Industrial Relations Commission New South Wales Medium Neutral Citation: Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 Hearing dates: 18 July 2012, 23 August 2012, 9 November 2012, 10 December 2012, 17 September 2013 Decision date: 20 February 2014 Jurisdiction: Industrial Court of NSW Before: Backman J Decision: Orders In IRC 585 of 2012 the application for declaratory relief under s 154 of the Industrial Relations Act 1996 is granted. Catchwords: Application for declaratory relief - s 154 of the Industrial Relations Act 1996 - construction of sub-clause 23(f)(1)(2) of the Operational Ambulance Officers (State) Award 2010 - jurisdiction to grant relief - principles of award construction - analysis of evidence - orders Legislation Cited: Equity Act 1901 Industrial Relations Act 1996 Cases Cited: AFMEPKIU v Skilled Engineering Ltd [2003] FCA 260 Ambulance Service of NSW v HSU East [2013] NSWIRComm 48 Amcor Limited v Construction, Forestry, Mining and Energy Union and Others (2005) 222 CLR 241 Australian Workers' Union v Pasminco Australia Ltd and ors [2003] NSWIRComm 365 Codelfa Construction Pty Ltd v SRA (NSW) (1982) 149 CLR 337 Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 George A Bond & Co Ltd (in liq) v McKenzie (1929) 28 AR (NSW) 498 Kingmill Construction Pty Ltd T/A Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2012) 106 IR 217 Kucks v CSR Limited (1996) 66 IR 182 Perisher Blue Pty Ltd and Others v Australian Workers' Union (1999) 91 IR 274 T v The Commission for Children and Young People [2008] NSWIRComm 21 Warramunda Village Inc v Pryde (2002) 116 FCR 58; 113 IR 265; [2002] FCA 250 Texts Cited: Butterworths Australian Legal Dictionary, Butterworths, reprint 2003 Category: Principal judgment Parties: Ambulance Service of NSW (Applicant) Health Services Union East (Respondent) Representation: J H Pearce of counsel (Applicant) J Murphy of counsel (Respondent) File Number(s): IRC 585 of 2012 Judgment 1These proceedings concern an application for declaratory orders under s 154 of the Industrial Relations Act 1996 (the IR Act). The application is brought by the Ambulance Service of NSW (the applicant). The issue in the proceedings concerns the proper construction of cl 23(f)(i) of the Operational Ambulance Officers (State) Award 2010 (the Award). The clause, which provides for three discrete circumstances under which a weekly on-call allowance applies, and is payable, is set out in full below: (f)(i) The weekly on-call allowance as set out in Item 4 of Table 2A - Allowances of Part B, Monetary rates, shall apply in the following circumstances: (1) Employees required by the Service to be on call on a roster other than a modified hours roster; (2) Employees employed on or before 31 July 1988 who are required by the Service to be on call; or (3) Employees who are required by the Service to be on call as part of a modified hours roster where the weekly on call allowance applies by agreement between the parties. 2The focus of the application is on sub-clause 23(f)(i)(2). In essence the applicant seeks an interpretation of the sub-clause and a declaration as to the duty of an employer to pay and the right of the employee to be paid a weekly allowance under the sub-clause. This is best illustrated by setting out the terms of the declaratory orders sought by the applicant, which are as follows: Declaration The Court declares that on the proper construction of clause 23(f)(i) of the Operational Ambulance Officers (State) Award 2010 (the Award): (1) the duty of the Employer to pay weekly on call allowance is confined to: (a) an employee who is required by the Service to be on call on a roster other than a modified hours roster as defined in clause 4 of the Award; or (b) an employee employed on or before 31 July 1988 who was required by the Service to be on call on a modified hours roster on 31 July 1988 and has continued thereafter to be required by the Service to be continuously on call since 31 July 1988; or (c) an employee required by the Service to be on call on a modified hours roster where weekly on call allowance applies by agreement between the parties. (2) the right of an employee to be paid weekly on call allowance is confined to: (a) an employee who is required by the Service to be on call on a roster other than a modified hours roster as defined in clause 4 of the Award; or (b) an employee employed on or before 31 July 1988 who was required by the Service to be on call on a modified hours roster on 31 July 1988 and has continued thereafter to be required by the Service to be continuously on call since 31 July 1988; or (c) an employee required by the Service to be on call on a modified hours roster where weekly on call allowance applies by agreement between the parties. 3The applicant seeks to import into cl 23(f)(i)(2) additional words reflective of a construction which would be consistent with confining the employees referred to in the sub-clause to those employees employed on or before the operative date who were as at that date (and subsequently) working on a modified roster while being continuously on call. 4This matter has been delayed pending the results of an appeal lodged on behalf of Wayne Anthony Flint (Mr Flint) who sought leave of the Court to intervene in the proceedings. Mr Flint's application was refused: see Ambulance Service of NSW v HSU East [2013] NSWIRComm 48. The Court was not informed of the progress of the appeal. In the later part of last year I caused some enquiries to be made and was informed by the respondent to the substantive application that Mr Flint's appeal had been abandoned. 