2013 WAIRC 00053
APPEAL AGAINST A DECISION OF THE INDUSTRIAL MAGISTRATE GIVEN ON 19 JULY 2012 IN MATTER NO. M 38 OF 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2013 WAIRC 00053

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER S J KENNER

HEARD
:
WEDNESDAY, 14 NOVEMBER 2012

DELIVERED : THURSDAY, 31 JANUARY 2013

FILE NO. : FBA 4 OF 2012

BETWEEN
:
UNITED VOICE WA
Appellant

AND

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE'S COURT
CORAM : INDUSTRIAL MAGISTRATE G CICCHINI
CITATION : [2012] WAIRC 00446; (2012) 92 WAIG 1592
FILE NO : M 38 OF 2011

CatchWords : Industrial Law (WA) - cl 10 Education Assistants' (Government) General Agreement 2010 - principles of construction of interpretation of industrial agreements considered - meaning of 'district office' considered - turns on own facts - Full Bench unanimously found that reasons given by Industrial Magistrate were adequate - majority found Industrial Magistrate erred in construing the term and misdirected himself as to the question to be determined on the pleadings
Legislation : Industrial Relations Act 1979 (WA) s 41, s 41(1), s 41(4), s 41(5), s 83, s 84(2);
Public Sector Management Act 1994 (WA) s 29, s 29(1)(g), s 29(1)(k), s 80(a);
School Education Act 1999 (WA).
Result : Appeal allowed, order made
REPRESENTATION:
Counsel:
APPELLANT : MS C M COLLINS
RESPONDENT : MR D J MATTHEWS
Solicitors:
RESPONDENT : STATE SOLICITOR'S OFFICE

Case(s) referred to in reasons:
AITCO Pty Ltd v Federated Liquor & Allied Industries Employees Union (SA Branch) (1988) 30 AILR ¶382
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337
Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90; (2010) 186 FCR 88
Garrett v Nicholson (1999) 21 WAR 226
Geo A Bond & Co Ltd (in liq) v McKenzie (1929) AR(NSW) 498
Health Services Union of Western Australia (Union of Workers) v The Director General of Health [2012] WAIRC 01117
Kucks v CSR Ltd (1996) 66 IR 182
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181
Norwest Beef Industries Limited v Australian Meat Industry Employees Union (WA) (1984) 64 WAIG 2124; (1985) 27 AILR ¶73
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights Union of Western Australia (1987) 67 WAIG 1097
Ross v The Queen (1979) 141 CLR 432
Royal Botanic Gardens v South Sydney City Council (2002) 240 CLR 45
RRIA v AMWU (1998) 68 WAIG 990
Ruane v Woodside Offshore Petroleum Pty Ltd (1990) 71 WAIG 913
Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Short v F W Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511
Swan v Rawsthorne (1908) 5 CLR 765
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Transport Workers' Union of Australia, New South Wales Branch v Toll Transport Pty Ltd trading as Toll Liquid Distribution [2006] NSWIRComm 123
United Voice WA v Director General, Department of Education (2012) 92 WAIG 1592
Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 282 ALR 604
Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528
Case(s) also cited:
Australian Timber Workers Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172
The Australian Workers' Union, West Australian Branch, Industrial Union of Workers v BHP Iron Ore Ltd [2001] WAIRC 02526; (2001) 81 WAIG 1254
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426
City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362
The Clothing Trades Award (1950) 68 CAR 597
Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v Minister for Education [2010] WAIRC 00305; (2010) 90 WAIG 1542
Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291
Pickard v John Heine & Son Ltd [1924] HCA 38; (1924) 35 CLR 1
Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch v Arrow Holdings Pty Ltd (1989) 69 WAIG 1050; (1989) 31 AILR ¶363
Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch v Arrow Holdings Pty Ltd (1989) 69 WAIG 2668; (1990) 32 AILR ¶56
The United Furniture Trades Industrial Union of Workers, Perth, WA v Dale Manufacturing Co Pty Ltd (1950) 30 WAIG 539

Reasons for Decision
SMITH AP AND BEECH CC:
1 This is an appeal instituted under s 84(2) of the Industrial Relations Act 1979 (WA) (the Act). The appeal is against part of a decision of the Industrial Magistrate's Court. The decision appealed against is a finding made on 19 July 2012 in M 38 of 2011 that the respondent had not breached cl 10.3 of the Education Assistants' (Government) General Agreement 2010 (the 2010 agreement).
The application before the Industrial Magistrate's Court
2 The appellant alleged at first instance the respondent had contravened or failed to comply with several provisions of cl 10 of the 2010 agreement which provides for inductions of education assistants newly employed in government schools as follows:
10.1 The employer consistent with its policy, Staff Induction, will ensure all new employees and redeployees attend induction sessions within three months of commencement of employment.
10.2 The Department of Education and Training will develop a specific induction package for Education Assistants.
10.3 Each district office is responsible for conducting inductions which are to be held twice each term during term time for new employees. The Employer will notify the Union if there are no new employees requiring induction and the required second induction in the term will not be necessary.
10.4 The Union will be given at least 14 days notice of the time and place of the inductions and the names of those attending. The Union is entitled to at least thirty minutes to address new employees without Employer representatives being present. The Union will meet the costs associated with its attendance at such sessions.
10.5 Every effort will be made to induct new employees in remote locations. Inductions may be part of professional development days or other days dedicated to staff training or development. Where car travel is greater than two hours, consideration may be given to an on-line induction to be available for new employees.
3 In paragraph 3.5 of the amended statement of claim the appellant pleaded that on and between 1 January 2011 and 5 September 2011 the respondent breached cl 10 in the following ways:
(b) From 2011, the Respondent removed the responsibility for conducting inductions from the district offices and reallocated the responsibility to the line manager or principal of individual schools. The district offices were not responsible for conducting any inductions in the period 31 January to 5 September 2011.
(c) Inductions were not held twice each term in the period 31 January to 5 September 2011.
4 A central issue before the Industrial Magistrate's Court was whether following a policy decision by government to restructure the delivery of resources to schools in 2010, cl 10.3 of the 2010 agreement could be complied with by the respondent. It was common ground that the outcome in paragraph (c) was contingent upon the outcome in paragraph (b).
5 The 2010 agreement was registered on 4 August 2010. In late 2010, as a result of a decision made by the executive of the Western Australian government to devolve responsibility for the running of schools to local school communities, it was announced that existing district education offices were to be replaced by school networks, regional education offices and local education offices. In a document setting out the education networks and regions policy published by the Department of Education in September 2010 it was stated (exhibit 1 (AB 60)):
There will be a regional or local education office located where there is currently a district office. This will ensure continuity and that a public face and immediate contact for education is maintained in each community. These offices allow community members to approach senior Department representatives with issues and problems for local resolution. It will also foster interagency collaboration and, wherever possible, co-location of services.
Each region will be headed by a Regional Executive Director who will, for the first time, become a member of the Department's Corporate Executive team. This will provide more direct access between schools and the Director General through a flatter management structure. For country regions, it will strengthen representation at the most senior decision making level of the Department.
Each region will be provided with a flexible budget to respond to the specific needs of its schools. All savings generated will be reinvested in schools and networks.
Services closer to school
Services currently available to schools will continue to be provided. The model of delivery of these school support services will be enhanced by locating the resources in schools or networks of schools. This will allow principals to determine how support services are used.
Independent Public Schools
Independent Public Schools will have the opportunity to access support provided through school networks. Although they operate more autonomously and have different governance and accountability arrangements, Independent Public Schools continue to be part of the public school system. This means that, like all schools, they have the right to the benefits of belonging to a network.
Principals of Independent Public Schools will demonstrate accountability to the Director General through a Delivery and Performance Agreement.
6 Under the heading 'Services provided by regions' the policy also stated:
Education regions will encourage local decision making with regard to resources. Regional Executive Directors will monitor and assess school performance against established standards.
Services provided through the new structure include:
· coordination, communication and management support for school and regional emergencies, complaints and general requests for information
· a conduit for information to schools and the rollout of Statewide programs
· school psychology services which remain an important and growing element of support for schools; most school psychologists will be based in schools or networks of schools
· senior finance consultants to build the capacity of principals, registrars and business managers to manage financial resources
· flexible budgets for direct intervention in schools where needed and general support for principals and teachers
· curriculum support through teacher development centres or similar.
The new school network structure emphasises and encourages a practitioner approach to support, providing flexibility to schools and networks. This will enable highly competent principals and teachers to help and support other staff.
7 The policy established eight regional education offices, seven local education offices and 75 networks which replaced 14 existing district education offices. Of importance to the appellant's case, the regional and local education offices are located in the same physical geographic locations as the former district education offices. The regional structure established by the policy was as follows:
North Metropolitan 228 schools
South Metropolitan 239 schools
Kimberley 23 schools
Pilbara 29 schools
Wheatbelt 71 schools
Goldfield 55 schools
Southwest 87 schools
Midwest 50 schools
20
networks
21
networks
3
Networks
3
Networks
9
Networks
6
Networks
7
Networks
6
networks
Regional Office
Stirling
Regional Office
Fremantle
Regional Office
Broome
Regional Office
Karratha
Regional Office
Northam
Regional Office
Kalgoorlie
Regional Office
Bunbury
Regional Office
Geraldton
Local Education Office
Beechboro
Local Education Office
Mandurah Cannington


Local Education Office
Narrogin
Local Education Office
Esperance
Local Education Office
Albany
Manjimup


8 The role of regional executive directors was also set out in a policy as follows (exhibit 8 (AB 71)):
Regional Executive Directors will:
· support innovation, efficiency and collaboration so students have access to a broad, high quality curriculum
· coordinate communications and complaints, disputes and crisis management processes
· monitor schools through the Department's performance information systems on student achievement (academic and non-academic), financial and human resource management, and community relations
· initiate and coordinate support for and intervention in underperforming schools
· manage school principals and regional staff
· lead the implementation of Department policies, programs and initiatives
· facilitate and support interagency collaboration and partnerships
· support the professional learning and development of Network Principals in consultation with the professional learning and leadership institute
· advise Corporative Executive on Department policy and programs.
