Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council [2003] QIRC 176 (2003) 174 QGIG 465

10 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 465 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – unpaid wages Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch AND Brisbane City Council (No. W29 of 2002) COMMISSIONER ASBURY 25 September 2003 Underpayment of wages s. 278 – Principles relevant to interpretation of industrial instruments – Award provisions for casual employment – Entitlement of casual employees to special night allowance – Application of the doctrine of estoppel – Compounding of casual rates by other penalty payments – Application granted. DECISION 1. Background By an application under s. 278 of the Industrial Relations Act 1999 (the Act) filed on 8 March 2002 (W29 of 2002), the Australian Rail, Tram and Bus Industry Union of Employees Queensland Branch (ARTBU) sought an order for payment of wages and superannuation contributions said to be owed to Mr Robert Bickerton by the Brisbane City Council (the Council). The application and the written and oral submissions of both parties refer to the relevant Award as the Motor and Trolley Bus Drivers, Conductors, etc. Award – State. That Award was rescinded in 1991 and replaced with the Brisbane City Council – Bus Transport Employees’ Award (the Award). It should also be noted that the Award subject of these proceedings, and the provisions which the parties sought to have interpreted were amended by consent, before another member of the Commission with effect from 30 June 2003 in B1843 of 2002. While I accept that the date of effect of this amendment fell between the date this decision was reserved and the date it was released, neither of the parties advised the Commission of the proceedings in B1843 of 2002, which had been on foot since at least December 2002. After hearing further from the parties on 8 September 2003, the Commission determined to deal with W29 of 2003 on the basis of the Award as it stood at the date W29 of 2002 matter was heard, and to give no consideration to the amendment effective 30 June 2003, other than to indicate where that amendment could potentially impact on the conclusions in this decision. The extent of any such impact would need to be determined in the event that further proceedings were initiated by either party to the Award with respect to circumstances arising after 30 June 2003. 2. The application in W29 of 2002 The application in W29 of 2002 as filed (and amended) sought the following amounts said to be payable to Mr Bickerton: • special night allowances – $102.01; • Saturday and Sunday time – $133.77; and • broken shift allowances – $1,561.85. The application has a lengthy history, and has been subject to delays caused by related proceedings touching on the matters subject of it. During a conciliation conference conducted by the Commission as presently constituted, it became apparent that the issue between the parties centred on an interpretation of the Award, and the application of certain provisions to casual employees. Both parties agreed that the matter should proceed to formal hearing, and that the hearing would be conducted by the Commission as presently constituted. W29 of 2002 was programmed for hearing on 3 and 4 June 2003. The Council subsequently sought an adjournment on the basis that the claim had significant implications in terms of work performance, work practices and the exposure of Council to claims by other employees in a similar position to that of Mr Bickerton. The adjournment was agreed to by the ARTBU and further hearing dates were scheduled for 1 and 2 August 2002. On 23 July 2002 Council filed an application seeking a re-opening of an earlier matter, B1881 of 1997. That matter was a variation to the Award to insert the provision for casual employees upon which the argument in W29 of 2003 centred. By letter dated 23 July 2002, the Council sought a further adjournment of W29 of 2002 on the basis that the provisions of the Award should not be interpreted by one member of the Commission when there was an application on foot before another member, seeking a reopening of the proceeding which lead to those provisions being inserted into the Award and their retrospective variation. It was also contended that if the Council succeeded in having the Award varied retrospectively, Mr Bickerton as a casual employee, would have no entitlement to the benefit of the provisions upon which his claim in W29 of 2002 was based. The Commission accepted the Council’s arguments in this regard and adjourned W29 of 2002. 3. The Application for Reopening of B1181 of 1997 The application by Council to reopen B1881 of 1997 was numbered B1174 of 2002. That application sought a re-consideration by the Commission of the terms of the variation to the Award resulting from B1881 of 1997, insofar as the variation related to casual bus drivers. B1174 of 2002 also sought an amendment to the Award retrospective to 16 March 1998, making it clear that casual employees were not entitled to: (i) payment of special night allowance; -- 1 of 8 -- 466 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 October, 2003 (ii) payment of broken shift allowance; and (ii) payment of compounded casual and weekend penalty rates. By a decision of 26 September 2002, reported at 171 QGIG 104, Bloomfield C (as he then was) reopened proceedings, in B1881 of 1997, stating (at 171 QGIG 104 at 108) that: “Taking the whole of the history of the matter into account it is now clear to me that unintended consequences and anomalies could flow from the differing interpretations… being applied to the provision which I determined in March 1998. Consequently, as stated, I believe I have a duty to the parties, in the public interest, to reopen the proceedings so that I might hear further from the parties as to why I should not now further retrospectively vary the Award from 16 March 1998 to: 1. make it clear that broken shift penalties do not apply to casual employees who might be engaged twice on the one day; and 2. make it clear that casual employees are not excluded from an entitlement to special night allowances in circumstances which might otherwise give them an entitlement to such an allowance. However I have decided not to exercise my discretion to re-open the proceedings insofar as they relate to the issue of compounded casual and weekly penalty rates. That matter, to the best of my recollection and research was never discussed during the course of hearings into B1881 of 1997, or during the 13 conferences I chaired in relation to D332 of 1997 and D72 of 1998. In addition, I did not have that matter in mind when I made the variation to the Award to insert casual provisions into the Award. Consequently, it could not be said that there are any unintended consequences which might flow from that variation. The issue simply was not considered by me and nor was it, to the best of my recollection, the subject of discussions between the parties. That leaves me in somewhat of a quandary. The