Griffin Coal Mining Co Ltd v The Coal Miners Industrial Union of Workers of Western Australia
[2000] WASC 107
•4 MAY 2000
GRIFFIN COAL MINING CO LTD -v- THE COAL MINERS INDUSTRIAL UNION OF WORKERS OF WESTERN AUSTRALIA [2000] WASC 107
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 107 | |
| Case No: | CIV:2382/1999 | 10 APRIL 2000 | |
| Coram: | SCOTT J | 4/05/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Declarations provided | ||
| PDF Version |
| Parties: | GRIFFIN COAL MINING CO LTD (ACN 008 667 285) THE COAL MINERS INDUSTRIAL UNION OF WORKERS OF WESTERN AUSTRALIA |
Catchwords: | Industrial matter Statutory interpretation Enterprise agreement Provisions of agreement binding upon parties Annualised salary rates specified in agreement Employer contracted to pay amount over and above amount required by statute Industrial agreement to be construed by reference to whole agreement without reference to extensive material Agreement provides for compensation regime specifying payment to be made to injured workers Agreement clause unambiguous |
Legislation: | Coal Industry Tribunal of Western Australia Act 1992, s 10(1), s 17(1) Industrial Relations Act 1979, s 41(4) Interpretation Act 1984, s 16 Workers' Compensation and Rehabilitation Act 1981, s 18 |
Case References: | Hungry Jacks Pty Ltd v Wilkins & Ors (1991) 71 WAIG 1751 Norwest Beef Industries Ltd & Anor v West Australian Branch, Australian Meat Industry Employees Union & Anor (1984) 64 WAIG 2124 Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights Union of Western Australia & Ors (1987) 67 WAIG 1097 AEEFEU v Minister for Health (1991) 71 WAIG 2253 Ansett v Australian Federation of Air Pilots (1990) 95 ALR 211 Brett v Brett Essex Golf Club [1986] 1 EGLR 154 Bunge SA v Kruse [1979] 1 Lloyd's Rep 279 Byrne and Frew v Australian Airlines Ltd (1995-96) 185 CLR 410 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297 Department of Community Services & Ors v Civil Service Association of Western Australia (Inc) (1994) 56 IR 265 Ellis v Minister for Lands (1985) 82 FLR 58 Harper v Racing Penalties Appeal Tribunal of Western Australia & Anor (1995) 12 WAR 337 Re Australian Federation of Construction Contractors; ex parte Billing (1986) 68 ALR 416 Re Federated Furnishing Trade Society of Australasia (1993) 113 ALR 137 Smith v South Wales Switchgear Ltd [1978] 1 WLR 165 Walker v Wilson (1990-1) 99 ALR 1 Waycott & Anor (t/as HH Enterprises) v Koffler (1983-4) 25 NTR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE COAL MINERS INDUSTRIAL UNION OF WORKERS OF WESTERN AUSTRALIA
Defendant
Catchwords:
Industrial matter - Statutory interpretation - Enterprise agreement - Provisions of agreement binding upon parties - Annualised salary rates specified in agreement - Employer contracted to pay amount over and above amount required by statute - Industrial agreement to be construed by reference to whole agreement without reference to extensive material - Agreement provides for compensation regime specifying payment to be made to injured workers - Agreement clause unambiguous
Legislation:
Coal Industry Tribunal of Western Australia Act 1992, s 10(1), s 17(1)
Industrial Relations Act 1979, s 41(4)
(Page 2)
Interpretation Act 1984, s 16
Workers' Compensation and Rehabilitation Act 1981, s 18
Result:
Declarations provided
Representation:
Counsel:
Plaintiff : Mr T H F Caspersz
Defendant : Mr R D Farrell
Solicitors:
Plaintiff : Blake Dawson Waldron
Defendant : Derek Schapper
Case(s) referred to in judgment(s):
Hungry Jacks Pty Ltd v Wilkins & Ors (1991) 71 WAIG 1751
Norwest Beef Industries Ltd & Anor v West Australian Branch, Australian Meat Industry Employees Union & Anor (1984) 64 WAIG 2124
Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights Union of Western Australia & Ors (1987) 67 WAIG 1097
Case(s) also cited:
AEEFEU v Minister for Health (1991) 71 WAIG 2253
Ansett v Australian Federation of Air Pilots (1990) 95 ALR 211
Brett v Brett Essex Golf Club [1986] 1 EGLR 154
