Together Queensland, Industrial Union of Employees v State of Queensland (Department of Health)
[2016] QIRC 119
•10 November 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Together Queensland, Industrial Union of Employees v State of Queensland (Department of Health) [2016] QIRC 119 |
PARTIES: | Together Queensland, Industrial Union of Employees v State of Queensland (Department of Health) |
CASE NO: | D/2014/78 |
PROCEEDING: | Notice of Industrial Dispute |
DELIVERED ON: | 10 November 2016 |
HEARING DATES: HEARD AT: | 18 and 19 July 2016 Brisbane |
MEMBER: | Industrial Commissioner Neate |
ORDERS: | Question 1: In relation to clause 4.3 Extended Span of Ordinary Hours of Work within the Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012 ("MOCA3"), what is meant by the term "extended span of hours arrangement"? Answer to Question 1: The term "extended span of hours arrangement" in relation to clause 4.3 of the Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012 means an arrangement in accordance with which a senior medical officer works a shift that includes Ordinary Hours (as defined in clause 4.2) that are worked outside the normal span of Ordinary Hours (i.e. outside the period between 0700 hours and 1800 hours Monday to Friday) and includes some part of the period between 0700 hours and 2200 hours Monday to Sunday (or between 2200 and 0700 in exceptional circumstances). Question 2: In determining the meaning behind the term "extended span of hours arrangement," what is the correct application of the loading mentioned in clause 4.3.3(a) of MOCA 3, in relation to shifts DG1, MG1, LC1 and ALE performed by Dr Spain in accordance with the roster attached at Appendix 1? Answer to Question 2: The correct application of the loading mentioned in clause 4.3.3(a) of MOCA 3 in relation to each of the specified shifts is: DG1 (0730 - 1800): Nil MG1 (0730 - 1800): Nil LC1 (1230 - 2300): 7 hours at 25% of the Ordinary rate (less unpaid meal break taken) ALE (1730 - 2300): 5.5 hours at 25% of the ordinary rate. |
| CATCHWORDS: | INDUSTRIAL LAW - INDUSTRAL DISPUTE - Interpretation of Certified Agreement - whether Senior Medical Officers were entitled to be paid the 25% loading under clause 4.3.3(a) of the Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012 for work after 1600 hours but during ordinary hours of work - meaning of "extended span of hours arrangement" in clause 4.3.3 - approach to ascertaining the meaning of that expression - meaning of clause 4.3.3(a) in context - references to clauses in previous certified agreement that the loading in clause 4.3.3(a) "replaces" - circumstances surrounding negotiation of certified agreement - whether the contra proferentem rule applies to clause 4.3.3(a) or explanatory documents provided in relation to draft certified agreement |
| CASES: | Industrial Relations Act 1999, ss 230, 284 Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241 |
| APPEARANCES: | Mr M Thomas, representative of the Applicant Mr M Uzelin, representative of the Respondent |
Decision
This dispute concerns whether, under the Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012 ("MOCA 3"), Senior Medical Officers on an extended span of hours arrangement were entitled to be paid a loading of 25 per cent of the ordinary rate for all Ordinary Hours on weekdays worked after 1600 hours but during ordinary hours of work.
Background
The Notice of Industrial Dispute was filed with the Industrial Registrar on 11 August 2014 by Together Queensland, Industrial Union of Employees ("the Applicant"). It referred to an apparent inconsistency across Health and Hospital Services in the application of clause 4.3.3 of MOCA 3. That clause provides for the payment of a Senior Medical Officer ("SMO") who works an extended span of ordinary hours.
During the life of MOCA 3 a dispute arose when it became clear that Queensland Health ("the Respondent") was only paying the 25 per cent loading mentioned in clause 4.3.3(a) for ordinary hours worked between 1600 hours and 1800 hours on the shifts that finished after 1800 hours. If a shift finished at or before 1800 hours, the loading was not paid for those ordinary hours between 1600 hours and the end of the shift.
The dispute concerns the meaning and application of the phrase "extended span of hours arrangement" in clause 4.3 of MOCA 3 and its impact on the application of the extended span of hours loading in clause 4.3.3 of MOCA 3. The Notice of Industrial Dispute stated that the Applicant sought to resolve these differences to ensure the provision is uniformly and properly applied. The Applicant sought the assistance of the Queensland Industrial Relations Commission ("the Commission") to ensure that employees are remunerated in accordance with MOCA 3.
Conciliation conferences were convened by Commissioner Black on 8 September 2014, 18 November 2014, 20 May 2015, and 23 July 2015. There was another conference before Deputy President O'Connor on 23 October 2015.
The Application for Orders filed by the Applicant on 1 October 2015 sought the following order:
"Doctors subject to the provisions of the Medical Officers' (Queensland Health) Certified Agreement (No. 3) 2012 who were on an extended span of hours arrangement were entitled to be paid a loading of 25% of the ordinary rate for all ordinary hours worked between 1600 hours and 1800 hrs on any shifts undertaken during that extended hours roster."
Although the parties were unable to resolve the dispute, they agreed to a statement of facts and the issues to be resolved in these proceedings which also:
(a)set out the relevant clauses of the Medical Officers' (Queensland Health) Certified Agreement (No 2) 2009 (CA/2009/130) ("MOCA 2") and MOCA 3; and
(b)contained an example roster for Dr David Spain (and others) from the Gold Coast University Hospital.
The parties agreed that, so far as is relevant for these proceedings, MOCA 3 operated between 1 November 2012 and 4 August 2014.
Oral and written evidence was given by:
(a)Daniel Henry Goldman, Acting Assistant Secretary of the Applicant;
(b)Dr David Spain, Deputy Medical Director, Gold Coast University Hospital, Southport; and
(c)Mark Andrew Brady, previously the Senior Director, Employee Relations with the Respondent.
What the Medical Officers' (Queensland Health) Certified Agreement No 3 provides
For the purpose of these proceedings, the relevant clauses of MOCA 3 are clauses 4.2, 4.3 and 4.3.3. Those clauses provide:
"4.2 Hours of Work - Senior Medical Officers
Definitions
Accrued Day Off means a day or part of a day accrued by working in excess of 80 hours per fortnight (pay period) where an employee has elected to take time off in lieu of overtime payment.
Rostered Day Off means a set day in a roster cycle where an employee is rostered off.
Ordinary Hours means:
(a)for Senior Medical Officers not working on an extended hours roster, 80 hours per fortnight worked between 7.00am and 6.00pm Monday to Friday;
(b)for Senior Medical Officers working on an extended hours roster, 80 hours per fortnight worked as part of the rostered ordinary hours at times and on days as dictated by the employee's extended hours roster in accordance with clause 4.3 or 4.3.4.
…
4.3 Extended Span of Ordinary Hours of Work
Subject to clause 4.3.4, an extended span of hours arrangement may be implemented for a Senior Medical Officer between the hours of 7.00am to 10.00pm,[1] Monday to Sunday. The Ordinary Hours of this arrangement are defined in clause 4.2(b).
…[1] Although there are some references to times as am or pm, most of MOCA 3 refers to times in 24 hours terms. For consistency, the 24 hours references are used in this decision.
4.3.3 Payment for Work in the Extended Span of Ordinary Hours: 0700 hours to 2200 hours
A Senior Medical Officer working Ordinary Hours in an extended span of hours arrangement between 0700 hours and 2200 hours will be paid according to one of the following:
(a)A loading of 25% of the ordinary rate for all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday;
(b)A loading of 50% of the ordinary rate for all Ordinary Hours in a shift worked on a Saturday; or
(c)A loading of 100% of the ordinary rate for all Ordinary Hours in a shift worked on a Sunday.
The 25% loading referenced in 4.3.3 (a) replaces the following:
-15% loading for working extended hours provided for in clause 6.3.8 (a)(i) and 6.3.8(ii)(A)[2] of MOCA 2.
-10% flexibility allowance provided for in clause 6.3.1 of MOCA 2." (Emphasis added)
[2] Sic - this should read 6.3.8(a)(ii)(A).
Clauses 4.2 and 4.3 refer to clause 4.3.4 which provides for the "exceptional circumstances" in which SMOs worked between 2200 hours and 0700 hours and for SMOs to be paid a "loading of 25% of the ordinary rate" for all Ordinary Hours worked after 2200 until the end of the rostered shift. The operation of clause 4.3.4 is not relevant to resolving the specific interpretation issues raised in these proceedings.
MOCA 3 also provided the method of working Ordinary Hours. Clause 4.2.1 stated:
"The Ordinary Hours may be performed on one of the following basis, most suitable to the particular work location, after consultation with, and giving reasonable consideration to, the circumstances of the employee concerned:
(a)By officers working 8 continuous Ordinary Hours (excluding the meal break) each day; or
(b)By officers working less than 8 continuous Ordinary Hours (excluding the meal break) each day on one or more days each work cycle; or
(c)By officers working more than 8 continuous Ordinary Hours (excluding the meal break). In a consultative process, individual officers may agree that their Ordinary Hours are to exceed 8 on any one day thus enabling standard Ordinary Hours to be completed in fewer rostered days in the work cycle:
i.Up to a maximum of 10 Ordinary Hours on weekdays;
ii.For Senior Medical Officers working on an extended hours roster only, up to a maximum of 12 Ordinary Hours on weekdays and public holidays;
iii.Where service delivery necessitates it and by agreement with the officer/s, a shift length of 12 and half Ordinary Hours inclusive of a paid meal break may be worked;
iv.The minimum engagement is four continuous Ordinary Hours."
Issues
The parties agreed that the following questions are to be answered in these proceedings:
1. In relation to clause 4.3 Extended Span of Ordinary Hours of Work within the Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012 ("MOCA3"), what is meant by the term "extended span of hours arrangement"?
2. In determining the meaning behind the term "extended span of hours arrangement," what is the correct application of the loading mentioned in clause 4.3.3(a) of MOCA3, in relation to shifts DG1, MG1, LC1 and ALE performed by Dr Spain in accordance with the roster attached at Appendix 1?
In relation to Question 2, the times allocated to each of the specified shifts are DG1 (0730 – 1800), MG1 (0730 – 1800), LC1 (1230 – 2300), and ALE (1730 – 2300).
The parties agree that any time worked after 1800 hours on any one shift by an SMO would attract the loading of 25 per cent as per clause 4.3.3(a) of MOCA 3.
In practical terms, the issue is whether the 25 per cent loading was payable on an "extended span of hours arrangement" for work done between 1600 hours and 1800 hours on any weekday.
