Appeal against decisionS of the Commission in matter no. APPL 11/2017 given on 24 MARCH 2017 AND 7 April 2017

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2017 WAIRC 00830

DELIVERED : TUESDAY, 19 SEPTEMBER 2017

FILE NO. : FBA 7 OF 2017

Appellant

AND

Public Transport Authority of Western Australia

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner D J Matthews

Citation : [2017] WAIRC 00175; (2017) 97 WAIG 365;

[2017] WAIRC 00205; (2017) 97 WAIG 366

File No. : APPL 11 of 2017

CatchWords : Industrial Law (WA) - Application for interpretation and variation of industrial agreement - Power of the Commission to interpret considered and compared to power of the Industrial Magistrate's Court to interpret an industrial agreement in the course of an application to enforce an industrial agreement considered

Legislation : Industrial Relations Act 1979 (WA) s 23(1), s 26(1)(b), s 27(1)(a), s 27(1)(a)(ii), s 27(1)(a)(iv), s 35(1), s 40B, s 44, s 46, s 46(1), s 46(1)(b), s 46(2), s 46(3), s 46(5), s 47, s 49, s 49(2a), pt III, s 81CA(1), s 83, s 83(3), s 83(4), s 83(5), s 83(7), s 83A, s 83E, s 84A, s 90, s 114(1)  

Industrial Relations Commission Regulations 2005 (WA) reg 52, reg 52(1), reg 52(1)(b), reg 53(1)(c)

Magistrates Court (Civil Proceedings) Act 2004 (WA)

Industrial Arbitration Act 1912 (WA) s 88

Conciliation and Arbitration Act 1904 (Cth) s 110

Industrial Relations Act 1988 (Cth) s 51

Workplace Relations Act 1996 (Cth) s 413   

Result : Appeal upheld

Representation:

Counsel:

Appellant : Mr C Fogliani

Respondent : Mr J Carroll

Solicitors:

Appellant : W.G. McNally Jones Staff Lawyers

Respondent : State Solicitor's Office

Case(s) referred to in reasons:

Actors' Equity of Australia v Australian Broadcasting Corporation [1986] FCA 618; (1986) 17 IR 393

Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99

Barlow v Qantas Airways Ltd (1997) 75 IR 100

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623

Derby Meat Processing Co Ltd v West Australian Branch, Australasian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 862

Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1

Field Construction Co v The Boilermakers' Society of Australia, Union of Workers, Coastal Districts (1961) 41 WAIG 990

Firefair Pty Ltd v Employee Relations Commission of Victoria [1996] 1 VR 446

George 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; (2012) 93 WAIG 1

Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1981] FCA 49; (1981) 54 FLR 358

Mount Newman Mining Co Pty Limited v Australian Workers' Union, WA Branch Industrial Union of Workers (1986) 66 WAIG 1925

Norwest Beef Industries Ltd v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124

Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451

Pemberton v Civil Service Insurance Agency Pty Ltd [2008] WAIRC 01116; (2008) 88 WAIG 1768

Rainbow Coast Neighbourhood Centre Inc v Wood [2011] WAIRC 00821; (2011) 91 WAIG 1831

Re Cram; Ex parte The Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140

Re Harrison; Ex parte Hames [2015] WASC 247

Re Queensland Electricity Commission and Ors; Ex parte Electrical Trades Union of Australia (1987) 21 IR 151

Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 990

Ruane v Woodside Offshore Petroleum Pty Ltd (1991) 71 WAIG 913

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00451; (2014) 94 WAIG 787

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 00797; (2015) 95 WAIG 1503

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431

The Commissioner of Railways v West Australian Locomotive Engine Drivers, Firemen's and Cleaners' Union of Workers (1941) 21 WAIG 451

The Liquor, Hospitality and Miscellaneous Union, WA Branch v The Roman Catholic Bishop of Bunbury Chancery Office and Ors (2007) 87 WAIG 1148

The Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2015] WASCA 150; (2015) 95 WAIG 1593

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

United Voice WA v Director General, Department of Education [2013] WAIRC 00053; (2013) 93 WAIG 80

Reasons for Decision

SMITH AP:

Introduction

1         This is an appeal against two decisions of the Commission given on 24 March 2017 and 7 April 2017 in APPL 11 of 2017.

2         APPL 11 of 2017 was an application made by the respondent, the Public Transport Authority of Western Australia (the PTA), for an interpretation of cl 5.2 of the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016 (No. AG 19 of 2016) (the Industrial Agreement) pursuant to s 46 of the Industrial Relations Act 1979 (WA) (the Act).

3         In response to the PTA's application, The Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch (the union) made an application that APPL 11 of 2017 be dismissed pursuant to the power conferred in s 27(1)(a) of the Act as it had brought an application under s 83 of the Act in the Industrial Magistrate's Court in M 101 of 2016 to enforce the Industrial Agreement in a claim that the PTA failed to comply with cl 5.2.1(b)(i).  The application to dismiss APPL 11 of 2017 was made on grounds that the application for an interpretation of the Industrial Agreement constitutes further proceedings which are neither necessary or desirable in the public interest; and were an abuse of process or a vexatious application.

4         After hearing the parties, the Commission made an order on 24 March 2017 dismissing the union's application pursuant to s 27(1)(a) of the Act ([2017] WAIRC 00175; (2017) 97 WAIG 365).  On the same day, the Commission issued reasons for decision declaring the true interpretation of cl 5.2.1(b) of the Industrial Agreement ([2017] WAIRC 00177; (2017) 97 WAIG 361).  On 7 April 2017, the Commission issued an order, after having received a request pursuant to s 46(2) of the Act, to issue the declaration in the form of an order ([2017] WAIRC 00205; (2017) 97 WAIG 366).

