INTERPRETATION OF CLAUSE 16(2) OF THE GARDENERS (GOVERNMENT) 1986 AWARD NO. 16 OF 1983

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Liquor, Hospitality and Miscellaneous Union, Western Australian Branch

APPLICANT

-v-

The Executive Director, Pilbara TAFE

RESPONDENT

CORAM Commissioner J L Harrison

HEARD Thursday, 5 March 2009

DELIVERED tuesday, 19 May 2009

FILE NO. APPL 76 OF 2008

CITATION NO. 2009 WAIRC 00291

Catchwords Award interpretation - Clause 16(2) of the Gardeners (Government) 1986 Award No 16 of 1983 - Whether Union member was a first aid officer in accordance with Clause 16(2) - Relevant principles to be applied - Industrial Relations Act 1979 s 46

Result Declaration made

Representation 

Applicant Mr M Aulfrey (of Counsel)

Respondent Mr D Matthews (of Counsel)

Reasons for Decision

1         On 12 September 2008 the Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (“the applicant”) lodged an application pursuant to s 46 of the Industrial Relations Act 1979 (“the Act”) for an interpretation of subclause (2) of Clause 16. – First Aid–Kits and Attendants of the Gardeners (Government) 1986 Award No 16 of 1983 (“the Award”).  This application was lodged subsequent to the applicant lodging application C 72 of 2006, pursuant to s 44 of the Act, which dealt with issues relevant to this application.  The background relating to both applications is contained in the memorandum of matters referred for hearing and determination with respect to application CR 72 of 2006 and is as follows:

“1. The applicant claims that Mr Detlev Swoboda was and continues to be a first aid officer as provided for in subclause (2) of Clause 16. – First Aid – Kits and Attendants of the Gardeners (Government) 1986 Award No 16 of 1983 (“the Award”), which reads as follows:

(2) The employer shall, wherever practicable and where there are two or more employees, appoint an employee holding current first aid qualifications from St John Ambulance or similar body to carry out first aid duty at all works or depots where employees are employed.  Such employees so appointed in addition to first aid duties, shall be responsible under the general supervision of the supervisor or foreperson for maintaining the contents of the first aid kit, conveying it to the place of work and keeping it in a readily accessible place for immediate use.

Employees so appointed shall be paid the following rates in addition to their prescribed rate per day:

The applicant therefore argues that the Commission should issue the following declaration:

That Mr Swoboda holds a current first aid qualification from St John Ambulance and was appointed by the respondent to carry out first aid duties pursuant to Clause 16(2) of the Award since the commencement of his employment with the respondent.

2. The Respondent denies the claim and opposes the declaration being sought by the applicant.

Contentions:

Applicant

The applicant claims that Mr Swoboda’s name was added to a list of first aid officers at the South Hedland TAFE from around April 2000 and that in this role he was responsible for the upkeep of the first aid kit in his department.  The applicant also claims that as Mr Swoboda was appointed as a first aid officer then he should be receiving payment of an allowance as an appointed first aid officer in accordance with Clause 16 of the Award.

Respondent

The respondent disputes that Mr Swoboda was appointed as a first aid officer in accordance with Clause 16(2) of the Award.  The respondent also argues that in order for the first aid allowance to be paid to Mr Swoboda pursuant to Clause 16(2) of the Award there must be two or more employees employed in Mr Swoboda’s section.  As the respondent employs one gardener the necessary preconditions for the payment of the first aid allowance have not been met.

Agreed facts:

1. Mr Swoboda commenced employment with the respondent as a Gardener in March 1999 at South Hedland TAFE and his employment conditions are in part contained in the Award.

2. When Mr Swoboda commenced employment with the respondent he had a first aid qualification.”

2         On 17 October 2008 the applicant filed the following statement as a schedule attached to application Appl 76 of 2008:

“1. The title and sections of the relevant award in question is the Gardeners (Government) Award 1986, clause 16(2).

2. The facts giving rise to the application are as follows:

2.1 Mr Detlev Swoboda was employed by the Respondent as a Gardener at South Hedland TAFE, commencing in March 1999.

2.2 Mr Swoboda advised (sic) in his interview prior to commencement with South Hedland TAFE whether he had a first aid certificate, and responded that he did.