Council has made application pursuant to s. 125 and s. 126 of the Industrial Relations Act 1999 (as part of this application) to retrospectively vary the Award to deal with the issue of payment of compounded casual and weekly penalty rates. At the same time Commissioner Asbury has adjourned proceedings in W29 of 2002 pending the outcome of these proceedings. In the circumstances, I believe it would be inappropriate for me to hear the Council’s application to retrospectively vary the Award in relation to the payment of compounded casual and weekly penalty rates. I have reservations about my capacity to deal with the matter with a totally fresh mind – especially the retrospective variation to the Award – when that matter has previously been argued before me in circumstances where I was responsible for the creation of the existing provision and have participated in extensive discussion with the parties. I think it is appropriate that that aspect of this application be allocated to another Member of the Commission and I do now allocate, in my position as Commissioner Administrator, that aspect of the application to Commissioner Blades (as the Head of the relevant panel) to hear and determine. It will be up to Commissioner Asbury to determine her approach to W29 of 2002 in light of this decision.”. In a decision of 1 November 2002 published at 171 QGIG 400, Bloomfield C amended the Award to exclude casual employees from the provisions relating to the allowance for broken shifts under clause 4.9 of the Award. The amendment was given effect retrospectively from 16 March 1998, the date when the Award was varied to allow for casual employment. The Award was not amended with respect to special night allowance under clause 3.13, on the basis that Bloomfield C considered that whilst he did not intend in March 1998 (i.e. when the Award was initially varied) that casual employees should receive the broken shift allowance, there was no specific intention with respect to special night shift allowance. In this regard, Bloomfield C said (at 171 QGIG 400 at 402) that: “…it needs to be recorded that whilst I did not intend that the 1998 provision would have the effect of depriving casual employees of any entitlement which they would otherwise have, I did not have any specific (positive) intention in mind that they were to be paid the special night allowance. This is to be contrasted with the way I approached the broken shift allowance. There, I positively had in mind that casual bus drivers would not be entitled to payment of such allowance…”. After considering the history of the matter, Bloomfield C proposed to amend the award so that casual bus drivers would not be entitled to payment of special night allowance under clause 13.3 of the Award prior to 26 September 2002, and after that date would be entitled to payment under that clause. It should be noted that the part of the application in B1174 of 2002 dealing with compounded casual and weekly penalty rates allocated to Blades C has not been determined and has not been sought to be activated by the Council at this point in time. The ARTBU appealed the decision of Bloomfield C. 4. ARTBU Appeal against the decision in B1174 of 2002 The decision of the President in the ARTBU appeal – Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council (C93 of 2002) – was published at (2003) 172 QGIG 1093. At 1094, the President said that he could see no error of law in the approach taken by Bloomfield C in determining not to clarify the existence of an entitlement (i.e. special night allowance) retrospectively to 16 March 1998 and that he agreed with that decision. The President also observed that the application for wages owing to Mr Bickerton (W29 of 2002) was still to be determined and the exercise of determining whether, on a proper construction of the Award, casual employees were entitled to the special night allowance had not been undertaken. The President observed that to amend the Award retrospectively to make it clear that casual bus drivers had had an entitlement to the special night allowance may well have involved retrospective imposition of an obligation on the respondent. However, the President went on to hold that there was a difficulty with the decision of Bloomfield C to amend the Award to make it clear that casual employees did not have an entitlement to the special night allowance before 26 September 2002. Essentially it was held that the manner in which Bloomfield C had dealt with the issue of the special night shift allowance had granted the Council protection against retrospectivity, without extending the same protection to the ARTBU. This was because the issue of whether casual employees were or were not entitled to special night allowance remained to be determined, and any entitlement of casual employees to special night allowance, would have been removed retrospectively by the amendment proposed by Bloomfield C. Accordingly the decision of Bloomfield C in B1174 of 2002 was set aside, insofar as it dealt with special night allowance for casual employees. 5. Matters Remaining for Determination by the Commission as Presently Constituted In light of the amendment to the Award in B1174 of 2002 with respect to broken shift allowance, which was not set aside on appeal, the ARTBU did not press this part of its claim in W29 of 2002. The Commission and the Council were advised of this at a directions hearing on 8 April 2003 and again at the hearing of the matter on 2 June 2003. Thus the Commission as presently constituted has before it claims on behalf of Mr Bickerton with respect to: -- 2 of 8 -- 10 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 467 • special night allowance in the sum of $102.01; and • Saturday and Sunday time in the sum of $133.77. The issues for determination are whether, on a proper construction of the Award, Mr Bickerton has an entitlement to the amounts claimed in the circumstances of work performed by him for the Council. It is not disputed by the Council that Mr Bickerton was employed as a casual Bus Operator, and worked as a Bus Driver in that capacity, under the Motor and Trolley Bus Drivers, Conductors, etc. Award Brisbane City Council; Brisbane City Council Enterprise Bargaining Agreement 1999 and Brisbane City Council Enterprise Bargaining Agreement 2001. Further the Council did not dispute that Mr Bickerton had worked on the dates and at the times set out in the Attachments to the application. Given the time period which had elapsed since the matter was first before the Commission and the date when it was heard, the parties were provided with the opportunity to amend written submissions which they had originally filed. The ARTBU relied on its written submissions filed on 8 May 2002, and supplemented those submissions with oral argument at the hearing on 2 June 2003. The Council relied on its written outline of submissions filed on 10 July 2002; a further outline of submissions filed on 109 May 2003; and oral argument at the hearing on 2 June 2002. 