Keith Fung and another v Community Relations Commission for a Multicultural NSW and anor [2004] NSWIRComm 371

Industrial Relations Commission of New South Wales in Court Session

CITATION : Keith Fung and another v Community Relations Commission for a Multicultural NSW and anor [2004] NSWIRComm 371 APPLICANTS: Keith Fung Philip Coen

PARTIES : RESPONDENTS: Public Employment Office Community Relations Commission for a Multicultural New South Wales

INTERVENOR: Public Service Association FILE NUMBER: IRC 7260 of 2003 CORAM: Staunton J CATCHWORDS : Application for binding declaration and consequential relief - award interpretation - history of the Award considered in conjunction with an analysis of the plain and ordinary meaning of the words used - interpretation of the disputed phrase 'or part thereof' - binding declaration made in the terms as sought by the applicants - order for consequential relief made in favour of the applicants - no order as to costs. LEGISLATION CITED : Industrial Relations Act 1996 Australian Workers' Union v Pasminco Australia Ltd and ors [2003] NSWIRComm 365 Bryce v Apperley (1998) 82 IR 448 CASES CITED : Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Electrolux Home Products v AWU (2004) 78 ALJR 1231 Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 HEARING DATES: 11/01/2004 DATE OF JUDGMENT: 12/10/2004

FIRST APPLICANT: Ms D Hawkins of counsel

SECOND APPLICANT AND INTERVENOR: Ms P Lawson of counsel SOLICITORS: Jones Staff & Co

LEGAL REPRESENTATIVES: RESPONDENTS: Mr P Newall of counsel SOLICITORS: Crown Solicitors Office

JUDGMENT: - 25 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 10/12/2004

Matter No IRC 7260 of 2003

Keith Fung and another v Community Relations Commission for a Multicultural NSW and anor

Application by Keith Fung and another for relief under section 154 of the Industrial Relations Act 1996 JUDGMENT [2004] NSWIRComm 371

1 The applicants seek declaratory relief pursuant to section 154 of the Industrial Relations Act 1996 (the 'Act') in relation to the proper construction of Clause 8.3 in the Crown Employees (Interpreters & Translators, Ethnic Affairs Commission) (Transitional) 2003 Award (the 2003 Award). In addition, the applicants seek consequential relief in the form of back pay, together with interest. That declaratory relief is sought in the following terms:

1. On its proper interpretation, Clause 8.3 of the Crown Employees (Interpreters and Translators, Ethnic Affairs Commission) (Transitional) Award provides the following entitlement to employees: (a) A minimum payment of three hours at the "Hourly Rate" for casual interpreters, as defined in Part B, Table 1, Monetary rates of the Award;

(b) For every hour or part of an hour worked following the initial three hour period, the employee is entitled to an extra payment of the "Hourly Rate" for casual interpreters as defined in Part B, Table 1, Monetary rates of the Award;

(c) During work performed between the hours of 7.30am and 6.00pm Monday to Friday an officer shall be entitled to take an unpaid luncheon period of a minimum of one half hour;

(d) Work performed outside the hours of 7.30am and 6.00pm Monday to Friday shall be paid at overtime rates and receive a meal allowance in accordance with the Crown Employees (Public Service Condition of Employment) Award 2002. 2. Consequential relief in the form of back pay for a period extending six years prior to the lodgement of this application; namely, from 18 December 1997 until the determination of this application.

2 The declaratory relief sought in the terms expressed in para (1)(a), (c) and (d) are not in contention between the parties. Accordingly, at issue are those orders sought in sub-sections (1)(b) and (2).

3 The Public Service Association (PSA) is an intervenor in these proceedings. The PSA was not a party to the initial application for relief filed on 18 December 2003 but as the relevant employee respondent to the Award and at the direction of the Court, the PSA was served with a copy of the application earlier this year. The PSA subsequently appeared and formally sought leave to intervene in these proceedings and to appear on behalf of Mr Coen. That application, which was not opposed by the respondents, was granted.

4 An amended application was filed on 15 June identifying the Public Employment Office (PEO), as the First Respondent together with the Community Relations Commission for a Multicultural NSW (CRC) as the Second Respondent.

