Australian Liquor, Hospitality and Miscellaneous Workers Union v Rural Ambulance Victoria

[2000] FCA 1001

FEDERAL COURT OF AUSTRALIA

Australian Liquor, Hospitality & Miscellaneous Workers Union v Rural Ambulance Victoria [2000] FCA 1001

AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS UNION v RURAL AMBULANCE VICTORIA

V 604 OF 1999

NORTH J
16 JUNE 2000
MELBOUNRE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 604 OF 1999

BETWEEN:	AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION APPLICANT
AND:	RURAL AMBULANCE VICTORIA RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	16 JUNE 2000
WHERE MADE:	MELBOURNE

UPON THE PARTIES MAKING THE FOLLOWING UNDERTAKINGS:

A.The Respondent will comply with Clause 19 of Appendix 7 of Ambulance Service Victoria – South Eastern Region Certified Agreement 1997, Ambulance Service Victoria – South Western Region Certified Agreement 1997, Ambulance Service Victoria – North Western Region Certified Agreement 1997, Ambulance Service Victoria – Western Region Certified Agreement 1997 and Ambulance Service Victoria – North Eastern Region Certified Agreement 1997 by the pay period ending 9 July 2000; and

B.The Respondent agrees to pay the Applicant $5,000 (five thousand dollars) as a contribution to its costs; and

C.The Applicant undertakes to not commence a proceeding for a penalty under section 178 of the Workplace Relations Act 1996 for breaches of Clause 19 of Appendix 7 of the Ambulance Service Victoria – South Eastern Region Certified Agreement 1997, Ambulance Service Victoria – South Western Region Certified Agreement 1997, Ambulance Service Victoria – North Western Region Certified Agreement 1997, Ambulance Service Victoria – Western Region Certified Agreement 1997 and Ambulance Service Victoria – North Eastern Region Certified Agreement 1997 committed before the pay period ending 9 July 2000.

THE COURT ORDERS BY CONSENT THAT:

1.        The Application be struck out.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 604 OF 1999

BETWEEN:	AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION APPLICANT
AND:	RURAL AMBULANCE VICTORIA RESPONDENT

JUDGE:	NORTH J
DATE:	9 JUNE 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. This is an application for declarations and the imposition of penalties under section 178 of the Workplace Relations Act 1996 (Cth) (the Act). The applicant is a union registered under the Act. The respondent operates the Rural Ambulance Service in Victoria and employs approximately 1100 employees. The respondent is party to a federal award and five certified agreements as follows: The Ambulance Service Victoria (South‑Eastern Region) Certified Agreement 1997, the Ambulance Service Victoria (South-Western Region) Certified Agreement 1997, the Ambulance Service Victoria (North-Western Region) Certified Agreement 1997, the Ambulance Service Victoria (Western Region) Certified Agreement 1997 and the Ambulance Service Victoria (North-Eastern Region) Certified Agreement 1997.

2. The federal award incorporates the terms of a pre‑existing state award entitled the Ambulance Employees Victoria Interim Order 1994.  The name of the federal award is the Ambulance Service Award No. 2 of 1989. 

3. The question at the centre of the application is whether certain allowances are payable in accordance with Clause 19 of each of these agreements and awards.  Clause 19 appears in identical terms in Appendix 7 of each Certified Agreement as follows:

   “19      PAYMENT OF WAGES. 

   Wages shall be paid fortnightly and not later than Wednesday following the end of the pay period. 

   Notwithstanding anything herein contained, if a Bank Holiday occurs on a Monday, Tuesday or Wednesday payment of the wages may be made on the Thursday. 

   On each pay day, along with his/her pay, each employee shall be furnished with a statement or envelope showing the gross of ordinary wages, overtime and penalty rates together with all details of deductions.”

4. The particular allowances with which this application is concerned are to be found in Clause 18 of the Certified Agreement (which deals with the cribb meal break), Clause 9 of Appendix 7 (which deals with overtime and meal allowance) and Clause 30 of Appendix 7 (which deals with on‑call, recall, rest period and stand-by allowances). 

