The Public Transport Authority of Western Australia -v- Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch

Document Type: Decision

Matter Number: APPL 3/2017

Matter Description: Interpretation of various industrial agreements

Industry: Transport Industry

Jurisdiction: Single Commissioner

Member/Magistrate name: Commissioner D J Matthews

Delivery Date: 24 Mar 2017

Result: Declaration made

Citation: 2017 WAIRC 00173

WAIG Reference: 97 WAIG 354

DOCX | 39kB
2017 WAIRC 00173
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00173

CORAM
: COMMISSIONER D J MATTHEWS

HEARD
:
FRIDAY, 3 MARCH 2017, MONDAY, 13 MARCH 2017, THURSDAY, 16 MARCH 2017

DELIVERED : FRIDAY, 24 MARCH 2017

FILE NO. : APPL 3 OF 2017

BETWEEN
:
THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Applicant

AND

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WESTERN AUSTRALIAN BRANCH
Respondent

CatchWords : Application for true interpretation and variation of subclause of various industrial agreements - Respondent applied for dismissal pursuant to section 27 (1)(a) Industrial Relations Act 1979 - Respondent's application dismissed - Subclauses relate to disciplinary provisions, deadlines for actions and the ability to extend deadlines - Principles of interpretation of industrial instruments discussed and applied - Ambiguity in subclauses found - Commission takes into account evidence of surrounding circumstances - Declaration made - No variation ordered
Legislation : Industrial Relations Act 1979 (WA)
Industrial Relations Commission Regulations 2005 (WA)
Result : Declaration made
REPRESENTATION:

Counsel:
APPLICANT : MR D ANDERSON OF COUNSEL
RESPONDENT : MR K SINGH AS AGENT
Solicitors:
APPLICANT : STATE SOLICITOR’S OFFICE
RESPONDENT : CHAPMANS BARRISTERS & SOLICITORS

Case referred to in reasons:
Ambatielos v Anton Jurgens Margarine Works [1922] 2 KB 185
Cases also cited:
Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Barlow v Qantas Airways Ltd (1997) 75 IR 100
City of Wanneroo v Holmes (1989) 30 IR 362
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 147 CLR 337
Director-General, Department of Education v United Voice WA (2013) WAIG 1
Kucks v CSR Ltd (1996) 66 1R 182
Re Harrison; ex parte Hames [2015] WASC 247
Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights Union of Western Australia (1987) 67 WAIG 1097
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2015) 95 WAIG 1503

Reasons for Decision
1 By Notice of Application filed 4 January 2017 the applicant seeks, pursuant to section 46(1) Industrial Relations Act 1979, a declaration of the true interpretation of, and variation to, the following:
· Clause 2.11.26 of the Public Transport Authority/ARTBIU (Transit Officers) Industrial Agreement 2015;
· Clause 2.6.26 of the Public Transport Authority/ARTBIU (Transwa) Industrial Agreement 2016;
· Clause 2.11.2.6 of the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016;
· Clause 2.8.26 of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2014; and
· Clause 2.6.26 of the Public Transport Authority Railway Employees (Network and Infrastructure) Industrial Agreement 2014
2 The subclauses are in relevantly identical terms (and are entirely identical I am told except for an insignificant difference in the Public Transport Authority/ARTBIU (Transwa) Industrial Agreement 2016).
3 Each of the subclauses appear as part of a clause in the respective agreements entitled “Discipline”. The contents of each of the discipline clauses are relevantly identical.
4 It is convenient in these reasons for decision to refer to the Public Transport Authority/ ARTBIU (Transit Officers) Industrial Agreement 2015 as this was the agreement referred to by the parties in argument and I will refer to it in these reasons as the 2015 TO Agreement.
5 The subclause reads as follows:
The minimum periods specified in subclause 2.11 in which a notification is to be given or a determination is to be made will be extended:

a) by reason of a delay caused by the employee or their representative, to the extent of the delay;

b) by reason of the absence from duty of the affected employee through sickness or other authorised leave, to the extent of that absence;

c) by reason of the suspension of the Employer's disciplinary process during an investigation of the allegation by Police or by the Corruption and Crime Commission, to the extent of the duration of that investigation; or

d) By mutual agreement between the parties
6 Before turning to the evidence led and arguments made in relation to the matter of interpretation I note the respondent applied to have the application dismissed under section 27(1)(a) Industrial Relations Act 1979 because, and here I quote from the Notice of Answer filed 16 January 2017:
(a) it constitutes further proceedings which are neither necessary or desirable in the public interest; and
(b) it is an abuse of process or a vexatious application.

