Industrial Relations Commission New South Wales Medium Neutral Citation: The Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038 Hearing dates: 12 March 2018 Date of orders: 04 June 2018 Decision date: 04 June 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC; Murphy C; Seymour C Decision: (1) Leave to appeal is granted (2) The appeal is upheld (3) The decision of Commissioner Newall of 5 October 2017 in this matter is quashed Catchwords: AWARD INTERPRETATION – "current practice" of taking annual leave – subclause to be read in context of clause as a whole – subclause to be interpreted against the history of the provision – leave to appeal granted – appeal upheld Legislation Cited: Industrial Relations Act 1996 Cases Cited: Allchin v Commissioner of Police (No.2) [2007] NSWIRComm 280 Director of Public Employment (by her agent the Commissioner of NSW Fire Brigades) and New South Wales Fire Brigades Employees' Union [2008] 180 IR 170 Hosemans v Commissioner of Police (No.4) (2005) 150 IR 263 King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Parmjit Singh v Department of Community Services (unreported, Full Bench, IRC No.5638 of 1999, 20 July Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] 87 NSWLR 41 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2017] NSWSC 1473 Secretary, NSW Ministry of Health v Health Services Union NSW [2018] NSWIRComm 1007 State of New South Wales v Stockwell [2017] NSWCA 30 State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] 247 IR 129 Category: Principal judgment Parties: The Secretary of the Department of Transport (in respect of Roads and Maritime Services) (Appellant) Construction, Forestry, Mining, and Energy Union, New South Wales Branch (Respondent) Australian Workers' Union, New South Wales (Intervener) Representation: Counsel: Mr M Seck (Appellant) Mr P Boncardo (Respondent) Solicitors: Mr D Gardner, Bartier Perry Lawyers (Appellant) Mr S Crawford, Crawford de Carne, Lawyers (Intervener) File Number(s): 2017/00324374 DECISION 1. The matter before this Full Bench of the Commission is an application for leave to appeal and, if granted, an appeal by the Secretary of the Department of Transport (in respect of Roads and Maritime Services) ("RMS") from a decision and recommendation made by Commissioner Newall on 5 October 2017 in dispute proceedings initiated by the Construction, Forestry, Mining, and Energy Union, New South Wales Branch ("CFMEU"). The Australian Workers' Union, New South Wales ("AWU") intervened in the proceedings at first instance and has maintained that intervention in these appeal proceedings. 2. The dispute notification from the CFMEU, which gave rise to the proceedings before Newall C, asserted that RMS had proposed to alter the existing practice of employees taking annual leave in a manner which was not agreed to by the affected employees who work in the Sydney Harbour Bridge Asset Maintenance Unit ("SHBAMU"). Background 1. The award which covers the affected workers is the Roads and Maritime Services (Wages Staff) Award 2017 ("the Award"). Clause 33 Annual Leave, of the Award is in the following terms: 33. Annual Leave 33.1 For Employees other than Broken Hill Workshop Employees, annual leave accrues at one-and-two-thirds days for each completed month of service, up to a maximum of 160 hours per year. Employees entitled to an extra week's annual leave, accrue the additional annual leave at the appropriate rate. 33.2 Broken Hill Workshop Employees accrue annual leave at two and-one twelfth days for each completed month of service, up to a maximum of 200 hours per year. 33.3 Annual leave does not accrue in respect of unauthorised absences or leave without pay exceeding five working days in a leave year, unless the leave is taken during annual close down. 33.4 Employees can apply to take annual leave. Annual leave is granted at the discretion of RMS subject to operational requirements. 33.5 Annual leave must be taken at a time convenient to RMS and the Employee. However, it is preferred that periods of annual leave plus Public Holidays and ADOs be taken in whole weeks, (i.e. Monday to Friday). 33.6 In exceptional circumstances, RMS may allow you to accumulate leave up to 40 working days, provided you agree to take your leave as soon as possible. 33.7 The current practice of taking annual leave accrued to 31 December during the December - January school holiday period will continue. This practice may be varied by agreement between RMS management and the majority of affected Employees for reasons including geographic, climatic or urgent works. In cases of such variation: (a) Employees may take a minimum of two weeks annual leave for the Christmas period in addition to the Public Holidays; (b) the minimum period may be reduced with agreement between management and the majority of staff (the whole office, specific gangs or depots within an office), and the balance of annual leave is then taken at a time that generally coincides with school holidays. 33.8 If an Employee does not have sufficient leave to cover a close-down period, RMS will seek to provide the Employee with work. However, if work is not available RMS may require the Employee to take leave without pay. 33.9 An Employee who is required to take leave without pay during the annual close down period shall receive payment for all Public Holidays occurring during this period. The close down period counts as service for the purposes of annual leave accrual. 33.10 Seven day shift workers whose ordinary working period includes Public Holidays and Sundays shall receive: (a) up to 5 weeks of annual leave (i.e. an additional week of annual leave if you work this arrangement for 12 months), (b) additional annual leave of up to one week calculated on a pro rata basis if you work this arrangement intermittently. (Emphasis added) 1. The Award commenced operation from the first full pay period to commence on or after 1 July 2017. When the original dispute notification from the CFMEU was filed on 26 June 2017, the award in force at that time was the Roads and Maritime Services (Wages Staff) Award 2015 ("the 2015 Award"). Clause 32 Annual Leave, of the 2015 Award was in terms identical to clause 33 of the Award. 2. The CFMEU's dispute notification cited subclause 32.7 of the 2015 Award which, as we have noted, was in terms identical to subclause 33.7 of the Award as set out above. The dispute notification then stated: 3. On 8th September 2009, RTA (Roads and Traffic Authority, the predecessor of RMS) management and a majority of affected workers (represented by their unions, the AWU, AMWU & CFMEU) reached agreement on a variation to the rostering practice that existed at the Sydney Harbour Bridge Alliance at the time. The new practice is set out in a letter dated 24/09/2009, from Cinda Viranna, Acting Manager Industrial Relations and Policy, RTA. This letter is attached and marked "A". 4. This practice has remained unchanged in the intervening period. 5. On 27th February 2017, RMS management put to staff a proposed variation to the rostering practice; which was not agreed to by a majority of affected workers (represented by their unions, the AWU, AMWU & CFMEU). 6. On 10th March 2017, Emad Loka of RMS management informed the unions representing workers that in the absence of an agreement to change the current practice, they would: "fall back to the default condition of the Award, clause 32.7." When asked to clarify, Mr Loka provided on 13th March that: "This means 20 days annual leave accrued during the year had to be taken during December – January school holiday period." 7. Subsequent discussions between the parties at the workplace level failed to resolve the issue. However, a mass meeting of affected employees on the 14th March voted to proceed with a 4 day Easter closedown, as a show of good faith towards resolving the dispute. ……………………. 12. The dispute concerns three issues: a. Can the agreed variation made in 2009 be unilaterally undone by either party; and, if so b. In the absence of a new agreement, is there a closedown period set by the underlying Award; and if so, c. What are the terms of this close-down period? 1. Attachment "A" to the dispute notification was a letter dated 24 September 2009 to the General Secretary of the AMWU from Cinda Viranna, Acting Manager, Industrial Relations and Policy, RTA. This letter, which was referred to in the proceedings as the "2009 agreement", referred to a meeting held on 8 September 2009 between the unions and RTA management and contained the following: Parties at the meeting agreed that: 1. There will be a general closedown at Christmas with the last day of work being Thursday, 24 December 2009. 2. Work will recommence on Monday, 11 January 2010. This will involve taking seven (7) days annual leave with Monday, 4 January 2010 being an Accrued Day Off (RDO). 3. There will be a general closedown of four (4) days at Easter 2010. This will involve taking four (4) days annual leave from Tuesday, 6 April 2010 to Friday, 9 April 2010. Work will recommence on Tuesday, 13 April 2010 with 12 April being an ADO. 4. The remaining nine (9) days annual leave will be taken in a two (2) week block, in conjunction with an ADO. Leave applications must be submitted with at least four (4) weeks notice. 5. Leave applications of less than a two (2) week block will only be considered under special circumstances. 6. Given the levels of sick leave that have been taken in the month of January in previous years, the RTA will be monitoring the use of sick leave in January 2010. If sick leave is abused during this period the RTA will revisit the arrangements outlined in points 1 to 5 of this letter and will determine arrangements in future years. 1. The CFMEU filed and served extensive written submissions together with a witness statement from one of its delegates, Mr Thomas Morgan. The AWU also filed and served written submissions, as did RMS together with an affidavit affirmed by Mr Mohammad Qaium, the Manager, Sydney Harbour Bridge, for RMS. The matter was heard by Newall C on 5 October 2017 and the Commissioner handed down an ex tempore decision and recommendation on that day. 2. In his decision, Newall C set out the factual background to the dispute as follows: The factual position is, in very short summary, this: The Sydney Harbour Bridge closes down its operations, essentially, over Christmas and over Easter. It does so for operational reasons. It asks its employees to take annual leave over those two close down periods. On the evidence of Mr Qaium, whose evidence I accepted, I found him to be a witness of truth, since 2009 these close downs have been arranged on the basis that the closures would involve employees taking, usually, six days annual leave over Christmas and three or four over Easter and the effect of the arrangements are and have been for some years that leaves the employees an ability to have two weeks' leave, made up of annual leave and ADO's or annual leave alone, to use at another time of the year 1. The Commissioner then considered the annual leave provisions of the Award, in particular, subclauses 33.4, 33.5, 33.7, 33.8 and 33.9 and the evidence which was led by the parties and their submissions as to past practices concerning the taking of annual leave by SHBAMU workers. The Commissioner then stated as follows: Subclause 33.7 reads curiously. That curious reading is, I think, largely explained by the factors that emerged today, although only during the course of submissions. In earlier manifestations of the Award, as I was told by Ms Keenan, clause 33.7 contained the word "all", so that it read, relevantly, "The current practice of taking all annual leave accrued to 31 December during the December/January school holiday period will continue." That word "all" was taken out of the Award, some time in the past. It is not there now, it was taken out by the parties deliberately, as I appreciate it, by consent. What that means is that there is not a current practice of employees taking all of their annual leave during the December/January school holiday period. Nevertheless, the clause, in its present form, is that which was sought by RMS in application to this Commission in 2017 and agreed to by the unions. It was contended in proceedings before me today by the unions that the current situation was meant to refer to a 2009 agreement. On the basic principles of statutory construction, I do not believe that to be correct. I do not here go to those basic principles of statutory construction. They have been set out in the arguments of the advocates, perhaps most completely in Mr Fisher's submissions and they are there correctly set out. I do not restate them for the purpose of this decision. The 2009 agreement is, no doubt, what it was, an industrially driven agreement between the parties. But the Award stands alone, the Award says what it says. When the Award says, in a 2017 manifestation, the "current practice", that means what it says on a plain and ordinary meaning of that expression; it means the current practice, the practice that comprises as at the time the Award is made, in 2017. When the Award says "the current practice" it means the practice current at the time the Award was made and has nothing to do with the 2009 agreement. It does not invoke that agreement. It refers to the circumstances applying at the time the Award was made. The current practice - remembering that this Award covers all RMS employees and I am dealing here only with the current practice at the Sydney Harbour Bridge - on Mr Qaium's evidence, is this: There is a close down over Christmas, generally involving employees taking six days annual leave. There is a close down over Easter too, generally involving employees taking four days annual leave. The employees are, as a consequence of those two close downs, left with enough leave that they can take a two week block of leave, whether or not involving ADO's, at another time of the year convenient to them and RMS. It has been that way, on Mr Qaium's undisputed evidence, for a number of years. It is that way now. A deal of time was spent in argument on the sub-provisions to clause 33.7 but they are not strictly relevant to this, save only that the current practice can be departed from, in certain circumstances, by agreement. There was no agreement this year to depart from the current practice. Accordingly, the current practice must, in my view, under the Award be sustained and that current practice contemplated by Award, again I say made by the parties this year, is that so far as the Harbour Bridge workers work under a structure of arrangement that involves close downs and the like, that involves them using their annual leave over Christmas and over Easter in such a way that there remains to them a two week block of leave, whether or not including ADO's, to use at another point. 