5         As one of the issues raised in this appeal relates to the power of the Commission to interpret an industrial agreement under s 46 of the Act and the power to enforce the terms of an industrial agreement conferred on the Industrial Magistrate by s 83 of the Act, it is important to consider the matters pleaded in the PTA's application for interpretation of the Industrial Agreement.  In schedule A of the application, the PTA sets out the grounds upon which the application is made as follows:

Title and number of award and clause under which the questions arise:

The questions the subject of this application arise under clause 5.2 of the Public Transport Authority/ ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016 (No. AG 19 of 2016), which is in force and is included within the definition of 'award' for the purposes of section 46(5) of the Act.

Questions to which an answer is sought by the Applicant

…

Question 1:

When deciding whether an employee is reasonably able to use public transport to travel to and from the depot from which the employee is temporarily working for a shift, is the Depot Manager permitted to base the decision on the employee's ability to use public transport to travel between the employee's home depot and the other depot at the relevant times?

Question 2:

When deciding whether an employee is reasonably able to use public transport to travel to and from the depot from which the employee is temporarily working for a shift, is the Depot Manager permitted to treat a timetabled Transperth Train Operations service departing from or ending at the employee's home depot as 'public transport' for the purposes of clause 5.2.1(b) when the employee is able to alight from or embark on the service at a platform adjacent to the other depot?

Order Sought by the Applicant:

The Applicant seeks an order varying clause 5.2.1 of the industrial agreement as follows for the purpose of giving fuller effect to the provision, by deleting the words 'to and from' wherever they appear in clause 5.2.1(b) and to substitute the words 'between the home depot and'.

Facts Giving Rise to the Application

1) The Respondent contends that the Applicant has breached clause 5.2 of the industrial agreement, contending that a rail car driver employee, Mr Peter Olynyk, was entitled to be paid temporary transfer allowance calculated based on the rate in clause 5.2.1(b)(i) for shifts worked on 25 and 28 May 2016, whereas the allowance paid to him by Applicant was calculated based on the rate in clause 5.2.1(b)(ii).

2) The Applicant's payment to Mr Olynyk of the temporary transfer allowance based on the rate in clause 5.2.1(b)(ii) is based on the following facts:

a. Mr Olynyk's home depot is Mandurah Depot, which is located on Rafferty Road, Mandurah, Mandurah [sic].

b. Mr Olynyk is sometimes required to start work at his home depot before 05:00 hours.

c. On 25 May 2016 and again on 28 May 2016, the Respondent required Mr Olynyk to start work at its Nowergup Depot at 0700 hours.

d. The Nowergup Depot is located at 201L Hester Avenue, Nowergup, Western Australia.

e. The kilometres for which the temporary transfer allowance was required to be paid by the Applicant to Mr Olynyk was between 108.5 and 111 kilometres - the Applicant's payment was based on the greater distance.

f. Timetabled Transperth Train Operations services departed from the Mandurah station, which is adjacent to the Mandurah Depot, at 05:04, 05:17 and 05:27 hours and would have arrived at the platform adjacent to the Nowergup Depot before 07:00 hours - e.g. the 05:27 train would have arrived at about 06:54 hours.

g. Instructions had previously been issued by the Applicant to employees confirming arrangements for timetabled Transperth Train Operations services to drop off or pick up drivers working a Nowergup Depot shift at the platform adjacent to the Nowergup Depot, and Mr Olynyk was able to alight and embark on those services at that platform on 25 and 28 May 2016.

h. Another employee whose home depot was Mandurah and who was rostered on the same shifts as Mr Olynyk on 25 and 28 May 2016 travelled between Mandurah and Nowergup Depots on those days using timetabled Transperth Train Operations services.

i. Timetabled Transperth Train Operations services were travelling between the platform adjacent to the Nowergup Depot and the Mandurah station at the conclusion of Mr Olynyk's shifts on 25 and 28 May 2016.

3) The Respondent bases its contention on the following facts and contentions:

a. Mr Olynyk's residential address is 14 Tennyson Avenue, Halls Head, Western Australia.

b. It was not possible on 25 or 28 May 2016 for Mr Olynyk to use public transport to travel from his residential address to Nowergup Depot by 0700 hours.

c. It was not reasonably possible for Mr Olynyk to use public transport to travel from Nowergup Depot to his residential address at the end of his shift.

6         In the union's notice of answer filed on 14 February 2017 in which they made an application that APPL 11 of 2017 be dismissed, they pleaded:

1. On 19 July 2016, the Respondent brought an application under section 83 of the Industrial Relations Act 1979 (WA) to enforce the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016 (the Agreement).

2. That application is claim M101 of 2016 in the Industrial Magistrates Court of Western Australia.

3. The claim before the Industrial Magistrates Court is that the Applicant failed to comply with clause 5.2.1(b)(i) of the Agreement by underpaying Rail Car Driver Peter Olynyk his travel allowance due for 28 May 2016.

4. In determining M101 of 2016, the Industrial Magistrates Court will be required to interpret the Agreement and specifically look at the construction of clause 5.2.1(b)(i) of the Agreement.

5. On 26 April 2017, the claim is listed before the Industrial Magistrates Court of Western Australia.

The union's application to dismiss

7         The union pointed out in its submissions at first instance that the starting point in considering its application to dismiss the application for an interpretation is the PTA has a prima facie right to have its s 46 application heard and determined by the Commission:  The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00451; (2014) 94 WAIG 787 [58].