5 The 2003 Award is to be found at New South Wales Industrial Gazette (NSWIG) Vol 343 at 620. It provides for the employment of both permanent and casual Interpreters and Translators by the PEO. Although the PEO is named as the relevant employer in Clause 3 of the Award, the services of the employees under the Award are utilised by the CRC, the Second Respondent.

6 The history of the subject matter of the application predates the 2003 Award and is said to have arisen with the introduction of the Crown Employees (Interpreters and Translators, Ethnic Affairs Commission) (Transitional) Award: NSWIG Vol 301 at 1005 in 1997 (the 1997 Award). Since then, the Award has been renewed pursuant to the provisions of s19 of the Industrial Relations Act (the Act) in 2001 (the 2001 Award) and again in 2003 (the 2003 Award). The contentious provision has been replicated in each of those instruments.

7 Although declaratory relief is sought by reference to the 2003 Award, the consequential relief sought is for the six year period from 18 December 1997 to 18 December 2003, the date of lodging of this application.

8 Both of the applicants in these proceedings are 'casual Interpreters' in the employ of the PEO. It is not in dispute that the terms and conditions of their employment are governed by the relevant Award. Nor is it disputed that they have the standing to bring the current proceedings.

9 No oral evidence was required in the course of the hearing of this matter. Subject to relevant amendments the following affidavit material was relied upon: 1. First Applicant: (i) Affidavit of Mr Keith Fung sworn 30 June last; (ii) A table of pay calculations detailing the extent of alleged back pay sought. 2. Second Applicant : (i) Affidavit of Mr Philip Coen sworn 29 June last; (ii) A bundle of documents containing, inter alia, a copy of the relevant 2001 and 1997 Awards as well as various Ethnic Affairs Commission circulars pertaining to the engagement of Interpreters and Translators dating back to 1983.

3. Intervenor: (i) A file of documents identified as Background Materials tabbed 1 to 15 were tendered without objection by the PSA on behalf of the applicants. 4. First and Second Respondents: (i) Affidavit of Mr Simon Sykes sworn 12 August last. Mr Sykes is the Executive Officer, Employee Performance and Conduct Unit, Department of Education and Training. Mr Sykes was employed with the Ethnic Affairs Commission (now the CRC) between 1996 and 1998 as Human Resources Manager. (ii) Affidavit of Ms Ann Groth sworn 13 August last. Ms Groth is the Director of Language Services at the CRC. (iii) A bundle of documents containing various Ethnic Affairs Commission Annual Reports and a copy of the 2003 Award.

10 At issue between the parties is the construction of Clause 8.3 of the current Award which goes to the minimum hours of work and remuneration for casual Interpreters. Specifically, Clause 8.3 provides as follows:

8.3 Minimum Hours of Work

A casual Interpreter directed to work any interpreting assignment shall be paid a minimum of three ordinary hours work for such assignment between the hours of 7.30 a.m. and 6.00 p.m. Monday to Friday. An assignment exceeding three hours but less than eight hours between 7.30 a.m. and 6.00 p.m. Monday to Friday shall be paid the additional hourly rate of pay for every hour or part thereof for those extra hours . During work performed between the hours of 7.30 a.m. and 6.00 p.m. Monday to Friday an officer shall be entitled to take an unpaid luncheon period of a minimum of one half hour. (emphasis added)

Work performed outside the hours of 7.30 a.m. and 6.00 p.m. Monday to Friday shall be paid at overtime rates and receive meal allowance provisions in accordance with the Crown Employees (Public Service Condition of Employment 1997) Award.

11 The contentious part of this clause is that portion emphasised in the above extract.

12 It is accepted between the parties that Clause 8.3 is a direct replication of Clause 8.3 in the 2001 Award and Clause 7.3 of the 1997 Award. To that extent, the issue between the parties resulting in this application initially arose with the introduction of the 1997 Award.

Relevant considerations

13 The central issue for determination is the relevant interpretation of Clause 8.3 and in particular the words 'or part thereof'. Shortly put, it was submitted on behalf of the applicants, contrary to the contentions on behalf of the respondents, the phrase 'or part thereof' does not involve a pro rata approach relevant to the hourly rate. Conversely the respondents have submitted that the clause does not provide for paying the full hourly rate for only part of an hour worked. That simple summation is best demonstrated by an example of the competing interpretations as follows:

Assume Mr X is a casual interpreter employed under the relevant Award, and the following hours accrue between 7.30am and 6.00pm Monday to Friday.

