The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales

Court of Appeal (NSW)|2014-11-07|Before: Basten JA, Ward JA, Rothman J, Boland AJ

Background 48The PSA initially notified the Industrial Relations Commission of a dispute involving members of the PSA engaged as casual correctional officers employed by CSNSW. Specifically, the notice alleged that four casual correctional officers, who had been engaged to work 16 hours during a 22 hour period, had not been paid in accordance with the Conditions Award. There was, therefore, a real and not theoretical question raised by the PSA and one which it, as an industrial organisation registered under the Industrial Relations Act, had an interest to raise. 49An application for declaratory relief was filed in the Industrial Relations Commission on 19 April 2013. The declarations sought by the PSA were that: 1.Any casual correctional officer who performs work in excess of a single shift on the roster (including the working of a second shift on the roster) within: (a)a daily roster pattern established for correctional officers; and/or (b)any 24 hour period; is entitled to be paid overtime rates for such work under clause 12.4.1 of the [Conditions Award]. 2.Any casual correctional officer who works one shift within: (a)a daily roster pattern established for correctional officers; and/or (b)any 24 hour period; is, after the completion of such work, entitled to either: (i)a rest break of eight (8) hours prior to the resumption of work; or (ii)where the casual correctional officer is authorised to resume work within either eight (8) hours [sic], the payment of overtime rates of pay from the time of such resumption of work until release from duty, and in addition the provision of a rest break of eight (8) hours prior to any further resumption of work with payment for any ordinary working hours occurring during this rest break; under clause 90.5 of the [Conditions Award]. 50The terms of the declaration sought in 1(a) did little, if anything, more than repeat the words of cl 12.4.1(c). Hence, the perceived utility of such a declaration is by no means clear. 51The PSA contended that CSNSW was in breach of both the Conditions Award and of the Crown Employees (Correctional Officers, Department of Attorney General and Justice - Corrective Services NSW) Award in relation to the non-payment of overtime rates of pay for casual correctional officers working two non-consecutive shifts within a 24 hour period or daily roster cycle. The PSA further submits that CSNSW did not apply the rest break provisions of cl 90 of the Conditions Award. 52The application for declaratory relief was opposed by CSNSW.

Award provisions 53Basten JA has set out in his reasons the text of cl 12.4 of the Conditions Award and has referred to other relevant Award Conditions. I do not repeat that here.

Primary judgment 54Boland AJ summarised (at [10]) the relevant principles of award interpretation and (at [11] to [27]) the evidence that had been put before the Industrial Court. That evidence included two statements tendered by the PSA: one from a senior correctional officer who had performed the duties of roster clerk at Lithgow Correctional Centre from in or around January 2006 until in or around August 2009, and the other from a senior industrial officer with the PSA assigned by the executive of the association to represent the Prison Officers Vocational Branch. 55The PSA also tendered a document entitled "Custodial Staff Scheduling Principles and Procedures 2012" ("Scheduling Principles"). 56Clause 2.1 of the Scheduling Principles provides that members of staff who work full time and who work eight hour shifts will have a 28 day schedule comprising, inter alia, eight work schedule principles set out in cl 2.1.3, some of which, again, are set out in Basten JA's reasons (at [14]). The fifth principle set out in cl 2.1.3 is that the E, A, D or C shifts not precede B shifts; the sixth is that the C shifts not precede E or A shifts. 57Following the list of principles in cl 2.1.3 is a diagrammatic representation of how the shift classes were to cover a 24 hour period, commencing with the B shift. 58The classification of shifts as A, B, C, D or E shifts was explained by Mr Glenn Thorsby, the Manager, Scheduling Services of Corrective Services NSW since February 2009 and, since February 2013, the Director of its Operations Scheduling Unit. Mr Thorsby, who was cross-examined in the proceedings, deposed (at [18]) amongst other things that: working shifts are mostly for eight hours duration and are structured to cover 24/7 operations; eight hour shift starting times fall within certain bands (as set out by Basten J at [14]); the B (night) shift starts between 2200 hours and midnight and is regarded as the first shift of the day as the majority of the shift is in the early morning; and the general shift pattern for correctional centres is B shift followed by A shift then C shift. 59A bundle of documents was tendered by the Secretary showing recorded hours worked by certain casual correctional officers over the period from 1 January 2010 to 28 June 2013. It was highlighted to indicate those officers who had worked with less than an eight hour break between shifts in the relevant period. 60At [30]-[31], Boland AJ summarised the PSA's complaint in relation to the daily roster pattern issue as being that casual correctional officers were not being paid overtime rates where they worked more than one shift in a 24 hour period. One example there given was that of an officer who worked a day (A) shift from 0600 to 1400 hours and then returned to work (on the same calendar day) a night (B) shift commencing at 2200 hours. Another example was given of an officer working a night (B) shift from 2200 to 0600 hours and then returning to work (8 hours later) for an afternoon (C) shift from 1400 to 2200 hours. 61The second part of the complaint was as to alleged non-compliance with cl 90.5.2 of the Conditions Award, which entitles a staff member who continues or resumes work without having had eight consecutive hours off duty to payment of overtime rates until released from duty. Under that clause the staff member is then entitled to have eight hours off duty to be paid for the ordinary work time occurring during that absence. 62At [32], his Honour noted what he described as a concession by counsel for CSNSW in the course of the proceedings that, having regard to cl 12.4.1(c) of the Conditions Award, the relevant daily roster pattern was an eight hour shift within the pattern of B, A, C shifts. (CSNSW cavils with the description of this as a concession, pointing to the evidence of Mr Thorsby to that very effect.) His Honour went on to note a further concession by counsel that this meant that if a casual had worked beyond eight hours on a particular shift, that employee would be entitled to be paid overtime from the completion of the eighth hour and that this requirement had not been observed. His Honour stated (at [33]) that it was also conceded that where a casual correctional officer worked a B shift (from 2200 to 0600 hours) and returned to work at 1400 hours to work a C shift (from 1400 to 2200 hours), there would be two eight hour shifts worked within the same daily roster pattern and that in those circumstances the second of those shifts should attract payment at overtime rates. 63His Honour noted at [36] that the relevant clause (cl 12.4.1(c)) referred to overtime for work performed in excess of the daily roster pattern applicable "for the particular class of work" and that the particular class of work in this case was the work of correctional officers. There is no dispute as to this conclusion. Nor is there any dispute that the clause directs attention to the daily roster pattern for non-casual employees (there being no daily roster for casual employees). 64His Honour further noted that the daily roster pattern was not established by the Conditions Award and the term was not defined in the Act. Again, that is accepted by the parties. His Honour said (at [36]): "Rather, the Scheduling Principles and Procedures document applying to Custodial Staff... appears to dictate how shift rosters are to be constructed and worked. There was no other source in the evidence from which a daily roster pattern for casual correctional officers could be derived." 65His Honour noted (at [37]) that CSNSW's position, relying on the Scheduling Principles and Mr Thorsby's evidence, was that the daily roster pattern was to be determined on the basis that the daily roster commenced with the B shift and that B, E or A shifts were not to follow C shifts, otherwise overtime is payable. CSNSW further contended that the fifth principle in cl 2.1.3 of the Scheduling Principles (namely, that E, A, D or C shifts not precede B shifts) did not apply. 66His Honour considered that it made little sense that where an A shift was followed within the same 24 hour period by a B shift overtime should not be payable ([38]) and considered that the intention of the Scheduling Principles was that only one eight hour shift was to be worked in each 24 hour period otherwise overtime was payable. His Honour concluded that rosters, and therefore the daily roster pattern, were to be formulated in accordance with the principles in cl 2.1.3 of the Scheduling Principles and that, by virtue of the fact that cl 12.4.1(c) of the Conditions Award required regard to be had to the daily roster pattern applicable "for the particular class of work" (emphasis as per his Honour at [40]) and given that casual employees are not subject to a daily roster pattern, those principles applied to casual correctional officers. His Honour rejected the construction advanced by CSNSW that the daily roster pattern meant only the 24 hour period following the commencement of the B shift ([42]). 67His Honour noted (at [43]) that one of the principles to be applied in scheduling work was that only one eight hour duty shift was to be worked per day and said that this must mean a period of 24 hours. Support for the notion that "day" meant a 24 hour period was drawn from the definition of "daily rate" or "rate per day" in cl 3.12 of the Conditions Award ([45]). His Honour considered that this principle reflected a general standard that continued to apply to a large part of the labour force, that is, eight ordinary hours of work in every 24 with any work in excess to be paid at overtime rates ([43]). 68His Honour considered that the principle of one eight hour shift to be worked per day was inconsistent with CSNSW's view that if a casual correctional officer worked an A shift preceding a B shift, totalling 16 hours' work in a 24 hour period, the officer would not receive overtime for the second shift; yet a full-time officer would receive overtime in that scenario ([44]). 69His Honour concluded (at [46]) that a casual correctional officer who performs work in excess of a rostered single shift (including the working of a second shift on the roster) within any 24 hour period was entitled to be paid overtime rates for such work under cl 12.4.1 and that a casual correctional officer was not to work more than nine consecutive hours in any 24 hour period (exclusive of meal breaks) without the payment of overtime for such time in excess of nine hours. His Honour did not accept that cl 90.5 applied to casual correctional officers for the reasons set out at [47]-[48]. 70On that basis, his Honour granted declarations in the form set out earlier.

