ae CATCHWORDS Industrial law - award - interpretation of certified agreement - whether "employees" includes casual employees - whether ambiguity - parol evidence rule - evidence of circumstances when agreement made - actual intention of party - evidence of subsequent conduct of parties. Conciliation and Arbitration Act 1904 5s. 110 Newspaper Printing Agreement 1979 Saturday Evening Mercury Agreement Federal Newspaper Printing Agreement 1953 Pickard v. John Heine & Son Ltd. (1924) 325 C.L.R. 1 Kirkness v. John Hudson & Co. Ltd. £13555] A.C. 6596 Codelfa Construction Pty. Ltd. v. State Rail Authority of New South Wales (1982) 149 C.L.R. 337 Seamen's Union of Australia v. Adelaide Steamship Co. Ltd. (1976) 46 F.L.R. 444 Merchant Service Guild of Australia v. Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 F.L.R. 248 PRINTING AND KINDRED INDUSTRIES UNION AND ANOR. v. DAVIES BROS. LIMITED _ N.S.W. No. I. 8 of 1986 2 LS GRAY J. oo 23RD DECEMBER 1986 ONES MELBOURNE , 1. % OF ' \Oe = or i >" > ' Or ' . ' IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N.S.W. No. I. 8 of 1986 INDUSTRIAL DIVISION BETWEEN: PRINTING AND KINDRED INDUSTRIES UNION First Applicant CHRISTOPHER HARVEY Second Applicant AND DAVIES BROS. LIMITED Respondent JUDGE: GRAY J. DATE: 23RD DECEMBER 1986 REASONS FOR JUDGMENT: The Newspaper Printing Agreement 1979 is an agreement made between the Printing and Kindred Industries Union and various proprietors of newspapers. On ist December 1981, a memorandum of the agreement was certified by the Australian Conciliation and Arbitration Commission, pursuant to s. 28 of the Conciliation and Arbitration Act 1904 ("the Act"). Clause 43 of the Newspaper Printing Agreement 1979 provides: "43 - SATURDAY EVENING MERCURY AGREEMENT The Saturday Evening Mercury Agreement as applying only to Davies Brothers Limited shall be as prescribed by schedule "BAA" which is hereby incorporated in this agreement." "4 a Schedule BAA, omitting formal parts, 15 as follows: "NEWSPAPER PRINTING AGREEMENT 1979 SCHEDULE "BAA" "SATURDAY EVENING MERCURY" AGREEMENT This industrial agreement made between Davies Brothers Limited, of Macquarie Street, Hobart, Tasmania, and the Printing Industry Employees' Union of Australia, of 321 Pitt Street, Sydney, New South Wales, applies to work to be performed on a Saturday in or in connection with the weekly newspaper to be known as the "Saturday Evening Mercury", which is proposed to be printed and published on and from Saturday, 3 July 1954. It as hereby agreed: 1. That employees employed on Saturday in or in connection with the printing and publishing of the said paper shall he: (a) Paid at the rate of double rate or double tame of the Newspaper Printing Agreement operative from about 1 January 1953, for such work, and (b) Guaranteed a minimum of four hours' work or pay in liéu of work. 2. The rate of double rate or double time referred to in paragraph 1 (a) of this agreement shall be reckoned, when applying to a: (a) day worker, at the day work rate, or (6b) night worker, at the night work rate. 3. That a roster shall be compiled by agreement between the employer and the Chapel. The roster shall, as far as practicable, ensure that all employees' share equally in the work to be performed in or in connection with the said newspaper. The roster shall be compiled not later than Thursday in each week. 4. That this agreement shall be operative on and from 3 July 1954, and shall continue in force until amended or abrogated by one month's notice in writing by one party to the other party." The first applicant, Printing and Kindred Industries Union ("the Union") is an organization of employees, registered pursuant to the Act. The second applicant is the Federal ~3 - Secretary of the Union. The respondent 15 a company, which 1s a party to the Newspaper Printing Agreement 1979, and the only party other than the Union bound by the Saturday Evening Mercury Agreement ("the 5.E.M. Agreement"). From 1954 until 1984, the respondent printed and published a weekly newspaper known as the Saturday Evening Mercury. That newspaper was produced and distributed on Saturday afternoons. Throughout the same period, the respondent also produced a daily newspaper, known as' the Mercury. The respondent employed casual employees who worked on the Saturday Evening Mercury, particularly in the occupations described as "publishers". By an application filed on 18th dune 1986, the applicants seek an interpretation of the S.E.M. Agreement, pursuant to s. 110 of the Act; they also seek a penalty for breach of the S.E.M. Agreement, and orders that the respondent pay to certain employees or former employees wages alleged to be due to them under the 5.E.M. Agreement, pursuant to s. 119 of the Act. The real controversy which divides the parties is the question whether the Provisions of the S.E.M. Agreement, especially cl. 1 thereof, bind the respondent in relation to casual employees employed by 1t in the publishing of the Saturday Evening Mercury. At the trial, Mr. Shaw Q0.C., who appeared for the applicants, suggested that this question be determined