2012 WAIRC 01117
APPEAL AGAINST A DECISION OF THE PUBLIC SERVICE ARBITRATOR
GIVEN ON 3 MAY 2012 IN MATTER PSACR 1 OF 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2012 WAIRC 01117

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER J L HARRISON

HEARD
:
TUESDAY, 25 SEPTEMBER 2012
WRITTEN SUBMISSIONS: 28 SEPTEMBER 2012 & 24 OCTOBER 2012

DELIVERED : THURSDAY, 20 DECEMBER 2012

FILE NO. : FBA 3 OF 2012

BETWEEN
:
HEALTH SERVICES UNION OF WESTERN AUSTRALIA (UNION OF WORKERS)
Appellant

AND

THE DIRECTOR GENERAL OF HEALTH
AS DELEGATE OF THE MINISTER OF HEALTH IN HIS INCORPORATED CAPACITY UNDER S.7 OF THE HOSPITALS AND HEALTH SERVICES ACT 1927 (WA)
Respondent

ON APPEAL FROM:

JURISDICTION : PUBLIC SERVICE ARBITRATOR
CORAM : ACTING SENIOR COMMISSIONER P E SCOTT
CITATION : [2012] WAIRC 00261; (2012) 92 WAIG 539
FILE NO : PSACR 1 OF 2011

Catchwords : Industrial Law (WA) - principles of interpretation of awards and industrial agreements considered - calculation of long service leave dates of accrual - purpose of long service leave considered - turns on own facts
Legislation : Industrial Relations Act 1979 (WA) s 41(1), s 49;
Workplace Agreements Act 1993 (WA) s 6(4);
Long Service Leave Act 1958 (WA) s 4(1), s 4(3), s 5, s 6, s 6(2)(c), s 6(2)(d), s 6(2)(e), s 6(2)(f), s 6(2)(g), s 6(2)(h), s 6(2)(i), s 6(3), s 8;
Industrial Arbitration Act 1912 (WA) s 94A;
Minimum Conditions of Employment Act 1993 (WA);
Industrial Relations Amendment Act 1993 (WA) s 18(2), s 18(3);
Labour Relations Legislation Amendment Act 2006 (WA);
Workplace Relations Act 1996 (Cth);
Fair Work Act 2009 (Cth) s 113, s 113A;
Industrial Relations Legislation Amendment and Repeal Act 1995 (WA) s 46(3).
Result : Appeal dismissed
REPRESENTATION:
Counsel:
APPELLANT : MR R L HOOKER
RESPONDENT : MR M J AULFREY
Solicitors:
APPELLANT : SLATER & GORDON

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
Australian Journalists Association v Advertiser Newspapers Ltd (1982) 3 IR 144
BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (WA Branch) [2006] WASCA 124
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
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294
Kucks v CSR Limited (1996) 66 IR 182
New South Wales Nurses' Association v Ramsay Health Care Australia Pty Ltd [2009] FMCA 579
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
United Voice WA v The Minister for Health [2012] WAIRC 00319; (2012) 92 WAIG 585
Case(s) also cited:
BHP Billiton Iron Ore Pty Ltd v The Australian Workers' Union Western Australian Branch, Industrial Union of Workers [2006] WASCA 159
Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390

Reasons for Decision
SMITH AP AND BEECH CC:
The appeal
1 This is an appeal to the Full Bench pursuant to s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision of the Public Service Arbitrator given on 3 May 2012 in PSACR 1 of 2011: [2012] WAIRC 00261; (2012) 92 WAIG 539.
2 The industrial dispute referred to the Public Service Arbitrator for hearing and determination was a dispute about the calculation of annual leave entitlements to one of the respondent's employees, a Ms Sal Geraghty. Ms Geraghty is employed as a staffing support officer and has been employed by the respondent since 1 August 1995 under the Hospital Salaried Officers Award 1968 (HSO award). The parties are in dispute as to the effect of the accrual of long service leave by Ms Geraghty arising from the terms of the Hospital Salaried Officers Metropolitan Health Services Enterprise Agreement 2001 (2001 agreement). In September 2000, Ms Geraghty entered into a state workplace agreement (WP agreement) and in accordance with that agreement cashed in 6.5444 weeks' pro-rata long service leave for 4.9083 weeks' recreational leave and was advanced two salary levels on the salary scale attached to the WP agreement. The parties were in dispute about how that transaction should be treated under the 2001 agreement and whether service whilst covered by the WP agreement should be counted.
3 It is common ground that the resolution of the dispute depended upon the proper interpretation of the provisions of the 2001 agreement and subsequent industrial agreements registered by this Commission and the interpretation of the relevant provisions of the WP agreement.
4 Although the notice of appeal states the appeal is against the decision, when the decision and the grounds of appeal are reviewed, it is apparent that the appeal is against part of the decision. The decision provides as follows (formal parts omitted):
A. DECLARES THAT:
1. Ms Geraghty's anniversary date for long service leave purposes is her commencement date of 1 August 1995; and
2. Ms Geraghty is entitled to long service leave ten years after 1 August 1995 excluding the relevant periods; and
3. Periods of service which are relevant periods and do not count towards the ten years of continuous service are:
(a) the period of service from 1 August 1995 to 22 February 1999 which was converted to recreational leave in accordance with the Workplace Agreement; and
(b) the period of employment from 25 September 2000 to 7 October 2001 which was covered by the Workplace Agreement; and
(c) the period of leave without pay from 27 July 2008 to 12 June 2011.
B. ORDERS THAT the matter be and is hereby otherwise dismissed.
5 The appellant says when the industrial instruments that regulate Ms Geraghty's terms and conditions of long service leave are properly construed, the periods of service in declaration A(3)(a) do count towards the 10 years of continuous service for the purposes of determining Ms Geraghty's entitlement to long service leave. It seeks an order to quash declaration A(3)(a) and for a declaration to be made that properly declares the relevant periods of service and an order requiring the respondent to rectify its records to reflect the relevant periods which count towards 10 years of continuous service.
Agreed facts
6 When the matter was heard by the Public Service Arbitrator, the parties provided a statement of agreed facts. The agreed facts which are relevant to the disposition of this appeal are as follows:
Industrial Instruments that applied to the employee
13. At the time of her commencement with the Respondent the terms and conditions of the employee's employment were covered by the Hospital Salaried Officers Award 1968 (Award).
14. On 19 January 1999 the Hospital Salaried Officers Metropolitan Health Service Board Enterprise Agreement 1999 (1999 Agreement) was registered and applied to the employee's employment.
15. On 25 September 2000 the employee signed what was known as a Metropolitan Health Service Board – Generic Workplace Agreement (WP Agreement), which determined the employee's terms and conditions of employment.