Grounds of appeal 71Twelve grounds of appeal were articulated in the draft notice of appeal. These grounds appear to be a mix of submissions (paras 1, 2, 5, 6 and 11), appeal grounds (paras 3, 4 and 7-10) and a general plea for the Court to fashion any other grounds of appeal or relief (para 12). 72In essence, however, the dispute is as to the correctness of his Honour's conclusion that "daily roster pattern" in clause 12.4.1(c) is to be determined by reference to the daily pattern that his Honour considered emerged from an application of the work schedule principles that are applicable to the construction of a 28 day roster for full-time correctional officers pursuant to clause 2.1.3 of the Scheduling Principles.

Leave to appeal 73Leave to appeal was opposed by the PSA on the basis that the decision of the Industrial Court was limited in its application to casual correctional officers working within CSNSW. It asserted that the decision has no broader implications and that the case involves only a confined question in relation to the interpretation of an industrial instrument. 74CSNSW maintained that leave was appropriate as the matter raised an issue of principle as to the proper construction of the Conditions Award and had potential ramifications in relation to claimed under-payment of overtime beyond the particular casual correctional officers the subject of the initial dispute. 75Leave to appeal was granted at the commencement of the concurrent hearing. The appeal raises issues of principle in the construction of an award that may have consequences beyond the particular overtime claims that apparently led to the proceedings. Moreover it became apparent during the course of argument that both parties accept that if the first declaration made by his Honour were to stand it would have consequences which neither party contended would follow from a proper construction of the Conditions Award, namely, that if a casual correctional officer commenced a B shift at 0000 hours one calendar day and at 2200 hours that same calendar day, overtime would be payable. Leave to appeal was therefore clearly appropriate.

