Appeal against a decision of the Industrial Magistrates Court given on 25 August 2010 matter no. M 32/2009

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2011 WAIRC 00818

DELIVERED : Wednesday, 10 August 2011

FILE NO. : FBA 17 OF 2010

Appellant

AND

Liquor Hospitality and Miscellaneous Union, Western Australian Branch

Respondent

ON APPEAL FROM:

Jurisdiction : Industrial Magistrates Court

Coram : Industrial Magistrate G Cicchini

Citation : [2010] WAIRC 00305; (2010) 90 WAIG 1542

File No : M 32 of 2009

CatchWords : Industrial Law (WA) - Appeal against order of Industrial Magistrate - Alleged breach of Cleaners and Caretakers (Government) Award 1975 - Whether employee a shift employee or rostered employee within meaning of the Award considered - Principles upon which a court can exercise its discretion to allow new point being raised for first time on appeal considered - Appellant refused leave to rely upon new point raised in grounds of appeal

Legislation : Industrial Relations Act 1979 (WA) s 83(1), s 83(4), s 83A, s 84, s 84(1), s 84(2), s 84(4).

Result : Appeal dismissed

Representation:

Appellant : Mr A Shuy (of counsel) instructed by State Solicitor of Western Australia

Respondent : Mr A Clark

Case(s) referred to in reasons:

Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241; (2005) 79 ALJR 703; (2005) 138 IR 286; (2005) 214 ALR 56

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426

City of Wanneroo v Holmes (1989) 30 IR 362

H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348

Kucks v CSR Ltd (1996) 66 IR 182

Metwally [No 2] v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68

Minister for Health v Hospital Salaried Officers' Association of Western Australia (Union of Workers) (1983) 63 WAIG 1153

The Chief Executive Officer Department of Agriculture and Food v Wall [2011] WAIRC 00263; (2011) 91 WAIG 443

Water Board v Moustakas (1988) 180 CLR 491

Case(s) also cited:

Australian Liquor Hospitality & Miscellaneous Workers Union v Broadlex Cleaning Australia Pty Limited (1997) 78 IR 464

BHP Billiton Iron Ore v AFMEPKJU (2006) 153 IR 397

Boans Ltd v Federated Clerks' Union of Australia. WA Branch (1984) 64 WAIG 651

Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 62 ALR 53

FCU-v- George Moss Ltd (1989) 70 WAIG 3040

Hospital Salaried Officers' Association of WA v Minister for Health (1982) 62 WAIG 2839.

Hospital Salaried Officers' Association of WA v Minister for Health (1982) 63WAIG 13.

Miscellaneous Workers, Union and Sunny West Co-Operative Dairies Ltd (1965) 45 WAIG 246

Transport Workers' Union of Australia, WA Branch v Arrow Holdings Ply Ltd (1989) 69 WAIG 1050

Warren v Coombes (1979) 142 CLR 531

Reasons for Decision

SMITH AP:

Introduction

1          This is an appeal against a decision of the Industrial Magistrate issued on 25 August 2010.  Judgment was entered for the claimant, Liquor Hospitality and Miscellaneous Union, Western Australian Branch (the respondent), against the Minister for Education (the appellant).  The Industrial Magistrate found that between 29 July 2005 and 2 April 2009 the appellant had on 85 separate occasions failed to comply with the Cleaners and Caretakers (Government) Award 1975 (the Award) and made an order that the appellant pay to the respondent for disimbursement to a member of the respondent, Mr Brett Clements, the agreed sum of $3,800.  In the order, the Industrial Magistrate also issued a caution to the appellant in respect of 85 breaches of the Award and made no order as to costs. 

2          The relevant factual circumstances which led to finding that the Award had been contravened are not in dispute.  The respondent is a named party to the Award.  Mr Clements was engaged by the appellant as a cleaner in charge at the Mount Lawley Senior High School during the period 29 July 2005 to 2 April 2009 inclusive.  At all material times Mr Clements’ employment was covered by the provisions of the Award and he worked 40 hours a week.  The school had outsourced its cleaning requirements to contract cleaners and had done so for some years.  Sometime prior to April 2005 a decision was made to return to the use of day labour cleaning at the school.  Mr Shane Longman, the school’s business manager, was responsible for recruiting the day labour cleaning staff.  He recruited Mr Clements as a full-time cleaner in charge.  He also recruited a part-time assistant cleaner in charge and 11 part-time cleaners.  Prior to all cleaners commencing their duties, the cleaning staff, including Mr Clements, participated in an induction process on 14 and 15 April 2005 conducted by the school.  During that process all inductees received an induction booklet containing, among other matters details about their conditions of service (exhibit 5).  The induction booklet relevantly contained a statement that all cleaners who were to work 40 hours per week the general spread of hours for work for cleaning staff was as follows:

(a) 5.30 am to 9.30 am; and

(b) 2.00 pm to 6.00 pm.

3          It is common ground that from 29 July 2005 until 1 April 2009 Mr Clements started work at 5.30 am and continued to work through to 9.30 am at which time he had a break.  He thereafter commenced work at 2.00 pm and finished at 6.00 pm. 

4          It came to the attention of Mr Clements in 2007 during a union training session that his start times may not comply with the provisions of the Award.  This led to a dispute about the start time of 5.30 am because cl 3.1.1(b) of the Award provides that ‘ordinary hours should be worked between the hours of 6.00 am and 7.00 pm, Monday to Friday inclusive’.  This arrangement was capable of authorisation as cl 3.1.1(e)(i) of the Award provided a procedure whereby if the majority of school cleaners, including the cleaner in charge, requests, the start time could be varied to allow cleaners to start earlier than 6.00 am with the written permission of the principal of the school.  Until 2 April 2009 no such arrangement had been put in place.

5          After some delay, in March 2009 Mr Clements held a number of discussions with the school’s business manager which resulted in an arrangement pursuant to cl 3.1.1(e)(i) of the Award to vary the start times being put in place.  As most of the school cleaners were happy to continue to start work at 5.30 am, Mr Clements in accordance with the procedure set out in cl 3.1.1(e)(i) requested written approval for cleaners to commence work at 5.30 am, in lieu of 6.00 am.  On 2 April 2009 the principal of the Mt Lawley school granted approval of that arrangement.

