Industrial Relations Commission of New South Wales in Court Session CITATION : NSW Teachers Federation v NSW TAFE Commission and Anor [2001] NSWIRComm 236 APPLICANT New South Wales Teachers' Federation FIRST RESPONDENT Managing Director NSW TAFE Commission PARTIES : SECOND RESPONDENT Director-General Department of Education and Training INTERVENOR Public Service Association of New South Wales FILE NUMBER: IRC5914 of 2000 CORAM: Peterson J CATCHWORDS : Declaration, Application for - extended leave for full-time TAFE teachers - recognition of prior part-time or casual service - meaning of 'service' - whether confined to continuous service or an aggregate of periods of service - declaration declined. Industrial Relations Act 1996 Education Commission Act 1980 Teaching Services Act 1970 Teaching Services Act 1980 LEGISLATION CITED : Technical and Further Education Commission Act 1990 Long Service Leave Act 1955 Long Service Leave Amendment Act 1985 Public Sector Management Act 1988 Interpretation Act 1901 (Cth) Interpretation Act 1987 (NSW) Re Crown Teachers (Casual) Award (1983) AR 692 CASES CITED : Secretary of the Ministry of Education and Youth Affairs v New South Wales Teachers' Federation (1989) 34 IR 214 Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation for the Commonwealth of Australia (1980-1981) 147 CLR 297 at 319-321 Director-General of the Department of Corrective Services v Mitchelson (1992) 42 IR 38 at 43 HEARING DATES: 06/29/2001 DATE OF JUDGMENT: 09/28/2001 APPLICANT Mr S Crawshaw SC UNION New South Wales Teachers' Federation RESPONDENTS Mr S B Benson of counsel LEGAL REPRESENTATIVES: SOLICITOR Crown Solicitor's Office SYDNEY. INTERVENOR Ms P F Lowson of counsel SOLICITOR Jones Staff & Co, SYDNEY. JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 28 SEPTEMBER 2001 Matter No. IRC5914 of 2000 NEW SOUTH WALES TEACHERS' FEDERATION v DIRECTOR GENERAL OF EDUCATION AND TRAINING AND ANOR. Application for declaratory relief under s154 of the Industrial Relations Act 1996 JUDGMENT 1 The New South Wales Teachers' Federation ('the Federation') has applied for a declaration in the following terms: That full-time employees of the NSW Technical and Further Education Commission (TAFE) are entitled to have any prior service as a temporary or non full-time employee since the coming into force of the Education Commission Act 1980 (later retitled the Teaching Services Act 1980) recognised as service for the purposes of the extended leave provisions in the Technical and Further Education Commission Act 1990 and the Public Sector Management Act 1988. 2 The application is brought pursuant to s154 of the Industrial Relations Act 1996 ('the IR Act') which provides: 154 DECLARATORY JURISDICTION (1) [Binding declarations] 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. (2) [Proceedings not open to objections] Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 3 The application brings to the Commission a question concerning the recognition of prior service as a temporary, part-time or casual employee for the purposes of calculating the amount of extended leave to which an employee might be entitled under the Technical and Further Education Commission Act 1990 (Act No. 118 of 1990) ('the TAFE Act') and, by reference, the Public Sector Management Act 1988 ('the PSM Act'). The issue only affects persons who are full-time employees at the time at which they seek to avail themselves of extended leave rights. 4 The TAFE Act provides by s22 for the application of Public Service extended leave provisions to "all members of the staff of the TAFE Commission who are employed on a full-time basis". That leave accrues "at the same rate and under the same conditions as officers of the Public Service". Schedule 5 to the PSM Act, which is by s22 made to apply, identifies the entitlement to extended leave as follows: 1(1) Subject to this Schedule, an officer is entitled: (a) after service for 10 years, to leave for 2 months on full pay or 4 months on half pay, and (b) after service in excess of 10 years, to:- (i) leave as provided by paragraph (a), and (ii) in addition, an amount of leave proportionate to the officer's length of service after 10 years, calculated on the basis of 5 months on full pay, or 10 months on half pay, for 10 years served after service for 10 years. 5 Clause 6(6) of Schedule 5 of the PSM Act defines "service" to include service under the Teaching Services Act 1980. 6 The declaration sought in these proceedings arises from a dispute between the parties as to the service which is to be recognised for the purposes of the definition set out in paragraph 4 above. The Federation has apparently taken the view historically, consistent with that of TAFE, that a full-time employee relying upon service for the purposes of a qualification for extended leave is entitled to be credited only with full-time service subject to a variation introduced by the adoption of policy by TAFE from 1992 onwards. However, a recent re-examination of entitlements has given rise to a view within the Federation that the statutory entitlement is greater than that which formerly has been recognised and that all prior service, whether full-time, temporary, part-time or casual, should be given credit in determining the length of service in respect of which extended leave is calculated. 