The Applicant contends that the "extended span of hours" loading applies to all ordinary hours worked between 1600 hours and 2200 hours on any weekday, on any and all shifts regardless of start or finishing times.
The Respondent contends that the "extended span of ordinary hours" loading under clause 4.3.3(a) of MOCA 3 should be applied only to shifts that finish after 1800 hours, but that ordinary hours from 1600 hours onwards on those shifts attract payment of the loading.
Approach to resolving the issues
At the request of the Commission, the parties made submissions about the legal principles that guide the Commission in answering Questions 1 and 2.
In United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment)[3] ("United Voice"), the Commission was referred to the following decisions of the Commission, the Industrial Relations Court of Australia, and the Federal Court of Australia to inform the approach that the Commission should take to answering the questions in that case: Kucks v CSR Ltd,[4] Short v F W Hercus Pty Ltd,[5] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd,[6] and United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service.[7]
[3] United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment) [2014] QIRC 107.
[4] Kucks v CSR Ltd (1996) 66 IR 182.
[5] Short v F W Hercus Pty Ltd (1993) 40 FCR 511.
[6] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280.
[7] United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision <>
The propositions relevant to this case that emerge from those authorities are, in summary:
(a) deciding what an existing award means is a process quite different from deciding what might fairly be put into an award;[8]
(b) 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 to be 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;[9]
(c) ordinary or well-understood words are in general to be accorded their ordinary or usual meaning;[10]
(d) such meaning may be found in a reputable dictionary;[11]
(e) extrinsic materials may be used in the interpretation of a certified agreement to resolve an ambiguity in the meaning of a clause[12] or if the language is susceptible of more than one meaning;[13]
(f) evidence of prior negotiations to establish objective background facts which were known to both parties and the subject matter of the agreement is admissible;[14]
(g) evidence consisting of statements and actions of the parties which are reflective of their actual intentions and expectations is not receivable.[15]
[8] Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J).
[9] Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J).
[10] Kucks v CSR Limited (1996) 66 IR 182, 184 (Madgwick J).
[11] Kucks v CSR Limited (1996) 66 IR 182, 185 (Madgwick J), including reference to the "estimable" Macquarie Dictionary.
[12] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280, 281 (Hall P).
[13] Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 519 (Burchett J); Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision < [42], [91]-[93] (Industrial Commissioner Thompson).
[14] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J); see also Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 518, 520 (Burchett J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision < [70]-[71] (Thompson C).
[15] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] 167 QGIG 280, 281 (Hall P), quoting Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J); United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community Safety - Queensland Fire and Rescue Service (D/2013/84) - Decision < [70]-[71] (Thompson C).
Both parties referred to the following principles listed in the decision of a Full Bench of the Fair Work Commission in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd ("Golden Cockerel"):[16]
[16] Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41].
1."The AI Act[17] does not apply to the construction of an enterprise agreement made under the Act.
[17] Acts Interpretation Act 1901 (Cth).
2.In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3.Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4.If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5.If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstances will be admissible to aide the interpretation of the agreement.
6.Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7.The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8.Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision's place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9.Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10.The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties."
The Respondent submits that those principles provide some useful clarification of the principles identified by the Commission in United Voice. The Applicant submits that the decision in the Golden Cockerel case supports the principles identified by the Commission in United Voice.
I approach the issues in these proceedings with those propositions in mind and will consider the meaning of "extended span of hours arrangement" in clause 4.3.3:
(a) having regard to the words and phrases used in clauses 4.2 and 4.3 of MOCA 3;
(b) by reference to the relevant clauses of MOCA 2; and
(c) in light of the negotiations that preceded clause 4.3 of MOCA 3.
Question 1: Some preliminary issues
Evidentiary issues: The Respondent objected in writing to much of the affidavit evidence of Dr David Spain. Those objections were provided on the afternoon of the Friday before the Monday on which the hearing commenced and, for various reasons, were not ruled on at the commencement of the hearing. Rather, the affidavit was admitted into evidence (Exhibit 2) subject to the objections being dealt with subsequently. It is necessary to rule on those objections in order to determine how much of that affidavit and related evidence should be considered when deciding this matter.
The Applicant submits that the evidence of Dr Spain was led:
(a)to negate any suggestion of an ambiguity in how clause 4.3.3(a) is to be interpreted; and
(b)to show that there was no shared intention between the parties or common understanding between the parties in relation to the application of that clause.
Although the purpose for leading that evidence was explained in those submissions, the admissibility of the evidence is to be determined by reference to its nature.
In essence, the Respondent objects to the admissibility of evidence:
(a) that, under MOCA 3, certain doctors had not been paid the loading for certain hours; and
(b) of email correspondence in October 2013 (well after MOCA 3 commenced) with two officers of Queensland Health (Benedicto Reyes and Sarah Lock), and other communications about the interpretation of the subject clause by Queensland Health.
The Respondent acknowledges that if its objection is upheld, the Payroll Portfolio document "Business Requirements Specification MOCA EB3 2012 - 25% loading for Extended Hours (Evening and Night Shifts)" attached to the affidavit of Mr Goldman (Exhibit 1 DG9) must also be excluded from the Commission's consideration of this matter.
In support of its submission, the Respondent relies on decisions of the Commission,[18] the Australian Industrial Court, the Federal Court of Australia and the Industrial Court of Queensland.
[18] See State of Queensland (Department of Corrective Services) v Together Queensland, Industrial Union of Employees [2014] QIRC 176, [61] (Thompson C).
In the 1976 case of Seamen's Union of Australia v Adelaide Steamship Co Ltd, the Australian Industrial Court considered an application for the interpretation of an industrial award. During the hearing, the respondents sought to have admitted evidence of the conduct of the parties subsequent to the making of the award. The Court reviewed recent authorities and followed[19] a recent decision of the House of Lords in FL Schuler AG v Wickman MachineTool Sales Ltd[20] that in general an agreement could not be construed in the light of the subsequent actions of the parties.
[19] Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444, 445 (JB Sweeney, Evatt, St John JJ)
[20] FL Schuler AG v Wickman MachineTool Sales Ltd [1974] AC 235.
In Printing & Kindred Industries Union & Anor v Davies Bros Ltd, Gray J, in the Federal Court of Australia Industrial Division, referred to an evidentiary issue concerning the conduct of the parties. He stated that the court "must be wary of admitting the evidence" and referred to the decision in Seamen's Union of Australia v Adelaide Steamship Co Ltd that stated that evidence of conduct of the parties subsequent to the making of an award was inadmissible, even for the purpose of resolving an ambiguity in the terms of the award.[21]
[21] Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444, 452.
Those decisions were followed by Hall P in Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch when he stated that the "better view is that conduct of the parties subsequent to the making of an award is not admissible even for the purpose of resolving an ambiguity in the terms of the award."[22]
[22] Brisbane City Council AND Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch [2004] QIC 7.
That line of authorities was encapsulated in the following statement by Gray J in United Firefighters' Union of Australia v Country Fire Authority:[23]
"Great caution must be exercised in attempting to rely upon the conduct of parties to an award or agreement as an aid in the interpretation of that award or agreement. Plainly, conduct subsequent to the making of an award or agreement is inadmissible as an aid to interpretation. See Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 and Printing & Kindred Industries Union & Anor v Davies Bros Ltd (1986) 18 IR 444 at 452. Only if it can be shown that there is a history of the use of a particular term with a particular meaning, sufficient to demonstrate a common understanding between or among the parties to an award or agreement that the term has that meaning, is there any possibility that the conduct of the parties can be relied on."
His Honour noted that the evidence in that case went "nowhere near establishing such a common understanding." The same can be said in the present application.
[23] United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853, [30].
In the light of that clear line of authority, I have concluded that paragraphs 8 to 13 (inclusive) of Dr Spain's affidavit (and consequently documents DS2 and DS3 mentioned in that affidavit), and any oral evidence in relation to the matters referred to in those paragraphs, cannot be considered when interpreting the provisions of MOCA 3 in issue in this case. For the same reason, I have not had regard to Payroll Portfolio document "Business Requirements Specification MOCA EB3 2012 - 25% loading for Extended Hours (Evening and Night Shifts)."
The Respondent also submitted that:
(a)paragraph 4 of Dr Spain's affidavit was inadmissible for the purpose of interpreting MOCA 3 because it referred only to Dr Spain's understanding of the relevant clause and was not evidence of a shared intention or understanding between the parties;[24] and
(b)paragraphs 5 to 7 (inclusive) were irrelevant as they do not relate to the loading in question.
I agree, and have not given that evidence any weight other than to observe that it provides some information about the circumstances in which MOCA 3 was developed and supports a conclusion that there were different views about how clause 4.3.3(a) of MOCA 3 would operate.
[24] See Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352 (Mason J); The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167 QGIG 280, 281 (Hall P).
The Applicant's submissions in relation to aspects of Mr Brady's evidence are considered along with that evidence later in these reasons (see [123]-[125]).
Whether the contra proferentem rule applies: The Applicant also submits that, should an ambiguity be found to exist, the contra proferentem rule applies.[25] In essence,[26] that is a rule of construction applied to ambiguous clauses (usually in relation to commercial documents such as insurance contracts with standard clauses). The rule applies against the party putting forward the clause in issue,[27] particularly if that party drafted the clause and is the party in whose benefit it is intended to operate. It is often applied to situations where the parties are of unequal bargaining power, but is applicable to other cases. However, the rule has little, if any application where the document is in a standard form prepared by representatives of each party. In other words, it does not apply when both parties are involved in wording and the inclusion of the ambiguous clause.
[25] Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2011] 167 QGIG 280, 281.
[26] See e.g. Butterworths Australian Legal Dictionary, 1997, 263.
[27] The Latin contra proferentem means "against the offeror" and the rule is also known as interpretation against the draftsman.
In a case involving the construction of insurance policies, the Queensland Court of Appeal referred to various important principles of construction of such policies and stated that the contra proferentem rule applies only when the ambiguity cannot be resolved by those primary rules of construction.[28] As the Court stated:[29]
"The contra proferentem rule has been described as secondary to the primary rule of construing the contract for the purpose of inferring the parties’ intention, and as generally no more than a rule of thumb.[30] It also has been described as a rule of last resort[31] where other rules of construction fail.[32] "
[28] Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183, [32]-[39].
[29] Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183, [38].
[30]Johnson v American Home Assurance Company (1998) 192 CLR 266; Carter JW, Contract Law in Australia 6th ed, LexisNexis, Chatswood, 2012 at [14-03]-[14-04].
