FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Ulan Coal Mines Ltd
[2009] FCA 326

Workplace Relations Act 1996 (Cth)

Ulan Coal Mines Ltd Underground Certified Agreement 2003

ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325, 127 FCR 1, cited

Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10, 222 CLR 241, applied

Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208, cited

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039, 155 IR 211, cited

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515, 168 IR 353, cited

Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187, 156 FCR 380, cited

Kucks v CSR Ltd (1996) 66 IR 182, cited

Master Builders’ Association of Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1981) 54 FLR 358, cited

McAleer v University of Western Australia (No 3) [2008] FCA 1490, 171 FCR 499, cited

Short v F W Hercus Pty Ltd (1993) 40 FCR 511, cited

Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954, cited

Transadelaide v Leddy (No 2) (1998) 80 IR 265, cited

United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84, 152 FCR 18, discussed

Western Newspapers Pty Limited v Warren (1994) 56 IR 340, cited

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v ULAN COAL MINES LTD (ACN 000 189 248)

NSD 1684 of 2008

FLICK J

14 April 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1684 of 2008

ON APPEAL FROM THE CHIEF INDUSTRIAL MAGISTRATE’S COURT OF NEW SOUTH WALES

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Appellant

AND:

ULAN COAL MINES LTD (ACN 000 189 248)

Respondent

JUDGE:	FLICK J
DATE OF ORDER:	14 April 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Appeal be dismissed.

2. The Notice of Contention be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1684 of 2008

ON APPEAL FROM THE CHIEF INDUSTRIAL MAGISTRATE’S COURT OF NEW SOUTH WALES

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Appellant

AND:

ULAN COAL MINES LTD (ACN 000 189 248)

Respondent

JUDGE:	FLICK J
DATE:	14 April 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an Appeal from a decision of the Chief Industrial Magistrate’s Court of New South Wales. Section 381 of the Industrial Relations Act 1996 (NSW) provides for the appointment of Industrial Magistrates and a Chief Industrial Magistrate. Section 382(1) identifies the jurisdiction that may be conferred and s 382(2) provides that when exercising that jurisdiction the “Chief Industrial Magistrate or other Industrial Magistrate constitutes a Local Court when exercising that jurisdiction”.

2 In addition to the jurisdiction conferred by s 382 of the 1966 Act, s 177A of the Workplace Relations Act 1996 (Cth) (“the 1996 Act”), as in force at the relevant period, defined a “court of competent jurisdiction” as including a magistrate’s court and in Western Newspapers Pty Limited v Warren (1994) 56 IR 340 at 346 it was concluded that the Chief Industrial Magistrate’s Court of New South Wales was a court of competent jurisdiction for the purposes of s 178. Section 178 conferred jurisdiction to impose a penalty. As noted by Moore J in Warren, the source of the Commonwealth Parliament’s power to confer federal jurisdiction on a state court is to be found in s 77(iii) of the Constitution: (1994) 56 IR at 345.

3 The present Appeal originated on 22 February 2006 when two proceedings were commenced in the Chief Industrial Magistrate’s Court. In one proceeding the Applicant Union sought (inter alia) an order that $2,164.80 plus interest be paid to a member of the Union, Mr Colin Haidle, increasing to a claim for $4,649.37 plus interest at trial. In the second proceeding the Applicant Union sought an order that $10,170.45 plus interest be paid to another union member, Mr John Hodge, increasing to a claim for $16,915.25 plus interest at trial. In addition, in both proceedings the imposition of a penalty was sought.

4 The entitlement to be paid those monies depended upon the construction of a series of three agreements made under the Workplace Relations Act 1996 (Cth). The first of these agreements was the Ulan Coal Mines Ltd Underground Mine Certified Agreement 1998; the second being the Ulan Coal Mines Ltd Underground Certified Agreement 2001–2002; and the current agreement being the Ulan Coal Mines Ltd Underground Certified Agreement 2003. The provision of each agreement upon which the claimed entitlement to monies was founded, clause 12, was in relevantly identical terms. That clause provided for payment and rates of payment on weekends and holidays.

