Public Service Association (SA) Inc v State of South Australia - [2012] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PUBLIC SERVICE ASSOCIATION (SA) INC v STATE OF SOUTH AUSTRALIA & ORS
[2012] SASCFC 66
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Stanley)
6 June 2012
INDUSTRIAL LAW - SOUTH AUSTRALIA - DEFINITIONS AND INTERPRETATION - OTHER MATTERS
INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES
Appeal from a judgment of the Full Court of the Industrial Relations Court (the Court) dismissing application made by appellant for orders restraining imposition of car parking fees on employees covered by enterprise agreement – appellant alleged employer contravened clauses of enterprise agreement – where employees had free parking or subsidised parking before policy – where employer adopted policy of charging car parking fees at hospital car park to employees covered by enterprise agreement – appellant alleged employer failed to undertake appropriate consultation with employee representatives – appellant alleged employer failed to maintain status quo after notification of dispute over policy.
Whether the Court erred in limiting meaning of expression “conditions of employment” – whether the Court erred in finding no contravention of obligation to consult – whether the Court erred in failing to exercise discretion to make orders pursuant to s 15 of the Fair Work Act 1994 (SA) (the Act).
Held: Car parking is not a necessary requisite, attribute, qualification, environment or other circumstance affecting employment and is not classified as a “condition of employment” – no contravention of obligation to consult – no basis to warrant interference with the Court’s discretionary decision to not make orders pursuant to s 15 of the Act – appeal dismissed.
Fair Work Act 1994 (SA) s 4, s 15, s 81, s 191; Commonwealth Conciliation and Arbitration Act 1904 (SA) s 4; Industrial Relations Act 1988 (Cth); Workplace Relations Act 1996 (Cth), referred to.
Tempo Services v Robinson (2005) 91 SASR 439, applied.
Public Service Association (SA) Inc v State of South Australia (Department of Health) & Ors [2012] SAIRC 5; Australian Tramways Employees Association v Prahran & Malvern Tramways Trust & Ors (1913) 17 CLR 680; QR Ltd v CEPU (2010) 204 IR 142; Amcor Ltd v Construction Forestry, Mining and Energy Union (2005) 222 CLR 241; Electrolux Home Products v AWU (2004) 221 CLR 309; R v Booth; ex parte Administrative and Clerical Officers' Association (1978) 141 CLR 257; T C Whittle Pty Ltd v T & G Mutual Life Society Ltd (1978) 52 ALJR 173; Re Corrections Health Service Nurses (State) Award (1999) 90 IR 235; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, discussed.
SDAEA v Woolworths SA Pty Ltd [2011] FCAFC 67; Federated Clothing Trades of Commonwealth v Archer (1919) 27 CLR 207; Reg v Portus; ex parte ANZ Banking Group Ltd (1972) 127 CLR 353; Re Alcan Australia Ltd; ex parte FIMEE (1994) 181 CLR 96; Re Manufacturing Grocers Employees' Federation; ex parte Australian Chamber of Manufactures (1986) 160 CLR 341; R v Findlay; ex parte Commonweath Steam Ship Owners' Association (1953) 90 CLR 621; Re Cram; ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117; NSW Nurses' Association & Ors v South Western Sydney Health Service [1994] NSWIR Comm 147, 8 December 1994; House v King (1936) 55 CLR 499, considered.

PUBLIC SERVICE ASSOCIATION (SA) INC v STATE OF SOUTH AUSTRALIA & ORS
[2012] SASCFC 66
Full Court: Doyle CJ, Vanstone and Stanley JJ

DOYLE CJ: I would dismiss the appeal for the reasons given by Stanley J. There is nothing further that I wish to add.
VANSTONE J: I would dismiss the appeal for the reasons given by Stanley J.
STANLEY J:
Introduction
This is an appeal, by permission, from a judgment of the Full Court of the Industrial Relations Court of South Australia, pursuant to s 191 of the Fair Work Act 1994 (SA) (“the Act”).
The Full Court of the Industrial Relations Court dismissed an application made by the appellant for orders under s 15 of the Act. Section 15 empowers the Court to make orders, in the nature of injunctions, against a person who contravenes or fails to comply with a provision of the Act, an award or an enterprise agreement, to take steps to remedy the contravention or non-compliance or to refrain from further contravention of, or non-compliance with, the provisions.
Before the Industrial Relations Court the appellant had alleged a breach of an enterprise agreement made by the Industrial Relations Commission of South Australia (“the Commission”), being the South Australian Government Wages Parity (Salary) Enterprise Agreement 2010 (“the enterprise agreement”). The appellant alleged the employer contravened clauses 2.2.6, 25.1 and 26.2 of the enterprise agreement.
Clause 2.2.6 provides that in making and applying the enterprise agreement, the parties are committed to:
Existing conditions of employment applying to a party not being reduced, subject to the terms of this Enterprise agreement and any applicable Workplace Flexibility Agreement. This commitment does not prevent the operation of other commitments in this clause, but not to the effect that (considered as a whole) would result in a diminution of conditions existing as at the date of approval by the Commission.
The date of approval of the enterprise agreement by the Commission was 14 January 2010.
Clause 25.1 provides:
The parties commit to the following consultative principles:
25.1.1Consultation involves the sharing of information and the exchange of views between employers and persons or bodies that must be consulted and the genuine opportunity for them to contribute effectively to any decision making process.
25.1.2Employers and Agencies consult in good faith, not simply advise what will be done.
25.1.3It is an accepted principle that effective workplace relationships can only be achieved if appropriate consultation between the parties occurs on a regular basis.
25.1.4Workplace change that will affect a significant number of employees should not be implemented before appropriate consultation has occurred with employee representatives.
25.1.5Employee representatives will be given the opportunity to adequately consult with the people they represent in the workplace, in relation to any proposed changes that may affect employees’ working conditions or the services employees provide.
Clause 26.2 provides:
Except where a bona fide health and safety issue is involved, during any dispute the status quo existing immediately prior to the matter giving rise to the dispute will remain. Work will continue as it was prior to the matter giving rise to dispute.
Before the Industrial Relations Court the appellant alleged a contravention of clause 2.2.6 of the enterprise agreement by reason of the employer adopting a policy of charging car parking fees at hospital car parks to persons whose employment was covered by the enterprise agreement. The new policy affected employees covered by the enterprise agreement either because they had enjoyed free parking in the hospital car park at their place of employment or because they had enjoyed subsidised parking in the hospital car park at their place of employment.
The separate bases upon which the appellant alleged a contravention of clause 2.2.6 of the enterprise agreement arose from the fact that as at 14 January 2010 employees at certain public hospitals enjoyed the provision of free parking in hospital car parks while employees at other public hospitals enjoyed subsidised car parking in those hospitals’ car parks. The former public hospitals were referred to as “the new hospitals” while the latter public hospitals were referred to as “the existing hospitals”.
The new policy adopted by the employer in both cases resulted from a government decision announced in the 2010 / 2011 Budget Statement delivered by the Treasurer on 16 September 2010.
The appellant sought orders restraining the imposition of car parking fees on employees whose employment is covered by the enterprise agreement employed at the new hospitals and restraining any increase in car parking fees charged to employees at the existing hospitals whose employment is covered by the enterprise agreement. It also sought consequential orders that the employer remedy any contravention by repaying any monies collected from employees resulting from the introduction of car parking fees at the new hospitals or the increase in car parking fees at existing hospitals.
Before the Industrial Relations Court the appellant alleged that the adoption of the new policy imposing car parking fees or increasing parking fees constituted a contravention of clause 2.2.6 because the entitlement to free or subsidised car parking constituted an “existing condition” within the meaning of that provision of the enterprise agreement. The imposition of car parking fees or the increase in car parking fees was alleged to constitute a reduction in the existing conditions of employees as they had existed at 14 January 2010.
The appellant further alleged that the employer had failed to comply with clause 25.1 because it had failed to undertake appropriate consultation with employee representatives before the implementation of the new car parking policy.
Finally, the appellant alleged the employer had failed to comply with clause 26.2 by reason of the employer’s failure to maintain the status quo after notification of a dispute over the introduction of the new car parking policy.
The Industrial Relations Court found that the appellant had failed to prove a contravention of clause 2.2.6 or clause 25.1. It found there had been a breach of clause 26.2, but in the exercise of its discretion, declined to make any order under s 15 of the Act, given the failure to establish any breach of clauses 2.2.6 or 25.1.
Reasons for decision of the Industrial Relations Court
Judge Hannon, with whom Senior Judge Jennings and Judge Gilchrist agreed, considered that the jurisdiction of the court to make an order under s 15 was enlivened if it was established that there had been a contravention of or non-compliance with the enterprise agreement. Accordingly, his Honour proceeded to consider whether, as at 14 January 2010, one or more of the employees covered by the enterprise agreement at each of the relevant public hospitals, had, as a condition of their employment, an entitlement to free or subsidised car parking which was ongoing and not capable of unilateral alteration by the employer. It was common ground between the parties that any right or entitlement to free or subsidised car parking did not arise expressly from the terms of the enterprise agreement. Accordingly, the court had to determine whether, and if so how, the right or entitlement to free or subsidised car parking had become a condition of employment of those public hospital employees covered by the enterprise agreement as at 14 January 2010.
The evidence on this topic before the court was uncontested. It consisted of a series of affidavits. The deponents were not called for cross-examination.
Judge Hannon summarised the Court’s factual findings as follows:[1]
Each hospital offered terms and conditions of employment to employees by a written document unique to that hospital. Most offers made no reference to the topic of car parking, and to the extent that any such reference was made, it was incidental and for information purposes only. As observed above, any entitlement to free or subsidised car parking arose from a separate and optional procedure involving, in most cases, an individual application for and the granting of a car parking permit subject to terms specific to the hospital concerned.
The evidence indicates that at the time of the approval of the EBA, the availability of car parking spaces varied as between hospitals, and that there were different terms of use for permits if granted, and further that the grant of a permit did not necessarily guarantee that a car parking space would be available. At some locations there was no permit system at all, and at one particular location staff car parking spaces were made available by the hospital on the basis that it was a privilege which the hospital considered it was under no liability to provide. At Royal Adelaide Hospital, where fees were charged, there had been car parking fee increases on an infrequent and ad hoc basis, a fact which is not consistent with an assertion of an indefinite restriction on the ability to alter the amount of the fixed rate. In other cases, the grant of a parking permit was on terms allowing for a unilateral increase in charges by the employer on an annual basis or otherwise, a power which may or may not have been exercised in fact.
The evidence presented by the respondents revealed that over the years, due to changes in the operations of hospitals, or changes in contractual arrangements with third parties which provided the car parking facilities, or the construction of new car parking facilities, the extent and availability of employer car parking facilities for use by employees altered from time to time. An unfettered and ongoing entitlement in the nature of that for which the PSA contended does not accord with the reality that any hospital, as part of the management of its operations generally, must be taken, subject to any express agreement to the contrary, to have retained the ability to alter permit conditions including as to costs and availability of parking if a need to do so arose.
[Footnotes omitted].
[1] [2012] SAIRC 5 at [43] – [45].
