Industrial Relations Commission of New South Wales CITATION: ALHMWU v P & H Property Services Pty Limited [2005] NSWIRComm 1023 APPPLICANT ALHMWU, NSW Branch PARTIES: RESPONDENT P & H Property Services Pty Limited FILE NUMBER(S): 6531 of 2003 CORAM: Macdonald C CATCHWORDS: Dispute and Small Claims Notifications - Employee entitlements to certain allowances - factual contest - award interpretation principles applied - claims granted LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Zoological Parks Board of NSW and the Australilan Workers Union, NSW [2004] NSW IRComm 85 HEARING DATES: 06/01/2004; 06/02/2004 DATE OF JUDGMENT: 02/25/2005 APPLICANT Mr D McIlrea (union official) LEGAL REPRESENTATIVES: RESPONDENT Ms J Webster (barrister) DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER MACDONALD 25 February 2005 ALHMWU, NSW Branch and P & H Property Services Pty Limited Matter No IRC 6531 of 2003 Notification under section 130 by the ALHMWU, NSW Branch, of a dispute with P & H Property Services Pty Limited re failure to deduct union dues and failure to pay additional rates and allowances DECISION [2005] NSWIRComm 1023 1 The Australian Liquor, Hospitality and Miscellaneous Workers Union, New 'South Wales Branch ("the Union"), filed a dispute notification on 14 November 2003, against P & H Property Services Pty Limited ("the company"). The dispute notification was pursuant to section 130 of the Industrial Relations Act , 1996 (" the Act "). The subject of the dispute notification was two-fold: (a) Failure to deduct Union Dues pursuant to clause 7A of the Cleaning and Building Services Contractors (State) Award ("the Award"); and (b) Failure to pay Additional Rates and Allowances pursuant to clause 8(vi) Refuse Disposal and clause 8(vii) Toilet Cleaning, of the Award. 2 A Compulsory Conference was convened on 3 December 2003. In due course the only issue before the Commission was paragraph (b) above. 3 At a Report Back on 12 December, the Commission was advised that the parties were continuing their discussions. 4 In the new year, further Report Backs were held before the Commission on 1 April and 12 May. 5 On 28 May, the Commission held an inspection at Westfield shopping centre, Miranda. The purpose of the inspection was for the Commission to better understand the Union's claim on behalf of one its members, Mr William St Clair, who worked in the docks areas of the said shopping centre. The inspection was held without a court reporter and did not constitute an evidentiary proceeding. Both the Union and the company representatives were in attendance. On that same day, 28 May, the Union filed a "Notice to Produce and Particulars of Small Claim" (for its three members in question). A Certificate of Attempted Conciliation was issued by the Commission. 6 The Hearing took place on 1 and 2 June, 2004. The Union was represented by Mr D McElrea, industrial officer, who called the following witnesses: (a) William Henry St Clair (b) Catherine Rautahi-Dick (c) Tania-Kataraina Rapata (d) Louise Mary Wright The company was represented by Ms J Webster, barrister, who called the following witnesses: (e) Amrik Singh (f) John Robiero (g) Cvetanvka Kolevski (h) Merriel Lilly Charlotte Hares (i) John Sitkie BACKGROUND 7 This Hearing concerns an application by the Union for payment of certain allowances, contained within the Award, to certain of its members engaged by the Company and which members carry out their work at Westfield Shopping Centre, Miranda. The allowances in question are: toilet cleaning allowance and refuse disposal allowance. The toilet cleaning allowance is claimed on behalf of two members - Catherine Rautahi - Dick and Tania Kataraina - Rapata. The refuse disposal allowance is claimed on behalf of one member - William Henry St Clair. OUTLINE OF CONTENTIONS For the Union 8 The Union filed an Outline of Contentions in respect of both claims and contended as follows for the two allowances: Toilet Cleaning Allowance · The relevant clause of the Award is sub-clause 8(viii) Toilet Cleaning and its two paragraphs (a) and (b). · On a reading of the sub-clause 8(viii), the Union contended that the duties of the two members, were duties that included cleaning toilet cubicles and/or urinals and therefore the two members were entitled to the Toilet Cleaning Allowance. · The Union rejected the Company's assertion that the toilet cleaning allowance is only payable to a person cleaning a toilet bowl. The Union contended that the two members cleaned toilets in ablution facilities and that it was not necessary for a toilet bowl to be cleaned on a specific day in order for the toilet cleaning allowance to be payable per the Award. The Union relied upon a statutory and award interpretation rule to support its claim that the toilet cleaning allowance should be paid. Refusal Disposal Allowance · The relevant clause of the Award is sub-clause 8(vi) Refuse Disposal. · On a reading of sub-clause 8(vi), the Union contended that Mr St Clair was entitled to this allowance as Mr St Clair spent more than 50% of his time on refuse disposal. The Union also submitted however, that the test for being entitled to the refuse disposal allowance was not spending more than 50% of one's time on that duty, but that refuse disposal be the primary activity of the employee. For the Company 9 The Company filed an Outline of Contentions in respect of both claims, denying that the concerned members were entitled to an allowance as follows: Toilet Cleaning Allowance · The two concerned female employees were not required and did not perform the duties that they assert in their respective witness statements - and therefore did not clean any toilet cubicles. Further, their duties were not to clean any toilet cubicle. Refuse Disposal Allowance · The Company asserted that Mr St Clair spent less than 50% of his time on refuse disposal and therefore was not entitled to the allowance. · The Company rejected the Union's submission that Mr St Clair was entitled to this allowance if refuse disposal was his primary activity. CONSIDERATION 10 There are two matters for the Commission's consideration: (a) Payment of a refuse allowance; (b) Payment of a toilet cleaning allowance. REFUSE ALLOWANCE 11 The Union put two alternate submissions in support of its claim that its member, Mr William Henry St Clair, was entitled to payment of a refuse allowance. Both alternate submissions revolved around the term, "the major portion", which terms appears in Clause 8(vi) as follows: "(vi) Refuse Disposal - Employees engaged for the major portion of their time on refuse disposal, sorting or feeding of incinerators, furnaces, crushers or compactors shall be paid an addition allowance per day or shift as set out in Item 4 of the said Tables 5A and 5B." (NSW Ind Gaz - Vol 341, page 173 at 188) On the one hand, the Union submitted that " the major portion " refers to the length of time spent by an employee on carrying out the task of refuse disposal. Thus, if Mr St Clair spent more than half of his working day on the task of refuse disposal, then he was entitled to payment of the refuse allowance. The Respondent concurred with this submission but stated that Mr St Clair spent less than half of his working day on the task of refuse disposal. On the other hand, the Union submitted that even if Mr St Clair spent less than half of his working day on refuse disposal, then he may still be entitled to payment of the refuse allowance. This would be so where Mr St Clair carried out two or more tasks per day but the task of refuse disposal was the primary task. In this scenario, the refuse disposal task occupied the most working time in Mr St Clair's working day and that would mean that the refuse disposal task took up " the major portion " of the working day, amongst all of his tasks. This alternate submission required the Commission to interpret the meaning of the term, " the major portion ". 12 The Commission will firstly consider the amount of time that Mr St Clair spent working on the "refuse disposal" task. If Mr St Clair spent more than half of the working day on the refuse disposal task, then clearly he has spent "the major portion" of his working time on the task in question and would be entitled to the "refuse disposal" allowance. If, however, he spent less than half of the working day on the refuse disposal task, then whether he was entitled to the allowance would depend on the application of the principles of award interpretation to the meaning of the term: " the major portion ". Task Duration for Refuse Disposal Contested Factual Evidence 13 The Union's submission was that Mr St Clair spent more than half of his working day on the refuse disposal task. The Company rejected this claim and their following witnesses gave evidence on the point: Mr Branko Kolevski, Mr Amrik Singh, Mr John Robiero and Mr John Sitkie. 14 Mr St Clair filed a witness statement (exhibit 3) and gave oral evidence. His witness statement advises he works in four dock areas of the shopping centre - being Dock 1, Dock 7, the David Jones Dock and the Urunga Dock. To the best of his knowledge most of the refuse is disposed of via these four docks. Refuse disposal comes from a few sources - two food courts, other food outlets and the shops, within the shopping centre. He says that the Urunga Dock is where the refuse is processed in the large rubbish compactor or bale press. The Urunga Dock is his base for the day. He spends most of his working day there. His statement sets out, what appears to be a typical working day as to tasks and task time duration, and which takes in moving from dock to dock. There are frequent uses of the term "refuse" in describing his tasks for the day. However, there would appear to be some non- refuse tasks if it is accepted that "sweeping and hosing of docks or other areas" is not within the meaning of refuse disposal. 15 Mr St Clair's witness statement gives the idea of the meaning of the term, "refuse", when he describes his job as: (a) Pick up refuse from the dock floors or remove the refuse from whatever container it is in. (b) Transfer the refuse via a wheelie bin, if necessary. (c) Sort the refuse and place the refuse in a bale machine, if it is cardboard. Or if the refuse is non-cardboard, then place that refuse in a large rubbish compactor. The non-cardboard refuse consists of material such as food scraps, waste from food shops, packing materials, plastic bags and foam. So, the refuse is cardboard or non-cardboard. 16 From a reading of Mr St Clair's tasks and task time duration in his witness statement, it can be seen that he says he spent more than half of his working day on "refuse disposal". The Company's witnesses challenged this claim. 17 Firstly, there was the evidence of Mr John Sitkie, a consultant. It appears that Mr Sitkie was engaged by the Respondent on an unrelated matter. The Union heard of his existence on site, as it were, and asked him to look into the Union's claim for a "refuse disposal" allowance for Mr St Clair. This Mr Sitkie did. He interviewed Mr St Clair and arising therefrom, Mr St Clair signed a document, "JS1", stating that he only spent 2.5 hours per day on "refuse disposal" (" ... and the balance of 2.5 hours per day - approx is to attend to bailing of cardboard using the bailing machine "). ("JS1" is attachment one to the witness statement (exhibit 15) of John Sitkie). Arising out of cross-examination, it transpired that Mr St Clair had not written the statement ("JS1") that he had signed. The statement was written by Mr Sitkie. It was a transcription, not word perfect, but only few words different to correct grammar, said Mr Sitkie. The reason for the transcription is the self admission of Mr St Clair: " I have difficulty reading and writing " (exhibit 3, paragraph 6). As well, under cross-examination, Mr Sitkie said: " I find Mr Sinclair (sic, St Clair) probably - I will describe him without degrading the man, he is a simple man, his intellect would be below standard, below average. " (transcript, 1 June - page 80) The Commission's consideration of the foregoing evidence is that the Commission feels uncomfortable giving weight to this evidence of Mr Sitkie. The Commission's concern revolves around Mr Sitkie's own description of Mr St Clair as a simple man, a person of below average intellect. The Commission's concern is that this observation raises a question as to the appropriateness of Mr Sitkie (engaged as a consultant by the Respondent) drafting a document (that is against Mr St Clair's interest) and having Mr St Clair sign that document - knowing full well that in Mr Sitkie's view, that Mr St Clair is a simple man. The Commission is uncomfortable giving any weight to this area of evidence against Mr St Clair. 18 Another area of evidence used against Mr St Clair was his admission, under cross-examination, that he spent approximately two and a half hours a day in "refuse disposal" (transcript, 1 June - page 20). The Union did not ask any questions in re-examination. At the time he gave this answer (adverse to his own claim that he spent more than half the day on "refuse disposal"), it seemed to the Commission that Mr St Clair had shot himself in the foot, so to speak. But in light of the evidence that followed in the proceedings about the circumstances, discussed above, as to Mr St Clair signing a transcribed statement ("JS1"), the Commission is not now so certain about its immediate response to his adverse admission under cross-examination. 19 Mr Branko Kolevski filed a witness statement (exhibit 1) and was not required for cross-examination. His relevant evidence was that during the school holiday period in September/October 2003, he worked as the full time dockman relieving Mr St Clair. He worked three dock areas (Mr St Clair did four) and said it took up to a maximum of two hours to attend to all the cardboard refuse and operate the bailing machine and compactor, whilst performing Mr St Clair's duties. The Union's submission was that little weight should be given to this evidence. The reason advanced being that there was no evidence that the duties of Mr Kolevski were identical to that of Mr St Clair. The Commission notes that Mr Kolevski makes no reference to working in Dock 1, which Mr St Clair said he performed. Mr St Clair said he carried out "refuse disposal" on this dock but he also swept the security car park (non-refuse disposal work). Mr St Clair allotted himself ten to twenty minutes for Dock 1 work. Add this to Mr Kolevski's two hours claim and that leaves the task of "refuse disposal" still short of more than half of the day being required to be spent on "refuse disposal". Further to that Union submission, the Commission notes that Mr Kolevski said he was assisted in his work by others - the cleaner from level 3 OLD; Terry from the Food Court; Cveta Kolevski; the cleaner from level 1; the food court cleaner Terry also brought his own rubbish down during the day and sorted and disposed of all his rubbish himself. By comparison, Mr St Clair did all of the work by himself, without needing help from others. In assessing Mr Kolevski's witness statement, the Commission is struck by an obvious mathematical calculation. Mr Kolevski says he worked full time in Mr St Clair's job - this means a 7.5 hour day. He says that he would only spend a maximum of two hours to attend to "refuse disposal" tasks - although he does not actually use that term. This means that the remainder of the day (5.5 hours) is spent doing something else. From his witness statement, the only duties specifically named by him that would constitute something else are: hose and sweep Dock 7 (15 - 20 minutes); swept and mopped Dock 7 and David Jones Dock in the mornings (this seems to be in part a duplication of the hose and sweep Dock 7 above); clean up from the Urunga Dock a little mess around the base of the compactor which some shop tenant had missed when feeding rubbish into the compactor. (No time is given for cleaning up this little mess but the context suggest little time is involved). He gives two references to other tasks which are described as " I went about other duties ". But it appears to the Commission that these other duties can't be other than duties associated with dock work, otherwise these other duties would merit some nomenclature for being non-dock work. These other duties may well have only been sweeping - but in any event are not given significant status by Mr Kolevski. The mathematical calculation is that some 5.5 hours is for sweeping (and some hosing of no more than 15 - 20 minutes in Dock 7 included within this 5.5 hours). But the evidence about his sweeping is that there is little of it. This conclusion is based on the few specific references to the task of sweeping by Mr Kolevski. Further, this view that sweeping is a minor task in terms of time duration is further enhanced by Mr Kolevski's evidence that others do sweeping in the docks area. Thus, he says that " the shopkeepers were generally quite good about throwing their rubbish into the right containers or bins . There was little I had to clean " (emphasis added). Further, " In the mornings the car park sweeper operator Tony, swept all the docks with the sweeper machine. " And, " I always found the Urunga Dock to be clean and tidy in the mornings. The night crew cleaned this the evening before. " With 5.5 hours of non-refuse disposal time up his sleeve and little sweeping (with one hose down) to be carried out, within this 5.5 hours, the Commission wonders about the accuracy of the claim that he spent no more than two hours on "refuse disposal" tasks. Otherwise, the inference to be drawn is that Mr Kolevski has a lot of spare time on his hands. 20 Mr Amrik Singh gave evidence (exhibit 11) against Mr St Clair. He described himself as a "hands on" operator and thus is aware of the duties performed by Mr St Clair. He said that Mr St Clair would take no longer than three hours to perform his refuse disposal duties. The Union did not dispute this three hours assertion during cross-examination. The Union did clarify Mr Singh's general assertion that the shop tenants dispose of their own refuse at the Urunga Dock, to be only those tenants who had keys to the compactor dispose their own refuse. Mr Singh agreed that this number of tenants was restricted to four to six tenants. He agreed that there were some forty other shop tenants who did not have a key to access the compactor for refuse disposal. 21 Finally, Mr John Robiero gave evidence (exhibit 12) against Mr St Clair. He is employed as the Respondent's Senior Site Manager. He said that Mr St Clair would take 2.5 to 3 hours daily to complete his refuse disposal and compactor duties. The Union did not challenge this assertion, as to 2.5 to 3 hours, directly. Mr Robiero denied under cross-examination that he was so busy he only observed Mr St Clair at his job once a week. 22 In summary of the evidence as to the quantum of time spent on the task of refuse disposal by Mr St Clair, the Commission has to consider the competing claims of Mr St Clair on the one hand and on the other, that of Mr Sitkie, Mr Kolevski, Mr Singh and Mr Robiero. In considering the above, the Commission places no weight on the evidence of Mr Sitkie. The Union did not cross-examine Mr Kolevski who claimed that the task of refuse disposal took two hours. But as to this two hours duration, the Commission questions its accuracy for reasons given above. Mr Singh said that the refuse disposal task took no longer than three hours. This evidence was not challenged by the Union under cross-examination. Mr Robiero said the refuse disposal task took 2.5 to 3 hours daily and the Union did not challenge this evidence under cross-examination. The Commission is then left with the unchallenged evidence of Messrs Singh and Robiero that the task duration is 3 hours and 2.5 to 3 hours respectively. Contra this, is Mr St Clair's claim that the refuse disposal task took more than half the day. It is timely to point out that the duration of ordinary work for Mr St Clair was a 7.5 hour day. He states he spent more than half of 7.5 hours on refuse disposal - that is, more than 3.75 hours per day. The Respondent asserts that he does not spend more than half of a day on refuse disposal. (On the Respondent's case, Mr St Clair is entitled to the refuse disposal allowance if he spends the major portion of his time on refuse disposal. That is, the Respondent asserts that "major" means more than half of Mr St Clair's working day). Returning then to the summary of the competing evidence, the Commission can not find in favour of Mr St Clair's claim that he worked more than half of his day on refuse disposal. This is so because the Union failed to challenge the evidence of two of the Respondent's witnesses (Singh and Robiero). It may be the case that Mr St Clair spends more than half of his day on refuse disposal but in light of the Union not challenging those two witnesses (and there being no other factor to consider), then the Commission finds against Mr St Clair on the facts of the case. Award Interpretation 23 The Commission will now consider the sub-clause at issue, as to its interpretation and hence applicability to Mr St Clair's work. For ease of convenience, the sub-clause is reproduced below: "(vi) Refuse Disposal - Employees engaged for the major portion of their time on refuse disposal, sorting or feeding of incinerators, furnaces, crushers or compactors shall be paid an additional allowance per day or shift as set out in Item 4 of the said Tables 5A and 5B." 24 A Full Bench of the Industrial Relations Commission of New South Wales set out the relevant principles to be applied when interpreting industrial instruments: Zoological Parks Board of New South Wales and The Australian Workers Union, New South Wales [2004] NSW IRComm 85. Thus: "The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) V Delta Electricity [2003] NSWIRComm 135 at [44] -[46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used." 25 The Commission will now apply the foregoing principles of interpretation (the plain, ordinary meaning and context) to Mr St Clair's work. The key term for the Commission's consideration as to interpretation, is the meaning of: " the major portion ..." The Union submitted in the alternate, that even if Mr St Clair spent less than half of his working day on refuse disposal, then he may still be entitled to payment of the refuse allowance. This would be so where Mr St Clair carried out two or more tasks per day, but the task of refuse disposal was the primary task. In this scenario, the refuse disposal task occupied the most working time in Mr St Clair's working day and that would mean that the refuse disposal task took up " the major portion " of the working day, amongst all of his tasks. The Respondent opposed the Union's interpretation. The Respondent's case was that the refuse disposal clause was plain in its meaning on its face. The term, " the major portion ", was governed by a definite article: "the" - as opposed to an indefinite article "a" (as in "a major portion"). Accordingly, the use of the definite article meant that there could only be one only major portion and this would require Mr St Clair carrying out the refuse disposal task for more than 50% of his daily time. (Ms Webster for the Respondent also put an alternate submission about the interpretation of the refuse disposal clause - in the event that the Commission found that the refuse disposal clause was not plain in its meaning on its face but was ambiguous. The Commission will consider this alternate submission if the Commission finds the term in question to be ambiguous). On the Commission's reading of the term, " the major portion " (as it appears in the refuse disposal clause), the Commission finds that the term is not ambiguous. The Commission rejects the interpretation put forward by the Respondent that " the major portion " requires Mr St Clair work more than half of his day on the task of refuse disposal. The Respondent's submission requires that "major" (as in "major portion") means "majority". Thus the Respondent's case is that " the major portion " means that Mr St Clair spends the "majority" of his day on the task of refuse disposal. The Commission takes the view that the term in question, is as contended for by the Union in its alternate submission - that is, that the term, " the major portion " refers to the scenario of where Mr St Clair spends less than half of his working day on refuse disposal but this task is still his primary task, that is, the task that takes up most of his day. Having made a finding as to the meaning of the term in question, the Commission now needs to consider whether the task of refuse disposal was Mr St Clair's primary task - that is, took up most of his time compared to any other tasks he carried out. The Commission considered the amount of time spent by Mr St Clair on the task in question at paragraphs 13 to 22 above. The Commission found that the Union's claim that Mr St Clair spent more than half of his day on refuse disposal was not made out - given the uncontested evidence of Messrs Singh and Robiero. Their evidence was that Mr St Clair's refuse disposal task took three hours and 2.5 to three hours respectively. (The Commission notes that Mr St Clair worked a 7.5 hour day and that he had two fifteen minute tea breaks per the witness statement of Mr Robiero: thus half a day is 3.5 hours per day). The Respondent did not put on evidence that Mr St Clair had some other task that took up the most part of his day. The Respondent seemed content that Mr St Clair had said in evidence that he spent about 2.5 hours per day on refuse disposal and this assisted the Respondent's case that alleged he spent less than half of the day on refuse disposal and therefore he could not be entitled to the allowance. But this approach did not allow for the Commission agreeing with the Respondent's case that he spent less than half of the day on refuse disposal but the Commission then finding through an award interpretation analysis that Mr St Clair may still be entitled to the allowance in question on the basis that his refuse disposal task is his primary task (albeit that it took up less than half a day). The witness statement of Mr St Clair which set out his duties, does not (as far as the Commission can ascertain), list any task(s) of a non refuse disposal kind performed by him. The Respondent did not ask Mr St Clair in cross examination, what task(s) took up the remainder of his day based on the Respondent's claim that refuse disposal only took up 2.5 to 3.0 hours per day. Accordingly the Commission finds that Mr St Clair is entitled to the refuse disposal allowance given that his refuse disposal task represented his primary task/activity and it was the task he spent the most time on and therefore the major portion of his day. TOILET CLEANING ALLOWANCE 26 The Union made a claim for payment of a toilet cleaning allowance for two of its members: Catherine Rautahi - Dick and Tania Kataraina - Rapata. The Union's claim is made pursuant to clause 8(vii) of the Award, as follows: (vii) Toilet cleaning - At sites other than sites cleaned under contracts defined as New South Wales Government Sites Cleaning Contracts pursuant to subclause (vii) of clause 3, Definitions, employees whose duties include cleaning 1 to 10 toilet cubicles and/or urinals shall be paid an additional allowance per day as set out in Item 5 of the said Tables 5A and 5B. Where an employee's duties include cleaning more than 10 toilet cubicles and/or urinals, they shall be paid an additional allowance per day as set out in Item 5 of the said Tables 5A and 5B. Provided that: (a) This allowance shall not be payable where the duties of an employee in and around ablution facilities only involves periodic checking and reporting on levels of cleanliness and/or replenishment of supplies. (b) An allowance for cleaning toilets as prescribed by this subclause shall not apply to employees of contractors engaged to perform work in public hospitals. (NSW Ind Gazette - Vol 341, page 173 at 188) The Respondent contended that the two cleaners were not entitled to the toilet cleaning allowance because they were not required to clean any toilet bowl as part of their duties. In the alternate, the Respondent submitted that if the Commission found that the two employees were required to clean cubicles and/or urinals, then the two employees were still not entitled to the toilet cleaning allowance as their toilet cleaning duties only involved periodic checking and reporting on levels of cleanliness and/or replenishment of supplies in and around ablution facilities - per clause 8 (vii)(a). The Respondent brought the following witnesses to give evidence against the Union's claim - Ms Jai Min He, Mr Amrik Singh, Mr John Robiero, Ms C Kolevski, and Ms M Hares. Contested Factual Evidence 27 The Union represented two members and the Respondent's witnesses gave evidence as to one or both members. Accordingly, the Commission will deal with the contested factual evidence for each member to determine if either member cleaned toilet bowls, given that that is the criterion as far as the Respondent is concerned for being entitled to the toilet cleaning allowance. Catherine Rautahi-Dick 28 Ms Rautahi-Dick filed a witness statement (exhibit 4) and a statement in reply (exhibit 5). Her witness statement deposed that when she began as a cleaner with the Respondent, she was given instructions on her duties by Mr Singh. She claimed he gave a general instruction " to go into the toilets and clean them. " Relevantly, she also stated that her duties included working within a toilet cubicle - cleaning the walls and floors of the cubicle, the toilet bowl lid and the inside of the toilet bowl (removing human bodily waste). In her area of work, there are three toilets (having 18 cubicles in total) and a disabled toilet. 29 Ms Wright gave evidence (exhibit 9) in support of Ms Rautahi-Dick. She deposed she trained Ms Rautahi-Dick in toilet cleaning as recorded by the Commission in the previous paragraph. 30 Mr Singh gave evidence against her. He said he trained her around July 2002 on how to clean toilets. Further, he deposed he instructed her not to clean any soiled toilet bowl. The procedure for cleaning a soiled toilet bowl was to lock the cubicle door and call for Cveta Kolevski to come and clean the toilet. (exhibit 11) 31 Ms Jai Min He gave evidence (exhibit 2) against Catherine Rautahi-Dick. The former said she was trained by the latter who allegedly said not to clean the toilet bowl but to lock the cubicle and call Cveta Kolveski. 32 Mr John Robiero gave evidence (exhibit 12) against Catherine Rautahi-Dick. He said she has not been required to and has been instructed by him not to clean any toilet bowls. If she finds any excrement or other similar mess on the bowls she is instructed to call Cveta Kolevski to clean the toilets. 33 Ms Cvetanvka Kolevski gave evidence (exhibit 13) against Catherine Rautahi-Dick. Ms Kolevski deposed she is a full time cleaner and has worked at the shopping centre for ten years. She received a toilet allowance for cleaning dirty bowls in the ladies toilets. She is not aware of any other person cleaning the dirty toilets. Ms Kolevski deposed that whenever Catherine Rautahi-Dick found a dirty toilet she would call Ms Kolveski over the radio to come and clean it. She said that Catherine Rautahi-Dick followed procedure which was to lock the cubicle and wait for Ms Kolveski to clean the toilet. Ms Kolveski stated that she has never known Catherine Rautahi-Dick to clean any dirty toilet. 34 Ms Merriel Lilly Charlotte Hayes gave evidence (exhibit 14) against Catherine Rautahi-Dick. She had been a director of the Respondent up until mid 2003. She deposed as to a meeting held with Catherine Rautahi-Dick about the end of June 2003 to discuss paying a toilet allowance to Catherine Rautahi-Dick who claimed she was cleaning the toilets. In attendance, as well, were John Robiero, Mark Lindsay and Julie Power. The meeting was short and dealt with Catherine Rautahi-Dick's claim that she had cleaned toilets that week and wanted to claim a toilet allowance. She deposed that Catherine Rautahi-Dick was not entitled to a toilet allowance because it was not part of her job description, but would pay Catherine Rautahi-Dick for those dates she had cleaned the toilets. No dates have yet been provided, she said. In any event, she stated that an agreement was reached that in future if anyone cleaned a toilet (other than those employees whose job description was to clean the toilets), then that cleaner would first obtain approval from certain named personnel. In considering the foregoing evidence, regard is to be had to the June 2003 meeting. At that meeting, the Respondent advised that Ms Rautahi-Dick was not to clean toilet bowls thereafter. As she complied with this direction, then she is not entitled to a toilet cleaning allowance post June 2003. As to pre June 2003, the Respondent asked for proof (name of days on which she cleaned toilet bowls) and she would then be paid for those days. Apparently, Ms Rautahi-Dick has not yet provided proof of having cleaned toilet bowls pre June 2003. The Commission wonders what proof is required by the Respondent. The Commission will now consider the facts surrounding the other member's claim for a toilet cleaning allowance and having done so, will then consider the submissions going to award interpretation in respect of the toilet cleaning allowance clause. Such an approach is required in order to evaluate whether Ms Rautahi-Dick (and the other member) is then entitled to the toilet cleaning allowance based on award interpretation principles. Tania Kataraina - Rapata 35 Ms Rapata also made claim to payment of the toilet cleaning allowance. Her witness statement (exhibit 6) advised she had formerly been employed by the Respondent from 23 September 2002 until 21 March 2004. She deposed she cleaned female toilets having about 18 cubicles. Her toilet duties, inter alia, went to cleaning toilet bowls - excrement from the bowl and for example, urine from the toilet seat. 36 Mr John Robiero gave evidence (exhibit 12) against Ms Rapata. Mr Robiero deposed that Ms Rapata " is not required to and has been instructed not to clean any toilet bowls " - (paragraph 18). This quote is different to the deposition given by Mr Robiero about the other cleaner in question - Catherine Rautahi-Dick. He deposed about Catherine Rautahi-Dick the same as for Ms Rapata but added "by me". Thus he deposed about the instructions given to Catherine Rautahi-Dick as being: " is not required to and has been instructed by me not to clean any toilet bowls ." - (paragraph 8) (emphasis added) He goes on to say that Ms Rapata upon commencement with the Respondent, underwent full training with Rebecca Hunter. This person was not called as a witness and he did not name himself as her trainer. He stated that if Ms Rapata found excrement or other mess in the toilet bowls, she was instructed to call Shirley Estrada or one of the other girls whose job it is to clean the toilets. Neither Shirley Estrada or one of the other girls were called to give evidence against Ms Rapata. Attached to his witness statement was a copy of Ms Rapata's job description ("JR2"). 37 Ms Rapata filed a statement in reply (exhibit 7). She deposed she had never seen her job description ("JR2") " before in my life ". The Commission notes as to "JR2" that it is not personalised in any way, as being the job description of Ms Rapata. It appears to be a standard document that would be handed over, if at all, to any employee whose duties would be the subject of "JR2". The only specific reference to toilets in "JR2" is under the heading of, "Areas of Responsibility": "2. Service toilets, including disabled, throughout the day, also replenish these toilets with paper. Parenting Rooms to be check (sic, checked) regularly until toilet detailer commences duty. " There is no direction within "JR2", reflecting the Respondent's contention, that toilet bowl cleaning is not part of the duties. Ms Rapata, in reply, deposes she is not even sure who Shirley Estrada is and she has never been instructed to lock the cubicle if there is excrement on the wall of the cubicle. She never had to scrub excrement off the walls anyway but did have to scrub graffiti off the walls. She stated she had never been instructed to call another cleaner if there was excrement in the bowl. She first became aware of the policy to call certain cleaners if a bowl needed cleaning, at a union meeting held late 2003. As for Rebecca Hunter's training, she deposed that she followed Ms Hunter around for one shift and then started work, the very next day, by herself. Under cross-examination, Ms Rapata said her work went to cleaning the toilet bowl, the toilet cubicle and the toilet facility. She was challenged on her claim in her witness statement that she scrubbed excrement from the toilet but Ms Rapata said that she did so and every day since employed. - (transcript, 1 June - pp 44 and 45) In considering, the foregoing evidence, the Commission finds that Ms Rapata cleaned toilet bowls as part of her duties and did so every day since she began her employment with the Respondent. In finding that way, the Commission has had regard to: · No witness having a direct working relationship with Ms Rapata, was brought forward by the Respondent to disprove Ms Rapata's filed witness statement and oral evidence. Mr Robiero's evidence was indirect as to her duties. · The job description "JR2", which was provided by the Respondent, was said to be the job description for Ms Rapata. To the extent that the Respondent relies upon "JR2" to assist its case, in some way, it has to be noted that Ms Rapata gave evidence that she had not seen this document before. The Respondent brought no evidence to prove that "JR2" had been provided to Ms Rapata before the commencement of these proceedings. Irrespective of the foregoing, the Commission is not aware of how "JR2" assists the Respondent's case, (even if Ms Rapata had knowledge of "JR2"). Thus, "JR2" does not say that Ms Rapata (or any employee engaged as a cleaner) is prohibited from cleaning toilet bowls. This document does say that one of the duties of Ms Rapata (or any employee engaged as a cleaner) is to: " Service toilets, including disabled, throughout the day, also replenish these toilets with paper ." The Commission notes that " Service toilets " is more than replenishing toilets with paper, given the inclusive term "also" appearing in the above quoted duty. Otherwise, " Service toilets " is not clarified or read down in any way by the remainder of "JR2". Ms Rapata gave evidence that she cleaned toilet bowls, toilet cubicles and the toilet facilities. The Respondent did not argue that the foregoing duties (in part or in whole) did not meet the meaning of: " Service toilets ". For the foregoing reasons, the Commission finds on the facts of the case that Ms Rapata met the criterion of the Respondent that an employee was entitled to the toilet cleaning allowance, if the employee cleaned toilet bowls. Accordingly, Ms Rapata is to be paid the toilet cleaning allowance. Award Interpretation 38 The Commission will now consider the sub-clause at issue, as to its interpretation and hence applicability to the two employees in question. For ease of convenience, the sub-clause is reproduced below: (vii) Toilet cleaning - At sites other than sites cleaned under contracts defined as New South Wales Government Sites Cleaning Contracts pursuant to subclause (vii) of clause 3, Definitions, employees whose duties include cleaning 1 to 10 toilet cubicles and/or urinals shall be paid an additional allowance per day as set out in Item 5 of the said Tables 5A and 5B. Where an employee's duties include cleaning more than 10 toilet cubicles and/or urinals, they shall be paid an additional allowance per day as set out in Item 5 of the said Tables 5A and 5B. Provided that: (a) This allowance shall not be payable where the duties of an employee in and around ablution facilities only involves periodic checking and reporting on levels of cleanliness and/or replenishment of supplies. (b) An allowance for cleaning toilets as prescribed by this subclause shall not apply to employees of contractors engaged to perform work in public hospitals. (NSW Ind Gazette - Vol 341, page 173 at 188) 39 A Full Bench of the Industrial Relations Commission of New South Wales set out the relevant principles to be applied when interpreting industrial instruments: Zoological Parks Board of New South Wales and The Australian Workers Union, New South Wales [2004] NSWIRComm 85. Thus: "The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used." 40 The Commission will now apply the foregoing principles of interpretation (the plain, ordinary meaning and context) to the two employees who seek the payment of the toilet cleaning allowance. The Respondent is opposed to the payment of the allowance, firstly, on the basis that the two employees do not clean the toilet bowls in the female toilet cubicles. In applying the above principles to sub-clause (vii), the first point to note is that there is no reference to the term, "toilet bowl". Secondly, the sub-clause contains the following references to the issue in question: "Toilet cleaning" and "toilet cubicles" in the opening paragraph and "toilets" in sub-clause (vii)(b). In assessing these terms in the context of the entire sub-clause, the Commission takes the view that the terms "toilet(s)" and "toilet cubicles" are interchangeable terms, so that references to "toilet(s)" are references to "toilet cubicles". The sub-clause in question, (that is, sub-clause (vii)) concerns the quantum of allowance payable to the cleaning of toilet cubicles and does not go to defining a "toilet". Again, in respect of context, the Commission has then had regard to the sub-clause immediately following the sub-clause in question. Thus: "(viii) Hygiene Maintenance Allowance". Within this sub-clause, the term "cleaning toilets" appears at: - (viii)(a) and (viii)(d)(2). The term "toilets" also appears in (viii)(d)(2). The use of these terms in sub-clause (viii), does not detract from the Commission's finding about sub-clause (vii), that is, that "toilet(s)" and "toilet cubicles" are interchangeable terms. Further, there is nothing in the wording or operation of these two sub-clauses to suggest that "toilet cleaning" in sub-clause (vii) is different, and therefore gives a different meaning to "cleaning toilets" in sub-clause (viii). 41 In summary, the Commission has found that the terms: "Toilet cleaning", "cleaning toilets" and "toilet cubicles" are interchangeable terms. The Commission has also found that the term "toilet bowl" does not appear in sub-clause (vii) - or, indeed, sub-clause (viii). This is the term, and hence criterion, the Respondent says has to be met before an employee can claim payment for the toilet cleaning allowance. The Commission, rejects the Respondent's criterion ("toilet bowl") for payment of the allowance. Accordingly, the Commission finds that an employee is entitled to the toilet cleaning allowance, if the employee cleans toilet cubicles. 42 Given the cleaning duties of the two employees in question, were they entitled to a toilet cleaning allowance? This question also addresses the alternate submission of the Respondent that the two employees were not entitled to the allowance, because they were allegedly only involved in periodic checking and reporting on levels of cleanliness and/or replenishment of supplies in and around ablution facilities - per sub-clause 8(vii)(a). 