BHP Billiton Iron Ore Pty Ltd v The Australian Workers' Union Western Australian Branch, Industrial Union of Workers
[2006] WASCA 159
•7 AUGUST 2006
BHP BILLITON IRON ORE PTY LTD -v- THE AUSTRALIAN WORKERS' UNION WESTERN AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS & ORS [2006] WASCA 159
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2006] WASCA 159 | |
| Case No: | IAC:2/2006 | 22 JUNE 2006 | |
| Coram: | STEYTLER J (PRESIDING JUDGE) WHEELER J PULLIN J | 7/08/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BHP BILLITON IRON ORE PTY LTD THE AUSTRALIAN WORKERS' UNION WESTERN AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH THE COMMUNICTIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WA BRANCH THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS THE TRANSPORT WORKERS' UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH |
Catchwords: | Turns on own facts |
Legislation: | Industrial Relations Act 1979 (WA), s 40, s 46, s 90(3a) |
Case References: | BHP Billiton Iron Ore Pty Ltd v The Australian Workers' Union, Western Australian Branch, Industrial Union of Workers & Ors [2005] WAIRC 02796 Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 Amcor Ltd v Construction, Forestry, Mining & Energy Union (2005) 79 ALJR 703 Ansett Australia Ltd v Australian Licensed Aircraft Engineers Association [2003] FCAFC 209 Atwood Oceanics Australia Pty Ltd v Commissioner of Taxation (Cth) (1989) 30 IR 58 Australia Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806 Australian & International Pilots Association v Qantas Airways Ltd [1998] 80 IR 199 Australian Liquor, Hospitality & Miscellaneous Workers' Union v Australian Federation of Totally and Permanently Incapacitated ExService Men and Women Ltd (1987) 77 WAIG 1891 Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v BHP Billiton Iron Ore Pty Ltd (2003) 83 WAIG 1672 Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v BHP Iron Ore Ltd (2002) 82 WAIG 2033 Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Qantas Airways Ltd (2001) 106 IR 307 Barrass v State of Victoria [1999] FCA 1166 BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union (2006) 151 IR 361 BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union (2006) 151 IR 389 Burswood Resort Management Ltd v Australian Liquor, Hospitality & Miscellaneous Workers (WA) (2000) 49 AILR 13215 Construction, Forestry, Mining & Energy Union of Workers v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3219 Coulton v Holcombe (1986) 162 CLR 1 Curragh Queensland Mining Ltd v Construction, Forestry, Mining & Energy Union (1997) 77 IR 232 Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 106 IR 172 Kucks v CSR Ltd (1996) 66 IR 182 National Tertiary Education Industry Union v University of Wollongong (2002) 51 AILR 4576 Norwest Beef Industries Ltd v Meat Industry Employees Union (1984) 64 WAIG 2124 Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 Robe River Iron Associates v Amalgamated Metal Workers & Shipwrights Union (1987) 67 WAIG 1097 Robe River Iron Associates v Australian Workers Union (1987) 67 WAIG 320 Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 United Construction Pty Ltd v Birighitti (2003) 83 WAIG 434 United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board (2006) 152 IR 106 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Watkins Ltd v Renata (1985) 8 FCR 65 Zoological Parks Board (New South Wales) v Australian Workers Union (2004) 135 IR 56 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : BHP BILLITON IRON ORE PTY LTD -v- THE AUSTRALIAN WORKERS' UNION WESTERN AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS & ORS [2006] WASCA 159 CORAM : STEYTLER J (PRESIDING JUDGE)
- WHEELER J
PULLIN J
- Appellant
AND
THE AUSTRALIAN WORKERS' UNION WESTERN AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS
THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH
THE COMMUNICTIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WA BRANCH
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
THE TRANSPORT WORKERS' UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH
Respondents
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : THE HON M T RITTER (ACTING PRESIDENT), CHIEF COMMISSIONER A R BEECH, COMMISSIONER P E SCOTT
File No : FBA 27 of 2005
Catchwords:
Turns on own facts
Legislation:
Industrial Relations Act 1979 (WA), s 40, s 46, s 90(3a)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr F Parry SC & Ms C A Fitz Gibbon
Respondents : Mr D H Schapper
Solicitors:
Appellant : Mallesons Stephen Jaques
Respondents : Derek Schapper
(Page 3)
Case(s) referred to in judgment(s):
BHP Billiton Iron Ore Pty Ltd v The Australian Workers' Union, Western Australian Branch, Industrial Union of Workers & Ors [2005] WAIRC 02796
Case(s) also cited:
Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529