If Mr X works on an assignment for a period of four hours and fifteen minutes, the following is what Mr X would be paid applying each parties interpretation: Applicants' Interpretation: For every hour or part of an hour worked by Mr X he would be paid a full hour's pay. Therefore, he would be entitled to five lots of his hourly rate.

Respondents' Interpretation: Mr X would be entitled to four lots of his hourly rate, as well as a pro rata of his hourly rate equivalent to the additional fifteen minutes he worked. Therefore Mr X would receive four and a quarter times his hourly rate.

14 It was not disputed that the respondents have applied their interpretation of the disputed provisions in Clause 8.3 since the inception of the 1997 Award. The background to that and any implications arising will be dealt with in more detail later in this judgment.

Relevant principles of award interpretation

15 There is a longstanding and settled approach to the task of considering the true construction of the provisions of an award. The principles governing the approach to be taken have been extensively dealt with by the Full Bench of this Commission. I refer initially to the governing rule expressed in Bryce v Apperley (1998) 82 IR 448 at 452 where the Commission stated: In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops (1961) AR (NSW) 312 at 314: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light.

16 These principles were reaffirmed by the Full Bench in Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 where, at para [43] the Commission held: The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used.

17 The Full Bench at para [44] then went on to consider the ability of the Commission to consider the history of the relevant instrument in conjunction with an analysis of the plain and ordinary meaning of the words used:

The construction of an award may include the history of the instrument in some circumstances. The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all. We note, in this respect, the observations of Walton J, Vice-President in Fox v GIO Australia Ltd (2002) 120 IR 401 at [46] as follows: The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408.

18 Approaching award interpretation from that premise, the primary factor the Commission must take into account is the plain and ordinary meaning of the words used in the award, the history of the award and its surrounding circumstances. In Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales, the Full Bench made reference to the decision of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 348 as follows: On the other hand, it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning - see, for example, the remarks of Knox C.J. in Life Insurance Co. of Australia Ltd. v. Phillips (1925) 36 CLR 60, at p 69. This has led to a recognition that evidence of surrounding circumstances is admissible in aid of the construction of a contract. So Lord Wilberforce in L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. (1974) AC 235, at p 261 was able to state the broad thrust of the rule in this way: The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive.

19 Further, at 352 Mason J said: The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

20 In my opinion, first glance considerations of the disputed phrase does suggest language that is ambiguous in the sense that it is not immediately clear as to its meaning and application within the context of the disputed paragraph. Accordingly it is appropriate that the Commission have regard to the relevant history of the Award and its surrounding circumstances when attempting to interpret the plain and ordinary meaning of the words in dispute.

History of the Award and the relevant provision

21 The 1997 Award relevant to these proceedings was made by consent between the parties on 14 April 1997 before this Commission. Since then, the Award has been remade on two separate occasions, the 2001 Award and currently the 2003 Award. As earlier stated, the relevant provision has remained identical throughout all three versions of the Award: see Clause 7.3 of the 1997 Award and Clause 8.3 of the 2001 and 2003 awards.

22 Prior to the 1997 Award, casual Interpreters were referred to as Panel Interpreters whose remuneration was governed by determination and promulgated by circular.

23 The earliest circular to which my attention was drawn is the Ethnic Affairs Commission Circular No. 45, dated 8 April 1983. In relation to interpreters, that Circular reads: 2. Fees and Allowances

(i) Every Interpreter not hereunder specified to be paid a minimum fee of $48 per day.

(ii) Where attendance at an assignment exceeds three (3) hours $80.

24 Notably absent in this provision are the words 'or part thereof'. In none of the documents placed before me that predate the 1997 Award do the words 'or part thereof' appear with reference to the same type of work circumstances as they are in Clause 7.3 of the 1997 Award and Clause 8.3 of the 2001 and 2003 Awards relevant to Interpreters. Prior to the 1997 Award, it would seem assignments over three hours on any one day were remunerated at a full day flat rate regardless of how many additional hours had been worked on that day.