2.3 From April 2000 Mr Swoboda’s name was added to a list listing all first aid officers on campus.  He was also responsible for the upkeep of the first aid kit in his Department.

2.4 Pursuant to clause 16(2) of the Gardeners (Government) Award 1986, Mr Swoboda contends he was entitled to an allowance for his position relating to first aid at the TAFE.

2.4(sic) Mr Swoboda has since ceased employment with the respondent.

3. The questions (sic) to be decided in this application are (sic) as follows:

3.1 Whether Mr Swoboda was a first aid officer in accordance with clause 16(2) of the Gardeners (Government) Award 1986.”

Applicant’s evidence

3         Mr Detlev Swoboda confirmed that he was employed by the respondent in March 1999 as a gardener at the respondent’s Hedland College (“the College”).  Mr Swoboda holds an Associate Diploma in Horticulture, a B class driver’s licence and a Senior First Aid Certificate which was current throughout his employment with the respondent.  Mr Swoboda also qualified as a Senior First Aid Instructor during the time he was employed by the respondent (see Exhibit A1).

4         Mr Swoboda gave evidence that when he was interviewed for his job by telephone Mr Tom McQuire, the respondent’s Manager of Facilities, asked him about his qualifications in horticulture as well as his first aid qualifications.  Mr Swoboda stated that after he commenced working with the respondent Mr McQuire asked him if he wanted to be a senior first aid officer and if he agreed to having his name put on the list of first aid contacts and Mr Swoboda stated that he consented to his name being put on this list.  Mr Swoboda gave evidence that he was aware that holding a first aid certificate was not a prerequisite to undertaking his role as a gardener but he stated that it was a desirable qualification.  Mr Swoboda also confirmed that carrying out the role of a first aid officer was not on his Job Description Form (“JDF”).

5         Mr Swoboda stated that after he commenced employment with the respondent he was placed on the respondent’s list of first aid officers and as a result he could be contacted to undertake first aid duties.  Mr Swoboda gave evidence that this list was distributed throughout the College and placed on pin up boards and was regularly updated (see Exhibit A2).

6         Mr Swoboda gave evidence that he updated the contents of the first aid box stored in the gardeners’ storeroom and he stated that he undertook first aid duties from time to time and occasionally filled out incident and accident report forms.  Mr Swoboda stated that on three occasions he was appointed to undertake senior first aid officer duties.  One occasion was during National Aboriginal and Islander Day Observance Committee (“NAIDOC”) week and the others were when he attended at least two Welcome to Hedland nights.  Mr Swoboda stated that he was paid $1.92 for undertaking work as a first aid officer on these occasions and he maintained that these payments were detailed on his payslips.

7         Mr Swoboda stated that his name was taken off the first aid officer list in October 2006 after application C 72 of 2006 was lodged in the Commission.

8         Under cross-examination Mr Swoboda stated that he attended the Welcome to Hedland nights on a voluntary basis after Mr McQuire and other managers asked him to attend these functions.  Mr Swoboda agreed that his attendance at NAIDOC week was voluntary but he stated that this event was held during normal working hours.

9         Mr Swoboda maintained that he was given little opportunity to refuse to have his name included on the first aid contact list and he said that he agreed to have his name put on this list as an act of good faith towards the respondent.

10      Mr Swoboda gave evidence that he first raised the issue of being paid the first aid allowance with Ms Elaine Griggs in 2003 or 2004 and he followed up this claim in June 2006 in a letter he sent to Ms Nerida Kickett (Exhibit R3).  Mr Swoboda stated that he did not raise the payment of this allowance before this time as he was unaware that he had an entitlement to be paid this allowance.  Mr Swoboda stated that he raised the payment of the allowance after experiencing difficulties with one of his managers and Mr Swoboda maintained that as soon as he became aware of his entitlement to the payment of a first aid allowance he immediately followed up this issue.

11      Mr Swoboda believed he had been appointed as a first aid officer pursuant to the Award because his name was on the contact list of first aid officers.

12      Under re-examination Mr Swoboda stated that Ms Norma Robinson, a colleague, had made him aware that he had an entitlement under the Award to the payment of the first aid allowance.

