Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by the New South Wales Fire Brigade Employees' Union of a dispute with New South Wales Fire Brigades re non payment of BA-Hazmat allowance to member [2007] NSWIRComm 1033 NOTIFIER: PARTIES: New South Wales Fire Brigade Employees' Union RESPONDENT New South Wales Fire Brigades FILE NUMBER(S): 3456 of 2006 CORAM: Stanton C Industrial dispute - application of award allowance - whether employee on light and alternate duties attached to BA/Hazmat section - medical restrictions - award interpretation - plain and ordinary meaning of actual words used - consequence of construction contended by Union. CATCHWORDS: Held, employee not attached to BA/Hazmat section - order sought refused - matter concluded. LEGISLATION CITED: Industrial Relations Act 1996 Bryce v Apperley (1998) 82 IR 448 City of Wanneroo v Holmes (1989) 30 IR 362 CASES CITED: Cole v Department of Youth Services (1987) 7 NSWLR 541 New South Wales Fire Brigade Employees Union and New South Wales Fire Brigades [2003] NSWIRComm 55 New South Wales Fire Brigade Employees Union and New South Wales Fire Brigades [2007] NSWIRComm 60 Zoological Parks Board of New South Wales v Australian Workers Union (2004) 135 IR 56 HEARING DATES: 3 May 2007 DATE OF JUDGMENT: 21 June 2007 NOTIFIER: Mr K Bolwell, New South Wales Fire Brigade Employees' Union LEGAL REPRESENTATIVES: RESPONDENT Ms T Anderson, of counsel for Director of Public Employment and Commissioner of NSW Fire Brigades Instructed by: Mr S Henderson DECISION: - 19 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : STANTON C 21 June 2007 Matter No. IRC 3456 of 2006 Notification under section 130 by the New South Wales Fire Brigade Employees' Union of a dispute with New South Wales Fire Brigades re non payment of BA/Hazmat allowance to member DECISION [2007] NSWIRComm 1033 1 This matter was subject to compulsory conference proceedings on 16 November 2006 following notification of a dispute by the New South Wales Fire Brigade Employees' Union ('the Union') pursuant to s130 of the Industrial Relations Act 1996. 2 Mr G Maniatis appeared for the Union. Ms T Anderson of counsel appeared for the Director of Public Employment by his agent, the Commissioner of NSW Fire Brigades ('the respondent') with Mr S Henderson. 3 The dispute concerned the non-payment of the BA/Hazmat allowance applicable under cl 6.6.5 of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 ('the Award') to Senior Firefighter Dives (SFF Dives) while he was undertaking a period of light and alternate duties within the Newcastle BA/Hazmat section following a work related injury. Clause 6.6.5 of the Award relevantly states: The BA/Hazmat Allowance set at Item 5 of Table 3 of Part D, per week, for Firefighters and Officers who are qualified for and attached to the BA/Hazmat sections at Sydney, Newcastle or Wollongong. 4 A further compulsory conference convened on 6 December 2006 failed to resolve the dispute and a Certificate of Attempted Conciliation was subsequently issued. The following directions were also made: 1. Union to confer with the respondent concerning a draft Statement of Agreed Facts by close of business on 21 December 2006; 2. Union to file: a) Statement of Agreed Facts b) draft orders sought c) outline of submissions by the close of business on 22 January 2007; 3. The respondent to file and serve its response by the close of business on 12 February 2007; 4. Union to file its reply, if required, by the close of business on 19 February 2007. 5. The matter is set down for hearing at 11.00am on Monday, 26 February 2007 at 237 Wharf Road Newcastle. 5 The hearing date was subsequently vacated at the request of the parties and the matter was rescheduled for hearing on 3 May 2007. Mr K Bolwell appeared for the Union and Ms Anderson appeared for the respondent with Mr Henderson. 6 The Newcastle BA/Hazmat Section is, for certain operational reasons, co-located at the Newcastle Fire Station ('Station 260') in Cooks Hill. According to the respondent, the Section is separately funded through its Hazardous Materials Response Unit Cost Centre. 7 SFF Dives joined the respondent on 30 June 1989 as a firefighter recruit. He was subsequently permanently assigned and for the purposes of the Award, "attached to" Station 260. 8 Between December 2005 and February 2006, SFF Dives was absent on workers compensation. Between February and April 2006 he was placed on light and alternate duties at Station 260 undertaking office and project work. He also provided some assistance to inspectors. The respondent later realised SFF Dives was BA/Hazmat qualified and subsequently placed him in the Newcastle BA/Hazmat Unit to service equipment and undertake other duties consistent with his medical restrictions. He resumed normal duties at Station 260 on 8 April 2006. 9 The Union claimed SFF Dives was entitled to receive the BA/Hazmat allowance whilst undertaking the light and alternate duties within the BA/Hazmat Section and has sought an order to that effect. The respondent opposed the claim. 