8         The union argued if the Commission was the only entity that possessed jurisdiction to deal with the industrial matter and dispute, then the onus was on it to demonstrate that it is not necessary or desirable in the public interest to have this matter determined by the Commission would be a heavy one.  However, they pointed out that the issues raised were not just before the Commission in APPL 11 of 2017, they are also before the Industrial Magistrate's Court in M 101 of 2016.  In particular, they argued that the Industrial Magistrate's Court has an implied jurisdiction to interpret the Industrial Agreement in the process of determining, pursuant to s 83 of the Act, whether the PTA has breached cl 5.2.1 of the Industrial Agreement.

9         The union also argued that it could be inferred from the PTA's conduct in lodging APPL 11 of 2017 that it did not want the Industrial Magistrate to interpret cl 5.2 and the effect of the application brought pursuant to s 46 is that the Industrial Magistrate will be bound by the Commission's interpretation.  To that extent, it was argued that the PTA was engaging in forum shopping, and in doing so is creating a duplicity of proceedings.

10      The union also put a contention that there was no benefit in having the Commission hear the PTA's s 46 application when the issues in that application were already seized by the Industrial Magistrate's Court and that if any error occurs in the interpretation of the Industrial Agreement then an appeal could be heard and determined by the Full Bench of the Commission.

Clause 5.2 of the Industrial Agreement

11      Clause 5.2 provides:

5.2 Temporary Transfer Allowance

5.2.1 When an employee is required to commence and conclude a shift at a metropolitan depot other than the home depot to which the employee is stationed, the following shall apply:

(a) When the distance the employee is required to travel from the employee's usual place of residence to the depot from which the employee is temporarily working is greater than the distance the employee is required to travel from his or her usual place of residence to the employee's home depot, the employee shall be paid an allowance per kilometre in both directions calculated on the extra distance the employee is required to travel. Such allowance as specified in this paragraph is in recognition of the cost and time taken for the extra distance to be travelled.

(b) The allowance payable per kilometre will be:

(i) $1.72 where the Depot Manager of the employee's home depot is satisfied that the employee is not reasonably able to use public transport to travel to and from the other depot; and otherwise

(ii) Half the figure nominated in paragraph (i) of this subclause where the Depot Manager of the employee's home depot is satisfied that the employee is reasonably able to use public transport to travel to and from the other depot.

(c) The rates referred to in this subclause shall be adjusted by the Employer from time to time during the term of the Agreement by reference to changes to the median of the Perth metropolitan Tariff 1 weekday rates per kilometre charged by all licensed taxis in Perth. The adjustment shall take effect from the date nominated by the employer, which shall be no later than 28 days after being notified in writing by the Union of a change to the median weekday rate.

5.2.2 For the avoidance of doubt, a Trainee Driver will not be stationed at a home depot and will not be entitled to the temporary transfer allowance unless the Employer has agreed in writing with the Trainee Driver to the contrary.

Submissions made by the parties at first instance on the merits of the PTA's application for interpretation

(a) The PTA's submissions

12      In support of its application for an interpretation of the Industrial Agreement, the PTA filed written submissions on 20 March 2017.  In those submissions, they point out that cl 5.2 of the Industrial Agreement contains the eligibility criteria for payment of a temporary transfer allowance and state that the purpose of the allowance is to recognise the cost and time taken for the extra distance to be travelled (to work).  An employee is eligible to receive the allowance if:

(a) an employee is required to commence and conclude a shift at a depot other than the home depot which the employee is stationed; and

(b) the distance between the employee's residence and the other depot is further than the distance between the employee's residence and the home depot.

13      Consequently, the rate of the allowance paid depends upon the employee's ability to use public transport to travel to the other depot.

14      The PTA argued that despite the fact reg 52 of the Industrial Relations Commission Regulations 2005 (WA) (the Regulations) requires an application for interpretation of an industrial instrument to have attached to it a statement of facts giving rise to the application, the facts leading to an application to interpret an industrial instrument are immaterial to the determination of the application.  In support of this proposition, the PTA referred to the decision in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 00797; (2015) 95 WAIG 1503 [25] (Rostering Practices Payment Case).  They also cited the decision of the Industrial Relations Court of Australia in Barlow v Qantas Airways Ltd (1997) 75 IR 100, 115.

15      In respect of question 1, the PTA argued that when deciding whether an employee is reasonably able to use public transport to travel to and from the depot from which the employee is temporarily working for a shift, the depot manager is permitted to base the decision on an employee's ability to use public transport to travel between the employee's home depot and the other depot at the relevant times.

16      The PTA contended that cl 5.2.1(b) of the Industrial Agreement is ambiguous as it is silent as to the point from which the depot manager is to assess an employee's ability to use public transport to travel to the other depot.  The PTA argued that the ambiguity could be cured by deleting the words 'to and from' wherever they appear in cl 5.2.1(b) of the Industrial Agreement and substituting the words 'between the home depot and'.  They also argued that the words 'place of residence' in cl 5.2.1(a) of the Industrial Agreement is relevant to the calculus of distance rather than the depot manager's assessment of an employee's ability to use public transport.  In particular, the words 'place of residence', as they appear in cl 5.2.1(a), do not import a requirement for the depot manager to consider whether an employee is able to use public transport from his place of residence to the other depot.

17      The PTA argued that:

(a) it is unlikely to the point of remote that an employee will ever have public transport available on the doorstep of their place of residence;

(b) the depot manager's decision must be a reasonable one and, to that end, the depot manager is required to turn his or her mind to identifying a location (eg the home depot) from which to assess an employee's ability to use public transport to travel to and from the other depot;

(c) clearly an employee is not required to attend the home depot, particularly if public transport is available from an employee's place of residence to the other depot.  Yet, an employee cannot claim the higher rate of the allowance if the employee is unwilling to take public transport where available from the home depot to travel the extra distance; and

(d) it is said that it is the custom and practice of all depot managers to assess an employee's ability to use public transport from at least the home depot.