9 The two main issues raised in this appeal are:
(a) The construction of cl 10.3 of the 2010 agreement.
(b) Whether or not it was possible for the respondent to comply with its obligations under cl 10.3 as a result of the implementation of the education networks and regions policy.
Reasons for decision of the Industrial Magistrate
10 The learned Industrial Magistrate found that cl 10.3 had not been breached by the respondent. Firstly, he found that once the district education offices had been abolished, there was no body that was required to conduct inductions within the meaning of cl 10.3. Secondly, he found once district offices were abolished the respondent was able to delegate the responsibility to conduct inductions to the schools. When making these findings, the learned Industrial Magistrate had regard to the evidence about the importance of inductions, the changes in delivery of resources to schools brought about by the education networks and regions policy and evidence about some initial discussions in late 2010 and early 2011 between representatives of the respondent and the appellant about who would be responsible for conducting inductions of education assistants.
11 When considering the submissions and evidence put before him, the learned Industrial Magistrate firstly had regard to the reasons why the appellant saw the proper induction of education assistants as important. He found ([2012] WAIRC 00446; (2012) 92 WAIG 1592):
4. The claimant union represents Education Assistants employed by the respondent. In more recent times the union has attempted to increase the profile of Education Assistants who, in the past, were sometimes seen and regarded as being unskilled workers. The claimant says that in reality they possess important skills. It is therefore striving to increase the professionalism of Education Assistants and to create commensurate career and pay structures.
5. The proper induction of Education Assistants is seen by the claimant as being an important and integral process by which it can achieve its objectives. With that in mind it negotiated the inclusion of an induction clause in the Education Assistants' (Government) General Agreement 2007 (the 2007 Agreement) which has been retained in the 2010 Agreement.
6. The claimant's State Secretary, Mr David Kelly, testified that it was important from the union's point of view that inductions be conducted by a central authority so that they could be regulated and monitored. There were quality assurance benefits in the induction being conducted in that way. It was also more convenient for the union. From a logistical point of view it was physically impossible for the union to attend all school based inductions, sometimes involving only a few employees at different locations, potentially being conducted at the same time. It was far better for the union to recruit members and address Education Assistants about various campaigns at large induction sessions. Simply put, the union does not have the resources to attend multiple small induction sessions.
12 His Honour had regard to the government's change in policy about the delivery of school services and to the fact that the new model of regional offices replaced district education offices. His Honour then considered evidence given by Ms Margaret Collins, the regional executive director for the southwest education region, on behalf of the respondent, about the role of the regional executive directors. She gave evidence that:
(a) the function of regional executive directors is substantially different to that that was performed by the district offices;
(b) rather than providing support, regional executive directors are expected to monitor the performance of all schools in the region and intervene if a school is underperforming;
(c) as a result of the restructure, regional executive directors were not involved in inductions and that school principals became empowered to induct all staff, including education assistants;
(d) as a result of these changes, the function of conducting inductions and complying with cl 10 of the 2010 agreement therefore now rests with individual school principals.
13 His Honour also found that Ms Sandra Thompson, the respondent's principal human resources consultant, affirmed the evidence given by Ms Collins about the regionalisation policy.
14 His Honour took into account evidence given on behalf of the appellant that there was considerable confusion about where the responsibility for induction lay when the new policy was introduced and that this confusion continued well into 2011. This, he found, was evident from the testimony of Ms Michelle O'Driscoll, the appellant's team lead organiser for the education industry employees. In his reasons, his Honour recited the testimony of Ms O'Driscoll as follows:
12. Ms O'Driscoll testified that in September 2010 she met with the respondent, Ms Sharon O'Neil and others concerning the proposed changes. The exact form of the proposed changes was not then known. As a result of that meeting, Ms O'Driscoll satisfied herself that although there would be some changes made to staffing at district offices, they would essentially remain intact and be renamed as regional offices. That view was reinforced by various discussions she had with departmental officials and also because of what was said in a series of emails passing between her and Ms Thompson. It is important to refer to some of those emails in order to accurately reflect what was happening at the time, and to explain why Ms O'Driscoll held that view.
13. On 4 February 2011, Ms Thompson sent an email to Ms O'Driscoll (Exhibit 2.1) which contained the following:
'Subject: Coordination of inductions for Cleaners, Gardeners and Education Assistants
Good Afternoon Michelle
Thank you for meeting with us this morning. As discussed, the proposed plan to coordinate regional inductions in 2011 is as follows:
· Workforce Management will coordinate EA inductions in collaboration with each Regional Education Office. A copy of the EA Induction calendar for the year will be provided to the LHMU and you will be advised in a timely manner when changes occur.
· Workforce Management will provide the EA induction calendar to Strategic Asset Planning. Wherever possible, Cleaning and Gardening inductions in country and remote areas will be planned to align with the EA induction calendar.
· Group EA Inductions will not be planned in the Kimberley and Pilbara regions in the wet season.
We look forward to working with you this year.'
14. On 17 February 2011, Ms O'Driscoll, by email, queried whether an induction timetable had been finalised. That same day Ms Thompson responded by email saying:
'Hi Michelle
I understand you would be a bit concerned but I want to reassure you it is in progress. Approval from the ED Workforce is being sought to contact the Regional Executive Directors. This will enable me to lock in the dates and negotiate any support they may require to coordinate inductions.'
15. Ms Thompson admitted during her testimony that she had initially informed Ms O'Driscoll that the proposed plan was for regional offices to continue to induct Education Assistants, but after consultation with departmental officers, it was decided that regional offices did not have the capacity to deliver inductions. She also admitted that during the transitional phase there was a lack of clarity about who was responsible for the delivery of inductions. It only later became clear to her that it was the responsibility of individual schools to deliver the inductions. Ms Thompson said that the lack of clarity, combined with awareness and capacity issues, led to breaches of the 2010 Agreement which have been admitted.
15 After considering these matters, the learned Industrial Magistrate made the following findings about the construction of cl 10.3 of the 2010 agreement:
(a) The meaning of 'responsible' in the Oxford Dictionary of English (2nd ed, Oxford University Press 2003, 1501) is stated as '… having an obligation to do something, or having control over or care for someone, as part of one's job or role'.
(b) 'District office' is not defined in the 2010 agreement, nor is it defined in the School Education Act 1999 (WA).
(c) Clause 10 is aimed at ensuring that education assistants receive specific and dedicated inductions for which district offices are responsible. However, as a result of a government initiative which restructured the Education Department, district offices were abolished on 7 September 2010. From then on inductions could no longer be conducted by district offices.
(d) It is self-evident from Ms Thompson's e-mails that she was of the view that regional executive directors would carry out education assistants' inductions. Her view was not predominant. The respondent regarded the role of regional executive directors as being substantially and substantively different to that of district offices. Exhibit 8 supports that. As Ms Collins explained, regional offices took on a supervisory or monitoring role, whereas district offices were responsible for hands on support. Most of the district offices hands-on functions devolved to schools in line with government policy.
(e) The role of regional executive directors and that performed by regional offices is significantly different to that of the now defunct district offices. Regional offices are not structured to provide hands-on support. It is not their role to conduct inductions. That responsibility has devolved to schools in line with the policy underlying the restructure.
(f) The obligation to induct education assistants is, and has always been, the responsibility of the Director General of the Department of Education. Clause 10.3 does no more than to provide for an agreed arrangement as to the delegation of the responsibility to conduct inductions. Upon district offices being abolished the immediate responsibility for conducting inductions reverted to the Director General. She resumed that immediate responsibility when it became impossible for inductions to be done by district offices. In line with the policy underlying the restructure, she delegated that responsibility to schools.
(g) There is no undertaking in cl 10.3 or elsewhere in the 2010 agreement that district offices would not be abolished.
(h) There is nothing in cl 10.3 which requires inductions to be conducted at central locations, even though that is how it was done in the past, and was how it was contemplated by the parties at the time the agreement was made. Clause 10.5 does no more than to enable employees in remote locations who cannot attend a dedicated induction session to be inducted in other ways.
(i) Clause 10 does not say that inductions are to be conducted at a central location or at locations other than schools. The clause is capable of construction without reference to extraneous evidence. Clause 10.3 is concerned with the responsibility for carrying out inductions, but not the form or location of those inductions.
(j) The real question to be determined on the pleadings is whether there has been a breach of cl 10.3 because the respondent failed to ensure that district offices continued, and therefore failed to ensure that district offices continued to have responsibility for the conduct of inductions.
(k) It was impossible for district offices to have responsibility for inductions when they did not exist. There was no agreement that district offices would exist for the life of the 2010 agreement. Clause 10.3 is incapable of enforcement. It is no more than a mechanical provision relating to delegation of responsibility to district offices. Upon the abolishment of district offices that mechanism became redundant.
(l) In any event, even if it could be said that there has been a breach of cl 10.3, the common law defence of impossibility enables exculpation by the respondent. The impossibility arose from the implementation of government policy which the respondent was statutorily obliged to follow.
Grounds of appeal
16 The grounds of appeal are unnecessarily lengthy. Except for the matters raised in ground 5, it is apparent that when one reads the grounds that most of the particulars of the grounds of appeal are in the nature of submissions.
17 Grounds 1 and 2 of the appeal essentially raise the issue whether the learned Industrial Magistrate erred in law by failing to interpret, or to properly interpret, cl 10.3 of the 2010 agreement in accordance with the well-established legal principles for interpreting industrial agreements.