1. The Commissioner then made the following recommendation: I recommend that there be a close down in December 2017 to January 2018 that, taken with the Easter 2017 close down that has already been had, leaves Sydney Harbour Bridge employees an ability to have two full weeks of paid leave, including if necessary, ADOs at another time than the close down, as is the current practice, to use the term in the award, and has been the current practice for the last decade or so. As I apprehend it, but I do not bind the parties to these dates, that would mean a close down involving finishing work on Friday 22 December 2017 and resuming on Monday 8 January 2018. There would be an ability, I suppose, if ADOs were permitted, to extend that to Wednesday 10 January, but that works rather against the idea of whole blocks of leave being taken, but it would be available. Secondly I state, pursuant to the powers to interpret award clauses I have in the context of dealing with an industrial dispute under the Act, that the award gives no ability to RMS to direct its employees to take all of their leave, or alternatively 20 days leave, in the December/January school holiday period. I make this further observation. Quite apart from being the correct outcome, based on the provisions of the 2017 consent award, it is also an outcome which gives effect to the objects of the Act by being productive of industrial harmony. If RMS needs a different award provision to that in the 2017 award, either at the Sydney Harbour Bridge or across the board, which is what is being suggested to me is needed, that can be negotiated or be arbitrated and if it is arbitrated then the Commission will devise, if the parties cannot agree, an award clause which will meet the Commission's overriding objectives in making awards, which is providing fair and reasonable terms of employment. I observe that it was said in passing earlier, thought it did not make any part of the submissions today, that there was a difficulty in monitoring sick leave in the periods after a close down. That is, of course, a matter for proper management. Misuse of sick leave will not be condoned by the Commission, under any circumstances. No evidence of that has been brought before the Commission, but if it is thought to be a problem, then it is in RMS's own hands to deal with it. As I say again, abuse or misuse of sick leave will not be condoned by this Commission. Accordingly, I have made a recommendation to the parties about the way in which the close down at the end of this year and the part into next year should be conducted and I have stated a view about the interpretation of the award clause in relation to the suggestion that there was going to be a direction that workers take all 20 days or 20 days of leave during this year. That, in my apprehension, deals with the industrial dispute that was agitated before the Commission. 1. It is from this decision and recommendation of Newall C that these appeal proceedings are brought. 2. The following is set out in the Application for Leave to Appeal and Appeal filed by RMS on 26 October 2017: F. The question raised by the appeal is the proper interpretation of subcl 33.7 of the Road and Maritime Services (Wages Staff) Award 2017 (the Award), in particular: a. whether the reference to a "current practice of taking annual leave accrued to 31 December during the December - January school holiday period will continue" in subcl 33.7 defines exhaustively the "current practice" which is to continue to exist for the purposes of subcl 33.7; and b. whether a number of agreed variations made between the appellant and the majority of affected employees working at the Sydney Harbour Bridge to take annual leave under similar provisions in predecessor awards is capable of constituting a "current practice" for the purposes of subc 33.7 of the Award. G. Reasons why leave to appeal should be granted: 1. The appeal raises important questions about the proper interpretation of awards, in particular, the circumstances in which the clear and express words of a clause in an award can be construed to mean something other than their plain and ordinary meaning. 2. The recommendation has the effect of seriously impairing the appellant's ability to reach agreement with its employees to take annual leave in order to meet its operational requirements. H. Grounds of the appeal are: 1. The Commission erred in not finding that the "current practice of taking annual leave" in subcl 33.7 of the Award meant that the "current practice" as defined in subcl 33.7, that is, the practice that any annual leave accrued by an employee in the same calendar year being taken during December and January school holiday period at the end of that same year. 2. The Commission erred in finding that variation agreements made between the appellant and a majority of employees working at the Sydney Harbour Bridge in relation to the taking of annual leave made under similar provisions in predecessor awards before the making of the Award were capable of constituting a current practice for the purposes of subcl 33.7 of the Award. Leave to appeal 1. Section 188 of the Industrial Relations Act 1996 ("the Act") is in the following terms: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. . 1. In support of its application for leave to appeal, RMS submitted that the matter concerned issues of such importance that leave should be granted in the public interest, in summary, because: 1. the appeal raises: 1. questions raising substantial issues of principle or law having wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application (see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382 and Hosemans v Commissioner of Police (No.4) (2005) 150 IR 263 at [5]); 2. a "demonstrable and cogent matter of principle or law": see Parmjit Singh v Department of Community Services (unreported, Full Bench, IRC No. 5638 of 1999, 20 July) at [10]; 3. the question as to whether the ultimate conclusion reached by the Commission at first instance reasonable on the evidence: Parmjit Singh v Department of Community Services at [9]; and 4. the question as to whether there is an instance of demonstrable error in the decision below: King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [54] and Allchin v Commissioner of Police (No.2) [2007] NSWIRComm 280 at [15]. 1. even though the recommendation concerns annual leave taken during the December 2017 - January 2018 which has now passed, the reasons and determination have relevance for future years, in particular the (then) upcoming 2018 Easter holidays. 2. there is a public interest in the appellant having certainty over public infrastructure resourcing control, given the topical issue of public transport and public expectations of availability of public transport infrastructure. 1. In opposing the grant of leave to appeal, the CFMEU submitted there is no relevant public interest, in summary because: 1. the Commissioner's approach to the construction of clause 33.7 was conventional; 2. the construction he reached was correct; 3. so far as the appeal relates to factual findings about the "current practice" of taking annual leave, those findings were open to the Commissioner on the evidence and, in any event, right; 4. the appellant seeks to advance a substantially new case on appeal concerning the construction of clause 33.7 and to rely on historical materials available to it at the time of the hearing which it did not place before the Commissioner; and 5. the Commissioner's decision pertained to a period that has now passed and there is no practical utility in leave being granted. 1. The AWU also opposed the grant of leave to appeal and, after citing the recent decision of the Full Bench of the Commission in Secretary, NSW Ministry of Health v Health Services Union NSW [2018] NSWIRComm 1007, submitted: 1. the decision under appeal does not have widespread practical implications; 2. the appellant's claim as to "certainty over public infrastructure resourcing control" is a substantial exaggeration; 3. the decision under appeal does not raise issues going to the proper administration of justice and does not raise substantial issues of principle or law; 4. the Commissioner correctly applied the legal principles regarding award interpretation to the dispute before him and made factual determinations that were sound and certainly reasonably open; and 5. the Act deliberately "gives primacy to first instance decision making" and the Full Bench should not accept the invitation from RMS to substitute its own views for conclusions reached by the Commissioner which were clearly open to him. 1. In Secretary, NSW Ministry of Health v Health Services Union NSW the Full Bench (Chief Commissioner Kite SC, Stanton C and Murphy C) set out the following principles governing the grant of leave under section 188 of the Act: Principles on leave to appeal 28. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16; n 250 IR 512. In that matter the Full Bench stated at [10] and [11]: It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. That statement has been approved since in a number of decisions: Merrin v Mosman Municipal Council [2016] NSWIRComm 1048 at [6]-[7]; Fire Brigades Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 at [11]; Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007at [11]. In Wattie, the Full Bench also observed at [12]-[13]: Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal. These principles were recently endorsed in Commissioner of Police v Morris [2017] NSWIRComm 1010 at [6] and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029 at [10]-[11]. As no party to the appeal has suggested that the Full Bench should not apply these principles, we propose to apply them. 1. In applying the above principles to the matter currently before the Full Bench, we have decided to grant leave to appeal on the basis that the matter, which is the subject of the appeal, is of such importance that, in the public interest, leave should be granted under section 188 of the Act. We do so for the following reasons: 1. The reasons set out in the Commissioner's decision will have implications for future years even though the period covered by the recommendation has now passed. The submissions of the CFMEU made clear that it saw the Commissioner's interpretation as "definitive" and having application beyond the current dispute. 2. The interpretation by Newall C of subclause 33.7 of the Award impacts upon the capacity of RMS to control staffing resources on an important piece of public infrastructure. 3. The Commissioner's interpretation of the award provision has implications for the ability of RMS to manage annual leave arrangements for SHBAMU workers during the December- January period. 4. Having heard the appeal in its entirety, the Full Bench has formed the view that RMS has demonstrated appealable error in the Commissioner's interpretation of the relevant provision. The appeal 1. During the proceedings, the Full Bench granted leave to RMS to have admitted into evidence additional material, being a number of predecessor awards to the Award which, although referred to and debated before the Commissioner, were not put before him during the proceedings at first instance. Although clearly not fresh evidence we considered, particularly having regard to the terms of s 163(1)(b) of the Act, that special circumstances existed justifying the admission of the evidence. 