25 It is worth noting, in relation to Translators, Circular No. 45 of 1983 provides:

Translators of documents from foreign languages into English and from the English language into foreign languages - $8.60 per 100 words or part thereof, with a minimum fee of $14.55.

26 As can be seen the phrase 'or part thereof' was present in this Circular, as expressed above, but applicable only to Translators. It should also be noted that the above provisions relating to Translators continue to apply and are present in the current Award at Part B Monetary Rates in the Rates of Pay table relevant to Translators. No issue has been made in the hearing before me as to how that phrase has been applied relevant to Translators.

27 Directly relevant to the disputed phrase is a letter from the Premiers Department to the Chairman of the Ethnic Affairs Commission entitled: 'Fees and Allowances Payable to Panel (Contract) Interpreters and Translators, Ethnic Affairs Commission of New South Wales'. As best as can be ascertained that letter was issued between October 1983 and February 1984. In that letter, which sets out the matters indicated by its title, Clause (C) reads, in part:

Fees and Allowances - Interpreters - 'Call Out'

(i) If an Interpreter carries out an assignment which commences at or after 9.00pm and ceases at or before 6.00am, then providing that the assignment arose specifically as a result of a police request for the Interpreter's services, the following rates shall be paid: (a) for assignments, two hours or less in duration - $52.00 per day; and (b) for assignments in excess of two hours duration - a loading of 12½% is to be applied, on the daily rate calculated as follows:- $52.00 x No. of hours worked x 1.125 3

All times less than an hour to be treated as an hour (emphasis added)

28 The above Clause deals with what would be classified as remuneration for assignments outside normal working hours whereas Clause 8.3 relates specifically to assignments within what can only be described as the standard working hours for casual interpreters.

29 The above letter is the only document akin to an industrial instrument that includes the sentence 'All times less than an hour to be treated as an hour'. A general reading of Circulars applicable to casual Interpreters that post-dated the abovementioned letter and issued prior to the 1997 Award discloses that that sentence was replaced by the use of the phrase 'or part thereof' in reference to a period worked in excess of two hours on assignments after 9.00pm and before 6.00am.

30 The first discernable use of the phrase 'or part thereof' in relation to Interpreters is in the Ethnic Affairs Commission Circular No. 59 dated 9 October 1985 which states as follows: If an Interpreter carries out an assignment which commences at or after 9.00 p.m. and ceases at or before 6.00 p.m., then providing that the assignment arose specifically as a result of a police request for the Interpreter's services, the following rates shall be paid:

(a) for assignments two hours or less in duration - $55.00 per day;

(b) for each additional hour or part thereof $27.50

31 That is not to say that the phrase 'or part thereof' can be presumed without question to have the same effect as the expression 'All times less than an hour to be treated as an hour' for the purposes of construing the disputed provision in Clause 8.3 of the Award. It is however relevant in terms of tracking the historical evolution of the provisions that now present themselves in the dispute before me.

32 The guidelines for remunerating Panel Interpreters in Departmental Circulars remained consistent until the introduction of the 1997 Award although rates of pay increased progressively. There was no direct appearance in those Circulars of what later became Clause 7.3 in the 1997 Award and is now Clause 8.3 in the 2003 Award.

33 The 1997 Award was made by the Commission in Matter No IRC 96/6359 and a number of documents from that matter were before me in the Background Materials tendered by the PSA. One of the documents was a copy of the draft Crown Employees (Interpreters & Translators, Ethnic Affairs Commission) (Transitional) Award as it was first submitted to the Commission in December 1996. Over the course of those proceedings discussions continued between the PEO and PSA and a revised copy of the original draft Award was eventually made by consent in April 1997. Clause 7.3 in the revised consent Award was identical to the Clause 8.3 that now comes before me for interpretation. However, the draft Award submitted to the Commission at the commencement of proceedings before the Commission expressed the relevant portion of this clause as: An assignment exceeding three hours but less than eight hours between 7.30 a.m. and 6.00 p.m. Monday to Friday shall be paid the additional hourly rate of pay for every hour and part thereof for those extra hours (emphasis added).

34 Without more, the initial use of the phrase 'and part thereof' which became 'or part thereof' in the ultimate consent Award cannot assist in interpreting Clause 8.3 of the Award for the purposes of these proceedings.