Application to adduce further evidence 76CSNSW sought, by notice of motion filed prior to the hearing of the appeal, to adduce as further evidence a second affidavit of Mr Thorsby. 77The basis on which this application was put was that the further evidence was necessary to explain the consequences that would follow if the orders made by Boland AJ were to stand; in particular, that it would create serious anomalies relating to different entitlements to overtime pay for casual as opposed to full-time correctional officers. 78In the said affidavit, Mr Thorsby attested, among other things, to the fact that the Scheduling Principles contained rules for the development of the forward planned 28 day rosters for full-time correctional officers only and did not determine the actual daily roster pattern for full-time correctional officers. He explained that the principles were not applied to casual correctional officers as those officers were engaged to work on an as required basis and were not included in the development of the forward planned 28 day roster. 79Annexed to Mr Thorsby's affidavit was a further copy of the Scheduling Principles that had been in evidence before Boland AJ, as well as a spreadsheet that also had been before Boland AJ but was now highlighted to indicate those casual correctional officers who had performed shifts with less than a 16 hour break over the relevant period. 80Any inconvenience or anomalies that may result from the operation of his Honour's orders (unless pointing to the absurdity of a particular construction) are not to the point. What was required by the primary judge and is now required on determination of the appeal is a construction of the expression "in excess of the daily roster pattern applicable to a particular class of work" in cl 12.4.1(c) of the Conditions Award. 81Leave was not granted for the further evidence to be adduced, though the Court indicated that if it became relevant in the course of argument, then the application could be renewed. The spreadsheet material sought to be relied upon had been before the Court below and the import of the portions now highlighted was properly a matter for submission not evidence. It was indicated that those spreadsheets could be treated as aides-memoire, though ultimately no reference need be made to them.

Proper construction of cl 12.4.1(c) 82Although the grounds of appeal contend that his Honour erred in construing the clause in various respects, ultimately the compass of the dispute between the parties was relatively narrow. 83The PSA accepts that the first of the declarations made by his Honour was not in the terms that it had sought, nor did it reflect what either party had contended for, in that it imposes a requirement for a 16 hour break in any rolling 24 hour period. The PSA concedes that the declaration is inconsistent with what it accepts involves no overtime entitlement, namely that a casual officer could work a particular shift (say an A (day) shift) commencing at any time between the range for that category of shift followed the next calendar day by that same category of shift without there being any entitlement to overtime under the Conditions Award (T 22.24). The PSA also concedes that the second declaration is otiose once the first is made. 84It was accepted by both parties that the particular class of work in this case is that relating to the provision of correctional services and that cl 12.4.1(c) relevantly directs attention to the daily roster pattern for non-casual (whether permanent or temporary) correctional officers. It was also accepted that the question as to what is the said "daily roster pattern" (at any particular time or from time to time) is a question of fact. 85As to the meaning of "day", CSNSW contends that his Honour erred in having reference to cl 3.12 of the Conditions Award (the definition of "daily rate" or "rate per day") and standard practice in the workforce when determining that the "daily" pattern was to be viewed over a 24 hour rolling period. 86The fundamental point of distinction between the parties is that CSNSW maintains that the "daily roster pattern" applicable when considering the entitlement of casual correctional officers to overtime under cl 12.4.1(c) is that which was established by Mr Thorsby's evidence and also taking into account cl 87.11 of the Conditions Award: namely, one eight hour shift per day in a B, A, C shift configuration commencing with the B shift. Where a B shift commences between 2200 hours and midnight, being before what would normally be regarded as the beginning of the calendar day, CSNSW maintains that the B shift is to be taken to commence on the next calendar day when determining the daily roster pattern. 87The PSA submits that the application of the Scheduling Principles results in a roster pattern, on any particular day, for non-casual employees and argues that the obvious intention of the Conditions Award is that casual employees are entitled to overtime if working in excess of that daily roster pattern, i.e., in excess of the manner in which non-casual employees would work. 88CSNSW maintains that, even if it is assumed that the rules set out in the Scheduling Principles for preparing the 28 day full time correctional officers' roster are applicable and, at any given time, have been correctly applied, those Scheduling Principles will not establish a "daily" roster pattern. In essence this is because reference to the work schedule principles in cl 2.1.3 of the Scheduling Principles necessarily requires focus on more than one calendar day (when applying the fifth and sixth principles for example). 89CSNSW appears to accept that, on any particular day, the application of the Scheduling Principles will reveal a pattern of shifts but says that, as between one calendar day and the next, there is no discernible pattern other than a requirement for an eight hour break between shifts. Its submission is that to impose the fifth, sixth and seventh principles set out in cl 2.1.3 of the Scheduling Principles is in effect to import a four-weekly roster pattern rather than a daily roster pattern when determining overtime entitlements for casual correctional officers. 90The practical difference between the two constructions emerged during the course of argument, as being: whether the "daily roster pattern" for the purposes set out in cl 12.4.1(c) requires that an A, E, D or C shift not precede a B shift and that a C shift not precede an E or A shift (i.e., the fifth and sixth principles) such that a casual correctional officer is entitled to overtime if required to work shifts contrary to that pattern. 91The PSA does not contend that overtime is payable if a casual correctional officer works a B shift followed as his or her next shift by another B shift (or an A shift following an earlier A shift) even if there are less than 16 hours between the two shifts due to differential starting times for the respective shifts. Its contention is that overtime is payable if an A (day) shift precedes a B (night) shift or a C (afternoon) shift precedes an A (day shift) even though those shifts fall on consecutive calendar days. It contends that the daily pattern includes that the employee would not, before they worked the B shift, have worked an A or C shift on a preceding day (T 39.39), the intention being that they be entitled to overtime if they work outside the arrangements that would apply to a non-casual employee doing the particular class of work that casual employee is engaged to perform. 92Thus the two scenarios where an entitlement to overtime is disputed are, first, where a C (afternoon) shift is worked on one calendar day and an A (day) shift is worked on the next calendar day, and, second, where an A (day) shift is worked on one calendar day followed by a B (night) shift (whether that B shift commenced at 2200 on that same calendar day or at midnight, i.e., on the commencement of the next calendar day). 93"Pattern" imports the notion of a design or structure. Clearly, the expression "daily roster pattern" requires that, when determining whether a casual employee is entitled to overtime on a particular occasion that he or she works, regard is to be had to what, at that time, is the "pattern" or configuration of the roster for non-casual correctional services officers looked at on a daily basis. What the roster is from day to day may of course differ (and there may be anomalies where officers swap particular shifts) but the expression "daily roster pattern" contemplates a "pattern" for the "daily" rostering of work by non-casual correctional officers. 94The evidence from which a conclusion can be drawn as to what, as a matter of fact, the daily roster pattern was for present purposes (i.e., at the time or over the period relevant to this dispute) includes not only Mr Thorsby's evidence as to the long-standing common practice for rostered shifts but also the Scheduling Principles. 95There might potentially be a different pattern for daily work depending on whether one looks at the daily work rosters over a week or a month or some other period, but what that issue really demonstrates is that when one looks for a pattern emerging from roster schedules that cover more than one day's work, a different pattern may be revealed by reference to how each day's shifts are structured by reference to what has happened the day before or what is rostered to happen the day after. This, in my opinion, is the force of CSNSW's complaint as to reliance on a 28 day roster. 96The PSA's argument, insofar as it focuses on the fifth and sixth principles, requires regard to be had to a two (or more) day consecutive pattern: i.e., to determine that a B shift will not be preceded by an A or C on what (logically) is the day preceding the day of the B shift. 97I agree with Basten JA that his Honour did not err in having regard to the Scheduling Principles. The application of the Scheduling Principles (assuming they are followed correctly) must logically produce a pattern as to how each particular day's shifts are configured. Where I differ from Basten JA is that I consider that the pattern produced by the Scheduling Principles is one that involves a temporal configuration. The pattern commences with the "B" shift and generally follows the order B, A, C (with some variation if there is an E or D shift). That configuration takes as the first shift of the day the "B" shift (as per the diagrammatic representation referred to earlier). This pattern is consistent with Mr Thorsby's evidence in the Industrial Court proceedings as to the current and long standing practice when scheduling work rosters over a 28 day period. 98That has two consequences. It means, first, that the requirement for 28 day rostering purposes, that a B shift not be preceded by an A or C shift (i.e., the fifth principle) is not relevantly part of the "daily" roster pattern since the B shift is the first of the day and logically cannot be preceded by an A or C shift that day; and, second, that a C shift one day might be followed by an A shift the next calendar day without triggering an entitlement to overtime. 99No daily roster complying with the B, A, C shift general configuration could, logically, breach the fifth, sixth or seventh principles (since those principles require attention to be had to the preceding day's roster).