6          The respondent later lodged the claim that the appellant had failed to comply with the Award during the period 29 July 2005 to 2 April 2009 in that it required Mr Clements to start work at 5.30 am instead of 6.00 am on each working day.  The remedy sought was payment of overtime for the 30 minutes worked each day pursuant to cl 3.2.2(a) of the Award which provides as follows:

Except as otherwise provided for in 3.2 – Overtime, and subject to 3.1.2 – Rostered and shift employees, all time worked in excess of or outside of the usual hours or outside the daily spread shall be paid for at the rate of time and one-half for the first two hours and double time thereafter.

7          The central issue in dispute between the parties when the claim was heard by the Industrial Magistrate was whether Mr Clements was directed to work outside the usual hours of work.  This issue is not the subject of any ground of appeal.

The grounds of appeal

1. The learned Industrial Magistrate erred in law in finding that the appellant breached clause 3.2.2(a) of the Cleaners and Caretakers (Government) Award 1975 (Award) by failing to pay the employee the subject of the claim overtime for time worked between 5.30 am and 6.00 am.

Particulars

(a) In the facts and circumstances of the claim the employee was a shift employee under clause 1.5.15 of the Award.

(b) As a shift employee the employee had no fixed daily spread of hours under clause 3.1.2(b)(i) of the Award.

(c) The operation of clause 3.2.2(a) of the Award was subject to clause 3.1.2(b)(i) of the Award and no overtime was attracted.

2. The learned Industrial Magistrate erred in law in not applying the provisions of the Award as they stood between 29 July 2005 and 19 March 2007.

8          The appellant seeks the following orders:

1. The appeal be allowed.

2. The orders of the learned Industrial Magistrate made on 25 August 2010 be quashed.

3. Such further or other order as this Honourable Court thinks fit.

Relevant provisions of the Cleaners and Caretakers (Government) Award 1975

9          The resolution of ground 1 of the appeal turns upon whether Mr Clements is a ‘rostered employee’ or a ‘shift employee’ within the meaning of the Award.  Ground 1 of the appeal turns on a construction of the following provisions of the Award which provide for the working arrangements for rostered employees and shift employees.

10       Clause 1.5.13 defines a rostered employee to mean:

‘[R]ostered employee’ means an employee who is rostered to work day shift on any of the seven days of the week in accordance with 3.1 – Hours.

11       Clause 1.5.15 defines a shift employee to mean:

‘[S]hift employee’ means an employee who is rostered to work outside the ordinary hours of work as prescribed by 3.1 – Hours.

12       Clause 3.1 relevantly provides for hours of work as follows:

3.1.1 (a) Except as otherwise provided for in 3.1 – Hours, the ordinary hours of work shall be 38 per week with the hours actually worked being 40 hours per week or 80 hours per fortnight.

(b) Ordinary hours shall be worked between the hours of 6.00 am and 7.00 pm, Monday to Friday inclusive.

…

(e) (i) Notwithstanding the provisions of 3.1.1(a), where the majority of school cleaners, including the Cleaner in Charge, request, the start time may be varied to allow cleaners to start earlier than 6.00 am with the written permission of the Principal. Under no circumstances are cleaners allowed to start work more than 4.5 hours before the official opening time of the school at which they are employed.

(ii) In considering a request made in accordance with 3.1.1(e)(i), the Principal will take into account, but is not limited to, such factors as:

(aa) operational needs of the schools;

(bb) natural and artificial lighting;

(cc) safety and security of the cleaning staff; and

(dd) security of school premises and property.

(iii) Where the request of cleaners to start earlier than 6.00 am is granted, the loadings prescribed in 5.1 – Special Rates and Provisions of this award will not apply.

(iv) In the event that the Cleaner in Charge does not agree to an earlier start time, but the majority of cleaners do, another cleaner may volunteer to take responsibility for opening the school and switching off the security alarm system.  Under such circumstances, no additional allowances are payable to the cleaner who elects to undertake this duty.

(v) The starting times for cleaners will be reviewed at the end of Term 1 and Term 3 each year.

3.1.2 Rostered and shift employees

(a) The ordinary hours of work for a rostered employee may be worked between the hours of 6.00 am and 7.00 pm on any of the seven days of the week.

(b) Except as provided for in 3.1.6:

(i) the ordinary hours of work for a shift employee or caretaker may be worked on any of the seven days of the week and there shall be no fixed daily spread of hours; and

(ii) the ordinary hours for shift employees shall be worked in not more than ten shifts per fortnight of eight hours each and not more than one shift in every 24 hours.

13       Overtime is provided for in cl 3.2.  Clause 3.2.2(a) provides:

(a) Except as otherwise provided for in 3.2 – Overtime, and subject to 3.1.2 – Rostered and shift employees, all time worked in excess of or outside of the usual hours or outside the daily spread shall be paid for at the rate of time and one-half for the first two hours and double time thereafter.

14       Shift work loadings are set out in cl 3.3.  Clause 3.3 provides:

3.3.1 Subject to 3.3.2, a loading of fifteen per cent of the ordinary wage shall be paid for time worked on afternoon or night shift as defined in 3.3.1(a) and 3.3.1(b):

(a) 'Afternoon shift' means a shift commencing at or after 12.00 noon and before 6.00 pm.

(b) 'Night shift' means a shift commencing at or after 6.00 pm and on or before 4.00 am.

3.3.2 A shift employee shall be paid for ordinary hours worked between midnight on Friday and midnight on Sunday at the rate of time and one half.

3.3.3 The rate prescribed in 3.3.2 shall be in substitution for and not cumulative on the rate prescribed in 3.3.1.

Findings made by the Industrial Magistrate

15       Much of the evidence given by the witnesses and the submissions made by the parties at the hearing before the Industrial Magistrate went to discussions about the starting times for work between Mr Longman and Mr Clements.  After considering all of the evidence the learned Industrial Magistrate found that there was never any agreement concerning the earlier starting time at 5.30 am and that the work times were presented as an inflexible condition of employment. 

16       The learned Industrial Magistrate found that cl 3.1.1(b) of the Award provides that ordinary hours are to be worked between 6.00 am and 7.00 pm Monday to Friday inclusive and the corollary of that is that work done outside of those times on those days and any hours worked on a Saturday and/or Sunday are not ordinary hours [19].  He also held that the effect of cl 3.1.1(e)(i) is that the spread of hours can be changed to run between the agreed earlier starting time and the finishing time stipulated in the Award. 