7 This application, as developed in a written outline of submissions and in oral submissions on 3  March 2017, was brought on the basis that there are proceedings before the Industrial Magistrate’s Court (which have not yet been heard) to enforce a subclause of the Public Transport Authority (Transit Officers) Industrial Agreement 2013 which is the equivalent of that in the 2015 TO Agreement I have been asked to interpret in this case and that I should not allow a multiplicity of proceedings and, potentially, outcomes.
8 I dismissed the application under section 27(1)(a) Industrial Relations Act 1979 at the hearing on 3 March 2017.
9 The application under section 27(1)(a) Industrial Relations Act 1979 was perhaps understandable given that in its Notice of Application under the heading “Facts Giving Rise to the Application” (provided in compliance with regulation 52(1)(b) Industrial Relations Commission Regulations 2005) the applicant recited the facts which are those relating to the matter before the Industrial Magistrate’s Court.
10 However, as it turns out, those “facts” are provided to me merely as an illustration of a factual situation that, if it arose today, might give rise to dispute given the different interpretations of the parties. As actual “facts” they pre-date the commencement of the 2015 TO Agreement.
11 Accordingly, I am not, in truth, being asked to decide a matter before the Industrial Magistrate’s Court. The matter before the Industrial Magistrate’s Court may involve that body interpreting subclauses of the Public Transport Authority (Transit Officers) Industrial Agreement 2013 but will not involve the interpretation of any of the subclauses I am being asked to interpret here.
12 It will be for the Industrial Magistrate’s Court in the proceedings before it to decide what, if any, use is made of any declaration I make in these proceedings.
13 In particular, it will be a matter for the Industrial Magistrate’s Court as to whether any relevant similarities or differences between the industrial instrument it is considering and the 2015 TO Agreement are such that any declaration I make is, to use the words of section 46(3) Industrial Relations Act 1979, the “subject” of a matter it needs to decide.
14 The application was orally dismissed by me, and I now make an order dismissing the application, on the basis that either the Industrial Magistrate’s Court will not be bound by my decision and its considerations will be unaffected by it because the proceedings relate to a different agreement, and the differences between the two are considered material, or, if I am wrong about this, the Industrial Magistrate’s Court will be bound by my interpretation of the subclause which, as section 46(3) Industrial Relations Act 1979 makes clear, is as it should be.
15 I turn then to consideration of the true interpretation of the subclause.
16 I have been greatly assisted by the authorities cited by the parties on the matter of the proper approach to the interpretation of industrial instruments, which are listed in the “cases cited” section of these reasons. Without imagining I could improve upon the opinions expressed in those decisions it seems to me, attempting to distil their theme, that a decision-maker must determine what was the “real” intention of the parties when they included the relevant text in the agreement.
17 Sometimes the text is so clear that read with the whole document, it, without more, reveals that intention. If so there is no need to go any further.
18 However, if having read the text, there is any doubt in the mind of the decision-maker as to the meaning of it then evidence of surrounding circumstances may be called for or led to assist the decision-maker to resolve those doubts and determine what the parties really intended.
19 Often then there is a threshold question as to whether text is ambiguous or not. That is ultimately a matter for the decision-maker. As Lord Sterndale MR said in Ambatielos v Anton Jurgens Margarine Works [1922] 2 KB 185 at 196 “it is very difficult indeed to say what is ambiguous and what is not, and I do not think any test can be applied except that of the person who is dealing with it.”
20 As to whether evidence of, or information about, surrounding circumstances may be introduced to assist in determining whether text is ambiguous the preponderant view seems to caution against it but I think that the Western Australian Industrial Relations Commission dealing with an application under section 46 Industrial Relations Act 1979 should be slow to decide that text is unambiguous if a party says that surrounding circumstances may assist in relation to that question.
21 I say this for the following reasons:
(1) the Western Australian Industrial Relations Commission is a practical jurisdiction charged with giving practical solutions to parties and this is best done if the Western Australian Industrial Relations Commission is open to learning about surrounding circumstances that may impact on text;
(2) the Western Australian Industrial Relations Commission under section 46(1)(a) Industrial Relations Act 1979 “declares” the “true interpretation” of industrial instruments which in my view is an invitation to do what is necessary to find out what the parties really meant by the text including seeking or allowing evidence on the question of whether text is ambiguous;
(3) the Western Australian Industrial Relations Commission has, under section 46(1)(b) Industrial Relations Act 1979, the power to “vary” an industrial instrument “for the purpose of remedying any defect therein or of giving fuller effect” to the industrial instrument indicating that it has the power to “get to the bottom of” the intended meaning of text. It goes without saying that a “defect” might be expressed in completely unambiguous language and it must be equally clear the Western Australian Industrial Relations Commission may seek information or allow evidence to find out what the parties really intended even in the face of clear language;
(4) section 46(3) Industrial Relations Act 1979 provides that a declaration under section 46 Industrial Relations Act 1979 is binding on all courts and all persons with respect to the matter the subject of the declaration. There must be reasons why Parliament gave the Western Australian Industrial Relations Commission an extraordinary power to bind bodies superior to it in the judicial and quasi-judicial hierarchy. Those reasons must include that Parliament considered that it is the Western Australian Industrial Relations Commission which is best able to take into account the practical considerations of, and the industrial realities affecting, the parties in deciding what an industrial instrument means and also, because the Western Australian Industrial Relations Commission may play an inquisitorial role and is not bound by the rules of evidence, it is best able to get to the bottom of the matter. If Parliament gave this responsibility to the Western Australian Industrial Relations Commission for these reasons it would be strange if the Western Australian Industrial Relations Commission then took a restrictive approach to the receipt of information or evidence that would inform its view of practical considerations and industrial realities. Again, in my view, this supports a conclusion that the Western Australian Industrial Relations Commission may seek information or allow evidence to assist it in determining whether text is actually ambiguous;
(5) regulation 52(1)(b) Industrial Relations Commission Regulations 2005 requires an application under section 46 Industrial Relations Act 1979 to have attached to it a statement of “the facts giving rise to the application.” This may have the purpose of preventing a purely academic or curious application (although I find it hard to see how the interpretation of an applicable industrial instrument could ever be academic or a matter of mere curiosity) but it has the result that the Western Australian Industrial Relations Commission, at the outset, must have before it “factual” information about practical considerations. Those “facts” with which the Western Australian Industrial Relations Commission must be provided will in all likelihood already be informing the Western Australian Industrial Relations Commission’s views on ambiguity. The Western Australian Industrial Relations Commission might understandably seek clarification of, or elaboration upon, the “facts”. Regulation 52(1)(b) Industrial Relations Commission Regulations 2005 supports a conclusion that the Western Australian Industrial Relations Commission should not be shy about allowing evidence or seeking information to assist it in determining whether text is ambiguous.
