City of Wanneroo v Holmes

[1989] FCA 553

JAGMENT No.. .5.53/...8.7,

C A T C H W O R D S

INDUSTRIAL LAW - Arbitration (Cth.) - Interpretation of award - alleged breach - occupational description - principles of interpretation - drafting error - logical absurdity - function of Court - appeal from Industrial Magistrate to Full Court - effect

of repeal of Conciliat~on and Arbitration Act 1904 - jurisd~ction

of single judge to hear appeal - inadequacy of reasons for primary decision - duty to give reasons - rat~onale and content - function of appeal court where inadequate reasons but no conflict on ev~dence - Local Government Officers (Western Australia) Award - Assistant Welfare Officers - whether discharging dut~es of Social Welfare Officers - "initiate, co-ordinate and promote social welfare activities".

COURTS AND JUDGES - duty of judge or magistrate to glve reasons for decision - rationale and content

HIGH COURT AND FEDERAL JUDICIARY - Federal Court - appellate jurisdiction - appeal from Industrial Magistrate impos~ng penalties under 5.119 of Conciliation and Arbitration Act 1904 - jurisdiction exerciseable by single judge under Industrial Relations Act 1988 - transitional provisions - Industrial

Relations (Consequent~al	Provisions) Act 1988
WORDS PHRASES AND MAXIMS "appoint", "~nitiate", "co-ordinate",	.. .-

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"promote". :. - ' - S . .\

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Stone - Legal Systems and Lawyersf Reasonings (1968) ,L,	-- - -.-,.C
Pearce - Statutory Interpretation in Australia 2nd ~ q - 4	-
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Local Government Officers (Western Australia) Award 1975

~ c t s Interpretation Act 1901 5.8

Conciliation and Arbitration Act 1904 ss.113, 118A, 119

Industrial Relations (Consequential Provisions) Act 1988 s.3

Industrial Relations Act ss.

The Federal Court of A a ! ! : : t s u A~~~i9:~'s?~8( 1)

Poletti v Ecob (unrep. Fed. Ct. 8/6/89, Gray J.)

Pettitt v Dunkle (1971) 1 NSW LR 376

Carlson v (194s ) R 64 WN (NSW) 65

De Iacovo V Lacanale [l9751 VR 553

~oulemezi's v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247

Housing Commission of New South Wales v Tatmar Pastoral Co. Pty
Ltd (1983) 3 NSWLR 378
m 1 1 c Service Board of NSW v Osmond (1986) 159 CLR 656

Brittin ham v Williams 21 m 7

&Timber W~rke::~:nion v Monaco Sawmills pty Ltd (1980)

ALR 322

Sto kovski v Fitz erald (unrep. Supreme Court, WA 17.6.88, F.Ct.)

g n & Ti3kiTZar-d (1950) 68 CAR 597 (Aust. Indus. Ct.

F.C.
.Aust;alian Timber Workers Union v W. Angliss & Co. Pty Ltd (1924)
19 CAR 172
Pickard v John Heine & Son Ltd (1924) 35 CLR 1
Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241
Seamen's Union of Australia v Adelaide Steamship Co. Ltd (1976) 46
FLR 444
Merchant Service Guild of Australia v Sydney Steam Colller Owners
and Coal Stevedores Association (1958) 1 FLR 248
Geo. A. Bond & Co. Ltd (in liq.) v McKenzie [l9291 AR(NSW) 498
Australian Workers Union v Grazrers Association of New South Wales
(1939) 40 CAR 494

Re Health Administration Corporation; Re Public Hospital Nurses

7~tate Award) (1985) 12 IR 122

Rogers Meat Co. Pty Ltd v Howarth [l9601 AR(NSW) 291
Re Government Railways and Tramways (Engineers etc) Award [l9281
AR 53

Royal Australian Nursing Federation v Martindale Hospital Pty Ltd

(1978) WAIG 1251

Zatorski v South Australian Railways Commissioner (1982) 41 ALR

655

Cranford-Webster v McFarlane [l9471 SASR 162

Ga es v ~ommercial	Bank of Australia (1979) 38 FLR 415
-E-	Ve lcle Builders' Employees Federation of Australia v General
Motors-Holdens Pty Ltd (1977) 32 FLR 100
CITY OF WANNER00 v MICHAEL LINDSAY HOLMES NO. WAG 2 of 1989
FRENCH J .
PERTH 12 SEPTEMBER 1989
IN THE FEDERAL COURT	)
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
INDUSTRIAL DIVISION	1 No. WAG 2 of 1989

ON APPEAL from the judgment of
His Worship, Industrial Magistrate
D.W. Walsh SM of the Western
Australian Industrial Magistrate's

court

B E T W E E N :  CITY OF WANNER00

Appellant

and

MICHAEL LINDSAY HOLMES

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	12 SEPTEMBER 1989
WHERE MADE:	PERTH
THE COURT ORDERS THAT:

1.         The appeal is allowed.

2.         The declslons of the Industrial Magistrate made 1 December 1988 whereby on complaints 419 to 423 of 1988

~nclusive, he found the appellant to have breached s.119

of the Conciliation and Arbitration Act 1904 be set
aside.
The flnes imposed and orders for payment of back wages
made by the Industrial Magistrate be set aslde.
The complaints 419 to 423 of 1988 inclusive in the
Industrial Magistrates Court will be dismissed.

NOTE:  Se t t l ement and e n t r y o f orders i s d e a l t w i t h i n

Order 36 o f the Federal Court R u l e s .

IN THE FEDERAL COURT	)
OF AUSTRALIA	1

WESTERN AUSTRALIA 1

DISTRICT REGISTRY	1
INDUSTRIAL DIVISION	1 No. WAG 2 of 1989

ON APPEAL from the judgment of
His Worship, Industrial Magistrate
D.W. Walsh, SM of the Western
Australian Industrial Magistrate's

court

B E T W E E N :  CITY OF WANNER00

Appellant

and

MICHAEL LINDSAY HOLMES

Respondent

CORAM:  FRENCH J.
12 SEPTEMBER 1989

REASONS FOR JUDGMENT

Introduction

On 1 December 1988, in the Industrial Magistrates Court
in Perth, the City of Wanneroo was found, on five complaints, to

have breached the Local Government Officers (Western Australia)

Award 1975 in failing to pay four of its employees worklng as Social Welfare Officers the mlnlmum annual rate of salary	prescribed by the Award, contrary to s.119 of the Conciliation and
Arbitration Act 1904.
It is not in dispute that each of the employees was paid 90% of the rate applicable under the award to a Soclal Welfare Officer. None was appointed to a posltion so designated. However
the respondent, an inspector appointed under the Concil~ation and Arbitration Act, successfully contended before the learned industrial Magistrate, that the nature of their responsibilities and the work undertaken by the women put them into the category of Social Welfare Officers and attracted an entitlement to the full award rate for that position.
The City now appeals against the decisions seeking to have them quashed and orders made by the Industrial Magistrate, requiring the City in each case to pay arrears of salary, set aside. In lieu thereof orders are sought that the complaints be dismissed.