13      +Mr Swoboda stated that his work place was located in the gardening/nursery section of the College and a workshop was attached to this section, which was where the first aid box was located and he stated that employees from the mechanical workshop, which was located opposite his shed, used the first aid box located in his workshop.  Mr Swoboda stated that one other gardener was employed by the respondent at the respondent’s other campus at Pundulmurra, which was approximately 1.5 kilometres from the College.  Mr Swoboda stated that occasionally gardeners were engaged by the respondent on a subcontract basis to undertake gardening duties for a few days at a time and he gave evidence that he was part of a facilities team which included two technicians, a storeperson, a manager and Mr Tallip Groom who was the other gardener working at Pundulmurra.  Mr Swoboda reported to the respondent’s Manager of Facilities who was based in an office near his workshop.

Respondent’s evidence

14      Ms Kickett is the respondent’s Director of Business Services and she has held this position since January 2006.  Ms Kickett was the respondent’s Human Resource Manager between July 2005 and January 2006.  Ms Kickett confirmed that Pundulmurra and the College merged to become one entity in January 2000.

15      Ms Kickett stated that Mr Groom is employed at Pundulmurra to undertake bus driving duties, he assists in maintaining the facilities at Pundulmurra and he is also the facilities caretaker at Pundulmurra.  Ms Kickett stated that Mr Groom is not employed as a gardener and she understands that he is employed under the terms of the Government Officers Salaries, Allowances and Conditions Award 1989 (No PSAA 3 of 1989) (“the GOSAC Award”).

16      Ms Kickett stated that all of the respondent’s staff are offered the opportunity to undertake professional development to obtain first aid qualifications and she stated that there was no link between the offer of this professional development and an employee becoming a first aid officer.

17      Ms Kickett stated that the Welcome to Hedland activities were not held on the respondent’s premises but she confirmed that NAIDOC week was held at the Pundulmurra campus.

18      Ms Kickett stated that the list containing employees holding a first aid certificate was a source for employees to locate persons trained in first aid and Ms Kickett stated that no employee was paid for having his or her name on this list.  Ms Kickett stated that to her knowledge the respondent had no documentation confirming that Mr Swoboda was appointed as a first aid attendant under Clause 16 of the Award.

19      Under cross-examination Ms Kickett stated that employees were expected to participate in NAIDOC week.  Ms Kickett stated that Mr Groom resides at the Pundulmurra campus and to the best of her knowledge he may undertake some gardening duties.  Ms Kickett stated that she was aware that Mr Swoboda had been paid for undertaking first aid duties during NAIDOC week and for working at Welcome to Hedland nights.

20      Ms Kickett was unaware if Mr Swoboda had ever undertaken first aid duties whilst employed by the respondent and she did not know if he had completed any incident reports.  Ms Kickett knew that a first aid kit was located in the gardening workshop but she maintained that facilities employees and not Mr Swoboda stocked this kit however Ms Kickett conceded that Mr Swoboda could have emailed a facilities employee with information to ensure that the first aid kit was properly stocked.  Ms Kickett disagreed that Mr Swoboda was appointed as a first aid officer.

Submissions

Applicant

21      The applicant maintains that the Commission has jurisdiction to deal with this application as this application does not relate to the enforcement of an award entitlement because the issue in dispute turns on the definition of an employee in Clause 16 of the Award and whether or not an employee, in this case Mr Swoboda, was appointed to be a first aid attendant.

22      The applicant argues that the provision in the Award that there must be two or more employees does not have to be met before an employee can be paid the first aid allowance in Clause 16(2) of the Award.  The applicant also submits that in any event the reference in Clause 16(2) of the Award to employees includes employees other than those covered by the Award and includes Mr Groom whose work is in connection with the area and scope of the Award.  The applicant also argues that the reference to teaching or clerical staff being appointed as first aid attendants in Clause 16(3) of the Award contemplates that employees other than those covered by the Award falls under the ambit of the Award for the purposes of Clause 16 of the Award.