22 Here I must say that the text of the relevant subclause seemed ambiguous to me, especially in light of the “facts” giving rise to the application provided in accordance with regulation 52 Industrial Relations Commission Regulations 2005 and Mr Singh’s explanation of the facts as the respondent saw them.
23 Having read the text of the 2015 TO Agreement, and in light of the “facts” put to me by both parties, I was confused about what the terms “duty” and “authorised leave” meant and their application to circumstances where periods of leave surrounded what the parties referred to as “blank days” (the meaning of which is known to the parties but will emerge in any event later in these reasons).
24 In light of me finding the clause ambiguous I do not need to decide whether I would have otherwise allowed evidence of surrounding circumstances but I repeat that I would have been slow to cut off this avenue of assistance to me in determining the real meaning of the text.
25 I intend to take account of the evidence led by the parties in this matter to assist me in declaring the true interpretation of the relevant subclause.
26 The issue that gives rise to the application, as I now understand it having heard evidence, is this:
(1) under the relevant disciplinary provisions of the industrial instruments under consideration some things have to be done by the employer within a certain timeframe;
(2) the consequences of not doing those things within the timeframe is that disciplinary action under the relevant provisions may not be taken or completed;
(3) accordingly, there is a “countdown clock” running down to the time within which some things have to be done by the employer;
(4) the deadline for the doing of those things may be extended in certain circumstances, those being the circumstances set out in subclause 2.11.26 of the 2015 TO Agreement, which finds its equivalent in the other agreements referred to in the application;
(5) transit officers work by way of ordinary hours a 40-hour week and typically do so by way of four 10 hour shifts;
(6) the result of the above is that in any given seven-day period a transit officer will work on four days and have off three “blank days”, as they are called;
(7) in the ordinary event the countdown clock does not stop for blank days;
(8) the countdown clock does stop for periods of authorised leave;
(9) sometimes periods of leave “bookend” blank days by which I mean periods of leave occur on either side of blank days;
(10) sometimes multiple blocks of blank days are bookended by periods of leave;
(11) the “facts” giving rise to the present application, as understood by me having heard both parties about them and having had regard to the first document in the bundle comprising Exhibit 1, are illustrative of this;
(12) those facts relate to Mr Hawkes;
(13) looking at the period 29 April 2015 to 25 May 2015 for Mr Hawkes the following occurred:
(a) from 29 April 2015 to 3 May 2015 Mr Hawkes used annual leave;
(b) from 4 May 2015 to 6 May 2015 were blank days for Mr Hawkes;
(c) from 7 May 2015 to 10 May 2015 Mr Hawkes used annual leave;
(d) from 11 May 2015 to 13 May 2015 were blank days for Mr Hawkes;
(e) from 14 May 2015 to 18 May 2015 Mr Hawkes used annual leave;
(f) from 19 May 2015 to 24 May 2015 were blank days for Mr Hawkes; and
(g) on 25 May 2015 Mr Hawkes returned to work.
27 In relation to the above the applicant says, with regard to subclause 2.11.26(b), that on the bookended blank days a transit officer is “absent from duty through authorised leave.”
28 The respondent says that a transit officer is not absent from duty through authorised leave on the bookended blank days. A transit officer is not “on duty” on blank days in the ordinary event and there is no warrant for considering the person to be absent from duty on those days in the above scenario. That is, Mr Hawkes was not absent from duty on 4 to 6, 11 to 13 or 19 to 24 May 2015, because these were, or would have been in the ordinary event, blank days.
29 The respondent’s argument continues that a transit officer is not docked a day of leave for the bookended blank days and the transit officer is, therefore, not absent from duty through authorised leave on those days.
30 The respondent says there is no reason to treat the bookended blank days any differently from normal blank days during which the countdown clock continues to run.
31 To assist me in the interpretation of the subclause I break it down according to the definitions of its key terms as found in the Macquarie Dictionary.
32 Doing so it may be read in this way. The countdown clock will stop for periods where:
an employee keeps himself or herself away (ie is absent) from any actions required by his or her position (ie duty) in consequence of (ie through) duly sanctioned (ie authorised) permission to do so (ie leave).
33 I then turn to the evidence.
34 The applicant’s evidence establishes to my satisfaction that for blank days bookended by periods of leave the applicant considers that its employees are basically beyond its reach and that they, employees, are entitled to act on those days without concern for contact from, or the expectation of contact from, their employer. This was the evidence of Mr Richard Farrell, the applicant’s Manager Labour Relations, and was supported by Exhibit 4 which was a tabulated report of the comments of relevant operational managers on the matter.
35 It was also, compellingly, the evidence of witnesses called by the respondent. In fact, noting I used the word “basically” above, their evidence was that during blank days bookended by periods of leave the applicant’s employees consider themselves completely and utterly beyond the reach of the applicant.
36 The oral evidence of Mr Joshua Dekuyer and Mr John Olding was crystal clear in this regard.
37 So much also emerges from the application for leave form of Mr Hawkes which formed part of Exhibit 1. Mr Hawkes nominated, for instance, 3 May 2015 to 24 May 2015 as a period of leave sought without regard to the fact that not all of the days in that period would result in reductions to his annual leave entitlement because some of them would be blank days.
38 Mr Hawkes gave as the reason for the period of leave that he was attending military training in Sydney.
39 Mr Hawkes obviously considered that he would be beyond the reach of his employer for that period of time even though it included blank days.
40 I also note that the employer, by approving the leave, was evidently of a similar view.
41 The evidence is a strong indicator of what the parties must really have meant by subclause 2.11.26(b) of the 2015 TO Agreement.
42 A consideration of the purpose of the subclause in its relevant context also provides a guide to the real meaning of the subclause.
43 The disciplinary provisions in which the subclause appears, as I noted above, set deadlines for certain events to occur and there are conclusive outcomes if those deadlines are not met.
44 This is a scheme which mainly benefits employees (although there is some benefit to the employer in imposing a discipline that militates against proceedings being prejudiced against it by staleness and other effects of delay).
45 It is only sensible that there be a provision in the clause which stops time running in certain circumstances. It is, in particular, sensible that time stop running when an employee is keeping himself or herself away from any actions required by his or her position with the approval of his or her employer.
46 This is sensible because it allows an employee the undeniable benefit of being able to recuperate from sickness or enjoy a break from work without the spectre of contact from employer in relation to a disciplinary process hanging over them.