2. Counsel for RMS drew our attention to the Crown Employees (Roads and Traffic Authority of New South Wales – Wages Staff) Award made on 17 November 2000 and, in particular, to subclause 6.3.2 of that award which was in the following terms: 6.3.2 Annual close down – (a) The current practice of staff taking all annual leave accrued to 31 December during the December/January school holiday period will continue to apply. (b) The RTA may seek to vary this practice by agreement between management and the majority of staff for reasons including geographic, climatic or urgent works in which case: staff may take a minimum of two weeks annual leave for the Christmas period in addition to the public holidays the minimum period may be reduced with agreement between management and the majority of staff either the whole of the office or specific gangs or depots within an office and the balance of annual leave will be taken at a time that generally coincides with school holidays. (c) If the whole/part of a depot is temporarily closed or reduced to a minimum for the purposes of annual holidays, staff who do not have sufficient leave to cover this period may be required to take leave without pay. (d) If staff are required to take leave without pay during the annual close down period: they will be paid for all public holidays occurring during this period this period will count for the accrual of annual leave. 1. When the Crown Employees (Roads and Traffic Authority of New South Wales – Wages Staff) Award 2005 ("the 2005 Award") was made by the Commission, with the consent of the parties, the word "all" had been deleted from subclause 6.3.2(a) which was then in the following form: 6.3.2 Annual close down (a) The current practice of taking annual leave accrued to December during the December-January school holiday period will continue. (b) The RTA may vary this practice by agreement between management and the majority of staff for reasons including geographic, climatic or urgent works. In such cases: you may take a minimum of two weeks annual leave for the Christmas period in addition to the Public Holidays the minimum period may be reduced with agreement between management and the majority of staff (the whole office, specific gangs or depots within an office), and the balance of annual leave is then taken at a time that generally coincides with school holidays. (c) If the whole or part of a depot is temporarily closed or reduced to a minimum function for the purposes of annual holidays, and you do not have sufficient leave to cover this period, the RTA seeks to find you work. However, if work is not available you may be required to take leave without pay, (d) If you are required to take leave without pay during the annual close down period: you are paid for all Public Holidays occurring during this period this period counts for accrual of your annual leave. 1. No evidence was placed before Newall C or before the Full Bench as to the intention of the parties behind the removal of the word "all" from subclause 6.3.2 in 2005. The word "all" did not appear in subsequent iterations of the subclause up to and including subclause 33.7 of the Award made in 2017. Submissions of RMS 1. In its submissions on the merits of the appeal, RMS cited a number of authorities on the principles governing the interpretation of award provisions. These included Director of Public Employment (by her agent the Commissioner of NSW Fire Brigades) and New South Wales Fire Brigades Employees' Union [2008] 180 IR 170 at [37] – [47]; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] 87 NSWLR 41 at [115]; State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] 247 IR 129 at [26]-[31]; State of New South Wales v Stockwell [2017] NSWCA 30 at [68]; and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2017] NSWSC 1473 at [49]-[81] 2. The RMS submissions then continued as follows (with Appeal Book references omitted): D. The current practice of taking annual leave under subcl 33.7 of the Award 18. In determining the applicable "current practice" of taking annual leave referred to in subcl 33.7 of the Award, the starting point is the ordinary grammatical meaning of the words used. 19. The first sentence in subcl 33.7 states that the "current practice of taking annual leave" will continue. The current practice of taking annual leave is expressly identified in the first sentence as comprising two elements: (a) the annual leave to be taken is that accrued until 31 December of that year; and (b) the annual leave will be taken during the December - January school holiday period. 20. The appellant submits that, on a proper construction, it is plain that subcl 33.7 codifies the "current practice" of accrued annual leave (which will generally amounts to 4 weeks, but may differ depending on the working arrangements of individuals throughout the year) during the December - January school holidays. This is an ascertainable period. The NSW Department of Education has determined and currently determines the school term and school holiday dates for all NSW public schools which it publishes in advance of the school calendar year. The most recent summer school holidays commenced on 20 December 2017 and ended on 26 January 2018 (with staff development day taking place on 29 January 2018) for the Eastern Division and will end on 2 February 2018 for the Western Division. 21. From the decision, it appears that the Commissioner was largely influenced by the absence of the word "all" before the word "annual leave" in subcl 33.7 of the Award which had existed in earlier iterations of the Award. However, in doing so, the Commissioner failed in the primary task of construing the words in an ordinary and grammatical manner in the context in which they appear but, impermissibly, used an earlier version of the sub-clause to infer the intended meaning of the expression "current practice". 22. Where there has been a change in a provision from a different provision contained in an earlier enactment, caution must be used to avoid producing a result not apparent on the face of the later provision particularly where there are other possible rational explanations of the change in wording: Walsh v Permanent Trustee Australia Ltd (1996) 21 ACSR 213 at 215; Oreb v Australian Securities and Investments Commission (No 2) [2017] FCAFC 49; 247 FCR 323 at [26]. The current provision "must be construed according to its own terms rather than by reference to construction placed on its statutory predecessor": Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 23. The appellant submits that the natural and ordinary meaning of the words "the current practice of taking annual leave accrued to 31 December during the December - January school holiday period will continue", read in their proper context, refer to the entire annual leave which has accrued in the 12 month period during the previous calendar year (i.e. between 1 January and 31 December and with the exception of any leave approved under clause 32.4 of the Award). A number of linguistic and contextual considerations support this construction. 24. First, as a matter of grammar, the word "all" is strictly unnecessary in most contexts where it is apparent that the reference being made is to the whole. Say a person states "I have eaten the cupcake" rather than "I have eaten all the cupcake". Read in context, in the first statement, it is plain that the person has eaten the whole of the cupcake without adding the word "all" before the cupcake. The word "all" is strictly unnecessary to convey that the whole cupcake has been eaten. Another example is where a person says "Don't stir the water or you will scare all the fish" means the same thing as "Don't stir the water or you will scare the fish". In the second example, the use of word "all" is redundant. It is therefore important to understand the context in which the words are used to determine whether the absence of the word "all" or similar words indicates something less than the whole. 25. In the present case, the absence of "all", of itself, does not indicate that "annual leave" accrued is a reference to the whole or part of the annual leave accrued for the previous 12 months. This is because the expression "annual leave" is capable of conveying a specified period of annual leave to be taken (e.g. I am taking 2 weeks' annual leave) or the leave accrued for the year (e.g. I have not taken my annual leave this year). In an industrial context, the expression "annual leave" has been ordinarily used to refer to a single 4 weeks' annual holiday which accrues on the anniversary date of an employee commencing employment: Annual Holidays Act 1944 (NSW) (AH Act), s 3(1). This is reinforced by annual leave ordinarily being expressed as an annual amount. However, it is also capable of meaning paid annual leave taken less than 4 weeks. This means other contextual considerations must be considered to ascertain the meaning of the words. 26. Second, subcl 33.7 refers to the "annual leave accrued to 31 December". No start date for when the annual leave accrual begins is expressly stated. In the context of annual leave, the reference to 31 December as the last day of the year, gives rise to a reasonable inference that it is intended to refer to annual leave accrued between 1 January and 31 December. Subcl 33.1 also provides that, relevantly, annual leave accrues at one-and-two-thirds days for each completed month of service, up to a maximum of 160 hours per year (which amounts to a maximum of 20 days per year based on a 40 hour week). The expression of annual leave by reference to an annual amount suggests that "current practice of taking annual leave accrued to 31 December" is a reference to the 4 weeks' annual leave accrued during the 12 month period in previous calendar year. 27. This construction is strengthened by the symmetry which exists between the 4 week annual leave accrued and the December - January school holiday period. So, for example, the December 2017 - January 2018 school holiday period commenced on Wednesday 20 December 2017 and ended on 26 January 2018. Excluding public holidays (Christmas Day, Boxing Day, New Years Day and Australia Day) during this period, the annual leave during this period amounted to 23 days. The substantial similarity in the length of time between the usual annual leave accrued between 1 January to 31 December each year and the usual duration of NSW public school holidays reinforces the likelihood that the drafters of the clause intended that the default position be that workers take 4 weeks' annual leave accrued during the calendar year in a single block during the NSW summer school holidays unless otherwise agreed. 28. Third, the reference to the "current practice of taking annual leave" during the December-January school holidays is identified as "the annual closedown period" in subcll 33.8 and 33.9 of the Award as follows (underlining added): 33.8 If an Employee does not have sufficient leave to cover a close-down period, RMS will seek to provide the Employee with work. However, if work is not available RMS may require the Employee to take leave without pay. 33.9 An Employee who is required to take leave without pay during the annual close down period shall receive payment for all Public Holidays occurring during this period. The close down period counts as service for the purposes of annual leave accrual. 29. Subcl 33.7 of the Award immediately precedes subcll 33.8 and 33.9 indicating a direct link between these provisions: Patman v Fletcher's Fotographics Pty Ltd (1984) 6 IR 471 at 474 - 475. As there is no other express power to implement an annual closedown under the Award, the context suggests that the use of the expression "the annual close down period" is a reference to the "current practice of taking annual leave … during the December-January school holiday period" in subcl 33.7 of the Award. The use of the definite article (i.e. the annual close down period) suggests that there is a single closedown which takes place annually and that the annual leave accrued to 31 December must be taken during that annual closedown period. The link between annual leave and annual closedown is also made in subcl 33.3 of the Award by allowing the accrual of annual leave exceeding 5 days in a "leave year" during the annual close down. Hence, the annual nature of the closedown supports the construction that the expression "current practice of taking annual leave" refers to the "annual closedown" during which 4 weeks' annual leave or some kind of other leave such as leave without pay must be taken. 30. This interpretation is supported by the historical origins of subcll 33.7, 33.8 and 33.9 of the Award. These provisions sat together as subcl 6.3.2 in earlier awards between 2000 and 2011 under the heading "annual closedown". It is relevant to take into account the historical origins and the statutory and arbitral context in which the provision arose: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175. Having regard to the historical context, there is no doubt that the current practice of taking annual leave during the December-January school holidays is a reference to an annual closedown. 31. Fourth, the reference to the current practice as an "the annual closedown period" in subcll 33.7, 33.8 and 33.9 is consistent with applicable industrial standards that annual leave during an annual closedown must be generally taken as single block on an annual basis. In the present case, an annual closedown, as the name implies, is generally understood to be a shutdown of operations to take place yearly. 