16. In June 2001 the Respondent advised employees working under the terms and conditions of a WP Agreement that they could withdraw from the WP Agreement and be covered by the applicable enterprise agreement or award.
17. The employee withdrew from the WP Agreement on 8 October 2001.
18. After withdrawing from the WP Agreement, the employee was again covered by the 1999 Agreement.
19. On 24 January 2002 the Hospital Salaried Officers Metropolitan Health Services Enterprises Agreement 2001 (2001 Agreement) was registered and applied to the employees employment.
20. On 27 April 2004 the Health Services Union – Department of Health – Health Service Salaried Officers State Industrial Agreement 2004 (2004 Agreement) was registered and applied to the employees employment.
21. On 14 December 2006 the Health Services Union – WA Health State Industrial Agreement 2006 (2006 Agreement) was registered and applied to the employees employment.
22. On 9 December 2008 the Health Services Union – WA Health State Industrial Agreement 2008 (2008 Agreement) was registered and applied to the employees employment.
Long Service Leave entitlements
23. The Award provided for long service leave accrual of 13 weeks after 7 years of continuous service.
24. The 1999 Agreement changed long service leave accrual from 13 weeks long service leave after 7 years of continuous service to 13 weeks long service leave after 10 year [sic] of continuous service.
25. Under the terms of the 1999 Agreement, this change was effective from 1 January 1999.
26. At the time of entering the WP Agreement the employee elected to convert 6.5444 weeks of accrued pro rata long service leave to recreational leave.
27. The employee did not accrue further long service leave whilst covered by the WP Agreement.
28. In converting the pro rata long service leave entitlement to recreation leave the long service leave entitlement was discounted so that the employee lost the equivalent of 25% of her long service leave when it was converted to recreation leave.
29. The employee therefore received 4.9083 weeks of recreation leave for 6.5444 weeks of long service leave.
30. As part of electing to convert long service leave to recreation leave, the employee advanced two salary levels under the WP Agreement and stopped accruing further long service leave.
31. On the cessation of the WP Agreement, the employee's long service leave entitlements were again determined by the provisions of the 1999 Agreement.
32. Long service leave accrual under the 2001 and 2004 Agreement remained 13 weeks long service leave after 10 years of continuous service.
7 At first instance, the dispute between the parties was about how Ms Geraghty's long service leave entitlement was to be calculated and whether, as a consequence of the changes which occurred in the payment made to her, she was overpaid. In this appeal, there is no issue about overpayment. The issue is simply whether the Public Service Arbitrator erred in law in making a declaration and order about how Ms Geraghty's long service leave entitlements should be calculated.
A summary of the material provisions of the WP agreement and industrial agreements
8 Under cl 11 of the WP agreement, for each period of 10 years' continuous service an employee was entitled to 13 weeks' long service leave on full pay. A pro-rata entitlement to long service leave also accrued from the date of signing the agreement in the proportion of an entitlement after seven years to 10 years. Pursuant to cl 11.12, an employee could elect to convert pro-rata long service leave to recreational leave and have it accrued on an annual basis. At the time of conversion, any pro-rata long service leave was discounted by a factor of 25% and converted to accrued recreational leave. Under cl 11.13 of the WP agreement, an employee who elected to exercise their option under cl 11.12 ceased to accrue an entitlement towards long service leave, but was advanced by two salary levels on the salary scale applicable in schedule 1. Alternatively, employees could elect not to advance by two salary levels, but receive an additional five days' annual leave per year.
9 Prior to becoming a party to the WP agreement, Ms Geraghty's terms of employment were regulated by the Hospital Salaried Officers Metropolitan Health Service Board Enterprise Agreement 1999 (1999 agreement). By operation of cl 17 of the 1999 agreement, cl 19 of the HSO award was replaced and as a consequence Ms Geraghty was entitled to 13 weeks' paid long service leave on the completion of 10 years of continuous service and an additional 13 weeks' paid long service for each subsequent period of seven years' continuous service. Under cl 17(14), an employee could request the agreement of the employer to be paid in lieu of taking a portion of long service leave. However, there was no entitlement under that clause to either take or to be paid for pro-rata long service leave as there was no entitlement to long service leave until the completion of 10 years' service. However, that entitlement changed for Ms Geraghty when she became a party to the WP agreement.
10 After the WP agreement ceased to have effect, Ms Geraghty's terms and conditions of employment were regulated by the 1999 agreement and later the 2001 agreement.
11 Pursuant to cl 13 of the 2001 agreement, cl 19 of the HSO award was replaced. Under cl 13(1) of the 2001 agreement, Ms Geraghty was entitled to 13 weeks' paid long service leave on the completion of 10 years of continuous service and an additional 13 weeks' paid long service leave for each subsequent period of seven years of continuous service completed by her.
12 The provisions of the 2001 agreement long service clause central to the issues raised by the appellant were cl 13(11), cl 13(12), cl 13(14) and cl 13(15) which provided as follows:
(11) Subject to the provisions of subclauses (6), (7), (8) and (12) of this clause, the service of an employee shall not be deemed to have been broken:-
(a) by resignation, where he/she resigned from the employment of an employer a party to the Award and commenced with another employer a party to the Award within one working week of the expiration of any period for which payment in lieu of annual leave or holidays has been made by an employer party to the Award from whom he/she resigned or, if no such payment has been made, within one working week of the day on which his/her resignation became effective;
(b) if his/her employment was ended by his/her employer who is party to the Award, for any reason other than misconduct or unsatisfactory service but only if -
(i) the employee resumed employment with an employer party to the Award not later than six months from the day on which his/her employment ended; and
(ii) payment pursuant to subclause (8) of this clause has not been made; or
(c) by any absence approved by the employer as leave whether with or without pay.
(12) The expression 'continuous service' in this clause includes any period during which an employee is absent on full pay or part pay, from his/her duties with any employer party to the Award, but does not include-
(a) any cumulative period exceeding two weeks in any one anniversary year during which the employee is absent on leave without pay;
(b) Any service of the employee who resigns or is dismissed, other than service prior to such resignation or to the date of any offence in respect of which the employee is dismissed when such prior service has actually entitled the employee to long service leave, including pro-rata long service leave, under this clause.
…
(14) At the request of the employee and with the agreement of the employer, an employee may be paid in lieu of taking a portion of long service leave.
(15) Any period of service during which, or for which, an employee receives or has received payment, or any other compensation, in lieu of long service leave shall not be counted as service for the purpose of determining any future entitlement to long service leave whether under this Agreement, any agreement replacing this Agreement, or under any relevant or future award. This provision shall survive the termination of this Agreement.
13 These provisions were repeated in the industrial agreement that replaced the 2001 agreement and in subsequent industrial agreements.