18 In ground 3, the appellant says the learned Industrial Magistrate erred in law by misdirecting himself as to the question to be determined on the pleadings. The learned Industrial Magistrate found that the real question was whether there had been a breach of cl 10.3 because the respondent failed to ensure that district offices continued, and therefore failed to ensure that district offices continued to have responsibility for the conduct of inductions. The appellant says that if the learned Industrial Magistrate had had proper regard to the appellant's pleadings and evidence, he would have directed himself that the real question was whether there had been a breach of cl 10.3 because the respondent failed to ensure that central offices continued to have responsibility for the conduct of inductions.
19 In ground 4, the appellant raises an issue whether the learned Industrial Magistrate erred in law and in fact by finding that it was impossible for the respondent to comply with cl 10.3 and that the common law defence of impossibility enabled exculpation of the respondent.
20 In ground 5, the appellant contends the learned Industrial Magistrate erred in law by failing to provide adequate reasons for his decision.
The appellant's submissions
21 The appellant points out that two interpretations of the term 'district offices' have been put forward in this matter. The first propounded by the respondent and adopted by the learned Industrial Magistrate is that 'district offices' means the 14 district education offices of the respondent that were abolished. The second interpretation is that the term 'district offices' means regional subdivisions of the Education Department, located in the organisation structure between the central office of the department and each school.
22 The appellant argues that to interpret 'district offices' by reference only to the name and title and not to the meaning or essence of that term is circular and allows the respondent to avoid its obligations by merely renaming the district offices.
23 The appellant says that firstly regard should be had to the ordinary and natural meaning of the words 'district offices'. The purely linguistic interpretation of these words is 'organisational subdivisions linked to regions defined for administrative purposes': Oxford Dictionary of English (2nd ed, Oxford University Press 2003, 506). The appellant also points out that it is well known that the term 'office' refers to a subdivision of a government department and this is the case here. It says, however, that whilst the linguistic meaning provides some guidance, it is not enough to properly understand the term 'district offices' within the context of cl 10.3 of the 2010 agreement. The question it says must be asked is: What makes a district office a district office? The appellant says the answer is that it is not only the name that constitutes an office as a district office, one must also have regard to the functions and structure of the offices.
24 The appellant says that the proper interpretation of the term 'district offices' in cl 10.3 can be reduced to four matters:
(a) The meaning of 'organisation' which can be properly described as organisational subdivisions linked to regions defined for administrative purposes.
(b) 'Location' which the appellant says is within the respondent's organisational structure between the schools and the central office.
(c) 'Function' which the appellant submits is to implement policy, coordinate services and go between the schools and the central office.
(d) 'Purpose' is relevant so that regional offices must be capable of being responsible for conducting inductions.
25 The appellant says when all these matters are considered it is clear that regional and local education offices can be said to be district offices within the meaning of the term in cl 10.3 as they are organisation subdivisions linked to regions. They are located within the respondent's organisational structure between the schools and the central office. Their broad function is to implement policy, coordinate services and act as a conduit between the schools and central office. When regard is had to these matters it follows that the regional offices are capable of being responsible for conducting inductions. The appellant does not say that inductions need to occur at a specific physical location. It says:
(a) cl 10.3 cannot be satisfied if regional offices direct each of the schools to conduct the inductions;
(b) cl 10.3 requires that the inductions be conducted by the regional offices. The appellant concedes, however, that cl 10.3 could be complied with if regional offices have control or oversight of inductions and it is not necessary for persons who work at the regional offices to deliver the inductions;
(c) group inductions are necessitated and that is the reason why district offices are specified as the responsible body and not schools.
26 The appellant also argues it is relevant that the term 'district offices' is not capitalised in the 2010 agreement, which indicates that the term was not intended to be read as a proper noun. When these words are read as a whole and in context, an intention is manifested that centralised inductions are to be conducted. It also points out that cl 10.1 and cl 10.3 specifically and expressly refers to 'the employer' and not 'the school' or 'the principal' having obligations in respect of inductions. It also says that as cl 10.3 requires inductions to be held twice each term during term time for new employees, sense can only be made of this requirement where inductions are held centrally across a number of schools. The evidence shows the necessity and relevance of this provision would fall away where inductions are held at school level as there will generally be insufficient new employees and redeployees to warrant inductions twice each term.
27 Clause 10.5 provides that 'Every effort will be made to induct new employees in remote locations.' The clause then goes on to provide two suggestions as to how this obligation may be met: 'Inductions may be part of professional development days or other days dedicated to staff training or development'; and 'Where car travel is greater than two hours, consideration may be given to an on-line induction to be available for new employees.' The appellant points out that if cl 10 contemplated inductions being held at the school level, these special provisions for remote employees would not be required. The option of consolidating inductions with other activities conducted centrally, such as professional development, or on-line inductions to avoid car travel to a location other than a school, would be unnecessary.
28 The appellant argues that the learned Industrial Magistrate wrongly characterised the reference to 'district offices' in cl 10.3 as a machinery provision. In particular, the term 'district offices' in cl 10.3 can be read to include regional and local education offices which would enable the obligation of district offices to be responsible for inductions of education assistants to be complied with. It says as a matter of evidence the regional and local education offices are capable of having responsibility for the conduct of education assistant inductions. There was and is nothing in the policy that mandates against regional and local education offices being responsible for the conduct of education assistant inductions. The focus of the policy is on autonomy for schools to allow them to focus on local issues. Inductions are not local issues and schools having to induct their own staff does not empower schools, but burdens schools with an inflexible administrative function. Nor does it assist with the co-location of services.
29 The appellant submits that the respondent has enough control over the implementation of the policy to enable it to comply with cl 10.3 by ensuring that the regional and local education offices had the capacity to be responsible for the conduct of education assistant inductions. This could be done in a variety of ways, including utilising the human resources consultants or even the school networks. It says it is no excuse for an employer to fail to abide by the provisions of an industrial agreement because they have decided to re-divert their resources. This submission it says is supported by the evidence of the emails sent to Ms O'Driscoll from Ms Thompson which demonstrate that the respondent initially intended to vest regional and local education offices with the responsibility for the conduct of education assistant inductions. This contention is also supported by the evidence of Ms Thompson who admitted that she had initially informed Ms O'Driscoll that the proposed plan was for regional offices to induct education assistants, but after consultation with departmental officers, it was decided that regional and local offices did not have the capacity to conduct inductions.
30 In exhibit 3, a letter from Mr Gillam, executive director, Workforce, Department of Education, to Mr Kelly it was stated on 18 March 2011:
The recent restructure of District Education Offices resulting in the establishment of Regional Education Offices has meant that resources previously existing under the district model that were responsible for this activity are no longer available.
31 The appellant says that the statement in this letter is that the decision to devolve inductions to the school level was based on resource considerations not the policy itself. This submission is consistent with the evidence given by Ms Thompson who, when asked what happened with the proposal that regional and local education offices conduct inductions, she said that the response that was communicated from the feedback from the individual regional executive directors was that it was not possible. When asked whether she knew the reason why, Ms Thompson said at pages 75 - 76 of the transcript of the hearing at first instance:
(a) she saw a letter from one of the regional directors who expressed a concern about their capacity to deliver the inductions because of a lack of staff;
(b) the staffing profiles for the regional offices had been severely diminished so they did not have the support staff to either organise the inductions or present the inductions; and
(c) there may have been a lack of clarity about the offices they had, the actual rooms they had and whether they would be supported by staff in the regional office.
32 The appellant submitted that when the question is asked how the regional and local education offices are different from, or similar to, the district education offices, the evidence disclosed the following:
(a) The 14 district offices changed to 15 regional and local education offices. That has been reduced to 13 because two offices have closed down. The offices are in the same physical locations and are in the same departmental organisational structure between the schools and the central office.
(b) Regional and local education offices have fewer staff. There is some evidence from Ms Collins that there were 70 staff to 120 schools and now there are 35 staff to 249 schools. However, the appellant does not accept that this is a representative example of the difference between the district and regional and local education offices.
(c) Support staff have moved to the schools. Support staff include psychologists and participation staff. Human resource staff at district offices who conducted the induction packages have moved to central office and maintained some of the functions where some other functions have devolved to the school level. The Workforce Management coordinated the timetabling of inductions. Now, however, inductions are conducted by schools using induction packages.
(d) The function of regional and local education offices is to provide a link between schools and central office, to work with the school networks and to assist the coordination of services. This, the appellant says, is akin to the function of the district offices which was to provide a link between the schools and the central office.
33 The appellant points out that it has long been held that agreements and instruments are created for the benefit of workers and should be interpreted in accordance with that purpose: Transport Workers' Union of Australia, New South Wales Branch v Toll Transport Pty Ltd trading as Toll Liquid Distribution [2006] NSWIRComm 123 [24] - [25]. In this sense, where two alternative interpretations are possible, it is appropriate for a tribunal or court to adopt the interpretation most beneficial to employees to one that removes or qualifies a beneficial condition of employment. Clause 10.3 of the 2010 agreement provides a benefit to employees by ensuring that inductions are conducted regularly and consistently by being conducted by a district office as opposed to by individual schools. Further, it benefits employees by ensuring professional development through group inductions and inductions that the appellant is able to attend to inform employees of their rights. The appellant contends that it is clear that the general intention of the parties was for inductions to be conducted twice each term and, by specifying 'district offices' as opposed to the employer or 'central office' or 'schools', it is clear that the parties intended that inductions would be conducted by an office located between the central office and the schools. The appellant says its submissions about the proper construction of cl 10.3 avoid inconvenience or injustice. To the contrary it says the respondent's interpretation, which is the interpretation adopted by the learned Industrial Magistrate, is not sensible, results in unfairness and industrial disharmony.
