Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Corrective Services NSW [2021] NSWIRComm 1026 Hearing dates: 18 March 2021 Date of orders: No orders were made Decision date: 18 March 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: The correct interpretation of cl 5(v) of sch B to the Crown Employees (Correctional Officers, Department of Communities and Justice - Corrective Services NSW) Award requires that an allowance at the rate equivalent to the Dinner rate be paid where overtime extends beyond 6pm or commences at 6pm and goes for the required period of one and a half hours Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – industrial dispute – interpretation of a provision in award – payment of an allowance when shift ends at 6pm and overtime is worked for one and a half hours – recommendation made that parties confer on agreed variation to award Legislation Cited: Industrial Relations Act 1996 Cases Cited: Cepus v Heggies Transport Pty Limited 52 IR 123 Texts Cited: Nil Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Notifier) Corrective Services NSW (Respondent) Representation: Counsel: Ms L Saunders (Notifier) Mr G Fredericks (Respondent) Solicitors: Mr B Trainor (Notifier) Mr T Pacey (Respondent) File Number(s): 2020/00181077 Publication restriction: Nil EX TEMPORE DECISION 1. The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales filed a dispute notification with the Commission under s 130 of the Industrial Relations Act 1996 against Corrective Services NSW. 2. The dispute before the Commission concerns the interpretation of cl 5(v) of sch B to the Crown Employees (Correctional Officers, Department of Communities and Justice - Corrective Services NSW) Award. That provision is in these terms: "An allowance at the rate equivalent to the Dinner rate for overtime under the conditions award is payable to officers who are required to work a minimum of one and a half hours overtime at the end of their rostered shift and such overtime continues beyond 6.00pm as per approval from the then Public Service Board in 1980." 1. The dispute between the parties can be crystallised around the words "continues beyond 6.00pm". The union's position is that if the ordinary shift ceases at 6pm and the overtime starts at 6pm, then it continues beyond 6pm and the meal allowance at the Dinner rate is payable. The position of Corrective Services is that the overtime must start before 6pm and continue beyond it. I accept that there is ambiguity in the clause. I accept that both interpretations are available. 2. It is common ground that if an ordinary shift of a prison officer ceases at 5pm and the officer works an hour and a half overtime which goes beyond 6pm, the meal allowance is payable. If the ordinary shift finishes at 5.45 and overtime is then worked which goes for an hour and a half and clearly beyond 6pm, the allowance is payable. It is also common ground if the ordinary shift finishes after 6pm and overtime is then worked, that the allowance is not payable. So the only issue, as I apprehend, before me is what happens when the shift finishes at 6pm and the overtime starts at 6pm. 3. I am guided in interpreting the provision of the award by principles that were set out in Cepus v Heggies Transport Pty Limited 52 IR 123 in the joint judgment of Glynn and Cullen JJ at pp 127-128 as follows: "(i) Awards are not to be interpreted as strictly as statutes; (ii) Awards are to be interpreted on the basis that the intention of the parties is gathered from the whole award; (iii) Awards are often expressed in loose language used by the parties to meet their needs; (iv) Situations which fall accidentally within the words of an award should not be regarded as coming within such award. (v) Where the words are susceptible of more than one meaning, the tribunal should place itself in the position of the award-making body in order to understand its intended meaning. Regard may be had to evidence as to usage of the trade. (vi) The meaning to be attributed to an award term is to be found by reading it in its industrial context, recognising that awards are drawn up by those who cannot be expected to be perfectionists in legal drafting. (vii) It is desirable that, in interpreting an award, the tribunal should have the fullest knowledge of the circumstances under which it is made. (viii) The context of an award should be considered in the first instance and not merely when ambiguity might be thought to have arisen. (ix) The history of the award provision is relevant to the ascertainment of its meaning." 1. In this matter, both parties have placed before the Commission a great deal of evidence about past custom and practice relating to the payment of this particular allowance in various circumstances. I have not paid any regard to that evidence in coming into my determination as to the proper interpretation of the award. 2. I interpret the award to conclude that the words "continues beyond 6.00pm" to include overtime commencing at 6pm, and in reaching that interpretation I pay particular regard to the provision stated immediately above to the effect that: "Situations which fall accidentally within the words of an award should not be regarded as coming within such award." 1. I apply the converse of that principle and have determined that the interpretation pressed by Corrective Services, that the overtime must start before 6pm rather than at 6pm, is a situation which falls accidentally outside of the award. My interpretation is that that simply makes no sense and the award should be interpreted in the way contended by the Public Service Association for the reasons set out in the union's submissions with which I agree. 2. I therefore recommend to Corrective Services that they accept that interpretation and apply this provision accordingly. 3. I direct the parties to confer with a view to an agreed variation of that particular provision of the award which makes it clear that where the overtime extends beyond 6pm or commences at 6pm and goes for the required period of one and a half hours, that the Dinner rate allowance is payable John Murphy Commissioner. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2021