Findings made by the Public Service Arbitrator
14 The Public Service Arbitrator found that:
(a) Ms Geraghty's conditions of employment were covered by the HSO award from 1 August 1995 until the 1999 agreement came into operation on 19 January 1999;
(b) Ms Geraghty's employment became subject to the WP agreement from 25 September 2000 until 8 October 2001 when she withdrew from it;
(c) on the cessation of the WP agreement on 8 October 2001, Ms Geraghty's employment became subject to the 1999 agreement, then the 2001 agreement, followed by the Health Services Union - Department of Health - Health Service Salaried Officers State Industrial Agreement 2004 (2004 agreement) and finally the Health Services Union - WA Health State Industrial Agreement 2006 (2006 agreement);
(d) the object of long service leave is 'as a reward for long and faithful service' and 'as a means of reducing labour turnover': Australian Labour Law Reporter, 32-830;
(e) it is the long and continuous service which brings about an entitlement to leave and that the relevant industrial instruments should be interpreted in this context;
(f) 'continuous service' is defined to enable particular periods where the employment contract subsisted but no work was performed, such as specified and limited periods of leave, paid or unpaid, which are to be excluded from the calculation of the period of continuous service;
(g) the 2001 agreement, 2004 agreement and 2006 agreement each recognised that where employees had been paid, or compensated in lieu of long service leave for a period of service, that period of service would also not be counted as service. While the WP agreement provided additional conditions, it did not contradict these provisions: WP agreement cl 2.2;
(h) the periods that do not count as service in each of the agreements do not bring the continuous service to an end. They are merely excluded from the calculation of service by express provisions in the HSO award and the agreements;
(i) in Australian Journalists Association v Advertiser Newspapers Ltd (1982) 3 IR 144, Evatt J observed that the term 'continuous service' was distinguished from the term 'employment' in reference to the accrual of leave. 'Continuous service' expressly recognises that the contract of service subsists even if certain periods of absence are excluded, that is, the absences do not break the contract, but do not count in the calculation of continuous service;
(j) the principle to be applied is that an employee who completes the necessary period of continuous service is entitled to a period of paid leave. Service counts from the commencement of the contract of service with certain specified periods of service being excluded from the calculation of continuous service and the period of continuous service brings an entitlement to a period of paid long service leave;
(k) the period of service under the WP agreement did not break service, as s 6(4) of the Workplace Agreements Act 1993 (WA) provided that the workplace agreement did not displace the contract of employment;
(l) the election available to Ms Geraghty (which she took up under the WP agreement) resulted in no accrual towards long service leave during the life of the WP agreement. She received the benefit of long service leave accruals in a different way and ceased to accrue further leave for the period of the operation of the WP agreement. Consequently, time served by Ms Geraghty while the WP agreement was in force did not count for the purpose of accrual of the prescribed period of service for long service leave;
(m) Ms Geraghty received compensation in lieu of the accrual of long service leave for the period of operation of the WP agreement by being advanced by two salary levels. Also, she elected to convert pro-rata long service leave to recreational leave in accordance with cl 11.12 of the WP agreement;
(n) Ms Geraghty's service commenced on 1 August 1995 and that is the point from which the calculation of continuous service commences, subject to the exclusion of those periods referred to in the agreements. Pursuant to cl 11.13 of the WP agreement she ceased to accrue an entitlement towards long service leave, but her continuous service was not broken. During the relevant period she ceased to accrue the benefit.
15 After the first reasons for decision were delivered on 3 February 2012, the parties were asked to provide submissions about what orders should issue. After hearing submissions, the Public Service Arbitrator issued supplementary reasons for decision on 3 April 2012 in which she found:
(a) The provisions of cl 13(15) of the 2001 agreement, cl 23(19) of the 2004 agreement and cl 41(16) of the 2006 agreement applied so as to exclude the periods of service and the calculation of Ms Geraghty's entitlement to long service leave. In particular, the period of service which Ms Geraghty converted to recreational leave was not to be counted as service for the purpose of determining any future entitlement to long service leave.
(b) The finding in (a) was consistent with the principle that the calculation of continuous service excludes periods of long service leave, or any portion of it. By converting the long service leave to recreational leave, this was a period of service during which Ms Geraghty received payment or other compensation in lieu of long service leave and accordingly it was not to be counted for the purpose of determining any future entitlement to long service leave.
Grounds of appeal
16 In ground 1 of the appeal, the appellant argues that the Public Service Arbitrator erred in law in that, having correctly concluded that Ms Geraghty was entitled to long service leave 10 years after 1 August 1995, incorrectly excluded the period of service from 1 August 1995 to 22 February 1999 which was converted to recreational leave in accordance with the WP agreement. Whilst the grounds of appeal also plead the Public Service Arbitrator incorrectly excluded the period of employment from 25 September 2000 to 7 October 2001 which was the period of time Ms Geraghty's terms and conditions of employment was regulated by the WP agreement, this part of ground 1 is not pressed.
17 Ground 2 raises a similar issue. Ground 2 raises an argument that an error of law occurred by failing to find that the two periods on a proper conception of the nature and purpose of long service leave, do count towards 10 years of continuous service, notwithstanding that the amount paid to Ms Geraghty by way of the conversion of long service leave entitlement to recreational leave needs to be brought to account in the calculation of the long service leave payment due and owing after 10 years of continuous service. Insofar as this ground also raised the period of service covered by the WP agreement, this part of ground 2 is not pressed.
The appellant's submissions
18 The central issue in this appeal is the proper approach to the construction of provisions of industrial instruments, in particular a consideration of context. The main thrust of the appellant's submissions is that the Public Service Arbitrator failed to have proper regard to industrial context of the provision of long service leave that is demonstrated in many Western Australian awards containing long service leave provisions and the Long Service Leave Act 1958 (WA). These instruments uniformly provide for long service leave as an entitlement for the benefit of employees as a reward for long service, or put another way for long work. It is also argued that it is well established 'standard' that all periods of paid service count towards an assessment of continuous service. The appellant says regard should be had to this context when construing the meaning of the provisions of the HSO award, the 1999 agreement, the 2001 agreement and the subsequent industrial agreements that applied to the employment of Ms Geraghty.
19 On behalf of the appellant it is submitted that on any contemporary approach to interpretation of any instrument, be it statutory, contractual or industrial, 'context' is critical. Context is important not merely when an ambiguity arises but to understand the nature of the subject matter and the nature and potential scope of rights or obligations that apply in a particular case. This is particularly so where an industrial right or obligation has been conceived or evolved in successive determinations by the making of an instrument potentially reinforced by statute. Further, when an industrial instrument has been conceived and evolved over a period of time and has gathered a meaning so as to be a significant benefit to employees, that benefit ought only be constricted or restricted by the clearest or most cogent language.
20 The appellant argues the Public Service Arbitrator in her initial and primary set of reasons delivered on 3 February 2012 correctly apprehended the nature and function of long service leave and, accordingly, the appropriate construction of the disputed provisions of the relevant industrial instruments. However, after having called for consultation and further submissions regarding the form of a declaratory order, in subsequent reasons delivered on 3 April 2012 the Public Service Arbitrator changed her interpretation of the essential nature of long service leave and her construction of the relevant industrial instruments. In particular, she had regard to the language of cl 13(15) of the 2001 agreement wholly divorced from the contextual understanding that hitherto she had correctly appreciated and set out in her first reasons for decision.
21 The industrial context to which the appellant says that regard should be had when construing the industrial instruments that regulate Ms Geraghty's long service leave entitlements are as follows:
(a) Before 1958, many Western Australian state awards contained long service leave provisions. In 1958, those awards were amended by consent to provide for a long service leave scheme. Simultaneously, the Western Australian Parliament enacted the Long Service Leave Act in 1958 to provide minimum standards of long service leave benefits to employees who were not covered by awards.
(b) A formal determination was made by the Commission in Court Session on 23 September 1964, the content of which was similar to the benefits contained in the 1958 Act: (1976) 56 WAIG 19.
(c) On 15 December 1977, the Commission in Court Session, under s 94A of the Industrial Arbitration Act 1912 (WA), made a General Order varying awards and industrial agreements to incorporate new long service leave provisions: (1978) 58 WAIG 120; (1978) 58 WAIG 1 (General Order).
(d) Despite substantial changes to the Western Australian industrial relations system effected by a suite of legislation in 1993, Parliament chose to expressly continue in force the General Order which took effect on 1 January 1978. This was so notwithstanding the enactment of the Minimum Conditions of Employment Act 1993 (WA): see s 18(2) and s 18(3) of the Industrial Relations Amendment Act 1993 (WA).
(e) In 2006, the Labour Relations Legislation Amendment Act 2006 (WA) repealed the Long Service Leave General Order.
(f) The considerable expansion by changes effected by the Workplace Relations Act 1996 (Cth), on the rights, entitlements and obligations of parties to most employment relationships operates with respect to long service leave only to a limited degree. The effect of s 113 and s 113A of the Fair Work Act 2009 (Cth) is, broadly, that this legislation does not exclude state or territory laws that deal with long service leave, except in relation to employees who have entered into enterprise agreements that contain terms discounting service under prior agreements. The appellant acknowledges, however, that any Commonwealth source of industrial regulation cannot alter or affect the proper construction to be accorded to the provisions of the Western Australian industrial instruments.
22 The notion of 'continuous service' was conceived and was developed in the HSO award and the industrial instruments that are consistent with the provisions that form part of the background of this industrial context. 'Service' means and includes the performance of work. Thus, notwithstanding instruments made by this Commission regulating long service leave might otherwise change, the meaning of 'continuous service' remains constant throughout these instruments, that is, if an employee keeps performing work under a contract of employment, credit ought to be given to the service of an employee who undertakes and continues to perform work. Long service leave is a reward for ongoing 'long service'. This construction the appellant says is consistent with statutory schemes and conditions in Western Australia and in other states.
23 The appellant properly points out that the contemporary approach to construction of industrial instruments stems from Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In particular:
(a) Matters of purpose, general policy and context are to be taken into account in deriving the meaning of the provision from its text. The process of construction must always begin by examining the context of the provision that has been construed, even for statutory interpretation.
(b) Specifically with respect to industrial instruments, interpretation must begin with consideration of the words used in their natural meaning, but that meaning is not to be interpreted in a vacuum divorced from industrial realities: City of Wanneroo v Holmes (1989) 30 IR 362, 378; BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (WA Branch) [2006] WASCA 124 [19] - [23].
(c) Industrial instruments, given their nature and purpose (relevant to, in particular, common law contracts of employment) are to be accorded a beneficial interpretation: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294 [9] - [10].
(d) When construing an award or an industrial instrument provision a court or tribunal should proceed on the premise that the framers were likely of a practical mind and have regard to the long tradition of generous construction over a strictly literal approach: New South Wales Nurses' Association v Ramsay Health Care Australia Pty Ltd [2009] FMCA 579 [177]; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 [57] (French J).
(e) As Madgwick J pointed out in Kucks v CSR Limited (1996) 66 IR 182, 184; a court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into an award. However, meanings which avoid inconvenience or injustice may reasonably be strained for.
24 The appellant says that it is appropriate to commence a task of construction of cl 13 of the 2001 agreement with the text and context through its various subclauses. It points out that cl 13(1) effects a clear presumption of an entitlement to long service leave on the completion of 10 years of continuous service. This period must, logically, commence at a time an employee commences service with a respondent bound by the industrial instrument. The applicable commencement date is apparent from the starting point in cl 13(1).
25 Clause 13(2) deals with circumstances where an employee has accrued long service leave under more generous provisions contained in earlier industrial instruments including the HSO award. Thus, in Ms Geraghty's case because the first three years and five months of service were subject to the more beneficial long service leave provisions of the HSO award, the benefit of that accrual was maintained.
26 Clause 13(3) to cl 13(10) form part of the overall scheme conferring entitlements of long service leave that have limited bearing on the present circumstances.
27 Clause 13(11) and cl 13(12) whilst not directly defining 'continuous service', deal with certain specific circumstances that bear on the meaning of that term. The appellant says that cl 13(12) creates provisions similar in character to the conception of continuous employment reflected in the repealed General Order and the Long Service Leave Act.
28 Clause 13(14) provides for circumstances of the kind that occurred in the case of Ms Geraghty, namely where an employee has completed a period of continuous service so as to entitle her to long service leave is able to elect, in lieu of taking some of that entitlement, to cash out long service leave for payment reflecting leave of a different character.
29 The appellant says that read against this context and the structure of cl 13 generally, the text of cl 13(15) must be construed so as to:
(a) clarify the effect of the operation of a payment in lieu, pursuant to cl 13(14), on any entitlement to future long service leave which is then accrued compatibly with the starting point provided for in cl 13(1). In particular, the appellant says the words 'any future entitlement' should be read as only applying to an entitlement to long service leave that arises after the 2001 agreement had commenced;
(b) deal with payments similar in character to that provided for in cl 13(14) or paid to Ms Geraghty under the WP agreement;
(c) evince an intention to preclude 'double dipping'; that is, that any future entitlement to long service leave must bring to account the actual payment previously received for any period the subject of an election under cl 13(14);
(d) maintain the relevant commencement date of the assessment of 'continuous service' for the purposes of any subsequent long service leave.
30 The appellant argues that the provision has to be read generously so as to not derogate from the effect of continuous service built to the commencement of the 2001 agreement and service undertaken from 1995 to 1999. The appellant concedes that cl 13(15) must be construed as preventing double dipping in the sense of taking into account a payment that was received in lieu of long service leave. In particular, the recreational leave that was received by Ms Geraghty must be deducted. However, they say the period of accrual of that leave ought not be deducted. The only deduction should be the period of leave converted to recreational leave.
31 The consequences of the appellant's argument that flow to Ms Geraghty's position is that the starting point for calculating any given period of 'continuous service' is when she commenced employment with the respondent on 1 August 1995. This meaning is derived from:
(a) a proper contextual reading of the entirety of cl 13;
(b) if there is any ambiguity in the text of cl 13 (which the appellant denies) a resolution of that ambiguity in favour of Ms Geraghty, compatibly with a beneficial interpretation of the industrial instrument; and
(c) the analogous characterisation of nationally consistent long service leave provisions that ought to be applied unless the Commission is convinced such standards are plainly ill conceived.
32 The appellant says that in her decision on 3 February 2012, the Public Service Arbitrator accurately extracted the statement of agreed facts and associated timeline and broadly summarised the applicable issues that arise for consideration. She then, in an approach which was generally correct:
(a) characterised the object of long service leave as 'a reward for long and faithful service' and 'the means of reducing labour turnover' and found that relevant industrial instruments should be interpreted in the context of that purpose and giving an appropriate contextual meaning to the term 'long service' or 'continuous service';
(b) noted that the provisions of the character of cl 13(15) of the 2001 agreement have a similar affect: that is, they cover periods of time which do not count as service for the purpose of determining an entitlement to long service leave. This it says is consistent with the observations of Evatt J in Australian Journalists Association v Advertiser Newspapers Ltd who found the industrial concept of 'continuous service' expressly recognises that the contract of service exists even if certain periods of absence are excluded and is to be distinguished from the term employment in reference to the accrual of leave;
(c) held, thus, that 'service' relevantly counts from the commencement of the contract of service with certain specified periods of service being excluded from the calculation of continuous service. Particularly, there was nothing in the HSO award, the industrial agreements or the WP agreement which indicated that the employee's period of service required for the purpose of accruing an entitlement to long service leave, is broken and must start again;
(d) concluded that cl 13(15) of the 2001 agreement was clearly designed to avoid double dipping by the employee. Hence, for the purposes of calculation of an entitlement to long service leave, Ms Geraghty's service commenced on 1 August 1995.
33 However, the appellant says the supplementary reasons for decision in addressing the dispute that then persisted, namely whether the period of long service leave that had been converted to recreational leave under the WP agreement operated as a period of exclusion in determining 'continuous service', the Public Service Arbitrator departed from the hitherto generally correct generous approach and her approach manifested error.
34 Whilst the appellant now agrees that Ms Geraghty ceased to accrue an entitlement towards long service leave for the period of the operation of the WP agreement, the appellant says the Public Service Arbitrator erred in finding that the period of service that had been converted to recreational leave should not be counted as service for the period of determining any future entitlement to long service leave.
35 The appellant concedes that there should be no double dipping and that the amount of the pro-rata long service leave converted to recreational leave on 24 September 2000 should be offset. As at that date an amount of 6.5444 weeks of pro-rata long service leave had been converted to recreational leave and discounted by 25% to 4.9083 weeks in accordance with the terms of the WP Agreement. Consequently, if the appellant's argument is successful Ms Geraghty would have been entitled to 13 weeks' long service leave on 27 July 2006 minus 6.5444 weeks: appellant's further particulars filed 28 September 2012. The effect, however, of the declaration made by the Public Service Arbitrator is calculated in a different way. Declaration A(3)(a) declares that the period of service from 1 August 1995 to 22 February 1999 (which was converted to recreational leave in accordance with the WP agreement) is a period of service that did not count towards 10 years' continuous service. In making this declaration, the appellant says the Public Service Arbitrator:
(a) departed from the correctly contextual approach she had undertaken in her earlier reasons for decision; failed to construe cl 13(15) of the 2001 agreement and its subsequent equivalents beneficially;
(b) effectively applied a construction of 'continuous service' that departed from the consistently recognised standard in Australian industrial law.
Principles of construction of industrial instruments
36 It is common ground that an industrial instrument must be understood in its context. This important principle of interpretation of statutory instruments was discussed by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc [69] - [71] who said:
69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole' (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, 'in the context of the legislation read as a whole'). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J).
70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J). Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other' (Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision (The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ). In The Commonwealth v Baume ((1905) 2 CLR 405 at 414) Griffith CJ cited R v Berchet ((1688) 1 Show KB 106 [89 ER 480]) to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'.
37 Awards and industrial agreements are not legislative instruments. Such instruments are given legislative effect by enabling legislation and are not to be regarded as drafted by persons skilled in the drafting of legislation or other instruments. Thus, there are subtle but important considerations when interpreting industrial instruments when compared to the construction of legislative instruments.
38 Firstly, it is clear that the task of construction of industrial instruments is to be approached in a way that allows for a generous construction. Secondly, part of the context of construction of an industrial instrument is how it is made. Where an industrial instrument is an award, the principles to be applied were set out by French J in City of Wanneroo v Holmes (378 - 379) where his Honour said:
The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words: Re Clothing Trades Award (1950) 68 CAR 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 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 at 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).
39 Justice French subsequently reaffirmed what he said in City of Wanneroo v Holmes in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union when he observed [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.
40 Later, 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 [96] and [129] favoured an even more generous contextual approach that had been expressed in Kucks by Madgwick J who had said (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.
41 In Amcor the industrial instrument in question was an industrial agreement. Callinan J went on to observe that [131]:
An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace.
42 It is also relevant to consider what Madgwick J said in Kucks (184) in the following passage that immediately followed the passage considered by Kirby and Callinan JJ in Amcor:
[T]he task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
43 Counsel for the appellant, Mr Hooker, made a submission that the observation of Callinan J in Amcor about the purposes of industrial agreements should be treated with circumspection as these observations were not representative of the majority in Amcor. It is our view, however, that whilst it can be acknowledged that his Honour's observations were obiter, the observations have a sound foundation. Industrial agreements, unlike awards and some award amendments, can only be consensual, yet award provisions can be made by consent or are arbitrated. Part of the context of industrial agreements is the statutory framework that enables parties to enter into industrial agreements: United Voice WA v The Minister for Health [2012] WAIRC 00319; (2012) 92 WAIG 585.
44 We agree that the terms of an industrial instrument must be read within the historical context of an operative award and past industrial instruments that apply to the class of employees whose terms and conditions of employment are covered by the industrial instrument in question. However, added to that context should be a consideration of any relevant statutory scheme.
45 The 2001 and subsequent industrial agreements were registered under s 41(1) of the Act which provides:
An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organisation or association of employees and any employer or organisation or association of employers.
46 Although the provisions of the now repealed General Order forms part of the history of the provision of long service leave in Western Australia to employees whose conditions of employment were covered by awards, the General Order had no application to the HSO award or to the terms and conditions of Ms Geraghty's employment. Nor can the provisions of the repealed Workplace Relations Act or Fair Work Act be said to be relevant to a consideration of the construction of long service leave provisions in the HSO award, the 2001 agreement and subsequent agreements.