5The grounds and reasons relied upon by the applicant in support of its application are set out in full below: 1. A controversy exists as to the proper construction of clause 23(f)(i) of the Operational Ambulance Officers (State) (Award) 2010 (the award); 2. The controversy is an industrial matter within the meaning of the Industrial Relations Act 1996 (the Act); 3. The Court has jurisdiction otherwise in relation to this matter because (at least) the controversy is an industrial matter and/or by operation of s 130 or s 365 of the Act; 4. It is appropriate in these circumstances that the Court exercise its jurisdiction to the declaration sought; 5. The construction contended for in the application and expressed in the proposed Declaration is the proper construction of clause 23(f)(i) having regard to: (a) the ordinary and natural meaning of the words used in clause 23(f)(i); (b) the words used in clause 23(f)(i) when construed having regard to the subject matter and the text of the award as a whole; (c) the words used in clause 23(f)(i) when construed having regard to the context in which the clause was made by the Commission; (d) the evident purpose of the parties when clause 23(f)(i) was made by the Commission; (e) the manifest intention of the parties as indicated by the circumstances surrounding the making of clause 23(f)(i) including objective facts known to all parties; (f) the manifest intention of the parties as indicated by the historical circumstances surrounding the making of clause 23(f)(i); (g) the intention of the Commission at the time when the Commission awarded second tier wage increases in 1988; (h) the avoidance of inconvenience and/or injustice in construing the clause. JURISDICTION 6The provisions of s 154 of the IR Act are in the following terms: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 7In Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, Gibbs J observed that the power to make a declaration, "where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion ..." (at 435). The section under consideration by his Honour was s 10 of the Equity Act 1901 which empowered a Supreme Court judge to grant declaratory relief. Gibbs J (at 437 - 438) expanded upon his observations on the scope of the discretion when considering whether to grant declaratory relief: It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., should in general be satisfied before the discretion is exercised in favour of making a declaration: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought. Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v. Egbuna: After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration. 8In T v The Commission for Children and Young People [2008] NSWIRComm 21, Haylen J considered the nature and extent of the power and jurisdiction of the Court under s 154 of the IR Act. At [17] and [19] of the judgment his Honour said: 17 ... As already indicated, the provisions of s 154 of the Industrial Relations Act permits the Court to make binding declarations of right "in relation to a matter in which the Commission (however constituted) has jurisdiction". It is accepted that the words "in relation to" are broad and frequently used in legislation to permit courts to consider issues that are connected with an application. Similarly, the word "matter" has been broadly construed. For example, in relation to the accrued jurisdiction of the Federal Court the "matter" is the justiciable controversy between the parties and comprises the substratum of facts and claims constituting the controversy between them. A justiciable controversy is not limited to the form of the proceedings (Re Wakim; Ex parte McNally and anor (1999) 198 CLR 511 at 583 - 88) but rather is comprised of the whole of the controversy between the parties that is before the Court. There will be a single matter if different claims arise out of common transactions and facts or a common substratum of fact, notwithstanding that the facts upon which the claims depend do not wholly coincide (see Fencott v Muller (1983) 152 CLR 570 at 608): there is only one matter where different claims are so related that the determination of one is essential to the determination of the other (Fencott at 607). In Burgundy Royale Investments Pty Ltd and ors v Westpac Banking Corporation and ors (1987) 18 FCR 212, the Full Court of the Federal Court was faced with a position where the applicant's principle claim for relief was for damages pursuant to s 82 of the Trades Practices Act 1974 and otherwise and also sought a declaration that several agreements made between certain of the applicants and certain of the respondents were void. Some of the claims made in the Federal Court's accrued jurisdiction were alternatives to statutory claims under s 86 of the Act and therefore derived from the same subject matter but it was submitted that once the statutory claims had been held to be without foundation, there remained those substratum of facts common to them and the common law claims such that the common law claims were entirely severable. It was submitted that the court had no jurisdiction in the common law claims. The Full Court rejected that analysis and held that the jurisdiction of the court was to entertain and determine all claims constituting a "matter" whatever their ultimate fate. ... 19 While the respondent submitted that a superior court of limited jurisdiction, such as this Court, possessed no inherent powers it was accepted that there were a limited number of such powers available to courts established by statute, for example, the power to prevent an abuse of the court's processes. It is not fruitful to further examine this issue in light of the clear jurisdiction of the Court in this matter but it is to be noted that in Ainsworth and anor v The Criminal Justice Commission (1991-1992) 175 CLR 564 at 581, four members of the High Court stated that it was now accepted that superior courts have inherent power to grant declaratory relief and that it was a discretionary power which was neither possible nor desirable to fetter by laying down rules as to the manner of its exercise. That power was confined by considerations that marked out the boundaries of judicial power and so declaratory relief had to be directed to the determination of legal controversies rather than answering abstract or hypothetical questions. The persons seeking relief had to have a real interest and the relief would not be granted if the question was purely hypothetical. That statement of the High Court is general in its terms and does not analyse any different position that may apply to a superior court of limited jurisdiction but it may be expected that, just as courts of law are able to decide whether any statutory or regulatory provision applies in the course of dealing with a matter properly before it, the inherent declaratory power of a superior court of limited jurisdiction would be limited in the manner described in s 154 of the Industrial Relations Act. 9The jurisdiction of the Commission is described by reference to its functions as created by s 146 of the IR Act. Under s 146(1)(c) the Commission has the function of hearing and determining other industrial matters. "Industrial matters" is defined in s 6 of the IR Act. Sub-section (1) provides a general definition: (1) General definitionIn this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. 