5 The Appellant Union advanced a construction of clause 12 (specifically clause 12(e)(2) as it was in the 2003 Agreement) which would entitle all employees to be paid at the rate specified in that clause if they are “not required to work” on a public holiday. The Respondent would confine the operation of that clause to those employees who are otherwise rostered to work on a public holiday but “not required to work”. The qualification sought to be placed upon clause 12 by the Respondent is said by the Appellant Union to be an unnecessary gloss upon the words of clause 12 which is not warranted by the clause whether construed according to its terms, in the broader context of the Agreement as a whole or by reference to the industrial context out of which it emerged.

6 The evidence before the Chief Industrial Magistrate comprised an Agreed Statement of Facts, a number of witness statements and Affidavits and some cross-examination. The evidence of the Appellant Union as to clause 12 was in part that “there was no mention of public holidays during the negotiation of the 2003 Agreement at all. It was the intention of the union negotiators that the existing provision in the 2001 Agreement in relation to public holidays was to be replicated in the 2003 Agreement”. Clause 12 and its predecessors had previously not been construed in the manner now being advanced by the Appellant. The question as to a possible entitlement to be paid in that manner emerged only in June 2005 when a memorandum to “Underground Employees” stated in part as follows:

NON WORKING DAYS – “Night & Afternoon” Shifts

When a public holiday falls on a non-working day. Monday (for Night Shift) and Friday (for Afternoon Shift), you do not receive the day before or after as time off in lieu for that Public Holiday. You also do not receive payment for a Public Holiday that falls on a Non Working Day.

That apparently was the impetus to revisit clause 12 and to revisit the entitlement said to be due to the employees.

7 In a decision handed down on 3 October 2008 the Chief Industrial Magistrate concluded that:

(i) he could not “be satisfied that … a specific underpayment occurred in relation to either Mr Hodge or Mr Haidle by way of a failure to pay wages payable pursuant to Clause 12 of the Certified Agreement”;

(ii) “… the inadequacies in the Applicant’s evidence going to quantification, do not have the effect of placing these proceedings outside the jurisdiction of this Court”; and

(iii) “the normal and ordinary meaning” of the words “not required to work” in clause 12 referred to an employee rostered to work but not otherwise required to work.

8 A Notice of Appeal was filed in this Court by the Appellant Union on 24 October 2008. Now before the Court are:

(i) an Amended Notice of Appeal dated 28 November 2008 which seeks to question the construction given to clause 12(e)(2); and

(ii) a Notice of Contention dated 17 November 2008, that Notice seeking to both:

(a) challenge the conclusion of the Chief Industrial Magistrate as to his jurisdiction; and

(b) challenge the conclusion of the Chief Industrial Magistrate to the extent that it was concluded that “the ongoing operation” of clause 12 “was of no assistance to determining the proper construction of the clause”.

Now in issue is, accordingly, whether the Chief Industrial Magistrate erred in concluding that he had jurisdiction (or retained jurisdiction) and whether he erred in his construction of clause 12.

Jurisdiction

9 The Respondent’s Notice of Contention sought to contend (inter alia) that the Chief Industrial Magistrate erred in finding that “the inadequacies of the Appellant’s evidence below did not have the effect of placing the proceedings outside the jurisdiction of the Court below”. The Notice of Contention identified paragraph [13] of the reasons for decision now under appeal as the passage in which the error occurs.

10 It was appropriate that the challenge to jurisdiction be raised by a Notice of Contention as envisaged by Order 52 r 22(3) of the Federal Court Rules 1979 (Cth).That Rule provides as follows:

If the respondent proposes to contend that the judgment should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the judgment, the respondent need not file a notice of cross‑appeal, but must:

(a) file a notice of the respondent’s contention within 21 days after the service upon the respondent of the notice of appeal, or within such further time as the Court or a Judge fixes; and

(aa) serve a copy of the notice on the appellant; and

(b) give notice to the appellant of the record of evidence or documents before the court below relating to the contention, for inclusion in the appellant’s draft index of appeal papers; and

(c) at the appointment to settle the appeal papers, request the Registrar to include the record of evidence or documents in the appeal papers.