47 The provisions of the Long Service Leave Act also have had no express application to any employee employed by the respondent who is eligible to be a member of the appellant. Leaving aside this issue, as the appellant has put an argument that the scheme of the Long Service Leave Act is part of a scheme to establish 'standards' of continuous service, it is important to consider the relevant provisions of that Act and its history. When the Long Service Leave Act was first enacted in 1958 its provisions did not apply to employees whose employment was regulated under the Industrial Arbitration Act: Long title and definition of 'employee' in s 4(1) of the Long Service Leave Act when first enacted in 1958. In 1995, by the enactment of s 46(3) of the Industrial Relations Legislation Amendment and Repeal Act 1995 (WA) (Act No 79 of 1995), this exclusion was continued in an amendment to s 4(3) of the Long Service Leave Act which provided:
(3) Where a person is, by virtue of —
(a) an award or industrial agreement;
(b) a workplace agreement or other agreement between the person and his employer; or
(c) an enactment of the State, the Commonwealth or of another State or Territory,
entitled to, or eligible to become entitled to, long service leave at least equivalent to the entitlement to long service leave under this Act, that person is not within the definition of ''employee'' in subsection (1).
48 This provision along with other enabling provisions in the Workplace Agreements Act (now repealed) enabled the respondent to enter into workplace agreements with employees that provided for long service leave entitlements. Of importance, s 4(3) of the Long Service Leave Act did not provide for standard long service leave conditions. When s 4(3) was first enacted it simply required and continues in its current form to require long service leave to be provided to employees that is at least equivalent to the entitlement to long service leave in the Long Service Leave Act.
49 The current s 5 of the Long Service Leave Act was also inserted by Act No 79 of 1995. This provision enables an employee and employer to agree in writing to contract out of an entitlement to long service leave by giving the employee an adequate benefit in lieu of the entitlement.
50 Under s 8 of the Long Service Leave Act an employee is not entitled to 13 weeks' long service leave until the employee has completed 15 years' continuous service. Whilst the accrual of pro-rata long service leave has become more generous since the Long Service Leave Act was first enacted in 1958, this entitlement has not changed. At the present time, pro-rata long service leave under the Long Service Leave Act accrues after 10 years' continuous service.
51 In this matter, the material facts disclose that the accrual of long service leave was:
(a) 13 weeks after seven years' continuous service under the HSO award; and
(b) 13 weeks after 10 years' continuous service under the 1999 industrial agreement and subsequent industrial agreements.
52 Consequently, it can be seen no uniform standard has been established for length of service to accrue long service leave. It is the case, however, that all long service leave schemes provide as a reward for continuous long service an extended period of leave. The way in which continuous service is calculated is not, however, uniform. In the Long Service Leave Act periods of paid leave and most absences from work that could be said to be contemplated are counted as continuous service. Section 6 of the Long Service Leave Act currently provides:
(1) For the purposes of this Act employment of an employee whether before or after the commencement of this Act shall be deemed to include —
(a) any period of absence from duty for — 
(i) annual leave;
(ii) long service leave; or
(iii) public holidays or halfholidays, or, where applicable to the employment, bank holidays;
(b) any period of absence from duty necessitated by sickness of or injury to the employee but only to the extent of 15 working days in any year of his employment;
(c) any period following any termination of the employment by the employer if such termination has been made merely with the intention of avoiding obligations under this Act in respect of long service leave or obligations under any award or industrial agreement in respect of annual leave; and
(d) any period during which the employment of the employee was or is interrupted by service —
(i) as a member of the Naval, Military or Air Forces of the Commonwealth of Australia other than as a member of the British Commonwealth Occupation Forces in Japan and other than as a member of the Permanent Forces of the Commonwealth of Australia except in the circumstances referred to in section 31(2) of the Defence Act 1903 and except in Korea or Malaya after 26 June 1950;
(ii) as a member of the Civil Construction Corps established under the National Security Act 19391946; or
(iii) in any of the Armed Forces under the National Service Act 1951, or any Act passed in substitution for, or amendment of, that Act,
but only if the employee, as soon as reasonably practicable after the completion of any such service, resumed or resumes employment with the employer by whom he was last employed prior to the commencement of such service.
(2) For the purposes of this Act, the employment of an employee whether before or after the commencement of this Act shall be deemed to be continuous notwithstanding — 
(a) the transmission of a business as referred to in subsections (4) and (5);
(b) any interruption referred to in subsection (1) irrespective of the duration thereof;
(c) any absence of the employee from his employment if the absence is authorised by his employer;
(d) any standingdown of an employee in accordance with the provisions of an award, industrial agreement, order or determination —
(i) in force under the Industrial Relations Act 1979; or
(ii) in force under the Commonwealth Conciliation and Arbitration Act 1904, or any Act enacted by the Parliament of the Commonwealth in amendment of, or substitution for, that Act;
(e) any absence from duty arising directly or indirectly from an industrial dispute if the employee returns to work in accordance with the terms of settlement of the dispute;
(f) any termination of the employment by the employer on any ground other than slackness of trade if the employee is reemployed by the same employer within a period not exceeding 2 months from the date of such termination;
(g) any termination of the employment by the employer on the ground of slackness of trade if the employee is reemployed by the same employer within a period not exceeding 6 months from the date of such termination;
(h) any reasonable absence of the employee on legitimate union business in respect of which he has requested and been refused leave;
(i) any absence of the employee from his employment after the coming into operation of this Act by reason of any cause not specified in subsection (1) or in this subsection unless the employer, during the absence or within 14 days of the termination of the absence, gives written notice to the employee that the continuity of his employment has been broken by that absence, in which case the absence shall be deemed to have broken the continuity of employment.
(3) Any period of absence from, or interruption of employment referred to in subsection (2)(c) to (i) inclusive shall not be counted as part of the period of an employee's employment.
(4) Where a business has, whether before or after the coming into operation hereof, been transmitted from an employer (herein called the transmittor) to another employer (herein called the transmittee) and an employee who at the time of such transmission was an employee of the transmittor in that business becomes an employee of the transmittee — the period of the continuous employment which the employee has had with the transmittor (including any such employment with any prior transmittor) shall be deemed to be employment of the employee with the transmittee.
(5) In subsection (4) —
transmission includes transfer, conveyance, assignment or succession, whether voluntary or by agreement or by operation of law, and transmitted has a corresponding meaning.
53 Section 6 of the Long Service Leave Act reflects substantially the same terms as cl 2(5) of the repealed General Order: (1978) 58 WAIG 1, 2 - 3. As the scheme of the entitlement to long service leave and continuous employment in the repealed General Order was substantially the same, we do not find it necessary to analyse the provisions of the General Order.