On this basis the Court proceeded to consider whether, as a matter of fact, an entitlement to free or subsidised car parking on the part of employees covered by the enterprise agreement became a condition of employment within the meaning of clause 2.2.6. The Court considered this was a matter of fact, depending on the arrangements made by individual employees or groups of employees and the hospitals where they were employed. Judge Hannon said:[2]
The variability of the conditions applicable to car parking, and the fact that they may have changed over time so as to have applied on different terms to some employees as opposed to others, depending on whether, when and on what terms permit applications were granted, creates difficulties in determining the terms of individual parking entitlements, and whether the actions of the respondents now under challenge constitute a contravention of or non-compliance with such terms. These difficulties stand in the way of the PSA making out its claim of a contravention or non-compliance with the EBA whatever the legal basis for the asserted condition of employment. This point can be further illustrated by reference to each of the grounds upon which the PSA relied in support of the assertion as to the existence of the preserved “condition of employment”.
[2] [2012] SAIRC 5 at [46].
His Honour concluded that for any entitlement to free or subsidised car parking to constitute a “condition of employment” within the meaning of clause 2.2.6, it had to be a condition which arose from the contract of employment so as to render it immune from reduction by the employer during the life of the enterprise agreement. His Honour considered that the evidence did not establish that the arrangements relied upon became a condition of employment of any individual employee.
Neither did he consider that any entitlement to free or subsidised car parking had become a term or condition of employment by implication through custom or usage. His Honour considered the evidence insufficient to provide a basis upon which such a condition could be either implied or incorporated into individual employment contracts. His Honour considered that the inherent variability of the arrangements from hospital to hospital did not allow for a finding that there was a specifically identifiable usage on terms such that it was reasonable to assume that the parties contracted on the basis of custom and usage making it reasonable to import such a term into the contract. His Honour concluded:[3]
… if a breach of cl 2.2.6 is to be the foundation of a general order restraining the implementation of the new policy across the hospitals subject to the EBA, the condition of employment allegedly preserved by that clause must be demonstrated to exist in relation to one or more of the employees who have obtained the car parking benefit and the introduction of the new policy must be proven to be in breach of that condition of employment. The general evidence as to the nature of the arrangements is not sufficient to establish any breach which enlivens the jurisdiction of the Court under s 15 of the Act. This is not to say that an order cannot be made under s 15 of the Act with respect to an employee or a group of employees where the car parking arrangements are proven to be a condition of employment immune from reduction under cl 2.2.6 by the introduction of the new policy. However, further specific evidence would be required in relation to each individual employee or group of employees, including evidence, if custom and usage is to be relied upon, as to whether it was reasonable to assume that the parties contracted upon the basis of the asserted custom or usage.
[3] [2012] SAIRC 5 at [59].
His Honour found that a contravention of clause 25.1 had not been established because, while the employer was bound to consult the appellant in relation to the introduction of the new car parking policy, that had occurred. A letter was sent to the appellant on 24 December 2010 from the Chief Executive, Department of Health, informing it of proposed changes to staff car parking fees as a consequence of the 2010 / 2011 budget statement. The letter advised that the introduction of the new fees would be staged and would commence not earlier than 1 March 2011. The new policy was provided to the appellant for its consideration and comment. Feedback was sought by 31 January 2011. On 1 February 2011 a car parking union consultative forum meeting occurred between representatives of the appellant and the employer. The consultative forum subsequently met on 16 March 2011, 5 April 2011 and 12 May 2011. Discussions concerned steps taken to accommodate employee concerns previously raised in relation to guaranteed parks upon payment, additional car parking facilities at the Hampstead Rehabilitation Centre, the availability of parking facilities to part-time employees, tentative dates for implementation at various sites, a review of lighting and security, the allocation of permits and applicable fee rates. His Honour considered that, as it was the employer proposing change, it was incumbent on it, in order to initiate a meaningful consultation process, to outline a proposal in some form, containing sufficient detail to allow the appellant to consider alternatives which might be raised for the consideration of the employer. In this case there was consultation over a number of the proposals outlined in the policy, including the amount of the new or increased charges and the manner and date of their implementation.
Finally, his Honour found that the employer had contravened clause 26 because of the employer’s failure to maintain the status quo with respect to car parking arrangements once the appellant, on 10 August 2011, had notified a dispute in relation to the new policy. However, in the exercise of its discretion, the Court declined to make any order under s 15 of the Act. It did so because the appellant had failed to prove a contravention of either clause 2.2.6 or clause 25.1. Moreover, the former regime in existence before 15 August 2011, when the new policy commenced operating at two hospitals, was reinstated following the interim order of the President of the Commission made on 23 September 2011. In these circumstances, the Court declined to make any order.
Submissions of the parties

The appellant submits that the Industrial Relations Court erred in construing clause 2.2.6 too narrowly so as to limit the meaning of the expression “conditions of employment” to mean a condition which arises from the contract of employment. It submitted that the entitlement of employees to free or subsidised car parking was a “privilege” or a “circumstance” of their employment, which satisfied the description of a “condition” of employment. It relied upon the meaning attributed by the High Court to the expression “conditions of employment” in Australian Tramways Employees Association v Prahran & Malvern Tramways Trust & Ors (“the Union Badge case).[4] It submitted that conditions of employment include express contractual terms, contractual terms incorporated from other documents, contractual terms implied by law or fact or custom and usage, working conditions and privileges. It submitted that as at 14 January 2010 an established custom or usage existed in respect of the provision of car parking for employees at no or a subsidised cost. It contended the entitlement to free or subsidised car parking was a condition of employment in the context of clause 2.2.6 because that provision was agreed on the basis particular wage increases were not to be eroded by subsequent reductions in existing conditions. It submitted that clause 2.2.6 created an entitlement in respect of a beneficial attribute of many public servants’ employment as such benefit existed at 14 January 2012.[5]
[4] (1913) 17 CLR 680.
[5] Appellant’s outline of argument para 22.
