Industrial Relations Commission of New South Wales in Court Session CITATION : Langan v Ceramiclab Pty Limited [2000] NSWIRComm 58 APPLICANT PARTIES : Sylvia Langan RESPONDENT Ceramiclab Pty Limited FILE NUMBER: IRC 6951 of 1998 CORAM: Wright J President; Hungerford J; Kavanagh J Award Interpretation - Stated case proceedings from decision of industrial magistrate - Clerks (State) Award - Whether employee a "computer operator" - Correct classification or grade of employee - Appropriate approach to issue of award interpretation - Need to interpret relevant phrase in its context - Noscitur a sociis maxim - CATCHWORDS : Connotation/denotation dichotomy - History of relevant award provisions - Question in stated case answered in the negative. Words and Phrases - "computer operator" - noscitur a sociis LEGISLATION CITED : Industrial Relations Act 1996 s 197(2) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bourne v J Norwich Crematorium Ltd [1967] 1 WLR 691 In Re Clothing Trades Award (1950) 68 CAR 597 CASES CITED : Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 Metropolitan Gas Company v The Federated Gas Employees' Industrial Union (1924) 35 CLR 449 Re Clerks (State) Award [1978] AR (NSW) 724 Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) Wilson v Commissioner of Stamp Duties (1998) 13 NSWLR 77 HEARING DATES: 04/07/2000 EXTEMPORE JUDGMENT DATE : 04/07/2000 APPLICANT Mr R C Cooley of Counsel Mr I V Knight, Crown Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr S B Benson of Counsel Justin De Celis, Employers' Federation of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President HUNGERFORD J KAVANAGH J Friday, 7 April 2000. Matter No. IRC 6951 of 1998 SYLVIA LANGAN v CERAMICLAB PTY LIMITED. Application to state a case in relation to a determination of an industrial magistrate, Ms Mary Jerram, made on 2 October 1998 and orders made on 4 December 1998 in Matters Nos. CIM97/1842-1849. JUDGMENT OF THE COURT (extempore) [2000] NSWIRComm 58 1 This is a case stated pursuant to s 197(2) of the Industrial Relations Act 1996, as it was in force in December 1998, from a decision of Ms M Jerram, Industrial Magistrate, given on 2 October 1998. The proceedings before her Worship related to an allegation that Liam Patrick O'Connell had not been paid the applicable rate of pay under the Clerks (State) Award, as published on various dates, for a number of periods between 2 July 1990 and 30 September 1996. There were also proceedings before her Worship for consequent orders under the Annual Holidays Act 1944. 2 As the proceedings developed before her Worship it was conceded that Mr O'Connell had not been paid in accordance with the Award, irrespective of which classification thereunder was applicable to his employment. The issue which her Worship was then required to decide, and which is the subject of these stated cases proceedings, is whether the employee should have been paid as a Clerk Grade 5 or Clerk Grade 3 under the Award. Her Worship held the correct classification was Clerk Grade 5 and the question in the stated case is whether her Worship erred in law. 3 Because the relevant provisions need to be considered in their context, we set out the whole of the relevant subclause of the Award, as follows: 9. WAGES (i) Grades - All adult employees shall be graded in one of the following grades and informed accordingly in writing within 14 days of appointment to the position held by the employee. (a) Grade 5 - means an adult employee who works under direct supervision (as defined hereunder) and who for a major part of the time performs routine or repetitive clerical duties involving the application of clearly prescribed standard practices which require the exercise of limited discretion. Without limiting the generality of the foregoing, examples of the type of work included in the above definition are: checking figures, matching documents, sorting or filing papers, handling mail. (b) Grade 4 - means an employee who - (a) works under general supervision (as defined hereunder) performing clerical duties which involve the exercise of some initiative and minor decision making within a regular work routine; and/or (b) for the major part of the time operates a switch board; and/or (c) is employed as a typist, and who does not fall within the definitions of grades 2 or 1. (c) Grade 3 - means an adult employee who possesses the necessary skills and is classified as one of the following and who does not fall within the definitions of Grades 2 or 1: a stenographer; comptometer operator; ledger posting or similar accounting machine operator; data processing machine operator; tabulating machine operator; computer operator; card punch machine operator; verifier operator. (d) Grade 2 - means an adult employee who - (a) Is capable of and may perform any duties of a Grade 5, 4 or 3 Clerk and who performs clerical duties under limited supervision (as defined hereunder), receives limited instructions which relate only to matters of substance in the work assignment (although more detailed instructions may be