Consistent with that rule, the Respondent wished to have the decision of the Chief Industrial Magistrate “affirmed” and did not seek a “discharge or variation” of such part of the judgment under appeal as embraced the construction of clause 12 which it successfully advanced at first instance. As noted by Branson J in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187, 156 FCR 380 (French J, as His Honour then was, agreeing):

[76] As the terms of O 52 r 22(3) make clear, the purpose of a notice of contention is to place the appellant and the Court on notice that the respondent contends that the judgment below (ie the orders made below) can be supported on grounds other than those which the court below relied on when pronouncing the judgment. That is, that even if a ground of appeal is made out, it may not lead to the order the subject of the appeal being set aside or varied. The filing of a notice of contention is not a mechanism for challenging any order made below or for challenging the failure of the court below to make an order to which a party below claimed to be entitled.

11 The importance of resolving the Notice of Contention was considerably reduced, however, when Senior Counsel on behalf of the Respondent accepted that the Appellant could – by one means or another – have the question as to the proper construction of the Agreements now resolved by this Court. Whether that means was by way of an application being made under the provision identified by Senior Counsel as s 413A of the 1996 Act and returnable instanter, or by treating the present Notice of Appeal as such an application, it was properly accepted by Senior Counsel were questions which could be left to one side. However the question as to the jurisdiction of Chief Industrial Magistrate’s Court was resolved, both the Appellant and the Respondent wanted the Court to go on and resolve the construction of the Agreements.

12 But Senior Counsel also maintained that the question as to jurisdiction of the Chief Industrial Magistrate’s Court remained an important question which needed to be addressed and resolved.

13 The Appellant Union, being the Applicant before the Chief Industrial Magistrate’s Court in both of the two proceedings, does not dispute that the Chief Industrial Magistrate’s Court would not have had jurisdiction to interpret the certified agreements in a manner which was final and conclusive and binding on those who are bound by the Agreements. It is their position that the jurisdiction of that Court was properly attracted at the outset because the relief claimed was a claim for underpayment of wages and a claim for the imposition of penalties — and necessarily involved in the resolution of those claims was the necessity to interpret the Agreements. It was further understood to be their position that the jurisdiction of that Court, having been properly invoked, was not thereafter lost by reason of the inadequacies in the evidence and the findings as made in paragraph [13].

14 The present Respondent asserts that the jurisdiction of the Chief Industrial Magistrate’s Court was only colourably invoked from the outset; it asserts that the claims for underpayment of wages and for penalties were only employed as a cloak to impermissibly seek from the Chief Industrial Magistrate’s Court an interpretation of the agreements. Such an inference, the Respondent maintains, should be drawn from:

· the absence of any substantive evidence as to the quantum of underpayment of wages;

· the absence of any substantive basis upon which penalties could be assessed by the Industrial Magistrate; and

· the manner in which the case before the Industrial Magistrate was opened and subsequently presented.

15 The state of the evidence, the Respondent points out, was a matter which attracted the criticism of the Chief Industrial Magistrate. It was his assessment that the claims for the payment of monies appeared to rely more “on logic rather than evidence”. He recorded his conclusions as follows:

[12] … the case as presented by the Applicant, appears to rely on logic rather than evidence. The stance of the Applicant, essentially, is that the Respondent readily concedes that it interprets Clause 12 in a particular fashion, and that employees, including Mr Hodge and Mr Haidle, were paid, over a period of years, according to that interpretation. The Applicant then submits that if the Court finds that the Respondent’s interpretation of Clause 12 is wrong, there must have been, as a matter of logic, a number of underpayments in respect of public holiday pay. Further, it is submitted that a global approach to the task of calculating such underpayments results in the sums referred to above as the amounts owing to the two men. It is conceded on behalf of the Applicant that these figures may well not be strictly accurate, and no attempt is made by the Applicant to provide a breakdown of the pay periods within which such underpayments are said to have occurred. The submission of the Applicant is that should the Court accept the Applicant’s view of the correct construction of Clause 12 but be unwilling to make final orders based on the global calculations, the appropriate course would be for the matter to be adjourned to permit such further calculations to take place. I take that to be a concession that time and wages records that were not in evidence at the hearing, could be utilised to carry out more precise and detailed calculations.