Relief 100For the reasons given by Basten JA (at [11]-[12]) the orders made by his Honour should be set aside. I agree with both Basten and Rothman JJA (for the reasons they give at [35]-[38] and [112]-[113]; [156]-[157], respectively) that no declaration should be made in place of the declarations that are to be set aside. 101ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of both Basten JA and Ward JA. Those reasons for judgment allow me to be more brief than otherwise would be appropriate.

Jurisdiction of Industrial Court 102The Industrial Court in the judgment below dealt with an application by the Union (the Respondent) for declarations under s 154(1) of the Industrial Relations Act 1996. The Respondent had previously filed a notification of dispute (s 130 of the Industrial Relations Act) (formally a Reference of Question, Dispute or Difficulty) pursuant to s 132(1). The Dictionary defines an "industrial dispute" to include a "question or difficulty" about an "industrial matter", which itself is defined in well-known and much litigated terms (s 6 of the Industrial Relations Act). 103The jurisdiction to resolve (or otherwise determine or deal with) an industrial dispute is reposed in the Industrial Relations Commission (the Commission) (see ss 145 and 146(1)(b) of the Industrial Relations Act), whereas the jurisdiction to issue declarations under s 154 is reposed in the Industrial Court (see s 153(1)(b) of the Act). The name of the Commission in Court Session, a term utilised in s 153 of the Act, is now the Industrial Court (s 151A of the Act). 104The underlying disagreement between the Respondent and Appellant relates to a different view of the manner in which the Crown Employees (Public Service Conditions of Employment) Award 2009 (the Conditions Award) operates. A difference of that kind is "a question" or "difficulty" and therefore a "dispute" as to the privileges, rights, duties or obligations of employers and employees (see s 6(1) of the Industrial Relations Act and the definition of "industrial dispute" in the Dictionary to the Industrial Relations Act). Such a dispute enlivens the award making power (see s 11 of the Industrial Relations Act). 105In predecessors of the current Industrial Relations Act, the interpretation of an award was expressly included as an "industrial matter" in the equivalent of the current definition in s 6 of the Act and the term "question, dispute or difficulty" has been authoritatively determined to be a wide term that would embrace a difference in the interpretation or application of an award: see New South Wales Teachers' Federation v Public Service Board [1968] AR (NSW) 507 at 517 and generally. The distinction between an arbitral and judicial process in the interpretation of industrial instruments has long caused tension: see Re Brack; Ex parte Operative Painters and Decorators Union of Australia (1984) 58 ALJR 125. The ability to vary the Conditions Award to operate from the date of the Notification of Dispute is probably the reason the dispute was notified before the interpretation was finalised (see s 15(3) of the Industrial Relations Act). 106The Notification of Dispute does not fully reflect the terms of the declarations sought. Rather, the Notification of Dispute refers to the non-payment of overtime for a shift worked by a casual employee who had worked a previous shift less than 8-hours before the commencement of the latter shift. 107In the application before the Industrial Court no particular employee's circumstances were examined to determine an entitlement to overtime. Instead, the Respondent sought general declarations, which the parties seem to have assumed would resolve the meaning or interpretation of the term "daily roster pattern" divorced from the right of any particular employee or group of employees. The declaration of the Industrial Court makes that clear.

Application before Industrial Court 108The Respondent sought the following declarations:

First declaration: "Any casual correctional officer who performs work in excess of a single shift on the roster (including the working of a second shift on the roster) within: (a)a daily roster pattern established for correctional officers; and/or (b)any 24 hour period; is entitled to be paid overtime rates for such work under clause 12.4.1 of the Crown Employees (Public Services Conditions of Employment) Reviewed Award 2009 ("Conditions Award")."