32. The implementation of an annual closedown is governed by the AH Act. An employer may give notice to a worker employed in any part of the employer's establishment, once in any calendar year, that there will be an annual closedown for the purposes of giving "an annual holiday" or leave without pay: AH Act, ss 4A(2) and (3). The statutory position also accords with the test case standard historically adopted by industrial tribunals. The standard award provision generally only allows an employer to require a group of employees working in an establishment or part of an establishment to take annual leave during a single convenient period or, in limited circumstances, two periods: Re Metal Industry Award 1971 (1977) 191 CAR 598. This occurs usually during the Christmas/New Year period, for plant maintenance or to avoid that difficulties associated with not having all staff members available and having to use instead inexperienced and less qualified casual employees or labour hire: see Metal Trades Annual Leave Case (1945) 55 CAR 595; Re Metal Trades Award; Re Annual Leave (1963) 104 CAR 221 at 223 and 227; see also United Voice v Valspar (WPC) Pty Ltd (2014) 218 FCR 521 at [32] - [41]; Four yearly review of modern awards - Annual Leave [2015] FWCFB 3406 at [339]. 33. Fifth, the Commissioner's interpretation undercuts RMS's right to grant annual leave at its discretion subject to operational requirements under subcl 33.4 and the key benefits of the ability to implement an annual closedown. The uncontested evidence is that work on the Sydney Harbour Bridge cannot be done during December or January because a road occupancy licence will not be issued. This is generally due to increased traffic disruption which prevents significant work being done on the road deck such as street light upgrading, light arms strengthening, lantern installation, security access upgrades, painting in some positions, asphalt and electrical works. It also ensures that there are workers of a particular grade available to maximise efficiency and there are minimum staff levels of particular positions to enable critical work to be performed. The Commissioner's interpretation of subcl 33.7 of the Award would mean that RMS would be required to roster employees for work during a period when no work or significantly less work is available to be done. Such an interpretation should not be preferred because it fails to accord with practical industrial realities: George A Bond & Co Ltd (In Liq) v McKenzie 1929 AR (NSW) 498 at 503-4; Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96]; Kucks v CSR Ltd (1996) 66 IR 182 at 184. 34. Sixth, the limited circumstances in which RMS and the majority of employees working with the Sydney Harbour Bridge may agree to vary the "current practice of taking annual leave" also supports the appellant's construction. Paragraphs (a) and (b) of subcl 33.7 establish the criteria for the parties being able to make an agreed variation. In general terms, an agreed variation departing from the "current practice" is permitted only where: (a) there is a "minimum period" of annual leave taken during the Christmas period (2 weeks plus public holidays); and (b) if the parties wish to reduce this minimum period, then RMS and a majority of employees working within the relevant work area making an agreement to do so but only as long as the balance of the annual leave is taken at another time which coincides with school holidays (i.e. between Terms 1, 2, 3 and 4). In other words, employees may only take annual leave in more than a single block where there is an agreed variation in accordance with the prescribed criteria. 35. Moreover, the contradistinction between the use of the expression "December-January school holidays" used in the chapeau to subcl 33.7 and "Christmas period" as used in subcl 33.8(a) indicates that they refer to different periods. On one hand, the expression "December-January school holidays" is generally understood to refer to the period from the week before Christmas until Australia Day. On the other hand, the Christmas period usually refers to a much narrower period of time usually between Christmas and New Year. The difference in language supports the construction that the current practice referred to subcl 33.7 is intended to extend for the whole 4 week period during the summer school holidays. If the parties intended to refer to the shorter Christmas period, it would have said so in terms similar to subcl 33.7(a) of the Award. 36. If the Commissioner's construction of the current practice in subcl 33.7 of the Award is correct, then it would, in effect, render the agreed variation provision otiose. There would be no requirement for the parties to make an agreed variation in accordance with the prescribed criteria because, on the Commissioner's construction, the "current practice of taking annual leave" already provides that annual leave is to be taken during two different periods (two weeks including public holidays during Christmas/New Year) and the balance during the Easter school holidays. As a general principle of interpretation, all words, sentences and provisions must be given some meaning and effect and avoid redundancy: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 353 at [71]. If the expression "current practice of taking annual leave" refers to taking 4 weeks' annual leave during the December-January school holidays, then this construction gives effect to a more coherent and intelligible operation of subcl 33.7 of the Award. 37. Seventh, subcl 33.7 has existed in the same or similar form in award applicable to RMS or its predecessors since 2000. The reference to the "current practice of taking annual leave" has been the same, save the omission of the word "all" before the phrase "annual leave". The similar text used in subcl 33.7 in the earlier awards suggests that the current practice is intended to have a stable meaning and operation. It would be a curious outcome that the "current practice" preserved at the commencement of the operation of each award potentially differed, from time to time, in each applicable award. As the Award to the whole of RMS and not just to the Sydney Harbour Bridge maintenance workers, it would be an impractical outcome that the subcl 33.7 preserved a different "current practice of taking annual leave" for different work groups. It would also produce confusion because it would require a reader to ascertain the current practice applicable to the relevant work group at the time of the Award's commencement based on information external to the Award. Such uncertainty in meaning and operation of an important concept would be contrary to a simple and practical operation of the provisions. To avoid such uncertainty, a more sensible meaning to the expression "current practice" is that it refers to a practice defined in subcl 33.7 (i.e. taking 4 weeks annual leave accrued in the 12 month period until 31 December in the December/January school holidays period). 38. Eighth, in construing subcl 33.7 of the Award, the Commissioner appears to have taken into account his view that construction he prefers "gives effect to the objects of the Act by being productive of industrial harmony". The Commissioner erred in doing so. Anteriorly derived notions of what would be a fair or just interpretation of an award provision is irrelevant to the task of construing an award provision: Kucks v CSR Limited (1996) 66 IR 182 at 184; Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (2015) 230 FCR 565 at [155]. 39. Ninth, subcl 33.7 must be read in the context of the other sub-clauses in the Award dealing with annual leave which ensure annual leave is taken to suit RMS's operational needs and convenience: subcll 33.4, 33.5 and 33.6. It makes clear, however, that RMS has a discretion to grant annual leave subject to operational requirements outside of an annual closedown. This, in part, may explain the removal of the word "all" before the words "annual leave" in predecessor provisions to subcl 33.7. It underscores the availability of other rational alternative explanations for removal of the word "all" and the Commissioner's error in assigning undue weight to its deletion from the clause as opposed to construing the language on its own terms and context. 40. For the foregoing reasons, the Commissioner erred in identifying the "current practice of taking annual leave" for the purposes of the Award based on the purported actual annual leave arrangements in place at the time of making the Award, rather than 4 weeks during the December- January school holidays period as expressly identified in subcl 33.7. 41. However, assuming the Commissioner is correct that the current practice must be ascertained at the time of making the Award, the Commissioner also erred in finding that the purported "current practice" comprised a closedown over Christmas involving employees taking generally 6 days' annual leave over Christmas and a closedown over Easter involving employees generally taking 4 days' annual leave over Easter. The Commissioner states that the finding is based on the evidence of Mr Mohammad Quaim (Manager, Sydney Harbour Bridge). His finding is wrong on a number of counts. 42. As a starting point, it is important to establish the meaning of "current practice". The word "practice" means "the customary, habitual, or expected procedure or way of doing of something". The word "current" indicates that the practice must be one that applies to the present situation. The words "current practice" together therefore mean there must be a customary and consistent manner in which the parties expect things to be done. To ascertain the nature of a current practice requires an examination of the manner in which annual leave has been taken over a number of years to demonstrate a consistent or customary pattern of taking leave. 43. Mr Quaim's evidence is that, in accordance with subcl 33.7 of the Award or its predecessors, between 2009 and 2016, RMS had sought and obtained an agreed variation to the default position with a majority of employees working at the Sydney Harbour Bridge to take annual leave during Easter and Christmas. The parties had generally - but not always - made bespoke agreements for annual leave be taken in two portions during Christmas and Easter, the composition of which differed in terms of the number of annual leave days, public holidays and ADOs taken with a balance available to employees to take at another time. No consistent pattern emerges. To the contrary, the evidence reveals that no closedown took place during Easter 2013 and there is no evidence of what occurred in 2015. In fact, it is apparent that, to the extent that a current practice existed, the practice was merely that RMS and the majority of employees employed at the Sydney Harbour Bridge agreed to the variation under subcl 33.7 of the Award or its predecessors. As set out earlier in the submissions, as a matter of construction, it is incoherent and illogical that the default rule (i.e. the current practice) can transform its meaning as a result of multiple applications of the exception (i.e. the agreed variation). It would render inutile the agreed variation process. 44. It follows that the Commissioner erred in finding that the evidence of Mr Quaim established that a "current practice" existed at the time of the making of the Award where employees took 6 days' annual leave over a Christmas closedown and 4 days' annual leave over an Easter closedown. Submissions of the CFMEU 1. The written submissions of the CFMEU focussed primarily on the question of leave to appeal. After dealing with other subclauses of clause 33 of the Award, subclause 33.7 was set out in full and the submissions continued as follows: 8. The evidence before the Commissioner was that at no point had the employees taken all accrued annual leave in the December/January school holiday period. Conventionally, employees took 6 days of annual leave from the Saturday before Christmas Day plus public holidays and accrued days off until the first or second week of January. In the December-January period preceding the making of the Award, employees had taken 6 days of annual leave from the Saturday before Christmas. Generally, 3-4 days of annual leave over the Easter period were taken, meaning employees had a balance of 10-11 days of accrued annual leave to take in accordance with clauses 33.4-33.5 of the Award throughout the remainder of the year. There was no evidence the Appellant had ever instituted, or sought to institute, a requirement to take all accrued annual leave during the entirety of the December/January school holiday period. C. The Appellant's case before Newall C and the decision 9. The Appellant's contentions before the Commissioner were brief. It said that clause 33.7 referred to a 'current practice' of taking annual leave accrued to 31 December each year during the December-January school holiday period. This, it was contended, was consonant with the purpose of the provision. It also said that the 'current practice' could not be construed as referring to a close-down period. The Respondent agreed during its oral submissions that there was no suggestion that it had ever been the practice for employees to take all their accrued annual leave in the December-January school holiday period, or that there was an ability under the Award for the Appellant to impose a close-down over the Christmas or Easter period. 