Amcor Ltd v Construction, Forestry, Mining & Energy Union (2005) 79 ALJR 703
Ansett Australia Ltd v Australian Licensed Aircraft Engineers Association [2003] FCAFC 209
Atwood Oceanics Australia Pty Ltd v Commissioner of Taxation (Cth) (1989) 30 IR 58
Australia Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806
Australian & International Pilots Association v Qantas Airways Ltd [1998] 80 IR 199
Australian Liquor, Hospitality & Miscellaneous Workers' Union v Australian Federation of Totally and Permanently Incapacitated ExService Men and Women Ltd (1987) 77 WAIG 1891
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v BHP Billiton Iron Ore Pty Ltd (2003) 83 WAIG 1672
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v BHP Iron Ore Ltd (2002) 82 WAIG 2033
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Qantas Airways Ltd (2001) 106 IR 307
Barrass v State of Victoria [1999] FCA 1166
BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union (2006) 151 IR 361
BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union (2006) 151 IR 389
Burswood Resort Management Ltd v Australian Liquor, Hospitality & Miscellaneous Workers (WA) (2000) 49 AILR 13215
Construction, Forestry, Mining & Energy Union of Workers v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3219
Coulton v Holcombe (1986) 162 CLR 1
Curragh Queensland Mining Ltd v Construction, Forestry, Mining & Energy Union (1997) 77 IR 232
(Page 4)
Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 106 IR 172
Kucks v CSR Ltd (1996) 66 IR 182
National Tertiary Education Industry Union v University of Wollongong (2002) 51 AILR 4576
Norwest Beef Industries Ltd v Meat Industry Employees Union (1984) 64 WAIG 2124
Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444
Robe River Iron Associates v Amalgamated Metal Workers & Shipwrights Union (1987) 67 WAIG 1097
Robe River Iron Associates v Australian Workers Union (1987) 67 WAIG 320
Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444
Short v FW Hercus Pty Ltd (1993) 40 FCR 511
United Construction Pty Ltd v Birighitti (2003) 83 WAIG 434
United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board (2006) 152 IR 106
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Watkins Ltd v Renata (1985) 8 FCR 65
Zoological Parks Board (New South Wales) v Australian Workers Union (2004) 135 IR 56
(Page 5)
1 STEYTLER J (PRESIDING JUDGE): I agree with Wheeler J, for the reasons that she has given, that the appeal should be dismissed.
2 WHEELER J: In order to understand how this appeal arises, and why it should be dismissed, it is necessary to deal in some little detail with the way in which the dispute arose, the way in which it was framed before the Commission at first instance, certain observations which were made during the hearing at first instance, and the way in which the appellant then ran its case before the Full Bench.
The dispute
3 In July 2002, an award made by the Commission, and extending to the locomotive drivers the subject of this appeal, prescribed annual leave for locomotive drivers who were required to work shift work at a rate of 288.8 hours per annum. The shifts which the drivers were required to work were 10-hourly shifts.
4 The award said nothing expressly about the rate at which those hours were to be acquitted. That is, the award did not in terms state that the entitlement to annual leave was to be reduced by one hour for every hour not worked by a driver. One would normally expect that, where an award prescribes for a certain number of "hours" of annual leave, the leave would be acquitted in the way I have described. However, it appears that, between July 2002 and September 2004, every 10 hours of leave taken by a driver was calculated to result in a 7.6-hour reduction in the driver's entitlement to annual leave. That resulted in the equivalent of 7.6 weeks of annual leave, a figure which apparently had an historic basis. There seems to have been no dispute between the appellant and the respondents about this calculation.
5 On 1 September 2004, the award was varied so as to prescribe 12-hourly shifts. The amount of leave remained 288.8 hours. For a little over a month, it seems that the appellant then calculated leave entitlements on the basis that every 12 hours not worked by a driver would result in a 9.5-hour reduction in annual leave entitlement, a calculation which retained the former practice of 7.6 weeks of annual leave. On 3 October 2004, the appellant altered its calculations so that for every 12 hours not worked, there was a reduction of 11.55 hours in the entitlement to annual leave. The respondents objected to that change in practice, and a dispute arose as a result. That dispute was the subject of a number of applications. They were applications 1324 of 2004, 569 of 2005, and 570 of 2005. It is important to note that Commissioner Wood at first instance dealt with all of them (AB 280 - 281).