[31] Western Australian Bank v Royal Insurance Co (1908) 5 CLR 533, 554; Johnson v American Home Assurance Company (1998) 192 CLR 266, 274- 275.
[32] AMP Fire & General Insurance Co Ltd v Maros Construction Co(Qld) Pty Ltd [1968] QWN 11.
The Respondent rejects the Applicant's submission, contending that it is inappropriate to apply the rule to a certified agreement, particularly one which was negotiated at length between its parties. It submits that a certified agreement is not a document which the "recipient" is unable to negotiate and alter. Rather, certified agreements (certainly MOCA 3) are negotiated at length and, although one party writes the words of the document, the other party or parties are able to negotiate changes to those words. The evidence in this matter[33] clearly shows that the Applicant sought and obtained a number of changes to MOCA 3. Accordingly, the Respondent submits that the contra proferentem rule should not apply in this case.
[33] See the affidavits of Mr Goldman and Mr Brady.
In support of its submission, the Applicant relies on the decision of Hall P in The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd.[34] ("James Hardie") The only issue on appeal in that case was the correct construction of a clause of a particular certified agreement. Hall P stated that the construction contended for by the Appellant in that case conformed to "a literal meaning of the words used." The Respondent sought to go to extrinsic materials both to create and to resolve an ambiguity in the subject clause. A document distributed to employees who were to vote upon the certified agreement, and which was an express attempt to explain what the proposed certified agreement meant, was admissible as an "objective background fact." The passage in that document which concerned the subject clause was itself ambiguous. Hall P wrote:[35]
"I accept the submission that the ambiguity in the explanation of the then putative Certified Agreement taints with ambiguity the Certified Agreement itself. However, in resolving the ambiguity, in circumstances in which the authors of the document were servants and agents of the respondent and the document was (intentionally) drafted for and distributed to lay persons who, looking at the wage rates were in humble circumstances, I can think of no reason why the ambiguity should not be resolved against the respondent who now seeks to avoid an obligation in reliance upon a particular resolution of the ambiguity: compare Cheshire and Fifoot's Law of Contract, 7th Australian edition, 1997, Ed Seddon and Ellinghaus at para. 10.37. The "contra proferentem" rule is a contract rule but the Latin maxim from which it derives is applicable to all written instruments, see Maye v Colonial Mutual Assurance SocietyLtd (1924) 35 CLR 14 at 26 to 27 per Isaacs ACJ."
[34] The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167 QGIG 280.
[35] The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167 QGIG 280, 282.
It is clear that the decision in that case did not apply the contra proferentem rule to the certified agreement, but only to an explanatory document prepared to assist employees who were to vote on the certified agreement.
The issue in the present case is whether the contra proferentem rule might apply to a clause of MOCA 3 and/or to particular explanatory documents prepared in relation to MOCA 3.
The evidence summarised later in these reasons[36] clearly indicates the extent to which the parties negotiated the terms of what became MOCA 3, including clause 4.3.3(a). There is no evidence to suggest that the subject clause was imposed unilaterally, or that its terms were not the product of negotiation and re-drafting. Indeed, the evidence shows the extent to which it was recast towards the end of the negotiations. There are settled principles of construction which the Commission should proceed to apply in ascertaining the meaning of that clause. Accordingly, I am not satisfied that the contra proferentem rule could or should be extended to the clause of MOCA 3 in issue in this case.
[36] See e.g. [102]-[140].
The possible application of the rule to particular explanatory documents prepared in relation to MOCA 3 is considered later in these reasons (see [183]-[185].
The meaning of "extended span of hours arrangement" in clause 4.3.3 of MOCA 3: a textual approach
The dispute between the parties has arisen because of what is said to be the lack of clarity in the meaning of the expression "extended span of hours arrangement" in clause 4.3 of MOCA 3, particularly as the expression operates in relation to clause 4.3.3(a).
Each SMO is entitled to be paid a loading only if he or she is working in an "extended span of hours arrangement" at the material time. Otherwise they do not qualify for the loading or loadings described in clause 4.3.3.
The alternative readings of clause 4.3.3(a) are that:
(a)the loading applies to all ordinary hours worked between 1600 hours and 2200 hours on any weekday, on any and all shifts regardless of start or finishing times (as the Applicant contends); or
(b)the loading applies only to ordinary hours worked between 1600 hours and 2200 hours on shifts that finish after 1800 hours (as the Respondent contends).
The Respondent submits that the difference between the parties comes down to whether the "arrangement" which is the trigger for the allowance means:
(a)"a shift worked into extended hours (post 1800 hours) as part of an arrangement to do so;" or
(b)"the entire roster within which such a shift occurs."
Having regard to the wording of Question 1, the starting point for the Commission is to determine whether the phrase "extended span of hours arrangement" has a plain meaning or whether it contains an ambiguity.
Respondent's submissions: The Respondent submits that the expression "extended span of hours arrangement" in clause 4.3:
(a)is not defined in MOCA 3;
(b)does not have a notorious meaning in industrial jurisprudence;
(c)does not have a clearly articulated meaning; and
(d)is susceptible of more than one meaning.
Although the expression is not defined, the Respondent submits that some components of it are clear. In particular:
(a)it is intended to encompass an "arrangement" which is, in context, a mutually agreed manner in which the parties conduct themselves in relation to a particular subject, the details of which are not themselves prescribed in the agreement;
(b)the subject of the "arrangement" is the "span of hours" which is the lower and upper limits of the hours of the day within which ordinary hours of work are or can be performed without incurring overtime; and
(c)the span of hours is described as "extended," which means that it exceeds a boundary or standard which might otherwise apply, or which has existed in the past. An obvious example of such a boundary is the ordinary span of hours which apply to other similar employees who do not have such an arrangement.
The Respondent submits that, when those elements are taken together, the expression "extended span of hours arrangement" in clause 4.3.3 means an arrangement whereby an SMO works a shift which contains ordinary hours which are worked outside the normal span of Ordinary Hours that would apply to a "non-extending" SMO who is not engaged in such an arrangement.
The Respondent also submits that where a term or expression (such as "extended span of hours arrangement") is susceptible to more than one meaning, an ambiguity exists which allows the Commission:
(a)to have regard to the context and purpose of clause;
(b)to use extrinsic evidence to aid in its interpretation;
(c)to consider evidence of prior negotiations to establish the objective background facts which were known to both parties and the subject matter of the agreement;
(d)not to receive evidence consisting of statements and actions of the parties which are reflective of their actual intentions and expectation; and
(e)to adopt a practical approach.
As this is not a case where the expression "extended span of hours arrangement" has a plain meaning, evidence of the surrounding circumstances will be admissible to aide the interpretation of the agreement.[37]
[37] See Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41] principles 4 and 5.
The Respondent also submits that:
(a)it is now well-established in the authorities that a generous approach to the admission of extrinsic materials to expose an ambiguity, as well as to resolve it, is appropriate;[38]
(b)in relation to establishing whether an ambiguity exists, the Commission should generally err on the side of finding an ambiguity in circumstances where there are rival contentions advanced, and arguable cases can be made out for more than one contention.[39]
[38] Queensland Police "Union of Employees" and Commissioner of Police (2000) 164 QGIG 16, 16 (Hall P); Australian Workers' Union of Employees, Queensland v James Hardie Australia Pty Ltd [2001] QIC 34, (2001) 167 QGIG 280, 281 (Hall P).
[39] Australian Workers' Union of Employees, Queensland v Mount Isa Mines Limited [2003] QIRComm 276; (2003) 172 QGIG 1870 following Fisher C in The Bacon Factory's Union of Employees, Queensland v Hans Continental Smallgoods Pty Ltd [2002] QIRComm 18; (2002) 169 QGIG 199, where Fisher C cited the decision of a Full Bench of the Australian Industrial Relations Commission in Public Transport Corporation of Victoria v Australian Rail, Tram and Bus Industry Union and Others (Print M2454) where the decision of Gray J in PKIU v Davies Bros Limited (1986) 18 IR 444, dealing with applications to vary agreements for the purpose of removing ambiguity, was applied.
Applicant's submissions: The Applicant submits that the passage in contention is clause 4.3.3(a), and that the meaning of that part of the clause is clear and unambiguous. However, the Applicant notes that the Respondent appears to contend that the meaning of that passage is ambiguous and applies only to shifts finishing after 1800 hours.
The Applicant submits that the correct approach to resolving the dispute is for the Commission to interpret the clause under s 284 of the Industrial Relations Act 1999 ("the Act"),[40] starting with the actual words of the agreement. If, on the face of it, the meaning is clear, the onus is on the Respondent to reveal an ambiguity that leads to an alternative interpretation of that wording. In considering whether such an ambiguity exists, the Commission may consider the objective background facts known to the parties during the making of the agreement. Evidence of prior negotiations may be considered to establish those objective background facts, but not for the purpose of interpretation.
[40] The Act enables the Commission to give an interpretation of a certified agreement on application by an organisation, or other person, bound by the agreement. The present case was initiated by Notice of Industrial Dispute under s 229 of the Act, rather than an application under s 284.
As noted earlier, the Applicant also submits that, should an ambiguity be found to exist, the contra proferentem rule applies.
In the Applicant's submission, an extended span of hours arrangement is one where an SMO works a spread of ordinary hours as set out by clause 4.2(b) and has been implemented:
(a)by agreement, in the case of SMOs engaged prior to the date of certification of MOCA 3; or
(b)by direction, in the case of SMOs engaged on or after the date of certification of MOCA 3.
When answering Question 1, the Commission should consider the correct application of the loading mentioned in clause 4.3.3(a) and, on deciding that issue, decide whether the answer to Question 1 is still applicable.
The Applicant submits that, for the Respondent to succeed, it would need to be shown that clause 4.3.3(a) cannot be interpreted on the basis of its plain meaning (i.e. the meaning that accords with the Applicant's position). Applying the principles in the Golden Cockerel decision (quoted at [22]), if an ambiguity does not exist, evidence of surrounding circumstances will not be admitted to contradict the plain language of the agreement.
Having regard to the words used in clause 4.3.3(a), the Applicant submits that clause 4.3.3(a) can only be read in the way advanced by the Respondent if:
(a)"all" means "not all"; or
(b)"Ordinary Hours" excludes hours between 1600 hours and 1800 hours on shifts that finish at or before 1800 hours, but includes hours between 1600 hours and 1800 hours on shifts that finish after 1800 hours.