18      In the PTA's written submissions, they used the facts giving rise to Mr Olynyk's application in the Industrial Magistrate's Court to illustrate what they say is the effect of the interpretation of cl 5.2.1(b) of the Industrial Agreement.

19      The PTA put an argument that in answering question 2 when deciding whether an employee is reasonably able to use public transport to travel to and from the other depot, the depot manager:

(a) is entitled to treat as 'public transport' a timetabled Transperth Train Operations service departing from or ending at the employee's home depot; and

(b) a timetabled Transperth Train Operations service includes a service that rail car drivers are aware of and is 'timetabled' in the sense that it is timed to allow a stop at the other depot.

(b) The union's submissions

20      The union also filed written submissions on 20 March 2017.  In its written submissions, it pointed out that in the dispute between the PTA and the union in the interpretation of cl 5.2.1(b) of the Industrial Agreement two points of friction arise.  The first point between the parties is what is meant by the words 'public transport'.  The second point is:

(a) whether the depot manager has to be reasonably satisfied that the relevant employee can use public transport to get from their place of residence to the foreign depot (and return); or

(b) whether the depot manager has to be reasonably satisfied that the relevant employee can use public transport to get from their home depot to the foreign depot (and return).

21      The union argued that the opening words in cl 5.2.1 which provide 'When an employee is required to commence and conclude a shift at a metropolitan depot other than the home depot to which the employee is stationed, the following shall apply', make it clear that the employee is not required to travel from their place of residence to the home depot and then on to the foreign depot, instead, the employee is to travel directly from their place of residence to the foreign depot.

22      The union put a submission that cl 5.2.1(a) reveals a lot about cl 5.2 of the Industrial Agreement, and the intention of the parties who made the agreement:

(a) firstly, cl 5.2.1(a) provides that an employee is entitled to be paid an allowance where the distance from the employee's place of residence to the employee's home depot is greater than the distance from the employee's place of residence to the foreign depot;

(b) secondly, the provision provides that the employee's entitlement to the allowance will be pegged to each extra kilometre that the employee needs to travel in order to get to and from the foreign depot as opposed to what the employee would have had to travel if they were instead required to start work at their home base; and

(c) thirdly, the provision explains that the purpose of the allowance is to compensate the employee for the extra cost and time that the employee will incur by having to travel a greater distance to start work.  The allowance is therefore there to benefit the employee, not the employer.

23      The union pointed out that cl 5.2.1(b) provides the rates at which an employee will be paid for each extra kilometre that they have to travel when they are required to start and finish work at a foreign depot.  If the depot manager at the employee's home depot is reasonably satisfied that the employee is not reasonably able to use public transport to travel to and from the foreign depot, the employee is paid at a rate of $1.72 for each extra kilometre that the employee has to travel to get from their place of residence to the foreign depot (and return).  If the depot manager is reasonably satisfied that the employee can use public transport then the employee gets paid at half that rate.

24      The union contended that the words 'public transport' in cl 5.2.1(b) should have their ordinary meaning.  It says the plain and ordinary meaning of the words means transport (such as buses and trains) which is available to and accessible to the public and travels on fixed routes.

25      The union's submission also addressed the factual circumstances in the application which relate to Mr Olynyk.  The union argued that in the circumstances set out in the application it is not possible to use public transport to get to the PTA's Nowergup depot.  This they said is because there are no transport services that are available to the public that go to the Nowergup depot.  The PTA's working timetables do not list Nowergup depot as a timetabled stop and whilst a PTA rail car may travel from Clarkson or Butler train stations to Nowergup depot, that leg of the trip is not accessible to the public.  Thus, they argued travel to Nowergup depot could not accurately be described as public transport for the purpose of cl 5.2.1(b) of the Industrial Agreement.

26      The union also argued that there is a degree of ambiguity in cl 5.2.1(b) as it speaks about the use of public transport to travel to and from the foreign depot.  They point out the foreign depot is only one location in the calculation and the provision does not expressly state what the other location is.

27      The union argued that cl 5.2.1(b), properly read, means that the employee needs to reasonably be able to:

(a) on the trip to the foreign depot catch public transport from the employee's place of residence to the foreign depot; and

(b) on the trip from the foreign depot catch public transport from the foreign depot to the employee's place of residence.

28      The union contended that this construction is supported by the opening words in cl 5.2.1 which provides that the clause only applies where the PTA does not want the employee to start and finish work at that employee's home depot.  It follows therefore that cl 5.2.1(b) does not require the employee to use private transport to get to their home depot before starting their shift and then to catch public transport from their home depot to the foreign depot (and vice versa on the return trip).

29      The unions also argued that there is no express or implied requirement in cl 5.2.1(b), or anywhere else in the Industrial Agreement, that requires an employee to travel by private transport to their home depot before they can become entitled to the allowance referred to in cl 5.2.1 of the Industrial Agreement.

30      In answer to the questions proposed by the PTA, the union said:

Question 1

The answer to question 1 is no. This is because subclauses 5.2.1(b)(i) and (ii) require the Depot Manager to base his or her decision on the employee's ability to use public transport to travel between the employee's usual place of residence and the depot where the employee will be temporarily be [sic] working.

Question 2

The answer to question 2 is yes, but only if the timetabled Transperth Train Operations service is a service that can be used by the public. This is because a timetabled Transperth Train Operations service that is not accessible by the public does not fall within the plain and ordinary meaning of the words 'public transport'.