And, in the passage upon which part of the Notice of Contention focuses, he continued:

[13] In my view, the inadequacies in the Applicant’s evidence going to quantification, do not have the effect of placing these proceedings outside the jurisdiction of this Court. I am satisfied that the Applicant comes to this Court genuinely seeking to seek relief by way of civil penalties in relation to alleged breaches of the industrial instrument, and genuinely seeks to recover alleged underpayments of wages for two of its members. The fact that additional evidence may be required in relation to the formulation of final orders, going to the quantification of such relief by way of restitution, does not of itself have the effect of making the claim for such relief nugatory or convert the proceedings into an application for declaratory relief in the form of an interpretation of the clause simplicita. Such relief would require an appropriate application to be brought before the Federal Court of Australia.

The Chief Industrial Magistrate then proceeded to interpret clause 12 and relevantly concluded:

[21] … I find that the construction urged upon the Court on behalf of the Respondent, is the correct construction, and in those circumstances I do not find that either Mr Hodge or Mr Haidle have been underpaid in relation to Clause 12 of the Agreement …

16 It was common ground on the hearing of the Appeal that the jurisdiction to give a binding interpretation of a certified agreement was conferred upon the Federal Court of Australia — and not the Chief Industrial Magistrate’s Court: Workplace Relations Act 1996 (Cth) s 413A. That section provided as follows:

413A Interpretation of certified agreements

(1) The Court may give an interpretation of a certified agreement on application by:

(a) the Minister; or

(b) an organisation or person bound by the certified agreement; or

(2) The decision of the Court is final and conclusive and is binding on:

(a) the organisations and persons bound by the agreement; and

(b) the employees whose employment is subject to the agreement;

who have been given an opportunity of being heard by the Court.

The term “Court” is defined as meaning the Federal Court of Australia: s 4. Section 413A(1) identified those who may apply to this Court for an interpretation of a certified agreement and s 413A(2) identified those who are bound by that interpretation.

17 The nature of a certified agreement and the means of enforcement, together with the role of this Court conferred by s 413A, has been the subject of analysis by the Full Court in ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325, 127 FCR 1. Whitlam and Gyles JJ there observed:

[34] The argument that the remedies provided by the Act are inadequate to ensure compliance with a certified agreement and that there should be means for enforcing obligations beyond those specifically provided by this statute is contrary to the history of enforcement of industrial obligations, as explained by Madgwick J in Wattyl. The Act has, for some time, reflected the policy of not specifically enforcing industrial obligations, except insofar as express remedies are provided. In any event, the point loses much of its force when consideration is given to ss 131, 170LT and 170LW. This is not the occasion to explore all of the ramifications of those provisions or to decide what role, if any, the courts have to play in enforcement of such provisions. It is sufficient to say that there is no complaint about the operation of the dispute settling mechanism in this case -- it is the result about which complaint is made. There is no need to call in aid the power of a court to make a declaration of right as to the construction of the agreement as that role is expressly dealt with by s 413A of the Act.

[35] … [W]e accept the submission that the Act has created the concept of a certified agreement, has given it statutory force and has also regulated the means by which it may be construed and enforced in accordance with the principle in Josephson v Walker. In our opinion, the statute excludes a court of general jurisdiction of a State or Territory from the field, except insofar as it is expressly included, and is inconsistent with the ability of such a court to make a binding declaration of right as to the effect of a certified agreement. …

See also: McAleer v University of Western Australia (No 3) [2008] FCA 1490, 171 FCR 499 per Siopis J at [76].

18 In the absence of dispute between the parties as to that which could properly be resolved by the Chief Industrial Magistrate and the relief which only this Court could provide, the issue to be resolved was ultimately thus one of characterising the applications being advanced before the Chief Industrial Magistrate.

19 Notwithstanding considerable reservation, it is considered that those claims could best be characterised as claims for the underpayment of wages and for penalties — rather than as applications impermissibly seeking an interpretation of a certified agreement which only this Court can give: cf Master Builders’ Association of Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1981) 54 FLR 358 at 360 to 361 per Evatt and Northrop JJ.

20 As emphasised by Senior Counsel for the Respondent, cause for reservation may be founded upon the very manner in which the case was opened. The Chief Industrial Magistrate asked at the outset:

Are you going to open and tell me what this is about?