10A number of specific examples appear in the following sub-section (2), however it is not necessary in my view to refer to them. The application seeks declarations concerning the duty of the employer (the applicant) and the right of an employee (represented by the respondent union) with regard to the conditions of employment of those employees in the Ambulance Service's industry. This should be sufficient to establish the existence of the requisite industrial matter for the purpose of conferring jurisdiction upon the Court to determine the application brought under s 154. Moreover, as I explained in my judgment refusing Mr Flint leave to intervene in the proceedings, the respondent at the commencement of the substantive proceedings advised the Court that it neither supported the substantive application nor opposed it. On behalf of Mr Flint it was submitted that it was "quite clear" that the respondent was not a proper contradictor. On the third day of hearing however the position changed and the respondent informed the Court that acting upon advice it had received in the interim period it now actively opposed the claim for declaratory relief. 11In T v The Commission for Children and Young People, Haylen J referred to the broad construction by the authorities of "matter" as it appears in s 154. His Honour proffered the example where "matter" is the justiciable controversy between the parties comprising the facts and claims constituting the controversy between them (at [17]). In Warramunda Village Inc v Pryde (2002) 116 FCR 58; 113 IR 265; [2002] FCA 250, Finkelstein J, considered the meaning of the word "right" in the phrase, "declaration of right", and said (at [76]): In other words, a court will be declaring the rights of parties when they bring forward for resolution a justiciable controversy, but not when the court is being asked to give a purely advisory opinion involving no present dispute. 12In these proceedings the applicant relies on the existence of a controversy concerning the true meaning of cl 23(f)(i) of the Award. An affidavit of Noel Quinn, a senior Industrial Relations specialist in the employ of the applicant, sets out the facts underpinning the controversy. Mr Quinn referred to an unnamed paramedic employee who in mid-2011 made a claim for payment of the weekly on-call allowance under cl 23(f)(i)(2), back-dated for a period of six years. According to Mr Quinn, the employee pursuant to an agreement to move from the weekly allowance to a daily allowance had been in receipt of a daily on-call allowance since at least 1998, while stationed at Ulladulla, in regional New South Wales. Mr Quinn explained that the employee's claim relied on a simple construction of the sub-clause, namely, that the weekly allowance applied to employees who met only two criteria: employment in the Ambulance Service prior to 31 July 1988, and rostered on-call. The daily on-call allowance (a less generous allowance than the weekly allowance) is dealt with in cl 23(f)(ii) and applies in all other circumstances where an employee is required to be on-call. As I noted earlier the respondent, although at first taking a neutral position in relation to the applicant's preferred construction of the clause, now opposes that construction. Principles of Award Construction 13A useful starting point with regard to the principles of award construction may be found in Amcor Limited v Construction, Forestry, Mining and Energy Union and Others (2005) 222 CLR 241. The issue in that decision was whether, following a corporate reorganisation, employees became entitled to redundancy payments under the provisions of an industrial agreement (see [1] per Gleeson CJ and McHugh J). This in turn required the Court to construe the relevant provisions of the industrial instrument. Gleeson CJ and McHugh J (at [2]) referred to the approach to construction as turning upon, "the language of the particular agreement, understood in the light of its industrial context and purpose ...". Gummow, Hayne and Heydon JJ approached the construction issue having regard to a wide range of material including the circumstances under which the agreement came to be made. Their Honours' intended approach to the issue was set out first in summary form (later followed by a detailed analysis) which appears at [30]: Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate. 14The Award was made in 1998 by consent. In George A Bond & Co Ltd (in liq) v McKenzie (1929) 28 AR (NSW) 498 a number of observations were made about the construction of industrial instruments which I consider are applicable to these proceedings and to consent Awards in particular. At 503 - 504 Street CJ (with whom Cantor J agreed) said: Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award. 15The observations of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184 are also relevant to award interpretation: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. 16In AFMEPKIU v Skilled Engineering Ltd [2003] FCA 260 at [21] Finkelstein J commenting on the approach to award construction said: The object is as always to objectively determine the intention of the parties from the words of the document. That intention can manifest itself not only from words used but from words considered in light of the circumstances surrounding the transaction. 17In the same case, Finkelstein J commenting on the implication of terms when construing an industrial instrument said (at [25]): ... a term may be implied if it is necessary for the reasonable or effective operation of a contract in the circumstances of the case. In my opinion, that test is satisfied in this case. 18In Kingmill Construction Pty Ltd T/A Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2012) 106 IR 217 (at [67]) the Full Bench endorsed and approved the observations of Walton J in Perisher Blue Pty Ltd and Others v Australian Workers' Union (1999) 91 IR 274. At 283 - 284 of the decision Walton J said: Speaking generally, awards should be interpreted in a similar fashion to other enactments: Geo A Bond at 503; Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 520 ; 46 IR 128 at 136-137. In the construction of the general order, and in conformity with general principles of award interpretation, the Commission should consider the wider context of the making of those provisions. Burchett J in Short v F W Hercus describes this approach to the interpretation of an award as follows (at 518; 134): "The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is part, or to other documents with which there is an association. Context may also include, in other cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read." (See also Western Newspapers Pty Ltd v Warren (1994) 56 IR 340 at 351.) I note that a similar approach was adopted by the former Industrial Commission in Re Butter, Cheese and Bacon Factories and Milk and Cream Condensories &c (State) and Butter Cheese and Bacon Factories and Milk and Cream Condensories &c (Newcastle and Northern) Awards (1950) 49 AR (NSW) 62 at 64 where it was held that the meaning of words within an award (which are not expressed or precise) may be ascertained by "placing upon the words their ordinary meaning as applied to the subject matter with respect to which they are used". 