31      In the circumstances, the union contended that the Commission should not vary the wording of cl 5.2 of the Industrial Agreement and that a declaration about the proper interpretation of cl 5.2 would be sufficient to cure any ambiguity that might exist in the clause.

Reasons for decision at first instance

32      After very briefly summarising the submissions made on behalf of the parties, the learned Commissioner referred to the fact that the application by the union was made against the background that there are proceedings before the Industrial Magistrate's Court (which have not been heard) dealing with a dispute which is on all fours with the dispute before the Commission, including that the 'Facts Giving Rise to the Application' (which the applicant is obliged to provide under reg 52(1)(b) of the Regulations) are the facts that will be considered by the Industrial Magistrate's Court.

(a) The union's application to dismiss

33      The learned Commissioner then found that s 46(3) of the Act is a complete answer to the union's application to dismiss under s 27(1)(a)(ii) and s 27(1)(a)(iv) of the Act.  In making this finding, he found:

(a) Parliament has decided that, insofar as the interpretation of awards (as defined by s 46(5) of the Act) is concerned, what the Commission says goes.

(b) Some of the reasons why Parliament has so provided may be the Commission:

(i) is a specialist tribunal and has better knowledge of practical considerations and industrial realities affecting the parties before it than a court may do;

(ii) is charged with declaring the 'true' interpretation of awards;

(iii) may play an inquisitorial role if it chooses to do so; and

(iv) is not bound by the rules of evidence.

(c) The Commission is, Parliament evidently considers, best placed to get to the bottom of what parties meant by words included in relevant industrial instruments.

(d) It can hardly be undesirable or an abuse of process for the Commission to play the role Parliament has given it even, or perhaps especially, when it is known that its decision will impact on extant proceedings elsewhere.

(e) The learned Commissioner considered that he is providing the assistance to the Industrial Magistrate's Court which Parliament says he might rather than inappropriately cutting across that Court's jurisdiction.

(b) Determination of the interpretation of cl 5.2.1 of the Industrial Agreement

34      The learned Commissioner said the first question to be determined in interpreting the Industrial Agreement is whether the text reveals the intention of the parties or whether the text is ambiguous and regard ought to be had to the evidence of surrounding circumstances.  He then found that cl 5.2.1(b) may seem ambiguous to others, including the parties, but it did not appear to be ambiguous to him.  He observed that:

(a) clause 5.2.1 only arises for consideration 'when an employee is required to commence and conclude a shift at a metropolitan depot other than the home depot to which the employee is stationed';

(b) the circumstance triggering consideration is one where a rail car driver is starting work at a foreign depot; and

(c) unless the clause directs attention to the home depot in some way there is no need, in that circumstance, to bring the home depot into calculations.  The person is not starting work there.  The person is starting work at the foreign depot.

35      The learned Commissioner found that cl 5.2.1(a) does bring the home depot into calculations but only in the limited way there provided; that is, as a factor in the calculation to assess whether an allowance is payable.  Even then the allowance is said under cl 5.2.1(a) to be calculated on 'the extra distance the employee is required to travel' and whether there is an 'extra distance' is to be determined by comparing the distance between the rail car driver's usual place of residence and the home depot and the distance between rail car driver's usual place of residence and the foreign depot.  Therefore, the learned Commissioner found that cl 5.2.1(a) invites a comparison which assumes that there will be travel from a rail car driver's usual place of residence to a foreign depot and consequently the relevant locations are the rail car driver's usual place of residence and the foreign depot.

36      Turning to cl 5.2.1(b) he found that:

(a) there is no need whatever, to understand the subclause and how it operates, to, as a matter of course, think about the home depot as a relevant location; and

(b) rail car drivers will in the expected event go from their usual place of residence to the foreign depot and back for the commencement of, and at the conclusion of, their working day.  They are the locations which are travelled to and from and accordingly it is those locations which are evidently to be considered under cl 5.2.1(b).

37      Even if the learned Commissioner had found there was ambiguity in cl 5.2.1(b) and he had regard to surrounding circumstances, he found the clear effect of Mr Mark Maciek Wirski's evidence was that the home depot is not always, or even as a rule of thumb, considered to be a relevant location under cl 5.2.1(b).

38      The learned Commissioner found whether an employee is reasonably able to use public transport to travel to and from his or her usual place of residence to a foreign depot will only be able to be decided on a case by case basis and what is reasonable will depend on the circumstances.  He then made a number of observations which he said could only be meant as a rough guide with the answer depending on the circumstances of the particular case under consideration.  These were as follows:

(a) If a bus does not stop at the door of a rail car driver's usual place of residence this does not mean he or she is not reasonably able to use public transport to get to and from the foreign depot.  A rail car driver would, in the ordinary event, be reasonably able to use public transport where access to it is reasonably proximate to his or her usual place of residence.

(b) Simply because a rail car driver would have to backtrack to their home depot to get to a foreign depot by train does not mean he or she is not reasonably able to use public transport to get to a foreign depot.  There may be a bus stop within walking distance which takes the rail car driver to a train station from which the foreign depot may be reached before the rail car driver's start time.

(c) Short car journeys to park and ride facilities, or a person being dropped off at public transport, do not necessarily rule out a finding that a person is reasonably able to use public transport, especially if this is something a rail car driver ordinarily does to attend their home depot.  In ordinary language, a person will say they get to work on public transport even if they have been dropped off, or driven a short distance, to access it.

(d) It would be unreasonable, without more, in terms of the quantum of the allowance paid, for a rail car driver who normally drives to his or her home depot for work to drive past his or her home depot, where a train is waiting or coming which would get him or her to the foreign depot on time, on his or her way to a foreign depot.