Second declaration: "Any casual correctional officer who works one shift within: (a)a daily roster pattern established for correctional officers; and/or (b)any 24 hour period; is, after the completion of such work, entitled to either: (i)a rest break of eight (8) hours prior to the resumption of work; or (ii)where the casual correctional officer is authorised to resume work within either eight (8) hours, the payment of overtime rates of pay from the time of such resumption of work until release from duty, and in addition the provision of a rest break of eight (8) hours prior to any further resumption of work with payment for any ordinary working hours occurring during this rest break; under clause 90.5 of the Conditions Award." 109As recited in the other reasons for judgment, the Industrial Court's declaration commenced with the qualification "Under clause 12.4.1" and "Under clause 12.2.3 and 12.4.1" respectively. As a consequence, the declarations in the Industrial Court were declarations (albeit in error) as to the operation of particular clauses without regard to the operation of any other clause, any contractual provision and any circumstance arising, which were extraneous to the provisions of the specified clauses. As such, the "declarations" issued by the Industrial Court are not "declarations of right" specifying the right of a particular employee or group of employees and involving consequential obligations. 110Yet such a declaration, issued without regard to the rights of any particular employee, is binding on the parties and on all courts lower in the judicial hierarchy. It may have the effect of declaring a circumstance that would render the Appellant (or the State of NSW) liable for civil penalties (see s 357 of the Act) even though circumstances negating, qualifying or augmenting the "right" under the clause have not been considered. 111Of itself, that effect would undermine the wisdom of issuing declarations. Where those declarations are sought in the absence of facts relating to a particular employee or group of employees, I have serious doubt whether that which was sought was, in reality, judicial advice rather than a justiciable controversy. 112Whether or not the issue before the Industrial Court was "judicial", it was an exercise that sought not the declaration of a right or obligation, but the interpretation of an award in the absence of properly evidenced prior factual bases. Moreover, the declaration issued by the Industrial Court was one that declared a fact; not a right (see s 154 of the Industrial Relations Act; cf s 75 of the Supreme Court Act). The declarations confine any "right" to the operation of Clause 12.2 and 12.4 without expressing any determination of the overall right or obligation of either the Appellant or Respondent. 113I add, lest it be thought that the foregoing is a criticism of the Industrial Court (which it is not), that no party objected to the process undertaken on the basis outlined. However, the circumstances outlined above are such that, even if the jurisdiction of the Industrial Court were to extend so far, as a matter of discretion, I would entertain serious concerns about issuing declarations of the kind sought or made in the current circumstances.

Errors Below and Grant of Leave 114I turn then to a more detailed analysis of the appeal and declarations under appeal. I agree with Basten and Ward JJA that the orders issued disclose error. Such a finding reflects the position on appeal of each of the parties. 115There is no requirement under the Conditions Award and no current pattern of rosters that requires a 16-hour break in order to avoid the payment of overtime. The declarations the Industrial Court issued reflect an attempt to overcome the problem raised by the Appellant about the starting time of the first shift of a day, but insufficiently caters for the variations in starting times for the same shift on different days. 116It is appropriate, notwithstanding the detail to which Basten and Ward JJA have each gone, to recite some facts necessary to understand the analysis on which I now embark. The analysis of Basten JA on the question of leave to appeal (and the discretion available in cases other than those described by s 403B(2) of the Industrial Relations Act) is, with respect, adopted. So too is his Honour's analysis of the principles applicable to the grant of leave to adduce further evidence.

Interpretation of Conditions Award: Preliminary Facts 117While the evidence before the Industrial Court provided details of shifts worked by some casual employees (and provided the Scheduling Principles by which rosters were determined for non-casual staff), the schedules do not provide information as to whether, if a second shift in a particular day were worked, overtime was paid or whether it was the result of a request by the employee for the swapping of shifts. In other words, the material before the Industrial Court (and necessarily before the Court) does not provide sufficient detail to determine whether, in accordance with the Conditions Award, whatever be the construction of the terms in issue, there was an entitlement to overtime. 118As has been stated by each of Basten and Ward JJA, Corrective Services allocated a roster to its non-casual employees on the basis of implementing the Scheduling Principles, to which reference has been made. Clause 87 of the Conditions Award applies to casual employees and, notwithstanding a tension in the wording, requires overtime to be paid for any work performed on an "ordinary rostered shift" that commences less than 8 consecutive hours after the "ordinary rostered shift that the employee last worked". 119The tension is caused by the requirement in cl 87.11 to provide a minimum break of eight consecutive hours between ordinary rostered shifts and the provision in cl 87.12 that assumes the requirement to provide such a minimum break may be breached, in which case overtime shall be paid. 120The overall effect of reading cl 87.11 and 87.12 to achieve harmonious goals is that if an ordinary rostered shift commences less than 8 hours after the cessation of a worker's previous ordinary rostered shift, overtime will be paid for all hours worked until that worker has received 8 consecutive hours off duty. 121The provisions of cl 87.11 and 87.12 may have an impact on the determination by Corrective Services of any particular roster or shift arrangement, but the effect is a separate prescription in relation to the payment of overtime than the prescription with which the application before the Industrial Court was immediately concerned and different from any entitlement under cl 12.2 or cl 12.4 of the Conditions Award. 122The terms of cl 12.4.1 have been recited in the reasons for judgment of Basten and Ward JJA. It is unnecessary to deal with paragraph (a), (b), or (e). There is no suggestion in these proceedings that any of the foregoing has a relevance to the declaration sought by the Respondent. As a consequence, the declaration depends upon the proper construction of cl 12.4.1(c) and the limitations imposed by the term "daily roster pattern". 123Before embarking upon an analysis of the proper construction of that term, it is necessary to reiterate that the Conditions Award applies beyond Corrective Services. Thus, insofar as it is intended to deal with shift work, it applies to five day shift workers, six or seven day shift workers and continuous or non-continuous shift workers (amongst others). 124Thus, hypothetically, the Conditions Award applies to security officers in various State facilities, some of whom may need to work six days per week and others of whom may be required (depending upon the opening hours of the facility and the need for security) five days per week. Others may be required to work seven days per week, but not 24 hours per day. 125For obvious reasons, Corrective Service Officers are required to be rostered in a way which covers 24 hours per day, seven days per week. But even though the Scheduling Principles were applicable when the Conditions Award was last made, those Scheduling Principles cannot inform the interpretation of this clause because it operates far more broadly than Corrective Services. 126As a consequence, the necessary shift patterns across the public service, governed by cl 12.4.1 of the Conditions Award, will depend upon the circumstances of employment. As I understand the Appellant's submission, with the exception of a concession relating to the necessity for an 8-hour break between shifts, all that is required as a result of cl 12.4.1(c) is that the casual employee cannot be required to work a shift (without the payment of overtime) that does not accord with a shift usually worked by non-casual employees in the same classification.