47 It is also sensible, given that the employer has agreed to strict deadlines, that the employer is able to allow its employees to recuperate or recharge without worrying about time running against it and it also sensible that the employer is not obliged to work out a way to contact an employee who is entitled to be keeping himself or herself away from contact with the employer with its approval.
48 The above purposes are only achieved if time does not run during blank days bookended by leave.
49 Additionally, the results of time running during the blank days bookended by leave would be absurd and would not in any way reflect the industrial reality described to me by, in particular, Mr Joshua Dekuyer and Mr John Olding.
50 Mr Joshua Dekuyer gave evidence that he had taken a period of five weeks’ leave to honeymoon in Europe. It is clearly a fair thing that such things be allowed.
51 It follows that an employee could be overseas enjoying an important break on blank days bookended by leave.
52 The passing of blank days within that period, if the respondent’s interpretation is the correct, may mean that, for instance, the milestone under clause 2.11.4 of the 2015 TO Agreement could fall on one such day.
53 The employer would, if the respondent’s interpretation is correct and it does not, which would be understandable, want to allow disciplinary provisions to be determined against it by the passage of time, have to find a way to “notify” the employee of the nature of a suspicion it has in relation to the employee. (And I add here that I have no difficulty in finding that “notify” in clause 2.11.4 means to actually inform and that my finding is unaffected by the use of the word “issue” in subclause 2.11.4(c) because it cannot derogate from the primary requirement to “notify”).
54 Notification may or may not be possible in the above circumstance. If possible it may be highly inconvenient to the employer and highly unwelcome by the employee.
55 It may involve the employer compromising the important confidentiality of the process as the employer tries to hunt the employee down through family or other measures. If done it might very well ruin the employee’s period of leave.
56 Another example would be that of an employee on a long period of personal leave for illness. If the clock started and stopped during the period when the person was sick, depending on whether a day of absence was a docked sick leave day or a blank day, the employer might very well be forced to intrude on the person’s wellbeing in clearly unfortunate ways to prevent a disciplinary process being determined merely by the passage of time.
57 These results could not have been intended by the employer and the union when they agreed upon the inclusion of the subclause under consideration here.
58 I have no hesitation in finding that on blank days bookended by periods of leave employees keep themselves away from any actions required by their position in consequence of duly sanctioned permission to do so.
59 I think the evidence establishes that blank days bookended by periods of leave are treated by the employer, and viewed by the employees, as substantively different from blank days bookended by rostered service. This is relevant because there must be a sensible reason, if the interpretation I prefer is correct, why time runs for the latter blank days but not the former.
60 I think the answer is that during blank days bookended by rostered service an employee is not, once a transit officer’s duties are fully understood, truly and comprehensively able to keep himself or herself away from actions required by his or her positon.
61 A transit officer may, during that period, be requested to work an additional shift (pursuant to clause 3.2.5 of the 2015 TO Agreement) or be called out to deal with an emergency.
62 Also, although I do not need to decide it, a transit officer might as part of his or her duties, be obliged to respond to an order to return to work to be “notified” under clause 2.11.4 of the 2015 TO Agreement which order, depending on the circumstances, might be a reasonable and lawful one (subject to appropriate payment).
63 I find that on blank days bookended by leave a person is absent from duty in a way that an employee who is rendering normal service is not and that, in relation to subclause 2.1.26(b) of the 2015 TO Agreement, that makes a difference.
64 The respondent led some evidence about contact between the applicant and its employees during periods of leave. That evidence was intended, I think, to show that duty may intrude on leave and that accordingly the sacrosanctity of the leave is not as the applicant makes out.
65 The argument was, I think, that if the applicant considers that it can, for some reasons, interrupt leave by making contact with its employees it undermines its assertions that the intention of subclause 2.11.26(b) of the 2015 TO Agreement was to avoid the need to contact employees in relation to disciplinary matters during periods of authorised absence.
66 The examples given were very much at the margins of relevance. One related to the employer contacting the employee to make sure they put in an application for leave to cover a one-day absence. That goes to making sure a period of leave is properly authorised and is not really an interruption to leave at all, much less the stressful interruption that contact in relation to a disciplinary process would be.
67 Other examples related to contact in relation to the giving of evidence in court proceedings. The applicant itself (through Exhibit 4) admitted this could happen.
68 However, this is a duty owed to the courts and the due administration of justice in the public interest as much as it is to the employer. In any event the contact about this issue merely prevents a court needing to compel the attendance of the person. It is not, either because of the rarity of it happening or because of the characterisation of the event in its proper context, an example which I consider relevant.
69 I have throughout my decision referred to blank days bookended by periods of leave. My references are deliberate.
70 The evidence, and in particular Exhibit 4, introduces an element of uncertainty in relation to the extent an employee is truly considered, or may truly consider himself or herself, out of reach of the employer on blank days bookended by, on the one side, a period of leave and, on the other side, normal rostered service.
71 I am not willing to make a declaration of how the relevant subclause might apply to such a situation given the state of the evidence.
72 I do not consider this matter is advanced by answering any of the questions posed by the applicant in its Notice of Application beyond the extent that those questions can be answered from having regard to my reasons for decision appearing above.
73 On the matter raised by the application, and the facts and evidence in relation to it, I declare as follows:
that clause 2.11.26(b) of the 2015 TO Agreement and its equivalents have the effect that, in relation to the relevant deadlines, time does not run during blank days bookended by periods of leave or, put another way, time is extended by such days.
74 I do not consider it necessary to vary any industrial agreement in light of my reasons for decision.
75 I note that no argument was made that any factual scenario raised or evidential example given was amenable to solution under clause 2.11.26(a) and its equivalents and so I have not turned my mind to that issue.
76 I note in closing that subclause 2.11.26 and its equivalents refer to “minimum periods”. I think, although in the absence of argument I may have missed something or my thinking may simply be wrong, that “minimum” is understood by all to mean “maximum”. If I am right this is a good example of the dangers in looking only to the text to find the real meaning of clauses in industrial instruments when interpreting them under section 46 Industrial Relations Act 1979. In relation to it, the parties may wish to consider applying to vary the clause.
77 The reference to “sickness” also seems outdated in light of provisions in the industrial instruments which create “personal leave”.
78 If either party wishes me to act under section 46(2) Industrial Relations Act 1979 they should inform my chambers.