first, and that the parties be allowed time to discuss what orders, if any, are required in consequence of the interpretation. Mr. Jackson of counsel for the respondent indicated that he regarded this course as appropriate. - 4 - It was common ground that cl. 43 of the Newspaper Printing Agreement 1979 had the effect of requiring that the S.E.M. Agreement be read together with the Newspaper Printing Agreement 1979. The competing arguments both sought to_ draw support from other provisions of the Newspaper Printing Agreement 1979. It as therefore necessary to examine some of those provisions. Clause 1 of the Newspaper Printing Agreement 1979 sets out the industry in which the agreement is made; it consists of a list of callings of employees, which includes "publishers". By cl. 2, the Agreement relates to work done in a newspaper office. By cl. 3, the parties bound are the Union and the employers listed in schedule EF, which wiunclude the respondent. Clause 4 sets out rates of wages for employees in various classifications; the rates are set out on a weekly basis, but sub-cl. (c) contains a formula for calculation of an hourly rate for any work for which a weekly rate 1s prescribed. Substantial parts of cl. 23 are set out: "23 - TERMS OF EMPLOYMENT (a) No employee shall be employed other than as a weekly time-work employee or a weekly plece-work employee or a casual time-work employee or a casual piece-work employee. (b) A weekly time-work employee to become entitled to payment of a weekly wage shall perform such work as the employer shall from time to time require on the days and during the hours usually worked by such employee: but such work shall be of a similar class to the work usually performed by such employee. {c) A weekly piece-worker is a plece-worker engaged as a weekly employee. ... (d) The employment of a weekly time-work or plece-work employee may be terminated by a week's notice on either side, and such notice may be given at any time during any week to take effect a week after the day on which 1t 1s given. sae (2) 2a. . (f) If any employee's services be terminated during the course of a week he shall be paid all money due to him at the termination of his service, or all money due to such employee shall be forwarded to him by post within twenty-four hours thereafter." It is also necessary to set cut the whole of cl. 26: "26 - CASUAL EMPLOYEES (a) A casual employee 1s an employee engaged other than as a weekly employee. (b) Where a casual employee commences duty, or where the employer expressly agrees to employ a casual employee on any employment, and the casual employee in pursuance of such agreement actually attends for duty, such emplovee - (i) If ia time-worker engaged in the publishing department, shall be paid as for three hours of employment at the least. (zi) If a time-worker engaged as a machine compositor, shall be paid as for four hours at the least. (1i1l) If a time-worker engaged on any other work, shall be paid as for four hours at the least. (iv) If a piece-worker, shall be given four hours' work at the least or paid as for four hours at the appropriate rate for a time-worker, with the addition of 20% of that rate. {c) A casual employee, other than a casual publishing employee, whether working at piece-work or time-work and working on day shift, shall be paid for such work, the piece-work rate or the hourly rate prescribed for such work with the addition of 20% of that rate. (d) A casual employee, other than a casual publishing employee, whether working at piece-work or ~ 6 - time-work, and whether working mixed day and night shift, or night shift, or on work extending to not later than 6 a.m. Sunday, shall be paid for such work the piece-work rate or the hourly rate prescribed for night work, with the addition of 20% of that rate. (e) A casual publishing employee shall be paid the hourly publishing day rate prescribed by clause 4({c) as is appropriate for classification Al18(f) with the addition of 20% of that rate. The engagement and cut off of casual publishing employees shall be in accordance with the principles which were determined by the parties on 30 May 1972." Mr. Shaw's argument was that, when read in the context of the Newspaper Printing Agreement 1979, the word "employees" in el. 1 of the 3.E.M. Agreement clearly included casual employees. He drew attention to a number of provisions of the Newspaper Printing Agreement 1979 in which the parties had used expressions distinguishing clearly between casual and other employees. Examples are cl. 7, dealing with allowances for night work and intermediate shift, which refers to "a weekly employee...whether employed as a time worker or as a piece-worker", cl. 16, relating to abnormal hours on Saturday and Sunday, in which the phrase "a weekly time-work employee" appears and cl. 24, relating to sick leave, in which the phrase "a permanent employee" is used. On the other hand, Mr. Jackson contended that the word "employees" in the S.E.M. Agreement clearly excluded casual employees, or was at least ambiguous when read in the context of the Newspaper Printing