Interpretation of the Conditions Award 127The Appellant's submission is that, again apart from a restriction relating to the necessity for an 8-hour break, as long as a casual is working hours that coincide with a standard shift that may be allocated to non-casual employees, there is no requirement for overtime. 128Two general propositions should be reiterated. First, as earlier stated, a person may be a shift worker even though only 8-hours' work per day is performed for the employer: see In re Iron & Steel Works Employees (Australian Iron & Steel Ltd - Port Kembla) Award [1957] AR (NSW) 429. In that sense, if persons are employed on five days per week and the employer requires the 8-hours per day to be worked each day (i.e. for seven days) such that employees are rostered to work five out of the seven days in any one week, all such employees are shift workers. 129Secondly, there is a difference between a "roster pattern" and a "shift pattern". The latter distinction seems not to have been considered by either party in its submissions. If the clause were to mean that for which the Appellant contends, it would have been very easy for the Conditions Award to have required overtime in excess (or different from) daily shift patterns. The term utilised in cl 12.4.1(c) is "daily roster pattern". The "daily roster pattern" is the pattern of shifts worked by non-casual employees; not that pattern of shifts available to be worked. 130I agree with each of Basten and Ward JJA in the conclusion that a "daily roster pattern" will, as a matter of necessity and logic, reflect the Scheduling Principles, at least to the extent that the employer abides by the Scheduling Principles when formulating the roster. The difference, it seems, between the conclusion reached by Basten JA and that reached by Ward JA relates to the significance of the use of the word "daily" in cl 12.4.1(c) of the Conditions Award. 131Underpinning the analysis of the term "day" in the submissions of the parties before the Court (and in the reasons for judgment of Basten and Ward JJA) is that a shift falls on the day on which the majority of the hours of the shift fall, or, as Basten JA has described it, that "substantially" falls on a particular day. 132The evidence before the Court (and the Industrial Court below) is that Corrective Services' rosters are such that the first shift of the day is the B shift, which commences at midnight and may commence up to two hours earlier than midnight. The second major shift of the day is the A shift, which commences between 6am and 8am. The third major shift of the day is the C shift, which commences between 2pm and 4pm. 133As a consequence, within Corrective Services, the shift pattern is B, A, C, each of a duration that involves 8 hours' work. There are minor overlapping shifts with which, for present purposes, it is unnecessary to deal. Notwithstanding the shift pattern described immediately above, the "daily roster pattern" is less simply stated. 134The other complication in the construction of the term "daily roster pattern" is the use of a very different term in paragraph 12.4.1(d) of the Conditions Award, being the term "standard weekly roster of hours". 135If the daily roster pattern were such that it included every limitation on a daily roster pattern that derived from work that occurred on other days in the week (or month) to which the roster applies, the provisions of cl 12.4.1(d) would be otiose. For example, the Scheduling Principles, fully implemented, provide for the number of hours per 4 week period and the inability to work more than 10 consecutive days and preferably to be allocated less than 7 consecutive days. 136An application of the Scheduling Principles would mean that no employee could ever be rostered for more than the standard weekly roster of hours. 137In my view, the terms of paragraphs 12.4.1(c) and 12.4.1(d) serve the purposes of providing minimum work conditions for casual employees, consistent with non-casual employees, but otherwise allowing as much flexibility to the employer as is possible within that constraint. 138Paragraph 12.4.1(d) would, on that basis, require overtime to be paid in circumstances where ordinarily the standard rostered hours are five 8-hour shifts and a casual employee is rostered for six (or more) 8-hour shifts. Each of those shifts may fit within "the daily roster pattern", but the number of hours worked for that particular class of work would then be "in excess of the standard weekly roster of hours". 139Thus, paragraph 12.4.1(d) is directed at a very different subject than the terms of paragraph 12.4.1(c) of the Conditions Award. However, if the limitations on the working of rosters deriving from other days' rosters applied to limit the "daily roster pattern", then each clause would deal with overlapping and possibly inconsistent regimes and there would be no need for cl 12.4.1(d) of the Conditions Award: see also cl 87.9 of the Conditions Award. 140As earlier stated, and on the other hand, the "daily roster pattern" is a different concept, in my view, from the "daily shift pattern". In that sense the "daily roster pattern" involves the pattern of shifts worked by a non-casual employee on any day. 141Ascertaining the pattern of shifts worked requires, assuming compliance with the Scheduling Principles has been maintained, a determination of the pattern of shift work on any day. That involves an application of the Scheduling Principles to the extent that they apply to any particular day. 142In those circumstances, the Scheduling Principles require that only one shift would be rostered for an employee, on any day. Restrictions imposed on the rostering of an employee because of the shifts worked on the preceding day are not relevant to ascertaining "the daily roster pattern" applicable to the class of work, being Corrective Service Officers. 143The provisions of cl 87 operate independently of the restrictions imposed by cl 12.4.1 of the Conditions Award, and the requirement for an 8 hour break in order to avoid overtime is not a restriction that derives from the provisions of cl 12.4.1 of the Conditions Award.