34 In relation to ground 3, the appellant's written submissions simply repeat the grounds set out in the particulars of the grounds of appeal. The appellant's counsel did not make any oral submissions about this ground.
35 In respect of ground 4, the appellant submits that the learned Industrial Magistrate erred in law and in fact by finding that it was impossible for the respondent to comply with cl 10.3 and that the common law defence of impossibility enables exculpation of the respondent. The appellant points out that:
(a) a defendant must not be at fault in order to rely on the defence of impossibility; and
(b) the defence of impossibility is not available where it is merely inconvenient for the respondent to comply with its duties, but not impossible.
36 In analysing whether it was impossible to comply with the obligation, the appellant says there are four questions to be considered by reference to the evidence. These are:
(a) What does the government policy direct the respondent to do?
(b) Whose decision was it to devolve the responsibility of conducting inductions to the school level?
(c) How are regional and local education offices different from or similar to the so-called district offices?
(d) Are regional and local education offices capable of being responsible for conducting inductions?
37 The appellant says when regard is had to all of the evidence about the implementation of the policy, there was no evidence that the respondent was unable to comply with cl 10.3 of the 2010 agreement. The respondent had control over the implementation of the government policy. It was open to the respondent to direct regional and local education offices to conduct inductions or to provide assistance to regional and local education offices to enable them to conduct inductions, notwithstanding this may have been inconvenient for the respondent.
38 In ground 5, the appellant contends the learned Industrial Magistrate erred in law by failing to provide adequate reasons for his decision in that his Honour:
(a) failed to provide any reasoning as to his construction of the term 'district offices'; and
(b) failed to provide sufficient reasoning as to the principles of interpretation he applied when interpreting cl 10.3 of the 2010 agreement and failed to refer to any authority for the legal principles to be applied when interpreting industrial agreements.
39 The appellant says on the basis of these failures it makes it impossible to determine whether or not there was an error in his Honour's interpretation of cl 10.3 and that ultimately amounts to an error of law.
The respondent's submissions
40 The respondent says the question the learned Industrial Magistrate had to consider in light of the fact that district offices had been abolished and not replaced was whether the respondent was in breach of cl 10.3 because district offices no longer had responsibility for conducting inductions.
41 The respondent says that the appellant's construction of cl 10.3 of the 2010 agreement requires a rewriting of the clause. Such a construction she says goes well beyond a generous construction of the term. The appellant's case is that inductions should be conducted en masse at a location central within the administrative regions of the Education Department. A key step in the appellant's argument is that the district offices referred to in cl 10.3 are not the entities that were known as and referred to within public education as district education offices until they were abolished in September 2010.
42 The respondent also argues that the rewriting of cl 10.3 sought by the appellant is not supported by the evidence and could not be achieved by the proper application of any of the principles for the interpretation of industrial instruments. There was ample evidence, and it was not disputed, that when they existed the district education offices had responsibility for the conduct of inductions of education assistants. There was also ample evidence that after September 2010 there was no entity which had, even approximately, the same role or capabilities as a district office. The evidence also excludes any suggestion that district offices had been 'rebadged' as regional or local education offices. In particular, there is no entity which had the same resourcing, role or administrative powers as the district education offices.
43 The respondent, however, concedes that if there had simply been a name change of the district offices with a retention of all functions, it would have been open to find that this was a sham arrangement and a substantive breach of cl 10.3.
44 The respondent says there are several reasons why there was no breach arising out of the fact that district offices no longer had responsibility for conducting inductions. These are as follows:
(a) The appellant's complaint was that inductions were not being held en masse at a central location within each of the regional subdivisions of the Education Department, not that district offices no longer had responsibility for conducting inductions.
(b) As the learned Industrial Magistrate found, the 2010 agreement did not lock into place a certain organisational structure for the life of the 2010 agreement which subjected the respondent to enforcement proceedings in the event of a change, with there being no undertaking in cl 10 or elsewhere in the 2010 agreement that district offices would not be abolished.
(c) The respondent had no culpability in any way for the abolition of district offices and their non-replacement by an equivalent entity.
45 Clause 10, as the learned Industrial Magistrate found, is 'aimed at ensuring that Education Assistants receive specific and dedicated inductions'. In terms of the organisation of those inductions, it is clear from cl 10 that district offices played a central role. This provision was evidently drafted on the basis that district offices existed and had certain capabilities and administrative powers which had the effect that it was appropriate to identify them as the entity responsible for conducting inductions. As it turned out the district offices discharged their responsibility by holding en masse inductions of education assistants at their premises.
46 However, in terms of the interpretation of cl 10, two points need to be made:
(a) Clause 10, as the learned Industrial Magistrate found, is silent on the matter of the location at which inductions shall occur.
(b) District offices in terms of the text, intention and purpose of cl 10 clearly had a central role to play in the way the clause was drafted related to the known capabilities, resources and administrative powers of district offices and the organisational structure of the Education Department then in place. District offices were specifically referred to as the entity having responsibility for the conduct of inductions. If they were abolished and not replaced, as occurred here, it cannot be the case that some new unstated and uncontemplated obligation upon the respondent somehow arose, unrelated to the existence of district offices, namely that inductions be held centrally within subdivisions of the Education Department responsible for regions defined for administrative purposes.
47 The respondent contends the learned Industrial Magistrate:
(a) determined the ordinary and natural meaning of 'district office' correctly. As the appellant points out in its submissions, reference should be made to the language used and understood by parties to an agreement. The learned Industrial Magistrate could have come to no other conclusion against the background of the evidence he heard. The appellant's meaning of the term 'district office' is, with respect, divorced from reality;
(b) determined the suggested 'internal context' could not have overcome the ordinary and natural meaning of the key passage in cl 10.3. A requirement that inductions be held twice each term, if required, makes sense whether or not inductions are held centrally. Clause 10.5 deals separately with the issue of inductions of new education assistants employed at remote locations. In any event, even if it had been established that cl 10 was drafted with there being an expectation on the part of the parties that district offices would conduct inductions at their premises, this does not mean that there was any expectation that, if district offices were abolished, inductions would be held at a central regional location. This would be to suggest that no account was taken of the role and resources of district offices when the clause was agreed to;
(c) found that when regard is had to the object and purpose, that is the industrial realities, there was no evidence, and no compelling argument, that it was to the overall and individual benefit of new education assistants for them to be inducted en masse at a location away from home rather than on their own or in smaller groups at the schools at which they would be working. In the absence of district offices, establishing the point at which the expectations and intentions of the parties may have met in any agreement, if they had met at all, would have been mere guesswork. In particular, it would have been guesswork to come to a conclusion that the respondent would have agreed to hold inductions of education assistants en masse at central locations within regions if district offices did not exist in the form they did as at 2010;
(d) found that the meaning of 'district offices' consistent with the intention of the draftsperson is clear; it was that district offices would be responsible for the conduct of inductions. What would have been agreed, or what may have been intended to occur, if district offices did not exist is not known. Submissions relating to issues of fairness and industrial harmony miss the point, especially where the respondent faced findings of a breach of an industrial agreement. In any event, there was no culpability on the part of the respondent. Her actions were consistent with a government policy requiring the abolition of district offices and their non-replacement with equivalent bodies and the devolution of responsibilities to schools;
(e) did not have regard to extrinsic material. He simply accepted that the parties used and understood the term 'district office' in a certain way and was correct to do so. To do otherwise would have been fanciful.
48 The respondent says that once it is accepted that the plain meaning of cl 10.3 is that the entities known as and called district offices were responsible for the conduct of inductions and no more, a claim that the respondent failed to ensure compliance with cl 10.3 must fail on the grounds of impossibility where it was proven, as it was here, that the respondent could not ensure district offices were responsible for conducting inductions because the government had abolished them.
49 As to the adequacy of the reasons for decision of the learned Industrial Magistrate, the respondent simply says his Honour's reasoning was clear and was, with respect, correct.
Principles of construction of industrial agreements
50 The well-established approach to the interpretation of an industrial agreement draws in part upon the principles of construction that apply to legislative instruments and in part the principles that apply to the construction of contracts. The nature of an industrial instrument must also be taken into account.
51 Relevant principles that can be drawn from the construction of legislative instruments are:
(a) The process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby and Hayne JJ) and the cases cited therein;
(b) The instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority [70] (McHugh, Gummow, Kirby and Hayne JJ); Ross v The Queen (1979) 141 CLR 432, 440 (Gibbs J).
52 In this matter much attention has been given to the intention of the purpose of cl 10 of the 2010 agreement. To construct the intention of the parties, regard must be had to the principles that apply to the construction of contracts: Short v F W Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511, 518 - 519 (Burchett J); Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90; (2010) 186 FCR 88 [90] - [96] (Logan J). Importantly, regard cannot be had to the actual intention of parties or their expectations. Evidence of such matters is usually inadmissible: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337, 352 (Mason J). Ascertaining the presumed intention of the parties requires the objective determination of what a reasonable person would have understood the contract (in this matter the 2010 agreement) to mean, as at the date that it was made, taking into account the object of the contract and the surrounding circumstances known to the parties: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 [11]. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 the Full Court of the High Court said [40]:
This Court, in Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction (Pacific Carriers Ltd v BNP Paribas at 461-462 [22]).
53 As to the principles that apply specifically to the construction of awards and industrial agreements, we recently observed in Health Services Union of Western Australia (Union of Workers) v The Director General of Health [2012] WAIRC 01117 [37] - [43]:
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 to consider 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.
Conclusion
54 The central issue for consideration is whether the words 'district office' in cl 10.3 mean only the district education offices which were in existence at the time the 2010 agreement (and for that matter its predecessor) was negotiated, and which have been abolished.
55 To properly construe cl 10.3, regard must first be had to the whole of the terms of the agreement and whether the disputed term of 'district office' or 'district offices' appears in any other provision of the agreement. Then regard must be had to the statutory context and any other relevant matters that bind either party.
56 The following provisions of the 2010 agreement contain references to a 'district' or 'district office' and therefore require consideration:
(a) Clause 12.4 and cl 32 create an entitlement to a district allowance which is paid to employees who reside in regional locations specified in the District Allowance (Government Wages Employees) General Agreement 2005 AG 273 of 2005 (District Allowance (Government Wages Employees) General Agreement). This agreement applies to all wages employees employed across the majority of public sector agencies in Western Australia by instrumentalities of the state. When regard is had to the terms of District Allowance (Government Wages Employees) General Agreement, it is apparent that the regions for which an allowance is paid are defined by geographical area covering large areas of land and not by reference to any office established or used by the Education Department.
(b) Clause 16 provides for a selection process for relocation of education assistants. Clause 16.1(e) requires each school to notify the relevant 'District Office' of the name of the employee selected for placement.
(c) Clause 20 provides for classification assessments of education assistants in accordance with the needs of a specific position. This clause requires that assessments are to be carried out by a 'District Office Committee'.
(d) Clause 52.6 creates an entitlement to paid time off for employees to attend quarterly general meetings for one hour on site. Under cl 52.6(b), one of the site meetings can be converted to a paid district meeting of up to two hours duration with additional time for travel. Also, under cl 52.6(c) union delegates can attend paid quarterly district delegate meetings of up to two hours duration. Clause 52.6 provides:
52.6 Union General/Delegate Meetings
(a) Subject to reasonable notice and prior arrangement with the employer, employees will be granted paid time off to attend quarterly general meetings of up to one hour duration on site with the Union. Where the site meeting exceeds one (1) hour, such absence will be without pay for the period of the meeting, which exceeds one (1) hour.
To conduct these meetings the Union will be entitled to a private facility at the workplace wherever possible provided the Union gives the school management reasonable notice.
(b) On an annual basis one of the meetings at 52.6(a) can be converted to a paid district meeting of up to two (2) hours duration with additional time allocated for travel.
(c) Delegates will be able to attend paid quarterly district delegate meetings of up to two (2) hours duration with additional time allocated for travel.
57 In some clauses the term 'district' is capitalised (cl 12.4, cl 16, cl 20 and cl 32). The term is not capitalised in cl 10 or cl 52. In our opinion, nothing turns on this. The geographical areas referred to as districts in cl 12.4 and cl 32 are not relevant to the construction of cl 10 as those provisions deal with unrelated rights and entitlements to the rights and entitlements created in cl 10. Clause 20 provides for a classification assessment process that is carried out by a committee. This provision also creates rights and entitlements unrelated to cl 10. Leaving aside any issue of impossibility, cl 52.6 does, however, create a related entitlement to cl 10 in that both provisions create a right for the appellant to hold and conduct meetings with members. Whereas cl 10 prima facie creates an obligation on the respondent to ensure the district offices are responsible for inductions, cl 52.6 simply creates a right for the appellant to conduct site meetings and district meetings. There is nothing in cl 52.6 that requires a district meeting to be held at a particular place. However, inherent in the use of the words 'district meeting' in cl 52.6 when considered with a right to allocated time for travel, is a right to organise group meetings of members and delegates from a number of schools in a district at one place.
58 When construing the meaning of 'district office' in cl 10, the learned Industrial Magistrate had regard to evidence given about the historical structure of the district education offices and the delivery of inductions by those offices. Such evidence is evidence of surrounding circumstances. Yet, at law, regard cannot be had to surrounding circumstances known to the parties at the time a contract is entered if the language used is not capable of more than one meaning: Codelfa; Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 282 ALR 604. We are, however, of the opinion the learned Industrial Magistrate did not err as cl 10 could be said to be capable of more than one meaning. Thus, his Honour was entitled to have regard to this evidence as a surrounding circumstance. As Burchett J said in Short v F W Hercus Pty Ltd (518 - 519):
[A]n ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently: cf Pickard v John Heine & Son Ltd ([1924] HCA 38; (1924) 35 CLR 1) at 9, per Isaacs ACJ. That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. 'Sometimes', McHugh J said in Saraswati v The Queen (1991) 172 CLR 1 at 21, the purpose of legislation 'can be discerned only by reference to the history of the legislation and the state of the law when it was enacted'. Awards must be in the same position.
But even if the language, read alone, appeared pellucidly clear, the tendency of recent decisions - and this is the other answer to the argument put - would seem to require the court to look at the full context. Only then will all the nuances of the language be perceived. The judgment of Mason J. (with which Stephen and Wilson JJ expressed agreement) in Codelfa Construction Proprietary Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 347-353 contains an extended discussion of the principles upon which a court may take account, when construing a contract, of the circumstances surrounding the agreement of the parties upon those particular terms. In the course of that discussion, Mason J suggested (at 350) that 'perhaps ... the difference ... is more apparent than real' between the view that evidence is admissible only to resolve an ambiguity, not to raise it, and the view that extrinsic evidence is receivable both to raise and to resolve an ambiguity. He concluded (at 352):
'The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although ... if the facts are notorious knowledge of them will be presumed.'
[Emphasis added.]
The fact is that words are frequently susceptible of more than one meaning. Paradoxically, ambiguity may be born of the reader's clarity of thought which perceives a potentiality for an alternative meaning. But in many cases only evidence of extrinsic facts can show that the potentiality has substance. The old case Macdonald v Longbottom (1859) 1 El & El 977; 120 ER 1177, to which Mason J referred, is an example, since there is nothing necessarily ambiguous in the expression 'your wool' (indeed Erle J at 986; 1180 described it as 'most explicit') - only evidence that at the time the vendor had both wool of his own growing, and also wool which he had bought in from others, could raise an ambiguity, while at the same time solving it once the other party was shown to have known the facts.
59 Without regard to the evidence about the structure and location of educational services to public schools in Western Australia at the time of the making of the 2010 agreement, the words 'district office' would not be definitively ascertainable. The learned Industrial Magistrate did have regard to the fact that at the time the 2010 agreement was made, district education offices were in existence. However, it does not necessarily follow that when regard is had to that evidence, that it follows that the words 'district office' in cl 10 can only be interpreted as the district educational offices that were in existence in 2010. It is notable that 'district office' in cl 10 is not titled 'district education office'. The parties when making the agreement did not use those words. If those words were used, perhaps no ambiguity could be said to arise.
60 Regard must also be had to cl 42, cl 49, cl 50 and cl 52 of the 2010 agreement. Pursuant to cl 42.1 and cl 49.1, the parties agree that change and reform is an ongoing feature of the government school education system. Under cl 50.1, the parties agree that the respondent is accountable to the government for the effective and efficient operation of the Department of Education. Under cl 52.1, the respondent expressly recognised the right of the appellant to organise and recruit members.
61 Pursuant to cl 6.1, the 2010 agreement operated from the first pay period commencing on or after 1 January 2010 and is to expire on 31 December 2012. By operation of s 41(4) and s 41(5) of the Act, the respondent is required by operation of law to comply with the express terms of the 2012 agreement. Section 41(4) and s 41(5) provide:
(4) An industrial agreement extends to and binds —
(a) all employees who are employed —
(i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and
(ii) by an employer who is —
(I) a party to the industrial agreement; or
(II) a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;
and
(b) all employers referred to in paragraph (a)(ii),
and no other employee or employer, and its scope shall be expressly so limited in the industrial agreement.
(5) An industrial agreement shall operate —
(a) in the area specified therein; and
(b) for the term specified therein.
62 It necessarily follows from the statutory command to bind the respondent in s 41(4) and s 41(5) (leaving aside any issue of impossibility) that the respondent as a party to the 2010 agreement was and is obliged to make organisational arrangements for the delivery of educational services that are consistent with and ensure compliance with the provisions of the 2010 agreement. Such an obligation would include the implementation of policies made by the executive of the state in a way (if possible) that complies with the 2010 agreement.
63 The respondent submitted that the first part of cl 10.3 is not expressed in such a way as to place a positive obligation upon the respondent capable of being breached in the way contemplated by s 83 of the Act. However, that submission cannot stand in the face of the evidence that it is a provision with work to do: it was first agreed in the 2007 predecessor to the 2010 agreement and its introduction changed the way that inductions were arranged. Prior to 2007 inductions were held at schools (transcript, United Voice WA v Director General, Department of Education, Western Australian Industrial Magistrate's Court, 30 May 2012 (ts), 53); after 2007 as a consequence of cl 10.3, inductions were organised at the district level (ts 53). Therefore the first part of cl 10.3 does place a positive obligation upon the respondent because it is the provision which changed the way inductions were arranged. This is illustrated by the present position where, following the abolition of district education offices, the respondent has made individual schools responsible for conducting inductions.
64 In the context of the clause as a whole, cl 10.3 provides who is responsible for conducting the inductions which cl 10.1 ensures are to occur, and for which cl 10.2 requires the Department of Education and Training to develop a specific induction package. The balance of cl 10.3 and cl 10.4 provide for the notification to, and certain obligations upon, the appellant, and cl 10.5 provides for inductions in remote locations, however, cl 10.3 remains an obligation on the part of the respondent. To hold otherwise would lead to the result that a party to an enterprise agreement would be able to avoid one of its terms by substantively changing its structure. In the context of an enterprise agreement which necessarily results from negotiations between parties, such a result may have unintended consequences for the enterprise bargaining process, particularly where that term is a term which is of value to one party as it is in this case: the evidence is that having inductions organised at the district and not at the school level is of value to the appellant because it made sure inductions happened and were consistent and it was an added benefit for the appellant (ts 45); it is physically impossible for the appellant to attend all school-based inductions (ts 48).