10 An agreed Statement of Facts was filed in the Registry on 31 January 2007: 1. The Newcastle BA/Hazmat Section of New South Wales Fire Brigade ("NSWFB") is located on the same site as the Fire Station at Newcastle ("Station 260"). 2. Mr Bradley Dives joined the NSWFB as a recruit firefighter on 30 June 1989. At all relevant times, Mr Dives: 2.1 wages and conditions were prescribed by the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 (352 IG 270) ("the Award"); 2.2 held the rank of Senior Firefighter ("SFF"); 2.3 was permanently assigned to Station 260 and, accordingly, was "attached to" (within the meaning of that expression in clause 6.7.3 of the Award) to Station 260; 2.5 was qualified to be "attached to" a BA/Hazmat section; 2.6 was recognised as a Qualified Rescue Operator by the State Rescue Board and, accordingly, entitled to be paid the allowance prescribed by 6.6.12 of the Award (because Station 260 is a Primary Rescue Station); 2.7 was qualified to operate a Major Aerial Appliance and, accordingly, entitled to be paid the allowance prescribed by 6.6.3 of the Award (because Station 260 has this equipment). 3. The Award was varied with effect from 6 March 2006 (361 IG 433) ... Prior to the variation of the Award, the relevant variations to clause 6, had been implemented by way of (the) Commission's ... Order 2005/25 with effect from 25 November 2005. 4. In October 2005, SFF Dives sustained an injury to his shoulder at work. This necessitated an operation to his shoulder. He submitted a workers compensation claim for the injury. The claim was provisionally accepted without dispute. 5. During the period from 11 December 2005 to 5 February 2006 inclusive, SFF Dives was absent on workers compensation. 6. During the period from 11 December 2005 to 5 February 2006 inclusive, SFF Dives was initially placed upon light duties at Newcastle F/S in a sedentary position. His role was to include project work, office duties and assisting the inspectors. It was then realised that SFF Dives was BA/Hazmat qualified and therefore he could be utilised in BA/Hazmat to service equipment etc. as long as the duties were consistent with the restrictions placed on his medical certificate. His medical restrictions from 06/02/06 to 04/03/06 were no lifting above 5 kg with left arm and from 05/03/06 the weight limit was increased to 10 kg. The duties he undertook at BA/Hazmat included: servicing airsets; repair of damaged airsets; periodic maintenance and testing of airsets, face masks and fully encapsulated suits; and data entry in the Hazmat database. He returned to his normal duties on A Platoon at Station 260 as from 8 April 2006. 7. SFF Dives was paid the allowances prescribed by clauses 6.6.3 and 6.6.12 for the whole of the period referred to in paragraph 6. He received the BA/Hazmat allowance of $25.89 per shift for eight shifts (two weeks) of this period, for a total of $207.12. For the balance of the pay periods approval was given for SFF Dives to be paid an additional amount equal to the difference between the total of those two allowances (i.e. the allowances prescribed by clauses 6.6.3 and 6.6.12) and the BA/Hazmat allowance. 8. SFF Dives had previously been rostered to undertake alternate duties at the Newcastle BA/Hazmat Section during the period from 22 April 2005 to 22 May 2005 (whilst recovering from an ear operation). For that period he was paid the BA/Hazmat allowance in addition to the Aerial and Rescue allowances. SUBMISSIONS For the Union 11 The Union contended that as SFF Dives was qualified to work in the BA/Hazmat Unit, he was therefore entitled to payment of the BA/Hazmat allowance for the duration of the light duties worked in that Unit. Mr Bolwell also tendered payslips for the pay periods 20 July 2006, 03 August 2006 , 18 January 2007, 15 March 2007 and 12 April 2007 that confirmed SFF Dives had received the BA/Hazmat allowance "for working in the Newcastle Fire Station, Hazmat section". 12 Mr Bolwell submitted there were three limbs to the Union's case. Firstly, the plain and ordinary meaning of the relevant Award provisions. Secondly, the reality of the type of work SFF Dives was undertaking while working in the BA/Hazmat Section and thirdly, the broader public policy considerations. No evidence was called by the Union. 13 Mr Bolwell submitted that awards must be interpreted in light of the rules applicable to all statutory instruments and referred to the decision of the Full Bench of this Commission in Bryce v Apperley (1998) 82 IR 448 where Hungerford and Schmidt JJ stated at 452: In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light. 