6. Relevant Award Provisions Argument centred on clause 3.1(9) of the Award which at the time this matter was heard, provided as follows: “Casual Employee – (i) A casual employee is an employee who is engaged on an hourly basis. (ii) A casual employee will be engaged for a minimum period of work of 2 hours duration and will only be paid for work performed. (iii) There will be a maximum of 2 work periods for a shift of duty. (iv) Casual employees can perform work to a maximum of 25 hours per week averaged over a 12 month period. (v) Casual employees will be paid a loading of 23% in lieu of annual leave and sick leave.”. The quantum of the casual loading was originally 19% but increased to 23% by 2 April 2002, to reflect subsequent general increases to casual loadings applicable as following the decision of a full bench of this Commission in Queensland Council of Unions v Crown and Others (2001) 157 QGIG 389 and the resulting general ruling. The parties referred to the casual loading as 19% and did not make submissions on whether the amendments as a result of the general ruling altered the quantum of the claim in this matter. The following Award provisions were also relevant to the determination of this application: • 3.1(9) Casual Employee; • 3.13 Special Night Allowance; • 4.1 Hours; • 4.8 Saturday and Sunday Time; and • 4.9 Spread of Hours 7. Submissions on Principles of Award Interpretation For the ARTBU it was submitted that the Commission is able to interpret an award where some controversy exists in relation to it, and that caution should be exercised when interpretation depends on disputed questions of fact. Awards are statutory instruments and consequently they must be interpreted in light of the rules applicable to such instruments. Consequently, when the terms of an award are clear and unambiguous, they must be interpreted in accordance with those terms. Reference was made to case law which establishes that the first task in interpreting an award is to find what its words mean in their ordinary and natural significance, or their commonsense English meaning. If the words used are capable in their ordinary sense, of having unambiguous meaning, there is no need to call in aid rules of law relevant to resolving ambiguity, or to consider the supposed intention of the award making tribunal: Re Clothing Trades Award (1950) 68 CAR 597; Norwest Beef Industries Ltd & Anor v Australian Meat Industries Employees Union (WA) (1985) AILR ¶73 at p. 65. Reference was also made to cases law which was said to suggest that a generous rather than literal approach is taken to the interpretation of Awards, and that weight must be given to “industrial realities” in determining which particular meaning ought to be regarded as the one intended by those who made the Award: Re Crown Employees (Overtime) Award (1969) AR 60 at 63 per Sheldon J. It was also submitted that this rule of “generous construction” should not be regarded as granting a license to ignore the actual terms of an award and giving those words a meaning that they could not possibly bear. This would only mislead and confuse those who work under it: Australian Workers’ Union v E A Abbey (1938) 40 CAR 494 at 495. Reference was also made to the decision of Stanley J of the South Australian Industrial Relations Court in Re Federated Liquor and Allied Industries Union re Interpretation of Hotels Clubs etc. Award (1979) AILR ¶321 at p. 284, citing the Hume Pipes Case (1930-31) 11 SAIR 1 at 2, where the principle relevant to the construction of awards are set out as follows: (i) the intention must be gathered from the instrument itself; (ii) the words of the instrument must be taken in their grammatical sense and ordinary usage; (iii) the grammatical and ordinary sense will not be modified unless to avoid absurdity, repugnance or inconsistency; (iv) the instrument must be considered as a whole; and (v) it follows that a bare statement of intention wherever found, cannot of itself govern the legal effect when that legal effect is ascertainable by application of the rules of construction to the document itself. While a generous approach is taken to the interpretation of awards, it is generally required that there be some ambiguity before extrinsic material will be considered, consistent with the general rule as formulated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR at 337. Reference was also made to the decision in Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia & Ors (1998) where it was held that extrinsic material can only be considered if there is an ambiguity in the Award and that regard may be had to such material only for the purpose of demonstrating the mischief to be addressed by the Award, rather than to construe its particular meaning. Finally it was submitted that the existence of anomalies arising from a particular construction of an award should not necessarily preclude the adoption of that construction in the event of a dispute between the parties: Toyota Motor Corp Australia Ltd v AFMEPKIU (2000) 47 AILR ¶4-224. The Council said that the principles of award interpretation set out in the ARTBU submissions could generally be accepted. In addition, Council referred to the principle explained by Burchett J in Short v FW Hercus Pty Ltd (1993) 46 IR 128 at 134-135, to the effect that the circumstances of the origin and use of an award clause are plainly relevant to an understanding of what is likely to have been intended by its use. The context and origin of the Award provisions relating to casual employment were significant in the Council’s submission. When regard was had to the words of the clause itself; the -- 3 of 8 -- 468 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 October, 2003 reasons of the Commission who developed the clause; and the employment context in which the provision was inserted into the Award, a meaning and intent emerges which may not be gleaned from the literal words themselves. That material must be considered in any construction of the Award provisions at issue in this case. 8. Casual employment under the Award Clause 3.1(9) was inserted into the Award by way of a decision of Bloomfield C on 16 March 1998, published at 157 QGIG 213. The ARTBU submitted that it was significant that the casual loading was said to be in lieu of annual leave and sick leave. It was argued that the loading did not “cash out” any other Award entitlements – clause 3.1(9)(e). Further, it was said to be significant that clause 3.1(9)(b) stipulated that a casual employee would only be paid for work performed. In this regard, the ARTBU said that the submissions of the Council when the provision was inserted into the Award were that cost reductions would be achieved by virtue of the employer not being required to make payments for time not worked, such as waiting time. The ARTBU argued that the importance of the limit on payment to work performed, was that it was not directed to the applicable rate for time worked, but merely limited time which the employer was required to pay. This differentiated the