19Shortly following the above passage Walton J made a number of additional observations about the range of materials to which a court may have regard when construing the provisions of an Award (at 284 - 285): The Commission may have regard to the history of the development of the provisions: Short v F W Hercus (at 517-520; 133-136). This may assist in the understanding of provisions which have a particular industrial usage. However, this is not an approach akin to the ascertainment of the meaning of technical legal phrases (see for example AG (NSW) v Brewery Employees Union of NSW (1908) 6 CLR 469 at 531 ) but rather an aid to interpretation having regard to ordinary principles governing the construction of awards. 20Based on the foregoing authorities the modern approach to award construction envisages taking into account the wider context underpinning the making of the clause presently under consideration. This means having recourse to a wide range of material adduced into evidence which may include material relevant to the history of the development of the clause and the surrounding circumstances, generally, which led to its making. This approach must necessarily be subject to any countervailing considerations including considerations of weight, in particular what weight may be attributed to the content of the material bearing in mind the circumstances under which the material came into existence. Analysis of the evidence 21According to the applicant the history of cl 23(f)(i)(2) is said to be the outcome of an agreement reached in the context of what has been referred to as the second tier negotiations in 1988. 22Before considering in detail the second tier negotiations it may be useful to refer to some earlier background. Much of this background has been helpfully provided in Mr Quinn's affidavit. Mr Quinn was not required for cross-examination. His evidence therefore may be accepted except where necessary questions of weight may arise, a matter to which I alluded earlier. 23The Sydney metropolitan area, then known as the Central District Ambulance (the CDA) first introduced modified rosters in August 1984 in connection with the 38 hour week. Clause 4 of the Award defines a modified hours rosters as follows: ... means any roster which arranges the hours of duty of full time employees in a format other than on an eight (8) hours per shift basis. 24The Award provides for two types of roster, the other roster being for the ordinary hours of duty worked in shifts of eight hours duration (see cl 20 of the Award). A modified roster is any other shift arrangement that is not a straight eight hour shift (also known as "straight 8's"). 25Prior to 1988 the majority of paramedics outside the CDA worked eight hour shifts, five days a week, averaging 38 hours. According to Mr Quinn, after 1984 regional employees wanted the benefit of modified rosters, however, on call allowances were seen as an obstacle to implementing modified rosters outside the CDA for the following reasons: a. Within CDA, it was very rare that paramedics would be required to be on call. The concentration of staff did not require it, except perhaps on the very outskirts. b. In regional areas of NSW it would be very rare to find stations without on call. c. Because the weekly on call allowance rate is calculated for 5 nights on call, it was thought to 'overcompensate' employees for the two or three nights on call under modified rosters. d. With modified rosters, two or more employees may be paid the weekly on call within the same week. 26Mr Quinn explains that despite modified rosters being implemented in the CDA pursuant to an agreement, it was not known as a "modified roster agreement". That term was only used for the extension of modified rosters beyond the CDA. 27Because the weekly on call allowance was thought to overcompensate employees on call under modified rosters, the applicant sought to effect a compromise. The compromise involved replacing the weekly on call allowance with a daily on call allowance for those employees wishing to work on a modified roster, thereby achieving a cost saving. However, as the applicant indicated in submissions, there was an issue of equity involved. This issue concerned those employees who were at the time of the second tier negotiations working on modified rosters and receiving the weekly allowance. According to Mr Quinn, the question of daily on call allowances (among other matters) was addressed in early 1988 in the 4 per cent second tier negotiations which occurred between January and May 1988. An agreement was reached on several issues and recorded in a Memorandum of Agreement (the MOA). This document contained a range of reforms that had been jointly costed and was advanced by both the applicant and the respondent as meeting the criteria for awarding a 4 per cent increase. The respondent at that time was known as the Health and Research Employees' Association of Australia ("HREA"). 28In July 1988 proceedings came before the Commission seeking approval of the second tier pay increase. Following a hearing, the 4 per cent increase was awarded. During the proceedings the MOA was tendered into evidence. 