The Public Transport Authority of Western Australia -v- Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

 

CITATION : 2017 WAIRC 00173

 

CORAM

: Commissioner D J Matthews

 

HEARD

:

Friday, 3 March 2017, Monday, 13 March 2017, Thursday, 16 March 2017

 

DELIVERED : friday, 24 March 2017

 

FILE NO. : APPL 3 OF 2017

 

BETWEEN

:

The Public Transport Authority of Western Australia

Applicant

 

AND

 

Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch

Respondent

 

CatchWords : Application for true interpretation and variation of subclause of various industrial agreements - Respondent applied for dismissal pursuant to section 27 (1)(a) Industrial Relations Act 1979 - Respondent's application dismissed - Subclauses relate to disciplinary provisions, deadlines for actions and the ability to extend deadlines - Principles of interpretation of industrial instruments discussed and applied - Ambiguity in subclauses  found - Commission takes into account evidence of surrounding circumstances - Declaration made - No variation ordered

Legislation : Industrial Relations Act 1979 (WA)

   Industrial Relations Commission Regulations 2005 (WA) 

Result : Declaration made

Representation:

 


Counsel:

Applicant : Mr D Anderson of counsel

Respondent : Mr K Singh as agent

Solicitors:

Applicant : State Solicitor’s Office 

Respondent : Chapmans Barristers & Solicitors

 

Case referred to in reasons:

Ambatielos v Anton Jurgens Margarine Works [1922] 2 KB 185

Cases also cited:

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241

Barlow v Qantas Airways Ltd (1997) 75 IR 100

City of Wanneroo v Holmes (1989) 30 IR 362

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 147 CLR 337

Director-General, Department of Education v United Voice WA (2013) WAIG 1

Kucks v CSR Ltd (1996) 66 1R 182

Re Harrison; ex parte Hames [2015] WASC 247

Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights Union of Western Australia (1987) 67 WAIG 1097

Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2015) 95 WAIG 1503

 


Reasons for Decision

1         By Notice of Application filed 4 January 2017 the applicant seeks, pursuant to section 46(1) Industrial Relations Act 1979, a declaration of the true interpretation of, and variation to, the following:

  • Clause 2.11.26 of the Public Transport Authority/ARTBIU (Transit Officers) Industrial Agreement 2015;
  • Clause 2.6.26 of the Public Transport Authority/ARTBIU (Transwa) Industrial Agreement 2016;
  • Clause 2.11.2.6 of the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016;
  • Clause 2.8.26 of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2014; and
  • Clause 2.6.26 of the Public Transport Authority Railway Employees (Network and Infrastructure) Industrial Agreement 2014

2         The subclauses are in relevantly identical terms (and are entirely identical I am told except for an insignificant difference in the Public Transport Authority/ARTBIU (Transwa) Industrial Agreement 2016).

3         Each of the subclauses appear as part of a clause in the respective agreements entitled “Discipline”. The contents of each of the discipline clauses are relevantly identical.

4         It is convenient in these reasons for decision to refer to the Public Transport Authority/ ARTBIU (Transit Officers) Industrial Agreement 2015 as this was the agreement referred to by the parties in argument and I will refer to it in these reasons as the 2015 TO Agreement.

5         The subclause reads as follows:

The minimum periods specified in subclause 2.11 in which a notification is to be given or a determination is to be made will be extended:

 

a)      by reason of a delay caused by the employee or their representative, to the extent of the delay;

 

b)      by reason of the absence from duty of the affected employee through sickness or other authorised leave, to the extent of that absence;

 

c)      by reason of the suspension of the Employer's disciplinary process during an investigation of the allegation by Police or by the Corruption and Crime Commission, to the extent of the duration of that investigation; or

 

d)      By mutual agreement between the parties

6         Before turning to the evidence led and arguments made in relation to the matter of interpretation I note the respondent applied to have the application dismissed under section 27(1)(a) Industrial Relations Act 1979 because, and here I quote from the Notice of Answer filed 16 January 2017:

(a)   it constitutes further proceedings which are neither necessary or desirable in the public interest; and

(b)   it is an abuse of process or a vexatious application.

 

7         This application, as developed in a written outline of submissions and in oral submissions on 3  March 2017, was brought on the basis that there are proceedings before the Industrial Magistrate’s Court (which have not yet been heard) to enforce a subclause of the Public Transport Authority (Transit Officers) Industrial Agreement 2013 which is the equivalent of that in the 2015 TO Agreement I have been asked to interpret in this case and that I should not allow a multiplicity of proceedings and, potentially, outcomes.

8         I dismissed the application under section 27(1)(a) Industrial Relations Act 1979 at the hearing on 3 March 2017.

9         The application under section 27(1)(a) Industrial Relations Act 1979 was perhaps understandable given that in its Notice of Application under the heading “Facts Giving Rise to the Application” (provided in compliance with regulation 52(1)(b) Industrial Relations Commission Regulations 2005) the applicant recited the facts which are those relating to the matter before the Industrial Magistrate’s Court.

10      However, as it turns out, those “facts” are provided to me merely as an illustration of a factual situation that, if it arose today, might give rise to dispute given the different interpretations of the parties.  As actual “facts” they pre-date the commencement of the 2015 TO Agreement.

11      Accordingly, I am not, in truth, being asked to decide a matter before the Industrial Magistrate’s Court. The matter before the Industrial Magistrate’s Court may involve that body interpreting subclauses of the Public Transport Authority (Transit Officers) Industrial Agreement 2013 but will not involve the interpretation of any of the subclauses I am being asked to interpret here.

12      It will be for the Industrial Magistrate’s Court in the proceedings before it to decide what, if any, use is made of any declaration I make in these proceedings.