54 It is notable that whilst periods of absence defined in s 6(2)(c) to s 6(2)(i) of the Long Service Leave Act do not break service so as to render service not continuous, these periods are not counted as part of the period of an employee's employment. Thus, if any employee is stood down from work in accordance with a provision in an award for 10 days, pursuant to s 6(2)(d) the employee's service remains continuous, but those 10 days are not counted when calculating the date for accrual of long service leave: s 6(3).
55 The HSO award defines the concept of 'continuous service' differently to the Long Service Leave Act. When the HSO award was consolidated on 19 December 1979: (1980) 60 WAIG 66, cl 19(4) and cl 19(12) provided (70 - 71):
…
(4) Continuous service shall not include the period during which a worker is on long service leave or any period exceeding two weeks a worker is absent on leave without pay or any service a worker may have before reaching the age of eighteen years.
…
(12) The expression 'continuous services' in this clause includes any period during which a worker is absent on full pay or part pay, from his duties in the hospital service, but does not include –
(a) any period exceeding two weeks during which the worker is absent on leave without pay;
(b) any period during which the worker is taking his long service leave entitlement or any portion thereof;
(c) any service of the worker prior to his attaining the age of eighteen years;
(d) any service of the worker who resigns (except the female worker who resigns because of or with a view to marriage) or is dismissed, other than service prior to such resignation or to the date of any offence in respect of which he is dismissed when such prior service has actually entitled the worker to long service leave under this clause.
56 Although cl 19(5) did not refer to the term 'continuous service', cl 19(5) also provided for service that was not to be counted. This subclause did not substantially add to cl 19(12). Clause 19(5) provided:
A worker who resigns (except a female worker who resigns because of marriage or approaching marriage) or is dismissed, shall not be entitled to long service leave or payment for long service other than that leave that had accrued to him prior to the date on which he resigned or the date of the offence for which he is dismissed.
57 The HSO award applies to more than one hospital and/or health service and to more than one statutory employer. Thus, service under cl 19(1) was deemed not to be broken by resignation from the employment of an employer party to the HSO award.
58 Clause 19(5) of the HSO award was varied on 22 January 1990: (1990) 70 WAIG 588, by deleting the provision and inserting in lieu thereof (591):
An employee who resigns or is dismissed, shall not be entitled to long service leave or payment for long service leave other than leave that had accrued to the employee prior to the date on which the employee resigned or the date of the offence for which the employee is dismissed.
59 Also, cl 19(12)(d) was deleted and in lieu the following substituted:
Any service of the employee who resigns or is dismissed, other than service prior to such resignation or to the date of any offence in respect of which the employee is dismissed when such prior service has actually entitled the employee to long service leave under this clause.
60 Unlike s 6 of the Long Service Leave Act, cl 19(12) of the HSO award excluded from 'continuous service' some periods of paid work, such as service worked prior to attaining the age of 18 years and service worked after resignation or the date of an offence if an employee was dismissed. Thus, the appellant's contention that it is a feature of all long service leave schemes that long service leave accrues for all paid service cannot be maintained. When this proposition falls, the whole of the appellant's argument falls, as this contention is a central premise of the appellant's arguments in support of its grounds of appeal.
61 In our opinion, the proper approach to the interpretation of the industrial agreements that applied to the terms and conditions of Ms Geraghty's employment is to interpret the relevant provisions in light of the historical and statutory context of the HSO award, the industrial agreements and the WP agreement.
62 It is agreed that when Ms Geraghty signed the WP agreement she elected to convert pro-rata long service leave to recreational leave and have it accrued on an annual basis. This was permitted pursuant to cl 11.12 of the WP agreement. By cl 11.13, an employee who elects to exercise this option ceases to accrue an entitlement towards long service leave but will be advanced by two salary levels.
63 In the case of Ms Geraghty, this meant that she converted 6.5444 weeks' pro-rata long service leave to recreational leave. On the evidence, the 6.5444 weeks was the pro-rata long service leave accrued during her employment to the date she made this election, a period of just over five years' service (ts 32).
64 The 6.5444 weeks' pro-rata long service leave was paid to her at the 25% discount provided for in cl 11.12(A) of the WP agreement. This resulted in Ms Geraghty receiving 4.9083 weeks of recreational leave for 6.5444 weeks of long service leave. This exhausted Ms Geraghty's pro-rata long service leave entitlement accrued from the commencement of her employment on 1 August 1995 to the date she signed the WP agreement (other than for an administrative miscalculation).
65 In summary:
(a) Ms Geraghty received 4.9083 weeks' payment;
(b) This payment was for the period of service 1 August 1995 to her signing the WP agreement in September 2000.
66 When Ms Geraghty withdrew from the WP agreement, her employment became regulated by the 1999 agreement. Over time, as that agreement was replaced by successive industrial agreements, a point was reached at which, on 1 August 2005, Ms Geraghty attained 10 years' employment with the respondent. The issue is how much of that employment counts as service for the purposes of a further long service leave entitlement?
67 The answer is a relatively simple task of the interpretation of the relevant parts of the subsequent agreements.
68 The terms of the 1999 agreement expressly replaced cl 19 of the HSO award. This industrial agreement applied to Ms Geraghty's employment after she withdrew from the WP agreement on 8 October 1991.
69 Clause 17 of the 1999 agreement not only provided for 13 weeks' paid long service leave on completion of 10 years of continuous service and an additional 13 weeks' paid long service leave for each subsequent period of seven years of continuous service, cl 17 also provided for payment in lieu of taking a portion of long service leave: cl 17(1) and cl 17(14).
70 Clause 17(7) of the 1999 agreement replicated cl 19(12)(d) of the HSO award. Clause 17(12) reflected in part cl 19(12) of the HSO award but made some changes. Clause 17(12) provided:
The expression 'continuous service' in this clause includes any period during which an employee is absent on full pay or part pay, from his/her duties with any employer party to the Award, but does not include-
(a) any cumulative period exceeding two weeks in any one anniversary year during which the employee is absent on leave without pay;
(b) Any service of the employee who resigns or is dismissed, other than service prior to such resignation or to the date of any offence in respect of which the employee is dismissed when such prior service has actually entitled the employee to long service leave, including pro-rata long service leave, under this clause.
71 The discriminatory provision that prohibited service prior to the age of 18 years under cl 19(12) of the HSO award was removed by the 1999 agreement and the requirement that service whilst on long service leave was not to be counted was also removed. Clause 17(12) introduced one other change. Whereas cl 19(12)(a) of the HSO award excluded each absence exceeding two weeks of leave without pay, cl 17(12) of the 1999 agreement excluded any cumulative period exceeding two weeks of leave in any one year without pay.
72 The 2001 agreement came into effect on 24 January 2002. Except for the insertion of cl 13(15), the 2001 agreement contained the same material long service leave conditions as the 1999 agreement.