casual from the permanent employee, who was paid for a shift irrespective of whether any work was performed. It was also said by the ARTBU to be of significance that the Award was a shift work award. The effect of hours of work provisions in the Award was that a Bus Operator could be rostered to work on any five days in a spread of seven. The consequence flowing from the shift work nature of the Award, was that the Award by and large prescribes ordinary rates of pay. It was submitted by the ARTBU that all Award entitlements, other than annual leave and sick leave, were payable to casual employees, provided those entitlements were in respect of work performed. The Council submitted that clause 3.1(9) of the Award actually performs a dual function, in that it permits the employment of casual employees, while at the same time prescribing certain terms and conditions for their engagement. The provisions had been inserted into the Award following a lengthy debate. The decision of Bloomfield C in inserting those provisions contained many observations and references as to the effect intended to be achieved and many of Council’s arguments in relation to the provision had been accepted. Those observations cast substantial light on the intentions of the Commissioner in inserting casual provisions into the Award. It was also submitted by the Council that because prior to the 1998 variation, the engagement of casual employees was not permitted under the Award, all clauses of the Award had been tailored to the needs and requirements of permanent employment. No alteration was made, or apparently considered to other provisions of the Award when clause 3.1(9) was inserted. In many cases it is clear that existing provisions of the Award applicable to permanent employees could not apply to casual employees. In other cases, while the conflict between provisions is less clear, it is a matter of historical fact that the terms of the Award in existence prior to the insertion of clause 3.1(9) were never designed or drafted with casual employment in mind, and it followed that the Commission had intended that clause 3.1(9) to provide as far as practicable, a self contained code relating to the terms and conditions of employment of casuals. Thus existing Award provisions should be taken as not dealing with casual employees unless those provisions were clearly dealing with an issue that did conflict with or create marked difficulties of interpretation about the terms of clause 3.1(9). Special Night Allowance The ARTBU submission in respect of the entitlement of Mr Bickerton to this allowance is that there is no ambiguity in relation to clause 3.13. The clause provides for an allowance for ordinary time worked which would otherwise be payable at ordinary rates. There is nothing in the clause to indicate that it does not apply to casual employees. Further, the casual loading as specified in clause 3.1.9 is specifically in lieu of annual leave and sick leave and not other payments including special night allowance. Casual loading is not an overtime or a penalty payment. The proviso to the clause that the special night allowance is not payable when overtime or penalty payments are payable, indicates that the allowance is payable in addition to payments which are not overtime or penalty payments, such as casual loadings. The Council submitted that clause 3.13 providing for special night allowance was in the Award prior to the amendment to insert clause 3.1(9) to permit casual employment. Further, the self-contained description of the limitation of hours to be worked by casual employees clearly excluded those employees from the operation of clause 4.1, which makes provision for maximum and minimum hours in a manner which is wholly inconsistent with clause 3.1(9)(b). Clause 3.13 must be read in light of these facts. It refers to the working of “all ordinary time” between the hours of 6.00 p.m. and 7.00 a.m., and imposes a penalty on the working of such ordinary time. The concept of ordinary time is to be found in clause 4.1 and is not mentioned in clause 3.1(9). That clause refers to engagement for periods of work of a minimum of two hours, and no maximum. The upper limit on working hours for casual employees is 25 hours per week, averaged over a twelve month period, with no reference to ordinary or overtime hours. Work beyond an annual average of 25 hours was not permitted for casual employees. This could be contrasted with hours of work provisions for permanent employees, which stipulated a maximum number of ordinary hours work on any day. Against this background, it was submitted, clause 3.13 could have no application to casual employees as they did not work ordinary or overtime hours, but rather, permitted hours within prescribed limitations. The Council also submitted that the ARTBU had expressly withdrawn any objection to Council not paying special night allowance to casual employees, at a conciliation conference conducted by Bloomfield C on 16 September 1998. On the basis of this withdrawal, it was contended that there was a common understanding between the Council, the ARTBU and the Commission that casual provisions in the Award did not permit the payment of that allowance. Council had acted in accordance with that understanding, and it ought to now form the basis of the true meaning of the Award. The Council also submitted that his decision in B1174 of 2002, Bloomfield C (at 171 QGIG 400 at 402) made it clear that he did not have any specific positive intention that casual employees were to be paid the special night shift allowance when varying the Award in 1998. Accordingly, Bloomfield C did not determine, and did not intend to decide that special night allowance should be paid to casual employees. The Council also contended that it was not to the point that Bloomfield C had indicated that had he been requested to do so, he may have considered that issue favourably. Bloomfield C had expressly stated that the 1998 Award amendment should not be taken as having conferred an entitlement to this allowance on casual employees, and the Union should not now be able to seek to recover an entitlement which they had omitted to claim at the time the Award was varied. 