17       The appellant argued at first instance that by starting earlier than otherwise permitted in writing, the cleaners committed breaches of the Award, albeit unwittingly.  That argument was rejected by the learned Industrial Magistrate.  He found that cl 3.1.1(e) of the Award was not concerned with prohibition; but subject to the limitations contained therein, with the facilitation of an earlier starting time [21].  Another argument put forward by the appellant was that the spread of hours set out in cl 3.1.1(b) did not have application to Mr Clements and the other cleaners, because their start times were regulated outside of the Award.  In support of that contention, the appellant argued that based on a historical overview of cl 3.1.1, the words ‘except as otherwise provided for in cl 3.1 – Hours’ in cl 3.1.1(a) of the Award, limited the operation of cl 3.1.1(b).  The learned Industrial Magistrate rejected that argument.  After having regard to the established principles of interpretation of industrial instruments, he held [25]:

The words of subclause 3.1.1(b) are plain.  They do not draw confusion or ambiguity.  The subclause makes it clear that all hours worked between 6.00 am and 7.00 am Monday to Friday inclusive are to be classified as ordinary hours.  Given that its terms are clear there is no need to look elsewhere in order to construe it.  Indeed the language used is not only plain but also explicit.  In those circumstances it is inappropriate for it to be construed so as to import the exception in subclause 3.1.1(a).  Although I accept that errors have occurred in the Award modernisation process, it does not follow that there was an error made in subclause 3.1.1(b) and that the parties to it had intended that it be subject to the same exception as in subclause 3.1.1(a).  In my view, such an approach invites speculation. 

18       The learned Industrial Magistrate then had regard to the fact that it was not in dispute that during the material period, Mr Clements commenced work at 5.30 am and found that the appellant’s officer instructed him to do so.  As a consequence, the learned Industrial Magistrate then went on to find, Mr Clements started work outside of ordinary hours and was entitled to be paid overtime rates in accordance with cl 3.2.2(a) of the Award.  The learned Industrial Magistrate then found [28] – [29]:

Clause 3.2.2(a) is clear and unambiguous.  It provides for the payment of overtime rates for hours worked ‘in excess of or outside’ of the usual hours.  The words ‘outside of’ refers to work carried out before or after usual hours.  In the current context usual hours can only mean the ordinary hours as permitted by the Award.  What is meant by ordinary hours may be different dependant upon the nature of employment.  For example the ordinary hours of rostered and shift employees are between 6.00 am and 7.00 pm seven days a week (see subclause 3.1.2(a)). 

The language of subclause 3.2.2 makes it clear those employees who works outside of their ordinary hours or outside the duly spread of hours are to be paid at overtime rates.

19       For these reasons, it was found that the appellant obliged Mr Clements to start work at a time earlier than provided by cl 3.1.1(b) of the Award.  The earlier start time did not arise out of an agreement but from a directive given by the school to Mr Clements that Mr Clements work outside his ordinary hours.  Consequently the Industrial Magistrate found that the claim was proven as Mr Clements should have been paid at overtime rates for the first half hour worked each day but was not.

Hearing of the appeal

20       The hearing of this appeal was first listed for hearing on 12 January 2011.  On this occasion the Full Bench informed the appellant that it had significant difficulty with ground 1 of the appeal in that it raised a new argument that appeared not to have been pleaded in defence at first instance, nor put to the learned Industrial Magistrate.  This raised a principle established by the High Court in Metwally [No 2] v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 where the Full Court observed (71):

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. It is impossible to regard the court's answer to question (ii) as intended to be subject to the correctness of the unexpressed assumption that the 1975 Act was valid and, in consequence, to give the answer a merely conditional effect. If it had been suggested that the answer to the question was intended to be only a provisional one the court would not have dealt with the matter. It is quite irrelevant that Mr Metwally was permitted, under the rules of the Court of Appeal, to give the notice of contention which he gave. Those rules could not alter the rights of parties under an order made in this court and were not intended to do so.

21       As the appellant’s submissions did not address this issue, the appeal was adjourned for the appellant to take instructions.

22       On 24 March 2011, the appellant’s solicitors advised the Full Bench that they wished the matter to be listed for hearing.  On 30 May 2011, the appellant filed a supplementary outline of submissions addressing whether ground 1 of the appeal was raised in the court below.

Was the issue raised in ground 1 taken in the court below?

23       The principles upon which a court can exercise its discretion to allow a point being raised for the first time on appeal was considered by the High Court in Water Board v Moustakas (1988) 180 CLR 491 by Mason CJ, Wilson, Brennan, Dawson JJ where their Honours observed (497 - 498):

More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.

In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged. In Leotta v Public Transport Commission (N.S.W.), a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ. observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (N.S.W.), Jacobs J., with whom the other members of the Court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularizing the existing issue had emerged at the trial and had been litigated.

It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal.

…

It is true that in Maloney it was recognized that in ‘very exceptional cases’ a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant (footnotes omitted).

24       In H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 Branson and Katz JJ notably said [7] and [8]:

As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe (1986) 162 CLR 1 at 7:

'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.'

In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.

25       When assessing whether it would be expedient in the interests of justice to allow a new point to be raised Branson and Katz JJ also had regard to whether the point had any merit [9].

26       From these passages the following principles guide when a finding could be made that it is expedient and in the interests of justice to entertain a point:

(a) The point must be one of construction or of law and not be met by calling evidence.

(b) In deciding whether or not a point was raised at trial no narrow or technical view should be taken.  Ordinarily the pleadings will be of assistance. 

(c) In very exceptional cases an omission to put a case formulated on appeal may not be conclusive.  The opportunity to assert the new case should be granted only where the interests of justice require it and such a course can be taken without prejudice to the defendant.

(d) Consideration of the interests of justice should extend to a consideration of relevant matters beyond the interests of the parties to the interests of other litigants and efficient case management.

(e) When assessing the interests of justice, the merit of the new point sought to be raised is a relevant consideration.

27       The appellant says when an examination of the pleadings and submissions are analysed in a way that is not narrow nor technical, the issue sought to be raised in ground 1 of the appeal was raised by the appellant at trial as an alternative argument.

28       The appellant’s primary submission at trial was based on an argument that cl 3.1.1(e) of the Award prohibits school cleaners from starting early without written permission, so that no overtime is attracted for time worked before 6.00 am without written permission.  The appellant says the second argument put in the alternative at trial was based on a decision of the Industrial Appeal Court in Minister for Health v Hospital Salaried Officers' Association of Western Australia (Union of Workers) (1983) 63 WAIG 1153 (the Hospital Salaried Officers case).  In that matter, the employee in question was found to be a ‘shift worker’ and not a ‘day worker’ for work carried out on Saturdays.  The appellant says it inferentially raised an argument before the learned Industrial Magistrate that Mr Clements was a shift worker within the meaning of cl 3.1.2(b)(i) of the Award as it was argued the facts established that Mr Clements had no ‘spread of hours’.