The Applicant submits that "all" cannot be ambiguous to the extent that it means its antithesis "not all." "All" is simply not susceptible to more than one meaning in the way required for the Respondent to succeed. Consequently, and based on Principle 4 in the Golden Cockerel case, evidence of surrounding circumstances need not be considered as it cannot be admitted to contradict the plain language.
As to "Ordinary Hours," the Applicant submits that the Respondent would have to show that the expression is capable of meaning different things depending on the starting and finishing times in the shift containing the "Ordinary Hours." However, "Ordinary Hours" is defined in clause 4.2 (see [10]).
The Applicant also submits that if the Respondent wishes to challenge the otherwise plain meaning of the agreement, it would need to draw the Commission's attention to evidence of surrounding circumstances which show an ambiguity. The Applicant infers that, for that purpose, the Respondent relies on the following circumstances to reveal what it claims is an ambiguity:
(a)the use of the term "evening shift" in the Frequently Asked Questions ("FAQ") document in relation to MOCA 3 sent out by the Respondent (Exhibit 1, DG8) and its repetition on transcript in relation to the certification of MOCA 3 which reveals an intention that the loading would not be paid on shifts other than an evening or night shift;
(b)the contention that the definitions of "Ordinary Hours" in clause 4.2(a) and clause 4.2(b) are co-dependent on each other, and the use of the term "Ordinary Hours" in clause 4.3.3(a) needs to consider the meaning of that term in both clause 4.2(a) and clause 4.2(b);
(c)Mr Brady's statement that it was never in the contemplation of the parties that a loading would be paid on any ordinary hours for shifts finishing at or before 1800 hours.
The Applicant submits that the correct application of the loading mentioned in clause 4.3.3(a) is clear and unambiguous, and there is no evidence to which the Commission could have regard that would demonstrate a "hidden ambiguity." If that is so, the Applicant submits, the Respondent is asking the Commission to effectively rewrite clause 4.3.3(a) to the following effect:
"A Senior Medical Officer working Ordinary Hours in an extended span of hours arrangement between 0700 hours and 2200 hours will be paid according to one of the following:
(a)A loading of 25% of the ordinary rate for all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday, but only where the shift finishes after 1800." (Emphasis added)
In the Applicant's submission, although the Respondent might want the clause to be read in that way, such an application of the loading would not be an interpretation of the existing words, but would effectively rewrite the agreement contrary to Principle 10 in the Golden Cockerel case:
"The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties."
Consideration: The submissions of the parties take different approaches to the question of what in clause 4.3 or 4.3.3(a) is or might be ambiguous. While the Respondent addressed the possible meaning of the expression "extended span of hours arrangement" in abstract terms, the Applicant focused on the potential operation of that expression in clause 4.3.3(a), which is the substantive issue in this case.
It is appropriate to deal first with the meaning of the expression "extended span of hours arrangement."
The Applicant sought to separate, or at least distinguish between, the two components of the definition of "Ordinary Hours" in clause 4.2 of MOCA 3. Paragraph (a) of the definition refers to SMOs not working on an extended hours roster, and specifies that their 80 hours per fortnight are to be worked between 0700 hours and 1800 hours Monday to Friday. By comparison, paragraph (b) of the definition refers to SMOs working on an extended hours roster and does not specify the span of hours within which the 80 hours per fortnight are to be worked. Rather, it states that the 80 hours per fortnight are to be worked as part of the rostered ordinary hours at times and on days as dictated by the employee's extended hours roster in accordance with clause 4.3 or 4.3.4. As noted earlier, clause 4.3.4 deals with work by SMOs between 2200 hours and 0700 hours, and is not relevant to the substantive issue in these proceedings. It is clear that the Ordinary Hours referred to in paragraph (b) of the definition comprise the period 0700 hours to 2200 hours Monday to Sunday (and, in "exceptional circumstances", could also include worked between 2200 hours and 0700 hours).
Although the two components of the definition of "Ordinary Hours" deal with separate circumstances, and the content of paragraph (b) is determined by reference to a roster prepared in accordance with clause 4.3 or clause 4.3.4, it is appropriate to ascertain part of the meaning of paragraph (b) by reference to the definition in paragraph (a). The hours of work for SMOs to whom paragraph (a) applied were limited to a specified span of hours. It is reasonable to infer that, whatever hours were included in an "extended hours" roster for SMOs covered by paragraph (b) of the definition, those hours went beyond the span of hours referred to in paragraph (a), i.e. after 1800 hours.
Having considered the expression "extended span of hours arrangement" in its context in MOCA 3, I have concluded that:
(a)the expression "extended span of hours arrangement" in clause 4.3 and 4.3.3(a) of MOCA 3 refers to an arrangement concerning the hours of work to be undertaken by a particular SMO on a particular day (or days) from Monday to Sunday;
(b)each arrangement would be entered into under MOCA 3 and, although the terms of the arrangement are not prescribed by MOCA 3, the hours during which each arrangement could operate were limited by MOCA 3;
(a)the span of hours for each arrangement would extend beyond the Ordinary Hours applicable to SMOs who were not working on an extended hours roster (i.e., the period 0700 hours and 1800 hours Monday to Friday) and would include some part of the period between 0700 hours and 2200 hours Monday to Sunday.
In summary, the expression "extended span of hours arrangement" in clause 4.3 means an arrangement in accordance with which an SMO works a shift that includes Ordinary Hours that are worked outside the normal span of Ordinary Hours (i.e. outside the period between 0700 hours and 1800 hours Monday to Friday).
That conclusion provides the basis for resolving the substantive issue in this case, namely whether an SMO who was on an extended span of hours arrangement that included work between 1600 hours and 1800 hours on a particular week day was entitled to be paid the 25 per cent loading.
However, in light of the submissions of the parties, I consider that there is not just a disagreement between them but that the disagreement arises from the meaning and application (at least to clause 4.3.3(a)) of the undefined expression "extended span of hours arrangement" used in clause 4.3.3.
Accordingly, I am satisfied that clause 4.3.3(a) is ambiguous or susceptible to more than one meaning.In light of the principles set out above it is both permissible and appropriate to ascertain the meaning of clause 4.3.3(a) having regard to the context and purpose of the clause, to use extrinsic evidence in aid of its interpretation, and to consider evidence of prior negotiations to establish the objective background facts which were known to both parties and the subject matter of the agreement.
The meaning of "extended span of hours arrangement" in clause 4.3.3 of MOCA 3 in light of relevant clauses in MOCA 2: a comparative approach
The Statement of Agreed Facts recites that clause 4.3.3 "combined and replaced" the payment arrangements for extended hours contained in the previous agreement, MOCA 2, which relevantly provided as follows:
"6.3 Extended Hours of Work - Senior Medical Officers
6.3.1 Extended Hours of Work
Extended hours of work arrangements may be implemented for senior medical officers between the hours of 7.00am to 10.00pm, Monday to Sunday.
In recognition of the fact that senior medical officers have traditionally worked ordinary hours between 8.00am and 6.00pm Monday to Friday, senior medical officers who enter into extended hours arrangements will be entitled to the payment of a flexibility allowance of 10% for any ordinary time worked between Monday and Friday where the major portion of the day is worked between the hours of 4.00pm and 7.00am. (Emphasis added)
….
6.3.8 Payment for Working Extended Hours
(a) Arrangements implemented following certification of this agreement
(i)A senior medical officer will receive 15% loading for ordinary time worked between Monday and Friday where the major portion of their rostered hours on that day is worked between the hours 4.00pm and 10.00pm. The 15% loading is in addition to the flexibility allowance provided for in clause 6.3.1 and neither of these are payable in addition to overtime;
(ii)(A) Where a senior medical officer ceases their ordinary hours of duty after 6.00pm, that employee must be paid an allowance of 15% per hour for all time worked after 6.00pm;
(B) Clause 6.3.8 (a)(ii)(A) does not apply to an employee entitled to the payment under clause 6.3.8(a)(i), or to weekend penalty rates;
(C) In calculating the allowance prescribed in this clause payment must be made to the nearest quarter of an hour.
(iii)Where the majority of ordinary work is performed on Saturday all related continuous ordinary hours of work will be paid at time and a half;
(iv)Where the majority of ordinary work is performed on Sunday all related continuous ordinary hours of work will be paid at double time;
(v)All ordinary work performed on Good Friday, the 25th day of April (Anzac Day), Christmas Day, New Years Day, the 26th day of January (Australia Day), Easter Monday, the Birthday of the Sovereign and Boxing Day will be paid at time and a half;
(vi)All ordinary work performed on Labour Day, Show Day and Easter Saturday will be paid at double time and a half;
(vii)No entitlement exists for the payment of a Flexibility Allowance as provided in clause 5.8.6 of the District Health Services - Senior Medical Officers' and Resident Medical Officers' Award - State 2003;
(viii)At least half an hour meal break to be taken during the afternoon or evening where the major portion of ordinary hours are worked between the hours of 4.00pm and 10.00pm (or 4.00pm to 8.00am in relation to clauses 6.3.6 or 6.3.8 (b)), which can be taken as a crib break and counted as work time in those cases where the employee remains on duty on site during the meal break period or attends official meetings during such period."
The references in those clauses to "ordinary hours of work" must be read by reference to clause 6.2, the relevant parts of which provided:
"6.2 40 hour week - Senior Medical Officers
6.2.1. The ordinary hours of work for senior medical officers are 40 hours a week within the span of 7am to 6pm, Monday to Friday. The ordinary hours of work may be performed on one of the following bases, most suitable to the particular work location, after consultation with, and giving reasonable consideration to the wishes of the employee concerned:
(a)By officers working 8 continuous ordinary hours (excluding the meal break) each day; or
(b)By officers working less than 8 continuous ordinary hours (excluding the meal break) each day on one or more days each work cycle; or
(c)By officers working more than 8 continuous ordinary hours (excluding the meal break) and rostering employees off on various days of the week during a particular work cycle, so that each employee has additional days off during the cycle.
6.2.2.Subject to the provisions of the hours of duty clause, officers may agree that the ordinary hours of work are to exceed 8 ordinary hours on any one day up to a maximum of 10 hours (as prescribed in the hours of duty clause), or up to 12 ordinary hours on weekends or public holidays, thus enabling standard ordinary hours of duty to be completed in fewer days within the work cycle."