14 Mr Bolwell submitted the decision of Boland J in New South Wales Fire Brigade Employees Union and New South Wales Brigades [2003] NSWIRComm 55 summarised the general approach of courts and tribunals to award interpretation where his Honour observed: In approaching the task of interpreting an award the starting point is the actual words of the award itself and their plain, ordinary English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley (1998) 82 IR 448 at 452. If the language of the award provision is clear and unambiguous and is consistent and harmonious with the other provisions of the award and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning even if it leads to a result that may seem inconvenient or unjust (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 305 per Gibbs CJ). Although he was concerned with statutory provisions, the observations of the Chief Justice apply with equal force to an award: Bryce v Apperley at 453. The Award Provisions 15 Mr Bolwell submitted there was an entitlement to the allowance sought, provided the employee was "qualified for and attached to" the relevant BA/Hazmat section in accordance with cl 6.6.5 of the Award: 6.6.5 The BA/Hazmat Allowance set at Item 5 of Table 3 of Part D, per week, for Firefighters and Officers who are qualified for and attached to the BA/Hazmat sections at Sydney, Newcastle or Wollongong. 16 Mr Bolwell contended there was no dispute between the parties that SFF Dives was qualified for BA/Hazmat work. Rather, the dispute was whether or not he was "attached to" the Newcastle BA/Hazmat section. In that regard, Mr Bolwell relied upon cl 6.7.3 of the Award which describes five situations where a Firefighter may be considered to be attached to a station, section or location: 6.7.3 The term "attached to" within this Clause shall include employees who are permanently assigned to the relevant station or section, Relieving Employees whose base station is the relevant station or section and who are performing duty at some other location, Relieving Employees with base stations elsewhere who are performing duty at the relevant station or section, employees who are permanently assigned to the relevant station or section but who are performing an Outduty at some other location, employees who are permanently assigned elsewhere but who are performing an Outduty at the relevant station or section but subject to subclauses 6.6.7, 6.6.8, 6.6.9, 6.6.10 and 6.6.11 shall not include employees who perform duty at the relevant station or section pursuant to Clause 9, Overtime. 17 Mr Bolwell stated the words in cl 6.7.3 were clear and unambiguous. SFF Dives met all of the conditions and requirements and he clearly fell within the scope of cl 6.7.3 of the Award: employees who are permanently assigned to the relevant station or section but who are performing an Outduty at some other location ... Nature of the Work 18 Mr Bolwell submitted the Union contended SFF Dives "was either relieving out of Newcastle Fire Station into Newcastle BA/Hazmat, or he was completing an Outduty from Newcastle Fire Station into Newcastle BA/Hazmat." He contended SFF Dives was "qualified for and attached to" the Newcastle BA/Hazmat section in accordance with cl 6.6.5 of the Award and relied upon two separate situations where SFF Dives may be considered to be "attached" pursuant to cl 6.7.3: relieving employees with base stations elsewhere who are performing duty at the relevant station or section; or employees who are permanently assigned elsewhere but who are performing an Outduty at the relevant station or section. 19 In the alternative, Mr Bolwell contended SFF Dives had been transferred to the Newcastle BA/Hazmat section but conceded there was no evidence to support that proposition and his payslips "clearly state he was based at Station No 260 Newcastle and not BA/Hazmat". In support of this proposition, Mr Bolwell referred to the Statement of Facts where it was agreed that SFF Dives had undertaken Hazmat work "including the repair of airsets, face masks and fully encapsulated suits and data entry in the Hazmat database". Accordingly, the allowance was applicable to the Hazmat work undertaken by SFF Dives as claimed. Public Policy Considerations 20 Mr Bolwell submitted that the respondent's ability to withhold payment of the BA/Hazmat allowance to SFF Dives or the applicable rescue and major aerial allowances in circumstances where firefighters work in those sections creates "a licence to cut Firefighters' wages when they are injured on the job", which may offend s 3, Objects of the Act, specifically: (a) to provide a framework for the conduct of industrial relations that is fair and just; and ... (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations. 21 Mr Bolwell claimed SFF Dives had performed an "Outduty" as defined under cl 4, Definitions of the Award and he dismissed the respondent's contentions that the term, "normally reports for duty" was obviously quite different to the term "permanently assigned" referred to variously in cl 6.7.3. The fact that SFF Dives was on light or alternate duties did not "expressly or impliedly" exclude him from the operation of cl 6.6.5 of the Award. 