65 In construing the words 'district office' in cl 10, regard must also be had to the clause as a whole. The provision does not simply create an entitlement for each newly employed and redeployed education assistant to be inducted within three months of commencement and for each district office to be responsible for conducting inductions, it also provides for:
(a) the development of a specific induction package;
(b) inductions to be held twice each term;
(c) the employer to notify the appellant if there are no new employees to induct;
(d) the appellant to be given at least 14 days' notice of the time and place of inductions and names of those attending;
(e) an entitlement for the appellant to have at least 30 minutes to address new employees without the presence of employer representatives;
(f) special arrangements can be made for employees at remote locations. Inductions can be part of professional development days, other training and development days or online.
66 Where regard is had to all of these rights, duties and obligations created by cl 10, it can be discerned that three central goals emerge. These are:
(a) the right of newly engaged employees and redeployees to attend formal induction training;
(b) a duty placed on the employer to hold formal specific inductions for education assistants; and
(c) the right of the respondent to attend each induction and speak privately to all new employees and redeployees. This right is part of the appellant's right to 'organise' and recruit new members which is recognised in cl 52.1 of the 2010 agreement.
67 When the express right to organise is considered, together with the requirement that subject to new employees and redeployees being recruited inductions are to be held twice a term, it can be presumed that the intention of the parties when the 2010 agreement was made was that inductions would be arranged on a district by district basis. There is no dispute about this conclusion, as it was commonly understood by the parties that the district education offices would be responsible for and did in fact make arrangements for inductions to be conducted on a regional basis. We use the word 'regional' in the sense of geographical areas in which public schools are located. Within each designated geographical area each school was provided with services from a district education office.
68 The duties, rights and obligations created in cl 10 must be considered together in a way that each is intended to give effect to goals in a harmonious way, together with the following matters, which lead to a conclusion that the words 'district office' in cl 10.3 can be read to include regional and local offices. These matters are:
(a) the statutory obligation on both parties to comply with the express terms of the 2010 agreement;
(b) the obligation on the respondent to comply with policies made by the executive of the state which is expressly recognised by the parties in cl 50.1; and
(c) the fact that change in the organisation of the delivery of education services is expressly recognised in cl 42 and cl 49.
69 When all these matters are considered the construction of the words of 'district office' in cl 10 can be read to include not only the district education offices by that name that were in existence at the time the 2010 agreement was made, but to include education offices located in districts. Regional structural bodies that came into existence after the district education offices were abolished, that could be resourced in a way that were capable of being responsible for inductions and at the same time complied with the requirements of the education networks and regions policy, are education offices located in districts.
70 The question then to be determined is whether the regional and local offices could be resourced by the respondent to enable compliance with cl 10.3 and the education networks and regions policy. The respondent says the answer to this question is 'no' and raises a defence of impossibility. Such a defence is akin to frustration of contract as the respondent says compliance with the education networks and regions policy renders compliance with cl 10.3 impossible.
71 The party relying upon the defence of impossibility must show compliance was impossible through no fault of their own. Clause 10 does not create an obligation on the respondent to ensure inductions are carried out at district offices, only that such offices be responsible for inductions. It is clear from cl 10.2 that the development of induction packages does not have to be developed by district offices. The evidence before the learned Industrial Magistrate was that the packages were developed by the human resource department.
72 Whilst in the ordinary course, levels of staff and utilisation of resources are matters solely within the management prerogative of an employer and decisions about such matters should not usually be interfered with, such decisions must yield to the requirements of a statutory obligation to comply with a registered industrial agreement which provides for the delivery of services in a particular way unless compliance is rendered impossible. However, when regard is had to the following evidence in this matter we are not satisfied that compliance was rendered impossible.
73 The evidence at ts 68 shows that it was possible, but from the respondent's point of view not desirable, for regional offices to do the inductions which were previously done by the district offices:
Why don't regional offices just do the inductions that were previously done by the district offices?Well, you know, in a logistic sense one could say you could. What does that do to our agenda about empowering principals? Well I think it dis – we've disempowered principals over the years from say – by saying as I – I said earlier that, 'You're okay to induct these people, but, hey, we'll take this group away from you and induct them', that's not in line with our current agenda about principals managing their site and being in charge of all the policy delivery and functions around that. And the other thing is logistically now district offices in the – in the city were close and – and by nature sort of – schools sort of hovered around them a little bit. Now the regional office is a fair way for someone to actually venture all the way down there to hear a message that could be delivered at the school.
And what about your staffing levels at the regional offices in terms of delivering the inductions?Well we've lost some expertise. But, you know, there are packages that could just be kind of rolled out. I'm not sure that a generic roll out is actually what an induction should be.
74 If there is insufficient staff or resources located at the regional and local offices, the respondent could allow the regional executive directors to draw resources from other areas of the Education Department or from private contractors to arrange and supervise the regional inductions. This course of action was proposed by Ms Thompson in her emails dated 4 February 2011 and 17 February 2011. In our opinion, there is nothing on the face of the education networks and regions policy that would prohibit this course to be taken. Nor is there anything in the policy that required the task of inductions to be devolved to school principals. In particular, there was no evidence before the learned Industrial Magistrate that devolution of this task to the principals was part of the new role for principals contemplated by the policy. The evidence before the learned Industrial Magistrate was simply that resources were no longer available at the regional education offices (exhibit 11 (AB 64)).
75 In our opinion, the learned Industrial Magistrate erred in finding that it is the responsibility of the respondent to induct education assistants. The respondent is obliged by the 2010 agreement to ensure that each district office is responsible for conducting inductions for education assistants. We also do not agree that upon the abolition of district education offices the immediate responsibility for conducting inductions reverted to the respondent. In our opinion, upon the abolition of district education offices, the respondent was required (if possible) to put in place arrangements so that education offices in regions could be responsible for inductions in accordance with cl 10.3. The evidence shows this was possible.
76 For these reasons, we are of the opinion that grounds 1 and 2 of the grounds of appeal have been made out. We are also satisfied that ground 4 has been made out. We are also satisfied that ground 3 and the particulars in ground 3(a) have been made out. Whilst we agree that the learned Industrial Magistrate erred in misdirecting himself as to the question to be determined on the pleadings, we are not satisfied the correct question to be answered is as pleaded by the appellant in particular ground 3(c) of the grounds of appeal.
77 In ground 5, the appellant contends the learned Industrial Magistrate erred in law by failing to provide adequate reasons for decision. This ground, in our opinion, has no proper foundation. Adequacy only requires sufficient matters being referred to, to bring to the mind of the reader a clear understanding of why the decision is made. In Ruane v Woodside Offshore Petroleum Pty Ltd (1990) 71 WAIG 913, 914 - 915, Sharkey P summarised the principles that apply in respect of a tribunal's duty to give reasons as follows:
[F]rom the dicta of Nicholson J. in R.R.I.A. v. A.M.W.S.U. and Others (op. cit.) and the authorities cited therein, the following principles can be extracted:-
(1) There is a statutory duty upon this Commission, however constituted, to give reasons for decision (see s.35 of the Act). What those reasons should contain or their nature is set out in the following paragraphs.
(2) It is not necessary that a decision deal with every matter which might have been raised in the proceedings. It is enough that the findings and reasons deal with the substantial issues upon which the decision turned (see F.M.W.U. v. H.S.O.A. and Others 65 WAIG 2033 at 2034 per Brinsden J.).
(3) The decision must be such that a person understands why a decision went against him/her, and, in particular, whether it involved errors of fact or law.
(4) Thus, the decision should involve a setting out of the Commission's understanding of the relevant law, any findings of fact on which its conclusions depend (especially if those facts are in dispute), and the reasoning processes which led to those conclusions. This should be done in clear and unambiguous language.
(5) It should be possible to glean from those reasons what was the reasoning process that led to its determination. A prime purpose is the disclosure of the tribunal's reasoning process to the public and the parties (i.e. to state publicly its reasoning process). In addition, an obligation to give reasons imposes upon the decision maker an intellectual discipline.
(6) As to the question of providing reasons, that was considered in detail in Dornan and Others v. Riordan and Others (op. cit.) at page 458. We will quote it hereunder in full:-
'The tribunal's reasoning process is not disclosed. I would add my voice to His Honour's in saying that I think that this is unfortunate. The provision of reasons is an important aspect of the tribunal's overall task. Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal's conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the tribunal's reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration. There is yet a further purpose to be served in the giving of reasons. An obligation to give reasons imposes upon the decision-maker an intellectual discipline. The tribunal is required to state publicly what its reasoning process is. This is a sound administrative safeguard tending to ensure that a tribunal such as this properly discharges the important statutory function which it has.' (our underlining)
(7) A substantial failure to state reasons for a decision in the circumstance that a statement of reasons is a requirement of the exercise under the statute of the decision making power, constitutes an error of law (see Dornan and Others v. Riordan and Others (op. cit.) at page 460 and the cases cited there, including Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 477-478, Collins v. Repatriation Commission (1980) 32 ALR 581 at 594-595 per Fisher J., O'Brien v. Repatriation Commission 53 ALR 477 per Keely and Fitzgerald J.J., as well as Pettitt v. Dunkley [1971] 1 NSWLR 376 at 382).
78 A judicial decision-maker is not required to mention every fact or argument relied on by the losing party as relevant to an issue. Nor are they required to refer to every authority in support of the arguments put by the losing party. If required to do so, judgments at first instance would become over-lengthy: Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [81] - [85] (Logan J).
79 When the entire reasons of the learned Industrial Magistrate are considered it is clear that he properly set out findings of fact and law that were relevant to the decision he made. He also clearly and succinctly explained the reasons why he made the decision he did.