23      The applicant argues that Mr Swoboda was appointed as a first aid attendant from the commencement of his employment with the respondent even though the respondent had no formal appointment process in place for appointing a first aid attendant.  The applicant argues that Mr Swoboda’s attendance at NAIDOC week and Welcome to Hedland nights as a first aid officer and the fact that Mr Swoboda was paid three times to undertake first aid duties confirms Mr Swoboda’s appointment as a first aid officer.  The applicant also submits that the removal of Mr Swoboda’s name from the list of persons available to undertake first aid duties in 2006, after he claimed payment for the first aid allowance, was done by the respondent to avoid any further liability with respect to the payment of the allowance.  Additionally, the applicant relies on the discussion between Mr Swoboda and Mr McQuire about Mr Swoboda holding a first aid certificate during Mr Swoboda’s initial interview for his position prior to him commencing employment with the respondent.

24      The applicant submits that Ms Kickett was not in a position to know about the first aid duties undertaken by Mr Swoboda nor would she be aware of any of the incident reports he completed.

25      The applicant argues that Mr Swoboda’s evidence should be accepted as he was a credible witness and his evidence was not shaken under cross-examination.

Respondent

26      The respondent submits that the Commission does not have jurisdiction to deal with this application because what is being sought by the applicant constitutes the enforcement of the payment of the attendant allowance to Mr Swoboda and the respondent argues that the declaration being sought by the applicant is unhelpful and does not advance the applicant’s case.  Specifically, the respondent argues that the applicant is not seeking an interpretation of the Award but a declaration that Mr Swoboda was appointed as a first aid attendant pursuant to Clause 16(2) of the Award and is therefore entitled to the benefit of the payment of the allowance included in this clause.

27      On the issue of merit the respondent submits that Mr Swoboda was not appointed to the position of first aid attendant and he is therefore not entitled to receive the payment contained in Clause 16(2) of the Award and even though the issue of Mr Swoboda having a first aid certificate was mentioned during his interview for employment with the respondent Mr Swoboda was never appointed to be an attendant.  The respondent maintains that the list of first aid officers compiled by the respondent is just a list and does not constitute a formal appointment of first aid attendants.  The three times that Mr Swoboda was paid to undertake first aid duties were for very short periods and therefore little weight can be placed on these payments.  Furthermore, they did not amount to an appointment under Clause 16(2) of the Award.  The respondent argues that the removal of Mr Swoboda’s name from the first aid list is irrelevant as Mr Swoboda was not appointed to the position of first aid attendant and his removal from the list was only done by the respondent out of an abundance of caution.  Additionally, the JDF for Mr Swoboda’s position does not refer to having a first aid certificate as a prerequisite to holding this position.

28      The respondent argues that the reference to employees in Clause 16(2) of the Award can only mean employees employed under the Award and given the way in which the Award is read as a whole it cannot be read in any other way.  As only one employee was employed by the respondent under the Award Mr Swoboda is not entitled to be paid the daily allowance provided for under Clause 16.

Findings and Conclusions

29      The applicant is seeking an answer to the following question:

Whether Mr Swoboda was a first aid officer in accordance with clause 16(2) of the Gardeners (Government) Award 1986.

Jurisdiction

30      The respondent argues that the Commission does not have jurisdiction to deal with this application on the basis that what is being sought by the applicant constitutes the enforcement of the terms of Clause 16(2) of the Award with respect to the payment of the first aid allowance to Mr Swoboda.  In contrast the applicant argues that the issue to be determined by the Commission does not involve the enforcement of the provisions in Clause 16(2) of the Award.  The applicant maintains that the issue before the Commission is not about the respondent paying the first aid allowance to Mr Swoboda but relates to whether or not an employee in Mr Swoboda’s situation was appointed as a first aid attendant which includes the interpretation of the definition of an employee in Clause 16(2).

Consideration

31      I find that the nature of the dispute before the Commission is not one which constitutes the enforcement of the terms of Clause 16(2) of the Award and the Commission therefore has jurisdiction to deal with this application.  In my view the question the applicant is seeking to be answered requires an analysis and interpretation of Clause 16(2) of the Award to determine whether Mr Swoboda was appointed as a first aid attendant taking into account the requirements included in Clause 16(2) of the Award for an employee to be paid the first aid attendant allowance and even if the Commission finds that Mr Swoboda was appointed as a first aid attendant pursuant to Clause 16(2) this cannot result in any order requiring the respondent to pay Mr Swoboda the benefit of the first aid attendant allowance.