It is clear from those clauses that are relevant to the present case that SMOs who entered into "extended hours arrangements" between 0700 hours and 2200 hours Monday to Sunday (as compared with the ordinary hours of work between 0700 hours and 1800 hours Monday to Friday) were entitled to receive:
(a)a 15 per cent loading where the major portion of the rostered hours of ordinary time worked on a day between Monday and Friday was worked between 1600 hours and 2200 hours;
(b)an allowance of 15 per cent per hour for all time worked after 1800 hours where the SMO ceased their ordinary hours of duty after 1800 hours but the major portion of their rostered hours on that day was not worked between 1600 hours and 2200 hours;
(c)a flexibility allowance of 10 per cent for any ordinary time worked where the major portion of the ordinary time worked on a day between Monday and Friday was worked between 1600 hours and 0700 hours. (Emphasis added)
The 15 per cent loading payable under (a) would be in addition to the flexibility allowance payable under (c).
On that basis, an SMO who entered into extended hours arrangements between 0700 hours and 2200 hours and who worked eight continuous ordinary hours on a day between Monday and Friday would be entitled to receive:
(d)a 15 per cent loading where the major portion of the rostered eight hours was worked between 1600 hours and 2200 hours; and
(e)a flexibility allowance of 10 per cent for any ordinary time worked where the major portion of the eight hours was worked between 1600 hours and 0700 hours; or
(f)an allowance of 15 per cent per hour for all time worked after 1800 hours where the SMO ceased their ordinary hours of duty after 1800 hours but the major portion of their rostered eight hours on that day was not worked between 1600 hours and 2200 hours.
Respondent's submissions: In making this part of its submission, the Respondent quotes Principle 7 listed in the Golden Cockerel decision:
"The resolution of a disputed construction of an agreement will turn on the language of the agreement understood having regard to its context and purpose."
The Respondent also quotes from the reasons for decision of Kirby J in Amcor Limited v Construction Forestry Mining and Energy Union[41]where his Honour (who was in the majority) wrote:
"The nature of a document, the manner of its expression, the context in which it operated and the industrial purpose it served combined 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, or interpreting industrial instruments and especially certified agreements."
[41] Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241, [96].
Kirby J agreed with the following passage in the reasons of Madgwick J in Kucks v CSR Limited (portions of which are referred to at [21](b)):
"Legal principles
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."[42]
[42] Kucks v CSR Limited (1996) 66 IR 182, 184
In the Respondent's submission, the Commission has the advantage of a clearly prescribed industrial context and purpose behind the use of the phrase "extended span of hours arrangement" in the drafting of clause 4.3.3. This is, it submits, a textbook example of circumstances where this context and purpose must inform the Commission's interpretation of the clause.
Specifically, as expressly set out in clause 4.3.3 of MOCA 3, the purpose of the loading in clause 4.3.3(a) was to replace:
(a)the 10 per cent flexibility allowance for any ordinary time worked between Monday and Friday where the major portion of the day is worked between 1600 hours and 0700 hours (clause 6.3.1 of MOCA 2); and
(b)a 15 per cent loading for ordinary time worked between Monday and Friday where the major portion of their rostered hours on that day is worked between 1600 hours and 2200 hours (clause 6.3.8(a)(i) and (a)(ii)(A) of MOCA 2).
The "replaced" allowances/loadings in MOCA 2:
(a)totalled 25 per cent, which is the same as the replacement figure in MOCA 3;
(b)applied only to the hours and work on the particular shift which met the criteria for payment;
(c)did not apply to the entire roster worked by an "extending" SMO such that if one shift met the conditions for the payment of the loading/allowance, then the loading/allowance also applied to all shifts on that roster; and
(d)only ever applied to shifts that finished after 1800.
The Respondent submits that the statement in clause 4.3.3 that the loading in MOCA 3 "replaced" two nominated allowances and a nominated loading in MOCA 2 is a clear indication that those replaced payments were continued in substance into MOCA 3 in compensation for the same matters for which the replaced provisions in MOCA 2 were agreed. There is no other explanation for such a "replacement" declaration, which is reinforced by the inferred logic that the purpose of clause 4.3.3 was to simplify processes and payment arrangements for the shifts and assist the Respondent's payroll system by rolling up two allowances paid to employees for evening and night shifts as provided for in MOCA 2.
In the Respondent's submission, it would be a radical and illogical departure from the "replacement" declaration to incidentally, and without any explanation or comment to that effect, expand the types of shifts to which the loading would apply such that it could apply to shifts to which those allowances did not apply under MOCA 2 (e.g. those that finished in unextended Ordinary Hours such as shifts that finished at or before 1800). The Respondent points to the uncontested evidence of Mr Brady that none of the union parties to MOCA 3 ever suggested to him that the loading should apply to shifts finishing at or before 1800.
Nor (the Respondent submits) has the Applicant attempted to put any evidence to the Commission that the Applicant ever suggested, requested or put in a claim that the application of the loading should change from one that applied to individual shifts that finished in extended hours, to one that applied to entire rosters including shifts that finished in ordinary hours. Such evidence would have contradicted the express "replacement" declaration and would have provided for a "wholesale expansion of the fundamental basis" upon which the two MOCA 2 allowances were agreed and would permit the payment to be made on Ordinary time shift in which there was no extension at all. Such a change would not be a "replacement" but a repeal and significant recasting of the basis for the entitlement. The payment under MOCA 2 was on account of an extension arrangement which was described in such a way as being confined to working "extended" ordinary hours beyond the "traditional" finish time of 1800 hours (see MOCA 2 clause 6.3.1). The Respondent submits that to agree to consolidate the two payments into one "identical 'replacement' payment" was to agree that, unless expressly provided, the original "extension" concept for the payment on a shift-by-shift basis was also intended to be retained.
In support of its submission, the Respondent notes that Dr Spain:
(a)expressed his understanding of the purpose behind clause 4.3.3(a) of MOCA 3 as being to "simplify payment arrangements" for what he termed "evening shifts;" and
(b)stated that a shift between 0730 hours and 1800 hours would not be an "evening shift."
The Respondent submits that:
(a)the only evidence of the purpose of clause 4.3.3(a) shows that the only rationale for inserting the 25 per cent extended span of hours loading was to simplify payment arrangements for the shifts to which the predecessors of that clause applied (shifts that finished after 1800 hours); and
(b)there is no evidence before the Commission that the purpose of clause 4.3.3(a) was to expand the types or numbers of shifts to which the loading applied so as to include non-extended shifts.
Furthermore, Mr Brady explained that the payment of the loading was brought forward from 1800 hours to 1600 hours to overcome a potentially significant reduction in the amount of the loading. The focus on the 1600 hours commencement of the loading (for late shifts only) led to the removal of any reference to 1800 hours from the clause. According to his evidence, the after 1800 hours qualifier was not necessary in that clause because there was never any contemplation, or discussion, of a penalty payment for an ordinary hours shift.
The Respondent submits that it is not surprising that Mr Brady had not encountered such a concept. The payment of a type of overtime penalty expressly introduced to deal with ordinary hours being worked outside the ordinary span of hours is not novel, and was done in MOCA 2. However, the payment of the same penalty to SMOs when they were working ordinary hours within the ordinary span of hours is extraordinary, and so unlikely as to be well outside Mr Brady's extensive experience.
The Respondent submits that, consistent with a history of clause 4.3.3(a) of MOCA 3 from MOCA 2, a fundamental element of the "extended span of hours arrangement" is that an SMO is only paid the loading in clause 4.3.3 for shifts worked outside ordinary hours as provided for by the arrangement. In other words, an SMO:
(a)is only entitled to the loading for working a shift which contains ordinary hours which are worked outside the normal span of Ordinary Hours that would apply to a "non-extending" SMO;
(b)is not entitled to the loading for shifts which do not contain ordinary hours which are worked outside the normal span of Ordinary Hours that would apply to a "non-extending" SMO.
That meaning is consistent with the history of the provision based in MOCA 2 and in the supplementary affidavit evidence of Mr Brady.
Applicant's submissions: The Applicant takes issue with the Respondent's submission that:
(a)the changes made from MOCA 2 to MOCA 3 were not a "repeal and significant recasting of the basis for the entitlement itself" but were merely a simplification of the processes and payroll arrangements by rolling up two allowances; and
(b)it would be a radical and illogical departure from the "replacement" declaration to incidentally, and without any explanation or comment to that effect, expand the types of shifts to which the loading would apply such that it could apply to shifts to which those allowances did not apply under MOCA 2.
Rather, the Applicant submits, that is exactly what happened. Under MOCA 2, compensation for working an extended hours arrangement was based on allowances being paid for the whole of the shift where the majority of hours (i.e. the "major portion") within that shift fell after 1600. It did not provide for compensation for every shift that finished after 1800 or only "evening" shifts. Indeed, many shifts that finished after 1800 would not have attracted any allowance. For example, it would be possible to work a 10 hour shift that finished at 2030 and attracted no loading.
MOCA 3 introduced a different arrangement for compensation for extended hours and there were many shifts that would not attract the allowance under MOCA 2 which attracted the allowance under MOCA 3.
The Applicant submits that under MOCA 3:
(a)the quantum of the allowance remained constant; but
(b)the trigger for the application of the allowance and the hours to which it was applied were changed significantly.
Consideration: Clause 4.3.3(a) of MOCA 3 was developed by reference to provisions in clause 6.3 of MOCA 2. That context is expressly and precisely described at the end of clause 4.3.3 as follows:
"The 25% loading referenced in 4.3.3(a) replaces the following:
-15% loading for working extended hours provided for in clause 6.3.8(a)(i) and 6.3.8(ii)(A)[43] of MOCA 2
-10% flexibility allowance provided for in clause 6.3.1 of MOCA 2." (Emphasis added)
[43] Sic - this should read "6.3.8(a)(ii)(A)."
The use of the word "replaces" does not resolve the substantive issue in this case. There is no reason to think that "replaces" bears anything other than its usual English meaning. "Replace" is defined in standard dictionaries to mean:
(a) "1. to fill or take the place of, substitute for (a person or thing): electricity has replaced gas as a means of illumination.2. To provide a substitute or equivalent in the place of: to replace a broken vase;"[44]
(b) "take place of, succeed, be substituted for."[45]
[44] Macquarie Dictionary, Fifth edition, 2009, 1403.
[45] The Australian Concise Oxford Dictionary, 1991, 937.
It is clear from:
(a)a comparison between the relevant clauses in MOCA 2 (clause 6.3.1, 6.3.8(a)(i) and 6.3.8(a)(ii)(A)) and the replacement statement at the end of clause 4.3.3 of MOCA 3; and
(b)the evidence before the Commission in these proceedings,
that the 25 per cent loading referred to in clause 4.3.3(a) is not identical to, and hence does not replicate, what was provided for in the relevant clauses of MOCA 2. Rather, that loading "replaces" the previous loading and allowances in the sense that it takes the place of, and was included in substitution for, the previous 15 per cent loading/allowance and 10 per cent flexibility allowance. Nonetheless it is relevant to observe that payments were made under the replaced MOCA 2 provisions only when strict "major portion" conditions were met and, in practice, only when SMOs worked until after 1800 hours.