Aqreement (1979). He relied upon a number of clauses in which the word "employee" was used, 1n a context which he said was clearly inappropriate to casual employees. These clauses included cl. 8(b), under which the wage rate of an apprentice is calculated according to the wage of "an employee", cls. 11, 12 and 13, which deal with hours for day work, hours for night work - 7 - and hours of plece-workers respectively, cl. 17, which deals with overtime, cl. 22, which relates tao the provision of protective clothing, and cl 25, which provides for annual leave. Mr. Jackson's primary argument was that the word "employees" in the S.E.M. Agreement on 1ts face does not include casual employees, since casual employees are specifically referred to elsewhere in the Newspaper Printing Agreement 1979, and since cl. 2 of the S.E.M. Agreement did not refer to a rate appropriate for a casual employee, and a casual employee would not be subject to the roster contemplated by cl. 3 of the 5.E.M. Agreement. In the alternative, Mr. Jackson said that the word "employees" in the S.E.M. Agreement is ambiguous. He then sought to lead evidence as to the circumstances in which the S.E.M. Agreement was entered into, and the history of the application of the S.E.M. Agreement, for the purpose of showing that it should not be construed so as to include casual employees. Objection was taken to this evidence; since the cutcome of the objection depended upon a decision whether the word "employees" is ambiguous, 1t was agreed that the evidence should be led, subject to the objection, and the objection should be resolved after full addresses. In my view, Mr. Shaw's argument is to be preferred. The clauses to which he referred do make it clear that the framers of the Newspaper Printing Agreement 1979 were perfectly capable of distinguishing between casual employees and weekly or permanent employees, where such distinction is necessary. It is by no means self-evident that many of the clauses to which Mr. Jackson referred are inapplicable to casual employees. It would be strange if clauses fixing hours of work were held to be - 8 - inapplicable to casual employees. It is by no means impossible to suppose that a casual employee might work a full week; such an employee would not thereby become a weekly employee, because that week may be the only week worked by the employee during a lengthy period. In such event, the employee would be required to work only the hours prescribed by cl. 11, cl. 12 or cl. 13, and would be entitled to overtime under cl. 17 for any time worked in excess of those hours. To hold otherwise would be to permit an employer to require a casual employee to work longer hours than those required of other employees, without compensation in the form of overtime payments. If the construction of those clauses were in dispute, it is unlikely that a court would hold that such a result could be achieved. The additional rate paid to a casual employee under cl. 26 is no doubt to compensate the employee for the casual nature of the employment; it is not necessarily to be regarded as compensating the employee for such a thing as being required to work longer than the standard hours without overtime payments. It is also unlikely that a court would hold that cl. 22 did not oblige an employer to provide protective clothing to a casual employee; 1t is not apparent that the need for protective clothing, which is seen to exist in the case of weekly employees, does not also exist in the case of casual employees. Any lack of entitlement to annual leave by a casual employee may result from the specific wording of cl. 24, rather than from any obvious exclusion of casual employees by the use of the word "employees". Whatever might be the result of argument about these individual clauses, it cannot be said that they draw a clear distinction between "employees" on the one hand and "casual employees" on the other. They do not provide a context in which 1t becomes clear that casual employees lack some of the entitlements which are stated by the Newspaper Printing Agreement 1979 to be applicable to "employees" generally. The wording of cl. 23(a), quoted above, suggests that casual employees are to be regarded as employees. Clause 26(a), also quoted above, makes it clear that a casual employee is an employee. Nor is the structure of the S.E.M. Agreement sufficient to impart a restricted meaning to the word "employees" incl. 1 of that agreement. Clause 2 of that agreement is not necessarily to be regarded as a code for the fixing of rates. The rates specified in it are "reckoned, when applying" to a day worker or night worker respectively. There 1s no reason why cl. l(a) cannot attract double the casual rate in respect of a casual employee. Similarly, the fact that provision is made in cl. 2 of the S.E.M. Agreement for a roster does not show on the face of the agreement that casual employees are excluded. There is no particular reason why casual employees should not be the subject of the roster. For these reasons, the word "employees" in cl. 1 of the S.E.M. Agreement appears to have its