9. Saturday and Sunday Work In this part of the claim, the ARTBU sought payment of the casual loading upon the penalty payments for Saturday and Sunday work in clause 4.8 of the Award. The current practice was said to be that casual loading is paid in addition to the Saturday and Sunday rates and was not compounded by those rates. In support of the claim that casual loading should be compounded by the rates in clause 4.8, the ARTBU submitted that there was no ambiguity in that clause, and that rates for work performed on Saturday or Sunday were not expressed as penalty rates. The rates for Saturday and Sunday work constitute ordinary time rates, with a special uplifted rate being paid for ordinary time worked on those days. It is clear from clause 3.1(9) that casual loading is paid in addition to annual leave and sick leave, and is not in substitution for the rates for Saturday and Sunday work. Accordingly, casual loading is the ordinary rate for casual employees and should be compounded by the penalty for working on Saturdays and Sundays as provided in clause 4.8 of the Award. For the Council it was submitted that the rates in clause 4.8 for Saturday and Sunday work are penalty rates not ordinary time rates. The fact that Saturday and Sunday may fall into the ordinary rostered hours days of work for permanent employees, or even casual employees, did not render such payments as being ordinary time rates, and casual loading should not be compounded by those payments. If casual loading was compounded by the rates -- 4 of 8 -- 10 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 469 D:\GAZ1010.DOCGAZ1010.doc in clause 4.8, the result would be the elevation of the casual loading to a substantially greater amount, disproportionate to the amount of actual time worked. As the casual loading was expressed to be in lieu of annual leave and sick leave, there was no basis for suggesting that a casual employee who works on a Saturday or Sunday should be entitled to a greater allowance for annual leave and sick leave than an employee who does not work on those days. A permanent employee does not obtain this benefit, and there is no logical interpretation of the Award which would suggest that a casual employee would be entitled to enhanced sick leave or annual leave benefits in such a case, simply because some weekends are worked. If as the ARTBU submitted, the casual loading was a cashing-out of the named leave entitlements, then those entitlements were the same regardless of the day of the week worked. For these reasons, the casual loading should be paid on the base rate, not the weekend penalty rate. The effect of granting the ARTBU claim would be to provide casual employees with a substantially greater payment on account of leave than their permanently employed counterparts. 10. Conclusions 10.1 Principles applicable to construction of industrial instruments The principles applicable to the construction of industrial instruments are well established. Those principles, many of which were established in relation to awards, are also applicable to certified agreements. Many of the leading cases have been cited by the parties in their submissions in this matter. Generally the following principles may be stated: Industrial instruments are beneficial in nature and the approach to the construction of beneficial statutes is to be preferred, so that consideration should be given to what “mischief” a particular provision is directed to and where it grants a benefit to a person, it should be construed generously to ensure that the benefit is not denied. Industrial instruments should also be construed so that as far as possible, sense is made on the whole, and no clause, sentence or word is superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent: Project Blue Sky v ABA (1998) 194 CLR 355 at 382 per McHugh, Gummow and Kirby and Hayne JJ; The Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ. In Metropolitan Gas Company v The Federated Gas Employees’ Industrial Union and Another (1925) 35 CLR 449 at 455, Isaacs and Rich JJ said: “It is a received canon of interpretation that every passage in a document must be read not as if it were entirely divorced from its context, but as part of the whole instrument…In construing an instrument ‘every part of it should be brought into action, in order to collect from the whole one uniform and consistent sense, if that may be done; or, in other words, the construction must be made upon the entire instrument, and not merely upon disjointed parts of it; the whole context must be considered, in endeavouring to collect the intention of the parties, although the immediate object of inquiry be the meaning of one isolated clause…’. If when so read, the meaning of the section is literally clear and unambiguous, nothing remains but to give effect to the unqualified words.”. The principle expressed by Gummow J in Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 at 63 is also relevant to the construction of industrial instruments: “In dealing with an apparent conundrum…the court should strive to avoid a capricious or irrational result and seek to give each provision a field of operation. In AMP v Utilux [1972] RPC 103 at 109 Lord Reid said that, it being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to whether any other meaning produces a more reasonable result.”. It has also been held that narrow or pedantic approaches are misplaced and the search for meaning must be undertaken bearing in mind that the framers of such instruments are likely to be practical people, concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and its industrial relations environment, than with legal niceties or jargon. However, a tribunal is not free to give effect to some anteriorly derived notion of what is fair and just, regardless of what is written in an award: Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J. A particular industrial instrument provision may have been created by a respected draftsperson for a particular purpose, and then transplanted into other awards. Thus the circumstances and origin of a clause are plainly relevant to an understanding of what is likely to have been intended by its use, and common sense would be offended by a refusal to look at those circumstances: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 517 per Burchett J, citing Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320. The context of an expression may be much more than the words which are its immediate neighbours and may extend to the entire document of which it is a part, or to other documents with which there is an association. Even where language read alone is clear, there may be a requirement to look at the full context: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518-9 per Burchett J. Evidence of surrounding circumstances is admissible to assist in interpretation if the language is ambiguous or is susceptible of more than one meaning, but not to contradict language which has a plain meaning: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 352 per Mason J (as he then was). This Commission has approved a generous approach to finding ambiguity and the admission of extrinsic material to resolve ambiguity. In Bacon Factory’s Union of Employees Qld v Hans Continental Smallgoods Pty Ltd (2002) 169 (QGIG) 199, Fisher C considered that in construing an industrial instrument (in that case a certified agreement) that the Commission should generally err on the side of finding an ambiguity in circumstances where there are rival contentions advanced, and arguable cases can be made out for more than one contention. See also Public Transport Corporation of Victoria v Australian Rail, Tram and Bus Industry Union and Others (Print M2454) where the decision of Grey J in PKIU v Davies Bros Limited (1986) 18 IR 444 was followed. In Queensland Police Union