(Page 6)
The applications
6 Application 1324 of 2004 was first in time and was made on 13 October 2004 by the CFMEU, one of the present respondents. The ground of the application was expressed to be that "the subject award is unclear in a number of respects or provision is necessary for situations which are not presently dealt with in the award". One of the variations to the award sought by that application was to vary cl 12, by adding the words "when leave is taken it shall be calculated at the rate of 9.5 hours per shift". That application was the subject of a conference, and there are directions relating to particulars and relating to further discussions.
7 By letter dated 26 April 2005, the applicant union amended its application to delete the claim for leave at the 9.5-hourly rate. The letter amending the application explained the reason for seeking that deletion as "leave is currently accrued and taken at the rate of 7.6 hours in accordance with long standing practice. As it is not open to the respondent [BHPB] to unilaterally change this and, as the respondent opposes the claim for the rate to be 9.5 hours, the applicant's claim is redundant".
8 The application came on for hearing in May 2005, but was adjourned. It appears that, at that time, the application to delete the claim relating to annual leave was mentioned, and that an interim order preserving what it considered to be that status quo was sought by the applicant union. The Commissioner summarises BHPB's position at that hearing at [10] of his reasons (AB 285) as being " ... that they would make an application within 7 days to amend the award to include a divisor for annual leave of 11.55".
9 Within the 7-day period mentioned, the present appellant filed two applications. Those applications relevantly read as follows:
"Application 569 of 2005
1. The applicant seeks an interpretation of clauses 12(5) and 15(1) of the Iron Ore Production and Processing (BHP Billiton Iron Ore Pty Ltd) Award 2002 (No A2 of 2001) (Award).
...
3. The applicant claims a declaration that on the proper construction of clause 12(5):
- (a) locomotive drivers are entitled to annual leave at the rate of 288.8 hours per annum; and
(b) that annual leave is to be deducted at the rate of 11.55 hours per shift of leave taken.
- ...
5. The applicant seeks to have this application heard and determined in conjunction with application 1324 of 2004.
Application 570 of 2005
1 The applicant has sought an interpretation of clauses 12(5) and 15(1) of the Iron Ore Production and Processing (BHP Billiton Iron Ore Pty Ltd) Award 2002 (No. A2 of 2001) (Award).
2 In the event that the Western Australian Industrial Relations Commission declares that on the proper construction of
(a) clause 12(5):
(i) locomotive drivers are not entitled to annual leave at the rate of 288.8 hours per annum; and/or
(ii) that annual leave is not to be deducted at the rate of 11.55 hours per shift of leave taken,
...
the applicant seeks to vary the Award as follows.
3 In relation to clause 12(5) of the Award by inserting the following underlined words:
Locomotive drivers required to work shiftwork shall be entitled to annual leave at the rate of 288.8 hours per annum. Annual leave will be deducted for locomotive drivers from their annual leave entitlement at the rate of 11.55 hours for each shift of annual leave taken.
...
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- 5. The applicant seeks to have this application heard and determined in conjunction with application 1324 of 2004."
- Those applications also dealt with a similar issue in relation to sick leave. It is not clear why any interpretation was sought in relation to the 288.8 hours of leave, as that figure seems never to have been in dispute.
10 The answers filed by the respondent unions in applications 569 and 670 of 2005 were as follows:
"Application 569 of 2005
The respondents say on the proper interpretation of the Award it does not prescribe the rate per shift of leave taken at which annual or sick leave shall be deducted."
Application 570 of 2005
In relation to paragraphs 3 and 4 of Schedule 2 of the application the respondents agree that those provisions should be inserted but, in each case, substituting 9.5 for 11.55. The respondents say that the figure of 9.5 is that which maintains the amount of leave at the same level, both absolute and relative, as those entitlements existed prior to the applicant's unilateral alteration from 7.6 to 11.55. The figure of 11.55 results in a reduction, both absolute and relative, in the amount of leave to which the employees in question would receive."