39      The learned Commissioner then found that he did not wish to decide specific factual circumstances and did not intend to do so, they being obviously multitudinous.

40      Turning to the consideration of what 'public transport' means in cl 5.2.1(b), the learned Commissioner referred to the argument made in respect of Nowergup depot and observed that the circumstances that arise at that depot is that only rail car drivers can embark and disembark a train at Nowergup depot and other passengers, while physically able to do so, are not permitted to embark and disembark there.

41      The learned Commissioner found that the words 'public transport' include trains operated by the PTA which run through the Nowergup depot and that rail car drivers who use such trains to get to Nowergup depot use public transport to do so.  In making this finding, he rejected the union's submission about the meaning of public transport and found that to do so he would have to ignore everything that has ever been decided in relation to the correct interpretation of industrial instruments and accept, as having an important role in the arena, the dark arts of sophistry.

42      The learned Commissioner then answered the questions asked in the notice of application in light of his reasons as follows:

(l) Not as a rule but circumstances may arise where that is appropriate depending on the facts;

(2) Yes.

43      He then declared that the true interpretation of cl 5.2.1(b) is as follows:

That in considering whether an employee is reasonably able to use public transport to travel to and from a depot other than the employee's home depot under clause 5.2.1(b) the depot manager of the employee's home depot shall consider as the relevant locations the employee's usual place of residence and the other depot.

Grounds of appeal

44      The union's grounds of appeal are set out in a further amended schedule filed on 9 June 2017.  These are as follows:

1. The Commissioner erred in law in dismissing the RTBU's section 27(1)(a) application.

Particulars

i. The Commissioner acted on a wrong principle by finding in paragraph [22] of his reasons for decision that section 46(3) was a 'complete answer' to the RTBU's section 27(1)(a) application.

ii. The Commissioner acted on a wrong principle by finding in paragraph [27] of his reasons for decision that the Commission's role under section 46 of the Act was to provide 'assistance to the Industrial Magistrate's Court'.

iii. The first amended ground of appeal is of such importance that in the public interest an appeal should lie. This is because there have been three recent occasions, including in this case, where the PTA has used a section 46 application to delay or interrupt an application that is before the Industrial Magistrates Court. On each occasion the RTBU has made a section 27(1)(a) application to have the section 46 application dismissed. On each occasion the Commissioner has dismissed the RTBU's section 27(1)(a) application. There is also a fourth, undecided matter currently before the Commissioner where the same argument has arisen. It is likely that the parties will rely on the same type of arguments in the future if the issue is not resolved by the Full Bench.

2. The Commissioner made an error of law in interpreting the words 'public transport' in clause 5.2.1(b) as encompassing locations adjacent to the PTA's railway tracks which are not accessible to the public at large.

Particulars

i. The word 'public' in the term 'public transport' refers to the public at large.

ii. The stop adjacent to the Nowergup Depot is not one where members of the public at large are able to board or alight from a train.

iii. It was erroneous for the Commissioner to find that there is public transport to and from the Nowergup Depot via the PTA's rail network.

3. The Commissioner erred in law by failing to provide adequate reasons about why he declared the true interpretation of clause 5.2.1(b) of the Agreement as:

That in considering whether an employee is reasonably able to use public transport to travel to and from a depot other than the employee's home depot under clause 5.2.1(b) the depot manager of the employee's home depot shall consider as the relevant locations the employee's usual place of residence and the other depot.

Particulars

i. The Commissioner found at paragraphs [55] and [56] of his reasons for decision that the depot manager could treat the relevant locations, for the purpose of clause 5.2.1(b) of the Agreement, as a park and ride facility that is located a short car journey from a person's usual place of residence; and the foreign depot.

ii. Those findings in paragraphs [55] and [56] of the reasons for decision cannot be read harmoniously with the Commissioner's declaration.

4. The Commissioner erred in law in interpreting clause 5.2.1 of the Agreement by finding in paragraphs [55] and [56] of the reasons for decision that a depot manager is entitled to treat a railcar [sic] as being reasonably able to use public transport to travel between that railcar driver's usual place of residence and a foreign depot in circumstances where:

a. there is a short car journey between the railcar driver's usual place of residence and a park and ride facility;

b. where the railcar driver can be dropped off at public transport; or

c. the railcar driver drives their car past their home depot while traveling to or from a foreign depot.

Particulars

i. If a railcar driver has to drive their car from their usual place of residence to a park and ride facility, or has to be dropped off at a park and ride facility by someone else, then that railcar driver could not be said to be using public transport to travel from their usual place of residence to the foreign depot and back again.

ii. Just because a railcar driver drives their car past their home depot while traveling to or from a foreign depot, and there is public transport available between the home depot and the foreign depot, it does not follow that the railcar driver can use public transport to travel from their usual place of residence to the foreign depot and back again.

Orders sought

Primary order sought

B. The Full Bench upholds the appeal and:

i. quashes the declaration made by the Commissioner on 7 April 2017; and

ii. varies the order made by the Commissioner made on 24 March 2017 to instead be that the RTBU's section 27(1)(a) application is upheld and the PTA's application in APPL 11 of 2017 is dismissed.

Alternate order sought

C. The Full Bench upholds the appeal and varies the declaration made by the Commissioner on 7 April 2017 to instead read:

i. The true meaning of the words 'public transport' in clause 5.2.1(b) of the Agreement does not include locations along the PTA's railway network which are inaccessible to members of the general public who are using that railway network.

ii. In considering whether an employee is reasonably able to use public transport to travel to and from a depot other than the employee's home depot under clause 5.2.1(b), the depot manager of the employee's home depot shall consider as the relevant locations the employee's usual place of residence and the other depot.

iii. If an employee needs to use a mode of transport, other than public transport, to travel between their usual place of residence and a foreign depot then that employee is entitled to the higher allowance that is contained in clause 5.2.1(b)(i) of the Agreement.