29A copy of the MOA is annexed to Mr Quinn's affidavit. Paragraph 1 of the document deals with on call allowances. The paragraph is extracted in full below: 1. ON-CALL (i) Payment of the on-call allowance shall not apply during periods of annual leave or long service leave as officers are not required to be available during such periods of leave. (ii) To improve the efficient operation of the Service and to avoid uncertainty, a period of on-call is to be regarded as commencing at the completion of duty on one shift to the commencement of duty on the next shift. (iii) Officers employed after the operative date of this Agreement, required for on-call duty as part of the modified 4 x 4 roster shall be paid a daily allowance of $7.90 in lieu of the weekly on-call allowance. This arises from the nature of the modified 4 x 4 roster system whereby officers are only available for on-call duty for two days out of eight. The payment of a daily allowance shall also not apply to officers who are presently on-call in areas where a modified 4 x 4 roster system is worked. (iv) The payment of the additional on-call allowance to officers required to be on-call for more than fourteen days in each period of twenty-eight consecutive days shall be deleted as such officers receive the on-call allowance for the same period. The Department is prepared to review any situation where officers are required to be consistently on-call in excess of fourteen days in each cycle of twenty-eight consecutive days. (v) The Department will examine and determine the number of officers required to be on-call throughout the State. 30Sub-paragraph (iii) of paragraph 1 reflects the resolution of what the applicant referred to as the equity issue. The latter half of the sub-clause provided that the payment of the weekly allowance would continue for those employees working on modified rosters and who were in receipt of the weekly on call allowance as at 31 July 1988 (the operative date). The sub-paragraph also provided that employees who were employed after 31 July 1988 and who were required for on call duty as part of a modified roster would receive a daily allowance in lieu of the weekly allowance. This arrangement was referred to (without demur by the respondent) as "grandfathering", that is, the benefits (namely, retention of a weekly allowance) of those pre-31 July 1988 employees were preserved while a new regime was phased in for those employees employed after the operative date (see definition in Butterworths Australian Legal Dictionary, Butterworths, reprint 2003). 31Mr Quinn, who referred to the sub-paragraph as a savings clause, said that the only officers covered by the sub-paragraph (that is, those officers referred to in the latter half of the sub-paragraph) were officers employed in the CDA (because no other officers worked modified shifts at that date). 32Other explanatory documentation tendered in the proceedings before the Commission in July 1988 reflects the context of sub-paragraph (iii) of paragraph 1 of the MOA. One such document, annexed to the MOA (Annexure 3), sets out (at p 3) a Proposal (iii) in relation to on call allowances. The document was generated by the Directorate of Ambulance Service, as its title suggests. Proposal (iii) is set out below in full: Proposal (iii) All officers employed in Central District Ambulance on the modified 4 x 4 roster system who are currently required to be on-call shall continue to be paid the on-call allowance on a weekly basis. All other officers subsequently required to be on-call be paid 1/5 of the weekly allowance for each day they are actually required and are available for on-call duties under the award provisions. Current Position With the adoption of the modified 4 x 4 roster system the potential for an officer to undertake on-call duties has been reduced from 184 occasions per year as applied under the triple 8 roster system to 98 occasions under the modified 4 x 4 roster system. Hence the same weekly allowance is being paid for what amounts to a 50% reduction of the incident of being available for a recall for duty. 33Mr Quinn explains that the Commission in July 1988 made a simple adjustment to the Ambulance Employees Award by increasing the rates of pay. No variation was inserted into the Award at that time dealing with the new daily allowance. According to the applicant there was no attempt to incorporate the terms of the MOA into the relevant Award until the period 1996 - 1997, and no explanation exists as to why this issue was not dealt with by way of an award variation until the 1998 Award. 34Before turning to the negotiations that occurred between 1996 and 1997 it may be useful by way of background to refer to some developments that occurred after 1988. According to Mr Quinn, although the MOA was not reflected in any formal way by varying the Award, subsequent history demonstrates that after initial difficulty the terms of the MOA were applied between 1988 and the making of the 1998 Award. The initial difficulty is referred to only in passing by Mr Quinn as concerning the on call agreement. However, by October 1989 Mr Quinn says that the Department of Health wrote to the State Secretary of HREA recording an agreement made on 21 August 1989 that reiterates the second tier agreement and contains an agreement to progress a consent variation to the Award. 35The document which is said to record the agreement reached on 21 August 1989 is a letter dated 16 October 1989 and signed by M K Dickey for the Director General. It is addressed to the State Secretary, HREA. I should mention at this point that the respondent, although not objecting to the tender of the document, objected to the Commission using the document in its consideration of the application on the basis that it was subsequent correspondence which could not assist in construing the 1988 MOA (see Australian Workers' Union v Pasminco Australia Ltd and ors [2003] NSWIRComm 365 at [39]). 