant, but cannot justify a meaning which the words are not fairly capable of bearing. 16 Here, of course, what the drafter's intention might have been is unknown, there being no evidence led as to that matter. 17 An immediate difficulty flowing from the construction urged for TAFE was that it required the clause to be read as if it contained a word which does not therein appear - either 'thereafter' or 'further'. That approach was one rejected by the majority in Apperley, but accepted by Marks J, who took the view that to do so would "allow the award to operate in a manner which is fair and just to both employers and employees alike."(at p458). The majority rejected that approach, observing at p454: 'Whilst it may, we think, be undoubted that an industrial award is made to prescribe just and reasonable wages for work done, how and in what form that purpose is to be achieved is a matter for the award-making tribunal according to a value judgment of the competing merits. Where, as here, an award is made by consent of the parties the position is even clearer. Of course, if a particular provision be found in practice to be some way unfair or inappropriate then the award is capable of being varied or re-made. Thus, the claimed unacceptable and absurd results, a description we do not adopt and prefer to categorise as allegedly unfair or inappropriate by one party, may be avoided by an award variation. But, in our view, not by a judicial construction of the Awards which would affect the meaning of the plain, ordinary meaning of the words used so as to disturb retrospectively the rights and liabilities of the parties.'

18 In Apperley the judgment of the High Court in Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 was referred to. In that case the High Court was prepared to read words into the section there in question in order to avoid a drafting oversight and to achieve a result consistent with Parliament's manifest intention. This was done in order to avoid the result of the literal meaning of the words being applied - described by various members of the High Court as 'incongruous' or 'capricious and irrational.' It has been a view long held that "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of a clear necessity it is a wrong thing to do." Thompson v Goold & Co [1910] AC 409 at 420. 19 The interpretation of awards is, of course, not to be approached in exactly the same way as the interpretation of statutes. In Apperley reference was made to the approach discussed by Street J, as he then was, in GEO A Bond & Co Ltd (In Liq) v McKenzie [1929] AR (NSW) 498 at 503-4: 'Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.'

20 That approach, however, envisaged that the parties' general intention be gleaned from the award as a whole. It cannot provide a basis for departure from the meaning of words which have not been used in any technical sense or in the context of the customs and working conditions of a particular industry. Again, there was no evidence from which such considerations could be said to arise in this case. 21 Thus it is that the meaning of the clause must be ascertained from the words used themselves in the context of the Award as a whole. The clause in question here appears in the Overtime provision of the Award. The Award provides for a 38 hour week, to be worked on either a day (clause 2 Hours - Day Workers), or shift work (clause 12 Shift work), basis. Special provision as to working hours of TAFE employees is made in clause 3 Hours - Department of Technical and Further Education. 22 The Award thus envisages that overtime may be worked at any time of the day and on any day of the week. Clause 11, Overtime, deals with call backs and crib breaks, as well as tea money. The call back provision provides for a payment of a minimum of 4 hours work and, in the event that the employee works for more than 4 hours "he shall be paid a meal allowance set in item 25 of Table 2, and allowed a crib time of 20 minutes without deduction of pay at the end of each four hours' work provided work is to continue after the said period of four hours." 23 This provision throws little light on the proper construction of the tea money clause. The length of crib breaks and the time they are taken when working on a call back are entirely different to that applying to other overtime work. 24 It might be thought that Clause 11 (xi) Cribs would provide some assistance. It does not. It provides '(a) An employee who is required to work overtime for two hours or more after the normal ceasing time shall be allowed, at the expiration of the said two hours, 30 minutes for a meal or crib and thereafter a similar time allowance after every four hours of overtime worked. Time for meals or crib through overtime periods shall be allowed without loss of pay; provided that overtime work continues after such break. For the purposes of this paragraph "normal ceasing time" is at the end of ordinary hours inclusive of time worked for accrual purposes as prescribed in clause 2, Hours - Day Workers and 12, Shift Work, of this award.

(b) Where overtime is worked on a Saturday, if work continues after 12 noon, a break for a meal of 30 minutes shall be allowed between 12 noon and 1.00 p.m. which meal break shall be taken without loss of pay.'

25 It follows that whatever the proper construction of the tea money provision is, payment of tea money and the taking of crib breaks do not coincide, except during call backs. Tea money is payable after 1½ hours overtime and then, under the competing constructions, either after a further 2½ hours overtime (ie 4 hours in total) or a further 4 hours overtime (5½ hours in total). Paid crib breaks of 30 minutes however fall after 2 hours overtime and then after a further 4 hours, being 6 hours in total. 26 Until the Award was varied in 1982, the tea money clause provided for payment after 2 hours overtime and then "after the completion of each four hours on continuous overtime ...". It follows that the wording then utilised was not relevantly different to that now under consideration, although payment of tea money and the taking of a crib break after the first 2 hours overtime coincided. There was, however, no evidence from which it could be inferred that the two existing practices in relation to payment of tea money did not exist in 1982. Nor can it be inferred from this Award history, that the two clauses had a relationship up to 1982. Indeed, given the alteration to the Award then made, perhaps the opposite inference is more readily drawn - namely that there was no correlation intended under the Award before 1982 between the payment of tea money after the first two hours overtime and the taking of crib breaks, which was displaced by the alteration then made to the tea money provision in the Award. 27 The advice given by the Premier's Department in 1997 as to the proper construction of the clause also throws but little light on the matter. The Award is not confined in its operation to TAFE. The Area, Incidence and Duration clause, (25), provides that the Award applies to 'all male employees of the classes specified in clause 4, Wages, of this award employed in departments to which the Public Service Act 1979 applies. It shall not apply to the N.S.W. Government Engineering and Ship Building Undertaking, Newcastle, or to those employed by the said Department in Broken Hill.' The Award nowadays does not seem to apply to many employees outside TAFE. Whether the position was different in the past is not known. What the correspondence suggests is that outside TAFE the construction of the clause was consistent with that advanced by the AWU. Nevertheless, even within TAFE the AWU construction is applied, albeit in a minority of workplaces. 28 It follows, as I earlier noted, that there is little guidance to be found as to the proper interpretation of this clause, other than in the words themselves. In my view, the words are not ambiguous on their face and do not require the words 'thereafter' or 'further' to be read, in order to avoid an incongruous or capricious or irrational result, at odds with the obvious intention of the Award. In those circumstances, I can see no warrant for a departure from the ordinary English meaning of the words, with the result that the interpretation favoured by the AWU must be accepted. 29 It follows that on the example advanced, tea money would be payable under this Award after 1½ hours overtime, then after a further 2½ hours, or 4 hours in total and then after each further 4 hours' overtime. 30 That this result might not achieve a fair or reasonable regulation of this condition of employment under current circumstances, plainly the notion underpinning the submissions advanced for TAFE, is not a matter which here arises for consideration by the Court. That is a matter for the parties to consider and, if necessary, for the Commission to determine, in an appropriate application.

Orders 31 The parties asked for the opportunity to agree on orders to be made to reflect the judgment given in this matter. I acquiesced to that request. Accordingly, the parties are directed to file the consent orders within 14 days of this judgment. ------------------------

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