Credibility

32      I listened carefully to the evidence given by each witness and closely observed them.  I find that Mr Swoboda gave his evidence honestly and to the best of his recollection and as a result, I accept his evidence.  In particular I found Mr Swoboda to be a forthright witness who gave his evidence in a clear and considered manner and his evidence in my view was not shaken during cross-examination.  Even though Mr Swoboda was questioned closely about a letter he sent to Ms Kickett where he referred to a first aid certificate being a requirement of his job, which was incorrect, I accept his explanation as to why and how this statement came about.  I am of the view that Ms Kickett gave her evidence to the best of her ability however I formed the impression that she was being less than forthcoming when asked about her knowledge as to whether or not Mr Swoboda had undertaken first aid duties as she was aware that he was on the list of employees who were available to undertake first aid duties and she also knew that he had been asked to be available to undertake first aid duties during NAIDOC week and during Welcome to Hedland evenings.  In the circumstances, where there is any conflict in the evidence, I prefer the evidence given by Mr Swoboda.

33      The interpretation of an award is a matter of law.  When interpreting an award one must read the terms of the award, give the words in the clause or clauses in question their ordinary commonsense meaning and ascertain whether the words used have an unambiguous meaning.  If the terms of the Award are clear and unambiguous it is not permissible to look at extrinsic material to qualify the meaning of the clause or clauses in issue (see Norwest Beef Industries Limited and Another v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers (1984) 64 WAIG 2124).

34      In Brown & Root Energy Services Pty Ltd v Construction Industry Long Service Leave Payments Board (2001) 81 WAIG 665 at 671 Smith C, as she was then, observed the following:

"In interpreting industrial instruments tribunals usually do not apply a literal approach, as awards and enterprise agreements may have been drafted by industrial rather than skilled draftsmen (Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights' Union per Kennedy J at 1100).  This approach to interpretation was explained by Street J in Geo A Bond and Co Ltd (in liq) v McKenzie (1929) 28 AR 499 at 503-504—

‘Now, speaking generally, awards are to be interpreted as any other enactment is interpreted.  They lay down the law affecting employers and employees in their relation as such, and they have to be obeyed to the same extent as any other statutory enactment.  But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.’”

35      It was not in dispute and I find that Mr Swoboda commenced employment with the respondent as a gardener in March 1999, he worked in this role at the College until July 2007, throughout the period that Mr Swoboda worked for the respondent he held a current first aid certificate and during Mr Swoboda’s employment with the respondent he qualified as a Senior First Aid Instructor.  I also find on the evidence that Mr Swoboda was the only employee employed by the respondent pursuant to the Award.  It was not in dispute and I find that the respondent placed Mr Swoboda’s name on a list of employees to contact if an employee was in need of first aid assistance soon after he commenced employment with the respondent and the respondent removed Mr Swoboda’s name from this list in October 2006 after the applicant lodged application C 72 of 2006.  It was also the case and I find that Mr Swoboda was asked to and did attend one NAIDOC week celebration and at least two Welcome to Hedland evenings in his capacity as a first aid officer and he was paid a first aid allowance for attending these functions.

36      Clause 16. – First Aid – Kits and Attendants of the Award reads as follows:

“(1) The employer shall provide at each depot an adequate first aid kit for the use of the employees in case of accident, and such first aid kit shall be kept renewed and in proper condition.

(2) The employer shall, wherever practicable and where there are two or more employees, appoint an employee holding current first aid qualifications from St John Ambulance or similar body to carry out first aid duty at all works or depots where employees are employed.  Such employees so appointed in addition to first aid duties, shall be responsible under the general supervision of the supervisor or foreperson for maintaining the contents of the first aid kit, conveying it to the place of work and keeping it in a readily accessible place for immediate use.

Employees so appointed shall be paid the following rates in addition to their prescribed rate per day:

(3) At Education Establishments where the First Aid Attendant is appointed from the teaching or clerical staff, the First Aid Kit will be available for the use of employees covered by this award.”

37      Clause 3. - Area and Scope of the Award reads as follows:

“This award shall apply throughout the State of Western Australia to all employees employed by the respondents to this award in connection with mowing and gardening, and the establishment and/or maintenance of all manner of grounds, gardens, lawns, ovals, propagation, landscaping and horticulture.”