5. Mr O'Grady, who appeared as counsel for the respondent, contended that Clause 19 created an obligation in relation to wages alone and that the allowances were not within the meaning of the term wages in these instruments.  He pointed to Clause 1 of Appendix 7 which is headed “Wages” and which sets out the fortnightly ordinary pay in a lump sum for each employment category.  He contended that this clause governed what the instrument intended to comprehend as wages.  He referred to the sound rule referred to in the case of Registrar of Titles of the State of Western Australia v Franzon and Ors (1975) 132 CLR 611 at 618, where Mason J said:

   “It is a sound rule of construction to give the same meaning to the same words appearing in different parts of the statute unless there is reason to do otherwise.”

6. He then referred to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305, where Gibbs CJ said, in relation to statutory interpretation:

   “… [I]f two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice.” 

7. Mr O'Grady referred to the evidence of Desiree Helene Harker, the Director of Human Resources of the respondent, who stated:

   “7.      Overtime payments are processed on the basis of time sheets submitted by Ambulance Officers.  Due to the numbers of employees involved and the nature of the irregular and unrostered overtime worked by Ambulance Officers, RAV [Rural Ambulance Victoria] determined that it did not have sufficient resources to process the time sheets in respect of the second week of unrostered overtime hours within the limited period from the end of the pay period (Sunday) until pays are processed which must be done by Monday night, for bank deposits to be made on pay day (Wednesday).”

8. Mr O’Grady submitted that this evidence demonstrated that the interpretation contended for by the applicant would cause injustice or inconvenience to the respondent in the Cooper Brookes sense, and thus should not be adopted.

9. The evidence relied upon does not satisfy the requirements referred to in Cooper Brookes.  First, the evidence relates to overtime payments alone and has nothing to say in relation to payments for the other allowances with which the case is concerned.  Second, the evidence does not say anything about the time at which the certified agreements were entered into and hence sheds no light on the intention of the parties at that time.  Finally, the evidence is of such a broad and unspecific nature that it does not prove such inconvenience or injustice as is referred to in Cooper Brookes.

10. Mr O'Grady then submitted that the text of Clause 19 itself demonstrates that "wages" is used in contradistinction to "allowances" in these instruments.  He observed that the third paragraph of Clause 19 makes reference to the "pay" of the employee where it establishes the right of an employee to be given a statement of the amounts for which payment is being made.  He contended that the author clearly understood the distinction between “pay” and “wages” in the drafting of Clause 19.

11. Mr Campbell, who appeared on behalf of the applicant, contended that “wages” in Clause 19 meant remuneration for services rendered and included the allowances provided for in Clause 18 and Clauses 9 and 30 of Appendix 7.  The dictionary definition of the word "wages" indicates that in modern usage “wages” entails some periodicity in payment: see the The Oxford English Dictionary, 1978, Vol. 12 at 11, where “wage” is defined to include:

    “a payment to a person for service rendered.  Formerly used widely, e.g. for the salary or fee paid to persons of official or professional status.  Now … restricted to mean:  the amount paid periodically, especially by the day or week or month, for the labour or service of a workman or servant." 

    I doubt that this dictionary definition takes the matter much further. 

12. Several cases, however, have interpreted the word "wages" to encompass allowances.  In Re Commonwealth Works and Services (Northern Territory) Award (1960) 1 FLR 336, the Commonwealth Industrial Court had to consider an obligation under Clause 31(a) of the Commonwealth Works and Services (Northern Territory) Award 1957 which provided that:

    “Wages shall be paid weekly or fortnightly at the option of the employer.”

    Clause 9(p) of that Award provided that:

    “All work performed at the ‘leper station‘ or any other area where there is danger of infection with any disease shall be paid for at double rates.”

13. In relation to the meaning of wages in Clause 31(a) Spicer CJ said (at 336):

    “It at least comprises in my view those amounts to which an employee becomes entitled by reason of the actual work he has performed for the employer during the relevant period.” 

14. The majority (Eggleston and Joske JJ) focused rather on the meaning of Clause 31(e), which concerned the question of payment of waiting time where the requirements of Clause 31(a) as to the time of payment had not been met.  The focus of this discussion was on the concept of payment and whether circumstances of physical impossibility or unreasonable burdens relating to payment would involve a failure to comply with the obligation to pay. 