35 This Award has come before members of the Commission for the purposes of review under s19 of the Act on two occasions since 1997 - once in 1999 (the 2001 Award) and again in 2003. On neither of those occasions was any issue raised before the Commission as to any disputed interpretation concerning the application of Clause 8.3. Further, there is no evidence the Commission, on either of these occasions, directly turned its attention to a consideration of how Clause 8.3 was being applied in practice.

Consideration of issue in dispute

36 The conflicting interpretations placed before me in these proceedings relate to the phrase 'or part thereof' and whether this allows for those parts of an hour worked, after three hours, to be paid as if they were an hour, or whether it justifies the use of a pro rata calculation to determine the actual rate of remuneration.

37 It is common ground between the parties that the employer has been remunerating casual Interpreters under the Award in accordance with its interpretation since the inception of the 1997 Award. Equally, it would be fair to say that the applicants had, from the very beginning, queried the approach taken by the CRC to what was expressed by Mr Coen as 'the erroneous calculation of my pay'.

38 In any event, according to the affidavit evidence of Mr Coen, the process that has eventually led to this matter appearing before me was initiated by him when he dispatched a letter to the Director of Language Services for the CRC, Ms Groth, on 30 January 2003 in accordance with the provisions of Clause 11 Grievance/Dispute Resolution Procedures of the Award.

39 As well, the affidavit evidence of Mr Sykes is that the CRC (at that stage known as the Ethnic Affairs Commission) was approached by a representative of the PSA in late August or early September 1997, immediately after the Award was approved. At that time, the PSA representative conveyed to the CRC that there was concern regarding the interpretation of the then Clause 7.3 and that a proper interpretation would be that as now contended by the applicants in these proceedings. Despite that, the matter was never formally pursued in any proceedings before this Commission during which time the Award was subject to s19 Review on two occasions. In short, the respondents contend the PSA have long acquiesced in their interpretation and application of the relevant provisions in Clause 8.3 now said to be disputed.

40 The respondents contend that this acquiescence should be viewed by the Commission as indicating that the true and correct interpretation of Clause 8.3 is as the respondents suggest. It is submitted that the delay between the introduction of the 1997 Award and the filing of proceedings in this Commission evinces an acceptance by the applicants and the PSA as to that interpretation.

41 Irrespective of the fact that the initial application in these proceedings was not filed until 2003, I am not prepared to accept that the applicants, or the intervenor for that matter, should be viewed as having accepted the interpretation of the respondents. If anything, the evidence of Mr Fung and Mr Coen is that they have been unhappy since the 1997 Award was made as to the respondent's interpretation of the disputed provision. Clearly, there was a tardiness on the part of the PSA in formally pursuing this matter that finally prompted the applicants to proceed independently as they did in filing their application in December 2003. Any such delay cannot be seen as subjugating the rights of the applicants to seek a declaratory order, nor is that a point the respondents put. Nor can it be said that any failure of the PSA to commence proceedings at an earlier time is validation of the respondents' interpretation.

42 In Australian Workers' Union v Pasminco Australia Ltd and ors [2003] NSWIRComm 365 the Full Bench held that subsequent conduct is not relevant when interpreting a written document. Simply because the respondents have proceeded from a certain premise does not necessarily render that premise correct in perpetuity.

43 See Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales at para [47] where the Full Bench of the Commission stated: It is clear from the authorities that whilst it is permissible to have regard to the surrounding circumstances in construing a written document, it is impermissible to consider 'evidence of user'.

44 Turning now to a direct consideration of Clause 8.3. At first blush it is understandable the particular provisions in Clause 8.3 has fostered conflicting interpretations. That does not automatically, however, give rise to any ultimate ambiguity. On a proper consideration of the phrase, I am satisfied that the interpretation and application submitted by the applicants is correct.

45 Both the applicants and the respondents have submitted that, to give effect to the interpretation proposed in opposition to their own, the Commission would need to insert words into the Clause that are not there. Furthermore, both parties contend that to do so would be to act contrary to the settled principles of Award interpretation. In their submissions each contends that, on a reading of the Clause, their interpretation is valid without the need to insert any words. I would agree that to insert by implication words that were not actually present in the Award simply to arrive at the construction one asserts as correct is in danger of creating a construction at odds with the required first step of applying the plain and ordinary meaning to the phrase in dispute.