7 Apart from the Federation, the employer parties were the NSW TAFE Commission and the NSW Department of Education and Training. During the course of the argument on 9 March 2001 I raised with counsel whether there was any relevant experience in the public sector, outside the teaching service, of the application of Schedule 5 to the PSM Act. That caused the Federation to give notice to the Public Service Association of New South Wales ('PSA') of the proceedings and a subsequent application by the PSA for leave to intervene and be heard in relation to the application for a declaration. That application was contested by the respondents. After hearing argument on 24 May 2001 a decision was given in favour of intervention. Further argument on the primary issue was heard on 29 June 2001, when final judgment was reserved. 8 The matter was argued largely on the papers although there was evidence adduced from Mr Churchill F Vanderwert, a former employee of TAFE, in the form of an affidavit which essentially annexed a series of relevant documents, awards and statutes. The following history is taken in part from that material advanced through the affidavit and other documentary material presented. 9 Prior to 1980 TAFE teachers were employed under the provisions of the relevant Public Service Acts and school teachers were employed under the Teaching Services Act 1970. The Education Commission Act 1980 created the Education Commission of New South Wales and established the Education Teaching Service (s44) to cover school teachers and the Technical and Further Education Teaching Service (s52) to cover TAFE teachers. The Education Commission Act 1980 was later re-titled the Teaching Services Act 1980 (as I shall refer to it). 10 Division 5 of that Act provided for extended leave. Section 79 provided: 79(1) Subject to this section, an officer of a Teaching Service is entitled - (a) after service for 10 years, to leave for 2 months on full pay or 4 months on half pay; (b) after service in excess of 10 years, to - (i) leave pursuant to paragraph (a); and (ii) in addition, an amount of leave proportionate to his length of service after 10 years, calculated on the basis of 5 months on full pay, or 10 months on half pay, for 10 years served after service for 10 years. (2) For the purpose of calculating the entitlement of a person to extended leave under this section at any time - (a) service referred to in this section includes service before the appointed day; (b) there shall be deducted from the amount of extended leave to which, but for this paragraph, that person would be entitled - (i) any extended leave, or leave in the nature of extended leave; and (ii) the equivalent, in extended leave, of any benefit instead of extended leave or leave in the nature of extended leave, taken or received by that person before that time, including any such leave taken, or benefit received, by that person pursuant to the Public Service (Amendment) Act, 1919, as in force at any time, the Teaching Service Act, 1970, as in force at any time, or the Public Service Act, 1979; and (c) the provisions of the Transferred Officers Extended Leave Act, 1961, shall have effect, but nothing in this subsection shall be construed as authorising, in respect of the same period of leave taken or the same benefit received, a deduction under both paragraph (b) and section 3(7) of the Transferred Officers Extended Leave Act, 1961. (3) Where the services of an officer of a Teaching Service with at least 5 years' service as an adult and less than 10 years' service are terminated by the Crown or the appropriate Director-General for any reason other than the officer's serious and wilful misconduct or by the officer on account of illness, incapacity or domestic or other pressing necessity, he shall be entitled for 5 years' service to 1 month's leave on full pay and for service after 5 years to a proportionate amount of leave on full pay calculated on the basis of 3 months' leave for 15 years' service (that service to include service as an adult and otherwise than as an adult). (4) For the purposes of subsection (3), "service as an adult", in the case of an officer of a Teaching Service employed to do any work for which the remuneration has been fixed by an award made under the Commonwealth Conciliation and Arbitration Act 1904, as subsequently amended, or made under the Industrial Arbitration Act 1940, or has been fixed by an industrial agreement made pursuant to or registered under either of those Acts or an agreement or determination made pursuant to this Act, means the period of service during which the remuneration applicable to the officer was at a rate not lower than the lowest rate fixed under the award, industrial