Bunge SA v Kruse [1979] 1 Lloyd's Rep 279
Byrne and Frew v Australian Airlines Ltd (1995-96) 185 CLR 410
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297
Department of Community Services & Ors v Civil Service Association of Western Australia (Inc) (1994) 56 IR 265
Ellis v Minister for Lands (1985) 82 FLR 58
(Page 3)
Harper v Racing Penalties Appeal Tribunal of Western Australia & Anor (1995) 12 WAR 337
Re Australian Federation of Construction Contractors; ex parte Billing (1986) 68 ALR 416
Re Federated Furnishing Trade Society of Australasia (1993) 113 ALR 137
Smith v South Wales Switchgear Ltd [1978] 1 WLR 165
Walker v Wilson (1990-1) 99 ALR 1
Waycott & Anor (t/as HH Enterprises) v Koffler (1983-4) 25 NTR 1
(Page 4)
1 SCOTT J: By an originating summons dated 13 December 1999, the plaintiff seeks the following orders:
"1 A declaration that on its proper construction clause 24 of the Griffin Coal (Production) Enterprise Agreement 1996-2001 ('the Agreement') provides that any payment that is required to be made by the plaintiff pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 1981 ('the Act') to an employee who is covered by the Agreement shall:
(a) be calculated on the basis of the employees' annualised salary rate prescribed in the Agreement; and
(b) be paid in accordance with the provisions of the Act including, without limitation, the prescribed limits therein for the time being (if any) on payments required to be made by employers to employees under the Act."
3 Members of the defendant union employed by the plaintiff are employed under the provisions of the Coal Mining Industry (Miners) Interim Award 1990 (Award No 12 of 1990) published in Vol 72 of the Western Australian Industrial Gazette at 2921. By cl 24 of that Award, provision is made for accident pay calculated in accordance with the employees' weekly rate of pay.
4 The Agreement, the subject of the litigation, is entitled Griffin Coal (Production) Enterprise Agreement 1996-2001 and is intended to be supplementary to the Award. Clause 5 of the Agreement provides:
"5 - RELATIONSHIP TO PARENT AWARD
This Agreement shall be read and interpreted wholly in conjunction with the Coal Mining Industry (Miners) Award 1990 and is referred to in this Agreement as the Award. Provided that where there is an inconsistency, the terms of this Agreement shall prevail to the extent of the inconsistency."
(Page 5)
5 By cl 24 of the Agreement it is provided:
"24-WORKERS COMPENSATION
Workers Compensation is to be paid on the basis of the annualised salary rates and in accordance with the provisions of the Workers Compensation and Rehabilitation Act".
6 Following cl 24 of the Agreement, there are a number of schedules that set out the annualised salary rate of difference classes of workers commencing on 1 November 1995 through to 1 October 1998. There are other provisions in the Agreement, which enable the annualised salary levels to be either negotiated or calculated in accordance with the Agreement.
7 The problem that gives rise to the present application is the reference in cl 24 of the Agreement to the Workers Compensation and Rehabilitation Act 1981 ("the Act"). The problem arises because by amendment to the Act, which came into effect in November 1999, a limit was imposed upon the maximum amount payable to an employee under that Act, being 85 per cent of the ordinary weekly earnings up to the sum of $852 per week.
8 By s 18 of the Act it is provided:
"18 Liability of employers to workers for disabilities
If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1."
9 Clause 11(4)(b) of Schedule 1 of the Act provides for payment of 85 per cent of weekly payments of the salary.
10 It is common ground that the provisions of the Agreement therefore provide for the payment of workers' compensation by an amount considerably more generous than would be the case if the workers' compensation was calculated under Sch 1, cl 11 of the Act as amended by Act No 34 of 1999.