46 The applicants, in support of their proposed interpretation, have submitted that for the respondents interpretation to be correct, the words 'pro rata' would have to appear in order to make it clear that what was intended by the use of the words 'or part thereof' was a pro rata application of the hourly rate for every part of an hour worked beyond three hours.

47 Conversely, the respondents have put that for the applicants interpretation to have efficacy the clause would need to read as follows: ...An assignment exceeding three hours but less than eight hours between 7.30 am and 6.00 pm Monday to Friday shall be paid a sum equivalent to the additional hourly rate of pay for every hour or part thereof.

48 Obviously, neither the words 'pro rata' nor 'a sum equivalent to' appear at all within the provision.

49 That the respondents have taken a pro rata approach is evidenced in a CRC letter signed by Ms Groth to Mr Coen dated 14 February 2003 which states: ...The Commission holds the view that the award indeed allows for hourly payments but also allows for payment on a proportionate/pro rata basis, as reflected in word,"...or part thereof for those extra hours...".

50 The contention in this letter that the disputed phrase legitimises the use of a pro rata to apportion the hourly rate is not an approach with which I agree. 51 The respondents also submitted that as no other part of Clause 8.3 allowed for the rounding up of parts of an hour to an hour for the purposes of remuneration, such an approach is not available if the Commission were to interpret Clause 8.3 by reference to the surrounding provisions in the Award. For example, the respondents point to the provisions that appears as the second paragraph in Clause 8.3 after the disputed provision which provides: Work performed outside the hours of 7.30 a.m. and 6.00 p.m. Monday to Friday shall be paid at overtime rates and receive meal allowance provisions in accordance with the Crown Employees (Public Service Condition of Employment 1997) Award. 52 The respondents contend that there is no reference in that provision that would assist the applicants with the approach they assert in the preceding paragraph in relation to the phrase 'or part thereof'.

53 I do not accept the two sub-clauses with their respective provisions can be read together in the way the respondents suggest to support their interpretation of the disputed phrase. The second paragraph above-mentioned deals with the application of overtime rates, not the calculation of hourly rates of pay. It cannot assist in shedding any light on the proper interpretation of the disputed phrase in these proceedings.

54 The respondents submitted that Clause 8.3 could not operate to round up part of an hour worked in excess of three hours to be remunerated as a full hour without an express provision to that effect. To illustrate an Award of the Commission containing such a provision the respondents submitted a copy of the Crown Employees (Public Service Conditions of Employment) Award 2002: NSWIG Vol 343 at 1002. Clause 11A (i)(a) of that Award states:

(i) Hours of Work (a) A casual employee is engaged and paid on an hourly basis.

55 In addition, the respondents submitted that the Letter from the Premiers Department to the Chairman of the Ethnic Affairs Commission earlier referred to, where relevant to the payment of Panel Interpreters, it stated; 'All times less than an hour to be treated as an hour' is another example of an express provision to that effect. (emphasis added)

56 Clearly, the inclusion of such a provision as emphasised above would have nullified any ambiguity in the interpretation and application of Clause 8.3. However, the fact that such wording is not contained in Clause 8.3 or any other part of the Award does not prevent the disputed phrase in Clause 8.3 from having a plain and ordinary meaning to that effect.

57 It was submitted by the respondents that the meaning of the phrase 'or part thereof' in Clause 8.3 should be viewed in light of the fact that the express provision in the letter referred to in para [55] above was not reproduced in any subsequent Circular or in the 1997, 2001 or 2003 Awards.

58 In my view, the disputed phrase in the context of the sentence in which it appears in Clause 8.3 provides that casual Interpreters should be paid their hourly rate for part of an hour worked in excess of three hours. The contentious sentence, as it appears in Clause 8.3, states as follows: An assignment exceeding three hours but less than eight hours between 7.30 a.m. and 6.00 p.m. Monday to Friday shall be paid the additional hourly rate of pay for every hour or part thereof for those extra hours.

