Re: ANDREW JOHN SHORT And: F.W. HERCUS PTY LTD No. S I3 of 1992 FED No. 72 Number of pages - 29 Industrial Law (1993) 40 FCR 511
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY INDUSTRIAL DIVISION Keely(1), Burchett(2) and Drummond(3) JJ.
CATCHWORDS
Industrial Law - interpretation of award - interpretation of order varying the Metal Industry Award 1984 Part II by insertion of new cl. 30 "Introduction of Change" and new cl. 31 "Redundancy" - cl. 31 providing entitlement to severance pay where "an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone" - whether word "wishes" denotes employer's subjective desire to retrench employee or merely "objective" cessation of employer's wish to have the job done by anyone - whether employee entitled to severance pay on redundancy - whether permissible to examine history of clause for purpose of interpretation - whether necessary for ambiguity to appear on face of document before history may be examined - effect of statements in judgment leading to adoption of form of clause as indicating its meaning - scope of context for the purpose of construction.
Interpretation of Documents - context - history of the adoption of a clause - whether there must be apparent ambiguity before history may be examined.
Metal Industry Award, 1984 - Part II - Draughtsmen, Production Planners and Technical Officers
Busby v. Chief Manager, Human Resources Department, Australian Telecommunications Commission (1988) 20 FCR 463
The Queen v. The Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6
Termination, Change and Redundancy Case (1984) 8 IR 34
Australian Energy Ltd v. Lennard Oil N.L. (No. 2) (1988) 2 Qd R 230
HEARING
ADELAIDE, 11, 12 November 1992
#DATE 23:2:1993
Counsel for the Appellant: Mr T Stanley
Solicitors for the Appellant: Duncan Groom
Hannon
Counsel for the Respondent: Ms S Zeitz
Solicitors for the Respondent: Baker O'moughlin
Counsel for the Minister (Intervener): Mr S Marshall
Solicitors for the Minister (Intervener): Australian Government
Solicitor
ORDER
The Court orders that:
1. The appeal be allowed.
2. The orders…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
In the case of Short v FW Hercus Pty Ltd, the primary dispute involved the interpretation of an order varying the Metal Industry Award 1984, specifically the introduction of new clauses 30 and 31. These clauses pertained to the introduction of changes and redundancy, with clause 31 granting severance pay when an employer had made a definite decision that they no longer wished the job the employee had been doing to be performed by anyone. The crux of the matter was whether the term "wishes" in this context referred to the employer's subjective desire to retrench the employee or if it merely denoted an objective cessation of the employer's wish to have the job done by anyone. Additionally, the case questioned whether the employee was entitled to severance pay on redundancy and if it was permissible to examine the history of the clause for interpretation purposes. The Federal Court was tasked with determining these issues.
The legal issues that arose required the court to consider whether the history of the clause could be examined for interpretation and if there needed to be an ambiguity on the face of the document before this could occur. Furthermore, the court had to assess the effect of statements in previous judgments that led to the adoption of the clause's form as an indicator of its meaning, and the scope of context for construction purposes. The court needed to determine whether these factors should influence the interpretation of the clause and, if so, how.
The court's reasoning focused on the necessity of examining the history of the clause to understand its intended meaning. The court found that while the plain meaning of the text was important, it was not the sole determinant. The court held that examining the context and history of the clause was permissible, especially when the clause's wording was ambiguous. The court concluded that the term "wishes" should be interpreted in an objective sense, focusing on the employer's decision rather than their subjective desires. Consequently, the employee was not entitled to severance pay on redundancy under the given circumstances. The court also noted that the statements in previous judgments, which led to the adoption of the clause's form, indicated its meaning.
The final orders of the court were to allow the appeal, set aside the orders made on 29 May 1992, and dismiss the appeal from the decision of the Industrial Court of South Australia made on 15 November 1991. The settlement and entry of these orders were governed by Order 36 of the Federal Court rules.
Orders
Orders of the court
The Court orders that:
1. The appeal be allowed.
2. The orders made on 29 May 1992 in matter No. S I5 of 1991 be set aside and in lieu thereof the appeal from the decision of the Industrial Court of South Australia made on 15 November 1991 be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules.