Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. Waste Recycling and Processing Corporation, trading as WSN Environmental Services [2008] NSWIRComm 1108 APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT Waste Recycling and Processing Corporation FILE NUMBER(S): IRC 1270 of 2007 CORAM: Connor C CATCHWORDS: industrial dispute - waste recycling industry - interpretation of an industrial instrument - claim that an employee was incorrectly classified - claim for regrading of employee - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Cepus v. Heggies Transport Pty Limited (1994) 52 IR 123 Codelfa Construction Pty Limited v. State Rail Authority of New South Wales (1982) 149 CLR 337 CASES CITED: George A Bond and Company Limited v. McKenzie (1929) AR 498 Kingmill Australia Pty Limited v. Federated Clerks' Union of Australia (2001) 106 IR 217 Perisher Blue v. Australian Workers' Union (1999) 91 IR 274 HEARING DATES: 27/10/2008 DATE OF JUDGMENT: 12 November 2008 APPLICANT Ms Kristen Wall Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Maurice Baroni Clayton Utz DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 12 November, 2008 Matter No IRC 1270 of 2007 Transport Workers' Union of New South Wales and Waste Recycling and Processing Corporation, trading as WSN Environmental Services Notification of an industrial dispute under S.130 of the Industrial Relations Act, 1996 by the Transport Workers' Union of New South Wales re interpretation of an industrial instrument as to the entitlement of an employee to a higher rate of pay SUPPLEMENTARY DECISION [2008] NSWIRComm 1108 Preliminary 1 The Transport Workers' Union of New South Wales has lodged a notification of an industrial dispute with Waste Recycling and Processing Corporation, trading as WSN Environmental Services under the provisions of S.130 of the 1996 Industrial Relations Act. The issue in dispute involves the interpretation of an enterprise agreement covering WSN operations - the WSN Environmental Solutions Waste Recycling and Processing Corporation Waste Management Centres Agreement. In particular, the following two issues were in dispute between the TWU and WSN: (i) the employee attached to the Alexandria transfer station of WSN (Mr Stanley Okke) is engaged as excavator driver and the TWU argues that he is not being adequately compensated in his work; and (ii) whether or not an allowance provided in the enterprise agreement [$10.00 per week] for the drivers of vehicles with dual front steering should be paid to the WSN employees, ie whether a dual front steering means either two steering wheels or twin steer or axle. The S.130 notification came before me for proceedings on Thursday, 9 August, 2007, Tuesday, 21 August, 2007, Friday, 5 October, 2007, Wednesday, 28 November, 2007 and Friday, 8 February, 2008. 2 When both issues remained in dispute following conciliation, I issued the certificate of attempted conciliation required by S.135 and lodged it in the prescribed manner, programming the matter for arbitration. In accordance with S.146A, the TWU and WSN have completed a referral agreement in general terms for any industrial disputes between them to be dealt with in the State Commission. Ultimately, I was informed that the dispute between the parties was confined to one issue alone, ie that Mr Okke was not being adequately remunerated when he carried a load exceeding 20 tonnes. That claim involved an interpretation of the relevant provision in the enterprise agreement. I understood that the TWU claim involved could be mounted by the TWU as a small claim under Ss.378 and 380. 3 I was subsequently informed that the remaining matter had also been settled by conciliation and on Friday, 8 February, 2008 I granted the TWU leave to discontinue the proceedings in chambers in accordance with Rule 138. However, the TWU subsequently wrote to me and requested that I reconvene the proceedings. I set the matter down for a further mention on Friday, 18 April, 2008 and was informed by the TWU in those proceedings that both matters in dispute remained unresolved. The parties were to hold further discussions concerning the two matters and I was to reconvene the proceedings on Wednesday, 7 May, 2008. With the consent of WSN, the TWU sought that I vacate those proceedings and I set them down for a further mention on Tuesday, 27 May, 2008, Thursday, 12 June, 2008, Thursday, 10 July, 2008 and Thursday, 4 September, 2008. 4 Ultimately, the matter was programmed for arbitration on Monday, 27 October, 2008. Ms Wall represented the TWU in the hearing, calling Mr Okke to give evidence. Ms Wall also proposed to call Mr Grant Rogers, a TWU organiser, to give evidence in the proceedings but Mr Baroni, representing WSN in the hearing, opposed his evidence being led, essentially because he had received no prior knowledge that Mr Rogers would be a witness in the hearing. Although I indicated that I was prepared to permit Mr Rogers to give evidence (but entertain an application from Mr Baroni for an adjournment), ultimately, Ms Wall chose not to call him as a witness. And at the commencement of the proceedings on Monday, 27 October, 2008 Ms Wall confirmed that the TWU was no longer pursuing any claim with respect to the allowance for dual steering and it is confining its claim to the one issue - the appropriate grading for Mr Okke. The TWU Claim 5 Clause 7, Rates of Pay, of the WSN enterprise agreement provides for the classification of grades for the drivers of specific vehicles in use by WSN and provides for a Grade 6 operator as follows: "....ticketed and assessed for dozers up to 9D, graders, dump trucks, compactors, rollers, scrapers, excavator greater than 20 tonnes..." Mr Okke is presently classified as a Grade 4 excavator operator, viz: "....excavator greater than 10 tonnes and less than or equal to 20 tonnes..." 