13      In particular, it will be a matter for the Industrial Magistrate’s Court as to whether any relevant similarities or differences between the industrial instrument it is considering and the 2015 TO Agreement are such that any declaration I make is, to use the words of section 46(3) Industrial Relations Act 1979, the “subject” of a matter it needs to decide.

14      The application was orally dismissed by me, and I now make an order dismissing the application, on the basis that either the Industrial Magistrate’s Court will not be bound by my decision and its considerations will be unaffected by it because the proceedings relate to a different agreement, and the differences between the two are considered material, or, if I am wrong about this, the Industrial Magistrate’s Court will be bound by my interpretation of the subclause which, as section 46(3) Industrial Relations Act 1979 makes clear, is as it should be.

15      I turn then to consideration of the true interpretation of the subclause.

16      I have been greatly assisted by the authorities cited by the parties on the matter of the proper approach to the interpretation of industrial instruments, which are listed in the “cases cited” section of these reasons. Without imagining I could improve upon the opinions expressed in those decisions it seems to me, attempting to distil their theme, that a decision-maker must determine what was the “real” intention of the parties when they included the relevant text in the agreement.

17      Sometimes the text is so clear that read with the whole document, it, without more, reveals that intention.  If so there is no need to go any further.

18      However, if having read the text, there is any doubt in the mind of the decision-maker as to the meaning of it then evidence of surrounding circumstances may be called for or led to assist the decision-maker to resolve those doubts and determine what the parties really intended.

19      Often then there is a threshold question as to whether text is ambiguous or not.  That is ultimately a matter for the decision-maker.  As Lord Sterndale MR said in Ambatielos v Anton Jurgens Margarine Works [1922] 2 KB 185 at 196 “it is very difficult indeed to say what is ambiguous and what is not, and I do not think any test can be applied except that of the person who is dealing with it.”

20      As to whether evidence of, or information about, surrounding circumstances may be introduced to assist in determining whether text is ambiguous the preponderant view seems to caution against it but I think that the Western Australian Industrial Relations Commission dealing with an application under section 46 Industrial Relations Act 1979 should be slow to decide that text is unambiguous if a party says that surrounding circumstances may assist in relation to that question.

21      I say this for the following reasons:

(1)   the Western Australian Industrial Relations Commission is a practical jurisdiction charged with giving practical solutions to parties and this is best done if the Western Australian Industrial Relations Commission is open to learning about surrounding circumstances that may impact on text;

(2)   the Western Australian Industrial Relations Commission under section 46(1)(a) Industrial Relations Act 1979 “declares” the “true interpretation” of industrial instruments which in my view is an invitation to do what is necessary to find out what the parties really meant by the text including seeking or allowing evidence on the question of whether text is ambiguous;

(3)   the Western Australian Industrial Relations Commission has, under section 46(1)(b) Industrial Relations Act 1979, the power to “vary” an industrial instrument “for the purpose of remedying any defect therein or of giving fuller effect” to the industrial instrument indicating that it has the power to “get to the bottom of” the intended meaning of text. It goes without saying that a “defect” might be expressed in completely unambiguous language and it must be equally clear the Western Australian Industrial Relations Commission may seek information or allow evidence to find out what the parties really intended even in the face of clear language;

(4)   section 46(3) Industrial Relations Act 1979 provides that a declaration under section 46 Industrial Relations Act 1979 is binding on all courts and all persons with respect to the matter the subject of the declaration. There must be reasons why Parliament gave the Western Australian Industrial Relations Commission an extraordinary power to bind bodies superior to it in the judicial and quasi-judicial hierarchy. Those reasons must include that Parliament considered that it is the Western Australian Industrial Relations Commission which is best able to take into account the practical considerations of, and the industrial realities affecting, the parties in deciding what an industrial instrument means and also, because the Western Australian Industrial Relations Commission may play an inquisitorial role and is not bound by the rules of evidence, it is best able to get to the bottom of the matter. If Parliament gave this responsibility to the Western Australian Industrial Relations Commission for these reasons it would be strange if the Western Australian Industrial Relations Commission then took a restrictive approach to the receipt of information or evidence that would inform its view of practical considerations and industrial realities. Again, in my view, this supports a conclusion that the Western Australian Industrial Relations Commission may seek information or allow evidence to assist it in determining whether text is actually ambiguous;

(5)   regulation 52(1)(b) Industrial Relations Commission Regulations 2005 requires an application under section 46 Industrial Relations Act 1979 to have attached to it a statement of “the facts giving rise to the application.” This may have the purpose of preventing a purely academic or curious application (although I find it hard to see how the interpretation of an applicable industrial instrument could ever be academic or a matter of mere curiosity) but it has the result that the Western Australian Industrial Relations Commission, at the outset, must have before it “factual” information about practical considerations. Those “facts” with which the Western Australian Industrial Relations Commission must be provided will in all likelihood already be informing the Western Australian Industrial Relations Commission’s views on ambiguity. The Western Australian Industrial Relations Commission might understandably seek clarification of, or elaboration upon, the “facts”. Regulation 52(1)(b) Industrial Relations Commission Regulations 2005 supports a conclusion that the Western Australian Industrial Relations Commission should not be shy about allowing evidence or seeking information to assist it in determining whether text is ambiguous.

22      Here I must say that the text of the relevant subclause seemed ambiguous to me, especially in light of the “facts” giving rise to the application provided in accordance with regulation 52 Industrial Relations Commission Regulations 2005 and Mr Singh’s explanation of the facts as the respondent saw them.

23      Having read the text of the 2015 TO Agreement, and in light of the “facts” put to me by both parties, I was confused about what the terms “duty” and “authorised leave” meant and their application to circumstances where periods of leave surrounded what the parties referred to as “blank days” (the meaning of which is known to the parties but will emerge in any event later in these reasons).

24      In light of me finding the clause ambiguous I do not need to decide whether I would have otherwise allowed evidence of surrounding circumstances but I repeat that I would have been slow to cut off this avenue of assistance to me in determining the real meaning of the text.  