agreement, agreement or determination for an adult male or adult female in the same trade, classification, calling, group or grade as the officer. (5) For the purposes of - (a) subsection (1), "service" includes - (i) service under the Public Service Act, 1902, the Teaching Service Act 1970, the Public Service Act 1979, or this Act; (ii) any period of leave without pay taken before the commencement of the Public Service and Other Statutory Bodies (Extended Leave) Amendment Act 1963; and (iii) in the case of an officer who has completed at least 10 years' service (any period of leave without pay taken before that commencement being included therein, and any period of leave without pay taken after that commencement being excluded therefrom) - any period of leave without pay, not exceeding 6 months, taken after that commencement; and (b) subsection (3), "service" does not include any period of leave without pay whether taken before or after the commencement of the Public Service and Other Statutory Bodies (Extended Leave) Amendment Act, 1963. 11 Section 80 dealt with gratuities instead of extended leave, to be payable on termination of services and s81 dealt with payment upon the death of an officer of the teaching service. It will be seen that "service" was not defined in terms which took into account the possibility of service having been either full-time, part-time or casual service. 12 On 15 May 1981 TAFE distributed to principals and registrars of all technical colleges a circular dealing with part-time teachers. It adverted to the necessity to maintain records of periods of employment and total hours worked during each period by part-time teachers, with this explanation: "Persons employed as part-time teachers who are subsequently appointed as full-time teachers are eligible to have such service taken into account for extended (long service) leave purposes, provided such service is excessive, over an extended period and merges without break into full-time service". What the utility and meaning was of the word "excessive" in that sentence I do not know. The motivation for that circular is unclear from the circular itself and also from the statutory scheme. It would appear that the approach was taken that the continuum of part-time to full-time service was able to be, or ought to be, recognised as service. 13 The definition in s79(5) of the Teaching Services Act included service under the Teaching Services Act 1970 and also service under the Teaching Services Act itself. Section 58 of the Teaching Services Act authorised the Director-General of TAFE to "appoint temporarily, on a full-time, casual or part-time basis, . . . a person who . . . has the appropriate qualifications". There can be no doubt that service as defined in s79(5) is capable of embracing service as a casual or part-time employee but the question remains whether, in order to achieve a relevant credit towards service for extended leave purposes, the service may be aggregated or must be continuous. 14 In 1990 the TAFE Act was enacted. Section 22 provides as follows: 22 Extended or long service leave (1) This section applies to all members of the staff of the TAFE Commission who are employed on a full-time basis. (2) Members of staff of the TAFE Commission to whom this section applies are entitled to extended leave at the same rate and under the same conditions as officers of the Public Service. (3) For that purpose, Schedule 5 to the Public Sector Management Act 1988 applies (with any necessary modifications) to those members of staff. 15 In 1983 in Re Crown Teachers (Casual) Award (1983) AR 692 the Commission (Bauer J) dealt with an application by the Federation for an award for casual or part-time teachers covering both school teachers and TAFE technical teachers. Part 2 (at p.725) deals with the Federation's claim in respect of the Department of Technical and Further Education. Interestingly, the Federation's claim was stated as ". . . one that is designed to convey the benefits which currently apply to permanent teachers to part-time teachers and should be looked at in that light". It is relevant to note that his Honour observed (p.728) that: "Although the terminology used in the TAFE area describes the non permanent teachers as "part time", this seems to be a terminology which is historical rather than accurate. It may well be that a closer analysis of the teaching organisation would lead to the conclusion that "casual" concepts of employment might also be involved." 16 Between 1955 and 9 May 1985 the Long Service Leave Act 1955 ('the LSL Act') provided for long service leave, for persons coming within its scope, in respect of periods of continuous service. However, the Long Service Leave Amendment Act 1985 amended s4(11) to provide that the "service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment". Section 4(11)(a1) now provides that "the service of a worker with an employer shall be deemed to be continuous notwithstanding that the service has been broken by reason only of an interruption or determination thereof:- (vii) caused by the employer for any reason other than those referred to in subparagraphs (iii)-(v) where the worker returns to the service of, or is re-employed, by the employer within two months of the date on which the service was interrupted or determined, but the period during which the service is so interrupted or determined shall not in the circumstances referred to in subparagraphs (iii)-(vii), by reason only of this paragraph, be taken into account in calculating the period of service". 