73 The appellant argues that the effect of cl 13(15) of the 2001 agreement and its equivalent provisions in the subsequent industrial agreements is that the period of time Ms Geraghty converted to recreational leave should be deducted from her entitlement to long service leave. Thus, it says on 27 July 2006 the appellant would have become entitled to 13 weeks' long service leave less 6.5444 weeks that she converted to recreational leave on 24 September 2000.
74 Clause 13(15) of the 2001 and 2004 agreements provided that any period of service during which, or for which, Ms Geraghty received or had received payment or any other compensation in lieu of long service leave shall not be counted as service for the purpose of determining any future entitlement to long service leave. This language is the same in cl 41(16) of the 2006 and the 2008 agreements.
75 The first difficulty with the appellant's argument is it is not the period of long service leave that was converted that is to be deducted. It is the period of service that has been converted that is to be deducted. Nor is the provision entirely prospective. This construction is not only reflected in the express language used in cl 13(15), it is also consistent with the way in which periods of service are to be counted or excluded within the meaning of cl 13(7), cl 13(11) and cl 13(12). As discussed, when calculating dates of accrual, cl 19(12) of the HSO award, cl 17(7) of the 1999 agreement and cl 13(7) of the 2001 agreement all exclude periods of service after resignation or dismissal. Also, cl 17(12) of the 1999 agreement and cl 13(12) of the 2001 agreement excludes periods of service. These provisions do not exclude periods of long service leave that had accrued and that had been taken or converted to another benefit. If these clauses did so such a provision would be consistent with the appellant's construction of cl 17(15).
76 Secondly, the historical context of the insertion of cl 13(15) into the 2001 agreement should not be ignored. This clause was inserted after Ms Geraghty ceased to be a party to the WP agreement which was a generic document with common terms and conditions in respect of long service leave.
77 Under cl 11.12 of the WP agreement, Ms Geraghty and any other employee who was a party to the generic WP agreement could elect to convert pro-rata long service leave to a discounted rate of recreational leave. When this context is examined, the words 'payment, or any other compensation' in cl 13(15) must be construed to mean payment of money or some other benefit such as converting a period of long service leave to a discounted form of another type of leave. Without regard to the historical context of the WP agreement, it would be difficult to ascertain what the words 'any other compensation' meant as other than the rights created in the WP agreement, the only other benefits that accrued to an employee were the right to take long service leave or the right to make a request for payment in lieu. The words 'any other compensation' must be construed as a right to convert pro-rata long service leave to discounted recreational leave. Such a right would clearly be within the meaning of the word 'compensation'.
78 The proper interpretation of cl 13(15) when applied to the facts relating to Ms Geraghty are as follows:
(a) As she converted a period of service for which she received compensation, (in this case, a discounted period of annual leave), she has received 'compensation' for that period which was converted;
(b) The period of service which was converted is not to be counted as service, when determining her entitlement to long service leave after the commencement of the 2001 agreement or any subsequent agreement.
79 The language in these provisions states that it is the period of service for which Ms Geraghty received the payment that is not counted. Ms Geraghty received a payment of 4.9083 weeks' pay; but the period of service for which that payment was made was the period of service from the commencement of her employment to the signing of the WP agreement; that is the period of service for which she received the payment. Accordingly, it is that period which is not to be counted as service for the purpose of determining her future entitlement to long service leave, less the period of leave which remained to her credit by way of a calculation error. That is the decision reached by the Public Service Arbitrator in this matter and we can detect no error.
80 For these reasons, we are of the opinion the Public Service Arbitrator did not err and the grounds of appeal have not been made out.
81 In a document filed by the respondent on 24 October 2012 titled 'Respondent's Further Particulars', the respondent states:
1. In the statement of agreed facts for PSA CR 1 of 2012 [sic] at agreed facts 24 and 25 both parties agreed that:
'24. The 1999 Agreement changed long service leave accrual from 13 weeks long service leave after 7 years of continuous service to 13 weeks long service leave after 10 year [sic] of continuous service.
25. Under the terms of the 1999 Agreement, this change was effective from 1 January 1999.'
2. In the Further Particulars filed by the Appellant on 28 September 2012 the Appellant has raised in paragraph 1(a) that the change from 7 to 10 years of continuous service was from 1 April 1996 and not 1 January 1999.
3. Until receiving the further particulars the Respondent was not aware that this was an issue. However, on further investigation concedes that the date of 1 April 1996 is the correct date for the change from 7 to 10 years of continuous service.
4. In addition, by correcting the date for the change from 7 to 10 years of continuous service this also changes the amount of weeks that were not converted to recreational leave in error.
5. At the initial hearing before A/Senior Commissioner Scott in PSA CR 1 of 2011 the parties conceded that there was an error of 0.9 weeks which was not properly converted to recreational leave.
6. As the Respondent has now recalculated the amounts in line with the corrected date for the change from 7 to 10 years continuous service this error now results in a 0.5456 weeks that were not converted to recreational leave instead of the previous 0.9 weeks which was agreed at the initial hearing in PSA CR 1 of 2011.
7. It is noted that while this change in the date for the change from 7 to 10 years of continuous service does change the calculations the Respondent submits that it does not affect the overall principles before the Full Bench regarding which periods of time should be considered to be relevant periods.
RESPONDENT'S CALCULATIONS
8. Commissioner Scott's Declaration and Order issued on 3 May 2012 the relevant periods which were declared not to count towards continuous service included at declaration 3(a):
'the period of service from 1 August 1995 to 22 February 1999 which was converted to recreational leave in accordance with the Workplace Agreement'.
9. Due to the agreed change (as outlined above) regarding the effective date for the change from 7 to 10 years this alters the period of service which was converted to recreational leave under the Workplace Agreement.
10. The Respondent's calculations since being notified of this change now results in the period being from 1 August 1995 to 24 April 2000. Therefore the Respondent submits that should the appeal be in its favour that declaration 3(a) should be amended to:
'the period of service from 1 August 1995 to 24 April 2000 which was converted to recreational leave in accordance with the Workplace Agreement'.
11. The date of 24 April 2000 (instead of 22 February 1999) accounts for the change to the accrual due to the change from 7 to 10 year accrual as well as the error being 0.5456 weeks and not 0.9 weeks.
82 As the respondent did not file a cross-appeal it is not now open to the respondent to raise a contention that the Public Service Arbitrator erred in fact in making the order and declaration on 3 May 2012. In any event, a cross-appeal would not be successful as the respondent is bound by the agreed facts it put before the Public Service Arbitrator. Consequently, we are of the opinion that an order should simply be made by the Full Bench that the appeal be dismissed.
HARRISON C:
83 I have had the benefit of reading the reasons for decision of her Honour, the Acting President and Beech CC. I agree with those reasons and have nothing to add.