Factual Background

( i ) The Job Specifications

Of the five complaints, two related to one employee, Linda Marie McGowan, covering the periods 12 September 1983 to 2 March 1984 and 6 March 1984 to 29 October 1987 respectively. In the first period, according to the complaint, she was employed as a casual social welfare officer, but not paid the rate appropriate to that posit~on. In the second period, it was alleged that she

was employed as a social welfare officer and agaln underpaid. The	remaining three complaints were in respect of Patricia Maree
Townsend for the period 13 May 1985 to 29 October 1987, Kathleen Ethel Reid for the period 10 February 1986 to 29 October 1987 and Dawn Isobel Adams for the period 1 July 1982 to 31 January 1986.
The job specifications prepared by the City and relevant to each of the women, designated their respective positions as that of "Assistant Welfare Officer (Child Care)". In each case their "Basic Function" was described as:

"To meet the needs of chlldren and their families in terms of quality care for young children in a local area."

The job specifications indicated that each was responsible to the Social Welfare Officer (Child Care) and thelr specific responsibilities and duties as defined by the specifications were in terms identical or substantially similar to the following (taken from the job specification for Ms. Townsend):

"7.1 To assist Soclal Welfare Officers (Child Care) to maintain a regular visitation programme to registered Family Day Care Mothers, as required by State Licencing Authorities (Department for Community Welfare).

7.2 To assist with Support Servicing:

Transport;
Referral to parents;

Occasional emergency Child Care

7.3 To assist generally with administration

duties, eg.

Telephone duties;

Enrolment Sheets;
Maintain card lndex - record of children
enrolled;
Keeplng records of visits made to registered
caregivers;
Quarterly Reports to Community Services and

Monthly Reports to Councll.

7.4 To assist Child Care Officers generally to

maintain:

(a)	Quality child care service to users of scheme;
(b)	registered minders working wlth the

Reliable support servlces to Scheme.

7.5 Responsible for the routine visits in Scheme 1

and as required. caregiver applications.

7.6 Responsible for the maintenance of First Aid

Equipment and the organisation of courses for
Family Day Care mothers.

7.7 Undertake any other duties specified by Social Welfare Officer (Child Care1 (355)"

The Social Welfare Officer (Child Care) was said to be responsible to the Chief Health Surveyor and have the following specific responsibilities and duties set out in her lob specification:

"7.1 This Officer has four main areas of responsibility within the scheme:

7.1.1 To the Local Community. To establish priorities and to co-operate with ;xlsting services and agencies to provide a comprehensive and quality child care service which meets the local needs.

7.1.2 To the Parents. To select suitable Family Day Care givers; to be readily available to counsel parents and advlse on exlsting services, possible	alternatives and to help (them) in
their selection of a suitable placement; to encourage parents in furthering their understanding and knowledge of child development and child-rearlng.

7.1.3 To the Famlly Day Care-Glvers. To provide support services for the Selected caie-giver and to promote the further development (Tralning sessions, playgroups drop-in centres, meetings, referral to other agencies etc.)

7.1.4 To the Children. To foster the link between parent-child-familv care aiver: to use h;r knowledge and ;nderstandinb of child activities and development to

provide a service geared to the needs

of the individual child.

7.2 The Officer's work load lnvolves the

following.

7.2.1 The development and daily management of the Family Day Care scheme in a selected area.

7.2.2 Community liaison including explaining the concept of famrly day care.

7.2.3 Publicity includrng recruiting Family Day Care mothers and chlldren to be care (sic) for.

7.2.4 Selection of care-glvers which involves several lengthy interviews.

7.2.5 Placement of children wlth a sultable minder (which involves at least one interview with parents and an introduction of natural parents and Family Day Care Home).

7.2.6 Ongoing support of Family Day Care

mothers.

7.2.7 Administration Including liaison with and reporting to, the appropriate adminlstrative officer o f the sponsoring organisatron. Liaison with and reporting to the Office of Child Care, Department of Children's Servlces with regard to registration of Family Day Care home.

7.2.8 Devising record systems and developing application forms.

7.2.9 Arranging payment of subsidies

7.2.10 Home vlslts initially to facilitate the development of a warm trustlng relationship between care-giver and child, then for play session leaving equipment and observation and evaluation of the progress of the chlld in the Famlly Day Care home.

7.2.11 Report on child's placement.

7.2.12 Availability to natural parents to discuss child's placement.

7.2.13 Transport in emergency situations

7.2.14 Purchase and maintenance of equipment.

7.2.15 Emergencies (sickness in Family Day

Care home or of child in care).

7.2.16 Initiating and arranging support

services.

7.2.17 Keeplng accurate statistical

information for Offlce of Chlld Care.

7.3 Undertake all other duties as directed by the Chief Health Surveyor."

Evidence was called by the complainant as to the nature of the duties carried out by each of the women. It occupied over three days of hearing time. No evidence was called by the Clty.

(ii)    Evidence of the Social Welfare Officers

Rhonda Good who has been employed wlth the appellant since 6 July 1981 as a Social Welfare Officer (Chlld Care) described that job as belng in substance that of a Co-ordinator of Family Day Care. She is one of two CO-Ordlnators and 1s

premises known as the Kingsley Day Care Centre. The servlce,

responsible for the operation of a family day care scheme based at

evidently limited to a particular geographical area in the City of Wanneroo, is designated Scheme 1. A like service for the Whitfords area wlthln the city is designated Scheme 2 and administered by another Co-ordinator from premlses at Mullaloo. ~lthough operated by the appellant the services are funded by the Commonwealth Office of Child Care and are subject to the supervision of the State Government's Department of Community Services. It involves the recruitment and supervision of persons who provide in their own homes day care facilities for children of families living in the area. A care-giver licensing scheme operated by the State Government requires that prospective care-givers be interviewed and assessed and if found suitable, recommended by Mrs Good to the Department of Community Services for the issue of an appropriate licence. A document entitled "DUTIES AND RESPONSIBILITIES OF CO-ORDINATORS" published by the Department of Community Services was said to set out the responsibilities of persons in Mrs Good's position. These include under the heading "Administration" the selection and management of staff, the monitoring and evaluation of their roles, the payment of subsidies, budgeting, maintenance of records and filing, the selection and monitoring of care-givers, interviewing of parents and monitoring of their children, the facllitation of the development of care-givers, the maintenance of a toy library, provision of publicity and liaison with other welfare and community organisations.

Assistant Welfare Officers working with her in this

case, Kathleen Reid and Patricia Townsend, are allocated particular territories and dutles in relatlon to care-givers in those areas. Their duties include regular vrsitation of at least monthly frequency. The Assistant Welfare Officers conduct in Mrs Good's presence interviews with prospective care-givers and explain various aspects of family day care including regulatory framework and safety policies. Where an applicant for a licence wishes to proceed with the application after the Initial interview, Mrs Good follow up with a visit to the applicant's home whlch she assesses for safety and suitability for family day care use. The Assistant Welfare Officers deal with inquiries about the availability of day care services from parents within the areas for which they were responsible. when an inquiry is received the relevant assistant, with Mrs Good, looks at the records to see if there is a vacancy with a view to matching up the parent with a care-giver. Once a week there is a meeting of staff where ~ r s

Good and the Assistant Welfare Officers in Scheme 1 report on their vislts to care-givers, how the various placements are faring and what jobs are coming up. If there is any major problem with a care-giver Mrs Good visits the care-giver herself. She personally handles interviews with parents whose chlld or children have been allocated to a particular care-giver, enrolls them in the scheme and helps them with any application for assistance with fees. Her duties also involve budgeting and the supervision of the toy librarian and play group leader. There is a play group facility at Kingsley House run by the play group leader and with toys

provided from a toy library. Care givers use the playgroup from

time to tlme. Mrs Good 1s required to send reports to the Commonwealth Office of Child Care every quarter stating how many children she has in care, how much money she has spent on fees, subsldy in that quarter and an overall plcture of the financial situation of the scheme.