36For reasons which will be made clear shortly, I do not intend to use the letter as an aid to interpreting the relevant parts of the MOA. The letter is interesting however because it contains the clearest expression of a construction of sub-clause 23(f)(i)(2) which bears similarity to the applicant's preferred construction. The opening paragraphs of the letter demonstrate this: I refer to discussions with the Association on 21 August 1989 on the disputed payment of the "on-call allowance" for ambulance officers working the modified 4 x 4 roster system in Central District Ambulance Service. To avoid further confusion on this issue the agreement reached is set out hereunder for the record. (i) Those officers of Central District Ambulance who are currently required to be on-call and who are paid either the weekly or daily rate for being on-call shall be entitled to receive payment at the weekly rate whilst ever they are required to remain on-call. Accordingly those officers currently being paid at the daily rate shall receive payment of the weekly rate retrospective to the date at which they were required to be on-call. (ii) Officers who are, or who have been, required to be on-call in Central District Ambulance shall retain the right to payment of the weekly on-call allowance whilst they remain continuously employed in Central District Ambulance Region after 21 August 1989. However, Officers who transfer from Central District Ambulance to some other Region after 21 August 1989 shall cease to be entitled to payment of the on-call allowance at the weekly rate should they subsequently return to Central District Ambulance and be required to be on-call. 37The letter appears to be pushing back the date the grandfathering arrangements were supposed to take effect but this, for whatever reason, was not ultimately reflected in sub-clause 23(f)(i)(2) (or sub-clause 12(d)(1)(b) as it then was) of the 1998 Award. However, in my view I can accord little or no weight to the contents of the letter. It is purportedly generated by the Department of Health. There is no response to the letter of which the Commission has been made aware. I am unable to rely on the unilateral account in the letter as evidence of the true intent of the parties and of the proper interpretation of sub-clause 23(f)(i)(2). 38The next development of significance concerns what occurred in the regional areas. According to Mr Quinn the applicant initially resisted employee pressure for modified rosters in regional areas. This was because of adequate staffing, service levels and potential costs. There were ongoing discussions during this period which culminated in an agreed position between the parties with the requirement that there be written agreements to accompany the introduction of modified rosters at each station and groups of stations. The agreements required that officers convert from a weekly allowance to a daily on call allowance whenever modified rosters were agreed. Five agreements were reached extending modified rosters outside the CDA. The agreements (and the dates on which they came into effect) are set out below: A. Wollongong area - 31 December 1988 - covering Bulli, Dapto, Kiama, Warilla, Warrawong and Wollongong stations. B. Bomaderry Station - 13 June 1992 C. Ulladulla Station - 15 September 1992 D. Goulburn Station - 10 October 1995 E. Bowral Station - 3 February 1996 39The agreements are in substantially similar terms in that they agree to modified rosters on the basis that direct labour costs will not increase; sick leave and other leave will be monitored; previous local agreements are to be retired or revised; other minor machinery provisions to accommodate long shifts. All the agreements record terms that officers would thereafter receive the daily on call allowance (one fifth of the weekly allowance) for every day they were rostered on call. Given the similarity of the agreements, the Wollongong area agreement will suffice to demonstrate this (at cl 9): Officers working the 4 x 4 roster system and who are required to be on-call shall be paid 1/5 of the weekly on-call allowance for each day they are on-call. Officers who occupy service residences and who are required to be on-call shall continue to pay the equivalent weekly on-call allowance as rent for their continued occupancy of the residence. 40It is noteworthy, as Mr Quinn suggests, that the five agreements made between 1988 and 1995 are consistent with the second tier negotiated outcomes in that the agreements required those officers who worked modified rosters to be paid the daily on call allowance in lieu of the weekly allowance. This was not reflected in the Award in force during that period which only contained compensation by way of a weekly allowance. 41I turn now to consider the material relevant to the period of negotiations commencing from about 1996 up to the making of the 1998 Award. 42Between 1996 to 1998 there were extensive negotiations between the parties as to what matters should be incorporated into the Award. Many versions of draft awards were exchanged between the parties during this period. All of the drafts contain provisions dealing with employees, "on call". The provisions are expressed to be "without prejudice". 43A draft Award exchanged between the parties dated 18 September 1997 contains a draft clause 12, headed "Employees on call". Sub-clauses 12(d)(i) and (ii) purport to be precursor provisions (albeit in draft only, and expressed to be without prejudice) to cl 23(f)(i). They provided: d. i. As compensation for time on call, an employee who works on a roster other than a modified hours roster and who is required to be on call pursuant to subclause (a) of this clause, shall be paid the weekly amount specified in clause 48, Allowances, of this Award, for each working week or part thereof for which he or she is required, or agrees at the request of the Service, to be on call. INTERPRETATION: Weekly on call applies to all standard 38 hour week rosters ii. a. As compensation for time on all, an employee who was employed and who first worked permanent on call on or before 31 July 1988 who works on a modified hours roster and who is required to be on-call pursuant to subclause (a) of this clause, shall be paid the weekly amount specified in clause 48, Allowances, of this Award, for each working week or part thereof for which he or she is required, or agrees at the request of the Service, to be on call. INTERPRETATION: Weekly on call applies for those employees who were permanently paid on call on a weekly basis prior to 31 July 1988 but who now work on call on a modified hours roster b. As compensation from time on call, an employee who first worked on call after the 31 July 1988 who works on a modified hours roster and who is required to be on-call pursuant to subclause (a) of this clause shall be paid the daily amount specified in clause ..., Allowances, of this Award, for each and every day for which he or she is required, or agrees at the request of the Service, to be on call, unless otherwise agreed between the parties. INTERPRETATION: Daily on call applies for those employees who first worked on call after 31 July 1988 on a modified hours roster. Weekly on call will be applied in those circumstances where the agreed modified hours roster incorporates the weekly rate in lieu of the daily rate by agreement between the parties. 