of Employees v Commissioner of Police (2000) 164 QGIG 16 and AWU v James Hardie Australia Pty Ltd (2001) 167 QGIG 280, President Hall approved a “generous approach” to the issue of the consideration of extrinsic material in the interpretation of certified agreements, holding that such material may be considered to expose, as well as to resolve, an ambiguity. The range of extrinsic material which may be considered in the construction of an industrial instrument, is significantly different to that which may be considered in the context of a statute or a commercial contract. Awards commonly contain provisions which are negotiated between the parties to them and inserted by consent. Equally common, are cases where award provisions are the subject of argument before the Commission, and the wording different to that proposed by either party is inserted through arbitration. In such cases the Commission will usually issue a decision giving reasons for the wording of the arbitrated award provision. Applications for amendment of awards and the insertion of new award provisions are also required to contain a sworn statement setting out grounds or material facts supporting the application and parties frequently call evidence and make submissions to support such applications. Similarly certified agreements are required to be accompanied by an affidavit detailing inter alia steps which the parties have taken during the negotiations for agreement. The provisions of the Act relating to the certified agreement also require the Commission to be satisfied that appropriate explanations have been provided to employees about the terms of an agreement for which certification is sought. It is often the case that documents are brought into existence for the purpose of explanation of the terms of the agreement to relevant employees. Further, documents reflecting negotiations such as minutes of meetings have also been considered in cases where the Commission has been called upon to interpret the terms of a certified -- 5 of 8 -- 470 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 October, 2003 agreement: see for example AWU v James Hardie Australia Pty Ltd (2001) 167 QGIG 280 and AWU v Mount Isa Mines Limited (2003) 172 QGIG 1870. This type of material can be considered in the construction of an industrial instrument without offending any of the principles established by courts with respect to the construction of statutes or commercial contracts. 10. 2 Material relevant to the construction of the Award in this case It follows from the case law set out above, that in construing the clauses subject of these proceedings, the Award must be considered as a whole. Applying the generous approach to the issue of whether there is ambiguity in the award provisions, it is my view that both parties have put arguable cases for the competing contentions on interpretation. Consistent with that approach I am of the view that there is prima facie ambiguity and that extrinsic material may be considered for the purpose of exposing or resolving it. Material which I have considered in this case includes the application resulting in the amendment subject of these proceedings; material set out in the application in support of the amendment; the submissions and evidence in those proceedings and the decision of the Commissioner who amended the Award in the terms which are now sought to be interpreted. I have also considered subsequent decisions of the Commissioner who initially amended the Award in 1997 on the re-opening of those proceedings. Also relevant is the context in which the Award operates and the parties to it. Here, the Award in question is not a common rule or general industry award. It affects only two parties, the Council and the ARTBU. Both parties to the Award are large organisations with access to considerable resources and expertise in the area of industrial relations. The casual provisions were inserted into the Award as a result of an application by the Council. It is clear from the decision of Bloomfield C that the amendment granted following an extensive hearing was essentially in the terms sought in the Council’s application, with some minor alterations. In this regard, at (1998) 157 QGIG 213 at 221, Bloomfield C said: “The clause to be inserted is not that which was applied for by the BCC in its Application. I have departed from the clause applied for in several respects, viz. by reducing the number of work periods which can be worked from 3 to 2, and by altering the casual loading to 19% after deleting the reference to long service leave from the group of items covered by such loading.”. It is also clear that prior to the Council’s application in B1881 of 1997, the Award did not allow casual employment and that the application was strongly opposed by the ARTBU. Hence this was not a case where the parties agreed or even substantially agreed upon the terms of the amendment to the Award. This case is somewhat unusual in that the application for reopening of B1881 of 1997 gave rise to a further decision wherein Bloomfield DP commented on whether or not he had certain matters in mind when the Award was varied in 1997. In my view the matters which Bloomfield DP may or may not have had in mind when he varied the Award in B1881 of 1997 were relevant only to the issue of the reopening of B1881 of 1997 and any amendment which may have arisen from that reopening. It is not relevant to the construction of the Award by another member of the Commission. To hold otherwise would mean that parties could argue against the application of particular award provisions long after an award was varied, on the basis that because a particular circumstance was not raised before the Commission at the time of the variation, that the Commissioner did not have that matter in mind, and could not have varied the award so as to impact on that matter. This would lead to absurd outcomes. Bloomfield DP by way of a decision in B1174 of 2002 determined to further amend the Award to give effect to his intention at the time the casual provisions were inserted into it in B1881 of 1997. The fact that Bloomfield DP has stated that he did not have in mind upon varying the Award in B1881 of 1997, whether casual employees should receive compounded penalty rates (171 QGIG 104 at 108) or that he had not had any specific intention with respect to the entitlement of casual employees to the payment of special night allowance (171 QGIG 400 at 402) is therefore irrelevant to the determination of the application in W29 of 2002 and any construction of the Award which flows from that determination. 