59 If the above sentence is relevantly deconstructed in a manner to give effect to its plain and ordinary meaning it would provide as follows:

An assignment exceeding three hours but less than eight hours between 7.30 a.m. and 6.00 p.m. Monday to Friday shall be paid the additional hourly rate of pay:

· for every hour; or · part thereof · for those extra hours 60 The disjunctive 'or' relates to the word 'hour'. That is, 'hour or part'. Next, the use of the word 'thereof' is critical it seems to me. It is defined in the Compact Oxford English Dictionary (New Edition) and the Macquarie Dictionary (2nd Edition) as meaning: of that or it; from or out of that as a source or origin. That meaning attaches by reference to the words 'hour or part'. In other words, applying that meaning, the disputed provision could just as readily be stated to read as follows: An assignment exceeding three hours but less than eight hours between 7.30 a.m. and 6.00 p.m. Monday to Friday shall be paid the additional hourly rate of pay for every hour or part of it for those extra hours. 61 The above interpretation is satisfied by a straight forward reading of the relevant provisions in Clause 8.3, whereas to imply the phrase 'pro rata' would, in my view, directly contradict the plain and ordinary meaning of those words. In my view, the words 'or part thereof' refer to the hour worked rather than to the hourly rate. Further, the phrase 'pro-rata' is a well known and widely used phrase in industrial instruments. It is a phrase generally used very deliberately and is not a phrase that I believe can be implied into the disputed phrase in the way the respondents contend.

62 Before I formally determine the declaratory relief sought by the applicants it is necessary to address the fact that the Award in these proceedings has been renewed via two reviews pursuant to s19 of the Act and consider whether that impinges upon the interpretation pressed by the applicants.

63 The respondents submitted the fact that the Commission has reviewed and remade the Award pursuant to s19 of the Act twice since 1997 indicates that Clause 8.3 was being properly applied by the respondents in a manner consistent with its true construction, as contended by them. Reference is made to Electrolux Home Products v AWU (2004) 78 ALJR 1231 in which it was held that the legislature is deemed to be cognisant of judicial interpretation when it makes and remakes statutes. This decision is relied upon by the respondents as suggesting that the Commission, when it remakes awards, is said to be aware of how that Award is being applied in practice.

64 The Commission, in fulfilment of its role under s19 must take account of the following matters in the review of awards as identified in s19(3) of the Act. (3) The Commission must take account of the following matters in the review of awards: (a) any decision of the Commission under Part 3 or any other test case decision of the Commission, (b) rates of remuneration and other minimum conditions of employment, (c) part-time work, casual work and job-sharing arrangements, (d) dispute resolution procedures, (e) issue of discrimination under the awards, including pay equity, (f) any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards, (g) any other matter relating to the objects of the Act that the Commission determines.

65 The overall purpose of the review process is to modernise awards and rescind obsolete awards (s19(2). In doing so, in addition to those matters identified in s19(3) above, the Commission is required to take account of productivity and efficiency in the relevant industry (s19(4)) and may make such changes as it considers necessary to an award as a result of a review (s19(6)). I would accept that it is arguable that any disagreement as to the interpretation and application of Clause 8.3 could be a matter that the Commission may have regard to in such a review process as being a matter as identified in s19(3)(f), going to 'the ease of understanding' of the particular disputed provision. The disputed provision was and is, however, not a matter that challenges the wording in Clause 8.3 but rather how that Clause was being applied in practice. Notwithstanding that, it was and has been open to the applicants and particularly the PSA as the intervenor to bring this matter to the attention of the Commission before now, either on the basis of seeking declaratory relief on behalf of the applicants or the dispute provisions of the Act combined with the provisions of s175, Powers of Interpretation.

66 The fact that that has not been done up to this point and despite the two reviews under s19 of the Act where this issue was not raised, does not, in my view, preclude this matter now being dealt with by the Commission. It could be said that the PSA, as the employee respondent to the Award, has not acted promptly to the concerns expressed by the applicants as to the respondents interpretation of the disputed provisions. But that fact cannot be relied upon, in my view, to disentitle the applicants to a proper consideration of their claim for relief.

67 For the above reasons, I am not satisfied that the remaking of the Award under s19 on two occasions can be seen as a ratification of the interpretation contended by the respondents.

68 Accordingly, I make the binding declaration sought in Part C para(1) of the amended application in the terms as sought by the applicants.

