JUDGMENT No. Schedoinenal kaos IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) ) ) . . ) No. I 4 of 1984 INDUSTRIAL DIVISION ) ) ) ON APPEAT, FROM MR. JUSTICE GRAY DAVIES BROS. LIMITED Appellant PRINTING AND KINDRED INDUSTRIES UNION First Respondent CHRISTOPHER HARVEY Second Respondent CORAM: Northrop, Keely, Einfeld JJ FEDERAL COURT OF AUSTRALIA DATE: 19 June 1987 28 JAN 2003 LIBRARY EX-TEMPORE JUDGMENT EINFELD J: The application from which this appeal emerges relates primarily to the interpretation of Schedule BAA ("the Schedule"), known as the Saturday Evening Mercury Agreement to the Newspaper Printing Agreement 1979 ("NPA Agreement") certified by the Australian Conciliation and Arbitration Commission on 1 December 1981. The short point at issue is whether the Schedule applies to casual publishing employees performing work in the appellant's newspaper, the Saturday Evening Mercury, published. in Hobart. The Schedule, which is incorporated in the NPA Agreement by clause 43, is set out in full in the reasons for judgment of Mr. Justice Gray at first instance. On its face, it is clear that the Schedule applies to all employees employed in publishing the Saturday Evening Mercury. The appellant argues however that the context of the NPA Agreement requires that the Schedule should be read down to exclude casual employees. Clause 23(a) of the NPA Agreement delineates the employees who may be employed by the respondent: "No employee shall be employed other than as a weekly time-work employee or a weekly piece-work employee or a casual time-work employee or a casual piece-work employee." Clause 26 defines a casual employee as being someone other than a weekly employee and provides for his or her rates of pay. While distinguishing different rates of pay for casual publishing and non-publishing employees and for those of the first variety working on day or night shift, it sets the rates by reference to other clauses by which the rates for weekly employees are also calculated. The appellant argued that a review of the NPA Agreement, with the Schedule incorporated as it were as one of its clauses, opens the NPA Agreement to the interpretation in some clauses that otherwise unqualified employees are clearly intended to be weekly employees and not casual employees. The argument conceded, as I believe rightly, that the NPA Agreement is not consistent in this regard, not only between clauses but sometimes within the same clause. The argument further conceded that some unqualified references to employees are clearly intended to include both casual and weekly employees. The usual forensic skill and eloquent persistence of Mr. Bleby of Queens Counsel. for the . appellant notwithstanding, these concessions carry with them the destruction of the very arguments he put. There is nothing compelling about' the content or context of the NPA Agreement nor of the Schedule itself that require the general and clear ambit of the Schedule's coverage to be qualified. Without more, both in the agreement and in the. evidence, it is not possible to read into unambiguous words not merely an ambiguity but a meaning clearly on the branch of the ambiguity opposed to the apparent meaning. By way of demonstration, the effect of adopting Mr. Bleby's argument would mean that casual employees working on the publication of the Saturday Evening Mercury: (a) would receive the same pay whether they work at night or by day or on Christmas Day or any ordinary day of the week; (b) would not be entitled to a meal break in a full shift of six or more hours; (c) would not be included on a roster of workers employed on any shift with the result that foremen or other workers would not know who was performing the work to be done by casual employees; (da) in the case of junior casuals, that they could be required to do work regarded as dangerous to or beyond the skills or strength of juniors on weekly employment; Ce) would or may not be entitled to protective clothing supplied to weekly employees performing the same work. In my view the word "employees" in the Schedule clearly and unambiguously includes casual employees. It is therefore not necessary to go to Mr. Bleby's second argument that to resolve the supposed ambiguity, I should go to the circumstances surrounding the making of the agreement to ascertain the parties' intentions in this regard. However, I believe that the evidence falls far short of compelling a construction of the kind contended for even if such an exercise were undertaken. In my view, a limited interpretation of "employees" was not and could not have been intended as the meaning of the agreement including the Schedule. Not only am I therefore not persuaded that a word of clear and general meaning Like "employees" requires a gloss or qualification, it seems to me unlikely that the parties did so intend. For those reasons I would dismiss the appeal.