After some preliminary matters were mentioned, Counsel on behalf of the now Appellant answered as follows:

Your Honour the matter before the court is one of an interpretation of a certified agreement …

He concluded his brief opening with these words:

So your Honour the matter before you is one of the interpretation for correct construction of an industrial instrument being a certified agreement …

There was only passing reference in the opening to any claim for wages and no reference to penalties.

21 Notwithstanding the manner in which the case may have been opened, however, the applications as filed were expressed in terms of claims for underpayment of wages and penalties. Neither the scarcity of the evidence in support of those claims, nor the manner in which the claims were presented, is sufficient to deny to those claims the character of proceedings which properly fell within the jurisdiction of the Chief Industrial Magistrate’s Court. The scarcity of the evidence presented may well have provided a sufficient basis upon which those claims could possibly have been rejected. Had a different conclusion been reached by the Industrial Magistrate as to the construction of clause 12, it may have been appropriate to extend a further opportunity to the claimant employees to remedy the deficiency in the existing evidence. So much was recognised by the Chief Industrial Magistrate in his reasons for decision. But it was the construction of clause 12 which ultimately proved fatal to the claims being advanced. A further opportunity to supplement the deficiency in the evidence became unnecessary by reason of that construction.

22 It is considered that the Chief Industrial Magistrate’s Court had jurisdiction to entertain the applications being made to it and did not trespass beyond that limited jurisdiction. The decision in those proceedings only resolved the issues as between the parties to those proceedings. Given the apparent importance, however, of obtaining an interpretation of the Agreement in a manner which extended to the benefit of all those bound by the Agreement, it is perhaps surprising (and questionable) that the Appellant Union pursued the forensic course it did — rather than approaching this Court.

23 But, so much of the Notice of Contention as sought to challenge the assumption of jurisdiction by the Chief Industrial Magistrate’s Court, is nevertheless rejected.

The Construction of Clause 12(e)(2)

24 The principal issue dividing the parties remains the correct construction of clause 12(e)(2). Given the agreement of the parties that the terms of each of the three Agreements were relevantly identical, only the terms of the 2003 Agreement need presently be referred to.

25 Clause 12 of the present Agreement is, like clauses in other industrial instruments, to be “understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2], 222 CLR 241 at 246 per Gleeson CJ and McHugh J. Such a provision is to “be read in context” and having regard to “the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it …”: [2005] HCA 10 at [30], 222 CLR at 253 per Gummow, Hayne and Heydon JJ.

26 In the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184:

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. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. …

These observations were cited with approval in Amcor Ltd: [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039, 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515, 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512, 176 IR 183 per Jagot J at [82]. The “words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities”: Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].

27 Adopting this approach, in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84, 152 FCR 18 it was concluded that the term “appeal” as used in a certified agreement did not include a claim for prerogative relief. Nicholson, Jacobson and Lander JJ there reasoned that “(T)he framers could hardly have had in mind that disputes under an agreement which includes matters such as worker safety could be delayed for many years while appeal steps in the Commission are pursued and then followed up by a claim for constitutional writs in the High Court”: at [64]. Their Honours previously observed at [53] that “the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement...”. Reference was there made by the Full Court to the judgment of Burchett J in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 518. His Honour was there considering a clause in a Metal Industry Award and observed (references omitted):

… The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. … Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent’s contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. … That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. …

28 It is against this background that clause 12 is to be interpreted.

29 Clause 12 of the 2003 Agreement in its entirety provides as follows:

12. SATURDAY, SUNDAY AND HOLIDAY WORK

(a) Saturday Work

The rate of pay for all Monday to Friday employees for all Saturday work will be double time. Weekend rostered employees will be paid at the rate of time and one half for the first four hours and double time there after.

(b) Sunday Work

The rate for all Sunday work will be double time.

The recognised holidays will be – New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Queen’s Birthday, Easter Tuesday, Christmas Day and Boxing Day, or any day observed by the public in New South Wales in lieu thereof, together with all other days gazetted from time to time as public holidays which are observed generally by the public in NSW.