10. The Commissioner, having regard to the plain and ordinary meaning of the terms of clause 33.7, the internal context provided by surrounding clauses and prior iterations of the clause (which had been drawn to his attention by the Appellant in its oral submissions), held that the Award did not confer the Appellant with the power to direct its employees to take all their accrued annual leave in the December/January school holiday period. D. The Application for leave to appeal—the construction of clause 33.7 11. The Appellant complains at paragraphs 21-23 of its submissions that the Commissioner failed to approach the construction of the words of clause 33.7 by reference to their ordinary and grammatical meaning and that he placed too much emphasis on the elision of the word 'all' before the collocation 'annual leave'. The Commissioner directed himself to the principles governing the interpretation of awards in the decision, being those applicable to the interpretation of statutes subject to relevant modifications. These precepts had been summarised in CFMEU's written submissions. He construed the phrase 'current practice' by reference to its ordinary meaning and relevant surrounding provisions. It was evident from the Appellant's submissions below that the former version of the clause under predecessor awards had contained the phrase 'The current practice of taking all annual leave accrued to 31 December' It was entirely permissible and conventional for the Commissioner to take this matter into account. The history of an award clause, like the history of a statutory provision, is a contextual matter able to be considered in construing an award. Further, the Commissioner's references to the previous inclusion of the adjective 'all' needs to be viewed in context. The Appellant had drawn the Commissioner's attention to the change in language between the Award and historical versions of it and had sought to attribute some significance to this. 12. Additionally, the Commissioner's discussion of the lack of the word 'all' was but an instance of him seeking to ascertain the ordinary meaning of the words actually used in the clause. He observed that "the Award cannot be read as if a word that has been deliberately taken out of the Award were still there", as had been suggested to him by the Appellant. There is no substance to the Appellant's complaint at 21-23. 13. The Appellant's submissions at paragraphs 24-25 were not made below. They do not identify any error in approach by the Commissioner and fail to acknowledge that the Commissioner was addressing a submission made by the Appellant which sought to attribute importance to the presence of the adjective 'all' in previous iterations of the Award. 14. The Appellant's contention at paragraph 27 that the 'symmetry' between the December-January school holiday period and the 20 days of accrued annual leave is a matter of significance in interpreting clause 33.7 was not a matter put to the Commissioner. It is ungainly for the Appellant to criticise the Commissioner's decision on grounds that were not put to him. Moreover, this matter does not help the Appellant. First, the December-January school holiday period, as the Appellant notes, extends for over 20 days and generally commences a week or so before Christmas. The symmetry for which the Appellant contends does not exist. The lack of symmetry points squarely against clause 33.7 requiring that all accrued annual leave be taken during the December-January school holiday period. 15. The Appellant asserts at paragraph 29 that the current practice of taking annual leave is equivalent or referable to the 'annual closedown period' described in clause 33.9. It surmises that this is a period of some 4 weeks, during which annual leave, or some other kind of other leave, must be taken. This argument was not put below. The argument is untenable. There is no textual warrant for reading 'annual close down' as equivalent or referable to the entire December-January school holiday period. Clause 33.9 also must be read in light of clause 33.8. The latter deals with close down periods generally, imposing an obligation on the Appellant to provide employees with work, if possible, when they do not have any accrued leave. Use of the indefinite article 'a' in the phrase 'a close-down period' in clause 33.8 demonstrates that multiple close-downs are contemplated during the course of a year, during which employees may take annual leave. This points against there being a 4 week close-down period over the December-January school holidays when employees are required to take all their accrued annual leave. Further, clause 33.9 concerns employees who have exhausted their annual leave entitlements when a close down occurs and ensures that they are paid public holidays (which would include Christmas Day, Boxing Day and New Years Day) when the Appellant closes over Christmas period. It says nothing about any 4-week period during which annual leave must be taken. 16. The historical matters now relied on by the Appellant at paragraph 30 were not raised below. This contention should not be entertained on appeal. In any event, the fact that a heading 'annual closedown' was used in previous awards says nothing about current clause 33.7. It is also noteworthy that there is no scope under the Award for the Appellant to direct that any closedown occur. 17. The argument advanced at paragraph 31 was not put below. What the industrial standards the Appellant draws comfort from are not apparent. Why those industrial standards require a shutdown of operations spanning the entire December-January school holidays (which had never before occurred) is not clear. Additionally, the requirement for annual leave to be taken during the summer school holiday is unsustainable in light of clause 32.5 which requires preference be given for annual leave to be taken in 'whole weeks' from Monday to Friday. The December-January school holiday period does not always fall neatly into Monday to Friday blocs. The Appellant's interpretation most importantly also renders clause 32.4 otiose. If all annual leave accrued over a year is to be taken in one period, there is little utility in having a clause allowing an employee to apply to take leave and for that leave to be granted subject to the Appellant's operational requirements. 18. The Appellant's contention at paragraph 33 is erroneous. Annual leave may be granted at the discretion of the Appellant, subject to operational requirements under clause 32.4. Additionally, it is to be taken at a time convenient to both the Appellant and employee under clause 33.5. There is ample discretion on the part of the Appellant to determine when employees are to take annual leave in line with the Appellant's operational requirements. Further, as the Appellant itself points out, it has power under s 4A of the Annual Holidays Act 1944 (NSW) to give notice of a close down during which employees may take annual leave. 19. The matters raised by the Appellant at paragraph 34-35 say nothing about any deviation by the Commissioner from accepted principles of award interpretation. Its complaint at paragraph 36 is unappealing. The Commissioner's interpretation leaves ample work for the variation procedure to be utilised if geographic, climatic or urgent works arise. This contention was also not put to the Commissioner by the Appellant at the hearing. 20. The submission at paragraph 37 was not expressly made below. Moreover, it fails to grapple with the fact that the Award was made in 2017 with the time period immediately preceding the making of the Award providing the circumstances relevant to the Award's interpretation. It is also not without significance that the Award rescinds and replaces its predecessor. 21. The complaint at paragraph 38 is without substance. The Commissioner's reasons for decision are contained at AB131-139. There is no basis for asserting that his actual reasons convey, or are capable of conveying, that his interpretation is based on any individualised notion of what is fair and just. Furthermore, the Appellant has failed to set out the relevant part of the Commissioner's recommendation in full. At AB128, he details his determination of the correct interpretation of clause 33.7 and goes on to make a further observation that "Quite apart from being the correct outcome, based on the provisions of the 2017 consent award, it is also an outcome which gives effect to the objects of the Act by being productive of industrial harmony". In any event, the construction of industrial instruments that contribute to sensible industrial outcomes that are reasonably open on the language are to be preferred. 22. The Commissioner read clause 33.7 in the context of the surrounding clauses, contrary to the Appellant's submissions at paragraph 39. He directed himself to those provisions and correctly pointed out that clause 33.5 would operate to preclude the Appellant from directing an employee to take all their accrued annual leave during the summer school holiday period, given that annual leave is to be taken at a time convenient to both the Appellant and employee. The Appellant fails to grapple with this latter matter in its submissions. In any event, there was no error of principle in the Commissioner's approach, which rightly considered clause 33.7 in its context. 23. There is no merit in the Appellant's first ground of appeal. No error of principle is identified. The Appellant's case on appeal raises a number of matters not identified below and amounts to nothing more than a quibble with result reached by the Commissioner. In these circumstances, there is no public interest in granting leave. E. The common practice 24. The Appellant says that the Commission erred in determining that there was a current practice of taking 6 days' annual leave at Christmas and 4 days' annual leave over Easter. This was a question of fact. The Commissioner was required by clause 33.7 to determine what the current practice of taking accrued leave was at the time the Award was made. Each year, employees took 6 days of annual leave at Christmas and 3-4 days at Easter. In 2016, in the period immediately before the Award being made, 6 days of annual leave were taken over Christmas and 3 at Easter. The Appellant is wrong to suggest that this was a variation on the alleged 'common practice' of taking all annual leave during the December-January school holiday period. First, there was no such practice. Second, in the options for variation provided to the employees by the Appellant in 2016, employees were offered to take either 11 or 15 days of annual leave over Christmas. These options were not accepted. 6 days of annual leave were taken, consistent with the current practice. No variation to the current practice of taking 6 days of annual leave occurred. Submissions of the AWU 1. The AWU submitted as follows: Problems with the interpretation sought by RMS 21. The first sentence of clause 33.7 of the RMS Award reads: The current practice of taking annual leave accrued to 31 December during the December – January school holiday period will continue. 22. RMS are asking the Commission to accept that the reference to the "current practice" in this sentence means the practice of taking annual leave for the entire school holiday period in December and January each year. 23. Some of the problems with the interpretation proposed by RMS are outlined below. Other clauses become meaningless 24. Clauses 33.4, 33.5 and 33.6 of the RMS Award read: 33.4 Employees can apply to take annual leave. Annual leave is granted at the discretion of RMS subject to operational requirements. 33.5 Annual leave must be taken at a time convenient to RMS and the Employee. However, it is preferred that periods of annual leave plus Public Holidays and ADOs be taken in whole weeks (i.e. Monday to Friday). 33.6 In exceptional circumstances, RMS may allow you to accumulate leave up to 40 working days, provided you agree to take your leave as soon as possible. 25. These clauses give a strong indication that clause 33.7 of the RMS Award is not intended to prescribe that the default arrangement is for all annual leave to be taken during the December to January school holiday period. 26. Clauses 33.4 and 33.5 clearly indicate the RMS Award contemplates leave being taken at varying times of the year and on a discretionary basis – with the application of discretion taking account of the desires of RMS and a particular employee. These clauses are not consistent with all employees taking leave at the same time. 27. It is also hard to fathom why the excessive leave provision in clause 33.6 would ever be required if the default position under the RMS Award is for all annual leave to be taken in a single block during December and January each year. An employee would be unlikely to accrue 40 days of annual leave in those circumstances. 