The issues at first instance
11 The scope of the dispute appears from the applications to have two aspects. First, BHPB asserted that the proper construction of the award is that it provides that annual leave is to be deducted at the rate of 11.55 hours per shift. Second, it asserted that if the award does not so provide, it should be varied so as to insert provision for deduction at that rate. So far as the union was concerned, its position seems to have been that the award did not in terms make any provision for the rate at which hours not worked should be deducted from the leave entitlement and that, if it was appropriate to vary the award by making provision for a rate of deduction, the rate should be 9.5 hours.
12 The two live questions, more colloquially put, were: "What, if anything, does the award say about the way annual leave is acquitted?", and "What, as a matter of equity and good conscience, should the award
(Page 9)
- say about the rate at which annual leave is acquitted". Not surprisingly, the transcript of the hearing before the Commissioner demonstrates that both parties dealt with both of these questions. We do not have the whole of the transcript before us. However, the way in which the matter was fought sufficiently emerges from the materials which we do have.
13 For example, on 9 August 2005, Mr Lucev, in what appear to be his opening submissions on behalf of BHPB submitted, no doubt correctly, "annual leave provisions need to be interpreted, Commissioner, according to their terms ... " (AB 210 - 211). However, he did not only refer to the terms of the award. He went on to refer to the way in which the figure for which the union contended was consistent or inconsistent with the conditions of locomotive drivers "as a package", the position in relation to locomotive drivers who were on AWAs rather than on the award, and he referred in general terms to his understanding of the objectives of the Commission in Court Session in making the award.
14 In closing on 10 August 2005, Mr Lucev analysed the evidence relating to the history of the drivers' leave entitlements. He then made a submission that the Commission could stage the implementation of a rate of 11.55 hours, saying (AB 254):
"If, for example, the Commission takes the view that the implementation of the 11.55 divisor might adversely affect current employees, for example, some suggestion of a negative leave balance for some of the employees, it might be that that can be avoided by a future implementation date of the divisor so that employees know exactly where they presently stand, and where they will stand in the future.
In the alternative, if the Commission doesn't wish to 'disadvantage' the present drivers, and I say 'disadvantage' in quotation marks in that sense, Commissioner, because we say they're not, but there's obviously an argument that they are, then in old-fashioned public service terms there's no reason why they can't be red lined, that is, that all new drivers on the award after the operative date of this provision can go on the same leave arrangements with the same divisor as everybody else leaving the current drivers where they are."
15 What was plainly the subject of those submissions was a variation, rather than an interpretation of the award. The award had effect from 1 September 2004, and any interpretation would obviously apply from
(Page 10)
- that time. Only a variation could be the subject of some "future implementation".
16 Having considered the history of leave both in relation to this class of drivers and other drivers, Mr Lucev also said (AB 255):
"So we say that as a matter of good conscience which the Commission's required to exercise, that that entitlement on the basis of that divisor [the divisor which previously applied] could not stand in perpetuity, and as a matter of equity versus the remainder of the workforce, both award and AWA, that the divisor ought to be and is 11.55."
The orders and reasons at first instance
17 The orders actually made by the Commissioner were as follows. He dismissed application 570 of 2005, on the basis that it was redundant as a result of the orders made in 569 of 2005. The relevant parts of those orders were:
"NOW THEREFORE having heard Mr A D Lucev, of counsel on behalf of the applicant and Mr D H Schapper, of counsel, on behalf of the respondents, the Commission, pursuant to the powers conferred on it under section 46 of the Industrial Relations Act, 1979, hereby:
1) DECLARES that the true interpretation of the entitlement of locomotive drivers under the Iron Ore Production & Processing (BHP Billiton Iron Ore Pty Ltd) Award 2002 (the Award) is:
a) Annual Leave under Clause 12(5) of the Award is to be reduced at the rate of 9.5 hours for each 12 hour shift of Annual Leave taken; and
b) Sick Leave under Clause 15(1) of the Award is to be reduced at tire rate of 9.5 hours for each 12 hour shift of sick leave taken.
2) ORDERS that to give fuller effect to the Award, the Award be varied in accordance with the attached schedule with effect on and from 3 October 2004.