11 Crystallising the issue between the parties, the question that arises is whether the reference to "the Workers' Compensation and Rehabilitation Act" in cl 24 of the Agreement is a reference to that Act as it existed at the date of ratification of the agreement, that is, 16 September 1997, or
(Page 6)
- whether it means the Act as amended from time to time so as to include the amendments to cl 11 of Sch 1.
12 If the amendments to cl 11 of Sch 1 of the Act are determined to be the basis upon which payments to injured workers are to be calculated, the calculation would be based upon 85 per cent of the weekly remuneration of the worker. On the other hand, if the amendments have no application to the Agreement, injured workers would be entitled to 100 per cent of the annualised salary rate as provided for in cl 24.
13 It is not in contention that the annualised salary rates specified in cl 24 of the Agreement and identified and particularised in the schedules to that clause, include, not only the ordinary rate of pay, but production bonus, shift allowance, overtime and miscellaneous allowances calculated on an annual basis. It is clear that the objective of cl 24 operating upon the annualised salary rates was to provide a workers' compensation regime which would compensate injured workers at a higher rate of remuneration than would be the case if the loss was calculated under the provisions of the Act without reference to cl 24 of the Agreement.
14 It is common ground that the plaintiff and the defendant are governed by the provisions of the Coal Industry Tribunal of Western Australia Act 1992 ("the CITWA") which gives to a tribunal created under that Act cognisance of, and authority to enquire into and deal with, the matters described in s 10 of that Act which provides:
"10(1) …
(a) Any industrial dispute relating to the coal mining industry in the State not extending beyond the limits of the State referred to the Tribunal;
(b) any industrial matter arising under any order, decision or award of the Tribunal, relating to the coal mining industry in the State referred to the Tribunal; and
(c) any other matter affecting industrial relations in the coal mining industry in the State referred to the Tribunal."
(Page 7)
- "Enforceability
- 17(1) When in regard to any industrial dispute, industrial matter or other matter of which the Tribunal has cognizance -
(a) an award or order is made by the Tribunal; or
(b) an agreement as to the whole or part thereof is entered into by the parties concerned,
that award, order or agreement shall be binding on the parties concerned, shall be filed in the office of the Registrar appointed under the Industrial Relations Act 1979 and shall thereupon in the case of an award or order shall have the force and effect of an award made under the Industrial Relations Act 1979 and in case of an agreement shall have the force and effect of an industrial agreement registered under the Industrial Relations Act 1979 and in each case be enforceable accordingly."
16 As I have already indicated, the Agreement in this case was registered by the Coal Industry Tribunal on 16 September 1997 and by order of the Chairman of that Tribunal it was ratified.
17 Upon registration of the Agreement, by virtue of s 17 of the CITWA, the Agreement had the force and effect of an award made under the Industrial Relations Act. That is a consequence of s 17 of the CITWAset out earlier in these reasons.
18 By virtue of s 41(4) of the Industrial Relations Act, which it is not necessary to set out in full, the Agreement becomes binding on the employer and the employees. In that respect I accept the submissions by counsel for the plaintiff that the effect of the legislative scheme is that the Agreement has a statutory status which is over and above that of a contractual agreement. One of the consequences of that distinction is that in the event of breach, enforcement proceedings can be taken in the Industrial Magistrates' Court.
19 As I have already indicated, the terms of the Agreement provide that in the event of conflict, the Agreement is to prevail over the Award and the effect of the Agreement, by virtue of the operation of the statutory provisions, is to give to the Agreement statutory force: see Hungry Jacks Pty Ltd v Wilkins & Ors (1991) 71 WAIG 1751 at 1755.