28. When clause 33 of the RMS Award is read as a whole, it does not suggest the RMS Award is intended to impose a default arrangement whereby annual leave is taken for the duration of the December – January school holiday period. There is no evidence of the alleged default approach being applied by RMS 29. None of the material relied upon by the parties in the first instance proceedings reveals a "current practice" of all annual leave being taken by RMS workers during the December to January school holiday period on the Sydney Harbour Bridge or anywhere else. 30. Historical documents concerning close down arrangements on the Sydney Harbour Bridge are contained at annexure 3 to the affidavit of Mr Qaium. The following is noteworthy in relation to these documents: • they consistently refer to a "Christmas closedown" as opposed to a closedown for the December – January school holiday period; • the alleged default approach under the award for leave to be taken for the full December – January school holiday period is never even raised as an option by RMS; and • there is consistent reference to the closedown only being observed "by Wages Staff and Supervisors who are not required to be on duty during the period". A requirement (i.e. not by agreement) to work during the closedown period is inconsistent with RMS's interpretation of clause 33.7. 31. These documents are not at all consistent with a default approach whereby all annual leave accrued during a calendar year is taken in the December – January school holiday period. Absurdity 32. At paragraphs [27] and [29] of its submissions on appeal, RMS refers to the practical outcome of its interpretation of clause 33.7 of the RMS Award being that during the December 2017 – January 2018 school holiday period an employee would be required to take 23 days of accrued annual leave. 33. Leading aside that this period actually appears to constitute 24 days of annual leave, RMS is suggesting that the intent of the RMS Award is for a default approach to annual leave that would generally mandate the taking of several days of unpaid leave by an employee each year. 34. It is a manifestly absurd outcome for the application of annual leave entitlements in an industrial instrument to result in an employee losing pay for several days each year. This outcome would not have been intended by any party and does not result in a "sensible industrial outcome". RMS should reconsider their proposed interpretation 35. RMS suggest at paragraph [33] of their submissions on appeal that: The uncontested evidence is that work on the Sydney Harbour Bridge cannot be done during December or January because a road occupancy licence will not be issued. This submission does not reflect the evidence led by RMS at first instance. 36. Mr Qaium's affidavit states at paragraph [31] (our emphasis): On 27 September 2017, I was given a circular in which the Chief Executive confirms wages staff are to take leave accrued to 31st December 2017 during December/January school holiday period. The Sydney Harbour Bridge would, however, require some staff to work over this period for operational reasons, including New Year's Eve celebrations and electrical breakdown maintenance. 37. This evidence is consistent with the historical leave documents annexed to Mr Qaium's affidavit which consistently indicate some staff will be required to be on duty during the Christmas closedown period. 38. Further, Mr Qaium's affidavit refers at paragraph [32.9] to a target of 750 square metres during January 2017 and this not being achieved. A work target would presumably not be developed for a period in which no work can be performed. 39. The above evidence from Mr Qaium suggests there is a degree of short-sightedness in the approach of RMS to this dispute. 40. On the RMS interpretation of clause 33.7 of the RMS Award, the default practice is for annual leave to be taken for the duration of the December – January school holiday period each year. This practice can only be altered by agreement with a majority of affected employees. 41. However, it is clear from Mr Qaium's evidence that RMS requires wages employees on the Sydney Harbour Bridge to perform work during the January – December school holiday period. 42. On RMS's interpretation, wages employees could not be compelled to work during the December – January school holiday period – the default arrangement would be for annual leave to be taken throughout this period and this situation could only be varied with the agreement of a majority of affected employees. 43. The RMS narrative on leave to appeal refers at paragraph [7] to the public interest in RMS having "certainty over public infrastructure resourcing control". If RMS succeeds with this appeal - they may instantly lose such certainty for New Year's Eve celebrations and electrical breakdown maintenance because they will no longer be able to compel wages employees to perform work during the December – January school holiday period. The public may well be interested in that outcome. Submissions in reply of RMS 1. In its submissions in reply, RMS referred to its previously filed written submissions as "AS" (Appellant's Submissions); to the written submissions of the CFMEU as "RS" (Respondent's Submissions); and to the written submissions of the AWU as "IS" (Intervener's Submissions). The RMS reply submissions contained the following: C. Interpretation of cl 33 of the Award (a) All sub-clauses of clause 33 have work to do 4. The Unions submit that RMS's construction of subcl 33.7 of the Award renders other provisions within cl 33 meaningless: IS [24] - [28]; RS [17]. To the contrary, RMS has advanced a construction where each provision has work to do which is consistent with text and context having regard to the object of the parties. In order to understand the subcl 33.7, it is important to understand the manner in which cl 33 as a whole is intended to operate in practice. 5. Clause 33 of the Award regulates: (a) the accrual (subcll 33.1 - 33.3; subcl 33.6); (b) the granting (subcl 33.4); and (c) the taking (subcll 33.5 and 33.7 - 33.9) of annual leave. 6. An employee does not have an unconditional right to take any amount of annual leave at any time. There are two mechanisms for taking annual leave. Each power must be read subject to the other power in order to give effect to a harmonious operation. 7. The starting point is annual leave mandated to be taken under the Award. Under subcl 33.7, RMS may direct employees to take annual leave in accordance with the "current practice of taking annual leave accrued to 31 December during the December - January school holidays". The current practice applies automatically unless varied by agreement between RMS management and a majority of employees in the relevant work group for reasons including geographic, climatic and urgent works. 8. As set out in AS [28] - [30], the "current practice of taking annual leave" is "the annual closedown period" for the purposes of subcl 33.8 and 33.9 of the Award. By its nature, an annual closedown period applies to a business or part of a business which will be temporarily closed (or reduced to a nucleus) and annual leave is required to be taken by employees during this period. If an employee does not have sufficient annual leave to take during the annual closedown period, then RMS must seek to provide the employee with work or, if no work is available, the employee may be required by RMS to take leave without pay: subcl 33.8. The purpose of the provision is to ensure that RMS is entitled to require employees to remain absent from work during an annual closedown period even though their annual leave is insufficient to cover the whole period. 9. There may be a departure from the default position where an employee applies to take annual leave at another time (subcl 33.4) and RMS exercises its discretion to grant annual leave subject to operational requirements (subcl 33.4) or where staff have accrued over 40 days' leave in accordance with subcl 33.6 of the Award and in accordance with the Premier's Memorandum M2012-07 Reduction of accrued recreation leave balances.. Unlike an annual closedown which applies to the relevant business unit, RMS's decision to grant annual leave is made on an individual basis subject to its operational requirements and convenience or where the leave accrued is more than 40 days. If the timing of annual leave is inconvenient to RMS's operational requirements, then RMS is not required to grant an employee's application to take annual leave: subcl 33.5 In other words, there is no unfettered entitlement given to an employee to take annual leave at a time of his or her own choosing. This is consistent with the standard position under s 3(6)(a) of the Annual Holidays Act 1944 (NSW) (AH Act); cf s 88 of the Fair Work Act 2009 (Cth). 10. As can be seen above, the three grounds upon which an employee may take leave arise out of three different situations. Each ground has different criteria and mechanisms for determining the timing and duration of the leave. The annual closedown provision applies to a situation where a group of employees are required to take annual leave. Subcl 33.7 specifies the time and duration of the annual closedown. The mechanism for varying the timing and duration of the annual closedown is by agreement between RMS management and a majority of employees. The reasons for variation is limited to geographic, climactic and urgent works. By contrast, individual employees may only seek to take annual leave outside the annual closedown period if there is an application to RMS for annual leave and RMS decides to grant such an application to take leave at a time convenient to its operational requirements or there are excessive leave accruals more than 40 days. 11. There is, however, no corresponding provision which enables RMS to direct individual employees to take annual leave outside the annual closedown (cf AH Act, s 3(6)(a)) or in exceptional circumstance where they have accrued over 40 days' leave (subcl 33.6 of the Award) and in accordance with the Premier's Memorandum. It can only do so by varying the current practice under subcl 33.7 with a majority of employees. 12. Reconciling these provisions so that they operate together in a harmonious manner, cl 33 of the Award creates a coherent regime where annual leave is presumed to be taken during annual closedown in the December - January school holidays but the parties are given the flexibility to depart from the default position by majority agreement concerning the timing and duration of the annual closedown (subcl 33.7) or at RMS's discretion to grant annual leave to individual employees subject to its operational requirements and convenience (subcll 33.4 and 33.6). However, where RMS decides to exercise its discretion to grant an individual employee annual leave outside the annual closedown period, then there is a mechanism to ensure RMS is not required to provide work to employees where none is available by requiring the employee to take leave without pay once annual leave has been exhausted. This construction give all provisions within cl 33 of the Award work to do by adjusting the meaning of the competing provisions to achieve a harmonious outcome having regard to the purpose and language and coherence of the statutory scheme: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 328 at [70]. 13. The Unions also refer to subcll 33.5 and 33.6 of the Award in support of their construction of subcl 33.7: RS [18]; IS [27]. None of these provisions have a bearing on the interpretation of subcl 33.7 of the Award. 14. Subcl 33.5 merely records a "preference" and does not mandate that annual leave be taken during whole weeks (i.e. Monday to Friday). Nonetheless, it is plain that subcl 33.5 refers to annual leave applied for and granted in the discretion of RMS under subcl 33.4 of the Award and not the current practice under subcl 33.7. 15. Subcl 33.6 applies only at the discretion of RMS ("may") in exceptional circumstances. There are a number of scenarios where an employee may be allowed to accumulate up to 40 hours of leave in a manner consistent with RMS's interpretation of subcl 33.7 of the Award. For example, the current practice of taking annual leave under subcl 33.7 does not require all employees to take annual leave during an annual closedown and that a core of employees may continue to work during the period. Alternatively, the current practice can be varied by consent so that employees may not be required to take all leave during the annual closedown. Accordingly, there is no strict disconformity between RMS's construction of subcl 33.7 and employees being allowed to accrue up to 40 days' annual leave. (b) 4 week annual closedown period 16. The Unions submit that there is no textual basis for concluding that subcl 33.7 of the Award refers to a 4 week annual closedown period during the December - January school holiday period: RS [15] - [16]; IS [32] - [34]. The Unions, however, do not point to another period of the annual closedown period anchored to the text of the Award. Rather, the Unions submit that the duration of the annual closedown period must be discerned from facts external to the Award. The absence of a textual basis to the Unions' construction of subcl 33.7 points to the unlikelihood that the current practice refers to a free-standing concept which differs between work groups and has a different operation in respect of each iteration of award. 