(d) Transfer of Recognised Holidays

Agreement may be reached between the Company and the majority of employees affected at the Mine to observe any holiday on a day other than the day prescribed. In such case the day agreed will become the holiday for the purposes of this Agreement and the actual holiday will be an ordinary working day.

(e) Payment

(1) Qualifying. An employee not required to work on a recognised holiday who, without a Doctors Certificate or the express permission of the manager, fails to work on the employee’s last working day immediately before a recognised holiday or the employee’s first working day after such holiday will not be entitled to payment for such holiday.

(2) Employees not required to work. An employee not required to work on a recognised holiday and who qualified will be paid for that day at the employee’s rostered hours at single time.

(3) Employees required to work a Public Holiday will be paid double time for all hours worked up to normal shift length. All hours worked beyond the normal shift length on the public holiday only will be paid at triple the ordinary rate of pay.

(f) Rostered Days Off Falling On A Holiday

Where an RDO falls on a Public Holiday the RDO will be reallocated to another day. Such arrangements will be agreed between the parties.

Also of potential relevance to the interpretation of clause 12 are the following definitions in clause 2, namely:

In this Agreement except where otherwise indicated :

…

2.12 “Non working day” means any day on which an employee by virtue of the employee’s roster is never rostered to attend for rostered hours of work.

2.13 “Rostered day off” means any day on which an employee by virtue of the employee’s roster

is not rostered to attend for rostered hours of work and does not include non working days.

30 The learned Industrial Magistrate construed clause 12(e)(2) as referring to those employees who were rostered to work on a public holiday but who were not required by their employer to work on such a day. In doing so he relevantly concluded as follows:

… In those circumstances, I find that the normal and ordinary meaning to be applied to the words “not required to work” as they appear in Clause 12(e)(2) of the Agreement, to mean that in relation to employees who would otherwise be rostered to perform rostered hours of work on a public holiday, the employer may elect to not require an employee to attend for work in which case they are to be paid at single time pursuant to (e)(2), or the employer may require the employee to attend for work notwithstanding the fact that it is a public holiday, in which case the employee must work but is to receive the additional penalty rates found in (e)(3). In my view, the provisions of Clause (e)(2) and (3) have no work to do and were not intended to provide a benefit to an employee in circumstances where the public holiday falls on a “non-working day” as defined in Clause 2 of the Agreement.

31 Clearly enough, clause 12 is susceptible to competing constructions — those competing constructions arising in large part from the fact that there is no definition within the Agreement as to the phrases “not required to work” or “required to work”.

32 Notwithstanding that difficulty, it is considered that the correct construction of these phrases may be resolved by reference to the objective sought to be achieved by clause 12 construed in the context of the entirety of the Agreement of which it is but a part.

33 The objective of clause 12 is simple enough. It is aimed at prescribing the rates at which employees are to be paid for work on Saturday, Sunday and recognised holidays. Clauses 12(a) and (b) deal with work on Saturday and Sunday; clauses 12(c) to (f) deal with work on a “recognised holiday”. The concern of clause 12 is relevantly twofold — it recognises that a holiday is a day when an employee would ordinarily have the benefit of a day off without loss of pay and, also, the clause recognises that an employee who is required to work on a “recognised holiday” is to receive the payment set forth in clause 12(e)(2).

34 An employee who is not rostered to work on a Saturday or Sunday or a public holiday thus has the benefit of not having to work on any of those days and suffers no loss of pay. An employee who is rostered to work on a “recognised holiday”, but who is not required to work, equally has the benefit of not having to work and receives the payment set forth in clause 12(e)(2). Such an employee suffers no detriment by not being required to work on a day upon which he was rostered to work. An employee who is required to work receives payment at the rate prescribed by clause 12(e)(3). It is not considered to be any part of the function of clause 12 to confer a benefit upon any employee who is not rostered to work on “recognised holiday” and who does not work. To conclude otherwise would be to embrace a conclusion which would confer upon an employee who is not rostered to work on a “recognised holiday” an entitlement to not work on any of those days and also an entitlement to be paid. Such a conclusion, with respect to the Appellant Union, is not consistent with the either the terms of clause 12 itself or the purpose that that clause serves in the Agreement as a whole.