necessary on particular occasions), is regularly required to exercise independent initiative and judgment and possess a requisite knowledge of office procedures and of the employers' business; and/or (b) is required to supervise and/or control the work of other clerks (excluding typists and stenographers) a typists pool and/or the work of bookkeeping and/or comptometer operators. (e) Grade 1 - means an adult employee who - (a) is capable of and may perform any duties of a Grade 5, 4, 3 or 2 Clerk and who is fully competent in his/her work, requires little guidance in the performance thereof, exercises substantial responsibility and independent initiative and judgment with a requisite knowledge of office procedures and of the employer's business; and/or (b) is required to accept responsibility for the work of a department or of a section of the work of Clerks (excluding typists and stenographers) engaged in such department or section. 4 It is accepted by the parties that the following extracts from her Worship's decision represent the relevant factual findings made as to the work of the employee: The defendant company is in business as a dental laboratory, supplying dental prostheses and dentures as ordered by dental practitioners. All its employees, including the director, Mr Rizzo, were technicians, apart from Mr O'Connell and a part-time book-keeper. Mr O'Connell was employed to perform general duties which freed the technicians to concentrate on their professional work, those duties comprising banking, making tea and coffee, collecting mail, receiving and arranging deliveries, ordering and sometimes purchasing stock supplied for the laboratory and office, answering telephones and reception work, and cleaning. It was not contended by the employee or the Department, that he was employed initially as a computer operator, rather that cleaning was a major proportion of the work need[ed] and performed. ... The employee's evidence concurred with the employer's statement of his initial duties apart from averring that he also assisted manually with preparation of invoices. He then gave evidence that from October 1993, when the computer was purchased, he was told that he would use it for work, for invoices, statements and to help keep records. He and Mr Rizzo, apart from initial assistance from the supplier, trained themselves in its use, by using the manuals, and trial and error, and he assisted the book-keeper in setting up an inventory of the stock, and creating statements and invoices. Mr Rizzo used it for letters and Mr O'Connell would often "polish up" rough notes given to him by Mr Rizzo into a formal letter. Eventually he created data bases, specifically patient records, and national dental technicians, the latter being for the professional organisation to which Mr Rizzo belonged. From his own description I did not take it that his other original duties changed or were diminished in any way other than that he no longer prepared invoices manually. The reference, (Exhibit 6) provided to him on termination, he agreed, was written by himself and signed by Mr Rizzo to assist him in obtaining a new position. The words used, including the description of himself as "office manager" were his own, and he agreed that that title had never been used in fact during his employment. For the defendant company evidence was called first from a Mr Brewer, a technician employed in the business, and from a Mrs Lorant, the part-time book-keeper from mid-March 1995. Both witnesses confirm O'Connell's principal duties, Mr Brewer believing him to be a general hand but not recalling the amount of time he spent on clerical duties. Mrs Lorant's evidence was more pertinent, describing O'Connell's office work when she was present half a day per week as "typically including reconciling the petty cash, producing invoices on the computer, filling out deposit slips and taking them to the bank, answering the phone and vacuuming ... he would occupy his spare time playing on the computer". She agreed that he would prepare the end of month statements to be sent to customers which was done automatically through the computer and make up invoices, albeit with errors such that she had to supervise and double check the input. She insisted that much of his time on the computer observed by her was not work-related, that she saw no spreadsheets or data bases, but that he entered deposits and statements. Mr Rizzo's evidence confirmed the initial duties for which Mr O'Connell was employed. He stated that he and O'Connell were trained by the company who supplied the software; agreed that O'Connell produced invoices (3.7 daily) and statements, although it was a very simple, short process, simplifying what he had done manually previously, type a letter about once every two months and entered data. His estimate of the employee's maximum time daily on the computer was 40-60 minutes. 