In addition, the appellant submitted the Court erred in its construction of the Full Federal Court’s decision in QR Ltd v CEPU (“QR Ltd”)[6] in finding that the appellant had failed to establish a contravention of the obligations to consult in clause 25.1.
[6] (2010) 204 IR 142.
Finally, it submitted that the exercise of the Industrial Relations Court’s discretion to make orders pursuant to s 15 had miscarried because of the Court’s errors in relation to the contraventions of clause 2.2.6 and 25.1.
The respondents submitted that on the evidence adduced before the Industrial Relations Court, the appeal to this Court could not succeed. The respondents submitted that it was incumbent on the appellant, where it relied upon a contravention of the enterprise agreement for the purposes of seeking orders pursuant to s 15 of the Act, to establish specifically and clearly the condition of employment giving rise to the contravention and the evidence to support the fact of contravention. The respondents submitted the appellant had failed to do so. The evidence did not establish that free or subsidised car parking was a “condition of employment”.
The respondents met the appellant’s submission in relation to the Industrial Relations Court’s rejection of the allegation of a breach of clause 25.1 on the basis that the Court was correct in construing the obligation to consult as arising subsequent to the Cabinet decision. The obligation to consult arose in respect of any subsequent decision of the employer made in the implementation of the policy decision of the Cabinet. Consultation took place in regard to these decisions.
The respondents filed a notice of contention seeking to challenge the finding by the Industrial Relations Court that there was a contravention of clause 26, however, this was not pressed on the hearing of the appeal.
Principles of interpretation
The principles of interpretation applicable to enterprise agreements were considered by the High Court in Amcor Ltd v Construction Forestry, Mining and Energy Union (“Amcor”).[7]Kirby J noted that this kind of industrial instrument commonly lacks the precise drafting of legislation. He noted the common hallmarks of such instruments are colloquial language and a measure of imprecision and said:[8]
Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail – including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.
[7] (2005) 222 CLR 241.
[8] (2005) 222 CLR 241 at 270 [94].
In this context, his Honour said:[9]
The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”
[Footnotes omitted].
[9] (2005) 222 CLR 241 at 270 – 271 [96].
This approach also found support in the reasons of Gleeson CJ and McHugh J who considered that the construction of the agreement in issue in Amcor turned upon the language of the agreement, understood in the light of its industrial context and purpose.[10]
[10] (2005) 222 CLR 241 at 246 [2].
Gummow, Hayne and Heydon JJ considered the relevant provision of that agreement had to be read in context. This required consideration of the text of the provision and the other provisions of the particular clause which fell for interpretation, the text and operation of the enterprise agreement, both as a whole and by reference to other particular provisions made by it; and the legislative background against which the enterprise agreement was made and in which it was to operate.[11]
[11] (2005) 222 CLR 241 at 253 [30].
The approach taken by the High Court to the interpretation of enterprise agreements is consistent with the principles adopted by this Court in the interpretation of other industrial instruments such as awards.
In Tempo Services v Robinson,[12] White J, with whom Doyle CJ and Vanstone J agreed, said:[13]
The approach to be taken to the interpretation of an industrial award is well settled. An award is to be construed in the same way as a statute or a written contract, that is, by reading the document as a whole and giving the words used in it their ordinary and grammatical meaning. It is necessary to bear in mind that many award provisions are inserted by the consent of the parties and have been drafted by laypersons without attention to the niceties of form and drafting. In some cases, the award terms have been drafted in circumstances not conducive to attention to those niceties. Furthermore, many awards are framed in the light of the parties’ own understanding of the particular customs and work conditions in the industry to which the award relates. These considerations suggest that it is often appropriate to avoid a too literal adherence to the strict technical meaning of the words used, and instead to view the matter more broadly.
[Footnote omitted].
[12] (2005) 91 SASR 439.
[13] (2005) 91 SASR 439 at 444 – 445 [30].
I respectfully adopt these principles in construing the meaning of the expression “conditions of employment” in clause 2.2.6.
The meaning of “conditions of employment” in clause 2.2.6
The starting point for consideration of the meaning of the expression “conditions of employment” is the language of clause 2.2.6, understood in the light of its industrial context and purpose, and bearing in mind that the language of the clause may have been drafted by lay persons without attention to the niceties of form and drafting. The focus of the Court’s consideration is the meaning the parties gave to the expression in the context of this enterprise agreement. That intention is to be ascertained objectively.[14]
[14] SDAEA v Woolworths SA Pty Ltd [2011] FCAFC 67 at [17] – [18].
In the enterprise agreement reference to “conditions” can be found not only in clause 2.2.6 but in clause 24.1, which provides:
This enterprise agreement and its salary schedules will be taken to have satisfied and discharged all claims of any description (whether as to monies or conditions).
It is also to be found in clause 25.1.5 which is set out above, and which refers to “employees’ working conditions”. In addition, clause 17, concerning workplace flexibility, refers to “employment arrangements”.
The appellant in contending for a wide meaning to be afforded the expression “conditions of employment” in clause 2.2.6 seeks to rely upon the High Court’s judgment in the Union Badge case.[15] In the joint judgment of Isaacs and Rich JJ in that case, their Honours had to consider the meaning of the expression “terms and conditions of employment” in the definition of “industrial matters” in s 4 of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) (“the Conciliation and Arbitration Act”). Their Honours considered that the “terms of employment” are the stipulations agreed to or otherwise existing on both sides, upon which an employee performs service for the employer. The “conditions of employment” include all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.
[15] (1913) 17 CLR 680.