44The following day on 19 September 1997, a new version draft of sub-clauses 12(d)(i) and (ii) appeared, as set out below: d. i. The weekly on call allowance specified in clause 48, Allowances, of this Award, shall apply in the following circumstances: a. Employees required by the Service to be on call on a roster other than a modified hours roster, or; b. Employees employed on or before 31 July 1988 who are required by the Service to be on call, or; c. Employees who are required by the Service to on call as part of a modified hours roster where the weekly on call allowance applies by agreement between the parties. ii. The daily on call allowance specified in clause 48, Allowances, of this Award, shall apply in all other circumstances where an employee is required by the Service to be on call. 45One notable difference between the two versions is the absence in the later version of the words "who works on a modified hours roster" from sub-clause 12(d)(i)(b) which had appeared in the earlier version of sub-clause 12(d)(ii)(a). Otherwise both sub-clauses purport to cover those employees employed on or before 31 July 1988 who were required to be on call. 46On 10 October 1997 a new draft agreed award was prepared. The content of sub-clauses 12(d)(i) and (ii) was unchanged from the previous draft of 19 September 1997. According to Mr Quinn the 10 October 1997 draft of the sub-clauses was accompanied by a comment which was to the following effect: Comment: Reflects current Award Clause 8 plus changes from 4% second tier Agreement. Significantly simpler explanation of payment of weekly and for daily on call. Daily on call has also been significantly increased and will continue to move with all future wage increases. This rectifies the existing situation in which daily on call has not moved in over 10 years. 47A copy of the 10 October 1997 draft agreed award was annexed to Mr Quinn's affidavit. I have been unable to locate the comment, extracted above, in the annexure or in any of the other annexures. I note however that the respondent made no submissions directed to the presence (or otherwise) of the comment in the 10 October 1997 draft. 48During oral hearing of the application the respondent called Stephen Pollard as a witness. Mr Pollard is the Duty Operations Manager employed by the applicant and stationed at Young Ambulance Station. Mr Pollard said that he was part of the negotiating team that ultimately led to the making of the 1998 Award. In evidence he identified two further earlier draft versions of the Award. One of those versions, dated 30 January 1997, contains a draft cl 10 which appears to be an earlier version of the draft cl 12 appearing in the versions dated 18 and 19 September 1997 and 10 October 1997. Sub-clause 10(ii)(a), acknowledged by the respondent to have some resonance with the words sought to be imported into cl 23(f)(i)(2) by the applicant, provided: ii. a. As compensation for time on-call, an employee who was employed and who first worked permanent on-call on or before 31 July 1988 works on a modified hours (4X4) roster and who is required to be on-call pursuant to subclause (a) of this clause, shall be paid the weekly amount specified in clause 48, Transitional Allowances, of this Award, for each working week or part thereof for which he or she is required, or agrees at the request of the Service, to be on-call. 49Draft sub-clause 10(ii)(b) of the 30 January 1997 version should also be set out: b. As compensation for time on-call, an employee employed or re-employed after the 31 July 1988 who works on a modified hours (4x4) roster and who is required to be on-call pursuant to subclause (a) of this clause shall be paid the daily amount specified in clause 47, Allowances, of this Award, for each and every day for which he or she is required, or agrees at the request of the Service, to be on-call. 50Both sub-clauses closely correlate to sub-paragraph 1(iii) of the MOA earlier extracted, an agreement which formed a significant part of the second tier negotiations. The sub-paragraph sets out the rationale why those employees employed after the operative date who worked on a modified roster would receive the daily allowance. According to sub-paragraph 1(iii) those post-operative date employees would receive the less generous daily allowance because of, "the nature of the modified 4 x 4 roster system whereby officers are only available for on call duty for two days out of eight." The grandfathering arrangement in the same paragraph was preserved in draft sub-clause 10(ii)(a) (30 January 1997 version). It was reproduced in substantially similar terms in the 18 September 1997 version. In the following versions of 19 September and 10 October 1997 (in sub-clause 12(d)(i)(a)) the words, "works on a modified hours roster" have been omitted. Otherwise all the versions are expressed to apply only to those employees employed on or before 31 July 1988. 51The respondent submitted that because the draft versions of the 1998 Award constituted "without prejudice" negotiations they cannot be relied upon subsequently by a party to those negotiations in an argument as to the proper construction of the 1998 Award. Reliance was placed on Codelfa Construction Pty Ltd v SRA (NSW) (1982) 149 CLR 337 at 352 (per Mason J) in support of the submission. The passage relied upon from the judgment does not deal expressly with "without prejudice" negotiations although it does deal with prior negotiations. According to the passage such negotiations if they tend to establish objective facts known to the parties are admissible but not if they consist of statements and actions of the parties which are reflective of their actual intentions and expectations. 52As the various draft versions of the sub-clause demonstrate, the last two drafts omitted the reference to working on a modified hours roster from draft sub-clause 12(d)(ii)(a). The absence of those words from the later drafts, and from the final version does not mean (without more) that the parties intended the clause not to apply, or not to be confined, to those employees employed on or before 31 July 1988 who work on a modified roster. It is not known why the words were omitted. It may be simply because the parties thought their inclusion unnecessary. Whatever the reason, it is my view that I don't need to have recourse (whether permitted or not) to the draft versions of the 1998 Award in order to construe the clause. It is sufficient to gauge the true meaning of the clause by reference to both its particular terms and the context in which those terms, or words, appear in the 1998 Award. 