17. As set out in RMS's principal submissions, there are a number of textual and contextual matters which strongly point to the annual closedown period being 4 weeks during the December-January school holiday period: AS [26] - [40]. RMS's construction is consistent with an ordinary and grammatical construction of the provision, a coherent and practical operation of the provisions and industrial principle and history. 18. First, the expression "during the December-January school holiday period" must be given meaning. This requires construing the word "during" and the words "December-January school holiday period". 19. The word "during" can refer to the period "from the beginning to the end of a particular period" or "at some time between the beginning and the end of a period". As a matter of literal interpretation, both meanings are open. It is therefore necessary to understand how it is used from the context of the provision. The Unions do not appear to contest that the December-January school holiday period is a period ascertained by reference to the NSW school holidays period as determined by the NSW Department of Education. 20. RMS submits that the word "during" is a reference to the whole of the school holiday period. This is underscored by the distinction in subcl 3.7 between the use of the expressions "during the December - January school holiday period" (defined as the current practice) and "a minimum of two weeks annual leave for the Christmas period in addition to the Public Holidays" used in paragraph (a) of subcl 33.7 of the Award in relation to any variation to the current practice. As set out in AS [35], the difference in the language suggests that the expression "during the December-January school holiday period" is different to, and longer than, the Christmas period. In addition, the similarity in duration between the December-January school holiday period and the annual leave accrued each calendar year (even though it is acknowledged that these periods may not perfectly match each year) is a contextual matter which supports this conclusion. The Unions have not explained the difference in language used. 21. Second, the Unions' submissions do not give effect to, or explain the need for, the words "annual leave accrued to 31 December" used in subcl 33.7 of the Award: AS [26] - [27]. It seems clear that the words "accrued to 31 December" refers to annual leave accrued during the calendar year. On the construction urged by the Unions, the current practice of taking annual leave refers to six days' annual leave during the Christmas period. However, if this construction were correct, the words "annual leave accrued to 31 December" would serve no purpose and have no work to do. The better construction is that the words are intended to signify the leave accrued during the calendar year would be taken during the December - January school holiday period. 22. Third, no weight is given by the Unions to subcl 33.8 of the Award which permits RMS to direct employees to take leave without pay if an employee has insufficient leave is available to cover a closedown period. RMS's power to direct employees to take annual leave during an annual closedown period is consistent with the standard annual closedown provision. It is expressly contemplated that there may be times when an employee may not have sufficient annual leave to cover a closedown period. This undermines the Unions' submissions that it would be lead to an unfair outcome as employees may not be paid for the whole period of the annual closedown: cf RS [17]; [22]; IS [32] - [34]. 23. Fourth, the references to "a closedown period" in subcl 33.8 and "the annual closedown period" in subcl 33.9 reflect that the parties may agree to have more than one closedown period under subcl 33.7. The difference in language reflects the different purpose and scope of the provisions. In subcl 33.8 of the Award, the reference to a closedown period (using an indefinite article rather than a definite article) indicates that the power to direct employees during a closedown applies to the current practice of an annual closedown or other closedowns as agreed under the variation process under subcl 33.7. This ensures that where the parties agree upon two or more shutdowns, RMS has the power to direct an employee to take leave without pay during each of these closedown periods. On the other hand, the reference to "the annual closedown" in subcl 33.9 suggests that it is directed to the payment of public holidays where leave without pay is required to be taken during the December-January school holiday period (i.e. Christmas Day, Boxing Day, New Year's Day and Australia Day). 24. Fifth, the Unions' submissions ignore industrial context and history. In the construction of an award, it is appropriate to have regard the relevant industrial circumstances in understanding the meaning and operation of subcl 33.7 and the presumption that the parties had agreed to a sensible industrial outcome: see Kucks v CSR Ltd (1996) 66 IR 182 at 184; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]; Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96]. This includes the legislative background and the origins and rationale for relevant legal and award provisions: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [41] - 49]. 25. In their submissions, the Unions do not contest that the standard industrial position embodied in s 4A of the Annual Holidays Act 1944 (NSW) (AH Act) and the test case standards would allow RMS to direct employees to take annual leave during an annual closedown of 4 weeks and, to the extent that employees do not have sufficient annual leave to cover the duration of the annual closedown, then the employee must take leave without pay for the balance of the closedown. The use of the expression "annual closedown" in subcl 33.3 and 33.9 and the fact the heading "annual closedown" has been used as a heading above the relevant provisions in predecessor awards support the position that the parties intended a construction and operation consistent with the standard industrial position. The historical origins and the statutory and industrial context in which the provision arose is a relevant consideration in construing an industrial instrument: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518. The Full Federal Court of Australia in United Voice v Valspar (WPC) Pty Ltd (2014) 218 FCR 521 took a similar approach to the construction of an annual closedown clause contained in an enterprise agreement. In the leading judgment, Buchanan J traced the origins and purposes of the annual closedown provision in industrial awards and construed the relevant clause in light of its original purpose and to preserve its intended operation (at [28] - [46]). A similar approach to the construction of cl 33 should be adopted here. 26. Sixth, the Unions' construction of subcl 33.7 does not produce a coherent interaction between the current practice of taking annual leave and the variation provision under subcl 33.7 of the Award. Neither Union addresses the utility and operation of a variation process to the current practice of taking annual leave under subcl 33.7 let alone provides it with an intelligible operation. 27. If the Commissioner's construction that the current practice constitutes six days annual leave is correct, then then agreed variation process would have the effect of lengthening the duration of the annual leave to a minimum of 2 weeks which can then only be reduced, by majority agreement, to the extent the balance of the holidays is taken to coincide with school holidays. This would lead to a counter-intuitive operation of the variation process. First, it is a curious use of language that the variation process extends the annual leave during the December - January school holiday period from six days to a minimum of 2 weeks by reference to the Christmas period. It makes more sense that the reference to the Christmas period is used to refer to the closedown being shortened from the "December-January school holiday period" rather than lengthened. Second, there is no logical reason to create a minimum period of 2 weeks if the period is being extended. The minimum period of annual leave makes more sense if it is understood as aiming to ensure that there is a minimum period of leave is preserved to coincide with public holidays and school holidays during the Christmas period. Third, it would be odd that the protections contained in paragraph (b) of subcl 33.7 only apply if the parties decided to reduce the minimum period of 2 weeks' annual leave during the Christmas period. If the parties agreed to increase the annual leave during the Christmas period to three weeks, then there would be no protection to ensure that the balance of the annual leave is taken at a time which does not coincide with school holidays. Each of these matters point to a more likely construction that the current practice is a period longer than the Christmas period of 2 weeks and that the variation process is intended to reduce the duration of the December - January school holidays annual closedown. (c) Purported new points of construction 28. The CFMEU claims at numerous stages of its submissions that certain points of construction were not raised below: RS [13]; [16]; [19]. This is slightly misleading in the context in which the points arose. Some of these arguments had not raised by that the Unions but raised by the Commissioner for the first time during argument. So, for example, the Commissioner's reasons that the absence of the word "all" based on earlier predecessor awards had not been raised by the Unions. RMS did not have an opportunity to research and respond to these historical matters at the hearing. 29. In any event, the CFMEU has not cited any authority in support of its proposition that contextual matters in relation to the construction of a provision which had not been raised below cannot be raised on appeal for the first time. A party seeking to advance for the first time on appeal an argument not put at the trial will not be permitted to do so only if the new ground could possibly have been met by calling evidence at the hearing or if the other party might have conducted its case differently at trial: Suttor v Gundowda (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; Sze Tu v Lowe (2014) 89 NSWLR 317 at [136]- [139]; Cassegrain v Cassegrain [2016] NSWCA 71 at [19]. However, where the relevant facts have been established or where the point is one of construction or law, then an appellate court or tribunal generally adopts an expedient approach and, in the interests of justice, entertains the point: University of Wollongong v Metwally (No.2) (1985) 60 ALR 68 at 71; O'Brien v Komesaroff (1982) 150 CLR 310 at 319. 30. In the present case, the relevant matters in dispute arise out of a contested construction of subcl 33.7. The CFMEU has not pointed to any evidence that it could have called to address the question of construction nor any prejudice suffered. Indeed, the Unions do not contest the industrial origins, rationale and operation of the annual closedown provisions in industrial awards or legislation. In United Voice v Valspar (WPC) Pty Ltd (2014) 218 FCR 521, the Full Federal Court did not express any concern that the historical matters relied upon in support of the industrial origins, rationale and operation of an annual closedown provision contained in the relevant enterprise agreement could not be relied upon on appeal even though United Voice had not raised these matters at first instance. There are numerous instances where appellate courts have had regard to background matters such as Second Reading Speeches, Explanatory Notes and predecessor legislation and case law not relied upon below. This is unsurprising given that these matters form part of the background in construing the enterprise agreement and a court or tribunal must have regard to such matters in reaching a proper construction of the relevant provisions. (d) The use of custom and practice in construing subcl 33.7 of the Award 31. The AWU appears to submit that RMS did not apply the default approach in support of its construction: IS [28] - [31]. It is not apparent what principle of statutory construction the AWU seeks to deploy in making this submission although it seems to be based on the proposition that RMS had adopted a custom and practice which is contrary to the interpretation it now seeks to advance. This position is misconceived for a number of reasons. First, the AWU's submission conflates the proper interpretation of the current practice of taking annual leave as defined in subcl 33.7 and the change in the timing of annual leave being taken effected by the variation process. The custom and practice which the AWU relies upon is not the "current practice" but the practice as varied in accordance with subcl 33.7 on a yearly basis. It has no bearing on the proper meaning of the current practice of taking annual leave under subcl 33.7. Second, assuming that such a custom and practice exists, it cannot prevail over the plain meaning of the industrial instrument: City of Wanneroo v Holmes (1989) 30 IR 362 at 378-9. Third, to the extent there is a history of the interpretation of a particular term with a particular meaning, it must be determined that there was a common understanding between the parties to an industrial instrument that the term has such a meaning: Shop Distributive and Allied Employees' Association v Woolworths Ltd (2006) 151 FCR 513 at 520. No such evidence of a common understanding taken during negotiations of the 2017 Award or any other award has been adduced. Fourth, if the parties to predecessor instruments acted upon a common understanding based on inadvertence as to the true meaning of the document, the parties are not legally bound to adopt it in legal proceedings: Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/as Yarra Trams [2013] FCA 330 at [22]. (e) Practical consequences of RMS's interpretation 32. The AWU submits that RMS should reconsider its proposed construction of subcl 33.7 because it would mean no employees would work during the annual closedown period: IS [35] - [42]. RMS does not advance such a construction. RMS submits that the current practice is that it may require certain nominated employees take annual closedown and has the right to require a minimum number of employees to work during the time to enable critical work to perform: AS [32] - [33]. As a matter of industrial principle, an annual closedown enables an employer to retain a nucleus of employees: AS [32]; United Voice v Valspar (WPC) Pty Ltd (2014) 218 FCR 521 at [32] - [42]. D. Current practice 33. The CFMEU submits that there is no basis for dismissing the Commissioner's conclusion that a "common practice" existed where employees at the Sydney Harbour Bridge take 6 days' annual leave during the Christmas period: RS [24] - [26]. However, the CFMEU does not refer to, let alone, answer the matters raised in AS [43]. 