5 Her Worship held in deciding the issue before her: Applying a broad and common sense approach, the evidence was clear that the primary function of the employee was to release others for technical duties by performing basic clerical tasks, some courier work and cleaning, under the supervision and direction of the employer. His major and substantial purpose was not to operate a computer, and the strict and technical meaning of the words in Grade 3 should not be applied. The fact that some of his tasks were facilitated by the company's purchase of a computer, (and on the evidence I accept that they were minimal, and that he was allowed to gain skills on the computer in the company's time), did not alter his original function within the workplace. ... Mr O'Connell's correct classification was at all times Grade 5. Any underpayments as conceded should henceforth be made good, including the breaches of the Annual Holidays Act, 1944. 6 The Court has been assisted by carefully made submissions by both counsel, Mr R C Cooley for the applicant and Mr S B Benson for the respondent. Each counsel provided, in accordance with directions made, written submissions which were supplemented at the hearing before us today. In brief, counsel for the applicant submitted that the major and substantial purpose test should not be the basis upon which the proceedings are determined, rather they should be dealt with on the basis of applying the usual approach to the interpretation of documents or instruments; that is, where the words used in the award are clear and unambiguous the court must give such words their ordinary and natural meaning. 7 Further, when one considers the relevant provisions, the terms of the Award are comparatively clear and, when the appropriate approach to construction is applied, lead to a conclusion that her Worship's decision contained relevant error; the stated case should be answered in the affirmative. In particular, it was submitted that the fact Mr O'Connell had performed clerical duties as well as "computer operator" duties, for which he had the necessary skills, gives rise to his classification as a Grade 3 clerk. 8 Mr Cooley further submitted: The proper approach it is submitted, is to simply interpret the plain meaning of Clause 9 of the Award with reference to duties entailed in the position held by Mr O'Connell. If it can be said that:- (i) the employee performed clerical work; and (ii) the employee possessed the necessary skills as a computer operator; and (iii) the employee was required to possess and use his skills as a computer operator in carrying out a necessary or required function of this employment; and (iv) the employee did not fall within the definition of Grades 1 and 2, then the employee should be regarded as a Grade 3 clerk. 9 Counsel for the respondent submitted inter alia that the industrial magistrate correctly applied the major and substantial test in order to determine the true nature of the employee's employment. The complainant in the proceedings below failed to prove that the employee was employed in the classification of computer operator or was classified as a computer operator and thus was not able to sustain a case which would have permitted the applications to succeed. The submission based on the major and substantial test was elaborated in meticulous detail by Mr Benson. 10 Counsel for the respondent also placed some emphasis upon the history of the Award and helpfully took the Court in a detailed way to the judgment, and the consideration therein, of Dey J in Re Clerks (State) Award [1978] AR (NSW) 724. In summary, it was submitted that there was no error of law in applying "the major and substantial" test to the work performed by the employee. The finding of her Worship that the employee failed to possess the necessary skills to be classified as a computer operator did not involve error of law and was open to be so found on the evidence. The employee the subject of the proceedings at first instance was not classified as a "computer operator" and should not therefore be classified as a Grade 3 clerk under the relevant Award. 11 In reply, counsel for the applicant emphasised that although the term "computer operator" is not defined in the Award, regard should be had to its ordinary and natural meaning. As extrinsic material may be used in certain defined situations, including reference to the history and context of the making of an industrial award, it is particularly relevant to note that the terminology used from the inception of the Award should not be considered as remaining static in the sense that it should be taken to include later developments in technology and the like. Issue was also taken as to the way in which the respondent had approached the history of the Award's provisions. Further, it was submitted that the "principal function" approach was not germane to a determination of these proceedings. 