29       The respondent says that the point now sought to be raised on appeal was not taken at the trial.  In particular, of significance among none of the submissions made, or in the evidence, was there any suggestion by the appellant that Mr Clements was other than a rostered employee.  The respondent says the appellant is now attempting to re-open the case based on an argument it did not take up.  The appellant did not question its own witness on this point and it did not question Mr Clements about this issue.  Nor did the appellant rely upon the Hospital Salaried Officers case. 

30       In support of the contention the issue pleaded in ground 1 of the appeal was raised at trial the appellant refers to the following matters pleaded in the statement of claim, the appellant’s particulars of response and oral submissions:

(a) Paragraphs 2.8 and 2.9 of the respondent’s statement of claim set out and plead the relevant clauses of the Award as cl 3.1.1(a), cl 3.1.1(b), cl 3.1.2(a) and cl 3.2.2(a) (AB 8).

(b) The appellant in its particulars of the response did not plead to paragraphs 2.8 and 2.9 of the respondent’s statement of claim and simply said the appellant would refer to the Award for its full terms and effect (paragraph 4 of particulars of response (AB 53, AB 54)).

(c) The appellant in its particulars of response also pleaded that Mr Clements’ ‘usual’ hours of work were 5.30 am to 9.30 am and 2.00 pm to 6.00 pm Monday to Friday (paragraph 5 (Q) of particulars of response (AB 55)).

(d) In paragraph 12 of the respondent's outline of submissions filed on 21 April 2010 the respondent pleaded that pursuant to cl 3.1.2 the hours of rostered and shift employees cannot be set outside the hours of 6.00 am and 7.00 pm.  The appellant points out that this is incorrect as that provision only applies to rostered employees and not shift employees.  In any event, that clause refers to ‘ordinary hours’.

31       In closing submissions both parties referred to the Industrial Appeal Court decision in the Hospital Salaried Officers case.  In particular, the appellant’s counsel in closing submissions made the following submission about the Hospital Salaried Officers case:

The reason I refer to this case is because my learned friend submits that it's distinguishable, and the basis for that is that the overtime provision in that case is different from the one in our case because this one refers to ‘in excess of’ only. If I could turn your Honour to the bottom right-hand side of the first page of that judgment where it cites clause 14, and that provides:

Subject to the provisions of subclauses (3) and (11) of this clause, and except as provided in subclause (2) of this clause, all time worked at the direction of the employer outside a worker's ordinary hours shall be paid for at the rate of time and a half for the first three hours and double time thereafter.

It appears to me, on reading that provision, that it's effectively the same as the provision that we have in our award, especially if ordinary hours means the same as usual hours, as is contended. Then if you look at the definition of ‘day worker’ on the left-hand side of that page, just directly opposite, we can see that the ordinary hours are defined for a day worker and that anyone else is a shift worker. And then at the hours provision at the bottom, going over to the top of the next column:

The ordinary hours shall not exceed 37 and a half in any week nor seven and a half in any day and such hours shall be worked on five consecutive days in each week.

Then it says in 2(a) over the page:

A worker shall not be required to work his ordinary hours on afternoon or night shift or on a Saturday or Sunday unless the employer and the Union agree that the hours may be so worked.

What that does is, that prevents a worker being able to be required to work ordinary hours on afternoon or night shift or on a Saturday or Sunday unless it's agreed with the Union. That's an obligation on the employer. In our case, we've got a start time provision which puts the obligation on the employee to seek written permission. So we say that, if this case was distinguishable, it's only distinguishable in the fact that we don't even get to the stage of looking at this case because it's not the employer that's bound in our case; it's the employee. Nevertheless, if a finding is made to the contrary of the submissions I've made thus far, this case would be on all fours with this case.

Obviously we don't rely on this case because we rely on our primary submissions. However, there appears to be a misunderstanding between the parties as to the daily spread of hours for different types of employees. In the applicant's submissions at paragraphs 11 and 12, reference is made to clause 3.1.2 and it's headed, Rostered and Shift Employees. However, what's cited there is only a partial citation. You actually have to look at the next provision to see what applies for shift employees. And if one looks to that next provision, one sees that:

The ordinary hours of work for a shift employee or caretaker may be worked on any of the seven days of the week and there shall be no fixed daily spread of hours.

So if we get as far as this case that's been cited by the applicants, it doesn't result in any different conclusion, in our submission, from what we're submitting initially, which is that there is no spread of hours for school cleaners that are working before 6 am. And that's so, whether or not the employee or the employer was in breach of the award because in this case it was the employer that was in breach; in this case, it's the employee. It's hard to see how one can arrive at a different result in those circumstances. I've no further submissions, your Honour.

32       Having considered the matters pleaded by both parties and the submissions made by the appellant’s counsel at first instance, I am not persuaded that the issue raised in ground 1 of the appeal can be said to have been raised at the hearing at first instance as all that occurred was the raising of a contention that Mr Clements had no spread of hours.  Although one of the features of a ‘shift worker’ within the meaning of that term under the Award, is that pursuant to cl 3.1.2(b) a shift employee has no spread of hours, this observation was put without any argument being put that where a cleaner has no spread of hours, it should be found that in the circumstances Mr Clements was a shift employee and not entitled to overtime.  It could be argued that this was because the work performed before 6.00 am was not outside his ordinary hours or usual hours within the meaning of cl 3.2.2(a) of the Award.

33       Clearly the point was not developed in any meaningful way in the hearing before the learned Industrial Magistrate.  For this reason, I find that the issue raised in ground 1 of the appeal was not raised at first instance.

If the point was not taken below, can the appeal be entertained?