43 As to Ms Rautahi-Dick, the Commission finds that her duties as a toilet cleaner, included cleaning the toilet cubicle. It follows that the Commission rejects the Respondent's alternate submission. The Commission accepts the evidence of Ms Rautahi-Dick as to her toilet cubicle duties as set out in her witness statement: exhibit 4, paragraphs 12 and 17(v), (vi), (vii) and (ix). Paragraph 17(viii) of her witness statement sets out her toilet cubicle duty of cleaning toilet bowls. This is a duty prohibited by the Respondent from being carried out by Ms Rautahi-Dick, arising out of a meeting held in June 2003. Given the Commission's award interpretation finding as to the meaning of the toilet cleaning sub-clause, it does not matter whether Ms Rautahi-Dick cleans a toilet bowl or not, she is entitled to the toilet cleaning allowance. Further she is entitled to this allowance from the commencement of her employment with the Respondent. Clearly, she is carrying out toilet cubicle duties and is doing more than periodic checking and reporting on levels of cleanliness and/or replenishment of supplies in and around ablution facilities. If she was only doing the latter, she would be excluded from payment of the toilet cleaning allowance - pursuant to clause 8(vii)(a). However, she does more than what is entailed by that exclusion. The Commission also refers to her job description "JR1" which is attached to the witness statement of Mr Robiero (exhibit 12). "JR1" lists her "Area of Responsibility" which includes: " 2. Service-toilets, including disabled, ... replenish these toilets with paper. " Clearly, her job description entails more than replenishing toilet paper and this does not assist the Respondent's submission. The Commission therefore finds that Ms Catherine Rautahi-Dick is entitled to the toilet cleaning allowance and has been since she was employed as a cleaner engaged in toilet cleaning. 44 As to Ms Rapata, the Commission has already found on the facts that she met the Respondent's criterion of cleaning toilet bowls and was therefore entitled to the toilet cleaning allowance. The Commission accepts her evidence as to her toilet cubicle duties found in her witness statement: exhibit 6, paragraph 17 at (i) to (ix) inclusive. The Commission rejects the Respondent's submission that she only replenished toilet paper supplies. The Commission has already discussed above her job description statement and, the Commission finds it does not assist the Respondent's alternate submission, given that it is in the same terms as for Ms Rautahi-Dick as to "Service toilets". The Commission therefore finds that Ms Rapata is entitled to the toilet cleaning allowance and has been since she was employed as a cleaner engaged in toilet cleaning. Again, as for Ms Rautahi-Dick, it does not matter whether Ms Rapata cleans a toilet bowl or not, she is entitled to the toilet cleaning allowance - given the Commission's decision on the interpretation of the toilet cleaning allowance sub-clause. CONCLUSION 45 The Commission had before it two claims by the Union. The first claim is that Mr St Clair is entitled to payment of the refuse disposal allowance per sub-clause 8(vi). The Commission considered firstly as to whether Mr St Clair spent more than half of his daily work time on this task. If he did so then he would be entitled to the allowance given that that was the Respondent's contentions as to the criterion for being entitled to payment of the allowance. The Commission found that the Union had not made out its case that Mr St Clair spent more than half of his working day on refuse disposal. The Commission then considered the competing interpretation claims for the meaning of "the major portion". The Commission rejected the Respondent's interpretation and found in favour of the Union's interpretation. That is, "the major portion" refers to the primary task carried out by Mr St Clair and accordingly, as Mr St Clair's primary task was that of refuse disposal, then he is entitled to payment of the refuse disposal allowance. In finding that way, the Commission took the view that the meaning of the term "the major portion" was plain on its face as to its meaning and hence not ambiguous. The second claim put by the Union was for payment of a toilet cleaning allowance for its two members: Catherine Rautahi-Dick and Tania Kataraina-Rapata. The Respondent argued that neither employee was entitled to the toilet cleaning allowance which was interpreted by the Respondent as meaning that the toilet cleaning allowance is only payable if an employee cleaned toilet bowls. The Commission firstly considered the facts of the case and found on the facts that Tania Kataraina-Rapata met the Respondent's own criterion. The Commission found against Catherine Rautahi-Dick on the facts based on the Respondent's criterion. The Commission then considered the competing interpretation claims of the Union and the Respondent as to the meaning of the toilet cleaning sub-clause. The Commission rejected the Respondent's interpretation and found that the terms: "toilet cleaning", "cleaning toilets" and "toilet cubicles" are interchangeable terms and that therefore Catherine Rautahi-Dick is entitled to payment of the toilet cleaning allowance. In finding that way the Commission held that the toilet cleaning allowance sub-clause was plain on its face as to its meaning and hence not ambiguous. It also then followed that the other employee (Tania Kataraina Rapata) is entitled to the allowance given the Commission's finding as to this interpretation. The Orders to be made by the Commission, in consequence of this decision, will be finalised at a Report Back and Directions court listing to be held on Wednesday 2 March 2005 at 9.00 am. As well, the Parties had indicated to the Commission that there was an outstanding issue(s) that would await the handing down of this Decision and the same will be dealt with at that court listing date. A Macdonald 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.