Mrs Good described the principal duties of the Assistant Welfare Officers as being to support and visit the care-glvers, to ensure that they worked withln the regulations and to assist them with anything that they might require. Each was required to prepare a quarterly report for the Department of Community Services on each of the care-givers within her area of responsibility. In cross examination she accepted that the Assistant Welfare Officers are appointed to asslst her and that she allocates functrons to them.

Evidence was also given by Joan Mary Bowler, the Co-ordinator of Scheme 2 otherwise known as the Whitfords Famlly Day Care Scheme. From 1981 to August 1985 she worked out of Kingsley House. In August 1985 the Whitfords Scheme acquired its own premises. Mrs Bowler's evidence as to the nature of the day care service and her role in it was to much the same effect as that given by Nrs Good. Initially she had the services of Dawn Adams as an Assistant Welfare Officer, servlces which were shared with Scheme 1. Later when Ms. Adams was engaged full time in Scheme 1, Linda McGowan was employed as Assistant Welfare Officer for Scheme 2. Asked about the duties of the Assistants Mrs Bowler sald they were to maintain the regular visitation programe to

Bowler said that when carrying out vlsits to care-glvers they care-givers. As to the degree of supervision she exercised, Mrs

operate on their own. However they usually discuss their visits and any problems wlth her on return to the offlce. In addition there are weekly staff meetings. At these staff meetings there is discussion of problems affecting particular children and the question whether referral to some other agency is indicated. One of the functions of the Assistant Welfare Officer involves organising social activities or excursions for care-givers and children under their care. This, according to Mrs Bowler, affords the care-givers an opportunity to come together and discuss common problems. It also gives to the children an opportunity to mix in a larger group than that available in the care-givers home. Mrs Bowler and Mrs Good in their respective Schemes make the decision whether a particular event should be organised and then leave it to be organised by the Assistant. This involves the Assistant in making bookings and contacting care-givers. In relation to the .playgroup arrangements within Scheme 2, MrS Bowler said that because of space limitations at the Kingsley House at the time that both Schemes operated out of it, she decided to start a regional playgroup at Whitfords. This was organised by Dawn Adams. Mrs Bowler decided that more regional playgroups would be desirable and another was organised at Heathridge by Linda McGowan. Ms. McGowan also had the idea of starting a drop-in centre for care-givers. Mrs Bowler obtained approval for this from the appellant, approached a local church and obtained the use of a room. Ms. McGowan then started the centre up and ran it for

2 who took over the running of the centre as part of her duties.

three or four months until a toy librarian was appointed to Scheme

Mrs Bowler was taken through the llst of co-ordinator's duties set out in the Department of Community Service document and item by item indicated that she did perform those duties. She did say however, in answer to a question from his Worship, that the assistants were capable of taking her place in any of the areas of responsibility if she happened to be absent. She described herself as being responsible for the overall peformance of the Scheme and its planning. She accepted in cross examination that observation was an important element of the Assistant's role when they visited a care-giver's home. If an Assistant became aware of anything out of the ordinary arising from a visit, then Mrs Bowler would intervene and take her own Initiative in that situation.

(iii)    Evidence of the Assistant Welfare Officers

The Assistant Welfare Officers were also called to give evidence as to their various functions. That evidence was to the same general effect as that of the two co-ordinators. Linda McGowan was first employed by the appellant on 16 August 1983 as a casual social welfare officer until March 1984 when she became a member of the permanent staff. Initially she was asked to organise what she called "outreaching playgroups" for both Schemes 1 and 2. Thls involved researching the needs of care-givers in the Scheme areas and the best locations for the playgroups to	meeting those needs, arranging transport for care-givers who	required it and considering the numbers and ages of children who
were involved so that playgroups would be suitable for the care-givers they were trying to reach. She also had to buy equipment and llaise wrth other agencles in relation to the facilities. Through her involvement with the playgroups Ms. McGowan got to know the care-givers and the children. They asked for other support services and she discussed these with the co-ordinators, Goode and Bowler. They felt that if Ns. McGowan were to follow up these contacts with visits to the care-givers homes, they could be used as a means of educating them in the proper discharge of their duties. Her hours of employment as a casual were increased to give her time to make these visits. After she became a permanent employee in March 1984 Ns. McGowan was no longer responsible for the playgroups. Her services were utilised in visiting care-givers and providing support services within Scheme 2. She said in evidence that she was responsible for all visits within that Scheme and had to organise each month who was to vislt whom. She described her role in organising the drop-in centre which, she said, involved finding premises, purchasing equipment, arranging attendance and advertising. The centre was in the nature of a facllity enabling care-givers to come along at whatever time they required, for however long they wanted for relaxation and advice on problems that they might be experiencing.
Apart from the visits to care-glvers a lot of Ms. NcGowanls time was spent in answering phone inquiries from parents seeking child care placement for their child or children,
enrolling the parents in the scheme and assessing, on the basis of their income, whether there was any fee rellef available to them. She would also attend community meetings at lunchtimes and in the evenings. The purpose of these attendances was to give out information to promote the scheme and to gain information relevant to its operation. She has also arranged first ald courses for care-givers. This involved finding out what flrst aid courses were available in the locality, advertising them in the newspaper and preparing lists of people who wanted to attend them and booking them in. For new care-givers joining the scheme she would arrange a half day orientation in-service course where they would be Informed about parent rnterviews, bookwork, taxation requirements and child development. MS NcGowan wrote up these courses and conducted them. She also spoke of organising social events for care-grvers and children such as bowling nights, dinners and meetings with other members of family day care schemes at their respective venues. She also prepared a parent's information page to be inserted in a newsletter circulated to users of the Scheme.
Patricia Townsend told the court below that she had been employed as an Assistant Welfare Officer by the City of Wanneroo since May 1985. At the time of the hearing she was working in the family day care scheme at Kingsley. She described herself as Assistant to Rhonda Good who she called "our Senior CO-Ordinator". Her job is varied but the majorlty of her work involves visiting llcensed care-givers. Of those in Scheme 1, she is responsible
for 29, the nature of her responsibilities being broadly consistent with the description given by Ns. Good. She described the balance of her duties as the preparation of licensing progress reports, dealing with telephone enquiries from the public, referrals of children (presumably to particular care-givers or outside agencies), working with rnfant welfare nurses, other day care centres and referral agencies. Asked whether she engaged in promotional work, she said she did. Thls work was said to involve visits to new day care centres and infant welfare centres open in the region to introduce herself as a representative of the famlly day care scheme. Promotional work was also said by ms. Townsend to be involved in her handling of telephone enquiries where:

"...you explain the role that we have and then enquire of them as to whether they want family based care or centre based care."