Conclusion 144The application before the Industrial Court sought two declarations, recited above. The first declaration deals with a casual Corrective Service Officer performing work in excess of a single shift in two circumstances. Neither of those circumstances apply; nor can the question posed logically be answered or the declaration sought issued. 145The first of those declarations applies to circumstances where a casual Corrective Service Officer performs work in excess of a single shift on the roster within a "daily roster pattern". This declaration, if it were to issue, would merely restate the difficulty associated with the proper construction of cl 12.4.1(c) and ought not be the subject of declaration. 146The second alternative in the first declaration sought is that overtime be paid for a second shift "in any 24-hour period". On the conclusion I have reached (and as I understand it on the conclusion of each of Basten and Ward JJA), there is no such entitlement. This is one of the errors in the judgment below. 147The second declaration sought has even greater problems. A proper construction of cl 87 of the Conditions Award does not require a rest break. It requires the payment of overtime if a rest break were not provided. 148The terms of the second declaration sought again repeat the term "daily roster pattern" without defining it or construing it, thereby making any declaration meaningless. The terms of the second declaration sought also elide the distinction between authorisation to resume work and direction to resume work: see Scheduling Principles cl 6.7. 149Nothing has been put to the Court, and nothing was put to the Industrial Court, as to the circumstances relating to the payment of overtime if a casual employee were to "swap shifts". Such a shift-swap would fall within the definition of "authorised" but not within the definition of "directed". 150The Court, in my view, is not in a position to determine whether authorisation to work is sufficient to give rise to the payment of overtime. 151Lastly, dealing with the construction of cl 12.4.1(c) of the Conditions Award, which was the major issue between the parties, an application of the Scheduling Principles and a determination of the "daily roster pattern" as a consequence thereof involves the conclusion that a casual employee may not be required to work more than one 8-hour shift on any day, without the payment of overtime for the second shift (or additional hours). That is the only condition in the Scheduling Principles that limits the Appellant's capacity to roster casuals for work on any particular day. 152The provisions of cl 87 of the Conditions Award operate independently and, in addition to the foregoing, would limit the capacity to direct the working of a shift without the payment for overtime in circumstances where there has not been the minimum 8-hour continuous break required by that clause. 153The following circumstances pertain to non-casual employees. The ordinary shift is 8 hours of working time with an additional period of a minimum of 30 minutes and a maximum one hour for a meal break after no more than 5 hours' work. There is an overlap between the finishing time of one shift and the commencement time of the next (equivalent to the period of the meal break). 154The consequence of that overlap is that the duration of an "8-hour shift" is a minimum of 8.5 hours. In order to avoid overtime, the next shift would need to commence more than 8 hours later, which, unless the shift commencement times were altered, would mean that the effect of the construction of clause 12 preferred by Ward JA is the same as the effect of the construction preferred by Basten JA. 155In other words, while I prefer the construction of the clause that does not impose restrictions on ordinary working time that derive from a previous day's work, given that a minimum 8 hours' break is required and the duration of a shift of 8 hours' work is more than 8.5 hours, the result is the same. 156For the reasons already given, in my view, the issue between the parties is not one appropriate for declarations. The issue between the parties is, in truth, what should apply, not what does apply. The resolution of that dispute is a matter for the Commission; not the Industrial Court. 157Further, the declaration would bind any subsequent proceeding relating to penalties, even though detailed evidence as to the working of shifts and reasons for the working of shifts for any particular employee is not before the Court and was not before the Industrial Court. 158For the foregoing reasons, in my view, a declaration is inappropriate. For the reasons already given in these reasons for judgment, and also given in the reasons for judgment of Basten and Ward JJA, there is error in the declarations made by the Industrial Court and, in my view, the appropriate order of this Court should have the effect of setting aside the order below and, without more, dismissing the application.

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. Decision last updated: 19 December 2014

Leave to appeal 2An appeal to this Court from a decision of the Industrial Commission in Court Session (other than by the Minister), requires a grant of leave to appeal: Industrial Relations Act 1996 (NSW), s 403A and s 403B(1). Where satisfied that the matter is "of such importance that, in the public interest, leave should be granted", the Court is to grant leave to appeal: s 403B(2). There is no express statement that in the absence of such a public interest, leave is not to be granted and no such restriction should be implied: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 at 421. In the absence of a compelling public interest, the Court has a discretionary power to grant leave to appeal, which should be exercised generally in accordance with established principles, as recently summarised in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39], bearing in mind the special nature of the jurisdiction exercised by the Industrial Court under the Industrial Relations Act. 3The jurisdiction of the Industrial Court to make a declaration as to the operation of the relevant industrial award was invoked by the respondent, pursuant to the Industrial Relations Act, s 154. This Court indicated in the course of the hearing that there would be a grant of leave and the appeal proceeded on that basis. Leave was appropriate, if not required, based on two considerations. First, both the respondent Union and the Secretary were concerned with the consequences of the orders made by the Industrial Court, both for a significant number of casual correctional officers and, potentially, for others employed in the public sector to whom the relevant award may apply. Secondly, neither party was fully satisfied with the terms of the declarations made in the Industrial Court.