The parties' submissions on the hearing of the appeal

(a) The union's submissions

45      In ground 1 of the grounds of appeal the union contends that in making the decision to dismiss its s 27(l)(a) application the learned Commissioner acted on a wrong principle by finding:

(a) that s 46(3) was a 'complete answer' to the union's application; and

(b) that the Commission's role under s 46 of the Act was to provide 'assistance to the Industrial Magistrate's Court'.

46      The union concedes that whilst the nature of the power entrusted in the Commission by virtue of s 46 of the Act was a relevant consideration for the learned Commissioner to take into account, it was not a complete answer to the union's application.  It says the jurisdiction of the Commission to determine the PTA's s 46 application was just one of a range of relevant considerations.  It had to be weighed against the union's public interest arguments and the union's claim that the PTA's application was an abuse of process.

47      The union says the learned Commissioner should have balanced each of the following factors:

(a) the PTA was ordinarily entitled to invoke the jurisdiction of the Commission under s 46;

(b) section 46 enabled the Commission to bind the Industrial Magistrate's Court to a particular interpretation of cl 5.2.1 of the Industrial Agreement;

(c) the Industrial Magistrate's Court was also empowered to resolve the interpretation issue between the parties (albeit, not equally empowered);

(d) the PTA's s 46 application amounted to forum shopping and created a duplicity of proceedings;

(e) at the time of the hearing before the learned Commissioner, there were only five weeks to go until the trial in the Industrial Magistrate's Court;

(f) the PTA's s 46 application was going to have a material bearing on the proceedings before the Industrial Magistrate's Court; and

(g) the PTA's s 46 application was going to waste the time and resources of the parties, the Industrial Magistrate's Court and the Commission.  In particular, the s 46 application could not resolve the question that the Industrial Magistrate has to answer as to whether or not it is open for the depot manager to be reasonably satisfied that Mr Olynyk could use public transport to get from his usual place of residence to the foreign depot and back on the two days where he was required to go and work at Nowergup.  That is a factual issue that is not resolved and has not been resolved by the s 46 application.

48      The union also makes a submission that the Commission's role under s 46 is not to provide assistance to the Industrial Magistrate's Court.  This is because the learned Commissioner did not confine himself to making a finding of law about the proper interpretation of the Industrial Agreement.  In his reasons for decision, the learned Commissioner made obiter dicta comments about a range of different factual scenarios and how those scenarios should align with cl 5.2.1 of the Industrial Agreement.  Section 46 of the Act does not empower the Commission to assist the Industrial Magistrate's Court in this way.

49      In these circumstances, the union says if it is persuaded that ground 1 of the appeal is made out then the Full Bench should re-exercise the discretion conferred by s 27(1)(a) of the Act and dismiss the PTA's s 46 application in APPL 11 of 2017.

50      In ground 2 of the grounds of appeal the union says that the learned Commissioner correctly identified that while rail car drivers could board and alight from a train at Nowergup depot, ordinary members of the public could not.  It said that the learned Commissioner erred by ignoring the significance of the word 'public' in the term 'public transport' in cl 5.2.1 of the Industrial Agreement.  It says the word public ordinarily refers to the public at large and given the learned Commissioner's acceptance that the public at large could not board or alight from a train at the Nowergup depot, it was contrary to the plain meaning of the meaning of the words 'public transport' to find that Nowergup depot was accessible via public transport.

51      When it was put to counsel for the union that the declaration made by the learned Commissioner was not a declaration about the true meaning of the words 'public transport' in response a submission was put that this issue was dealt with in the learned Commissioner's reasons for decision and by doing so he has determined the factual dispute which was contrary to what he said in his actual declaration issued in the order.  That is when you are looking at the two locations of the foreign depot and the usual place of residence a person can get to the foreign depot of Nowergup.

52      In grounds 3 and 4 of the grounds of appeal the union argues that the learned Commissioner's declaration, divorced from the reasons for decision, whilst reflecting an accurate interpretation of cl 5.2.1 of the Industrial Agreement, when the declaration is read by regard to what is said in the reasons for decision, the declaration makes no sense, or is plainly wrong.

53      The union points out there is an obligation on the Commission to provide adequate reason for decision.  This obligation includes a requirement that the reasons for decision be clear and coherent.  There are two purposes for this rule.  The first purpose 'is to enable the parties to understand why they have won or lost'.  The second is to 'ensure that decision makers approach their important task with sufficient rigour':  Pemberton v Civil Service Insurance Agency Pty Ltd [2008] WAIRC 01116; (2008) 88 WAIG 1768 [235] - [236].

54      It is said that the learned Commissioner's reasons for making the declaration were not clear or coherent because although the declaration states that the relevant locations for the purpose of cl 5.2.1 of the Industrial Agreement are the rail car driver's usual place of residence and the foreign depot, in his reasons for decision he says that the following locations are relevant for the purpose of cl 5.2.1:

(a) any of the following:

(i) the rail car driver's usual place of residence;

(ii) a park and ride facility that is located a short car journey from a person's usual place of residence;

(iii) a location where a rail car driver can be dropped off; or

(iv) the rail car driver's home depot if the rail car driver drives their car past that home depot on the way to and from the foreign depot; and

(b) the foreign depot.

(b) The PTA's submissions

55      The PTA says there is no merit in ground 1 of the grounds of appeal.  Firstly, the union accepted before the Commissioner at first instance that:

(a) the starting point is that the PTA has a prima facie right to have its s 46 application heard and determined; and

(b) if the Commission was the only entity that possessed the jurisdiction to deal with the industrial matter in issue, then the onus on the union that it is not necessary or desirable in the public interest to have the matter determined would be a heavy one.