The reasoning of their Honours in the Union Badge case was also relied upon by the appellant in submitting that “conditions of employment” in clause 2.2.6 is to be understood to include “privileges” of employment, of which one such privilege relevantly is an entitlement to free or subsidised car parking. Isaacs and Rich JJ noted the statutory definition of “industrial matters” in the Conciliation and Arbitration Act included, inter alia, all “privileges” and “rights of employees” and the “terms and conditions of employment” and “all matters pertaining to the relations of employers and employees”. Their Honours considered the meaning of each of these words. They held that a “privilege” (for the purposes of s 4 of the Conciliation and Arbitration Act) signified some right which carried with it an advantage relative to others, who would, but for that privilege, be on an equal footing with the person having it. A “privilege” became a right once it was the subject of dispute and made the subject of arbitration and an award.
This analysis reflected the underlying approach taken by the High Court in the Union Badge case[16] which adopted a very wide construction of the concept of industrial dispute. This wide construction has subsequently been disapproved by the High Court.
[16] (1913) 17 CLR 680.
In the Union Badge case[17] Isaacs and Rich JJ held that an industrial dispute arose whenever employers refused union or employee demands to do something that it was within the power of the employer to concede and carry out. Subsequently the High Court has restricted the concept of industrial dispute in the relevant Commonwealth workplace relations legislation[18] to mean that an industrial dispute must be a dispute about an industrial matter. That is to say, a dispute concerning a matter connected with the relationship between an employer in their capacity as an employer and an employee in their capacity as an employee, in a way which is direct and not merely consequential.[19] In Electrolux Home Products v AWU[20] McHugh J said:[21]
The cases emphasise that “matters pertaining” to the relations of employers and employees must pertain to the relation of employees as such and employers as such, that is, employees in their capacity as employees, and employers in their capacity as employers. The Court has not followed statements in earlier cases – Australian Tramway Employees’ Association v Prahran & Malvern Tramway Trust (Union Badge case) and Federated Clothing Trades (Cth) v Archer – that an industrial dispute arises whenever employers refuse union demands to do something that is within the power of the employers to concede and carry out.
[Footnotes omitted].
[17] (1913) 17 CLR 680; Federated Clothing Trades of Commonwealth v Archer (1919) 27 CLR 207.
[18] Commonwealth Conciliation and Arbitration Act 1904 (Cth) see Reg. v Portus; ex parte ANZ Banking Group Ltd (1972) 127 CLR 353; Industrial Relations Act 1988 (Cth) see Re Alcan Australia Ltd; ex parte FIMEE (1994) 181 CLR 96; Workplace Relations Act 1996 (Cth) see Electrolux Home Products v AWU (2004) 221 CLR 309.
[19] Re Manufacturing Grocers Employees’ Federation; ex parte Australian Chamber of Manufactures (1986) 160 CLR 341 at 353.
[20] (2004) 221 CLR 309.
[21] (2004) 221 CLR 309 at 338 – 339 [60].
Notwithstanding the High Court subsequently departing from the approach in the Union Badge case,[22] it has nonetheless endorsed the interpretation in the Union Badge case of the expression “conditions of employment” as found in s 4 of the Conciliation and Arbitration Act.[23]
[22] (1913) 17 CLR 680.
[23] (1913) 17 CLR 680 at 693.
In R v Booth; ex parte Administrative and Clerical Officers’ Association[24] the High Court approved that passage from the judgment of Isaacs and Rich JJ in the Union Badge case[25] which had been adopted earlier by Dixon CJ in R v Findlay; ex parte Commonwealth Steam Ship Owners’ Association.[26]In Booth[27] the High Court said of the dictum in the Union Badge case:[28]
No doubt this extensive meaning should be attributed to the word “conditions” in the definition. The “other terms or conditions of service or employment” cannot be limited to those which are ejusdem generis with salaries, wages and rates of pay. A condition relating to seniority would come within the definition. The fact that an employee has, or has not, a right of appeal against the appointment of an outsider to a position the filling of which would affect his seniority is a circumstance affecting his employment.[29]
[24] (1978) 141 CLR 257.
[25] (1913) 17 CLR 680.
[26] (1953) 90 CLR 621 at 630.
[27] (1978) 141 CLR 257.
[28] (1978) 141 CLR 257 at 263.
[29] See also Re Cram; ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 at 134.
Of course, it is necessary to bear in mind that the High Court was concerned with the meaning of that expression as found in the Conciliation and Arbitration Act, not in the enterprise agreement. While the definition of “industrial matters” in the Act is in similar terms to s 4 of the Conciliation and Arbitration Act there is no reason to consider the parties used the expression “conditions of employment” in clause 2.2.6 in any way to reflect the construction of that expression adopted by the High Court in the Union Badge case.
The High Court subsequently considered the meaning of the expression “conditions of employment” in T C Whittle Pty Ltd v T & G Mutual Life Society Ltd,[30] (“Whittle’s case”) a case concerning a rise and fall clause in a building contract which provided:
Where, after the date of closing of tender, and during the progress of the work, alternations occur in the actual cost to the contractor in performing the contract as a consequence of alterations in the average award weekly wage … or the equivalent monetary alteration due to a change in standard working hours or any other conditions of employment arising from any statute, statutory regulations or award or order of an industrial tribunal…
[30] (1978) 52 ALJR 173.
Barwick CJ, with whom Mason J agreed, said:[31]
The expression “conditions of employment” is capable, in my opinion, of two possible meanings, apart from the particular context of the clause. It could mean the conditions dictated by a statute or award which are consequential upon the employment of a workman: the conditions under which employment may take place. If that meaning were adopted, the consequential condition need not be a term express or implied of the contract of employment itself. On the other hand, the expression may include only the conditions on which, as between employer and employee, the employee works; in other words, the expression relates only to the terms of the contract of employment express or implied. When those terms are so largely regulated by industrial award, it is perhaps not so easy to regard them as part of the contract of employment: but, in my opinion, that is a proper use to be made of the terms of the industrial award, at least in so far as they fix wages and other employee benefits.