17 The respondents thus, from 1985, adopted the position, it would appear as a pragmatic gesture, that casual and temporary service of an intermittent kind was to be recognised as service for the purposes of extended leave and leave would be accrued consistently with that provision. 18 A Full Bench of the Commission (Fisher P, Cahill VP, Hill J and Redman CC) in Secretary of the Ministry of Education and Youth Affairs v New South Wales Teachers' Federation (1989) 34 IR 214 dealt with the nature of employment of "part-time" TAFE teachers. At p.222 the Full Bench said: Accordingly we conclude, although the matter is one of balance on the available evidence, that the employment of "part-time" teachers in TAFE is in the nature of casual rather than part-time employment. The evidence warrants, at the lowest, the conclusion that the employment does not continue from term to term and/or from year to year but at most continues from week to week for the period of the term; that is, the teachers are not in continuing but unpaid employment in the period/s of each year when they are not carrying out teaching duties - either between terms (where they are engaged for more than one term) or between teaching years. 19 The respondents also emphasised the subsequent promulgation of the TAFE Act 1990 which partially repealed the Teaching Services Act. Section 22 of the 1990 Act made express provision for extended leave for "members of the staff of the TAFE Commission who are employed on a full-time basis". It was submitted that the reference to "full-time" staff was, no doubt, deliberate in the light of the 1989 decision of the Commission. It was submitted that TAFE staff employed on a full-time basis thus secured extended leave under s22 of the TAFE Act 1990 whilst part-time casual staff continued to obtain long service leave entitlements from the LSL Act. 20 On 30 June 1992 TAFE published in the TAFE Commission Gazette, No 22 of 1992 its policy that persons employed as part-time TAFE teachers who were subsequently appointed as full-time teachers were eligible to have such part-time services recognised for extended (long service) leave purposes provided their part-time services: (a) is the equivalent of at least twelve (12) hours duration per week; and (b) merged without break into full-time service. A formula was also set out to calculate the notional service entitlement. 21 In 1994 TAFE published its policy on extended leave noting it applied to all permanent and full-time temporary staff. It further noted that casual and part-time temporary staff were not eligible for extended leave but instead had access to long service leave (clause 1). Clause 4.1.3 of that policy also reaffirmed the earlier policy on accreditation of previous part-time service when such a person subsequently became a full-time teacher. The previous qualifications were continued. 22 In 1994 TAFE and the Federation entered into an enterprise agreement initially for full-time educational staff and later for part-time casual staff. Chapter 1, Part C, Clause 22.4 made provision for extended leave for full-time teachers. It stipulated that such staff members were entitled to extended leave as per the policy in Appendix B1. Relevantly in Clause 3.5 of Appendix B1 it is noted that part-time casual staff were covered by the LSL Act. 23 Chapter 3 of that Enterprise Agreement came into effect on 30 March 1995 and prescribed general conditions for part-time casual teachers. Clause 16 of Chapter 3 dealt with recognition of previous TAFE part-time casual service for those staff subsequently appointed full-time. It follows that such staff upon appointment to their full-time position had their entitlements to extended leave covered by the Enterprise Agreement. 24 Between 1995 and the filing of the present application there had been agreement between TAFE and the Federation as to the entitlements of both full-time and part-time casual TAFE staff for extended leave and/or long service leave. Reference ought be made to Clause 3.5 of Appendix B-1 of the 1994 Enterprise Agreement and Clause 16 of Chapter 3 of that Enterprise Agreement. 25 The Department also relied upon the provisions in the 1997 Consent Award known as the New South Wales TAFE Commission Teachers and Other Educational Staff - Salaries and Conditions Award 1996 which repeated the provisions in the 1994 Enterprise Agreement concerning part-time casual service. Further awards were made in 1999 and 2000, the latter being made on 16 November 2000 by a Full Bench of the Commission; the award was entitled the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award. This Award, which currently operates, maintained the same provisions by consent. 