22 In conclusion, Mr Bolwell submitted the Union stood ready to negotiate a more systematic approach to the use of light and alternate duties within the context of award negotiations scheduled to commence later this year. For the Respondent 23 Ms Anderson submitted that in the respondent's view, the matter largely turns upon the term "attached to" contained in cl 6.7.3. of the Award. It was an agreed fact that SFF Dives was permanently assigned and qualified to be "attached to" Station 260 within the meaning of that expression contained in cl 6.7.3. No evidence was called by the respondent. 24 Ms Anderson stated it was also an agreed fact that SFF Dives was recognised as a qualified rescue operator by the State Rescue Board and accordingly he was entitled to payment of the rescue allowance prescribed by cl 6.6.12 of the Award because Station 260 was a primary rescue station and he was attached to that Station. Similarly, it was an agreed fact that SFF Dives was qualified to operate a major aerial appliance and accordingly was entitled to be paid the major aerial allowance prescribed by cl 6.6.3 of the Award because Station 260 had this equipment and he was attached to that Station. 25 Ms Anderson submitted SFF Dives was not entitled to be paid the BA/Hazmat allowance when working at Station 260 as that allowance was only payable if he actually was working in the Newcastle BA/Hazmat section. 26 Ms Anderson referred to the statement of facts where it was agreed that during the course of SFF Dives' light and alternate duties between 6 February and 3 April 2006, the respondent realised that he was BA/Hazmat qualified and could be utilised in the BA/Hazmat section to service equipment consistent with his medical restriction weight limit of 5 kilograms for his left arm during the period to 4 March and 10 kilograms from 5 March 2006. 27 Ms Anderson acknowledged the statement of facts had noted that between 6 February and 3 April 2006, SFF Dives was paid the prescribed major aerial appliance and rescue allowances for the whole of that period. He was also paid the BA/Hazmat allowance of $25.89 for eight shifts over his ten/fourteen day roster arrangement. For the balance of that period, he was paid an amount that represented the rescue allowance, the aerial appliance allowance and the difference between the total of those two allowances and the amount payable for the BA/Hazmat allowance. 28 Ms Anderson stated notwithstanding that SFF Dives had no entitlement to the allowance, he had received the BA/Hazmat rate for the period that was in dispute because the respondent had considered it appropriate to make up the difference between the total of the rescue and the major aerial appliance allowances and the BA/Hazmat allowance. 29 Ms Anderson stated none of the tendered pay slips relied upon by the Union fell within the period that was in dispute and "there's no evidence whatsoever as to the circumstances which caused the Hazmat allowance to be payable to Senior Firefighter Dives during those pay periods. It may well be that during those pay periods he was in fact performing an Outduty at the BA/Hazmat Section". 30 With reference to the fact that the allowance was paid to SFF Dives between 22 April and 22 May 2005 and for eight shifts between 6 February and 3 April 2006, Ms Anderson stated the payment of something by mistake for a short period did not constitute relevant evidence by any means: ... certainly if there was or had been evidence of it being a custom and practice when a person was working on alternate duties over a long period of time then my client (would) have needed to reconsider it's position. 31 Ms Anderson submitted it was an agreed fact that SFF Dives "was permanently assigned to Station 260 and, was 'attached to' (within the meaning of that expression in cl 6.7.3 of the Award) Station 260". Referring to the term "attached to" in cl 6.7.3, Ms Anderson said SFF Dives was never permanently assigned to the BA/Hazmat Section and contended the clause made no provision for a firefighter who was permanently assigned to both a fire station and a section. 32 With reference to the Union's contention that SFF Dives fell within the scope of cl 6.7.3 as an employee who was permanently assigned to Station 260 but was performing an Outduty in the Newcastle BA/Hazmat Section, Ms Anderson submitted the phrase "normally reports for duty" set out under cl 4, Definitions of the Award was obviously quite different to the term, "permanently assigned": "Outduty" means a period of duty performed by a Firefighter, not being a Relieving Employee, where the Firefighter either commences or ceases duty at a station other than the station where the Firefighter normally reports for duty. 33 It was the respondent's submission that an Outduty only arises in the context of performing relief duties and it was clear that SFF Dives was not relieving at the Newcastle BA/Hazmat Section. Moreover, an Outduty also involves a firefighter either commencing or ceasing duty at a station other than the station where the firefighter normally reports for duty. An Outduty "is not directed to the situation where somebody has got hurt and is unable to undertake their normal duties". Accordingly, Ms Anderson submitted that the Union's proposition that SFF Dives was continuously undertaking an Outduty between 6 February and 3 April 2006 was not sustainable, particularly given the agreed fact that he was permanently assigned to Station 260. 34 Ms Anderson submitted SFF Dives was unable to undertake his full duties at Station 260 and was similarly unable to undertake full duties within the BA/Hazmat Section if he was there to perform an Outduty due to his injuries and medical restrictions. SFF Dives was simply undertaking light duties in the Section and he commenced and ceased duty in that section. Ms Anderson contended that it was clear that while SFF Dives was undertaking light duties, "the relevant station or section to which he normally reported for duty was the BA/Hazmat Section". 35 Ms Anderson sought to test the Union's construction of the Award and referred to a recent decision of Grayson DP in NSW Fire Brigades Employees Union v NSW Fire Brigades [2007] NSWIRComm 60 where his Honour was required to determine concerning firstly, the proper construction of cl 7, Higher Duties and cl 17, Annual Holidays of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 and, whether and to what extent the Annual Holidays Act 1944 was applicable to firefighters. At [13], his Honour stated: Turning then to the Award, it is the respondent's contention that clause 7 (2) set out above makes it clear that payment of the minimum rate of pay for the classification in which higher duties are performed applies only to the period of relief in which the employee concerned is actually performing higher duties and further, that clause 7(2) is the sole provision within the Award dealing with the payment of a higher duties allowance. Were the words of the clause to be given other than their plain, ordinary English meaning (see City of Wanneroo v Holmes (1989) 30 IR 362; Bryce v Apperly (1998) 82 IR 448) it may, as Ms Anderson submitted, lead to a result where the respondent would be paying the higher duties allowance to one relieving employee on annual leave and at the same time, to another relieving employee actually performing the higher duties, a circumstance which on a proper construction of the provision could not have been intended. In that regard Ms Anderson relied upon the dicta of Mahoney J in Cole v Department of Youth Services (1987) 7 NSWLR 541 who said at 546: It is, of course, proper to test a construction by the consequence of it. 36 Ms Anderson submitted an Outduty was directed to the normal work situation where some relief was required and was not intended to apply where an employee was undertaking light or alternate duties. She asserted the practical effect of the Union's construction was that SFF Dives would receive a windfall: ... an employee who is unable to take the full range of duties in either Station 260 or BA/Hazmat Section would received a windfall by being placed on alternate duties in the BA/Hazmat Section. In other words, by not being able to perform a full range of duties at Station 260, and by being placed on light duties or alternate duties elsewhere, he would be entitled to receive the three allowances in full. He could keep the rescue allowance. He could keep the aerial appliance allowance and all of a sudden he would receive a windfall. Namely, he would receive the BA/Hazmat allowance, notwithstanding that he couldn't do the BA/Hazmat job in full. Reply 37 In reply, Mr Bolwell stated "the Brigade can be quite easily painted as an ad hoc organisation as far as it goes to paying allowances and other benefits available to firefighters". He referred to paragraph 7 of the agreed statement of facts that approval had been given to pay SFF Dives an additional amount equal to the difference between the rescue, major aerial appliances and the BA/Hazmat allowances. 38 Mr Bolwell submitted that prior to the hearing SFF Dives had confirmed his belief that he was a relieving employee in the BA/Hazmat Section. However, his zone commander had told him otherwise. 39 Mr Bolwell referred to the tendered payslips where in addition to the BA/Hazmat allowance, SFF Dives had in some circumstances received a relieving allowance for an Outduty where "he's not a reliever". It was the Union's view that in the event Ms Anderson's contentions concerning the operation of cl 6.7.3 were sustainable, the provision would be rendered meaningless. Moreover, this case was unusual because the fire station, a rescue fire station and a BA/Hazmat section were all located in the same building. 40 In response to Ms Anderson's contention that SFF Dives was unable to fulfil all of the required Newcastle BA/Hazmat Section duties due to his medical restrictions, Mr Bolwell submitted the Brigades had identified that he could undertake alternate duties in that section and it therefore follows that he was entitled to the allowance: We can't have Firefighters filling up breathing cylinders with the wrong material. We can't have people not checking Hazmat encapsulating suits incorrectly. It needs to be done properly. That deserves and requires training and that deserves and requires an allowance. 41 Ms Anderson further submitted that firstly, she understood that during the course of a telephone discussion, the zone commander had told SFF Dives that he was not a relieving employee within the meaning of cl 12 of the award. Accordingly, he could only have possibly performed an outduty. Secondly, the test that has been given approval by the Court of Appeal and was referred to by Grayson DP in NSW Fire Brigades Employees Union v NSW Fire Brigades is a proper test and "the ordinary person in the street would say somebody (who) can't do his full range of duties (should not be) getting paid more". Thirdly, in response to criticism that the respondent had reached a compromise by paying SFF Dives the difference between the total of the major aerial appliance and rescue allowances and the BA/Hazmat allowance, Ms Anderson concluded: It's unusual to get criticised simply because you try to come to a compromise that might assist in resolving a matter. He's never received anything less. All that was done was to cease the payment that was made by mistake. CONSIDERATION 42 Awards are statutory instruments and consequently they must be interpreted in the light of the rules applicable to such instruments. The Commission's power to interpret the provisions of an industrial instrument is found at s 175 of the Act: 175 Powers of Interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 43 The Commission has developed a distinctive body of jurisprudence concerning the relevant principles of construction to be applied when interpreting Awards and the approach is both settled and longstanding. The starting point of award interpretation therefore is to examine the terms of the award itself to find what the words mean in their ordinary and natural significance or, their clear commonsense English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley at 452. The plain and ordinary meaning of the actual words used in the Award is therefore a primary factor that the Commission must take into account. The principles stated by the Full Bench of this Commission in Bryce v Apperley were reaffirmed by the Full Bench in Zoological Parks Board of New South Wales v Australian Workers Union (2004) 135 IR 56, where at [43] it was held: 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 (NSW 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. 44 The Full Bench then went on to consider the ability of the Commission to have regard to the history of the relevant instrument in conjunction with an analysis of the plain and ordinary meaning of the words used stating at [44]: The construction of an award may include the history of the instrument in some circumstances. The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all. We note, in this respect, the observations of Walton J, Vice-President in Fox v GIO Australia Ltd (2002) 56 NSWLR 512, 120 IR 401 at [46] as follows: The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 45 Approaching award interpretation from that premise, the primary factor the Commission must take into account is the plain and ordinary meaning of the words used in the award, the history of the award and its surrounding circumstances. 46 There is agreement that SFF Dives was permanently assigned to Station 260 and therefore "attached to" that station within the meaning of that expression in cl 6.7.3. The Newcastle BA/Hazmat Section is located on the same site as Station 260 and it was also agreed that SFF Dives was qualified to be "attached to" a BA/Hazmat section. 47 SFF Dives was entitled to payment of the major aerial and rescue allowances on the grounds that he met the necessary qualifications governing their payment including the requirement that he was "attached to" Station 260, being a fire station accorded primary rescue station status with major aerial appliance capability. 48 There is no evidence before the Commission to support the proposition that SFF Dives had been transferred to the Newcastle BA/Hazmat Section. Rather, on the material before the Commission, SFF Dives was placed in the BA/Hazmat section "to service equipment etc. as long as the duties were consistent with the restrictions placed on his medical certificate" following a work related injury. 49 The nature of the light duties work SFF Dives undertook within the BA/Hazmat section included the service and repair of damaged airsets, the periodic maintenance and testing of airsets, face masks and fully encapsulated suits and database entry. There was also agreement that SFF Dives' medical restrictions included a prohibition on lifting above 5 kg with his left arm for the period 6 February to 4 March 2006 and 10 kg from 5 March 2007. 50 SFF Dives was first placed on light duties at Station 260 in a sedentary position to undertake project work, office duties and provide assistance to inspectors. He was only utilised in the BA/Hazmat Section to service equipment when it was realised that he was qualified to do so, subject to his medical restrictions. Clearly, the Union's claim will turn on whether SFF Dives was "attached to" the Newcastle BA/Hazmat Section within the meaning of cl 6.7.3 of the Award. 51 On the evidence before the Commission and within the plain and ordinary meaning of cl 6.7.3 of the Award, SFF Dives is not an employee who is permanently assigned to the Newcastle BA/Hazmat Section and nor can he be classified as a relieving employee whose base station is the Newcastle BA/Hazmat Section and is performing duty at some other location. 52 For its part, the Union vigorously contends SFF Dives was, within the plain and ordinary meaning of cl 6.7.3, "attached to" the Newcastle BA/Hazmat Section on the grounds that he was either a relieving employee with a base station elsewhere (Station 260) who was performing duty at the Newcastle BA/Hazmat Section or, in the alternative, was an employee who was permanently assigned elsewhere (Station 260) but was performing an Outduty at the Newcastle BA/Hazmat Section. 53 The Award restricts the performance of an "outduty" to a period of duty where the firefighter commences or ceases at a station other than the station where the Firefighter normally reports for duty. [emphasis added]. Clause 4, Definitions defines the relevant provision as follows: "Outduty" means a period of duty performed by a Firefighter, not being a Relieving Employee, where the Firefighter either commences or ceases duty at a station other than the station where the Firefighter normally reports for duty. 54 The term "normally reports for duty" contained in Clause 4 of the Award ordinarily infers the notions of regularity and general custom according to a rule or rules, whereas the expression "permanently assigned " referred to variously in cl 6.7.3 expresses a fixed and determined location of work. 55 Having regard to the principles of construction and plain and ordinary meaning of the actual words used in the Award, SFF Dives was not "attached to" the Newcastle BA/Hazmat Section by reason that he was a "relieving employee" nor was he "permanently assigned" at Station 260 and performing an Outduty at the nearby BA/Hazmat section. 56 The purpose of alternate and light duties is to facilitate rehabilitation and enable an injured worker to undertake appropriate work consistent with that worker's medical restrictions. In the Brigades' view, as Ms Anderson submitted without challenge: SFF Dives was not able to undertake his full duties at Station 260, nor was he able to undertake full duties within the BA/Hazmat Section if he was there to perform an Outduty because his injuries and medical restriction would not have allowed him to do so. 57 On the material before the Commission, SFF Dives' normal and regular place and location of employment while undertaking his alternate and light duties was the Newcastle BA/Hazmat Section. Accordingly, as SFF Dives "normally reports for duty" at the Newcastle BA/Hazmat Section, the plain and ordinary meaning of those words set out in cl 4, Definitions operate so as to prevent him from performing an Outduty as claimed by the Union. 58 It is also open to the Commission to test a construction by reference to its consequences: NSW Fire Brigades Employees Union v NSW Fire Brigades; Cole v Department of Youth Services (1987) 7 NSWLR 541. The degree of unfairness that would be perpetuated by the payment of an allowance to an employee who is clearly unable to fulfil all the inherent qualifications for its payment is supportive of the proposition that such payments would be an unintended and unlikely consequence of the operation of the provision and strongly mitigates against the construction sought by the Union. That unfairness would apply to firefighters generally and the Brigades alike. Put alternatively, the construction contended by the Union has such an unlikely consequence for the operation of the clause that it is doubtful that the parties, in framing the provision, intended it to apply where a firefighter was undertaking alternate duties as part of a rehabilitation program and, was unable to fulfil the inherent requirements of the position due to a medical restriction. 59 It is clearly inappropriate to construe an industrial instrument as having regard to the subjective intentions of the parties. Rather, the primary consideration in such matters is the plain ordinary meaning of the actual words used and the context in which those words are used. Moreover, the BA/Hazmat allowance applicable under cl 6.6.5 only became operative on 25 November 2005. No evidence or material was submitted to support any particular custom or practice aspects of its application to date, other than with respect to SFF Dives. 60 Having considered all of the material put before the Commission in this matter, it is my finding that the Commission should not intervene in Matter No IRC 3456 of 2006. The order sought is refused and this matter is now concluded. J D Stanton 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.