15. The other case which has some bearing on this question is the case of Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389. The question before the Court was whether a car allowance paid to travelling salesmen was an allowance within the definition of wages in the Pay-Roll Tax Assessment Act 1941-2 (Cth). The Court ultimately held that such payments were allowances within the extended definition provided by the Pay-Roll Tax Assessment Act but would not have fallen within the ordinary meaning of the concept of wages.  At the same time the Court observed that some allowances do fall within the ordinary concept of wages.  Latham CJ said at 395:

    “Some of the travellers provide motor cars for the purpose of collecting the instalments.  These travellers are paid fixed sums in respect of the use of their motor cars, such payments being described by the appellant as ‘car allowances’.  The question is whether these payments are ‘allowances’ within the meaning of the definition of ‘wages’.” 

16. Later at 397 he said:

    “Expense allowances, travelling allowances, and entertainment allowances are payments additional to ordinary wages made for the purpose of meeting certain requirements of a service.  Tropical allowances, overtime allowances and extra pay by way of ‘dirt money’ are allowances as compensation for unusual conditions of service. 

    The latter class of allowances represents higher wages paid on account of special conditions, and may fairly be described as part of wages in the ordinary sense.”

17. Dixon J said at 403:

    “In the definition of ‘wages’ the first two words, ‘wages’ and ‘salary’, refer to ordinary forms of remuneration for work done.”

18. Given then that "wages" is capable of encompassing allowances of particular types, the question is whether there are factors in these instruments which suggest that "wages" is used with this meaning in mind.  In Clause 8 of the Certified Agreements, the heading “Increases to Wages” appears.  Subclauses (i) to (v) deal with increases to be paid in the ordinary rate of pay - that is to say, the amount which is set out in Appendix 3 to the Certified Agreements, which deals with rates of pay.

19. Significantly, Clause (8)(vi) proceeds to deal with "allowances".  The reference to allowances in a clause dealing with increases in wages suggests that the draftsperson of these instruments did, at least in certain instances, use wages to encompass allowances.  Mr O'Grady submitted that the absence in subclause (vi) of a reference to the particular allowances with which this application is concerned weighs against the applicant’s interpretation. I do not find this submission persuasive.  Neither do I think it significant that Appendix 7 commences by referring to the pre‑existing state award as the instrument to govern the meaning of the consolidated terms and conditions of employment in Appendix 7. 

20. It is significant that, apart from Clause 19, there is no provision for the time at which the allowances are to be paid. If the respondent's argument is correct, then these elaborate industrial instruments, which deal in great detail with every conceivable aspect of the employment relationship, were intended to leave unregulated the question of when payment would be made for these important allowances.  That consideration makes it unlikely that the parties intended Clause 19 to be limited to the payment only of the base fortnightly rate.  Furthermore, the third paragraph of Clause 19 itself refers to the event with which it deals as "payday" and to what the employee receives as "his or her pay".  Hence, the wording of Clause 19 suggests that "wages" is used to include all elements of pay to be received by the employee. 

21. The apparent absence of a provision concerning the time for payment of allowances, which would be the case if the respondent’s interpretation of Clause 19 was accepted, was answered by Mr O’Grady by reference to the dispute resolution clause in the instruments.  It was submitted that if a dispute about the time for payment of allowances arose, the instrument itself provided for a means of resolution.  In view of the other detailed stipulations concerning the payment of allowances, it is unlikely that the time for payment of allowances would be left to a dispute resolution clause of general application.

22. As is common with industrial instruments of this nature, there is often difficulty and confusion in the way the obligations are expressed.  However, for the reasons outlined the applicant's construction of Clause 19 is to be preferred. 

23. It is not in dispute that the respondent has not paid the allowances in conformity with the construction which I have now determined to be the correct construction.  The application was adjourned for the parties to discuss a method of resolving their differences in light of the determination of the proper construction of Clause 19, and if there was no resolution, for the fixing of a further hearing on the question of penalty.  In the event the parties came to an agreement concerning the disposition of the application and sought orders by consent.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             

Counsel for the Applicant:	Mr N Campbell
Solicitor for the Applicant:	ALHMWU
Counsel for the Respondent:	Mr C O'Grady
Solicitor for the Respondent:	Corrs Chambers Westgarth
Date of Hearing:	16 June 2000
Date of Judgment:	16 June 2000