26 The respondents submitted that the position adopted by the Federation necessarily imports into the definition a meaning of "aggregate service" and that the conflicting version advanced by the Departmental authorities is to be preferred. The Federation disputed the proposition that its interpretation qualified the word "service" by the effective addition of the word "aggregate". It submitted that its interpretation relies solely upon the utilisation of the word "service" as referring to all service and that the respondent's view depends on limiting the scope of the ordinary meaning of the word. 27 Some additional history of the approach by the parties to this question was advanced in the proceedings as follows: 3. Prior to 30 March 1995, TAFE applied a policy whereby persons who were employed as casual teachers and were subsequently appointed as permanent full-time teachers were eligible to have their part time casual service recognised for extended leave purposes provided their service was the equivalent of at least 12 hours duration per week and merged without break into full time service. 4. In 1994 TAFE and the NSW Teachers Federation entered into an enterprise agreement initially for full time educational employees and later for part time casual employees. Chapter 3 of that agreement prescribed general conditions for part time casual employees and agreement was reached that from 30 March 1995 all part time casual service would be recognised for extended leave purposes. However, there was no retrospectivity agreed to. Therefore the 12 hour per week minimum continues to apply for part time casual service prior to 30 March 1995. 5. Although the agreement was negotiated between TAFE and the NSW Teachers Federation, the Federation has not resiled from its view that the 12 hour per week minimum is unfair as it has meant that significant amounts of service could be left out of the calculation for long term or part time or casual employees who subsequently were appointed to permanent full time positions. 28 This material was advanced, as I understood it, merely to explain the history and to remove the possibility of any suggestion that the Federation has consensually adopted the position inconsistent with the arguments it now presents. 29 Before turning to the arguments, it is appropriate to consider the principles which operate in relation to the construction of the relevant legislation. The fundamental objective of a court in construing legislation is to ascertain the meaning which was intended by the parliament to attach to the words used. The principles applicable were discussed conveniently for the present purposes by Mason and Wilson JJ in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation for the Commonwealth of Australia (1980-1981) 147 CLR 297 at 319-321. That discussion related to the literal construction rule in relation to which it was said the courts were "at pains to emphasize that it is no part of the judicial function under the cloak of construction to amend statutes merely to overcome shortcomings in their operation". It also involved the "golden rule" of construction which would permit a departure from the ordinary grammatical sense where there is some absurdity or inconsistency. Their Honours added: In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task, the courts look to the operation of the statute according to its terms and to legitimate aids to construction. (Ibid at p.320). 30 That discussion predated the introduction of s15AA in the Interpretation Act 1901 (Cth), which makes provision for an interpretation which advances the purpose of the particular enactment. Section 33 of the Interpretation Act 1987 (NSW) is as follows: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 31 In Director-General of the Department of Corrective Services v Mitchelson (1992) 42 IR 38 at 43 Kirby P in the NSW Court of Appeal dealt with that development in the approach of the courts in this way: To the extent that courts continued the tradition of giving meaning to phrases in isolation, they provoked legislators to an extremely complex expression of the law-makers' purpose. The realisation of these features of language and communication in the particular context of the task of statutory construction has prompted courts, with increased vigour of late, to reject the narrow, mechanistic, purely verbal approach to the task in favour of a purposive approach more faithful to the proper relationship between Parliament which makes the law and courts which expound and apply the law so made. See Kingston v Keprose Pty Limited (1987) 11 NSWLR 404, 423ff (CA); Fothergill v Monarch Airlines Limited [1981] AC 251, 273 (HL). To stimulate this approach in Australia, legislatures, federal and State, have enacted statutory provisions. However, to a very large extent, these