34. More importantly, the Unions do not appear to contest that to the extent practice may have existed, it arose out of the application of the variation procedure made under subcl 33.7 and its predecessors under which employees voted on the annual leave arrangements. As set out AS [43], RMS submits that no relevant practice for the purpose of subcl 33.7 can arise by virtue of multiple applications of the variation process under earlier awards. A practice is a customary or habitual procedure or way of doing things which has applied in the past and is expected to apply in the future without further steps being taken. The word practice, however, is inapt to describe similar outcomes of regular agreement between parties where the parties are not bound to reach the same outcome in the future. In the present case, the fact that the parties voted each year in accordance with the variation process is strong evidence that the practice was the conduct of the variation process itself and not the outcome of such agreements. 1. In relation to reliance placed by Newall C on the removal of the word "all" which appeared before the words "annual leave" in previous iterations of subclause 33.7, counsel for RMS put the following in oral submissions before the Full Bench: It is common ground that there is no evidence of the antecedent negotiations or the purpose of the parties by reference to external material, such as negotiations or position papers or any matters before the Commission, which would explain the removal of the word "all" in subclause 6.3.2. The Bench would have read our submissions that there's obviously a risk in seeking to infer the meaning of the current provision by reference to what may or may not have been included in earlier provisions. Assuming that there is some relevance in understanding that, and we obviously do embrace that it is important to understand the historical antecedence of how this clause developed, one has to explain the removal of the word "all". In my submission, there is no natural inference that one can draw from its absence. It can mean simply the parties were tidying up the provision. As I've pointed out in my submissions in chief, the word "all", strictly speaking, is not necessary to explain some things. That's because annual leave is often abundantly clear by reference to the context in which it is used. If one accepts that annual close down, especially having regard to the words "accrued to 31 December" and the other contextual indicators to which I have taken the Commission beforehand, refers to a four week annual close down, the removal of "all" may be simply for the purpose of good grammar; that is, removing unnecessary words because they are redundant. In my submission, that could be one explanation. It may not be the only explanation available in explaining the removal of the word "all". But in the absence of any other material which would explain why it has been removed, there is significant danger in seeking to assign any meaning to the removal of the word "all" unless there are other contextual indicators, whether that be by reference to historical material, in negotiations or otherwise, which would explain its absence. Consideration 1. In State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division the Full Bench of the Commission (Walton J, President, Boland AJ and Tabbaa C) cited with approval the judgement of Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury. The Full Bench stated as follows: Award interpretation 26 This appeal falls mainly to be determined by the application of principles governing the interpretation of awards. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, Walton J, President gave detailed consideration to the principles by reference to relevant authorities including the latest High Court authorities. 27 His Honour was able to distil from the authorities the following statement of principles at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted 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 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 28 His Honour also addressed the question of the extent to which extrinsic material may be employed in award interpretation. In that respect, Walton J concluded: [127] Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. [128] In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible. 29 His Honour considered that the history of a provision of an award may form part of the consideration of context. In that respect, Walton J referred approvingly to what Burchett J (with whom Drummond J agreed) said in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517-518 of the use of history in the interpretation of awards: No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it." ... 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. 30 Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: 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. 31 Walton J completed his examination of the relevant authorities by stating the following conclusions: [142] Of course, a difference in the relative bargaining power of the parties is not relevant to the present matter but the requirement to have regard to all the circumstances of the case in which the actual words used are in harmony with the jurisprudence which I have reviewed above. In short, in the construction of an award, this methodology requires the Court to utilise a broad approach to the relevant words in their context, particularly their industrial context (and this may include relevant permissible extrinsic evidence but must disregard impermissible extrinsic evidence) in order to discern the meaning of those words which the drafters are properly taken to have intended. [143] The adoption of these principles will result, in my view, in avoidance, in the construction of awards, of a strict but unintended technical meaning being attributed to the particular words of an award or too much attention being given to mere infelicitous expression or inconsistencies. The Court should not strive for the discernment of an absurdity. The Court should endeavour to give a provision of an award a meaning consistent with the intention of the parties gathered from the words of the provision and from the whole award, having regard to the industry and industrial relations environment in which the award came to be made. As Kirby J put it, the construction should be one which contributes to a sensible industrial outcome, provided... such an interpretation may reasonably be available from the language used in the provision (that is, from the text of an award). [144] Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo at [57]: ...while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. We adopt his Honour's analysis and the principles and conclusions he draws from the authorities. 1. We will apply the principles of award interpretation as enunciated by Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury and adopted by the Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division. 2. We observe at the outset that we agree with the submissions of the parties that the award is poorly drafted. There are a number of infelicitous expressions and juxtapositions of words and concepts which make construction difficult. The parties will need to address those issues when the award is next reviewed. 3. The dispute between the parties centres on the meaning to be attributed to subclause 33.7 of the Award and, in particular, the sentence: The current practice of taking annual leave accrued to 31 December during the December - January school holiday period will continue. 1. The position of RMS is that the term "current practice" refers to the practice of taking all annual leave during the December – January school holiday period as was expressly stated in predecessor provisions to subclause 33.7 up until the making of the 2005 Award. 2. The position of the CFMEU and the AWU is that the term "current practice" refers to the practice of taking annual leave as it existed as at the time of the making of the Award which commenced operation in July 2017. This practice was in line with the 2009 agreement to the extent that SHBAMU workers took annual leave during shut down periods at Christmas and Easter and then took the balance of their annual leave entitlement throughout the year. 3. We agree with the submissions of RMS on this issue. We determine that the term "current practice", as it is used in subclause 33.7 of the Award and when considered in the context of the history of the provision, refers to the practice of employees taking the annual leave accrued to 31 December during the December – January school holiday period subject to the capacity to vary that practice by agreement between RMS management and the majority of affected employees, as occurred in 2009 and subsequently up until 2017. 4. The term "current practice of staff taking all annual leave" appeared in the predecessor provisions to subclause 33.7 up until the 2005 Award. The "current practice" was capable of being varied by agreement between management and the majority of staff. In 2005 the word "all" was omitted but the other operative parts of the provision did not change. There remained the capacity to vary the "current practice" by agreement. There is no evidence before the Commission, either at first instance or on appeal, that management and the majority of SHBAMU workers agreed to vary the "current practice" of taking the annual leave accrued to 31 December in the December – January school holiday period either before or after the deletion of the word "all" up until the making of the 2009 agreement. The 2009 agreement represented an agreed variation to the "current practice" as did subsequent variations in the years that followed up until 2017. 5. The focus on the word "all" tends to distract from the words (which were and continue to be present in the award) "annual leave accrued to 31 December". These words define the leave to be taken. The word "all" when it existed in the clause was surplusage or tautology. The taking of that "accrued leave in the December – January school holiday period" is the practice to which the clause refers. 6. It follows that the meaning of the term "current practice" remained the same both before and after the deletion of the word "all" in 2005. The term "current practice" did not take on a different meaning as a consequence of the 2009 agreement and subsequent agreements up to and including 2016. Those agreements constituted agreed variations to the "current practice" which are permitted under the terms of the subclause 33.7 of the Award and its predecessor provisions. 7. In the absence of an agreed variation to the "current practice" in 2017, the position, according to the terms of subclause 33.7, reverted to the "current practice" of employees taking their accrued annual leave in the December – January school holiday period. To the extent that Newall C determined to the contrary, the Commissioner fell into error and his decision must be quashed. 8. As the recommendation of the Commissioner was directed to the December 2017/January 2018 period, there is no utility, assuming that this Full Bench has the requisite power on appeal, in interfering with that recommendation. Orders 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Commissioner Newall of 5 October 2017 in this matter is quashed. ********** 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: 04 June 2018