10.3 Entitlement of Casual Employees to Special Night Allowance I do not accept Council’s argument that clause 3.1(9) provides a self contained code with respect to casual employees. I can see no intention on the part of the Council or the ARTBU to that effect, nor is it apparent that the Commissioner who originally inserted provisions for casual employment into the Award considered that those provisions were self contained. I am also unable to accept the argument that clause 3.1(9) is wholly inconsistent with clause 4.1 and that casual employees are excluded from the operation of clause 4.1 of the Award. Clause 3.1(9)(d) provides a maximum number of hours upon which casual employees can be engaged on average over a twelve month period. It is clearly a restriction on the employment of casual employees per se, rather than an indication of the ordinary hours they may work. The engagement of a casual employee for hours in excess of those prescribed in clause 3.1(9)(d) may constitute a breach of the Award, or may result in a finding that an employee engaged for hours in excess of those prescribed is not a casual employee for other purposes of the Award. It does not follow that the restriction on the number of hours which may be worked by a casual employee, is also a prescription of the ordinary hours of work for that employee. In my view, the maximum ordinary weekly and daily working hours for casual employees are controlled by clause 4.1. If this was not the case, a casual employee could be required, in a particular week or weeks, to work hours in excess of 38, or on a particular day, to work hours in excess of 7.6, with no limitation other than that on an annual basis, such hours would average no more than 25 per week. It would be highly unusual for an award to prescribe no maximum or minimum hours of ordinary work for casual employees. An award could only be construed in this way if it contained a clear and express provision that casual employees had ordinary hours of work which differed from those of weekly or part-time employees. The Award in this case does not contain such a provision, and accordingly the general hours of work provisions in clause 4.1 apply to casual employees. In reaching this conclusion, I have also given consideration to the fact that the application filed by the Council in B1881 of 1997, sought other amendments to the Award besides those providing for casual employment. The application filed on 20 October 1997, also sought amendments to clause 3.13 (Special Night Allowance) and to clause 4.1 (Hours). The Council sought the Special Night Allowance to be payable on a percentage basis, and to amend the hours between which it was payable. The Council did not seek to exclude casual employees from the operation of clause 3.13 notwithstanding that the same application also sought to provide for their employment in an Award which had not previously so provided. The amendment sought to clause 4.1 (Hours), was to increase the maximum number of ordinary hours which could be worked in a day or fortnight. The amendment did not seek to exclude casual employees from the operation of clause 4.1. Clearly the person(s) who drafted the application on behalf of the Council had given consideration to clauses 3.13 and 4.1 at the time that an amendment to provide for casual employment was drafted. That the amendment was significant for the Council is apparent from the application, the transcript of proceedings and the decision in B1881 of 1997. Had the Council intended to exclude casual employees from the operation of clauses 3.13 or 4.1, it would have been a relatively simple exercise for the Council to have drafted its own application accordingly. In my view, the presumption can safely be made that the Council with its access to significant industrial relations expertise, drafted the application in the context of the Award overall, to obtain the flexibility which the grounds in support of the application state it was aimed at achieving. Essentially, Council -- 6 of 8 -- 10 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 471 succeeded with its application and obtained an amendment to the Award to insert a provision allowing for the employment of casual employees, in substantially the terms sought in its application in B1881 of 1997. The Council did not seek to amend clauses 3.13 and 4.1 to exclude casual employees although it sought to amend those clauses in other respects. In these circumstances, Council should not now be able to rely on lack of positive intention on the part of the Commissioner or the parties to the proceedings that casual employees would be entitled to Special Night Shift Allowance to support a contention that they should not be paid that allowance. 10.4 Is the ARTBU estopped from claiming payment of special night allowance for casual employees? The Council’s contentions in relation to the statement made by the ARTBU at conference before Bloomfield C on 16 September 1998 are in effect an argument about estoppel. In essence, the Council is arguing that the ARTBU should be prevented from departing from a representation made before the Commission, upon which it has relied to its detriment. Because the argument was not developed, I am unable to determine what type of estoppel was being contended for. Regardless, it is well established that to work in estoppel, a representation must be clear and unambiguous: Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 at 64 per Denning LJ. The statement made on behalf of the ARTBU was at a conference in relation to a number of disputes between the ARTBU and the Council which were on foot at or around the time that the Award was varied to provide for casual employment. D332 of 1997 was notified by the Council on 17 September 1997 was said to be in relation to cost savings sought by the Council through the following measures: • longer roster cycle; • introduction of a casual roster; • review of some penalty rates; • specific workplace changes; • new classification structure; and • performance management system/Code of conduct. The dispute was allocated to Fisher C and was later reallocated to Bloomfield C (as he then was) and dealt with together with a subsequent dispute D72 of 1998. That dispute was notified by the Council on 26 March 1998 and related to industrial action by bus drivers on or about that day. A notice issued by the ARTBU in relation to those stoppages indicated that they related to: • casuals decision of the Commission; • 80 hour fortnight; • lowering of broken shift penalty rates; • sign on, sign off time; • annual leave; and • extended unpaid meal breaks (90 minutes). The combination of D72 of 1998 and D332 of 1997 came before the Commission on seven occasions between 26 March and 16 September 2003. On 8 September 1998 Bloomfield C issued a Statement and Recommendation. It is clear from that Statement and Recommendation that the matters in dispute between the Council and the ARTBU centred on workplace reform issues arising from the Brisbane Transport Reform Project and a Local Area Agreement signed by those parties in relation to bus operators’ conditions of employment. Part of that Local Area Agreement was to provide for an eighty hour fortnight guaranteed roster cycle and related conditions. It is also clear that the bulk of matters around the eighty hour fortnight had nothing at all to do with the conditions of employment of casual employees. The Statement and Recommendation made no reference