simply reinforce developments which were already occurring by the common law. See Acts Interpretation Act 1901 (Cth), s15AA; Interpretation Act 1987, s33. See also Norcal Pty Limited v d'Amato (1988) 15 NSWLR 376 (CA). Thirdly, where, approached in the foregoing way, an ambiguity appears in legislation, the courts are not without tools by which to resolve the ambiguity in a principled way. Relevant to the present case they may look, not only to the language of the provision in question in the context of the common law and the surrounding statutory provisions. They may also have regard to the legislative history of the provisions which preceded and became those under scrutiny. They may look now at the Second Reading Speeches and explanatory memoranda which accompanied the passage of the Bill through Parliament. They may have regard to any past decisions on the provision in question, its predecessors or like provision in other laws. They may also have regard to the short and long titles of the Act and the headings of Parts and Divisions of the Act in an attempt to remove the ambiguity. Fourthly, where, as in the present case, the statutory provisions in question are obviously designed for a beneficial purpose and to confer novel rights which did not exist at common law (or under the Royal prerogative) or to continue with modification and amendment rights long established by statute, it is appropriate to approach the resolution of ambiguity in such a way, consistent with the foregoing, as achieves the beneficial purpose of Parliament. If two interpretations are equally available, one of which enlarges the beneficial right of appeal and the other of which narrows that right, it is legitimate for the court to favour the former rather than the latter. The former is more generally harmonious with the purpose of Parliament and the scheme of legislation designed to confer rights to appeal. See Cole v Director-General of Department of Youth and Community Services (1987) 7 NSWLR 541 at 543, 545, 549; 15 IR 439 at 440, 442, 445. 32 I have not been referred in this case to any parliamentary speeches or other explanatory memoranda that may assist in construing the provisions here under consideration. 33 The argument advanced for the Federation included the following propositions: 12. The definition of "service" in section 79(5) of the Education Commission Act includes service under the Education Commission Act. Such service is not restricted to service as an officer and includes the other types of service allowed by section 58 of the Education Commission Act, namely, part time, casual or temporary employment. Therefore once a part time, casual or temporary TAFE employee became a permanent full time employee or officer under the provisions of the Act, all previous service of that employee since being appointed by the Director-General of Technical and Further Education should have been counted for extended leave because it was service under the Education Commission Act 1980. 13. Moreover, the entitlement to extended leave based on these statutory provisions is maintained in subsequent legislation applicable to TAFE teachers. By legislative amendment, the Education Commission Act was re-titled the Teaching Services Act 1980 in 1988 but with the same sections as outlined above. The Act continued to apply to the Technical and Further Education Teaching Service until 1990 when the Technical and Further Education Commission Act was enacted. 14. The Technical and Further Education Commission Act provides in section 22 that full time employees of TAFE receive the same extended leave entitlements as officers of the Public Service receive pursuant to the provisions of Schedule 5 of the Public Sector Management Act. 15. Therefore, the provisions of the Public Sector Management Act apply from 1990. Schedule 5 of that Act deals with extended leave. The basic entitlement is in similar terms to section 79(1) of the Education Commission Act (later the Teaching Services Act). . . . 16. The definition of service in section 6 of Schedule 5 of the Public Sector Management Act makes it clear that all service under the Education Commission Act (later the Teaching Services Act) is service for the purposes of the extended leave entitlements. 34 The PSA's submissions dealt with the way in which employment is provided for in the Public Service and, in particular, temporary employees. By the Public Sector Management (General) Regulation 1996 a public servant is defined to refer to an officer or temporary employee. Clause 13 of those Regulations authorises Departmental Heads to determine hours of attendance at work. The Crown Employees (Public Service Conditions of Employment) Award 1997 provides for part-time employment. A "staff member" is defined in cl.3, Definitions, of that Award to mean "an officer or a temporary employee as defined in the Act and, unless otherwise specified in this award, includes both full-time and part-time staff". Clause 74 of the Award provides for extended leave to be granted to staff members in accordance with the provisions of Schedule 5 to the PSM Act. 35 By that process, a circular movement seems to be achieved in that the Award provides what, in this respect, the PSM Act itself provides. 