ordinary and natural meaning, including all employees, whether casual or weekly. A difficult question then arises whether the word is ambiguous. There appears to be no clear test laid down for determining when an ambiguity exists. At one extreme is the statement of Isaacs A.C.d. in Pickard v. John Heine & Son Ltd. (1924) 35 C.L.R. 1, at page 9, where his Honour said, in interpreting an Award: "Personally I see no ambiguity. But as the interpretation I - lo - favour was disputed at the Bar, 1t must be because there 1s such ambiguity." At the other extreme is the statement of Viscount Simonds in Kirkness v. John Hudson and Co. Ltd. Ci9553 A.C. 636, at pages 711-712, with reference to an earlier decision of the House of Lords interpreting a statute: "In this case Lord Buckmaster was of opinion, as had been at least one of the members of the Court of Appeal, that the first contention of the Crown was right, and that the words of the earlier Act had the meaning they sought to put upon them. The other noble and learned Lords thought otherwise. It would have been easy then to say that, since judicial opinion differed as to the meaning of these words, there was such an ambiguity as to justify recourse to a later Act to resolve it. But the decision of this House was unanimously to the contrary. That means that each one of us has the task of deciding what the relevant words mean. In coming to that decision he will necessarily give great weight to the opinion of others, but if at the end of the day he forms his own clear judgment and does not think that the words are "fairly and equally open to divers meanings" he is not entitled to say that there 15 an ambiguity. For him at least there 15 no ambiguity and on that basis he must decide the case." Care must be taken, of course, not to create an ambiguity by bringing into consideration external factors which may be used legitimately to resolve an ambiguity 1f one exists. If I were ta apply the test laid down by Viscount Simonds, I should hold that no ambiguity arises in the present case, because the word "employees" bears 1ts ordinary, natural and unrestricted meaning an the context of the S.E.M. Agreement and the Newspaper Printing Agreement 1979. On the other hand, if I were to apply the test applied by Isaacs A.C.J., I should hold that an ambiguity arises because of the rival contentions of counsel. Perhaps in a case such as this the safest course 1s to assume that an ambiguity does exist, and to see where the application of extrinsic aids to interpretation leads in the construction of the document. tow - ll - Making that assumption ain this case, therefore, 1t 15s necessary to determine to what conclusions the evidence leads. The evidence was directed to two areas. The first was the circumstances in which the S.E.M. Agreement originally came__ into existence. The second was conduct of the parties, which was said to give rise to a settled interpretation of the S.E.M. Agreement. Taking the first area, the evidence established that there existed in 1954 an agreement entitled the Federal Newspaper Printing Agreement, 1953. This agreement appears to have been the subject of certification under the provision that 15 now s. 28 of the Act. It was an agreement made between the Union (under its earlier name, the Printing Industry Employees' Union of Australia) and various employers, including the respondent. Clause 18(e) of that agreement, which corresponds with cl. 17(e) of the Newspaper Printing Agreement 1979, provided: "(e) Subject to clause 15 of this Agreement, an employee required to work more than five consecutive shifts in a financial week without a clear interval of 32 hours in the "News" Office, Adelaide, or 36 hours in any other office, after the fifth shift shall be paid double time or double rates therefor for all work performed by him after the fifth shift, with a minimum of four hours' work or payment therefor; provided that this sub-clause shall not apply where shifts are being changed, or toa case where it is necessary for an employee to work in the place of an employee who 15 absent through sickness." When the respondent was contemplating producing the Saturday Evening Mercury, 1t realized that its employees who were called upon tao work on Saturdays for the purposes of producing the Saturday Evening Mercury would fall within the provisions of cl. 18(e) if they had worked five shifts during the preceding week, -12- and would therefore be entitled to be paid at double time or double rates in respect of all subsequent shifts, until such time as they were given a clear interval of 36 hours. In other words, each employee who worked a full week, as well as working on Saturday, would be entitled to double pay for every shift worked after the first such week, unless given a 36 hour break. The respondent naturally wished to avoid this consequence. It took the problem to the Union, and some negotiations took place. Out of these negotiations emerged the S.E.M. Agreement. According to Mr. Cooper, a director of the respondent, who has been associated with the respondent since 1947 and was Secretary