(Page 8)
20 In my opinion, whilst the Agreement has statutory force in the manner that I have outlined, it would be possible for the parties to vary the Agreement from time to time. Absent such variation, the Agreement would be binding on the parties during its term. I do not accept the contention advanced by counsel for the plaintiff that the Agreement is "ambulatory" in its terms because, in my view, the Agreement in the schedules to cl 24 specifically refers to the variation of salary levels throughout the bulk of the term of the Agreement. Whilst variations are specified until 1 October 1998, there are provisions which would enable extensions to the dates specified in the Agreement.
21 It follows, in my opinion, that the provisions of the Agreement are those that bind the parties. The parties have selected and specified annualised salary rates in cl 24 of the Agreement and, in my opinion, it is not to the point that the Act has been amended since the coming into effect of the Agreement, so as to make the employer liable for a lesser sum than that agreed to. In this case, in my opinion, the contractual arrangements between the parties are such that there is an agreement enforceable in law and binding the plaintiff to pay to those workers coming within the ambit of cl 24, an amount calculated in accordance with that clause, irrespective of the provisions of the Act. The effect of the agreement, in my opinion is that the employer has contracted to pay an amount over and above its statutory obligation under the Act.
22 As I have said earlier in these reasons, the central issue focuses upon the construction of cl 24 of the Agreement. In my opinion there is no ambiguity in that clause. I will later explain why, in my view, there is a reference to the Act in that clause but I should make it clear that in my opinion it has nothing to do with the calculation of the annualised salary rates, which, as I have said, are specified in the schedules to that clause.
23 In construing an industrial agreement where the clause is not ambiguous, the clause is to be construed by reference to the agreement as a whole and without reference to extrinsic material: Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights Union of Western Australia & Ors (1987) 67 WAIG 1097 per Brinsden J at 1098; Norwest Beef Industries Ltd & Anor v West Australian Branch, Australian Meat Industry Employees Union & Anor (1984) 64 WAIG 2124 at 2127 and Hungry Jacks Pty Ltd v Wilkins & Ors (supra) per Nicholson J at 1754-1755.
24 Counsel for the plaintiff contends that the reference in cl 24 to "the Workers' Compensation and Rehabilitation Act" is a reference to that Act
(Page 9)
- as amended from time to time. In support of that contention, counsel points to s 16 of the Interpretation Act 1984 ("the Interpretation Act") which provides:
"16 Reference to written law as amended
- (1) A reference in a written law to a written law shall be deemed to include a reference to such written law as it may from time to time be amended.
(2) A reference in a written law to a provision of a written law shall be construed as a reference to such provision as it may from time to time be amended."
26 In my opinion, that contention is without foundation. It is necessary for the Agreement to refer to the Act because it is that Act which determines the ambit of an employer's liability to pay workers' compensation. For example, it is only if a person injured comes within the liability provisions contained within Part III that workers' compensation is payable. It is not necessary in the course of these reasons to discuss the ambit of an employer's liability to pay workers' compensation, but Part III of the Act limits the employer's liability to pay workers' compensation to circumstances where personal injury by accident arises out of, or in the course of, employment. It should also be pointed out that the Act obliges an employer to obtain and keep current a policy of insurance for the full amount of the employer's liability to pay compensation under that Act (s 160). When those factors are taken into account, the reason why cl 24 of the Agreement refers to the Act becomes apparent. The employer's obligation is to make payment to injured workers in circumstances specified in the Act. On that interpretation, the Act has nothing to say about the rate of remuneration payable to injured workers under the Agreement. The Agreement provides for a compensation regime specifying the payment to be made to injured workers, which is over and above the statutory liability.
27 That is not to say that the reference to the Act in cl 24 has no reference to amendments to that Act, other than in relation to matters expressly provided for in the Agreement. In this case, where the Agreement has express provisions which set out in detail the annualised
(Page 10)
- salary rates, and where the clause is unambiguous, the Act has nothing to say as to the amounts which the employer has to pay pursuant to the Agreement. Other amendments, however, to the Act, particularly with reference to the employer's liability to pay compensation under Part III may well apply to the Agreement but it is not necessary to determine that issue for the purpose of determining the issues arising out of the declarations sought in the originating summons.
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