to casual employees and the matters covered by it could not apply to them. Notwithstanding that the ARTBU had been in dispute about the decision of the Commission to introduce provisions for casual employment into the Award, the matters canvassed in D72 of 1998 and D332 of 1997 were principally about weekly employees, with any reference to casual employees being limited to how their employment might impact on the terms and conditions of weekly employees. The agreement of the ARTBU on 16 September 1998, to the method by which the Council had been paying special night allowance, must be viewed in context. The context of the ARTBU’s agreement on this matter is that in proceedings on 3 September, Bloomfield C had requested the Council to review its position in relation to how the special night allowance would apply and to prepare material on that matter in the context of the eighty hour guaranteed roster cycle and the spread of ordinary hours in the Award (Transcript p. 44). On 16 September 1998 at the final conference into D72 of 1998 and D332 of 1997, Bloomfield C noted that the Council had prepared the material discussed on 3 September, and had discussed the matter with the ARTBU. At the end of that discussion, the ARTBU had agreed to withdraw its objection to the way that the Council had been dealing with the issue of special night shift allowance and accept the practice then in vogue. Mr Ferguson for the ARTBU made it clear that the Union would continue to accept non payment of the allowance while the eighty hour guarantee was in operation (Transcript p. 51). In my view it is far from clear from the transcript of proceedings in D72 of 1998 and D332 of 1997 referred to by the Council, that the ARTBU agreed that casual employees would not be paid special night allowance. There may be circumstances where statements or undertakings by parties in earlier proceedings, or their failure to raise issues which might reasonably have been raised in earlier proceedings, will form the basis of some form of estoppel in later proceedings. However, because of the status of awards of this Commission, and the provisions of s. 135 of the Act to the effect that awards prevail over inconsistent contracts, the circumstances where a party will be estopped from pursuing an award entitlement will be limited. Such circumstances might exist where there is ambiguity in an award provision and one party has relied to its detriment on statements or undertakings by the other party about the meaning of that provision. They might also exist where an award is facilitative and allows for amendment by agreement, and one party seeks to withdraw agreement or argue that it is not strictly in some form required by the Award, and the other party has relied to its detriment on that agreement. However, a party seeking to establish an equitable estoppel is required to have clean hands. Where there has been a clear and intentional breach of the provisions of an award, it may be difficult to establish an estoppel notwithstanding that the party seeking to do so has relied on a statement or assumption to its detriment. In this case, no issue of estoppel can arise because there was no clear agreement by the ARTBU that casual employees would not be entitled to payment of special night allowance. Accordingly, I find that Mr Bickerton was entitled to payment of the special night shift allowance prescribed in clause 3.13 for all ordinary time worked by him between the hours of 6.00 p.m. and 7.00 a.m. and payable at ordinary rates. It follows that I am also of the view that as a casual employee Mr Bickerton was not excluded from an entitlement to overtime payments for work outside of the ordinary hours prescribed by clause 4.1 of the Award. At any time Mr Bickerton was entitled to overtime payments, he was not entitled to be paid special night allowance in addition. I note that amendments to clause 3.1(9) of the Award may have altered the operation of clause 4.1 with respect when overtime rates are payable. Due to the timing of those amendments, this matter was not argued before me, and I do not determine this point. However, I am of the view that the amendments from 30 June 2003 do not affect my decision with respect to the entitlement of casual employees to the payment of Special Night Shift Allowance for ordinary time under clause 3.13 of the Award. -- 7 of 8 -- 472 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 October, 2003 10.5 Saturday and Sunday Work It has long been established that casual employees get an hourly rate for working ordinary time, and that rate of pay is to be regarded as their ordinary rate of pay for the purpose of calculating overtime and penalty payments. Further, when calculating time and a-half and double time payments, the calculation is made on the hourly rate and not on any lesser amount reached by deducting the allowance made for the casual nature of the employment: Metal Trades Case; Re Nicol Bros and Another (1942) 46 CAR 331 applied in Re Hospital Nurses Award – State (1977) 94 QGIG 907 at 908. There are awards of this Commission which provide that casual loadings are not compounded by penalty or overtime payments. Those awards make it clear that casual loadings are not compounded. A typical clause in this regard is found in the Fast Food Industry Award – South East Queensland (1984) 125 QGIG 889 at clause 9(1). In my view, it is so well established that the hourly rate for casual employees, including casual loading, is compounded by overtime and penalty payments, that in order for this not to be the case, an award must clearly provide to the contrary. In this case, for the reasons outlined above, I can see no basis for the casual provisions of the Award to be read in isolation, and for holding that casual loadings are removed before penalty payments are calculated and then added back to hourly rates so that they do not compound. Accordingly, I find that Mr Bickerton was entitled to have his casual rate, including casual loading, compounded by the multipliers of time and a-half and double time as appropriate, in accordance with the provisions of clause 4.8 of the Award. I am also of the view, that the working time which attracts the penalty rates in clause 4.8 is ordinary time and not overtime. The penalty payment clearly relates to the fact that employees are working ordinary hours on Saturday or Sunday. 10.6 Order I Order that the Brisbane City Council pay to Mr Bickerton the amount of $235.98 comprising the amounts of $102.01 for special night allowance and $133.77 for Saturday and Sunday time within 21 days of the date of release of this decision. I.C. ASBURY, Commissioner. Hearing Details: 2002 2 April 2003 29 May 31 July 1,2 August 19 March 8, 28 April 2 June and 8 September. Appearances: Mr D. Matters and Mr P. Allen for the applicant, the Australian Rail, Tram and Bus Union of Employees, Queensland Branch. Mr J. Thompson, with him Mr G. Newman, Ms K. Odgaard, Mr G. Evans for the respondent, Brisbane City Council. Released: 25 September 2003 -- 8 of 8 --