53Clause 23(f)(i) has been in its present form, unchanged, since its introduction into the 1998 Award which was made by Maidment J on 6 February 1998. In 2008 the clause was renumbered from cl 12(d) to its present designation but was otherwise unchanged. 54Clause 23(f)(i) has been set out in full earlier. I have already referred to the definition of modified hours roster under the Award and I have noted that the Award deals with two types of rosters only, which I have called for convenience "ordinary" (or "straight 8's") and modified rosters. The clause deals with the discrete categories under which a weekly on call allowance applies. Otherwise, under the Award all other employees receive a daily on call allowance. This is clear from the words in the succeeding sub-clause 23(f)(ii) which provides: (ii) The daily on-call allowance as set out in Item 3 of the said Table 2A, Allowances of Section 8 - Monetary Rates shall apply in all other circumstances where an employee is required by the Service to be on call. 55The first category of employees under cl 23(f)(i)(1) to whom the weekly on call allowance applies are all those employees required to be on call "on a roster other than a modified hours roster". Since the Award only covers two types of roster the first category must refer to all those employees on call who work an ordinary roster. Given that the first category is all inclusive, that is, it refers to all employees on call working an ordinary roster, the second category, which covers those employees on call and employed on or before 31 July 1998, must necessarily refer to those employees who work on the other type of roster, namely a modified hours roster. This must be the correct construction of the sub-clause notwithstanding that for reasons unknown (and this aspect was not explored by the parties), the third category makes express mention of a modified hours roster. I find therefore that sub-clause 23(f)(i)(2) of the 1998 Award applies to those employees employed on or before 31 July 1988 required to be on call on a modified hours roster. 56As for the concluding words sought to be imported into the sub-clause by the applicant ("and has continued thereafter to be required by the Service to be continuously on call since 31 July 1988") in my view these additional words also reflect the true meaning of the sub-clause. In coming to this view I have had recourse to the MOA and associated documentation as aids to the construction of the sub-clause. The documentation reveals that by reason of the grandfathering arrangement and the perceived necessity to resolve the issue of equity, the sub-clause was intended to be confined or limited to a specific group of employees who, prior to 31 July 1988, were all in receipt of the weekly allowance and on call on modified hours rosters. It will be recalled that at the time the MOA was agreed the applicant did not want to continue to pay the weekly allowance to all its employees working on call on a modified hours roster. This was for a number of reasons one of which was that the weekly on call allowance was thought to over-compensate those employees who worked only two or three nights a week on call under a modified hours roster. The respondent on behalf of the employees wanted the benefit of the modified hours roster. A compromise was reached which resulted, in part, in the grandfathering arrangement. Given that the grandfathering arrangement emerged from a compromise between saving costs by introducing the daily on call allowance and allowing employees to work on modified hours rosters, the arrangement (which preserved a benefit enjoyed by a specific class of employees) could not have been intended, on any objective analysis of the parties' intentions, to be eroded, or be the subject of further exceptions so as to extend for example to employees employed on or before 31 July 1988 who, after that date, ceased to be continuously on call under a modified hours roster or who after that date entered into agreements to move from the weekly allowance to a daily allowance. Accordingly the additional words sought to be imported into the sub-clause by the applicant are, in my view, necessary for the reasonable and effective operation of the 1998 Award as it relates to the payment of weekly on call allowances (see Finkelstein J in AFMEPKIU v Skilled Engineering at [28]) and they reflect the true meaning intended by the parties at the time the Award was made. 57Mr Pollard in his affidavit said that if the Award was corrected in the way contended for by the applicant only a handful of officers in New South Wales who worked modified hours rosters would receive the weekly allowance. He said an examination of the rosters proposed for the rural roster reform reveals that all those officers would be working on modified hours rosters but would have the on call allowance reduced depending on the number of on call shifts per week. In other words affected officers who work on a modified hours roster but are on call for perhaps two or three nights a week would no longer be paid for five nights a week if the applicant's preferred construction of the sub-clause is accepted. 58Mr Pollard did not elaborate further on his statements that all officers working on call on modified hours rosters would have their on call allowances reduced. Clearly the sub-clause only refers to those employees who were employed by the applicant on or before 31 July 1988. The Court has not been informed as to what proportion of the applicant's workforce comprises that particular category of employee. In addition, Mr Pollard referred to some current regional arrangements for the payment of on call allowances. It is apparent from the information proffered by Mr Pollard that a number of officers who work at regional stations on call on modified hours rosters receive the daily allowance, which seems entirely consistent with sub-clause 23(f)(ii) which applies to all employees required to be on call who do not fall within any of the three categories in sub-clause 23(f)(i). 59Accordingly I make the declaration in the terms proposed in the application. Orders 60In IRC 585 of 2012 the application for declaratory relief under s 154 of the Industrial Relations Act 1996 is granted. ********** 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. Decision last updated: 20 February 2014