(Page 11)
1. Clause 12 - Annual Leave: Delete subclause (5) of this Clause and insert in lieu thereof the following:
(5) Locomotive drivers required to work shiftwork shall be entitled to annual leave at the rate of 288.8 hours per annum. Annual leave will be deducted for locomotive drivers from their annual leave entitlement at the rate of 9.5 hours for each shift of annual leave taken."
18 These orders were plainly expressed as an interpretation, rather than a variation, of the award. To the extent that there is a variation, it is expressed to be only to give "fuller effect" to that interpretation. It is from that characterisation of the Commissioner's findings and orders as an "interpretation", that the present appeal arises.
19 In the Commissioner's reasons for making his order (BHP Billiton Iron Ore Pty Ltdv The Australian Workers' Union, Western Australian Branch, Industrial Union of Workers & Ors [2005] WAIRC 02796), he recited, at [39] - [46], and [53] - [59] (AB 294 - 299) the respective submissions of the present appellant and the respondent. It is clear that those submissions ranged over matters relevant to a variation, including the history of annual leave entitlements, the way in which leave had previously been acquitted, the way in which leave was taken by other similar employees, and the reasons given by the Commission for granting the previous application for 12-hour shifts, which resulted in the award of 1 September 2004.
20 The Commissioner's reasons for making the order are set out at [90] - [92] of his reasons for decision (AB 306). They read as follows:
"90 The award of course is expressed in hours per annum (i.e. 288.8 hours) and provides a quantum for locomotive drivers which are different from that of other employees. This is not a matter of interpretation whereby the terms expressed in the award can be interpreted without resort to the practice that has been adopted in the workplace, and indeed without resorting to the history of the change. The provision on its face may appear clear and unambiguous, but equally obvious from the evidence is how that translates in effect is not clear and unambiguous.
(Page 12)
- 91 The difficulty I have with the position adopted by the company is that whilst I understand the logic [the witness] Mr Ritchie has applied, it is the case that the quantum of annual leave for engine drivers under the award was never a claim before the Commission in application 1246 of 2003 and never considered by the Commission. This does not of itself mean that the Commission could not consider such a claim. Section 26(2) of the Act provides the Commission with a broader power or scope than the specific claim. However, no evidence was led in that matter that would or could have alerted the Commission to a reduction in effect of 1.5 weeks in leave entitlement; or the effect 12 hour shifts had generally on annual leave. It is not sufficient to argue, as Mr Lucev has on behalf of the respondent, that the entitlement is granted in terms of available hours. Mr Schapper submitted that the hours provision was inserted by consent. The evidence makes it clear that the hours mean different amounts of leave in weeks depending on the divisor. Hence the claim now to insert a divisor, be that 11.55 or 9.5. In other words the divisor, will, in the minds of the parties, provide clarity to the award provision.
92 There were several aspects of annual leave conditions claimed in application 1246 of 2003. Each claim was specifically dealt with by the Commission and the claim was either disallowed or an amendment was made to the award. The quantum of annual leave for engine drivers was understandably not given such treatment. The matter should be seen in that context. In simple terms then the wording in paragraphs 185 to 189 of the Commission in Court's decision, of which I was part, cannot be taken to mean that the annual leave available to engine drivers under the award should be equated to AWA drivers. If the passages in that decision which I have highlighted earlier have misled the company then that is unfortunate and regrettable. But I cannot say in all good conscience that those passages, taken in the context of the decision, lead one to conclude that the Commission considered and decided to amend the annual leave provision for engine drivers and reduce it in effect by 1.5 weeks per annum.
- Having weighed the evidence and arguments presented by the parties I consider the divisor for annual leave for engine drivers should be 9.5 as per the applicant's submission."
21 There is, it seems to me, some confusion in these passages. It is not clear to me whether the Commissioner is in those paragraphs acknowledging that his task is not one of interpretation, but of variation, or whether he is purporting simply to interpret the award, as the terms of the order which he ultimately made would suggest. Both parties referred to an exchange between the Commissioner and counsel on 10 August 2005, which appears at pages 247 - 248 of the appeal book, as an aid to understanding the way in which the Commissioner approached his task. It appears from those passages that the Commissioner was acutely aware that the controversy between the parties related to the question of whether leave should be acquitted at the rate of 11.55 or 9.5 hours for every 12-hour shift not worked. That is, he appreciated, in my view correctly, that so far as the parties were concerned, nether party contended that the award either did or should require that the hours of leave be acquitted at the rate of one hour for every hour not worked. It also appears from that exchange that he understood his primary task to be one of interpretation. That emerges particularly from the Commissioner's reference (AB 247) to s 46 of the Industrial Relations Act 1979 (WA), which is concerned with interpretation. Section 40 would confer upon the Commissioner power to alter the terms of the award.