In this category she receives some 15 to 20 calls every day. She obtains information about first aid courses conducted by the Red Cross and provides that information to care-givers who might want to attend them. She also introduces care-givers to an assertiveness training course run through a community training centre in Leederville. She made some inquiries of the West Australian College of Advanced Education at Joondalup and found a course was about to be commenced for persons working with children. She obtained information about the course, passed it on

After about liaison work generally, Ms. Townsend said she	to interested care-givers and attended the orientation evening.
maintained contact wlth various government departments, infant welfare centres, medical practitioners and an organisation called the Parent Help Centre.
In cross-examination she agreed with the proposition that a substantial part of her time was spent visiting care-givers, attending to the clerical side of her work, answering the telephone in relation to inquiries from parents and potential care-givers, answering general queries from the public, attendance at play groups and discussions with Mrs Good and other colleagues. She was not otherwise challenged on her account of the content of her work.
Kathleen Ethel Reid has been employed by the City of Wanneroo since February 1986. She has worked since that time as an Assistant Welfare Officer at the Kingsley Family Day Care Centre. Her evidence as to her duties was broadly consistent with that given by Good and Bowler. She was Involved in the provision of courses for care-givers. She assessed a pilot first-aid course set up by the Red Cross and the Department of Community Services and wrote a report on its suitability for child care workers. She organised a child abuse seminar for care-givers as well as a tax consultant to talk to them about taxation. She reviewed the schemes safety policy, a review approved by the Acting Chief Health Surveyor at the City of Wanneroo and ultimately adopted as safety policy for both the day care schemes run by the City.
Dawn Isobel Adams was employed by the Clty of Wanneroo between November 1979 and January 1986 as an "Assistant Co-ordinator". In the first three years she worked in both Schemes 1 and 2 but when the later, the Whitford's Scheme, was able to be located in its own premises she continued working exclusively with it. When she commenced her employment the day care system was just getting started and she had in a sense "to create...the job itself". Again her evidence as to her routlne duties was consistent with that given by the other witnesses, Good and Bowler and the other Assistant Welfare Officers.
The course of the hearing before the Learned Industrial Magistrate discloses little conflict on the central facts. The primary function of each of the Assistant Welfare Officers seems to have been to visit, maintain contact with and asslst care-givers in the two schemes operated by the City of Wanneroo and to prepare reports of thelr general performance. In a number of instances they have from time to time taken initiatives in encouraging care-givers to increase their knowledge in areas related to the care of children in the~r charge. Assistant Welfare Officers have also participated in the process of assessing and selecting care-g~vers and matching them up wlth parents and childrens seeking to use the services. General supervision and responsibility for the administrative and financial aspects of the schemes and their day to day operations are clearly vested in the Soclal Welfare Officers, Good and
Bowler.

Statutory Framework and the Relevant Award

The jurlsdlct~on of the Industrial Mag~strate to hear

and determine the complaints derived from S . 119 of the Conciliation and Arbitration Act 1904 which was repealed with effect from 1 March 1989 by s.3 of the Industrial Relations (Consequential Provisions) Act 1988 and replaced by the Industrial Relations Act 1988. Section 119 now reflected, although not in rdentical terms, in 5.178 of the Industrial Relations Act 1988 provided:

"119(1) Where any organization or person bound by an order or award has committed a breach or non-observance of a term of the order or award, a penalty may be imposed by the Court or, except in the case of a breach or non-observance of a term of an order or award of the klnd referred to in sub-s.33(1), by any District, County, or Local Court or Court of summary jurlsdictlon that is constituted by a Judge, by a Police or Stipendiary or Special Magistrate or by an Industrial Magistrate appointed under any State Act who is also a Police, Stipendiary or Special Magistrate.

(ID) The maximum penalty that may be imposed under sub-section (1) in respect of a breach of a term of an order or award rs -

(a)

where the penalty is imposed by the Court

(i)	in a case to which sub-paragraph (li) does not apply - $1000; or
(ii)	if the breach is a separate breach by virtue of a provrsion included in an order or award in accordance with paragraph 41(l)(c) - $500; or

(b)

in any other case - $250.

employer before a Court specified in (3) Where, in any proceedings against an

sub-section (l), it appears to the Court that an employee of that employer has not been paid an amount to which he is entltled under an order or award, that Court may order that the employer shall pay to the employee the amount of the underpayment but no order shall be made in respect of so much of the underpayment as relates to any perlod more than 6 years prior to the commencement of the proceedings.

(4) Proceedings under this section in respect

of a breach of a term of an order or award may be commenced at any trme within 6 years after the commission of the breach."

The relevant provisions of the Local Government Officers (Western Australia) ward 1975 are the definitions of the terms "Social Welfare Officer" and "Senior Social Welfare Officer" whlch were inserted in clause 5 of the Award by a consent order of the Conciliation and Arbitration Commission on 4 March 1981. The definitions are as follows:

""Social Welfare Officer" shall mean a person appointed by Council to rnitiate, co-ordinate and promote social welfare activities within the district and, without limiting the foregoing, shall include one or more of the following: care for the family, children, the aged and supportive counselling.

"Senior Soclal Welfare Offlcer" shall mean a Social Welfare Officer who was appornted by Councll to supervrse, direct or control the services of one or two Social Welfare Officers."

There is no definition for the position of "Assistant Welfare

Officer".

The Decision Under Appeal

The Learned Industrial Magistrate's reasons were brief,

and can be set out in full:

"THE INDUSTRIAL MAGISTRATE: The five complaints before the court are brought against the City of wanneroo - an alleged failure to pay its employees Kathleen Ethel Reid, Dawn Isobel Adams, Linda Mary McGowan and Patricia Mary Townsend while employed as social welfare officers the minimum rate of salary to be paid to social welfare officers. ~t is common ground that the defendant is bound by the award and that the persons named were employed by the defendant during the material times.

The complainant says that the women in questlon were social welfare officers. The council say they were not. It is common ground that they were paid

90 per cent of the rate for social welfare

officers. In the award "soclal welfare officers"
is defined in Clause 5 ( 3 7 ) as:

Shall mean a person appointed by council to ~nitiate, CO-ordlnate and promote social welfare activities within the distrlct and wlthout limlting the foregoing shall include one or more of the following: care for the family, children, the aged and supportive counselling.

In the job specification given to the employees the basic function is to meet the needs of children and their families in terms of quality care fore (sic) young children in the local area. I am satisfied on the evidence before the court that the employees carried out this basic function. I am further satisfied the function comes withln the definition of a social worker, namely care for the famlly and children. While the employees may have been appointed as assistant welfare officers, they did the job of social welfare officers and should be paid accordingly. See Zadorski -v- South Australian Railways Commissioner and anr, Federal Court, Industrial Division, 2nd April 1982. For the reasons stated I find all flve complaints

proven. "

Grounds of Appeal

There are some six grounds of appeal whlch are as

follows:

1.    The Learned Magistrate mlsdlrected hlmself and consequently erred in law by havlng regard to the Award deflnltion of "Social Worker" when in fact the case purely concerned the question of whether the employees, the subjects of the application fell within the Award description of "Social Welfare Officer".