25      I intend to take account of the evidence led by the parties in this matter to assist me in declaring the true interpretation of the relevant subclause.

26      The issue that gives rise to the application, as I now understand it having heard evidence, is this:

(1)   under the relevant disciplinary provisions of the industrial instruments under consideration some things have to be done by the employer within a certain timeframe;

(2)   the consequences of not doing those things within the timeframe is that disciplinary action under the relevant provisions may not be taken or completed;

(3)   accordingly, there is a “countdown clock” running down to the time within which some things have to be done by the employer;

(4)   the deadline for the doing of those things may be extended in certain circumstances, those being the circumstances set out in subclause 2.11.26 of the 2015 TO Agreement, which finds its equivalent in the other agreements referred to in the application;

(5)   transit officers work by way of ordinary hours a 40-hour week and typically do so by way of four 10 hour shifts;

(6)   the result of the above is that in any given seven-day period a transit officer will work on four days and have off three “blank days”, as they are called;

(7)   in the ordinary event the countdown clock does not stop for blank days;

(8)   the countdown clock does stop for periods of authorised leave;

(9)   sometimes periods of leave “bookend” blank days by which I mean periods of leave occur on either side of blank days;

(10) sometimes multiple blocks of blank days are bookended by periods of leave;

(11) the “facts” giving rise to the present application, as understood by me having heard both parties about them and having had regard to the first document in the bundle comprising Exhibit 1, are illustrative of this;

(12) those facts relate to Mr Hawkes;

(13) looking at the period 29 April 2015 to 25 May 2015 for Mr Hawkes the following occurred:

(a)     from 29 April 2015 to 3 May 2015 Mr Hawkes used annual leave;

(b)     from 4 May 2015 to 6 May 2015 were blank days for Mr Hawkes;

(c)     from 7 May 2015 to 10 May 2015 Mr Hawkes used annual leave;

(d)     from 11 May 2015 to 13 May 2015 were blank days for Mr Hawkes;

(e)     from 14 May 2015 to 18 May 2015 Mr Hawkes used annual leave;

(f)      from 19 May 2015 to 24 May 2015 were blank days for Mr Hawkes; and

(g)     on 25 May 2015 Mr Hawkes returned to work.

27      In relation to the above the applicant says, with regard to subclause 2.11.26(b), that on the bookended blank days a transit officer is “absent from duty through authorised leave.”

28      The respondent says that a transit officer is not absent from duty through authorised leave on the bookended blank days. A transit officer is not “on duty” on blank days in the ordinary event and there is no warrant for considering the person to be absent from duty on those days in the above scenario. That is, Mr Hawkes was not absent from duty on 4 to 6, 11 to 13 or 19 to 24 May 2015, because these were, or would have been in the ordinary event, blank days.

29      The respondent’s argument continues that a transit officer is not docked a day of leave for the bookended blank days and the transit officer is, therefore, not absent from duty through authorised leave on those days.

30      The respondent says there is no reason to treat the bookended blank days any differently from normal blank days during which the countdown clock continues to run.

31      To assist me in the interpretation of the subclause I break it down according to the definitions of its key terms as found in the Macquarie Dictionary.

32      Doing so it may be read in this way.  The countdown clock will stop for periods where:

an employee keeps himself or herself away (ie is absent) from any actions required by his or her position (ie duty) in consequence of (ie through) duly sanctioned (ie authorised) permission to do so (ie leave).

33      I then turn to the evidence.

34      The applicant’s evidence establishes to my satisfaction that for blank days bookended by periods of leave the applicant considers that its employees are basically beyond its reach and that they, employees, are entitled to act on those days without concern for contact from, or the expectation of contact from, their employer.  This was the evidence of Mr Richard Farrell, the applicant’s Manager Labour Relations, and was supported by Exhibit 4 which was a tabulated report of the comments of relevant operational managers on the matter.

35      It was also, compellingly, the evidence of witnesses called by the respondent.  In fact, noting I used the word “basically” above, their evidence was that during blank days bookended by periods of leave the applicant’s employees consider themselves completely and utterly beyond the reach of the applicant.

36      The oral evidence of Mr Joshua Dekuyer and Mr John Olding was crystal clear in this regard.

37      So much also emerges from the application for leave form of Mr Hawkes which formed part of Exhibit 1. Mr Hawkes nominated, for instance, 3 May 2015 to 24 May 2015 as a period of leave sought without regard to the fact that not all of the days in that period would result in reductions to his annual leave entitlement because some of them would be blank days.

38      Mr Hawkes gave as the reason for the period of leave that he was attending military training in Sydney.

39      Mr Hawkes obviously considered that he would be beyond the reach of his employer for that period of time even though it included blank days.

40      I also note that the employer, by approving the leave, was evidently of a similar view.

41      The evidence is a strong indicator of what the parties must really have meant by subclause 2.11.26(b) of the 2015 TO Agreement.

42      A consideration of the purpose of the subclause in its relevant context also provides a guide to the real meaning of the subclause.

43      The disciplinary provisions in which the subclause appears, as I noted above, set deadlines for certain events to occur and there are conclusive outcomes if those deadlines are not met.

44      This is a scheme which mainly benefits employees (although there is some benefit to the employer in imposing a discipline that militates against proceedings being prejudiced against it by staleness and other effects of delay).

45      It is only sensible that there be a provision in the clause which stops time running in certain circumstances. It is, in particular, sensible that time stop running when an employee is keeping himself or herself away from any actions required by his or her position with the approval of his or her employer.

46      This is sensible because it allows an employee the undeniable benefit of being able to recuperate from sickness or enjoy a break from work without the spectre of contact from employer in relation to a disciplinary process hanging over them.

47      It is also sensible, given that the employer has agreed to strict deadlines, that the employer is able to allow its employees to recuperate or recharge without worrying about time running against it and it also sensible that the employer is not obliged to work out a way to contact an employee who is entitled to be keeping himself or herself away from contact with the employer with its approval.