In the agreed statement of facts and issues, the parties state that clause 4.3.3 "combined and replaced the payment arrangements for extended hours contained in" MOCA 2. The phrase "combined and replaced" indicates in broad terms the overall (and presumably intended) effect of clause 4.3.3. However, for the reasons just stated, that clause did not merely combine and replicate the previous arrangements.
[100]Consequently, the replacement clause contains a reference to one of the surrounding circumstances in which clause 4.3 of MOCA 3 was developed but, because it does not replicate the full effect of the identified provisions of MOCA 2, does not itself determine the meaning to be given to clause 4.3.3(a) of MOCA 3.
The negotiations that preceded clause 4.3.3 of MOCA 3
[101]Evidence: The authorities cited earlier provide that (within some constraints) evidence of prior negotiations is admissible for the purpose of ascertaining the meaning of MOCA 3. Each witness gave evidence about aspects of the negotiations and information sessions that preceded MOCA 3 being certified and commencing to operate from 1 November 2012.
[102]Mr Goldman's evidence: In July 2012, Mr Goldman took over responsibility from another advocate as the lead negotiator for the Applicant in the negotiations for an agreement to replace MOCA 2. He gave evidence that, at that stage, the clauses regarding extended hours had not been finalised. On 16 July 2012, Mr Brady sent an email to Mr Goldman and attached a draft proposal for extended hours. That document included the following:
"Payment for Working Extended Hours
(i) Where a senior medical officer ceases their ordinary hours of duty after 6.00pm, that employee must be paid a shift allowance of 25% per hour for all time worked after 6.00pm;
The 25% shift allowance replaces the following:-
- 15% loading for working extended hours provided for in clause 6.3.8(a)(i) of MOCA 2
- 10% flexibility allowance provided for in clause 6.3.1 of MOCA 2." (Exhibit 1, DG1)
[103]Mr Goldman gave evidence that he distributed that proposal to the Applicant's delegates involved in the negotiations. They rejected the proposal as it reduced current entitlements (Exhibit 1 paragraph 5).
[104]On 23 July 2012, Mr Brady forwarded a revised version of the extended hours clause. It provided:
"Payment for Work in the Extended Span of Ordinary Hours of Work: 7.00am to 10.00pm, Monday to Sunday
A senior medical officer working ordinary hours in an extended span of hours will be paid according to one of the following:
(a) A 25% shift loading for all time worked after 6.00pm where an officer ceases ordinary hours of work after 6.00pm, in which case the loading must be paid to the nearest quarter of an hour; OR
(b) A 50% shift loading for ordinary hours worked on Saturday where the major portion of such is worked between midnight Friday and midnight Saturday; OR
(c) A 100% shift loading for ordinary hours worked on Sunday where the major portion of such is worked between midnight Saturday and midnight on Sunday.
NB The 25% shift loading replaces the following:
-15% loading for working extended hours provided for in clause 6.3.8 (a)(i) and 6.3.8 (ii)(A) of MOCA 2.
-10% flexibility allowance provided for in clause 6.3.1 of MOCA 2." (Exhibit 1, DG2)
[105]Mr Goldman gave evidence that the revised version was also rejected by delegates. Excerpts from emails provided as an exhibit to his affidavit show that, as at 24 July 2012, one delegate wrote that "the 25% loading just for hours worked on the shift is pathetic/paltry compensation for such a major deterioration in working conditions, esp compared to the compensation rate that ED SMOs get (i.e. an extra 25% option A, -PLUS- a loading on after hours as I understand it." Another wrote that he agreed entirely with that statement, and others in the delegate's email. Dr Mark Coghlan wrote that he agreed with everything that delegate said and wrote (among other things) that it was "bizarre to offer only 25% loading for hours worked after 1800 - it is only 37.5% of what was previously available on the same shift." (Exhibit 1 paragraph 7, and DG3, emphasis in original)
[106]On 9 August 2012, Mr Brady sent to Mr Goldman an email to which he attached Mr Brady's "effort to draft an agreement to reflect the outcome" (presumably of the negotiations to that date). The draft for consultation version of the proposed certified agreement had extensive tracked changed. For the purposes of the present proceedings, the relevant clause provided:
"4.3.3 Payment for Work in the Extended Span of Ordinary Hours: 0700 hours to 2200 hours
A Senior Medical Officer working Ordinary Hours in an extended span of hours arrangement between 0700 hours and 2200 hours will be paid according to one of the following:
(a) A loading of 25% of the ordinary rate for all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday;
(b) A loading of 50% of the ordinary rate for all Ordinary Hours in a shift worked on a Saturday; or
(c) A loading of 100% of the ordinary rate for all Ordinary Hours in a shift worked on a Sunday.
The 25% loading replaces the following:
-15% loading for working extended hours provided for in clause 6.3.8 (a)(i) and 6.3.8 (ii)(A) of MOCA 2.
-10% flexibility allowance provided for in clause 6.3.1 of MOCA 2." (Exhibit 1, DG4, emphasis added)
[107]That wording is almost identical to the extended hours clause in the final agreement. Mr Goldman noted that clause 4.3.3 of MOCA 3 contains no qualifier or requirement for doctors on extended hours arrangements to work past 1800 hours on particular shifts before the loading was payable on ordinary hours worked between 1600 hours and 2200 hours on that shift. (Exhibit 1 paragraph 9)
[108]Mr Goldman gave evidence that:
(a) he did not recall Mr Brady, or any other negotiator from the Respondent, advising that the Respondent's position on the final wording of the clause meant anything other than what was apparent on the face of the wording;
(b) he did not believe anyone from the Respondent informed the Applicant that they believed a qualifier or requirement for doctors on extended hours arrangements to work past 1800 hours on particular shifts had been retained as part of the final clause;
(c) given that the Applicant's delegates had vigorously opposed such a qualifier, he was certain that if the Respondent's representatives had raised that they believed such a qualifier still applied, he would have noticed and objected. (Exhibit 1 paragraphs 10, 11)
[109]The Respondent sent a "Summary of the Proposed Agreement" to its employees. The document was in the form of a table. The introductory words noted that the table "summarises some of the main features of the proposed" MOCA 3, and continued: "Please note this is not an exhaustive list and reference should be made to the full copy of the proposed agreement." (Exhibit 1, DG6)
[110]That document stated in relation to clause 4.3 Extended Span of Ordinary Hours of Work:
"Where there is a service need, arrangements for the working of extended hours by SMOs:
·0700 - 2200 Monday to Sunday.
·Paid one of the following loadings:
o 25% of the ordinary rate for all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday;
o 50% of the ordinary rate for all Ordinary Hours in a shift worked on a Saturday; or
o 100% of the ordinary rate for all Ordinary Hours in a shift worked on a Sunday.
It is voluntary for current SMOs but new appointees may be directed to participate in an extended hours roster.
·In exceptional circumstances work may be rostered 2200 - 0700." (Exhibit 1 DG6, Emphasis added)
[111]Mr Goldman gave evidence that the wording of that document reflects the wording in MOCA 3 and contains no mention of a qualifier or requirement for doctors on extended hours arrangements to work past 1800 hours on particular shifts before the loading was payable. (Exhibit 1 paragraph 13)
[112]He provided a copy of the PowerPoint Presentation and notes pages that the Respondent used to explain the agreement. PowerPoint slide 16 contains the following text under the heading "Employment conditions:"
"25% shift allowance for work performed after 4pm for extended hours."
The notes to that slide, and Slide 17, include a statement that a shift allowance or loading of 25% will replace the 10% flexibility allowance and the 15% evening shift allowance (Exhibit 1, DG7).
[113]Mr Goldman gave evidence that that material does not contain any mention of a qualifier or requirement for doctors on extended hours arrangements to work past 1800 hours on particular shifts before the loading was payable. (Exhibit 1 paragraph 15)
[114]The FAQ document sent out by the Respondent includes among the summary list of "key features" of MOCA 3:
"A 25% shift loading for evening and night shifts as part of an extended hours roster which will assist to reduce overtime costs." (Exhibit 1, DG8; Exhibit 4, B)
[115]People were directed to various places where the proposed MOCA was displayed or could be accessed and they were advised that they could find out more information about MOCA 3 at various locations and forums including information sessions being held within the Hospital and Health Service.
[48] See United Firefighters' Union of Australia, Union of Employees Queensland v Department of Community safety - Queensland Fire and Rescue Service (D/2013/84) - Decision < [71] (Thompson C).
[148]According to the Respondent (relying on affidavit evidence from Mr Brady) the Applicant never expressed any disagreement with the content of the FAQ document.
[149]The Respondent submits that any interpretation by the Applicant that an evening shift includes one that finishes at or before 1800 hours is absurd and should not be accepted by the Commission. The Respondent refers to the evidence of Dr Spain that such a shift is an "ordinary hours shift" that is expressly not an evening shift. Clearly a shift that finishes at or before 1800 hours is not a night shift.
[150]In support of that submission, the Respondent refers to the statement of Madgwick J in Kucks v CSRLimited (quoted earlier) that:
"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."[49]
[49] Kucks v CSRLimited (1996) 66 IR 182, 184.
[151]The Respondent also submits that the decision in the James Hardie[50] case was confined to the circumstances in which an extrinsic FAQ document was said to have "tainted" the agreement with ambiguity. That document was prepared by one party to inform employees who work in "humble circumstances." The Respondent submits that none of those considerations apply here. SMOs and their union were not in analogous "humble circumstances" and were perfectly capable of challenging the document at the time.
[50] The Australian Workers' Union of Employees, Queensland AND James Hardie Australia Pty Ltd (2001) 167 QGIG 280.
[152]PowerPoint presentation: The Respondent also refers to the presentations that were delivered to SMOs to explain the terms and conditions of the proposed agreement that became MOCA 3. Slide 16 of the PowerPoint presentation included the following reference to the extended span of hours loading:
"25% shift allowance for work performed after 4pm for extended hours." (Exhibit 1, DG7)
[153]The Respondent submits that it could not have been thought other than that extended hours were required to be worked to qualify for such payment. That was a familiar concept, as it had applied in MOCA 2 for some years.