2.    The Learned Magistrate erred in law in failing to make any or any sufficient findings of fact after three days of evidence upon which to condition his conclusion that each of the applicants carried out the duties of a "Social Welfare Officer" as defined in the Award.

3.   The Learned Magistrate erred in fact and in law in holding that the appellant's employees carrled out the duties of "Social Welfare Officers" (as defined in the Award) in that there was no sufficient evidence that the said employees "initiated, CO-ordlnated and promoted soclal welfare activities" (this expression to be read conjunctively rather than disjunctively) within the relevant district.

4.   The Learned Magistrate erred in law to the extent that he found (sub silentio) that each of the applicants "~nitiated" social welfare activities.

5.    The Learned Magistrate erred in law in failing to dlstingulsh what in this case the relevant social welfare activity was for the purposes of the Award definition of "Social Welfare Officer" (le. in failing to distinguish between the overall scheme for child minding/care in which the applicants worked and which was a social welfare activity and the tasks carried out by each applicant within the scheme which were of a clerical, administrative or inspectorial nature rather than being properly characterised as social welfare activities in their own right).

6.   The Learned Magistrate erred in law and fact

Social Welfare Officer - there being no in findlng that the employees did the job of a

findings of fact in his judgment to identify what in fact the job of a Social Welfare Officer at the City of Wanneroo was and whether each of such officers' tasks were performed by the employees - the evidence in the case establishing that the employees did not carry out all the duties of the Social Welfare Officer.

The Appellate Jurisdiction and Powers of the Court

The appeal in this case was instituted by notlce flled on 21 February 1989 and came on for hearing on 10 May. The appellate jurisdiction thus invoked was originally vested in the ~ustralian Industrial Court by vlrtue of s.113 of the Concillatlon and Arbitration Act 1904 which provided in sub-s.(l):

""113(1) The Court has jurisdiction to hear and determine an appeal from a judgment, decree, order or sentence of a State court (not belng a Supreme Court) or of a court of a Territory made, given or pronounced in a matter arlsing under -

(a) this Act; or
(b) the Public Service Arbitration Act 1920."

"The Court" was defined in s.4 as "the Australian Industrial Court created by this Act". The powers of the Court on an appeal under s.113 were set out in 5.115 of the Act. On 1 February 1977 Pt.VA was inserted into the Act to transfer jurisdiction from the Australian Industrial Court to the Federal Court of Australia. In particular, s.l18A(l) provided:

"118A(1) On and after the commencement of this Part -

(a)

the jurisdiction and powers expressed by this Act to be vested in or exerclsable by the Court or a Judge of the Court are, except in relation to matters in respect of which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested in and exercisable by the Federal Court of Australia or a Judge of that Court and, subject to this section, are exercisable in accordance with the Federal Court of Australia Act 1976; and

(b)

a reference in this Act to the Court (other than in sections 104, 105, sub-sectlons 111(1) and (2) and sections 4 5 6 7 118 and 184) shall, in relation to, and to matters arising out of, that jurisdiction or those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division."

Sub-section ( 2 ) it should be noted, did not derogate from the grant of jurisdiction and power conferred on the Federal Court by sub-s.(l). It did, however, change the definition of "the Court" in provisions of the Act other than those dealing with jurisdiction and power.

Sub-section 118A(4b) required that the appellate jurisdiction derived from s.113 be exercised by a Full Court. And this was the position at the time that the present appeal was instituted.

On 1 March 1989, the Industrial Relations Act 1988 commenced and so too did the Industrial Relations (Consequential Provisions) Act 1988 ("IRCP Act") by which the Conciliation and Arbitration Act 1904 and its various amendments were repealed.

Section 8 of the IRCP Act provides, inter alia:

"8(1) Where, immediately before the commencement:

(a)	a proceeding in a matter arising under the previous Act was pending in the Court; and
(b)	the hearing of the proceeding (other than any interlocutory hearing) had not started;

Part 111 of the Industrial Relations Act as modified by subsection (2) applies in relation to the proceeding as if the proceeding had been instituted under the Industrial Relations Act."

Part I11 of the Industrial Relations Act includes ss. 50, 53 and
56 which provide in the relevant parts:

"50(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which

(C) appeals lie to it under section 56;"

"53(1) Subject to subsection (2) the ]urisdict~on
of the Court may be exercised by a slngle Judge.

(2) The lurisdiction of the Court shall be exercised by a Full Court in relation to:

(a)	questions referred to the Court under sections 46 or 82;
(b)	matters in relation to whlch applications are made to the Court under sectlon 153; and

(C) matters in relation to which applications are made to the Court under section 294.

(3) (Not relevant for present purposes)"

"56(1) An appeal lies to the Court from a judgment of a State court (other than a Supreme Court) or of a court of a Territory in a matter ar~sing under

this Act.

(2) It is not necessary to obtain the leave of

the Court or the court appealed from in relatlon to
an appeal under subsection (1).

(3) An appeal does not lie to the High Court from a judgment from whlch an appeal may be made to the Court under subsection (l)."

There is no modification of ss.50 or 56 effected for transitional purposes by s.8 of the IRCP Act. Modifications to s.53 merely extend the references in paras. 53(2)(a), (b) and (c) to pick up proceedings under the provisions of the Conclllation and Arbitration Act equivalent to those expressly mentioned in those paragraphs.

The effect of sub-s.53(1) read wlth sub-s.(2) and s.56 is that the appellate jurisdiction of thls Court under the Industrial Relations Act may be exercised by a slngle Judge. The complaints heard by the Learned Industrial Magistrate were matters arising under the Conciliation and Arbitration Act and the jurisdiction of this Court to hear appeals in relation to them derived from s.113 of that Act until 1 March 1989. The appeal having been instituted on 21 February was, at the commencement of the Industrial Relations Act 1988, "a proceeding in a matter arlsing under the previous Act ...p ending in the Court" within the meaning of para.E(l)(a) of the Industrial Relations (Consequential Provisions) Act 1988. And at that date the hearlng of the proceeding had not commenced. The conditions under paras.E(l)(a) and 8(l)(b) having been met, Part I11 of the Industrial Relations

Act applied in relatlon to the appeal as if it had been instituted	under that Act. Sectlon 8 in effect requlres an appeal pending at
the commencement date, but not then part heard, to be treated as though instituted under the Industrial Relations Act. Whether or not the true source of the appellate jurlsdlctlon is 5.113 of the Conciliation and Arbltratlon Act read with s.8 of the Acts Interpretation Act 1901, Part I11 will apply on the assumption forced by the transitional provisions, that jurlsdittlon derives from that Part. In pat'tlcular, 5.53 of the Industrial Relatlons Act applies to enable the jurisdiction to be exercised by a single judge. In that regard I respectfully differ from the vlew expressed by Gray J. in Poletti v Ecob (unrep.; 8/6/89). And although when the matter came on for hearing in May it was llsted before a Full Court, the parties agreed and the Court declded that it should be dealt with by a single Judge.
Unlike the Conciliation and Arbitration Act 1904, the Industrial Relations Act makes no provision for the powers of the court in the exercise of its appellate jurisdiction. As the former Act was the legislation by which the Australian Industrial Court was established, it was necessary to include provisions relatlng not only to its jurisdiction, but also its powers. There was no change to these provisions when the functions of that Court were transferred to the Federal Court. The Federal Court of Australia Act 1976 however, contains its own provision for the powers of the Court in the exercise of appellate jurisdiction and it was no doubt regarded by the draftsman of the Industrial Relatlons Act as unnecessary to modify or extend that grant of power in relation to the exercise of appellate jurisdiction under the Industrial Relatlons Act. Relevantly, s.28 of the Federal
Court of Australia Act provides:

"28(1) Subject to any other ~ c t , the Court may, in

the exercise of its appellate jurlsdlction -

(a)	affirm, reverse or vary the judgment appealed f rom;
(b)	give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(C) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks flt;

(f) grant a new trlal in any case in which there has been a trial, either with or without a jury, on any ground upon which it 1s appropriate to grant a new trial;"

The Sufficiency of the Reasons for Decision

In his reasons for decision, the Learned Magistrate addressed one and only one aspect of the appellant's job specification for Assistant Welfare Officer, namely the description of the "basic function" which was:

"To meet the needs of children and their families in terms of quality care for young children in a local area."

He found as a matter of fact that the work done by McGowan,

Townsend, Reid and Adams "carrled out the baslc function". Hls

additional observation that they "did the job of social welfare offlcers and should be paid accordingly", unadorned by elaboration, can only be seen as a re-statement of the conclusion

at which he had already arrlved.

The "basic function" is little more than a statement of the objective of the job descrrbed In the body of the specification. Taken by itself, it is as applicable to the functions of Individual care-givers operating withln the appellant's schemes as it is to those of the Assistant Welfare Officers.

The award description of the Soclal Welfare Offlcerst task, on the other hand, embodies elements of initiation, CO-ordlnatlon and promotion of social welfare activltles wlthin the District. None of those are necessary features of the "basic function" of the Assistant Welfare Officers. And although the learned magistrate appears to have addressed the evldence of what they did sufficiently to consider that it was within the "basic function", that did not necessarily involve a consideration of whether they did those things which the award describes as features of the job of a Social Welfare Officer. Given His Worship's failure to refer to any of those thlngs, it is reasonable to conclude that in truth he did not refer to them. He has therefore falled to address essential elements of the breaches alleged. And even if he had, sub silentio, considered these matters, he failed to adequately disclose the reasoning process

used.

It is well established that a failure by a judge or magistrate to give any or adequate reasons for decislon can amount to an error of law. Untll recently judiclal exposition of the duty rested largely upon the proposition that a failure to do so would encroach upon rights of appeal. This was the limiting criterion enunciated by Moffitt JA (with whom Manning JA agreed) in Pettitt v Dunkley (1971) 1 NSW LR 376 at 388:

"I do not think there is any judicial duty to glve reasons except so far as such duty can be related to a right of appeal."

The various authorities referred to in his Honour's reasons and the judgment of Asprey JA. in the same case, provided support for

that view - see especially Carlson v - R (1947) 64 WN (NSW) 65

(Jordan CJ) and generally De Iacovo v Lacanale 119571 VR 553, 558-559 (Monahan J.). But in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247, the Court of Appeal did not accept that limitation on the duty. The right of appeal there arose only on a question of law, a circumstance regarded by Kirby P. as enhancing the judge's duty to set out, however briefly, reasons for decision. Mahoney JA repeated the view he had expressed in Housing Commission of New South Wales v Tatmar Pastoral Co. ~ t y

Ltd (1983) 3 NSWLR 378 at 386 that the requirement was not confined to cases where there is an appeal and should be seen as an incident of the judicial process. That comment had been	approved by the High Court in Publlc Service Board of NSW v Osmond	(1986) 159 CLR 656, 667 (Gibbs CJ, Wllson, Brennan and Dawson JJ
agreeing) with the qualification that the requirement 1s "a normal but not a universal incldent". The third member of the Court of Appeal in Soulemezis, McHugh JA, considered that the statement of reasons for a ludicial decision serves at least three purposes:

1.    To provide the foundation for acceptability of the decision by the parties and the public.

2.    To further ludicial accountabillty.

3.    To enable practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.

A powerful justiflcatlon for accountability as a means of demonstrating rationality in decision-making was enunciated in Julius Stone's Legal System and Lawyersr Reasonings (1968) at p.60:

"As long as men aspire to act rationally, that ls, explicably and not capriciously, they must have resort to the forms of Inference wlthout whlch they can account neither to themselves nor their fellow- men for their behaviour. It has been a cardlnal rule of the common law, for instance, and it is also the practice of the modern civil law, that judges should so attempt to account by reasons for their judicial behaviour."

And in more prosalc but no less cogent terms, Professor Wade wrote:

"The giving of reasons is required by the ordlnary

man's sense of justice and is also a healthy discipline for all who exercise power over others."

- adopted in Public Servlce bard of New South

Wales v Osmond (supra) at 663 (Gibbs CJ.)

There is no doubt a variety of useful purposes to be served by laying open to scrutiny by the parties and by the public the process of reasoning which leads to a decislon in a given case. Not least is the consideration that the duty to formulate and express reasons may enhance the quality of decision-making. But being a judge-made duty it is not surprising that it will be supported by more than one rationale and that these may evolve.

The content of the duty wlll vary according to the circumstances of the case and in some cases reasons may not be necessary. As McHugh JA observed in Soulemezis (supra) at 279, neither the needs nor the appearance of justice requlre that reasons be given for every decision by a judlclal tribunal. Many interlocutory matters, rullngs on admissibility of evidence and the like, will not require explanation. The Victorian Full Court in Brittingham v Williams 119321 VLR 237 said that:

"A case may turn entirely upon a finding in relatlon to a single and simple question of fact, or be so conducted that the reason or reasons for declsion is or are obvious to any intelligent person; or a claim or defence may be presented in so muddled a manner that it would be a waste of public time to give reasons; and there may be other cases where reasons are not necessary or even desirable."

Nevertheless I respectfully adopt the observation of McHugh JA.	that "...when the declslon const~tutes what is in fact or in
substance a flnal order, the case must be exceptional for a judge not to have a duty to state reasons".
It may well be the case, that the list in the Industrial magistrate's Court is such that it would be inappropriate to requlre the formulation of extensive analysis of the evidence and the law to support each decision. But as Sweeney and Evatt JJ said in Australian Timber Workers Union v Monaro Sawmills Pty Ltd (1980) 29 ALR 322, an appeal from the dismissal of a complaint for breach of an award:

"...in any case such as the present, the primary Tribunal should state the facts found and the reasons for the decision. .."

The reasons glven at first Instance in that case, rather like those given in the present matter, were brief, comprising a statement of the question to be determined, the onus and standard of proof, a findlng that the complainant had not discharged the onus and a finding that there did not exist between the "employee" and the defendant "employer" a relationship of master and servant. The defendant, it was said, had engaged the "employee" as an independent contractor.