35 Limited support for such a conclusion is also gleaned from clause 12(f). That provision directs attention to those circumstances where a “rostered day off” falls on a day which is otherwise a holiday. Such ambiguity as may arise from a possible difference between a “holiday” and a “Public Holiday” may be left to one side. Although clause 12(c) defines what is to constitute a “Recognised Holiday”, no distinction (it should be noted) was sought to be drawn in submissions as between a “recognised holiday” or a “public holiday”. Having defined that which constitutes a “recognised holiday”, clause 12(d) permits agreement to be reached to identify a day as a holiday in lieu of an actual holiday.

36 The significance of clause 12(f) is that, embraced within the objective sought to be achieved by clause 12, is the objective of ensuring that those employees who have a rostered day off are not to be disadvantaged if that day coincides with a holiday. Such employees are to have their entitlement to a rostered day off allocated to another day. They are not to be disadvantaged by having a rostered day off coincide with a day upon which they would otherwise not be required to work because the day is a designated public holiday.

37 Within the confined context of clause 12, it is thus the case that that clause itself exposes a difference between an employee who is “not required to work” on a recognised holiday and an employee who has a “rostered day off” which falls on a public holiday. If the reference to a requirement to work was not intended by the draftsman to add something to the significance of a rostered day off, clause 12(f) would add little to clause 12(e)(2).

38 This construction of clause 12 confines the objective of clause 12(e)(2) and (3) to identifying the rates at which employees are to be paid in those circumstances where they are rostered to work and where they are either “not required to work” or “required to work”. It was no part of the objective of clause 12 to confer any additional benefit to payment on employees who were not rostered to work on a “recognised holiday”.

39 Clause 12 – like other provisions of the Agreement – evinces an intention to not deny an employee the benefit they would be entitled to receive but for the occurrence of a “Public Holiday”. Clause 12 thus ensures that an employee whose rostered day off coincides with a “Public Holiday …will be reallocated … another day”: clause 12(f). A similar drafting intent is evident in clause 16(g). Clause 16 deals with “Annual leave” and clause 16(g) provides as follows:

Recognised Holiday Falling During Period Of Leave

If a recognised holiday falls within an employee’s annual leave and is observed on a day which ordinarily would have been a working day for that employee, there will be credited to the employee one day, being an ordinary working day paid at ordinary rates, for each such recognised holiday.

Again the drafting intent is to direct attention to the consequences of a recognised holiday coinciding with a day upon which an employee is otherwise entitled to a day off and to ensure that the employee is credited with another day in lieu. The same comment may be made in relation to clause 15(e), being a clause in relation to the coincidence of holidays during the period of an employee’s “long service leave”.

40 There is no evident intent to confer any such benefit upon an employee not rostered to work — such as would be the effect of accepting the alternative construction being urged by the Appellant Union.

41 Clause 12 is thus to be construed as relevantly achieving two objectives, namely:

· to prescribe the rate of pay where an employee is rostered to perform work on a “recognised holiday” and in fact “required to work” on that day; and

· to ensure that an employee does not lose “having a day off” where his rostered day off coincides with a public holiday.

Clause 12(e)(2) is not to be construed as conferring an entitlement upon all employees, including employees who were otherwise not rostered to work.

42 This construction of clause 12 is not only considered to be supported by the terms of clause 12 itself and by the use of the same terminology as used elsewhere in the Agreement, it is also considered to be a construction which gives effect to the Agreement.

43 To so construe clause 12 is not considered to be impermissibly approaching the construction of the clause or the Agreement “to give effect to some anteriorly derived notion of what would be fair”.

44 In further support for this construction of clause 12, the Respondent also relied upon the evolution of the Agreements and the manner in which they had been negotiated.