22 Both from the exchange to which I have referred, and from the terms of the order, then, it does appear that the Commissioner purported to interpret the award as requiring of acquittal of annual leave at a rate of 9.5 hours for every 12-hour shift not worked.
Interpretation - principles
23 The principles governing the interpretation of awards are not really in dispute. They are the same as are applied in courts of law for construction of statutes. That is, the words of the award are to be understood in their ordinary sense, in the context in which they appear.
24 If there is no unambiguous ordinary meaning, or if the words, so read, would appear to lead to an absurd result, then there are a variety of interpretative techniques which may be used. Extrinsic evidence may be resorted to, but only where the words themselves are not clear. Further, evidence of the actual intention of the parties is not admissible, and it is
(Page 14)
- not the task of the Commission, or of the Court, to rewrite the award under the guise of interpreting it.
25 It is not necessary to cite authority for any of these propositions, since the respondents do not dispute them; rather, the respondents' position as I understand it is that, as submitted to the Commissioner, the award does not, on its face, provide for the rate at which annual leave is to be acquitted, or, alternatively, if it should be understood as requiring that annual leave be acquitted for one hour for every hour not worked, that result is unfair. However, the respondents submit that it was open to the Commissioner, having regard to the evidence before him, to reach the view that as a matter of equity and good conscience the award ought to provide for acquittal at a rate of 9.5 hours, and that he did so, although perhaps mistakenly viewing his task as one of "interpretation".
The Full Bench
26 Before I deal with those submissions, it is convenient to turn to the way in which the Full Bench dealt with the appeal. Although the grounds of appeal are somewhat confused and repetitive, the thrust of the appeal to the Full Bench was essentially the same as the thrust of the appeal from the Full Bench to this Court. That is, it was asserted by BHPB that the Commissioner erred in interpreting the award, in that "the Commission did not interpret the Award, but simply determined to vary the Award" (ground 1 of appeal to the Full Bench). That, so far as it goes, appears to be correct. Further, the grounds of appeal submitted that the Commissioner erred in interpreting the award by failing to give the words of the award their ordinary meaning, by having resort to extrinsic materials, by having regard to the history of the award and the other dealings between the parties. That, too, appears to be correct.
27 However, the appellant argued before the Full Bench, as it argued before us, that all that was sought from the Commissioner was an interpretation, rather than a variation, of the award. It argued that it was therefore not open to the Commissioner to have regard to the extrinsic materials and history at all.
28 That approach seems to have caused the Full Bench some difficulty. It is not surprising that it did so, since it was, as a matter of fact, based on a misconception or a misrepresentation of the dispute, the applications, and the proceedings before the Commissioner. It is plain from the history which I have recounted, that the Commissioner had before him two questions, one relating to interpretation and the other relating to whether
(Page 15)
- there should be a variation. His error lay in answering the second question in substance, while purporting to answer the first.
29 The transcript of argument (AB 131 - 150) reveals that the Full Bench was acutely aware of the fact that the appellant had gone into evidence in relation to matters which could only affect the merits of any variation of the award, not confining itself to questions of interpretation. The Full Bench put to then counsel for the appellant that the Commissioner's error, if any, may well have been only in dealing with application 569 (which sought an interpretation) rather than with application 570, which on its face sought a variation of the award. Counsel for the appellant was asked why it would not be open to the Full Bench to form the view that the Commissioner's decision was correct as a matter of substance, but wrong in form, in that it should never have been framed as an interpretation. The appellant was invited to make written submissions directed to the question of what additional matters it might have referred to by way of submission if it had clearly understood that the Commissioner would deal with the merits as well as or instead of the question of interpretation. That invitation assumed, charitably, that there had been some misunderstanding on the appellant's part. Although the appellant accepted the Full Bench's invitation to make further written submissions directed to that question, those written submissions simply asserted that, since application 570 had been dismissed, it was not open to the Full Bench to deal with the question of variation of the award, and that the appellant "therefore does not propose to address what issues the appellant might have been denied the opportunity to argue".