Keely J. was of the view that the absence of flndings of

fact and reasons for decision constituted an error of law.

Sweeney and Evatt JJ. on the other hand, held that while the	failure to provlde reasons made their task more difficult than it
should be, it dld not amount to an error of law. I take that to be an observation llmited to the case then before the Court and not laying down any general prlnclple. In my oplnion the reasons given in this case were so brief as to constitute a breach of the judicial duty and therefore an error of law.
One option open to the Court is simply to set aside the decisions and penalty and send the case back to the Industrial Magistrate for further hearing and determination sublect to appropriate directions. Another would be to order a new trial. Each of those options would undoubtedly incur considerable additional expense for both parties. If the proper outcome can be determined without the need for a new trial then that is, in my opinion, the better course to follow. In the Monaro Sawmills' case evidence had been called at first instance by both the appellant and respondent. Sweeney and Evatt JJ (at 324-325) noted that there were only minor points of conflict between them and considered that they were in as good a position as the Magistrate to decide what inferences could be drawn from the evidence. There was no question of credibility involved. Where there is, then a different course may be necessary - Stojkovski v Fitzgerald (unrep. Supreme Court, WA 17.6.88, F.Ct.) per Brinsden J. at p.8.
The present case is one in which the appellant called no evidence in the court below and although there was extensive
cross-examination of the respondentss witnesses, no real conflict emerged on the salient facts. There 15, in the circumstances a
stronger argument than in Monaro Sawmill for the proposition that this Court should now determine the proper outcome of the complaints on the basis of the evidence before the Industrial Magistrate. It is appropriate for that purpose to begin by addressing the principal findings of fact that can be made on the evidence previously summarised.

principal Findings of Fact

There is no dispute that the City of Wanneroo is and was at all material times bound by the terms of the Local Government Officers (Western Australia) Award 1975. Nor is there any dispute that the Award was amended by a consent order on 4 March 1981 to include the new job classifications of "Social Welfare Officer" and "Senior Social Welfare Officer" and to prescribe rates of pay applicable to them. It is common ground that the four employees mentioned in the complaints held offices wrth the appellant designated by the title "Asslstant Welfare Officer" and in that capacity were paid 90% of the rate applicable under the Award to a Social Welfare Officer.

Each was employed in the operation of a family day care service conducted by the City and run initially from a centre at Klngsley and later from that centre and another at mullaloo to cover the Whitfords area. The service, funded by the Commonwealth

Office of Child Care and supervised by the State's Department of	Community Services, uses residents of the municipality who are
prepared to provide in their homes day care facilltles for the children of families living in the area. A large part of the role of the City of Wanneroo in administering the scheme lnvolves the recruitment, vetting and selection of persons who will be suitable care-givers, their supervision and support for them in the discharge of their functions. The City is also responsible to the commonwealth Office of Child Care for the expenditure of funds used to pay care-givers and otherwise associated with the opezation of the scheme. Fees are collected from users but may be remitted under a subsidy system. The appointment of individual care-givers is subject to their llcensing by the Department of Community Services, which requires quarterly reports from the City on each person so licensed. The statutory basis for the llcensing system was not before the court below and is not necessary for the disposal of the present case.
The service is and was at all material times organised into two "schemes" operating in different areas wlthin the City boundaries and ultimately run from Kingsley and Mullaloo rspectively. Each had, slnce 1981, been administered by a Co-ordinator, Mrs Good, in relation to the Kingsley scheme and Nrs Bowler in relation to the Whitfords scheme. They were each employed under the designation "Social Welfare Officer (Child Care)" and pald as Social Welfare Officers under the award. Their
published by the Department of Community Services under the job specifications have been set out earller in these reasons but it appears that their duties also accorded with a statement
heading "Duties and Responsibilltres of Co-ordinators" to which reference has also been made. The evldence 15, I think, clear enough that they were in effect the managers and administrators of the family day care service in the scheme areas for which they respectively had responsibllity.
The four women employed as Assistant welfare Officers were involved in the day to day operation of the service. Consistently with their job specifications and the evidence glven at trial, their principal function was to vlsit, malntaln contact with and generally assist care-givers. Their role may be sald to have involved a monitoring function in so far as they were required to report quarterly to the Department of Community Services on each care-giver. They assisted in the selection of new care-givers and interviews with persons seeking fee subsidies. Handling telephone inquiries, enrolling parents in the scheme and matching up children and particular care-givers was also part of their function. Their duties extended to organising courses to be attended by day-care mothers. They have, from tlme to tlme, taken initiatives in encouragrng care-givers to increase their knowledge in relation to children in their care.
I do not detect any significant divergence on the evidence between the tasks that the Assistant Welfare Officers
already been made. The question then is whether or not the nature carried out and the job specification to which reference has
of the employment brings them within the category of Social welfare Offlcer under the Award. The answer to that question requires an interpretation of the Award and its appllcatlon to the facts to which I have already referred.

Interpretation and Application of the Award

The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words - The Clothing Trades Award (1950) 68 CAR 597 (Aust. Indus. Ct. F.C.). The words are to be read as a whole and in context - Australian Timber Workers Union v W. Angliss & Co. Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award - Pickard v John ~ e i n e & Son Ltd (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all - Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241, 244 (Northrop J.), 254 (Keely J.) cf. 265 (Gray J.). The logs of claim and arbitrator's reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it. - Seamen's Union of Australia v Adelaide Steamship Co. Llrnited (1976) 46 FLR 444, 446,

That is not to say the words must be interpreted in a vacuum	Collier Owners and Coal Stevedores Asociatlon (1958) 1 FLR 248. disapproving Merchant Seamen's Guild of Australia v Sydney Steam
divorced from industry realltles. As Street J. sald in Geo. A. Bond & Co. Ltd (in liq.) v McKenzle l19291 AR(NSW) 498 at 503:

"...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result...from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship whlch one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after givlng consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award." - see also Re Crown Employees

(Overtime) Award [l9691 AR(NSW	; Re Hos ita
S o y e e s ~dminstrative	and 6e6,!:a!3(s-d

2 IR 123.

It is of course no part of the Court's task to asslgn a meaning in order that the award may provlde what the Court thinks is appropriate - Australian Workers Union v Graziers Association of New South Wales (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfled that so construed they would not carry out the intention of the award maklng authority - - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co. Pty Ltd v Howarth [l9601 AR(NSW) 291; Re Government Railways and Tramways (Engineers