Construction of award 22No submissions were directed to the proper approach to be adopted by this Court as to the construction of the award. In Geo A Bond & Co Ltd (In liq) v McKenzie [1929] AR(NSW) 498, Street J said at 503: "...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 ... from an agreement between the 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." 23This passage was quoted with approval by French J in City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379. 24A similar approach has been adopted with respect to industrial agreements. Thus in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2] Gleeson CJ and McHugh J noted that "[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation [the subject of the agreement]." Context is not unimportant in the present case. 25It may readily be accepted that casual employment is used on a flexible and irregular basis; however, where work is undertaken on two or more consecutive days one would expect that, in calculating overtime payments, some rules would apply which would take account of hours worked on the previous day, as with permanent employees. The fact that casual employees are not the subject of a 28-day roster (or any other regular roster of work hours) does not render this conclusion "bizarre", as submitted by the Secretary. 26The Secretary submitted that the only relevant additional rule was that which required that a shift worker have eight consecutive hours off duty between "ordinary rostered shifts": Conditions Award, cl 87.11. No doubt that condition applies: it is difficult to see why, if that were the only relevant condition, par (c) would not have said so, rather than using the more complex language discussed above, which does not expressly refer to the eight hours minimum downtime. The scheduling principles incorporated (or at least were not inconsistent with) that precondition. The condition also reveals that a "rostered shift" is one which an officer is directed to work. 27The system for rostering casual correctional officers was described by Mr Glenn Thorsby, a manager with the Department of Corrective Services, in an affidavit dated 2 August 2013. That affidavit explained that casual employees had a degree of control over the days they worked, the locations at which they wished to be offered work and the shifts for which they might be available. Importantly, in allocating work, the Department operated on a weekly schedule. According to Mr Thorsby, a person who had worked 30 hours per week would not receive further offers (par 12); offers are "sorted via hours worked in a weekly period" (par 15), and offers are made to those who have "worked the least amount of hours in a particular week" (par 15). 28Mr Thorsby further gave evidence that working shifts "are mostly for 8 hours duration" with starting times within the bands noted above: par 18. He stated that "[t]he general shift pattern for correctional centres is B shift followed by A shift then C shift." 29The Secretary sought to argue that the term "daily rostering pattern" referred only to the last statement set out above from Mr Thorsby's evidence concerning the "general shift pattern" for each day. However, that said nothing about the period between shifts which should elapse before overtime rates applied. By itself, that principle cannot properly be described as revealing the "daily roster pattern" for correctional officers: it provided the temporal structure within which rostering occurred. 30The parties accepted that the scheduling principles were in operation at the time the award was adopted: thus the award (in the application to casual correctional officers) can be interpreted against the background of that scheme. It follows that rostering of casual correctional officers was expected to be carried out having regard to a weekly period. (One may infer that, emergencies aside, such a scheme would be an essential element of management practices.) That inevitably requires that account is taken of principles covering shifts allocated on consecutive days. 31There are a number of propositions which identify the meaning of the term "daily roster pattern" in its application to casual correctional officers. First, there is a question of construction involved because cl 12.4.1 is a prescriptive statement as to the conditions under which a casual employee is entitled to overtime. It is not a purely descriptive statement. By way of illustration, a well-established "pattern" may exist whereby permanent officers are rostered to do a double shift with overtime every Friday. That could be described as a "daily roster pattern" which, when applied to casuals, would have the effect of disentitling them to overtime with respect to double shifts on Fridays (though perhaps not on other days). Such a reading of the clause would be purely descriptive and would fail to give effect to the prescriptive purpose. 32Secondly, the phrase "daily roster pattern" does not refer to a specific day, although it might be expected to be capable of applying differentially between ordinary working days and holidays and across different systems of rostering. Indeed, the existence of a "daily ... pattern" assumes consideration of events which take place over several days. As part of an industrial award, it should also be understood to be premised on the assumption that a pattern will be discernible in advance of an officer being rostered. Nor will it be a pattern discernible only to the Department with access to computer records as to past rostering events. 33Thirdly, the existence of a "daily" pattern does not exclude the possibility (or even the likelihood) that the criteria by which the pattern exists may include circumstances which precede the day in question. The fact that permanent officers are rostered by reference to such criteria does not prevent the rostering system involving a "daily roster pattern". Indeed, the contrary would give rise to the bizarre conclusion that, disregarding par (d), a casual officer could be rostered every day, continuously without a break, because a pattern which is said to be discernible without reference to other days must be one which ignores the fact that the officer has worked for five previous days (or 35 previous days) consecutively. 34In my view, the term "daily roster pattern" in cl 12.4.1(c) of the Conditions Award, in relation to casual correctional officers, presently refers, in accordance the scheduling principles, cl 2.1.3 "Work Schedule Principles", to a day involving (a) one 8 hour duty shift per day; (b) E, A, D or C shifts not preceding B shifts; (c) C shifts not preceding E or A shifts; and (d) E shifts not following D shifts. The term "day" here refers to a civil day commencing at midnight or at such time as the B shift which falls substantially within that day commences, being a time not more than two hours before midnight. (This is a simplified version of the scheduling principles.)

Relief 35The declarations made in the Industrial Court referred to the rights of "casual correctional officers" in terms of a present entitlement to be paid overtime and an obligation not to work more than nine consecutive hours without payment of overtime. In that form, the orders may properly be understood as declarations of right within s 154 of the Industrial Relations Act. However, appearances may be misleading. There is some degree of uncertainty as to whether the orders were expressed in a continuous present tense, meaning that they have application both to the past and the future. If that were so (as seems likely), there may be other considerations which arise from time to time which would affect the legal entitlement of particular officers. Indeed, that may be true even in respect of the officers whose hours were listed in the materials before the Court. 36A declaration of right is a form of final relief; if there are outstanding circumstances unresolved between the beneficiaries of the declaration and the party bound by it, a declaration may be inappropriate: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [128] (Gummow and Hayne JJ). However, in representative proceedings, it may be appropriate to make a declaration as to the rights of members of a class who prove that they fall within the class, the parameters of which are defined, even though it is in a sense an "interim" or interlocutory declaration: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis) at [19-140]. In the present case, it is by no means clear that all the class defining parameters have been identified; in that circumstance, the Court should decline to make a declaration. 37There may be other considerations, although, by themselves, they do not warrant refusal to grant declaratory relief. The fact that a Union may seek a variation of an award when in doubt as to its operation is not to deny it the right to enforce the award according to its terms. Self-evidently, the latter course may have benefits for individual members which could not be guaranteed by the seeking of a variation. A member who is entitled to receive an overtime payment for work already completed is entitled to pursue his or her claim in court. There is no suggestion that the respondent Union is not entitled to pursue the claims on their behalf. The success or failure of such claims will depend upon the proper construction of the statute. It is clear that the issue is neither moot nor is it being pursued by a party without standing. It is in the interest of affected members of the Union and in the public interest (as it affects the obligations of the government in relation to correctional officers) to have the issue resolved. The Court would be derelict in its duty if it declined to grant the relief properly sought by the parties, absent some sound discretionary basis for refusing relief. 38It may be that the course taken in the present case was better characterised as an attempt to have the Industrial Court deal with the construction of the award as a separate question in proceedings brought to enforce the award on behalf of particular officers. However, the matter was not presented in that way and it is not appropriate now to deal with it as if it were a proceeding seeking an answer to a separate question, which has not been properly identified.

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