[154]Statement of certification: The Respondent submits that, at the hearing for the certification of MOCA 3, Mr Goldman either specifically supported the application of the loading put forward by Mr Brady or remained silent in response to Mr Brady's clear submissions about the application of the 25 per cent extended hours shift loading. The Respondent submits that Mr Goldman would not be alarmed by this statement, as it was the current MOCA 2 position.
[155]Applicant's submissions: The Applicant refutes the Respondent's suggestion that it was the parties' intention that the loading was only ever intended to apply to shifts that finished after 1800 hours. In particular, the Applicant submits that, although there is evidence that that might have been Mr Brady's "fervent intention," there is no evidence that the intention was mutual or shared.
[156]In support of its submission, the Applicant relies on the principles set out by the High Court of Australia in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales[51] relating to "shared mutual intention" as considered in the judgement of RD Nicholson J in BP Australia Pty Limited v NyranPty Limited.[52] His Honour noted that if the language of a contract is "ambiguous or susceptible to more than one meaning" evidence of "surrounding circumstances" is admissible to assist in the interpretation of the contract.[53] He continued:
[51] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
[52] BP Australia Pty Limited v NyranPty Limited [2003] FCA 520.
[53] BP Australia Pty Limited v NyranPty Limited [2003] FCA 520, [33].
"The concept of ‘surrounding circumstances’ is to be understood to be a reference to ‘the objective framework of facts’. It will include evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract. It will also include facts so notorious that knowledge of them is to be presumed. Additionally it will include evidence of a matter in common contemplation and constituting a common assumption. From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible." (Emphasis added)[54]
[54] BP Australia Pty Limited v NyranPty Limited [2003] FCA 520, [34].
[157]The Applicant reiterates that there is no such evidence of mutuality in this case.
[158]As to the Respondent's suggestion that none of the union parties to MOCA 3 ever suggested to Mr Brady that the loading should apply to shifts finishing at or before 1800 hours, the Applicant points to Mr Brady's evidence that he understood the union's position with respect to the loading to be that everyone who works extended hours would receive a blanket 25 per cent allowance across the board, whether they work extended hours or not just to commit to work extended hours. The Applicant also points to the evidence of Dr Spain and the evidence of Mr Goldman. Consequently, the Applicant submits there was no "common assumption" among the SMOs affected that the loading would only apply to shifts finishing after 1800 hours. (Final submissions paragraphs 19-22) Rather, the only basis for the Respondent's belief in mutual intention was the absence of contradictory statements.
[159]In relation to mutual subjective intent, the Applicant refers to the following passage from the decision of a Full Bench of the Fair Work Commission in RACV Road Service Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union:[55]
[55] RACV Road Service Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union [2014] FWCFB 1629, [33], [34].
"… We agree with the Appellant that the Commissioner erred in relying on evidence of past conduct of the Appellant in construing the meaning of cl.13.6(b) of the Agreement. The evidence relied upon fell well short of establishing a common understanding of the meaning of the provision or the common intention of the parties to the Agreement. In this context the Commissioner’s reliance on the obligations of the Appellant to explain the terms of the Agreement during the approval process is also misplaced. The Commissioner said:
“Where as in the present case, no specific explanation was given by the RACV to employees as to the term or the effect of the term of clause 13.6(b) of the current Agreement then objectively the intent and meaning of clause 13.6(b) given by both the RACV and employees and the AMWU must be the same as it had prior to the current Agreement.”
It will be rare that a common understanding or objectively ascertained common intention will be shown by the absence of words. This might show a common inadvertence, however that is not the same thing. Even less so, when combined with the clear and unambiguous language of cl.13.6(b). The question whether the Appellant adequately explained the terms of the agreement to employees during the approval process does not result in a common understanding or common intention in relation to the application of cl.13.6(b) of the Agreement. Moreover, the fact that the Respondent made limited use, or no use at all, of the provision in the past, is not a basis for reading down the operation of cl.13.6(b)."
[160]The Applicant submits that if evidence of mutual subjective intention is admissible, evidence negating such a claim should be equally admissible for that purpose and only that purpose. It further submits that even if there were evidence of such intention, that would only assist in revealing and resolving an ambiguity. It would not allow the plain meaning of the agreement to be supplanted. Indeed, the Applicant submits, if there were overwhelming evidence that the parties intended something other than what is written (which is not conceded), the parties would be bound by the agreement if the meaning of what was written is clear.[56]
[161]However in this case, the Applicant submits, the Respondent cannot point to any evidence of a common intention that can be identified in line with Principle 9 of the Golden Cockerel decision:
"A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement."
[56] See Core Toughened Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FWC 7131.
[162] FAQ document: The Applicant submits that the contra proforentum rule should be applied to the FAQ document prepared by the Respondent for the reason that, at best, the document was ambiguous. Although it states that the loading applies to evening and night shifts, it does not say that the loading does not apply elsewhere. The FAQ document did not provide the clarity that the Respondent suggests and, in particular, did not "carve" out the loading as applying only to "evening" and "night" shifts. Given that the FAQ document is ambiguous and does not preclude the interpretation that the Applicant presses, the resolution of the ambiguity in that document should be in the Applicant's favour, allowing the loading to apply to certain hours in other shifts.
PowerPoint presentation: The Applicant submits that the contra proforentum rule should be applied to the PowerPoint presentation prepared by the Respondent for the reason that the PowerPoint presentation does not provide the sort of clarity claimed by the Respondent. Indeed the Respondent seeks to "cherry pick" phrases from it and ignores the greater detail found in that presentation and the "Summary of the Proposed Agreement."
Practical approach
[164]Respondent's submissions: The Respondent also urges the Commission to take a practical approach when answering Question 1. In support of that submission it refers to the statement by Madgwick J in Kucks v CSR Limited,[57] quoted with approval by the High Court[58] and the Industrial Court of Queensland,[59] that the search is for the meaning intended by the framers of the document, bearing in mind that they were likely to be of a practical bent of mind, and 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.
[57] Kucks v CSR Limited (1996) 66 IR 182, 184.
[58] Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241, [96] (Kirby J).
[59] Park Avenue Motor Hotel etc v Beck and Beck v Park Avenue Motor Hotel etc [2008] QIC 66 (Hall P).
[165]In particular, the Respondent submits that, even if the Commission were to find that the meaning of "extended span of hours arrangement" means "extended span of hours roster," the Commission should find in the Respondent's favour that the 25 per cent loading referred to in clause 4.3.3(a) should only apply to shifts that finish after 1800 hours. Although those words were not included in the clause, the Commission is obliged to effectively read them in by interpreting the clause having regard to its context and purpose and the evidence (including evidence of the predecessor clause which it was replacing) that the loading should only apply to shifts that finish after 1800 hours.
[166]The Respondent submits that the Commission should not be hindered by infelicities of expression, but should find the meaning that was intended by the parties. Considering the context of MOCA 2, the purpose of the clause and the extrinsic material, and evidence in these proceedings, the intended meaning of the clause is clear. The loading was only ever intended to apply to shifts that finish after 1800 hours. It was not intended to apply in any circumstances to ordinary hours shifts.
[167]Applicant's submissions: The Applicant characterises the Respondent's submission as inviting the Commission to effectively rewrite clause 4.3.3(a) to insert the qualifier that the loading should only apply to shifts that finish after 1800 hours. The rationale for this is not that clause 4.3.3(a) is susceptible to being read that way, but rather that the fact that it says something quite different is a "mere inconsistency or infelicity of expression."
[168]The Applicant submits that the Respondent's submission takes the decision in Kucks v CSR Limited[60]too far, and is asking the Commission to make an error of law and breach Principle 10 from the Golden Cockerel decision, namely:
[60] Kucks v CSR Limited (1996) 66 IR 182, 184.
"The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties."
[169]By asking the Commission to "read in" that the loading should only apply to shifts that finish after 1800, the Respondent is asking the Commission to rewrite clause 4.3.3(a) rather than interpret that clause.
Consideration and conclusions
[170] Background to MOCA 3: The evidence summarised earlier shows that the extended working hours issue was still being considered late in the negotiations. The emails show that there were also other issues about which the doctors' negotiator (and delegates) had some concerns. But the negotiations were almost concluded. The doctors' representatives were considering the overall effect of the proposed MOCA 3, and the provision for the payment of the 25 per cent loading was only one of the issues in the overall scheme of the proposed agreement.
[171]To the extent that the evidence of the negotiations indicates the understanding or subjective intention or expectation of a negotiator (as much of it does) that evidence cannot be used to ascertain the meaning of an ambiguous expression or clause in MOCA 3. However, that evidence is useful in charting some of the course of the negotiations and establishing that the parties' minds were engaged in fashioning what became clause 4.3.3(a).
[172]The final steps of the negotiations and any correspondence in relation to them are not in evidence. At the hearing before Deputy President Bloomfield on 1 November 2012, the representatives of the parties stated that the relevant processes had been followed and agreement had been reached. They applied for the agreement to be certified. MOCA 3 was certified and took effect from 1 November 2012.
[173]I proceed on the basis that, by the time of certification, there was no dispute as to the wording of clause 4.3.3 of MOCA 3. At some stage after MOCA 3 commenced to operate, questions were raised as to the meaning and implementation of clause 4.3.3(a). That is the dispute before the Commission.