The clause, in my opinion, provides a context which settles the choice to be made between these possibilities. As I have pointed out, it is both central and fundamental to the understanding and operation of the clause that the average wage is a notional concept, its amount being constructed from the financial specifications of a series of industrial awards and of statutes regulating the terms of industrial employment. These are relevantly the conditions of employment current at the date of the closing of tenders. The relevant alterations in conditions of employment must, in my opinion, be of a like character. That means, in my opinion, the change to be allowed must be a change in the obligations of the employer towards the employee in the employment or a change in the entitlement of the employee to action by the employer in the employment.
The relevant changes in the conditions of employment must be by statutory instrument or industrial award and, in my opinion, be general in nature, that is, be operative as to all employees who fall within the area intended to be regulated.
[31] (1978) 52 ALJR 173 at 177.
This analysis establishes that the expression “conditions of employment” is capable of two meanings. Which meaning should be adopted depends upon the particular context. The context in Whittle’s case is irrelevant to the determination of the meaning of the same expression in this case, but the two possible meanings identified by the High Court in Whittle’s case nonetheless assists in the construction of that expression in this case, namely, that it could mean either the conditions dictated by a statute or award, on the one hand or, on the other hand, the conditions prescribed by the terms of the contract of employment between the parties, whether express or implied.
The appellant submits that Whittle’s case should be disregarded as it was concerned with a commercial instrument not an industrial instrument. However, Wright J in Re Corrections Health Service Nurses (State) Award[32] had recourse to the reasoning of Barwick CJ in Whittle’s case in construing the meaning of the expression “conditions of employment” in an industrial instrument whose interpretation was in issue before the Industrial Relations Commission of New South Wales. His Honour said :[33]
Although terms such as “conditions of employment” are to be construed broadly (see, for example, authorities such as Westwood v Lightly and R v Booth; ex parte Administrative and Clerical Officers’ Association) in ordinary industrial parlance the term often refers to an obligation of one of the parties to the contract of employment to the other party to the contract. Although the judgment of T C Whittle Pty Ltd v T & G Mutual Life Society Ltd, earlier referred to, was concerned with a particular situation, nevertheless, the judgment of Barwick CJ at 438 of the report makes tolerably plain that this one of the usual meanings given to the phrase.
[Footnotes omitted].
[32] (1999) 90 IR 235.
[33] (1999) 90 IR 235 at 244.

Further, the appellant submitted that in applying the meaning afforded to the expression “conditions of employment” by Isaac and Rich JJ in the Union Badge case,[34] the adjective “necessary” only qualified the word “requisites” and not the words that followed, namely, “attributes”, “qualifications”, “environment” or “other circumstances” affecting the employment. I disagree. In my view, their Honours intended that conditions of employment include only those elements that constituted the necessary requisites, attributes, qualifications, environment or other circumstances that affect employment. “Necessary” is intended to qualify the attributes, qualifications, environment and other circumstances affecting employment. Those elements that are necessary attributes, qualifications, environment or other circumstances affecting the employment, as well as the necessary requisites affecting employment, constitute a condition of employment for the purposes of s 4 of the Conciliation and Arbitration Act. The construction for which the appellant contends is strained. Their Honours used the word “necessary” distributively.
[34] (1913) 17 CLR 680.
The meaning afforded the expression “conditions of employment” by the High Court in construing the terms of s 4 of the Conciliation and Arbitration Act reflects the particular statutory context under consideration. In s 4 the expression “conditions of employment” forms part of the larger expression “terms and conditions of employment”. In that context “conditions” of employment exist in juxtaposition. “Conditions” of employment stand in contradistinction to “terms” of employment. “Conditions” of employment mean something different from “terms” of employment and are to be distinguished from them. This analysis highlights a critical distinction between the context in which the High Court has considered the meaning of “conditions of employment” and the context in which that same expression must be construed in this matter.
Clause 2.2.6 of the enterprise agreement does not refer to “terms of employment” at all. Consequently, I do not consider much assistance can be obtained from the construction of the same expression adopted by the High Court in construing s 4 of the Conciliation and Arbitration Act. The analysis in the Union Badge case throws little light on the construction of the entirely different provision in clause 2.2.6 of the enterprise agreement.
Even if I considered otherwise, for the reasons I have explained, I consider that a “condition of employment” must be an element that constitutes a necessary requisite, attribute, qualification, environment or other circumstance affecting the employment. I am not satisfied that an entitlement to free or subsidised car parking meets this description. I accept the submission of Mr Evans QC, counsel for the respondents, that the provision of free or subsidised car parking cannot be considered necessary to the performance of an employee’s employment duties. It is not a necessary requisite, attribute, qualification, environment or other circumstance affecting the employment. At best it could only be considered incidental rather than necessary. Even if car parking was necessary to the performance of employment duties, which I think doubtful in the case of most employees in public hospitals, the cost at which it is provided, which is the real issue in this appeal, must be incidental. Nor do I consider the characterisation of the entitlement to free or subsidised car parking as a “privilege” attaching to an employee’s employment assists the appellant’s case. The very question of the meaning of “privileges” again arises in the context of the statutory definition of “industrial matters” in s 4 of the Conciliation and Arbitration Act. In s 4 of the Conciliation and Arbitration Act an employee’s “privileges” while capable of constituting an “industrial matter”, are defined as being something distinct from the “terms and conditions of employment”. Accordingly, even if an entitlement to free or subsidised car parking can be characterised as a “privilege”, this does not make it a “condition of employment” within the meaning of clause 2.2.6.
When the clause is read in its context, in accordance with the principles in Amcor,[35] I cannot accept the appellant’s submission that the expression extends beyond contractual terms, (either express, implied or incorporated from other documents) to “working conditions” and “privileges”. I do not consider that it extends to “privileges” for the reasons set out previously. To submit that it extends “to working conditions” is unhelpful as it merely begs the question. It invites an inquiry into the meaning of “working conditions” and whether an entitlement to free or subsidised car parking satisfies that expression.
[35] (2005) 222 CLR 241.
In my view, the Industrial Relations Court was correct in holding that, properly understood, the expression “conditions of employment” in clause 2.2.6 means an obligation of one of the parties to the contract of employment to the other party to the contract, which obligation arises from the terms of the contract, whether express or implied, by law or fact or custom and usage, or imported into the contract by force of some other document independent of the intention of the parties.
In my view, this construction is not only consistent with the analysis of Barwick CJ in Whittle’s case,[36] it is also consistent with the approach taken by Wright J of the Industrial Relations Commission of New South Wales in Re Corrections Health Service Nurses’ (State) Award.[37]It also is consistent with reading the enterprise agreement as a whole and the industrial purpose of clause 2.2.6. Rather than the expression “conditions” being used in the enterprise agreement in contradistinction to “terms of employment”, I consider it is used in contradistinction to the expression “employment arrangements” in clause 17. In my view, “employment arrangements” is a concept adopted by the parties, which while somewhat nebulous, extends beyond the contractual conditions under which the employee work. Clause 24.1 referring to the agreement and salary schedules being taken to have satisfied and discharged all claims of any description (whether as to monies or conditions), reinforces the construction I prefer. It suggests that the “conditions” being referred to therein are contractual conditions, that is to say, conditions constituting the contractual basis which underpinned the negotiations culminating in the making of the enterprise agreement, the legal effect of which is that it prevails over any contractual conditions whose terms are inconsistent with the terms of the enterprise agreement.[38] The expression “employees’ working conditions” in clause 25.1.5 is more ambiguous. I accept that the concept of “employees’ working conditions”, in the context of clause 25.1.5, could extend beyond contractual conditions, but that does not cause me to adopt a broader construction of the expression “conditions of employment” in clause 2.2.6. While the expressions are similar, they are not identical and I consider they serve different purposes. Clause 25.1.5 confers a right on employees to be consulted by their representatives prior to any proposed changes in their working conditions or the services they provide are made. By contrast, clause 2.2.6 is part of a provision relating to objects and commitments of the parties to the enterprise agreement. Clause 2.2.6 is an explicit commitment undertaken by the parties that in making and applying the enterprise agreement, existing conditions of employment are not to be reduced subject to the terms of the enterprise agreement itself and any applicable workplace flexibility agreement. The reference to a workplace flexibility agreement is a reference to clause 17 of the enterprise agreement itself. Sensibly, that commitment is to be understood as a reference to a contractual condition rather than any more ill-defined incident of an employee’s employment which could only create the potential for considerable disputation. In any event, the construction of the enterprise agreement must be undertaken on the basis that the agreement was drafted by lay persons without attention to the niceties of form and drafting.
[36] (1978) 52 ALJR 173.
[37] [1999] 90 IR 235.
[38] Fair Work Act 1994 (SA), s 81(1).
This construction of clause 2.2.6 does not result in the provision having no work to do, as submitted by the appellant. Contrary to the contention of the appellant, it is possible for significant contractual conditions to exist outside the enterprise agreement.
Neither does this analysis preclude an entitlement to free or subsidised car parking on the part of an individual employee being a contractual condition of that employee’s employment implied by custom and usage. But the case conducted before the Industrial Relations Court did not descend to a consideration of individual employees. As Mr Evans QC submitted, on behalf of the respondents, the application before the Industrial Relations Court was for injunctive remedies pursuant to s 15 of the Act. The appellant conducted its case on an industry-wide basis. The evidence before the Court did not establish conclusively any uniform or even wide-spread contractual entitlement to free or subsidised car parking on the part of employees whose employment was subject to the enterprise agreement. The evidence left open the possibility that such a contractual entitlement might exist on the part of an individual employee but did not establish that fact. The state of the evidence was insufficient, as his Honour found, to establish a contravention of the enterprise agreement which warranted an order pursuant to s 15.
The appellant also sought to rely upon the decision of the Industrial Commission of New South Wales in NSW Nurses’ Association & Ors v South Western Sydney Health Service (“the NSW Nurses’ Association case”).[39] Judge Hannon declined to rely upon the approach taken by the Commission in that matter as being of no assistance to the appellant. I agree. His Honour said in that case:[40]
[A] dispute arose over the announcement of an intention to impose car parking fees on employees at Liverpool Hospital who had previously enjoyed the benefit of free parking. Although it was accepted that there was no express or implied contractual term providing a right to free car parking, the Commission found that such a right may arise in circumstances where it was notorious, certain, uniform and reasonable, and where a person who entered into a contract affected by the usage must be taken to have done so with the intention that the usage should form part of the contract. The Commission did not make a specific finding on the issue as to whether the custom and practice on the facts gave rise to a contractual entitlement, although it gave recognition to the existence of the usage by requiring that existing employees continue to receive the benefit of free parking for a specified period of time before it was discontinued pursuant to an award of the Commission.
[39] [1994] NSWIR Comm 147, 8 December 1994.
[40] [2012] SAIRC 5 at [55].