80 For these reasons, we would make an order to quash the part of the decision the subject of the appeal and remit the matter to the Industrial Magistrate's Court for further hearing and determination according to law.
KENNER C:
81 In September 2010 the State Government announced a change in its education policy to the effect that government schools are to be given more autonomy and support services are to be provided either at, or close to, individual school level. Consistent with principles of responsible government, the Director General of the Department of Education was obliged to implement the new government policy. One feature of the change was the restructure of the administration of the Department, by the abolition of the then existing fourteen education districts and the creation of eight regions and 75 school networks. The entity within the Department formerly known as the "district office" was abolished.
82 The change in policy has had industrial consequences. One of them was that inductions of new employees employed in the position of Education Assistant, conducted in accordance with cl 10 of the Education Assistants (Government) General Agreement 2010, were no longer the responsibility of district offices. Inductions were to be, and have been since the changes, conducted at individual school level or through a network of schools. This was opposed by the Union. It led to proceedings before the Industrial Magistrate's Court in 2012, where the Union claimed that the Department was in breach of cl 10 of the Agreement by:
(a) Failing to ensure a large number of employees were inducted within three months of commencement of employment as required by cl 10.1.1;
(b) Failing to ensure the district office was responsible for inductions as prescribed by cl 10.3;
(c) Failing to have employees inducted twice per term as required by cl 10.3;
(d) Failing to give the Union fourteen days' notice of inductions as required by cl 10.4; and
(e) Failing to allow the Union on a number of occasions to exercise their entitlement to attend inductions and to address employees for at least 30 minutes as provided for in cl 10.4.
83 The Department admitted the contraventions except those in (b) and (c) above. The crucial issue was in (b), that being whether, on a proper construction of cl 10.3 of the Agreement, the change in policy and reversion to school based inductions, as had been the practice prior to cl 10 in the Agreement and a predecessor industrial agreement in 2007, meant that the Department was in breach of its terms. The learned Industrial Magistrate, in reasons for decision dated 19 July 2012, found that there had not been a breach of cl 10.3 by the Department and dismissed that claim: United Voice WA v Director General, Department of Education (2012) 92 WAIG 1592. The Union now appeals against that decision.
Grounds 1 and 2
84 Both grounds 1 and 2, which to some extent are repetitive in nature, can be conveniently dealt with together. Both grounds assert that the learned Industrial Magistrate failed to correctly interpret cl 10.3 of the Agreement in accordance with established principles for interpretation of industrial instruments. The Union contended that the learned Industrial Magistrate failed to give the words "district office" in cl 10.3, their ordinary and natural meaning, which required the court to read the words as meaning "regional subdivisions of the Education Department, located in the organisational structure between the central department office and schools", or words to that effect. This was said to be derived from the dictionary definition of "district" applied to the well-known meaning of the word "office".
85 Instead, the Union contended that the learned Industrial Magistrate accepted the Department's contention that for the purposes of cl 10.3, "district office" meant that particular part of the Department's organisation then known and described as the "district office" which was abolished following from the implementation of the State Government policy change in 2010.
86 For the reasons which follow, I consider that the learned Industrial Magistrate was correct in that conclusion.
87 The terms of cl 10 are set out in the joint reasons of Smith AP and Beech CC and it is not necessary for me to repeat them. The principles of interpretation of industrial instruments are well settled. It has been the long accepted approach in this jurisdiction that one first looks to the meaning of words used in an award or industrial agreement, in their ordinary and natural sense. It is generally not permissible to have regard to extrinsic material unless ambiguity is apparent: Norwest Beef Industries v AMEIU (1984) 64 WAIG 2124; Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights' Union (1987) 67 WAIG 1097; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Royal Botanic Gardens v South Sydney City Council (2002) 240 CLR 45; Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; cf Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.
88 In the case of ambiguity, evidence of the background to an agreement cannot be that of the subjective intention of one party. It must accord with the common intention of the parties, objectively assessed: Robe River Iron Associates at 1098; Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596. Even so, objectively determined intention from background facts, must still be consistent with the text used by the parties: Swan v Rawsthorne (1908) 5 CLR 765 (see generally Lewison and Hughes The Interpretation of Contracts in Australia 2012 at par 3.14).
89 Mindful that industrial instruments are not always drafted with the skill and precision of parliamentary draftspersons, the rule of "generous construction" applies, to avoid a too literal adherence to the language used, in particular, in the case of industrial agreements resulting from the consensus of the parties: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498; AITCO Pty Ltd v FLAIEU (1988) AILR 382; Kucks v CSR Ltd (1996) 66 IR 182; Amcor Ltd v CFMEU (2005) 222 CLR 241. It must always be borne in mind, however, that despite the industrial context, interpretation is a text based activity and effect needs to be given to the text to be interpreted: Amcor per Kirby J at pars 67 and 77.
90 Clause 10.3 is to be construed consistent with cl 10 of the Agreement as a whole. Clause 10, by its title, is concerned with "induction". Clause 10.1 obliges the "employer", defined to be the Director General of the Department in cl 3.1(f) of the Agreement, to ensure inductions take place within three months of commencement. Inductions are conducted in accordance with the employer's policy, "Staff Induction". A copy of this policy was in evidence at first instance. The Staff Induction policy, in effect as at 31 March 2011, is described as "lawful orders for the purposes of section 80(a) of the Public Sector Management Act 1994 and are therefore to be observed by all Department of Education employees". The policy requires all line managers and principals to provide induction for all new employees. Additionally, Appendix B of the policy provides some groups are given induction by different sections of the Department.
91 In my view, by the ordinary and natural meaning of the words used in it, cl 10.1 imposes an enforceable obligation on the Director General of the Department, to ensure inductions are conducted. The words "will ensure", make this plain. The Director General has, as the employing authority for the purposes of the PSM Act, the ultimate obligation to ensure employees employed under the Agreement receive an induction. The Director General's obligations in relation to employees are prescribed in s 29 of the PSM Act, in particular, for present purposes, ss 29(1)(g) and (k).
92 By cl 10.2 of the Agreement, the DET (as the Department was named) is required, as an enforceable obligation, to develop a specific induction "package" for Education Assistants. It has done so. A copy was in evidence before the learned Industrial Magistrate.
93 Leaving aside the contentious cl 10.3 for the moment, cl 10.4 deals with the role of the Union in the induction process. The first sentence of cl 10.4, again, creates an enforceable obligation on the employer to give 14 days' notice to the Union of the time and place of induction. The use of the word "will" makes this clear enough. The second sentence of cl 10.4 again, creates an enforceable entitlement for the Union to be present at an induction of employees for at least 30 minutes, to speak to the new employees. The Union is entitled to do so in the absence of employer representatives. The Union is required, in the last sentence of cl 10.4, to meet its own costs of attendance at induction. From its subject matter, language and context, this is plainly not an enforceable obligation on the employer vis-a-vis the Union. Rather, it is a statement of fact directed to the internal affairs of the Union. The subclause would plainly operate perfectly well without it.
94 Clause 10.5 is of a somewhat different character to the subclauses just mentioned. It deals with those employees based in remote locations. From the language used in it, the draftsperson seems to be drawing a distinction between "employees in remote locations" and "all new employees and redeployees" in cl 10.1. Taken literally, the reference to "all new employees and redeployees" in cl 10.1, admits of no exceptions or exclusions. Certainly none are mentioned. It is not expressly qualified in any way. However, applying the rule that the provisions are to be construed as a whole, and in harmony, it is necessary to adjust the meaning of the competing provisions to give effect to the overall intended purpose of the provisions in question.
95 Having regard to this approach, and the generous approach to the interpretation of industrial instruments, especially agreements, it seems the parties have, by the words used in cl 10.5, sought fit to treat "remote employees" in a different way. So read, the subclause is more aspirational in nature or is a "best endeavours" provision, requiring the employer to make "every effort" to induct such employees and to give "consideration" to on-line inductions for this particular group of employees.
96 Returning then to cl 10.3. It is the first sentence that is contentious. The second sentence obliges the employer, again as an enforceable obligation, to notify the Union if there are no new employees requiring induction. This obligation is no doubt linked to the entitlement of the Union to attend induction sessions, as set out in cl 10.4.
97 As was found by the learned Industrial Magistrate, there is no definition of "district office" in either the Agreement or the School Education Act 1999. It seems plain enough from a combined reading of pars 25, 26 and 28 of his Honour's reasons for decision, that the learned Industrial Magistrate, without perhaps expressing it in so many words, considered that the "district office" referred to in cl 10.3 was that part of the Department's organisational structure which was abolished, following the change to the Government policy in September 2010.
98 In my view, based on the language used in cl 10.3, construed consistently with the tenor of cl 10 and the rest of the Agreement as a whole, it is reasonably plain that the district office referred to in cl 10.3 was that specific part of the Department's organisational structure in existence at the time of the making of the Agreement, and which was abolished following the announcement of the change in government policy in September 2010. The fact of the existence of some 14 district offices, for some years, as a part of the Department's organisational structure seemed well accepted and known to the parties. This was specifically referred to by the Union at par 36 of its outline of submissions of first instance at AB 43. It also seemed beyond contention that for many years, the district offices had been responsible for the conduct of inductions of Education Assistants.
99 Additionally, on the testimony of Ms O'Driscoll, an organiser for the Union, whilst there was some initial suggestion that she saw the restructure as a mere change of name, it is reasonably clear from her evidence considered as a whole, in particular that dealing with the future prospects of members of the Union employed as cleaners and gardeners at the district offices themselves, that the Union also recognised that district offices were a distinct organisational unit of the Department. Ms O'Driscoll gave evidence about a meeting she had with the Director General of the Department, Ms O'Neill, to discuss the changes to the "existing district offices" (see 26-27 TFI).