45 It was to this subject matter that the second part of the Respondent’s Notice of Contention was directed. That part of the Notice sought to challenge the conclusion of the Chief Industrial Magistrate as to the “assistance” that may be gleaned when interpreting clause 12 from the evolution of the three Agreements and the negotiations involved. Although this part of the Notice of Contention was less specific than the Respondent’s challenge to jurisdiction, presumably the Notice sought to focus attention upon the following conclusions of the Chief Industrial Magistrate:

[18] The Respondent relies upon evidence that the Respondent has acted upon its construction of the Clause during the whole of the period that the three Certified Agreements have been in place, and that it was only relatively recently that the Applicant raised the issue. In my view, such evidence is, in isolation, of no assistance to the Court. The evidence provided by the parties concerning the process of negotiation of each of the three Certified Agreements referred to, reveals that neither party saw any difficulty with the wording of Clause 12 (or its predecessor clauses) at any stage when the three Certified Agreements were the subject of a negotiation process. If a document is so drafted as to provide two possible meanings, a delay in the raising of the issue for interpretation does not of itself favour one competing construction over the other. It might be relevant to the question of the intention of the parties at the time the agreement was reached, but this is of little assistance when the evidence is clear that the issue was not picked up by either party or debated at any stage during the negotiations in question.

The Notice of Contention refers to the “ongoing operation of clause 12” being of “no assistance”, but what was intended to be conveyed by “ongoing operation” was perhaps less than self-evident.

46 Such reliance as is sought to be placed by the Respondent upon the manner in which clause 12 had previously been construed and applied, together with the absence of any intention on the part of the Union negotiators involved in the 2003 Agreement to depart from the relevant provision in the earlier Agreements, is considered to be equivocal and certainly not as fatal to the Appellant’s case as the Respondent would contend. Prior to the June 2005 memorandum, the claimed entitlement of the employees had simply not been a matter that attracted consideration. If clause 12 upon its proper construction bore the meaning now being advanced by the Appellant Union, the fact that that entitlement had not previously been enforced would not deny the ability to have the entitlement now paid. At best, that prior history lends limited support to the Respondent’s construction of clause 12.

47 More certain support for the construction of clause 12 being advanced by the Respondent, however, may be found in the evidence of Mr Small, a member of the Appellant Union and a person on the negotiating team for all three of the Agreements in issue. Mr Small was taken in cross-examination to the June 2005 memorandum and thereafter asked his understanding of entitlement to payment in the case of Christmas. The following exchange occurred (without alteration):

Q. In a circumstance for example then, when Christmas Day falls on a Saturday and it’s gazetted then the following Tuesday as well. You’ve conceded that you would have been – you would receive a public holiday – a public holiday on the Tuesday, correct?

A. Mm

…

Q. I am asking that you don’t serious suggest that you should also be paid for Christmas day on a Saturday, do you?

A. If you’re not – I don’t know how you – you’re not working it are you – you’re not – you’re a Monday to Friday worker so why would I.

Q. Because you are getting it on a Tuesday, its observed isn’t it?

A. Yeah, that’s yeah. True.

Q. It’s a ludicrous suggestion to say you should also be paid for it on a Saturday?

A. You only get paid once, wouldn’t you?

The construction being advanced by the Respondent is thus consistent with both what is considered to be the natural meaning of the words employed in clause 12 and, for present purposes, consistent with the understanding of those involved in its drafting. It is not without significance to note that the Appellant Union did not press that part of the Ground of Appeal which contended that the construction embraced by the Chief Industrial Magistrate was:

“d) contrary to the meaning intended by the framers of the clause in the context of the relevant industry; and

e) contrary to the evident purpose of the clause.”

Conclusions

48 It is thus considered that the construction of clause 12(e)(2) being advanced by the Appellant Union is to be rejected and the construction advanced by the Respondent, and as accepted by the Chief Industrial Magistrate, upheld.

49 It is further considered that so much of the Respondent’s Notice of Contention as sought to question the jurisdiction of the Chief Industrial Magistrate is to be rejected. The second part to the Notice of Contention, it is further considered, should also not prevail.

50 By reason of s 824(1) of the Act, no order is made as to costs.

ORDERS

51 The Orders of the Court are:

1. The Appeal be dismissed.

2. The Notice of Contention be dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 14 April 2009

Counsel for the Appellant:	Mr A M Slevin

Solicitor for the Appellant:	Slater & Gordon

Counsel for the Respondent:	Mr G J Hatcher SC with Mr B K B Cross

Solicitor for the Respondent:	Corrs Chambers Westgarth

Date of Hearing:	12 March 2009

Date of Judgment:	14 April 2009

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