30 In his reasons, the Acting President acknowledged that the Commissioner "did not approach the task of interpreting the relevant clauses in an orthodox fashion" ([68]). The Acting President did not uphold the appeal, however, because of the way in which the appellant conducted its case before the Commissioner. There is, I accept, some confusion in the reasoning of the Acting President. There are passages in which he appears to assert that the Commissioner's approach may well have been correct as a matter of interpretation (eg [81] and [82]). However, other paragraphs (such as [84] and [85]) suggest that the Acting President's real reason for dismissing the appeal was that the appellant had asked for a determination on the merits as to what the award ought to say, and had received such a determination, although the determination was made in the wrong application and was wrongly expressed to be an interpretation. Chief Commissioner Beech agreed with the Acting President. Commissioner Scott took a slightly different approach. She more directly went to the question of the way in which the parties had
(Page 16)
- conducted the case. She noted that the parties, in effect, sought to roll all three applications into the one determination ([136]). She identified the issue for the parties as " ... an answer to what the divisor should be, not what it was according to a strict interpretation" ([138]). She acknowledged that the Commissioner did not apply "the traditional and well established approach to interpretation" ([138]). She considered that the error of the Commissioner was, in effect, choosing the wrong vehicle for making a determination which he had been asked by both parties to make.
This appeal
31 In my view, this is a clear case for the application of s 90(3a) of the Industrial Relations Act 1979 (WA). That provides:
"If any ground of the appeal is made out but the Court is satisfied that no injustice has been suffered by the appellant or a person who is a member of or represented by the appellant, the Court shall confirm the decision the subject of appeal unless it considers that there is good reason not to do so."
32 The appellant sought, by two applications, both an interpretation of the award and a variation of it so as to result in acquittal of leave at the rate of 11.55 hours for every 12 hours not worked. The respondent union sought a variation for acquittal at the rate of 9.5 hours. Both parties called evidence directed to the question of whether, as a matter of equity and good conscience, acquittal should be at the rate of 11.55 or 9.5 hours.
33 It is possible that the exchange between the Commissioner and the parties on 10 August 2005 (AB 246 to 248) led the appellant to believe that the Commissioner would engage only in an interpretation of the award. That seems unlikely, having regard to the course which the proceedings had taken to that time, but I accept for the purpose of argument that it may have done so. Even if it did, it was an indication made after the close of evidence and during closing submissions. It can therefore have deprived the appellant of, at the most, the opportunity to advance submissions directed to the question of what would, as a matter of merit, be an appropriate variation.
34 Before the Full Bench, the appellant was invited to identify any submissions which it might have made going to that issue. It declined to do so. The appellant did not identify to us any submissions which it might have made if it had clearly understood that the Commissioner would deal with the application as a matter of variation on the merits. Further, we
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- invited the appellant to tell us what difference it would have made to the Commissioner's approach if he had first carried out a correct interpretation exercise, and then turned to the question of merit. The appellant declined to do so, preferring to rest its argument solely on the basis that, as the appellant's counsel put it, " ... we were entitled in this case to have it dealt with in the context of a proper and true interpretation and we didn't get that. We got something different and we didn't ask for that".
35 As a matter of interpretation, it seems reasonably clear that the application of proper principles would have resulted in either the conclusion that the award was silent as to the rate of acquittal of annual leave, or that, because the entitlement was framed in terms of "hours" of annual leave, that it was to be acquitted at a rate of one hour for every hour of leave taken. If that view had been reached, it would then, however, have been necessary for the Commissioner to turn to the question of what the award should provide, in order to determine application 570. In doing so, he would have referred, as he did in his reasons for decision, to the evidence adduced by the parties which related to that question and would have evaluated that evidence, as he did in his reasons for decision. There is no reason advanced by the appellant for believing that, if he had undertaken that exercise, he would have arrived at any conclusion other than that the acquittal should be at the rate of 9.5 hours. I would therefore dismiss the appeal.
36 PULLIN J: I have read the draft reasons prepared by Wheeler J. I agree with those reasons and have nothing to add.
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