34       The decision in Moustakas establishes the principle that a ground of appeal not raised as an issue at trial may be entertained if the point is solely one of construction, cannot be met by the calling of evidence, will result in no prejudice to the respondent and is expedient to do so in the interests of justice.  The appellant says there is no prejudice to the respondent as the point turns solely on a point of construction and not evidence.  Nor is it a matter of intention.  They say the material evidence is clear and uncontested.  The evidence unequivocally establishes that Mr Clements worked from 5.30 am each day.  This fact is all that is needed to be known to determine this point of construction.  There is no prejudice to the respondent because the employee has been paid the overtime underpayment.  It is also said it is expedient and in the interests of justice to entertain the appeal because it has the potential to avoid prolonged litigation and remove the possibility of an inconsistent decision being made in the Industrial Magistrates Court in respect of a number of similar matters in M 113 of 2010.  M 113 of 2010 alleges multiple ongoing failures to pay overtime to 441 school cleaners from and between 1 January 2005 to 8 November 2010.  In that matter school cleaners are alleged to have started early without written permission under cl 3.1.1(e) of the Award.  The hearing and determination of M 113 of 2010 has been adjourned by consent by the Industrial Magistrate pending the outcome of this appeal as the same issue sought to be argued in ground 1 of this appeal will arise in that matter.

35       The respondent does not concede the issue sought to be raised in ground 1 of the appeal could not be met by evidence.  In particular, they say if the issue was raised before the Industrial Magistrate in this matter it would have been open to adduce evidence that the appellant did not regard, nor treat Mr Clements as a shift employee.  Whilst they agree that the matters in M 113 of 2010 could raise the same issue sought to be raised in ground 1 of the appeal, the respondent is of the opinion that the circumstances giving rise to a commencement time of cleaning work prior to 6.00 am in M 113 of 2010 are different to the facts raised in this appeal.

Substantive argument - ground 1 of the appeal

36       The appellant points out that the learned Industrial Magistrate found the following matters:

a) in the current context 'usual hours' can only mean the ordinary hours as permitted by the Award ([28]);

b) what is meant by ordinary hours may be different dependent upon the nature of employment - for example, the ordinary hours of rostered and shift employees are between 6.00 am and 7.00 pm seven days a week under clause 3.1.2(a) of the Award ([28]);

c) the employee's usual hours were 6.00 am to 7.00 pm, Monday to Friday under clause 3.1.1(b) of the Award ([19]-[26]);

d) work done outside of the usual hours were not ordinary hours ([19]);

e) clause 3.1.1(e) is a facilitative provision under which if the cleaners' proposal suits the school an early start time may be permitted without penalty to the school ([21]);

f) no written permission was granted under clause 3.1.1(e) of the Award ([16], [30]);

g) the language of clause 3.2.2(a) makes it clear that those employees who work outside of their ordinary hours or outside the daily spread of hours are to be paid at overtime rates ([29]); and

h) overtime was attracted under clause 3.2.2(a) of the Award ([30]).

37       The appellant also points out that the learned Industrial Magistrate wrongly found that pursuant to cl 3.1.2(a) of the Award the ordinary hours of rostered and shift employees are between 6.00 am and 7.00 pm.  Properly construed, cl 3.1.2(a) only applies to rostered employees and cl 3.1.2(b)(i) relevantly applies to shift employees.  Clause 3.1.2(b)(i) makes it clear that shift work under the Award is characterised by no fixed hours and this is reflected in the definition of shift employee in cl 1.5.15 of the Award.

38       As shift work is characterised by no fixed hours, the appellant says it is expressly recognised in cl 3.2.2(a) that an employee cannot be entitled to overtime for the usual hours of a shift worked.  The appellant contends that the words ‘usual hours’ of a shift employee in cl 3.2.2(a) must be construed as the hours usually worked by the shift employee and there is no daily spread.  The relevant emolument for shift employees is a shift loading under cl 3.3 and not overtime under cl 3.2.2(a).

39       The appellant also contends that shift work patterns permissible under the Award are governed by, among other provisions, cl 3.1.2(b)(ii) and cl 3.1.3 of the Award.  These provisions demonstrate that the full range of shift patterns are permitted under the Award.  By this submission, I understand the appellant to say that the Award contemplates the working of fixed shifts and rotating shifts.  They then say it follows that school cleaners work a fixed shift by reason of an early start time and this is expressly contemplated in cl 3.1.1(e)(iii). 

40       The appellant points out that cl 1.5.15 refers to a shift employee as being ‘rostered’ to work outside of the prescribed ordinary hours.  In particular, they point out that the term ‘rostered’ is not expressly defined and is used in many different senses in the Award (for example, rostered days off, rostered employees and shift employees).  The appellant says the term ‘rostered’ must be read in the context of the Award as a whole and must be given a practical and common sense application having regard to industrial reality.  The appellant also says that it is well recognised that shift work may be anything other than ‘day’ work and may involve fixed shifts with pre-determined hours.  Consequently it is argued that as the Award recognises anything other than day work and fixed shifts involving pre-determined hours as shift work, including school cleaners starting earlier than 6.00 am, it is self evident that the term ‘rostered’ does not necessarily imply a formal requirement for a roster.

41       The appellant points out that cl 3.3 provides for afternoon, night and weekend loadings.  It does not provide for a shift loading for a shift commencing after 4.00 am or before 12.00 pm.  Consequently, the appellant contends that it is open for the appellant to roster school cleaners to start after 4.00 am and before 6.00 am without attracting overtime or a shift loading.  Having found that Mr Clements was rostered to work outside of the ordinary hours of work as prescribed in cl 3.1.1(b) of the Award, the learned Industrial Magistrate should have found that the employee was a shift employee under cl 1.5.15, with no fixed daily spread of hours under cl 3.1.2(b)(i), and no entitlement to overtime under cl 3.2.2(a) of the Award.

42       The appellant argues that if the decision of the learned Industrial Magistrate’s decision is correct, as the work in question was outside the employee’s usual hours as a rostered employee, the consequence at law would be that Mr Clements was a part-time employee.  This is because time worked outside of ordinary hours between 5.30 am and 6.00 am would be hours worked outside the ordinary hours agreed to by the employer and employee as contemplated by cl 3.2.2(c) of the Award.  The appellant points out that this argument was considered and found to be in error in the Hospital Salaried Officers case.

43       The central issue in the Hospital Salaried Officers case was was the employee in question a shift worker or a day worker.  The employee was a physiotherapist who worked at the Osborne Park Hospital employed by the Minister for Health.  The employee had regularly worked during the day from Monday to Friday each week.  Some time later an agreement was reached between her and her employer for her to work from Tuesdays to Saturdays.  Under the provision of the relevant award she was entitled to a shift allowance for work on Saturdays and she was paid a shift allowance for the work she performed on Saturday.  When the matter came before the Industrial Magistrates Court the Industrial Magistrate found the employee was a shift worker working ordinary hours on Saturday and entitled to a shift loading that she was paid and she was not entitled to payment of overtime for the work performed on Saturday.  When the matter came before the Full Bench on appeal, the President and Chief Commissioner found that the employee was a shift worker, but nevertheless was working outside the ordinary hours, therefore overtime was payable not a shift loading.  Commissioner Johnson who was the third member of the Bench found that the employee was a day worker, who became a part-time day worker working overtime on each Saturday.  When the matter came before the Industrial Appeal Court each member of the Industrial Appeal Court unanimously overturned the decision of the Full Bench in separate judgments.