of it during 1954, the intention of the S.E.M. Agreement was to make provision for payment for those who worked on the Saturday Evening Mercury otherwise than under the Federal Newspaper Printing Agreement 1953, so that the company would not be obliged to pay double time to all of the employees who worked on a Saturday, during the week following that Saturday. A number of comments may be made about this evidence. It is true that the modern approach to the construction of instruments recording consensual transactions is generous, as far as the use of extrinsic evidence to assist construction is concerned. In Codelfa Construction Pty. Ltd. v. State Rail Authority of New South Wales (1982) 149 C.L.R. 337, at page 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 15 ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when 1t has a plain meaning. Generally speaking facts existing when the contract was made will - 13 - 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." Mr. Jackson relied on this passage as authority supporting the admissibility of the evidence of the manner in which the S.E.M. Agreement came into existence. It 1s necessary, however, to have regard to the words of Mason J. which followed immediately those quoted above: "It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification." The evidence which Mr. Cooper gave really amounted to no more than an explanation of what the respondent hoped to achieve by the S.E.M. Agreement. Such evidence of actual intention is inadmissible. Indeed, this case demonstrates with particular clarity the reasoning behind the rule of law known as the parol evidence rule, which operates to exclude such evidence. The S.E.M. Agreement does not achieve in terms what the respondent hoped it would achieve; it makes no reference to cl. 18(e) of the Federal Newspaper Printing Agreement 1953, nor to the question of the entitlement of an employee who has already worked five shifts, and subsequently works a sixth to produce the - J4 - Saturday Evening Mercury, should that employee return to work on the following Monday. It does not address the need for a 36 hour break to avoid the consequences of cl. 18(e). The express object of the respondent could have been accomplished easily by an agreement providing that work done in the production of the Saturday Evening Mercury was not to be recognized as work done on a shift for the purposes of the Federal Newspaper Printing Agreement 1953. Instead, the S.E.M. Agreement in its present form came into existence. Perhaps this had something to do with the fact that the 5.E.M. Agreement was drawn up by the Union, and not by the respondent. In the absence of evidence of the subjective intention of those who acted on behalf of the Union in drawing it, it is possible only to speculate as to what the Union might have been desiring to achieve. Such speculation would not assist in the construction of the agreement. The fact is that, whatever considerations might have motivated the respondent to commence negotiating with the Union, the two parties eventually entered into the S.E.M. Agreement in its present form. They must be regarded as having intended to agree in that form, and their common intention must be judged from the document itself, and not from the evidence of what the representatives of one party intended to achieve. Even if the evidence is regarded as doing no more than establishing that a circumstance existed, which in the view of the respondent, required remedy, the S.E.M. Agreement on its face does not purport to remedy that circumstance. It cannot be construed as 1f it did remedy that circumstance; still less can 1t be construed as if it did no more than remedy that circumstance. - 15 - Mr. Jackson also relied upon the fact that cl. 27 of the Federal Newspaper Printing Agreement 1953, the forerunner of the present cl. 26 of the Newspaper Printing Aqreement 1979, contained an additional sub-cl. which provided as follows: "(e) A casual publishing employee shall be paid at the rate of 5/- per hour at whatever time his work 15s performed." Mr. Jackson argued that this sub-clause made it clear that casual employees working on Saturday in the publication of the Saturday Evening Mercury were to be paid at the casual rate, and not at the double time rate under the S.E.M. Agreement. Even if that were the clear conclusion to be arrived at by reading in conjunction the S.E.M. Agreement and the Federal Newspaper Printing Agreement 1953, the same conclusion cannot follow froma reading of the S.E.M. Agreement in conjunction with the Newspaper Printing Agreement 1979. This 1s because cl. 26 of the last-mentioned agreement does not contain any sub-clause analogous with the old clause 27(e). In other words, there 1s no provision which could be construed in any way as placing an overriding limit on the rate of pay to a casual employee. The second major area of evidence concerned the conduct of the parties. Here again, the Court must be wary of admitting the evidence. In Seamen's Union of Australia v. Adelaide Steamship Co. Ltd. (1976) 46 F.L.R. 444, at page 445, the Australian Industrial Court held 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. In doing so, the Court declined to follow the - 16 - Merchant Service Guild of Australia v. Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1F.L.R. 248, in which evidence of conduct had been admitted. Mr. Jackson endeavoured to rely upon the Merchant Service Guild case, but that case must be regarded as no longer good law. Some attempt Was Made to argue that, where the provisions of an award or agreement are repeated in a subsequent similar instrument, involving the same parties, and where they can be said to have received a settled interpretation by the conduct of the parties before such repetition, evidence of such settled interpretation is admissible. There is some suggestion in the Merchant Service Guild case to this effect (see page 251 in the judgment of Spicer C.d., page 254 in the judgment of Dunphy J. and page 257 in the judgment of Morgan o.). The court in the Seamen's Union case, at page 445, did refer to the series of agreements involved in the Merchant Service Guild case, and must be taken to have rejected this argument as well. Even if it were alive however the argument could not be applied in the present case. The evidence amounted to no more than the proposition that no complaint had been made over a number of years during which the respondent had paid casual employees working on the Saturday Evening Mercury otherwise than at double rates or double time. Such evidence does not go so far as to establish a settled interpretation, accepted by both parties to the S.E.M. Agreement. In particular, there was no evidence to suggest that the employees concerned were aware of the provisions of the S.E.M. Agreement, and addressed their minds to the question whether they were entitled to be paid more than they were receiving. Some - 17 - attempt was made to rely upon the provision in cl. 35(a) of the Newspaper Printing Agreement 1979 that a copy of the agreement, with any variation, be kept posted 1n a prominent place in each workroom. Even assuming that the respondent complied with __. this provision, such compliance would be insufficient to establish knowledge by the relevant employees of the terms of the S.E.M. Agreement. Further, even 1f the employees themselves knew of their rights, it 1s difficult toe regard that knowlege as knowledge by the Union. The Union 1s a party to the S.E.M. Agreement, not the employees themselves. If a settled interpretation were to be established, 1t would have to be shown that the Union was aware of and assented to the manner in which the respondent interpreted the agreement. Not only does the evidence in the present case not establish such knowledge, it indicates to the contrary. Mr. Cashin, the General Manager of the Mercury newspaper and Industrial Manager for the respondent gave evidence of the conduct of the respondent. With respect to the payment of casual employees working on the Saturday Evening Mercury, evidence was given in the following terms: "Was regard ever had in compiling their wages to provisions of the Saturday Evening Mercury Agreement?---Never. It was never raised until it was raised at the negotiation in 1984." HIS HONOUR: You said something was raised in 1984, in negotiation. What was that?---The question was asked as to what was the payment made to those casual employees. That was explained to the union, that the casuals were paid according to the casual provisions of the Newspaper Printing Agreement with a modification to that, that under those casual provisions they are guaranteed a minimum three hours pay. When they worked on the Saturday Evening Mercury they were paid a minimum of four hours. That is an arrangement I can find happened - 18 - between 1954 and 1984. I cannot be specific about that, it was an alteration made along the line." This evidence tends to indicate that officials of the Union were unaware until 1984 of the practice adopted by the respondent. By that time, the S.E.M. Agreement had been carried forward. twice, once with a 1976 agreement, and once with the Newspaper Printing Agreement 1979. Such evidence makes it impossible for the respondent to establish that the Union assented to a particular interpretation of the S.E.M. Agreement. It follows that the respondent has failed to draw attention to any matter which would lead to the conclusion that the word "employees" in the S.E.M. Agreement has anything other than its ordinary and natural meaning, namely as including all employees, whether casual or weekly. It is therefore appropriate for the Court to give an interpretation pursuant to s. 110 of the Act, to the effect that the word "employees" incl. 1of the S.E.M. Agreement includes casual employees. In accordance with the wishes of the parties, no formal order will be made at the present time, but the matter will be listed for further hearing when the parties have had time to examine these reasons for judgment. I certify that this and the tT preceding paies are a true copy of the Reasons for Judement herein of his Honour Mr. Justice es as Dated: a3fa {%% .