The appellant submitted that the NSW Nurses’ Association case demonstrated how a usage or privilege might arise. Be that as it may, the issue before the Industrial Relations Court was whether, on the evidence before it, the appellant had proved a contravention of clause 2.2.6 which justified the making of orders restraining the employer from implementing the new car parking fees policy and requiring it to repay fees already collected. For reasons I have already explained, the evidence did not do so. As the High Court makes clear in Byrne v Australian Airlines Ltd,[41] the question is always whether the general notoriety of the custom makes it reasonable to assume that the parties contracted with reference to the custom so it is therefore reasonable to import such a term into the contract. While it is not essential that the custom be universally accepted, it must be so well known and acquiesced in that individuals making a contract in that situation reasonably can be presumed to have imported it into their contract. His Honour found that the evidence indicated that the entitlement to free or subsidised car parking was a benefit flowing from permission granted in individual circumstances to an employee, which was subject to variable terms and conditions in accordance with bylaws and procedures applicable at each of the public hospitals concerned. There was no evidence that any of the employees contracted for provision of car parking facilities on the basis of a custom or usage so notorious as to satisfy the test in Byrne.[42]
[41] (1995) 185 CLR 410 at 423 and 440.
[42] [2012] SAIRC 5 at [54].
Finally, I reject the submission that clause 2.2.6 itself creates an entitlement by converting the privilege of free or subsidised car parking to a right for the life of the enterprise agreement. This submission involves a non sequitur. As discussed above, the issue is whether any entitlement to free or subsidised car parking satisfies the description of a “condition of employment” as that expression is to be understood in the context of clause 2.2.6. For the reasons set out above the appellant failed to prove that this was so.
The approach of the Industrial Relations Court does not demonstrate error. No contravention of clause 2.2.6 has been established.
Consultation
The appellant contended that his Honour erred in finding no breach of clause 25.1.5. It argued that his Honour was led into error because he misconstrued the judgment of the Full Court of the Federal Court of Australia in QR Ltd.[43]His Honour considered the Full Court’s judgment in QR Ltd stands as authority for the proposition that a consultation provision, similar to that found in clause 25 of the enterprise agreement, enabled employees to make suggestions in relation to proposals for change to terms and conditions of employment at a time anterior to the sending of any letter of offer with respect to altered terms of employment.[44]
[43] (2010) 204 IR 142.
[44] [2012] SAIRC 5 at [76].
In the joint judgment of the majority, Keane CJ and Marshall J, their Honours said the relevant clause was concerned with consultation, not bargaining or negotiation. The purpose of the consultation clause in that case was to ensure that, before the employer seeks to negotiate to alter the terms and conditions of employment, whether by inviting voluntary acceptance of an offer or engaging in compulsory processes of dispute resolution, employees will have a real opportunity to make suggestions on the subject matter raised for their consideration so that the suggestions might be considered by the employer before the processes of bargaining and offer and acceptance begin.
The appellant sought to distinguish QR Ltd on the basis that the process of consultation in QR Ltd involved a corporatised emanation of the Queensland state government rather than the government itself. The government was not party to the collective agreement between QR Ltd and the unions. Nonetheless the decision in relation to which consultation was required in that case involved the future employment of QR Ltd employees following a decision by the Queensland state government to privatise QR Ltd, the operator of state rail services in Queensland. In my view, the distinction sought to be drawn by the appellant in this case is a distinction without a difference. In this case the Industrial Relations Court was concerned with the obligations to consult in respect of a decision made by the employer driven by a budgetary decision of the South Australian state government. The employer’s decision to implement the policy decision made by the government in the context of the 2010/2011 Budget Statement did not give rise to any right on the part of the appellant to be consulted antecedent to the cabinet’s decision to adopt the new policy. The concession referred to by his Honour[45] went no further than to accept that, if the conduct of the Chief Executive, Department of Health constituted a contravention of the enterprise agreement, an order pursuant to s 15 could be made against the Chief Executive, Department of Premier and Cabinet as the statutory employer.[46] This “concession” does not lead logically to a conclusion that clause 25.1 requires consultation by the employer with employees of public hospitals prior to the government making a decision to adopt the new policy in relation to car parking fees at public hospitals. The Chief Executive, Department of Premier and Cabinet, is the statutory employer pursuant to the provisions of the Act. He is not the agent of the Crown and neither does he or she bind the Crown in respect of employees covered by the enterprise agreement as the agent of the Crown. An analysis, founded in principles related to the authority of Cabinet Ministers to bind the Crown in negotiating Government contracts is misconceived. Such an argument misunderstands the distinction between the position of the Chief Executive, Department of Premier and Cabinet, as the statutorily mandated employer for the purposes of the Act and distinct principles relating to Crown agency relevant to the negotiation of government contracts.
[45] [2012] SAIRC 5 at [8].
[46] The Chief Executive, Department Premier and Cabinet, is declared by regulation to be the employer of public employees for the purposes of the Fair Work Act 1994 (SA). See the definition of “employer” in s 4(1).
In any event, as his Honour observed, a consultation process cannot take place in a vacuum.[47] As the employer was proposing change it was incumbent on it, the employer, for the purposes of consultation, to outline a proposal in some form containing sufficient detail to alert employee representatives to aspects of the proposal which may adversely affect employees and to allow them the opportunity to consider various alternatives which might be proposed for the consideration of the employer. As the Industrial Relations Court found, this is what occurred.
[47] [2012] SAIRC 5 at [81].
In my view, no error on the part of the Industrial Relations Court has been demonstrated.
I reject the submission that there was a contravention of clause 25.1 of the enterprise agreement.
Dispute avoidance procedures
The appellant submits that the exercise of the Industrial Relations Court’s discretion miscarried by it refraining from making any order pursuant to s 15 notwithstanding its finding that there had been a contravention of clause 26.2. I do not accept this submission.
For the reasons set out above, I consider there was no contravention of clause 2.2.6 or clause 25.1 of the enterprise agreement established. Accordingly, in these circumstances, no basis has been made out to warrant this Court’s interference in the exercise of the Industrial Relations Court’s discretionary decision not to make an order pursuant to s 15.[48]
[48] House v King (1936) 55 CLR 499 at 505 – 506.
Conclusion
I would dismiss the appeal.