Consequential relief

69 In addition to the declaratory relief sought in para (1) of the application, the applicants also seek consequential relief in the form of back pay from 18 December 1997 to 18 December 2003, that being six years up to the filing of the initial application.

70 The application for consequential relief is brought within s154 of the Act simpliciter. There are no collateral proceedings under which another section of the Act is advanced as giving rise to a claim for consequential relief despite the fact that there are specific provisions of the Act that allow actions for the recovery of remuneration and other amounts payable under an industrial instrument.

71 The competency of this Commission to grant consequential relief pursuant to its declaratory power in s154 is clear. Section 154 of the Act provides: (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.

72 This section of the Act dictates that the power of the Commission in Court Session to grant declaratory relief is contingent upon the relief sought being in relation to a matter in which the Commission has jurisdiction. It follows that the Commission has the power to declare that consequential relief in the form of back pay be granted so long as the Commission has the power and jurisdiction to do so within a specific provision of the Act. Put simply, if the Commission in Court Session has jurisdiction regarding a matter, it can make the order for consequential relief in relation to that matter under s154.

73 For the purposes of the consequential relief sought by the applicants, it is necessary to determine whether that relief is a matter over which the Commission has jurisdiction. Relevantly, s365 of the Act states: An industrial court may, on application, order an employer to pay any amount payable under an industrial instrument that remains unpaid to the person to whom it is payable. 74 I am satisfied that s365 of the Act gives the Commission the authority to make the order sought by the applicants were an application to be made under that section. As such, it is a matter in which the Commission has jurisdiction and therefore can be the subject of declaratory relief.

75 I am satisfied that the consequential relief in the form of back pay in the terms as sought by the applicants should be granted. Clause 8.3 has been applied erroneously by the respondents since the introduction of the 1997 Award, and most certainly since 18 December 1997. Having interpreted the Clause incorrectly, the respondents have denied the applicants money to which they were entitled under the Award.

76 Section 369 of the Act provides: (3) An application for an order may only be made if the money became due within the period of 6 years immediately before the application was made.

77 That six year limitation period is retrospectively operative from the date that the initial application in these proceedings was filed on 18 December 2003. While the initial application filed on 18 December 2003 was not as precisely expressed as it is in the amended application filed on 15 June last, there is no doubt that the relief sought by the applicants in that initial application encompassed a claim for consequential relief in the form of back pay.

78 The applicants also seek interest on the amount that is to be paid as consequential relief. The authority for such an order is to be found in s372 of the Act which provides: (1) An industrial court may order that there is to be included, in an amount ordered to be paid under this Part (except under section 368), interest at the prescribed rate on the whole or any part of that amount for the whole or any part of the period from when the amount became due to the date of the order.

79 This section provides the Commission with the authority to include interest in an amount ordered to be paid under Pt 2 chapter 7of the Act. The ability to make a declaratory order granting the consequential relief sought in these proceedings is derived from the power of the Commission to grant such relief under s365. Section 365 is within Pt 2 chapter 7 and therefore orders made therein can include interest. I therefore make an order for interest at the prescribed rate to be included in the consequential relief granted.

80 Accordingly, I make an order for consequential relief in the form of back pay accruing from 18 December 1997 to 18 December 2003, together with interest, in favour of the applicants. The order for consequential relief in the form of back pay is made in favour of both applicants against the first respondent only. The PEO is the relevant employer as nominated in Clause 3 of the Award.

81 Both applicants tendered detailed calculations purporting to establish the extent of back pay owed. I do not believe it is necessary to address those figures. Having made an order for consequential relief in the form of back pay I direct the parties to enter into discussions with a view to determining the amount owed.

Costs

82 Costs in these proceedings are sought only by the first applicant against the respondents. The second applicant was represented by the PSA as intervenor. No order for costs was sought by the PSA on its behalf or on behalf of the second applicant, Mr Coen. The power of the Commission to make an order for costs is governed by s 181 of the Act which states:

1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

83 I am not satisfied on balance that this is a matter in which an order for costs is appropriate. It is a discretionary order and in my view, in the circumstances, a direction that each party pay their own costs is reflective of the nature of the proceedings. I so determine.

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