44       The appellant points out that the award in the Hospital Salaried Officers case and the Award both provide for the creation of shift employees who do not have a spread of hours.  The respondent says that when the definition of a rostered employee in cl 1.5.13 is read together with cl 3.1 – Hours, it is clear that Mr Clements is a rostered employee as he was rostered to work day shift within the meaning of the definition of rostered employee in cl 1.5.13.  The respondent also says that the work of Mr Clements was not continuous across the entire day as he regularly stopped work around 9.00 am and started again at 3.00 pm.  Therefore, it follows that if he was a shift employee, he would be entitled to be paid a shift allowance pursuant to cl 3.3.1(a) of the Award as he would be working an afternoon shift that commenced after 12.00 noon.  Or put another way, that if, as the appellant asserts, Mr Clements had no fixed spread of hours and was therefore a shift employee, he would have been entitled to shift loadings for every single day he commenced a shift after 3.00 pm.  The respondent also argues that if the Full Bench is persuaded by the appellant’s argument, the Full Bench should issue a decision declaring that the loadings in cl 3.3 applied to Mr Clements’ work performed after 3.00 pm each day.

45       Alternatively, the respondent says that it is clear that Mr Clements went to work twice a day and that such a split shift arrangement is contemplated by cl 5.1.5.  The induction handbook clearly indicates Mr Clements had a daily spread of hours which was a split shift.  He was a rostered employee who was required to work hours outside the ordinary hour prohibitions of the Award.  As such he worked day shift and is entitled to overtime for the period worked prior to 6.00 am each day.

Does the appeal ground 1 turn solely on a question of construction?

46       It is common ground the point sought to be argued by the appellant turns solely upon one material fact that is not in dispute.  That fact is that on each day he worked, Mr Clements commenced 30 minutes prior to 6.00 am.  This pattern of work squarely raises an issue of construction of the Award.  The issue is whether the 30 minutes of work was work outside ‘ordinary hours’, outside ‘usual hours’ or outside the ‘daily spread’ within the meaning of cl 3.2.2(a) of the Award.  Part of the consideration of those questions is whether this pattern of work had the effect that Mr Clements was a ‘rostered’ employee or a ‘shift’ employee and as such, these issues turn solely upon the proper construction of the Award and the intention of the parties is irrelevant to the resolution of these issues.

Should the Full Bench exercise its discretion to entertain ground 1 of the appeal?

47       The question the Full Bench must ask itself is whether exceptional circumstances exist so that when considered it can be said that the interests of justice favour the hearing of the point not taken in the hearing at first instance.

48       The appellant contends that the point is of importance as it raises a matter going to the interests of justice as it is a point that can be raised in defence to the matters pending in M 113 of 2010 which are proceedings on foot between the same parties for outstanding claims for overtime payments involving 441 school cleaners, who are alleged to have commenced work early without written permission under cl 3.1.1(e) of the Award.  Whilst the respondent says the matter before the Full Bench is not a test case Mr Clark reluctantly conceded on behalf of the respondent that the point sought to be raised in this appeal could be raised in that matter.

49       Having considered the submissions of the parties, I am of the opinion that the circumstances relevant to an exercise of discretion to entertain ground 1 of the appeal are as follows:

(a) The concession made on behalf of the respondent that the point sought to be raised could be raised in a matter before the Industrial Magistrate that concerns alleged underpayments to 441 cleaners employed in schools throughout Western Australia

(b) The fact that the point sought to be raised relies upon the material uncontroverted facts that at all material times Mr Clements commenced work at 5.30 am (without a request of majority cleaners to vary the start time earlier than 6.00 am and written permission being granted by the school principal pursuant to cl 3.1.1(e) of the Award).

(c) The point raised is solely a matter of construction of the terms of the Award and if it is successfully raised will not result in the matter being re-heard by the Industrial Magistrate.

(d) The point does not raise any complex issues or argument.

(e) The respondent raises no issue of prejudice.

(f) Whether the point sought to be raised in ground 1 has no merit.

Does ground 1 of the appellant’s grounds of appeal have any merit?

50       The principles to be applied to the construction of industrial instruments were recently considered by Smith AP and Beech CC in The Chief Executive Officer Department of Agriculture and Food v Wall [2011] WAIRC 00263; (2011) 91 WAIG 443 [90] – [91] where after observing that the text of each industrial instrument must be considered as a whole and in context, they had regard to passages by French J in City of Wanneroo v Holmes (1989) 30 IR 362 where his Honour said (378 - 379):

The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words: Re Clothing Trades Award (1950) 68 CACR 597 (Aust Indus Ct, Full Ct). The words are to be read as a whole and in context: Australian Timber Workers Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award: Picard v John Heine & Son Ltd (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all: Seymour v Stawell Timber Industries Pty Ltd (1985) 13 IR 289 at 290; 9 FCR 241 at 244 (Northrop J) (13 IR at 299; 9 FCR at 254) (Keely J) cf 13 IR at 309; 9 FCR at 265 (Gray J). The logs of claim and arbitrator's reasons for decision may be referred to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it: Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444, 446, disapproving Merchant Seamen's Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248. That is not to say the words must be interpreted in a vacuum divorced from industry realities.  As Street J said in Geo A Bond & Co Ltd (in Liq) v McKenzie [1929] AR (NSW) 498 at 503:

'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 ... from an agreement between the 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. - see also Re Crown Employees (Overtime) Award (1969) AR (NSW) 60, 63; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123'.

It is of course no part of the Court's task to assign a meaning in order that the Award may provide what the Court thinks is appropriate - Australian Workers Union -v- Graziers Association (NSW)(1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an Award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the Award making authority - Re Health Administration Corporation; Re: Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co. Pty Ltd -v- Howarth (1960) AR (NSW) 291; Re Government Railways and Tramways (Engineers etc.) Award [1928] AR 53 at 58 (Cantor J.)