12 We accept generally the submissions of the applicant in these terms: Put simply the ["major and substantial"] test is used to determine the application of awards rather than a person's classification or grading, within a particular award. A person's classification or grading assuming the person is covered by the award, is to be determined upon the basis of the definitions provided within the award upon the construction achieved through the use of ordinary principles of interpretation. Where the words used in the Award are clear and unambiguous the Court must give to the words used their ordinary natural meaning, applying the normal principles of interpretation ( In Re Clothing Trades Award (1950) 68 CAR 597). Naturally the various clauses in the award must be read, not entirely divorced from their context, but as part of the whole instrument ( Metropolitan Gas Company v The Federated Gas Employees' Industrial Union (1924) 35 CLR 449 at 455). When one looks at Clause 9 of the Award, with a view to its construction, it will be seen that its terms and definitions are comparatively clear. It is apparent when one views the clause as a whole that it provides an incremental form of defining or categorising the various groups or grades, of employment. 13 We therefore do not accept that the issue raised in these proceedings is resolved, as counsel for the respondent contended, by the application of the major and substantial test discussed in judgments such as that of Sheldon J in Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 at 19. However, the submissions of the applicant earlier referred to are subject to another important consideration arising from the need to interpret the subject provisions in context. That is, the need, in appropriate cases, to interpret a word or phrase on the basis that its meaning is to be defined from its context. See, for example, Pearce and Geddes Statutory Interpretation in Australia, 4th edition, 1996, at page 99: [4.14] Although usually stated separately, the noscitur a sociis rule reflects the same philosophy as the general approach of reading an Act as a whole. When writing, a person assumes that a reader will not read the document word by word but will look at whole phrases or sections. Stamp J in Bourne v J Norwich Crematorium Ltd [1967] 1 WLR 691 at 696 put it thus: Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 376 where Toohey and Gaudron JJ said: The principles of construction embodied in the Latin expressions ejusdem generis and noscitur a sociis favour the construction of general words by reference to more particular matters dealt with in the same provision. 14 We consider that the phrase "computer operator" which appears in the classification Clerk Grade 3 must be construed in this way so that it does not follow that the term "computer operator" is to be construed as including any clerical employee performing Grade 4 or Grade 5 duties in the course of which, or ancillary thereto, he or she uses a computer or word processing program. 15 The same result may be reached by considering this issue in terms of the connotation/denotation dichotomy referred to, for example, in the judgment of the High Court in Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 as discussed in Pearce and Geddes at page 92. It was held in that case that although a word or phrase may be interpreted on the basis that, whilst the connotation of a word will be fixed, its denotation may change with changing technology. However, that approach depends upon the Court finding that the particular approach to construction applies in the instant case. The Court of Appeal held in Wilson v Commissioner of Stamp Duties (1998) 13 NSWLR 77 that the meaning of the phrase, "motion picture film" remained fixed notwithstanding changes in technology; Kirby P coming to that view because, inter alia, the language was inapt to refer to the new technology and by Priestley and McHugh JJ A for reasons which included the consideration that the phrase was not a term of common usage used interchangeably with other more contemporary phrases. 16 We consider that both of these considerations are in point here to demonstrate that the "drafter" of the provision did not intend that the phrase "computer operator" would refer to all persons who might in the future use computers in their work. It is not necessary in these proceedings to define precisely the scope of the relevant phrase. It is sufficient to observe that it does not apply to the present circumstances. 17 Finally, we observe that, although we have reached the conclusion in this matter without the need to refer to the history of the relevant provisions, the conclusion reached is entirely consistent with the history set out in the judgment of Dey J in Re Clerks (State) Award [1978] AR (NSW) 724, the award made by his Honour and the reasons his Honour gave for the making of the award in relevant respects. 18 The application by way of stated case must fail. We answer the question in the stated case, which was - The matter to be determined by the Commission in Court Session is whether my decision was erroneous in point of law, in the negative. 19 We order that the applicant pay the respondent's costs of these proceedings and remit them to her Worship to deal with in accordance with the answer we have given. ________________________ 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.