38      The issue in dispute with respect to this application turns on an interpretation of the terms of Clause 16(2) of the Award.  In particular it is necessary to determine whether Mr Swoboda was appointed by the respondent pursuant to Clause 16(2) of the Award to carry out first aid duties and if all of the prerequisites for this appointment detailed in Clause 16(2) of the Award were satisfied.

39      In my view the terms of Clause 16(2) of the Award within the context of Clause 16. – First Aid - Kits and Attendants of the Award and the Award as a whole are clear and unambiguous.

40      Clause 16(1) requires the employer to provide an adequate first aid kit for the use of the employees at each depot in case of an accident and the kit is to be renewed on an ongoing basis.  A Depot is defined in the Australian Concise Oxford Dictionary (2nd Edition, 1992) as:

“1 a storehouse. 2 Mil. a a storehouse for equipment etc. b the headquarters of a regiment. 3 a a building for the servicing, parking, etc. of esp. buses, trains, or goods vehicles. b US a railway or bus station.”

41      It was not in dispute and I find that at Mr Swoboda’s ‘depot’ or the gardening workshop where Mr Swoboda was based, a first aid kit was provided by the respondent.  I also find that the reference to this kit being supplied for the use of the employees in Clause 16(1) refers to employees covered by the scope clause of the Award given the reference to the kit being provided for the employees at each depot.

42      Clause 16(2) provides that where practicable and where there are two or more employees the employer is to appoint an employee who holds current first aid qualifications to carry out first aid duty at all works or depots where employees are employed and such employees shall be responsible, under the supervision of a supervisor, for maintaining the contents of the first aid kit and keeping it in a ready and accessible place for immediate use.  When employees are so appointed they are to be paid a prescribed rate per day and the quantum varies according to whether or not ten employees or less or in excess of ten employees work at the depot.

43      I am of the view that Mr Swoboda was appointed by the respondent to be a first aid officer or attendant however, as all of the pre-conditions for an appointment of this nature in order for the payment of the attendant allowance to be made to Mr Swoboda, as contained in Clause 16(2) of the Award have not been met, I conclude that Mr Swoboda was not appointed as a first aid attendant pursuant to Clause 16(2).

44      The word appoint is defined in the Australian Concise Oxford Dictionary (2nd Edition, 1992) as:

“1 assign a post or office to (appoint him governor; appoint him to govern; appointed to the post)…”.

Even though there was no evidence that Mr Swoboda was officially appointed to be a first aid attendant by the respondent and the respondent did not have a formal process in place to appoint first aid attendants pursuant to the Award or any other industrial instrument covering the respondent’s employees, I find that Mr Swoboda was appointed by the respondent to be a first aid officer or attendant.  I have reached this conclusion based on the following findings.  It was not in dispute and I find that Mr Swoboda held a current first aid certificate throughout his employment with the respondent and the respondent encouraged Mr Swoboda to update these qualifications, the respondent asked Mr Swoboda to consider being place on the first aid contact list and when Mr Swoboda agreed to being on the list he was placed on the respondent’s list of employees who were available to render first aid assistance to the respondent’s employees until October 2006 when his name was removed from the list by the respondent after application C 72 of 2006 was lodged.  During the period that Mr Swoboda was on the respondent’s first aid contact list he was ready and available to render first aid assistance to the respondent’s employees as required, until his name was removed from the list, and on three occasions – once during NAIDOC week and twice during Welcome to Hedland evenings - Mr Swoboda was asked by the respondent and he was available to undertake first aid duties as required and he was paid to undertake these duties.  I also find on the evidence of Mr Swoboda that from time to time he also carried out first aid duties and filled out accidents and incident reports as a result of being placed on the respondent’s list of employees holding first aid qualifications.  It is therefore my view and I find that all of this points to Mr Swoboda being appointed by the respondent to undertake first aid officer or attendant duties.

45      Clause 16(2) of the Award requires that the following conditions be in place before an employee can be appointed as a first aid attendant pursuant to this clause and is then eligible to be paid a daily rate of pay in exchange for that employee being available to undertake first aid attendant duties:

1. the employer shall appoint an employee holding a current first aid qualification where practicable; and

2. the employer shall appoint an employee holding a current first aid qualification as a first aid attendant to carry out first aid duty at all works or depots where employees are employed, where there are two or more employees.