100 It is not the case in my view, even allowing for the most generous approach to the construction of cl 10.3, that the subclause can be read reasonably as substituting for "district office" the words or words to the effect "regional subdivisions of the Education Department, located in the organisational structure between the central department office and schools". To so hold leads to an impermissible redrafting of the subclause, not supported by the plain text or context of cl 10.3 within the Agreement as a whole.
101 Of some importance to note is the fact that the draftsperson of cl 10.3 did not use words such as "district level" or "regional level" when referring to the responsibility for the conduct of inductions. The subclause is silent as to the specific location or geographical area at which inductions should actually be conducted. It therefore seems, read this way, that there was no intention for the subclause to reflect responsibility for the delivery of services to schools being given only to a particular geographic level in the Department's organisational structure. Had the subclause been expressed in these terms, the Union's case may have been stronger.
102 Consistent with accepted principles of interpretation, and with the evident purpose and object of the Agreement as a whole, the words "district office" in cl 10.3 should be viewed as a composite phrase, as that distinct unit within the Department's organisational structure, which was abolished as a consequence of the change to the State Government's policy in relation to the delivery of education services.
103 As to the contention of the Union that the district offices were merely "rebadged" as regional offices and the regional offices are merely the district offices by another name, that submission cannot be accepted on the evidence. On all of the evidence, in particular that led through Ms Collins, the Regional Executive Director for the South West Educational Region, it seems plain enough that the roles of regional offices and regional executive directors of the Department are quite different to that of the former district offices. This testimony was accepted by the learned Industrial Magistrate and not seriously challenged by the Union. The role of regional offices on the evidence is more directed to the oversight and monitoring of school performance. It is not focussed on the delivery of core services to schools, including inductions for Education Assistants, as was the role of the former district offices. There was also the testimony of Ms Thompson, the Department's Principal Human Resources Consultant, to the effect that in the prior structure, the district offices had human resources consultants responsible for delivering inductions. School support staff is now based in the central office (see 71-72 TFI).
104 As noted, whilst a district office is not a defined term in the Agreement, there is reference to district offices other than in cl 10.3. In cl 16, which deals with a selection process arising from a variation in hours for Education Assistants, by cl 16.1(e), reference is made to "the relevant District Office" to be notified of the employee selected for "Employer Initiated Placement". Further, in cl 20, which deals with the assessment process for classification of Education Assistants (Special Needs), reference is made to "the relevant District Office Committee". There is no definition of "District Office Committee" for the purposes of cl 20. However, it seems clear enough from the clause read as a whole, that it is a particular group formed in a district office, to undertake the task required of it by cl 20.
105 In both cls 16 and 20, reference is made to "the" and "relevant" district office, as the case may be. Additionally, whilst I do not place too much weight on it, I also note that in both cls 16 and 20, "District Office" is capitalised. These textual indicators in my view lend some support to the conclusion that the district office referred to in the Agreement in cl 10.3, was the separately identified organisational unit in the Department's structure abolished in 2010. It was intended to be specifically identified by the parties to the Agreement, when clause 10 is construed as a part of the Agreement as a whole.
106 Furthermore, even if the terms of cl 10.3 can be interpreted in the manner contended for by the Union that does not of itself preclude inductions being held at individual school level. There is nothing to suggest on the ordinary meaning of the words used in cl 10.3, that Education Assistant inductions must be physically held at a district office location. The terms of cl 10.3, as the Department contended, are not location specific in terms of the physical site at which inductions may take place. The subclause provides that district offices are to be "responsible" for the conduct of induction. To be "responsible" for something is to be "2. Answerable, accountable to another, for something; liable to be called to account …" (Shorter Oxford English Dictionary).
107 I see no reason in principle why, for example, when they were in existence, district offices may not have contracted out the delivery of inductions to an expert and had those inductions performed not in the physical location of the district office, but elsewhere, including at an individual school or group of schools. Alternatively, a district office could have overseen the internal delivery of inductions in the same way. In doing so, a district office would still be answerable and accountable for the induction process for new employees, without necessarily physically delivering the service itself.
108 Consistent with the testimony of Mr Kelly, the Union's Secretary, at first instance, no doubt it was very convenient for the Union to have a group induction of Education Assistants at a more central location from the point of view of Union recruitment of prospective members. There was no suggestion on Mr Kelly's evidence, however, that it was impossible for the Union to attend localised inductions, but it is to be accepted that it was far less convenient to do so and it would be impracticable. A direction had also been given by Mr Kelly to industrial staff to not attend school based inductions (see 45 and 48 TFI).
109 However, overall, to construe cl 10.3 in the manner urged by the Union, would ultimately, in my view, fall foul of the note of caution sounded by Madgwick J in Kucks at 184 that:
"[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."
110 Furthermore, there is ample justification, in my view, from the terms of the Agreement when read as a whole, consistent with the evidence before the court at first instance, that cl 10.3 is to be construed in accordance with its application in the industry of government schools generally and the operation and structure of the Department at the material time, in particular.
Ground 3
111 The Union contended in this ground, that the learned Industrial Magistrate, by concluding at par 32 of his reasons for decision (AB 135) that "the real question to be determined on the pleadings is whether there has been a breach of clause 10.3 because the Director General has failed to ensure that district offices continued …" erred and misdirected himself.
112 The learned Industrial Magistrate did not misdirect himself or misconstrue the case for the Union in the manner contended by the Union. From par 22 of his Honour's reasons, (AB 133), it is clear that he understood the primary contention of the Union in its claim was to the effect that the district offices and the new Regional Office structure should be viewed as essentially one and the same as being located between the central office of the Department and individual schools. This understanding of the Union's case is further expanded on at par 23 of the learned Industrial Magistrate's reasons, where reference is made to the Union's contention that on its proper construction, cl 10 as a whole requires centralised inductions, geographically and organisationally (AB 133).
113 It is clear from the reasons of the learned Industrial Magistrate read as a whole, and in particular his Honour's conclusions at par 31 of his reasons (AB 134), that the reference to the real question to be determined in par 32, is as a consequence of the learned Industrial Magistrate's rejection of the Union's argument as to how the terms of cl 10.3 should be interpreted. It only becomes necessary to pose such a question, once the central contention of the Union is rejected. In any event, the question posed by the learned Industrial Magistrate, and answered by him, is consistent with the Union's pleaded case, at par 3.6(b) of the particulars of claim, that the Department breached the Agreement "… because the district offices were not responsible for conducting inductions".
114 In the absence of accepting the Union's broader meaning to be given to "district office" in cl 10.3, the only other way there could be a breach of cl 10.3, would be if the terms of the Agreement, read as a whole, required the Director General to maintain the existence of the organisational unit then known as "district office" for the duration of the Agreement.
115 The learned Industrial Magistrate concluded as to this issue, that the Agreement did not support the contention that district offices, as that unit of organisation in existence at the time the Agreement was made, were required to be continued in existence. That conclusion was, in my opinion, correct. There is no such obligation arsing on the plain language used in cl 10 of the Agreement or elsewhere. As a consequence, it was further concluded, also correctly in my view, that the first part of cl 10.3 was therefore rendered otiose. It was impossible for the district offices to retain a responsibility imposed on them by the Agreement, once they had been abolished.
116 This ground of appeal must also be rejected.
Ground 4
117 By this ground, it is asserted that the learned Industrial Magistrate was in error in concluding that the common law defence of impossibility enabled the exculpation of the Department. It is to be observed that the learned Industrial Magistrate's conclusion on this point at par 34 of his reasons, in the context of his reasons read as a whole, was not in any respect central to his conclusions on the issues to be determined. The observations as to this question were put by His Honour almost as an aside, in the alternative, if it could be said that a breach of cl 10.3 had occurred.
118 The argument by the Department was that in the present circumstances, where the abolition of the district offices resulted from no fault of its own the employer could not be culpable of contravening s 83 of the Act because of failure to comply with the Agreement. This is because the Director General was required to implement the new Government policy.
119 The defence of impossibility applies in this case. It is difficult to see how the Director General can be held culpable for action she was required to take to implement Government policy. It was the implementation of this policy that led to the abolition of the district offices. By particular 3.6(b)(iii) of the Union's statement of claim, it was alleged that the Department breached cl 10.3 of the Agreement, by the district offices not being responsible for conducting inductions from 31 January to 5 September 2011. It was not the Union's particularised complaint at first instance that the Department contravened or failed to comply with the Agreement, because offices at the regional level were not responsible for conducting inductions. It was impossible for the district offices to be responsible for inductions at the material time, because such known and recognised entities no longer existed after the policy was put into effect. This ground is not made out.
Ground 5
120 By this ground the Union contends that the learned Industrial Magistrate failed to provide adequate reasons for his decision. It is well settled that a court or tribunal, in its reasons, is not required to address every submission or to sift through every piece of evidence. The purpose of reasons, as an incident of the judicial process, is to reveal the process of reasoning of the court or tribunal and the basis of the decision reached: RRIA v AMWU (1998) 68 WAIG 990; Ruane v Woodside Offshore Petroleum (1991) 71 WAIG 913; Garrett v Nicholson (1999) 21 WAR 226.
121 I am not persuaded to any extent that the reasons of the learned Industrial Magistrate were inadequate in the required sense. His Honour set out the relevant issues to be decided. The evidence bearing upon those issues and the various contentions as advanced by the parties were referred to. The learned Industrial Magistrate's determination, in view of the issues to be decided and the evidence and submissions, was, with respect, clear and succinct. The basis for the court's decision was readily apparent from the learned Industrial Magistrate's reasons. This ground is not made out.
Conclusions
122 For the foregoing reasons I am not persuaded that the grounds of appeal have been made out and I would dismiss the appeal.