48      The above purposes are only achieved if time does not run during blank days bookended by leave.

49      Additionally, the results of time running during the blank days bookended by leave would be absurd and would not in any way reflect the industrial reality described to me by, in particular, Mr Joshua Dekuyer and Mr John Olding.

50      Mr Joshua Dekuyer gave evidence that he had taken a period of five weeks’ leave to honeymoon in Europe.  It is clearly a fair thing that such things be allowed.

51      It follows that an employee could be overseas enjoying an important break on blank days bookended by leave.

52      The passing of blank days within that period, if the respondent’s interpretation is the correct, may mean that, for instance, the milestone under clause 2.11.4 of the 2015 TO Agreement could fall on one such day.

53      The employer would, if the respondent’s interpretation is correct and it does not, which would be understandable, want to allow disciplinary provisions to be determined against it by the passage of time, have to find a way to “notify” the employee of the nature of a suspicion it has in relation to the employee. (And I add here that I have no difficulty in finding that “notify” in clause 2.11.4 means to actually inform and that my finding is unaffected by the use of the word “issue” in subclause 2.11.4(c) because it cannot derogate from the primary requirement to “notify”).

54      Notification may or may not be possible in the above circumstance. If possible it may be highly inconvenient to the employer and highly unwelcome by the employee.

55      It may involve the employer compromising the important confidentiality of the process as the employer tries to hunt the employee down through family or other measures.  If done it might very well ruin the employee’s period of leave.

56      Another example would be that of an employee on a long period of personal leave for illness. If the clock started and stopped during the period when the person was sick, depending on whether a day of absence was a docked sick leave day or a blank day, the employer might very well be forced to intrude on the person’s wellbeing in clearly unfortunate ways to prevent a disciplinary process being determined merely by the passage of time.

57      These results could not have been intended by the employer and the union when they agreed upon the inclusion of the subclause under consideration here.

58      I have no hesitation in finding that on blank days bookended by periods of leave employees keep themselves away from any actions required by their position in consequence of duly sanctioned permission to do so.

59      I think the evidence establishes that blank days bookended by periods of leave are treated by the employer, and viewed by the employees, as substantively different from blank days bookended by rostered service. This is relevant because there must be a sensible reason, if the interpretation I prefer is correct, why time runs for the latter blank days but not the former.

60      I think the answer is that during blank days bookended by rostered service an employee is not, once a transit officer’s duties are fully understood, truly and comprehensively able to keep himself or herself away from actions required by his or her positon.

61      A transit officer may, during that period, be requested to work an additional shift (pursuant to clause 3.2.5 of the 2015 TO Agreement) or be called out to deal with an emergency.

62      Also, although I do not need to decide it, a transit officer might as part of his or her duties, be obliged to respond to an order to return to work to be “notified” under clause 2.11.4 of the 2015 TO Agreement which order, depending on the circumstances, might be a reasonable and lawful one (subject to appropriate payment).

63      I find that on blank days bookended by leave a person is absent from duty in a way that an employee who is rendering normal service is not and that, in relation to subclause 2.1.26(b) of the 2015 TO Agreement, that makes a difference.

64      The respondent led some evidence about contact between the applicant and its employees during periods of leave.  That evidence was intended, I think, to show that duty may intrude on leave and that accordingly the sacrosanctity of the leave is not as the applicant makes out.

65      The argument was, I think, that if the applicant considers that it can, for some reasons, interrupt leave by making contact with its employees it undermines its assertions that the intention of subclause 2.11.26(b) of the 2015 TO Agreement was to avoid the need to contact employees in relation to disciplinary matters during periods of authorised absence.

66      The examples given were very much at the margins of relevance. One related to the employer contacting the employee to make sure they put in an application for leave to cover a one-day absence. That goes to making sure a period of leave is properly authorised and is not really an interruption to leave at all, much less the stressful interruption that contact in relation to a disciplinary process would be.

67      Other examples related to contact in relation to the giving of evidence in court proceedings. The applicant itself (through Exhibit 4) admitted this could happen.

68      However, this is a duty owed to the courts and the due administration of justice in the public interest as much as it is to the employer. In any event the contact about this issue merely prevents a court needing to compel the attendance of the person. It is not, either because of the rarity of it happening or because of the characterisation of the event in its proper context, an example which I consider relevant.

69      I have throughout my decision referred to blank days bookended by periods of leave. My references are deliberate.

70      The evidence, and in particular Exhibit 4, introduces an element of uncertainty in relation to the extent an employee is truly considered, or may truly consider himself or herself, out of reach of the employer on blank days bookended by, on the one side, a period of leave and, on the other side, normal rostered service.

71      I am not willing to make a declaration of how the relevant subclause might apply to such a situation given the state of the evidence.

72      I do not consider this matter is advanced by answering any of the questions posed by the applicant in its Notice of Application beyond the extent that those questions can be answered from having regard to my reasons for decision appearing above.

73      On the matter raised by the application, and the facts and evidence in relation to it, I declare as follows:

that clause 2.11.26(b) of the 2015 TO Agreement and its equivalents have the effect that, in relation to the relevant deadlines, time does not run during blank days bookended by periods of leave or, put another way, time is extended by such days.

74      I do not consider it necessary to vary any industrial agreement in light of my reasons for decision.

75      I note that no argument was made that any factual scenario raised or evidential example given was amenable to solution under clause 2.11.26(a) and its equivalents and so I have not turned my mind to that issue.

76      I note in closing that subclause 2.11.26 and its equivalents refer to “minimum periods”.  I think, although in the absence of argument I may have missed something or my thinking may simply be wrong, that “minimum” is understood by all to mean “maximum”. If I am right this is a good example of the dangers in looking only to the text to find the real meaning of clauses in industrial instruments when interpreting them under section 46 Industrial Relations Act 1979. In relation to it, the parties may wish to consider applying to vary the clause.

77      The reference to “sickness” also seems outdated in light of provisions in the industrial instruments which create “personal leave”.

78      If either party wishes me to act under section 46(2) Industrial Relations Act 1979 they should inform my chambers.