6 The TWU claims that the 320C excavator now operated by Mr Okke is an "...excavator greater than 20 tonnes..." in terms of Clause 7 and, as such, he should be classified at the Grade 6 level. The 320C excavator has been weighed at an authorised weighbridge and has a tear mass (weighed on its own) of 20,400 kilograms and the manufacturers specifications for the 320C excavator provide that it has an operating weight of over 22 tonnes. Mr Okke claims that when in the past he has operated an excavator greater than 20 tonnes at the transfer station he has attracted the Grade 6 level. But WSN argue that, in terms of Clause 7, for an excavator operator to attract the Grade 6 rate of pay he must be engaged in land fill work. Mr Okke's work is confined to work in the Alexandria transfer station of WSN. Clause 7 draws a distinction between work in a transfer station and land fill work. Conclusion 7 The Full Bench of the former State Industrial Court (Glynn, Cullen and Marks JJ) in Cepus v. Heggies Transport Pty Limited (1994) 52 IR 123 gave helpful guidelines for the interpretation of State awards (and, by extension, any industrial instrument), commenting (at pp.127 and 128) that: "…it is neither necessary nor desirable to put a judicial gloss on phrases in awards and determinations to decide if those phrases are ambiguous. The following principles emerge: (i) awards are not to be interpreted as strictly as statutes; (ii) awards are to be interpreted on the basis that the intention of the parties is gathered from the whole award: (iii) awards are often expressed in loose language used by the parties to meet their needs; (iv) situations which fall accidentally within the words of an award should not be regarded as coming within such award; (v) where the words used are susceptible of more than one meaning, the tribunal should place itself in the position of the award-making body in order to understand its intended meaning: regard may be had to evidence as to usage of the trade; (vi) the meaning to be attributed to an award term is to be found by reading it in its industrial context, recognising that awards are drawn up by those who cannot be expected to be perfectionists in legal drafting; (vii) it is desirable that, in interpreting an award, the tribunal should have the fullest knowledge of the circumstances under which it is made; (viii) the context of an award should be considered in the first instance and not merely when ambiguity might be thought to have arisen; (ix) the history of the award provision is relevant to the ascertainment of its meaning…" 8 Sometimes provisions in industrial instruments do not evolve over time to cover situations which arise subsequently. That appears to be the case with Clause 7. The Grade 4 operator position to which Mr Okke is presently classified is confined to excavators "...greater than 10 tonnes and less than or equal to 20 tonnes..." and, therefore does not strictly cover a 320C excavator which, at 20,400 kilograms, exceeds the limits for Grade 4 (marginally). That may be something which the TWU and WSN may address in future negotiations. But it does not mean that Mr Okke would be properly classified at Grade 6. 9 As Mr Baroni submitted in the hearing, Clause 7 is clearly divided into two distinct parts - transfer stations and land fill operations. The classifications of depot hand (Grade 1), packer and fixed plant operator (Grade 2), operator of loader/backhoe or excavator less than or equal to 10 tonnes (Grade 3), excavator greater than 10 tones but less or equal to 20 tonnes (Grade 4) and tub grinder shredder operator (Grade 5) are common to both transfer stations and land fill operations and they receive comparable rates of pay. But Grade 6 (and Grade 7 for the operator of large dozers) is confined to the land fill work alone. Mr Okke concedes in his evidence that he has only ever worked in the Alexandria transfer station. Consequently, Grade 6 simply has no application to him. 10 Ms Wall pointed out in her submissions that Mr Okke has been paid at the Grade 6 level in the past when he operated an excavator in excess of 20 tonnes in the transfer station. Such evidence does sometimes have some relevance in interpreting industrial instruments, notwithstanding Mr Baroni's argument to the contrary. I should not deny myself guidance from evidence of that type in interpreting a provision in an industrial instrument if I believe such information is needed to resolve some ambiguity in the industrial instrument [George A Bond and Company Limited v. McKenzie (1929) AR 498 at pp.503 and 504, Perisher Blue v. Australian Workers' Union (1999) 91 IR 274 at pp.283 and 284 and Kingmill Australia Pty Limited v. Federated Clerks' Union of Australia (2001) 106 IR 217 at p.229]. But such information is appropriate only where there is some ambiguity. There really is none in this case. Such evidence is not admissible to contradict the clear terms of the provision being interpreted. 11 Provisions in industrial instruments must always be primarily interpreted by looking at what is actually written, and the context in which it is written, and external information may only be relied upon where there is some doubt as to the ordinary meaning of the words used, ie they should be interpreted in the same manner as any other legal instrument. Ultimately, it is the literal meaning of the words on which I should rely. Those comments reflect the familiar statement by Mason J in the judgment of the High Court (Stephen, Mason, Aickin, Wilson and Brennan JJ) in Codelfa Construction Pty Limited v. State Rail Authority of New South Wales (1982) 149 CLR 337 at p.352, viz: "...The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking, facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although...if the facts are notorious, knowledge of them will be presumed..." My emphasis. 12 Clause 7 is in clear terms: it is black and white. Grade 6 is confined to land fill work. Because Mr Okke's work for WSN is confined to a transfer station I conclude that he is not entitled to receive remuneration at Grade 6 and I reject the TWU claim made on his behalf in that respect. P J CONNOR 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.