It is also the case that Clause 16(2) provides that where an employee has been appointed as a first aid attendant he or she shall, under the supervision of his or her supervisor or foreperson maintain the contents of the first aid kit, convey it to the place of work and keep it in a readily accessible place for immediate use however this is not a pre-condition to appointment but specifies one of the roles of a first aid attendant.

46      The first requirement is that the appointment of a first aid attendant be practicable.  Practicable is defined in the Australian Concise Oxford Dictionary (2nd Edition, 1992) as:

“1 that can be done or used. 2 possible in practice …”

I find in this instance that it was clearly practicable to appoint Mr Swoboda as a first aid attendant.  Mr Swoboda held a current first aid certificate throughout his employment with the respondent and he was willing to undertake the role of first aid attendant.  In my view it was therefore possible or practicable to appoint Mr Swoboda to be a first aid attendant.

47      The other prerequisite to this appointment relates to whether or not the two or more employees referred to in Clause 16(2) must be employees covered by the Award. The applicant argues that the reference to two or more employees in this clause refers to any or all of the respondent’s employees, including Mr Groom, and is not restricted to employees covered by the Award.  The applicant also argues that as Clause 16(3) of the Award refers to teaching or clerical staff being appointed as first aid attendants this adds weight to its view that the reference to employees in Clause 16(2) contemplates other employees apart from employees covered by the Award.  In the alternative the respondent argues that the reference to two or more employee in Clause 16(2) relates only to employees covered by the Award and this is the only interpretation that can be made given the way in which Clause 16 and the Award as a whole is written.

48      It is my view that on a careful reading of Clause 16 and the Award as a whole, the reference to two or more employees in Clause 16(2) means employees bound by the scope clause of the Award and therefore applies to employees employed by the respondent who undertake work in connection with mowing and gardening and associated duties.  In reaching this view I take into account that Clause 16(1) refers to a first aid kit being made available for the employees attached to a depot which I have already found refers to employees bound by the Award.  In my view it follows that the reference in Clause 16(2) to a first aid attendant being appointed, wherever practicable, to carry out first aid duties at depots or works where there are two or more employees, means that the two or more employees must be employees who are covered by the Award.  I conclude, therefore, that there must be at least two employees covered by the Award before a first aid attendant can be appointed pursuant to Clause 16(2) and receive the allowance provided for under this clause.  I find that the reference to employees not covered by the Award in Clause 16(3) does not assist the applicant’s argument as this clause relates to a situation where the first aid kit at an education establishment is not located at the depot of employees covered by the Award.  For completeness, I find that Mr Swoboda updated and maintained the contents of the first aid kit stored in the gardening workshop even though it is not a pre-condition to appointment as a first aid attendant or for the payment of the first aid attendant allowance.

49      As the evidence was clear that Mr Swoboda was the only employee employed by the respondent under the terms of the Award and was the only employee based at the gardener’s workshop at the College then the second pre-condition for appointment as a first aid attendant pursuant to Clause 16(2) is not satisfied.  Whilst it appears that Mr Groom undertakes some gardening duties at the respondent’s Pundulmurra campus Ms Kickett gave uncontradicted evidence, which I accept, confirming that Mr Groom was employed pursuant to the terms and conditions of the GOSAC Award.

50      In summary I find that Mr Swoboda was appointed by the respondent as a first aid officer or attendant, he updated and maintained the contents of the first aid kit stored in the gardening workshop, it was practicable to appoint Mr Swoboda as a first aid attendant and Mr Swoboda held a current and relevant first aid qualification throughout the period he was employed by the respondent.  However the pre-condition of the appointment as a first aid attendant that there be two or more employees employed by the respondent at all works and depots who are employed pursuant to the Award has not been met as Mr Swoboda was the only employee employed by the respondent under the terms of the Award.  In the circumstances, the answer to the question posed by the applicant is that Mr Swoboda was not appointed as a first aid officer in accordance with Clause 16(2) of the Gardeners (Government) 1986 Award No 16 of 1983.

51      I will therefore issue the following declaration:

THAT Mr Detlev Swoboda was not a first aid officer in accordance with Clause 16(2) of the Gardeners (Government) 1986 Award No 16 of 1983.