51       Justice French subsequently observed in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 [57]:

It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.

52       As Smith AP and Beech CC observed in Wall at [92], the observations of French J in Holmes are somewhat different to the observations of Kirby and Callinan JJ in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241; (2005) 79 ALJR 703; (2005) 138 IR 286; (2005) 214 ALR 56 [96] and [129] who favoured an even more generous contextual approach expressed by Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 as follows (184):

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

53       When regard is had to these observations, I now turn to the appellant’s argument.  The appellant does not argue that any relevant terms of the Award are ambiguous.  The appellant has pointed to a number of drafting errors in the numbering of particular clauses which were made at the time the Award was modernised on 19 March 2007 ((2007) 87 WAIG 620).  However none of the drafting errors are material to the appellant’s arguments and contentions in respect of ground 1 of the appeal.  The appellant puts forward an argument that industrial reality in the industry is such that the Award contemplates that shifts may be ‘fixed’ and not be rostered.  Whilst this contention is accepted, it does not assist the appellant’s case.

54       The appellant’s arguments about the construction of the Award rely heavily upon the analysis of the Hospital Salaried Officers Award considered by the Industrial Appeal Court in the Hospital Salaried Officers case.  However, when the provisions of the Hospital Salaried Officers Award at the time when the Industrial Appeal Court considered its decision in 1983 are reviewed, it is clear that the facts of that case and the provisions of the award in that matter can be distinguished.

55       The material provisions of the Hospital Salaried Officers Award were as follows:

(a) (i) A ‘day worker’ was defined to mean, a worker who works his ordinary hours from Monday to Friday inclusive and who commences work on such days after 6.00 am and before 12.00 noon.

(ii) A ‘shift worker’ was defined to mean, a worker who is not a day worker as defined.

(b) (i) The hours clause provided a worker was not required to work his ordinary hours on afternoon or night shift or on a Saturday or on a Sunday unless the employer and the union agreed that the hours may be so worked.

(ii) If the union and the employer agreed, the ordinary hours of work could be worked on a roster that provided for an average of 35 or 37½ hours per week as the case may be over each roster period.

(iii) The ordinary working hours, exclusive of meal intervals, were not to exceed 37½ hours in any week nor 7½ hours in any day.  Such hours were required to be worked on five consecutive days in each week.

(c) In the overtime clause, it was provided that all time worked at the direction of the employer outside a worker’s ordinary hours was to be paid for at the rate of time and a half for the first three hours and double time thereafter.

(d) In the shift work clause, a day shift, an afternoon shift and a night shift were expressly defined by commencing and finishing times.  For example, a day shift was defined to mean a shift which commences after 6.00 am and before 12.00 midday.  Also it was provided that shift work performed during ordinary hours on Saturdays or Sundays was to be paid for at the rate of time and a half.

56       In the Hospital Salaried Officers case the hours of employment of the employee in question were Monday to Friday from 8.00 am to 4.00 pm.  They were ordinary hours.  In July 1981 she agreed to work the same hours from Tuesday to Saturday.  From that time onwards she was paid a shift allowance for work that she performed on Saturdays as a shift worker.  It was argued in that matter that Mrs Knight was a day worker and not a shift worker.

57       Whilst there were some similarities in the clauses in the Award and the Hospital Salaried Officers case there are some material differences.  Firstly, a day worker was defined and distinguished from a shift worker in the Hospital Salaried Officers Award as a person who worked their ordinary hours from Monday to Friday inclusive.  Also a day shift was defined by the actual commencement of the spread of hours as a person who commenced work after 6.00 am and before 12.00 noon.  As Brinsden J pointed out in his reasons for decision in the Hospital Salaried Officers case (1155) the shift work clause in that case enlarged the meaning of shift worker in the definitions clause by defining a day, afternoon and night shift.

58       In this appeal when the definition of ‘shift employee’ in cl 1.5.15 is read together with cl 3.3 shift work, it is apparent that a day shift is not contemplated in cl 3.3 and ‘shift employee’ is defined as an employee who is rostered to work an afternoon or night shift.  However, the concept of a day shift is contemplated in the definition of ‘rostered employee’ in cl 1.5.13 of the Award which defines a ‘rostered’ employee to mean an employee who is rostered to work ‘day shift’ on any of the seven days of the week.  So when the definitions of rostered employee, shift employee and cl 3.3 are read together, it is apparent that whilst in one sense a person who works day shift might be contemplated to be a shift worker for the purposes of the Award, that person is a rostered employee in cl 1.5.13.  This distinction is further maintained in cl 3.1.2, the heading of which properly refers to rostered and shift employees, as cl 3.1.2(a) deals with rostered employees and cl 3.1.2(b) deals with shift employees.  In both of those subclauses there is a reference to ordinary hours.  The ordinary hours for a rostered employee are defined separately in cl 3.1.2(a) from the ordinary hours for a shift employee in cl 3.1.2(b).  Whilst it is the case that a shift employee has no fixed daily spread of hours it is also notable that a shift employee is prohibited from working their ordinary hours in more than 10 shifts per fortnight of eight hours each and not more than one shift in every 24 hours.  This prohibition is not extended to rostered employees who can be rostered to work their ordinary hours each day in two shifts and where they do so they are entitled to an allowance pursuant to cl 5.1.5.

59       For these reasons, I am not satisfied that the work patterns of Mr Clements had the effect that he was a shift employee within the meaning of cl 1.5.15 of the Award.  As a ‘rostered employee’ his spread of hours were to be worked between 6.00 am to 7.00 pm, Monday to Friday inclusive, within the meaning of cl 3.1.1(a) and cl 3.1.2(a) of the Award.

Conclusion – ground 1 of the appeal

60       I accept that ground 1 seeks to raise a point that goes to an issue of relevance in other matters that are sought to be litigated in the Industrial Magistrates Court and as such is an issue of general importance to the public and the proper interpretation of the Award in the cleaning industry in public schools generally.  Whilst it is relevant that the point seeks to raise a simple issue of construction of the terms of the Award, as the ground has no merit, I am of the opinion that it would not be expedient in the interests of justice to allow the appellant to rely upon ground 1 of the appeal.

Ground 2

61       The Award was renumbered when it was modernised in 2007.  Prior to 19 March 2007, cl 3.2.2(a) of the Award was numbered cl 8(1).  On 19 March 2007, cl 8(1) was renumbered cl 3.2.2(a).