Australia) Award now under consideration 1s unaccompanied by	etc) Award [l9281 AR 53, 58 (Cantor J.). The part of the Local Government Officers (Western
evidence of any relevant history or industry background. Neither the consent order whlch introduced the terms "Soclal Welfare officer" and "Senior Social Welfare Officer", nor the body of the award itself offers any significant contextual aid to interpretation. The Court is therefore principally concerned wlth the natural meaning of the language used in the definition of "Social Welfare Officer". It is nevertheless clear that the term "Senior Social Welfare Officer" reflecting, as it does, the existence of a hierarchy imposes some limitation on the scope of the language in the earlier definition.
The first requirement for the posltion of "Social Welfare Officer" is that he or she be a person "appointed" by the Council to do the various things which are there set out. The use of the word "appointed" does not limit the operation of the definition to persons formally designated as Social Welfare Officers by their employers. The question is one of fact to be determined by reference to the dutles actually attaching to the position, rather than its title - Royal Australian Nursing Federation v Hartindale Hospital Pty Ltd (1978) WAIG 1251 at 1251 (wickham J.) and 1252 (Brinsden J); cf. Zatorski v South Australian Railways Commissioner (1982) 41 ALR 655, 661 (Full Court). The latter case was referred to by the Learned Industrial
magistrate following his determination that the employees "dld the job of social welfare officers and should be paid accordingly". In that regard zatorski was of limlted application for the award
there in issue did not use the term "appointed". Declslon-making in the present case is facllltated by the fact that there is no marked divergence between the City's job specification and the work done by the Assistant Welfare Officers.
The question that then arises is whether or not these officers were, in the relevant sense, appointed to initiate, co-ordinate and promote social welfare actlv~ties within the District. Each of the key words "initiate", "co-ordinate" and "promote" is potentially applicable to a range of responslb~lities
from the trivial to the complex. An upper limlt on the CO-ordination responsibility is defined by the next positlon in the hierarchy, that of Senior Social Welfare Officer. Whatever the responsibilities of Social Welfare Officers for CO-ordlnating social welfare activit~es, they do not extend to directing or controlling the services of other Soclal Welfare Off~cers.
Selection of the relevant range of conduct LS aided by consideration of the content of the "social welfare activlties" which are to be the subject of initiation, co-ordination and promotion. The activities in questlon are limited geograph~cally
to "the District", which I take to be a reference to the area contained within the boundaries of the relevant Local Government Authority.
The definition of Social Welfare Officer being in form a description of a class of persons by reference to the range of their responsibilities goes on to include "without limiting the foregoing ... one or more of the following: care for the fam~ly,
children, the aged and supportive counselling". T h ~ s fractured and illogical prose may be met by a generous and liberal approach to interpretation. That does not put it beyond criticism. Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the Engllsh language. They bind the parties on pain of pecuniary penalties. While that fact has been seen as supporting a rule of strict construction - Cranford-Webster v McFarlane 119471 SASR 162, 166 (Nayo J.) - it must not be forgotten that proceedings for breach of an award are not criminal in character - Gapes v Commercial Bank of Australia (1979) 38 FLR 415 disapproving Vehicle Builders' Employees Federation of Australia v General Motors-Holdens Pty Ltd (1977) 32 FLR 100. Accepting the serious and binding nature of industrial awards, a strict approach is not in my opinion appropriate and would be inconsistent with the general principles of interpretation to which I have already referred. Where there is, as in this case, a drafting error embodying logical absurdity which goes beyond the merely typographical, the Court should proceed cautiously before effectively re-writing it in an intelligible form - see generally Pearce - Statutory Interpretation in Australia 2nd Ed. paras. 19-21. Exercising all due caution, I am satisfied that the reference to "care for the family, children, the aged and supportive counselling" is intended to set out specific examples of the "social welfare activities" to which the award relates. If a person can be said to have been appointed by the Council to initiate, co-ordinate and promote child care activities within the District, that person will answer the description of a Social Welfare Officer. It is not sufficient
that a person be appointed to only one of those tasks, all three elements must be present to a greater or lesser degree. And if that means that the coverage of the award is deficient in certain cases, then the remedy may lie in its further variation.

The Shorter Oxford Dictionary definition of "~nitiate"

includes "...to introduce, set golng, originate". "Co-ordinate" means, inter alia, "to place (things) in proper positlon relatively to each other and to the system of which they form parts". To "promote' in the relevant sense 1s to "further the growth, development, progress, or establishment of (anything); to further, advance, encourage". The concept of lnitiatlon cannot requlre that the Social Welfare Officer be engaged in establishing new systems for the dellvery of social welfare services. The two co-ordinators Good and Bowler, were essentially concerned with the maintenance and oversight of existing child-care schemes. ~t is evident that they are regarded by their employer as Social Welfare Officers, notwithstanding that the initiating phase of the day care services as a system has passed in their respective scheme areas. Initiation of social welfare activities in thls context cannot be limited to the setting up of a whole new service. The relevant initiating activity must operate at a lower and continuing level. In my opinion the relevant level in this case 1s that of the recruitment and selection of new care-grvers. That 1s a responsibility whlch, under the Council's job specifications, rests upon the CO-ordlnators - see cls. 7.2.3 and 7.2.4. The Asslstant Welfare Officers have an ancllliary role in thls regard

with subsidy lntervlews and new care-glver applications". The	and that is defined by c1.7.4 of their job speciflcatlon - "assist
evidence disclosed that they conduct initial interviews in the presence of the CO-ordlnator who carrles out the follow-up vlslt and assessment.
Although it is clear that the Assistant Welfare Offlcers organise courses, social activities and excursions for family day-care mothers, these are incidental to the operation of the day-care scheme and would not, in my opinion, represent a level of activity to which the term "initiate", as used in the Award, is directed.
There is an element of co-ordination in the role of matching up parents with particular care-givers, but agaln on the evidence, this is done in conjunction with the co-ordinator. Given the prlmary responsibility of Good and Bowler in thls connection, I do not regard the job of Assistant Welfare Officer as involving co-ordination at the level contemplated by the Award. Nor do I accept that liaison with other agencies for referral purposes in particular cases, comes within that description.
As to promotion of the service, there is little doubt that the Assistant Welfare Officers have been expected to and have participated in promotional activities of various kinds, including the preparatlon and distribution of pamphlets and posters, the preparatlon in one case, of an information resources booklet and
Shopping Centres. the conduct of public relations stalls at Wanneroo and Warwick
Their principal duties however, were clearly as described by Mrs Good, namely to support and visit the care-givers, to ensure that they worked within the regulations and to assist them with anything that they might require. I do not therefore conslder that the definition of Social Welfare Officer as presently drawn in the Award extends to the posltion of Assistant Welfare Officer. Responsibility for initiation, co-ordination and promotion in the relevant senses rests wlth the co-ordinators. It may be that the distinction thus drawn is invrdious and that the language of the award sets too hlgh a threshold for the duties of the Social Welfare Offlcer. That is a matter for resolution in some other forum. In my opinlon the Assistant Welfare Offlcers were not entitled under the award to payment at the rates appropriate to a Soclal Welfare Offlcer and the complaints should have been dismissed.

CONCLUSION

For the foregoing reasons the appeal will be allowed. The decision of the Industrial Magistrate and the orders made pursuant to that decision will be set aside and in lieu thereof I will order that each of the complaints be dismissed.

I certify that this and the preceding

forty two (42) pages are a true copy

of the Reasons for Judgment of his

Honour Justice French.

Associate: C	/dVukd
Date:

counsel for the Appellant:  M r K. M a r t l n

Solicitors for the Appellant:	P a r k e r and P a r k e r
Counsel for the Respondent:	M r A. Jackson
Solicitors for the Respondent:	Australian Government S o l l c l t o r
Date of Hearing:	11 and 12 May 1989
Date of Judgment:	12 September 1989