[174]Evidence of the preceding negotiations establishes the following surrounding circumstances and background facts:
(a)the negotiations took place in light of, and by reference to, the provisions and operation of MOCA 2;
(b)MOCA 2 provided that the ordinary hours of work for an SMO were within the span of 0700 hours to 1800 hours Monday to Friday (clause 6.2.1), and that extended hours of work arrangements may be implemented for SMOs between 0700 hours and 2200 hours Monday to Sunday (clause 6.3.1), and those spans of hours were replicated in MOCA 3;
(c)under clauses 6.3.1, 6.3.8(a)(i) and 6.3.8(a)(ii)(A) of MOCA 2, an SMO who entered into extended hours arrangements between 0700 hours and 2200 hours Monday to Sunday was entitled to receive:
a.a 15 per cent loading where the major portion of the rostered hours of ordinary time worked on a daily between Monday and Friday was worked between 1600 hours and 2200 hours;
b.an allowance of 15 per cent per hour for all time worked after 1800 hours where the SMO ceased their ordinary hours of duty after 1800 hours but the major portion of their rostered hours on that day was not worked between 1600 hours and 2200 hours;
c.a flexibility allowance of 10 per cent for any ordinary time worked where the major portion of the ordinary time worked on a daily between Monday and Friday was worked between 1600 hours and 0700 hours;
d.the 15 per cent loading payable under a. in addition to the flexibility allowance payable under c;
(d)the negotiating parties agreed that the new certified agreement should provide for a 25 per cent loading to combine and replace the payment arrangements for extended hours contained in clauses 6.3.1 and 6.3.8 of MOCA 2;
(e)in the second half of July 2012 and into August 2012, the negotiating parties were finalising their negotiations about how and when the 25 per cent loading should be paid and how the entitlement to the loading should be expressed in the new certified agreement;
(f)revised drafts of what became clause 4.3.3 of MOCA 3 were prepared by the Respondent's negotiator, Mr Brady, and provided to the doctors' negotiator in an attempt to close the gap between the parties;
(g)draft clause 4.3.3 provided by Mr Brady to Mr Goldman on 9 August 2012 was part of a draft agreement that Mr Brady stated was his "effort to draft an agreement to reflect the outcome;"
(h)that draft clause 4.3.3 differed from previous drafts by providing for a 25 per cent loading to be paid for "all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday" rather than for all time worked after 1800 hours;
(i)draft clause 4.3.3 applied to an SMO working Ordinary Hours in an extended span of hours arrangement between 0700 hours and 2200 hours;
(j)draft clause 4.3.3 was in almost identical terms form to what became clause 4.3.3 of MOCA 3;
(k)although the wording used in clause 4.3.3(a) contains no reference to evening or night shifts, the exposure material prepared and provided by the Respondent for the information of people voting on what became MOCA 3 referred to:
a."A 25% shift loading for evening and night shifts as part of an extended hours roster which will assist to reduce overtime costs" (the FAQ document);
b."25% shift allowance for work performed after 4pm for extended hours" (the PowerPoint); and
c."the working of extended hours by SMOs" (Summary of the Proposed Agreement). (Emphasis added)
Those statements were consistent with the reference in the opening words of clause 4.3.3 that the clause applied to an SMO working Ordinary Hours in an extended span of hours arrangement.
[175]Text of MOCA 3: Although the background to MOCA 3 is relevant, the questions in this case can be answered primarily by reference to the language of MOCA 3, and its context, including the clauses of MOCA 2 that clause 4.3.3(a) of MOCA 3 replaced.
[176]The main factor in support of the Applicant's submissions concerning the meaning of clause 4.3.3(a) is the wording of that clause when read in isolation from the words that precede it. As noted earlier, it provides that the 25 per cent loading is to be paid "for all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday." On their own, those words support the payment of the loading for any hours worked on any weekday after 1600 hours, including between 1600 hours and 1800 hours. That reading is reinforced by the use of "all" before "Ordinary Hours".
[177]However, those words in clause 4.3.3(a) must be read in the context of clause 4.2, clause 4.3, and the replacement declaration in 4.3.3, as well as the history of negotiations outlined earlier in these reasons.
[178]As noted earlier, the definition of Ordinary Hours in clause 4.2 of MOCA 3 (read with clause 4.3 or 4.4) was:
(a)for SMOs not working on an extended hours roster, between 0700 hours and 1800 hours Monday to Friday; and
(b)for SMOs working on an extended hours roster, between 0700 hours and 2200 hours Monday to Sunday (subject to any work between 2200 hours and 0700 hours in "exceptional circumstances"). (Emphasis added)
[179]Clause 4.3.3(a) provides, in full, that an SMO working Ordinary Hours in an extended span of hours arrangement between 0700 hours and 2200 hours will be paid a loading of 25 per cent for all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday. In other words, clause 4.3.3(a) applies only to an SMO working in an extended span of hours arrangement.
[180]It is clear that the purpose of this scheme was to pay the loading to SMOs who were working extended shifts outside ordinary hours of 0700 hours and 1800 hours Monday to Friday.
[181]Earlier I concluded that the "extended span of hours arrangement" referred to in clause 4.3 and clause 4.3.3 means an arrangement in accordance with which an SMO works a shift that includes Ordinary Hours that are worked outside the normal span of Ordinary Hours (i.e. outside the period between 0700 hours and 1800 hours Monday to Friday. That conclusion lends support to clause 4.3.3(a) being read so that the 25 per cent loading was payable for work undertaken after 1600 hours only when the shift extended beyond 1800 hours (and potentially to 2200 hours).
[182]As noted earlier, although clause 4.3.3(a) "replaces" specified clauses in MOCA 2 it did not replace those earlier in clauses with identical provisions. Rather, clause 4.3.3(a) was included in MOCA 3 in place of those previous provisions and combined (in an arithmetic sense) the 10 per cent flexibility allowance and the 15 per cent loading/allowance in one 25 per cent loading. Under MOCA 2, payments were made when (depending on the allowance or loading) the "major portion" of the day or the rostered hours was worked between 1600 hours and 0700 hours, 1600 hours and 2200 hours, or after 1800 hours. That requirement could not have been met by anyone working until 1800 hours, and would not have been paid for a period 1600 hours to 1800 hours. Although MOCA 3 did not replicate the "major portion" requirement, it combined into one loading the amounts payable previously when the "major portion" requirement operated.
[183]Explanatory materials: The reference in the FAQ document to "A 25% shift loading for evening and night shifts as part of an extended hours roster which will assist to reduce overtime costs" articulates the Respondent's understanding of the effect of the proposed clause 4.3.3. It supports, but does not determine, the outcome in this case. The word "evening" is not used or defined in MOCA 3, and the limited evidence in this case about its meaning was imprecise. The most that can be said about the use of "evening" is that it is consistent with an interpretation of clause 4.3.3(a) that favours payments for work done by an SMO after 1800 hours. In any case, its sense is evident from the reference to an extended hours roster.
[184]In a similar vein, I note that the reference in the PowerPoint slide to a "25% shift allowance for work performed after 4pm for extended hours" was consistent with an interpretation of clause 4.3.3(a) that favours payment for work done by an SMO after 1800 hours.
[185]For completeness, I conclude that:
(a)the statement in the FAQ document referring to evening and night shifts "as part of an extended hours roster" was not ambiguous in the way contended by the Applicant but was a clear statement about when the loading would be paid, and hence was not a statement to which the contra proferentem rule applied (in the way found in the James Hardie case); and
(b)for the same reason, the contra proferentem rule does not apply to a slide or slides in the PowerPoint presentation prepared by the Respondent.
[186]Conclusion: In summary, the result of the foregoing conclusions is that clause 4.3.3(a) of MOCA 3 is to be read as providing that an SMO working Ordinary Hours in an extended span of hours arrangement between 0700 hours and 2200 hours would be paid a loading of 25 per cent for all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday only when the particular shift was completed after 1800 hours.
[187]In my opinion, that conclusion comprises an interpretation of clause 4.3.3(a) based on the clear words of an agreement produced by the parties, which interpretation is supported by surrounding circumstances. It does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. Consequently, that conclusion is consistent with (rather than contrary to) Principle 10 in the Golden Cockerel case.
Question 2
[188]It remains to decide what is the correct application of the loading mentioned in clause 4.3.3(a) of MOCA 3 in relation to shifts DG1, MG1, LC1 and ALE performed by Dr Spain in accordance with the roster attached at Appendix 1.[61]
[61] Given that the answer to Question 2 depends on the answer to Question 1, I proceed on the basis that Question 2 should commence "Having determined the meaning of the term 'extended span of hours arrangement,'…"
[189]Applicant's submissions: The Applicant submits that the loading mentioned in clause 4.3.3(a) is payable on all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday, including all hours between 1600 hours and 2200 hours worked on shifts DG1, MG1, LC1 and ALE on the roster attached at Appendix 1. That submission was made on an interpretation of clause 4.3.3(a) that I have rejected.
[190]Respondent's submissions: In the Respondent submission, the loading payable under clause 4.3.3(a) for the shifts listed in Appendix 1 that were worked on Monday to Friday are:
(a)DG1 - nil
(b)MG1 - nil
(c)LC1 - 7 hours at 25% (less unpaid meal break taken)
(d)ALE - 5.5 hours at 25%.
The Respondent notes that extended span of ordinary hours shifts worked on a Saturday or Sunday do not attract the loading prescribed clause 4.3.3(a).
[191]Consideration and conclusion: Given the conclusion that clause 4.3.3(a) of MOCA 3 is to be read as providing that the loading of 25 per cent would be paid for all Ordinary Hours worked between 1600 hours and 2200 hours on any weekday only when the particular shift was completed after 1800 hours, it follows that:
(a)no loading payment would be made in relation to shifts DG1 (0730 - 1800) and MG1 (0730 - 1800) as they were completed at 1800 hours;
(b)a loading would be paid in respect of so much of shift LC1 (1230 - 2300) as was worked after 1600 hours, i.e. 7 hours (less unpaid meal break taken); and
(c)a loading would be paid in respect of all of shift ALE (1730 - 2300) as the shift commenced after 1600 hours, i.e. 5.5 hours (noting that the loading for that part of the shift between 2200 and 2300 was payable under clause 4.3.4).
Answers to Questions 1 and 2
[192]Questions 1 and 2 can now be answered in light of the reasons given above.
[193]Question 1: In relation to clause 4.3 Extended Span of Ordinary Hours of Work within the Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012 ("MOCA3"), what is meant by the term "extended span of hours arrangement"?
[194]Answer to Question 1: The term "extended span of hours arrangement" in relation to clause 4.3 of the Medical Officers' (Queensland Health) Certified Agreement (No 3) 2012 means an arrangement in accordance with which a senior medical officer works a shift that includes Ordinary Hours (as defined in clause 4.2) that are worked outside the normal span of Ordinary Hours (i.e. outside the period between 0700 hours and 1800 hours Monday to Friday) and includes some part of the period between 0700 hours and 2200 hours Monday to Sunday (or between 2200 and 0700 in exceptional circumstances).
[195]Question 2: In determining the meaning behind the term "extended span of hours arrangement," what is the correct application of the loading mentioned in clause 4.3.3(a) of MOCA 3, in relation to shifts DG1, MG1, LC1 and ALE performed by Dr Spain in accordance with the roster attached at Appendix 1?
[196]Answer to Question 2: The correct application of the loading mentioned in clause 4.3.3(a) of MOCA 3 in relation to each of the specified shifts is:
DG1 (0730 - 1800): Nil
MG1 (0730 - 1800): Nil
LC1 (1230 - 2300): 7 hours at 25% of the ordinary rate (less unpaid meal break taken)
ALE (1730 - 2300): 5.5 hours at 25% of the ordinary rate.
[197]Order accordingly.
0
21
0