62       The statement of claim alleges the appellant breached cl 3.2.2(a) of the Award between 29 July 2005 and 2 April 2009.  No application was made to amend the statement of claim in respect of the period 29 July 2005 and 19 March 2007 to allege a breach of:

(a) clause 8(1) of the Award between 29 July 2005 and 18 March 2007; and

(b) clause 3.2.2(a) of the Award between 19 March 2007 and 2 April 2009.

63       The appellant argues that the learned Industrial Magistrate erred in:

(a) failing to apply the Award as it stood between 29 July 2005 and 19 March 2007 and in treating the former Award provisions as only being relevant by way of historical context; and

(b) finding that the appellant breached cl 3.2.2(a) of the Award between 29 July 2005 and 19 March 2007.

64       The learned Industrial Magistrate simply found at [30] of his reasons that the claim was proved (AB 79), and made no reference in so finding that cl 3.2.2(a) of the Award had for a material period been numbered cl 8(1).  However, this omission in the ‘reasons for decision’ is not reflected in the ‘decision’ that is the subject of the appeal.  Under s 84 of the Industrial Relations Act 1979 (WA) (the Act) an appeal does not lie to the Full Bench from reasons for decision but from a ‘decision’ as defined in s 84(1) of the Act.  Section 84(1), s 84(2) and s 84(4) of the Act relevant provides:

(1) In this section decision includes a penalty, order, order of dismissal, and any other determination of an industrial magistrate’s court, but does not include a decision made by such a court in the exercise of the jurisdiction conferred on it by section 96J.

(2) Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of an industrial magistrate’s court.

…

(4) On the hearing of the appeal the Full Bench — 

(a) may confirm, reverse, vary, amend, rescind, set aside, or quash the decision the subject of the appeal;

(b) may remit the matter to the industrial magistrate’s court or to another industrial magistrate’s court for further hearing and determination according to law; and

(c) subject to subsection (5), may make such order as to costs as the Full Bench considers appropriate.

65       The learned Industrial Magistrate made an order on 25 August 2010 pursuant to s 83(1), s 83(4) and s 83A of the Act and that order is the decision that the Full Bench may review and make any order contemplated in s 84(4) of the Act.

66       Pursuant to s 84(1), s 84(4) and s 83A of the Act, it is not the learned Industrial Magistrate’s reasons for decision that have force and effect but the terms of the order.  Consequently, if an Industrial Magistrate makes observations and findings that may be in error or omits to make a finding in reasons for decision that is not reflected in an order, the Full Bench acting under s 84(4) of the Act has no cause to reverse, vary, amend, rescind, set aside or quash the order in question, unless the order itself is in error or contains an omission.

67       The following orders were made by the learned Industrial Magistrate in the order made on 25 August 2010:

1 Judgement for the Claimant against the Respondent.

2. There is a finding that between 29/7/2005 and 2/4/2009 the Respondent has on 85 separate occasions failed to comply with the Cleaners and Caretakers (Government) Award 1975.

3. The Respondent shall pay to the Claimant for disbursement to Mr Brett William Clements the agreed sum of $3800.

4. The Respondent is cautioned for each of its 85 breaches of the award.

5. There is no order as to costs.

68       As the terms of the order simply contain a finding that between the material dates the appellant on 85 separate occasions failed to comply with the Award, and does not set the clause that was breached, no error arises on the face of the record of the order that requires correction.  If any criticism can be made of the terms of the order is that this finding could have been drafted in a more precise way to reflect the particulars of provision of the Award breached on each of the 85 occasions.  Although the order could have been drafted with more particularity, no error arises.

69       For these reasons, ground 2 of the grounds of appeal has not been made out and I am of the opinion that an order should be made dismissing the appeal.

SCOTT ASC:

70       The appellant appeals against a decision of the Industrial Magistrate given on 25 August 2010.  The first ground of appeal is that the Industrial Magistrate erred in finding that the appellant breached cl 3.2.2(a) of the Cleaners and Caretakers (Government) Award 1975 (the Award) by failing to pay the employee, Mr Clements, overtime for work performed between 5.30am and 6.00am for a period of time.  The particulars of this ground of appeal include that the facts are said to demonstrate that Mr Clements was a shift employee under cl 1.5.15.  As such he is said to have had no fixed daily hours under cl 3.1.2(b)(i) of the Award.  As the operation of cl 3.2.2(a) of the Award is subject to cl 3.1.2(b)(i), it is said that no overtime is attracted. 

71       The second ground of appeal is that the Industrial Magistrate did not take into account an amendment to the Award which applied between 29 July 2005 and March 2007 resulting in errors in the numbers of clauses referred to in the decision. 

72       The question raised by the first ground of appeal is whether Mr Clements was a shift worker and as a consequence whether he was working overtime for the period between 5.30am and 6.00am.  However, I agree with the Reasons for Decision of the Honourable Acting President that this matter was not raised before the Industrial Magistrate.  The issue was not raised in any substantive way by the appellant during the proceedings before the Industrial Magistrate but was merely commented upon in passing and did not form part of the appellant’s defence of the appeal at first instance.  Furthermore, the appellant did not suggest that Mr Clements was in fact a shift employee until it had filed its appeal.  The grounds for the defence of the matter before the Industrial Magistrate were quite different. 

73       In accordance with the normal requirements for appeals, the appeal ought not be allowed on the basis that there ought be finality to litigation and the appellant ought not have the right to raise on appeal a matter not dealt with at first instance (Water Board v Moustakas (1988) 180 CLR 491).  The circumstances of the likely impact of this matter and other matters pending before the Industrial Magistrate, involving many other cleaners, justify the consideration of this issue.  Those circumstances constitute the interests of justice in the ground of appeal being determined.

74       I also agree with the Acting President, for the reasons she has stated, that Mr Clements was a rostered employee whose ordinary hours were worked in a split shift, which was subject to the appropriate allowance. 

75       As he was rostered to work before the ordinary spread of hours commencing at 6.00am under cl 3.1.1(b), and there was no written permission to start work earlier than 6.00am in accordance with cl 3.1.1(e)(i), Mr Clements was entitled to be paid overtime for the period before 6.00am each day.

76       Ground 2 has no real consequences for the decision of the Industrial Magistrate as it is not reflected in the Order which resulted from the Reasons for Decision.  While there may have been an error it is not one which affected the decision. 

77       Therefore, I too would dismiss this appeal.

HARRISON C

78       I have read a draft of the reasons for decision of the Acting President.  I agree and have nothing to add.