36 The PSA submitted that while the provisions affording extended leave to officers (and more recently temporary employees) have referred constantly to "service", there is no basis to the suggestion that such service is restricted only to "full-time" service. The better approach is to view "service" as being intended to apply broadly to encompass whatever service is undertaken in accordance with statutory provisions and, where relevant, industrial instruments. 37 The PSA submitted that, contrary to the respondent's submission, the absence of a mechanism for calculating entitlements does not lead to the conclusion that only full-time officers and temporary employees are to benefit from extended leave. There are a number of circumstances provided in the 1996 Regulations where no mechanism for calculation is included, such as Departmental Heads having the power to determine hours of work. This may well give rise to the need to make calculations but it could not be suggested that every permutation of salary entitlement must be set out in legislation. 38 Taking into account the provisions of s22 of the TAFE Act and those of the PSM Act, the question for determination turns upon the meaning of the term "service" and the phrase "service under the Teaching Services Act" as they are employed in clause 1(6) of Schedule 5 of the PSM Act. It is plain that the legislation here was designed for a beneficial purpose and, as Kirby P suggested in Mitchelson, if there be in this case an ambiguity the resolution of which may involve either a narrow or a wider approach, the latter may be preferred. Is there such an ambiguity? I do not think so. 39 It follows from s22 of the TAFE Commission Act that a person not employed on a full-time basis can have no entitlement to extended leave. However, once employed on a full-time basis the statutory scheme gives an entitlement to extended leave at the same rate and under the same conditions as public servants. Credit is given for, relevantly in this case, service under the Teaching Services Act. There is no difficulty with the giving of recognition to full-time service but the respondent contends that service has the meaning "continuous service", thus, in respect of prior casual or temporary service, excluding those disconnected periods. 40 In my opinion, the answer to this matter may be discovered in both the language and the purpose of the legislation. I consider that it is not necessary to add words to the enactments to achieve that understanding, whether it be "continuous" or "aggregate" as the parties variously contended. 41 There are a number of reasons why this is so. The first is that the language of both s22 of the TAFE Act and Schedule 5 to the PSM Act, which are in similar terms, confer a right to extended leave "after service for 10 years ...". That expression "service for 10 years" seems to me to unavoidably convey a notion of uninterrupted service. The expression appears to be the most simple and direct means of referring to a continuous or uninterrupted period. Were it intended to embrace a series of periods of service which totalled 10 years, the language would appear to require considerable expansion to achieve that end. 42 The second point which supports that construction is that cl.1, subcll. 6, 7 and 8 of Schedule 5 to the PSM Act, expressly exclude from the service for which credit is to be given, certain periods of absence on leave without pay. These absences, of course, occur in the context of a continuous period of employment which would otherwise be afforded full credit. I would infer from these provisions again were it necessary to give credit to interrupted periods of prior service, special mention would be required. 43 The third reason is that the purpose of these provisions is patently to give leave in response to long and continuous service. The structural similarity between the public service provisions in Schedule 5 to the PSM Act and the LSL Act, including the similarity in the definitions of service employed in both statutes, makes this point sufficiently clear. The approach the parties have adopted historically, although of course not binding as to the construction of the relevant statutes, conforms with that meaning of the legislation. I consider the parties' conduct in that respect to have been correct and the arguments now advanced in favour of the contrary view to be incorrect. 44 It follows that unless the employment of a particular employee was continuous over the relevant period, a possibility which is excluded for part-time teachers in TAFE (see the Full Bench conclusion referred to in par. 18 hereof) there can be no entitlement of the kind the declaration would recognise. 45 Accordingly, I decline to issue the declaration sought. 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