Australian Municipal, Administrative, Clerical and Services Union v Yarra Plenty Regional Library Service T/A Yarra Plenty Regional Library
[2011] FWA 2252
•13 APRIL 2011
[2011] FWA 2252 |
|
DECISION |
Fair Work Act 2009
s.739—Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
v
Yarra Plenty Regional Library Service T/A Yarra Plenty Regional Library
(C2010/5669)
YARRA PLENTY REGIONAL LIBRARY SERVICE ENTERPRISE AGREEMENT 2009—2012
Local government administration | |
COMMISSIONER SMITH | DARWIN, 13 APRIL 2011 |
Alleged dispute about matters arising under the enterprise agreement.
INTRODUCTION
[1] This is an application to deal with a dispute in accordance with a dispute settlement procedure in the Yarra Plenty Regional Library Service Enterprise Agreement 2009—2012 [the Agreement]. The application is made by the Australian Municipal, Administrative, Clerical and Services Union (ASU).
[2] The clause over which there is said to be a difference of view is clause 11.15—Christmas closure. The clause states:
“All branches will close at 12 noon on the week day (Monday to Friday) that is immediately prior to Christmas day. All rostered staff will be remunerated for their rostered hours.”
[3] An issue has arisen where employees who seek to take leave on that day are required by the library to apply for a full days’ leave. The ASU argues that given the library will close at noon then it is only reasonable and the proper application of clause 11.15, that employees only need to apply for a half a days’ leave and be paid for the full day.
THE APPROACH
[4] In considering the meaning of a term of an agreement, the most appropriate course is to call in aid the general approach to statutory construction.
[5] In Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation, Gibbs CJ stated:
“It is an elementary and fundamental principle that the object of the court, in interpreting a statute, ‘is to see what is the intention expressed by the words used’: River Wear Commissioners v. Adamson (1877) 2 App Cas 743, at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v. J. H. Nelson Pty. Ltd. (1947) 74 CLR 629, at p.648 . Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking ‘nothing remains but to give effect to the unqualified, words’: Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union (1925) 35 CLR 449, at p 455 There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd. v. Cramas Properties Ltd. (1965) 1 WLR 892 , at p.899; (1965) 2 ALL ER 382, at p.38 1
Mason and Wilson JJ stated:
“There is a similar problem with the related so-called ‘golden rule’ of construction. There are statements of the rule which would confine the courts to the ordinary grammatical sense of the words used unless that produces an absurdity or inconsistency. It is to be noted that Dixon J. in Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) (1937) 56 CLR 337, at p.371 observed that departure from the ordinary grammatical sense is not legitimate unless there is "some obscurity or some inconsistency", though it may be that "obscurity" was intended to be a reference to "absurdity". For the reason already given in the discussion of the literal rule, departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency. (at p320) In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction. (at p.320) The rules, as D. C. Pearce says in Statutory Interpretation, p.14, are no more than rules of common sense, designed to achieve this object. They are not rules of law.” 2
In Meat and Allied Trades Federation of Australia v. The Australasian Meat Industry Employees' Union Neaves J concluded:
“..The true meaning and effect of the award must be ascertained not by construing the language used in isolation but by construing that language in its setting and context and in light of all the relevant surrounding circumstances.” 3
Mason J in K and S Lake City Freighters Pty Ltd v. Gordon & Gotch Ltd stated:
“Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. In Prince Ernest Augustus of Hanover Viscount Simonds said (at p.461):-“... words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use `context' in its widest sense ... as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy." In Re Bidie (1948) 2 All ER 995, Lord Greene M.R. said (at p.998): "In the present case, if I might respectfully make a criticism of the learned judge's method of approach, I think he attributed too much force to what I may call the abstract or unconditioned meaning of the word `representation.' ... The real question which we have to decide is: What does the word mean in the context in which we find it here, both in the immediate context of the sub-section in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy?” 4
In Project Blue Sky Inc v Australian Broadcasting Authority a majority of the High Court held:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. 5
[6] It is against the background of these authorities that I turn to consider the arguments in this matter.
THE SUBMISSIONS
[7] The submissions in this matter are of a relatively short compass.
[8] It was submitted by the ASU that by only requiring employees to apply for half a day’s leave this would put them in exactly the same position as a full time employee who was working on that day. That is, both would have a half day off on pay immediately prior to Christmas day.
[9] The library submitted that the wording of the clause was clear and unambiguous. It referred to staff being remunerated for their rostered hours. It was submitted that staff who sought leave were not rostered for work.
[10] In addition, the library submitted that applying the Agreement in the manner contended for by the ASU would lead to absurdities namely that the same reasoning would apply to staff who are on other forms of leave such as sick leave and long service leave. It was also submitted that the history of the clause related to Christmas shopping time where full time staff who were rostered to work were given time off to shop.
[11] The ASU did not agree that the intention was to simply restate the Christmas shopping clause and that it always sought an improvement on that position. Further the ASU argued that rostered staff did not mean “rostered to work” but all staff who were on the roster.
CONCLUSION
[12] In this matter it is difficult to go past the ordinary and natural meaning of the language rostered staff. In the context of the clause as a whole it could only mean that it applied to those rostered to work on the day. Not only is that the ordinary and natural meaning but it appears to me that it is also the longstanding industrial meaning of the term.
[13] It is important to point out that I am not being asked to consider any equity arguments but simply what is the proper application of the agreement of the parties. To this extent the history of the negotiations also tends to support the construction I have adopted in this decision. Whether that is a good or a bad thing it is not for me to say only that it appears to be the agreement of the parties.
[14] The application, in so far it seeks another meaning to that applied by the library, is dismissed.
COMMISSIONER
Appearances:
M Rizzo for the Australian Municipal, Administrative, Clerical and Services Union.
G Katz, Solicitor on behalf of the Yarra Plenty Regional Library Service trading as Yarra Plenty Regional Library.
Hearing details:
2011.
February;
21.
1 35 ALR 151 at 156
2 Ibid at 169
3 (1984) 2 FCR 419 at 426
4 (1985) 157 CLR 309 at 315
5 (1998) 194 CLR 355 at [69]
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