Industrial Relations Commission of New South Wales CITATION: Broken Hill Chamber of Commerce Inc v Barrier Industrial Council [2005] NSWIRComm 401 APPELLANT: Broken Hill Chamber of Commerce Incorporated PARTIES: RESPONDENT: Barrier Industrial Council FILE NUMBER(S): IRC 4364 of 2005 CORAM: Wright J President; Walton J Vice-President; Murphy C CATCHWORDS: Appeal - Award Interpretation - Long service leave provision in award - Long Service Leave Act - Accrual of Long Service Leave - Refusal of leave to appeal - Appeal dismissed LEGISLATION CITED: Long Service Leave Act 1955 Barrier Industrial Council and Broken Hill Chamber of Commerce Inc [2005] NSWIRComm 249 Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135 CASES CITED: Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia (2001) 106 IR 217 Knowles v Anglican Church Property Trust (1999) 95 IR 380 Zoological Parks Board of NSW v Australian Workers Union (2004) 135 IR 56 HEARING DATES: 10/31/2005 DATE OF JUDGMENT: 11/04/2005 APPELLANT: Mr B Gee, Solicitor Campbell Fisher Cartwright Berriman, Lawyers and Consultants LEGAL REPRESENTATIVES: RESPONDENT: Mr A Rogers of counsel Barrier Industrial Council JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WRIGHT J, President WALTON J, Vice-President MURPHY C Friday 4 November 2005 Matter No. IRC 4364 OF 2005 BROKEN HILL CHAMBER OF COMMERCE INCORPORATED AND BARRIER INDUSTRIAL COUNCIL Application by Broken Hill Chamber of Commerce Incorporated for leave to appeal and appeal against a decision of Deputy President Sams given on 29 July 2005 in Matter No IRC 1031 of 2005 DECISION OF THE COMMISSION [2005] NSWIRComm 401 1 We have decided to refuse leave to appeal in this matter which is an application for leave to appeal from a decision of Sams DP (Barrier Industrial Council and Broken Hill Chamber of Commerce Inc [2005] NSWIRComm 249) in which his Honour helpfully sets out the award provision, the interpretation of which was the subject of the proceedings before him, and other relevant materials. 2 The appeal concerns a narrow issue as to the interpretation of clause 20 of the Broken Hill Commerce and Industry Agreement Consent Award 2001. 3 The issue is whether the award provides for the accrual of long service leave after 10 years of service at the rate of 13 weeks leave for each 10 years of service or at the rate prescribed by the Long Service Leave Act 1955 for service in excess of 10 years. 4 The question of leave should be determined in accordance with the principles stated in Knowles v Anglican Church Property Trust (1999) 95 IR 380. 5 The appeal raises no issue of principle as to the interpretation of awards. Those principles are well settled: see, for example, Zoological Parks Board of NSW v Australian Workers Union (2004) 135 IR 56; Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia (2001) 106 IR 217; Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135. 6 There is an ambiguity in the clause in question. His Honour was entitled to resolve the ambiguity by looking to the intention of the clause and adopting a purposive approach to its interpretation. His conclusions in this respect were reasonably open. 7 In any event, we have had the benefit of submissions as to the history of the provision and the related history of the long service leave legislation. We conclude that analysis puts beyond doubt that the true intention of the drafter of the provision was to create an alternative quantum of benefit for long service leave at 1.3 weeks per year of service for the period the subject of the proceedings before his Honour. 8 The current provision is materially the same as when it was first made in 1971 and calls for no different interpretation. In our view, sub-cl (c) of Cl 20 preserves that rate of accrual whilst leaving the application of all other provisions of the Long Service Leave Act unaltered. 9 We also consider that a further ground for the refusal of leave is the disavowal by the appellant of part of its case at first instance. 10 We order that leave to appeal be refused. The appeal is dismissed. ________________ 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.