56      Secondly, it says the application by it for a true interpretation of the Industrial Agreement was the industrial matter before the Commission.  Thirdly, no other court or body has jurisdiction to make such a declaration.  Section 46(3) of the Act provides that a declaration under s 46 is binding on all courts and all persons.  This will clearly include the Industrial Magistrate's Court.  Fourthly, the Industrial Magistrate's Court has no power or jurisdiction to declare the true meaning of an agreement.  Rather, the Industrial Magistrate's Court can 'enforce' industrial instruments.  This may require an Industrial Magistrate to consider the correct interpretation of an agreement, however, this does not provide any power for the Industrial Magistrate to declare the true meaning of an industrial agreement.  Accordingly, the PTA says the Commission is the only entity that has jurisdiction to deal with the industrial matter raised by the PTA and as such, on the union's own concession, there is a heavy onus on the union to establish why the Commission ought not to exercise its exclusive jurisdiction.

57      It is for this reason that the learned Commissioner was correct to find that s 46(3) is a complete answer to the application.  This is because s 46(3) makes it clear that the jurisdiction of the Commission over such matters is exclusive of all other courts and bodies.

58      The PTA say from a practical perspective, it is also correct that the Commission can provide assistance to an Industrial Magistrate by declaring the true interpretation of the Industrial Agreement.  This is because the Industrial Magistrate will be assisted (as a matter of practicality) by being able to look at a decision of the Commission to find the true meaning of an agreement.

59      The PTA, however, concedes that what has been decided by the learned Commissioner in the declaration is that it only deals with one aspect of the matters of dispute in Mr Olynyk.  However, the PTA says that that simply demonstrates that the jurisdiction of the Industrial Magistrate under s 83 of the Act and the Commission under s 46 of the Act are entirely different as it was a different dispute that was before the Commission under s 46 than the dispute before the Industrial Magistrate's Court.

60      The PTA says the reason why the factual circumstances of Mr Olynyk are referred to in the application is not only because the Regulations require a statement of facts being set out in support of an application, but also because the facts demonstrate the public transport question that has arisen in the matter before the Commission under s 46.  Further, that the facts demonstrate that there is a dispute on the interpretation, but it does not ultimately determine what the interpretation of the provisions of the Industrial Agreement is going to be in relation to Mr Olynyk.

61      The PTA also says that its application has not led to an additional level of proceedings.  It says even if the Full Bench, on an appeal from the Industrial Magistrate's Court, were to make a finding about the interpretation of the Industrial Agreement, that would not have an effect on the operation of s 46(3) of the Act.  As such, a decision would not bind all the courts in the State, so that the respondent could still bring a s 46(3) application before the Commissioner at first instance.  In making this submission, it is said that in those circumstances the Commissioner at first instance hearing the s 46(3) application would most likely follow the interpretation given by the Full Bench on the appeal from the Industrial Magistrate, but it would not necessarily.  There might be other facts and circumstances which can be raised before the Commission on a s 46 application which are not admissible before the Industrial Magistrate because it is only the matters in dispute between the parties in the case which the Commission might then decide that the Full Bench had erred.

62      The PTA says that whilst s 46(3) is the complete answer to the union's s 27(1)(a) application, it also says there is another reason why it was almost inevitable that such an application be dismissed.  These are:

(a) on an application to the Industrial Magistrate's Court to enforce an industrial instrument the Court may impose a penalty on the employer; and

(b) if the learned Commissioner summarily dismissed the PTA's interpretation application then, whilst the PTA waited for the Industrial Magistrate's Court claim to be dealt with, it would be left with one of two undesirable choices.  It would either choose to suffer the oppression of being forced to apply the union's interpretation of the Industrial Agreement (which the PTA necessarily believes to be erroneous) or it would continue to apply its own interpretation on pain of facing further possible penalties at the hand of the Industrial Magistrate's Court for continuing breaches of the Industrial Agreement.

63      Once this matter is taken into account and understood, it can be seen that the approach taken by the PTA in this case was in fact an approach of a model employer, to ensure the meaning of the Industrial Agreement is clarified as soon as possible, and to ensure it does not breach (or continue to breach) the Industrial Agreement.

64      In respect of ground 2 of the grounds of appeal which is directed at the true meaning of 'public transport', the PTA says it is implicit in the findings made by the learned Commissioner in his reasons for decision that he declared what the true interpretation of 'public transport' is.  However, if the Full Bench was to find that the observations made by the learned Commissioner do not amount to a declaration of the true interpretation of the meaning of 'public transport' within the meaning of cl 5.2 of the Industrial Agreement, then the observations made in relation to the meaning of 'public transport' are not appealable and ground 2 is an incompetent ground of appeal.  If that proposition is not accepted, then the PTA says that the learned Commissioner correctly found that the ordinary meaning of the term 'public transport' means 'trains accessible to the public'.  It is not the case, the PTA says, that the learned Commissioner found that there is public transport to and from the Nowergup depot.  Rather he found that when a rail car driver uses trains that are available to the public in order to alight at Nowergup depot, they are using public transport.  This finding, it is said, is correct for two reasons.  First, the phrase 'public transport' on its ordinary meaning means transport that is available to the public.  In this case the union does not contend that the trains used by rail car drivers when accessing Nowergup depot are not available to the public, nor could it do so, as that would be contrary to the evidence.  The union's contention that, despite the fact that members of the public are able to use the transport which the rail car drivers are using to get to Nowergup depot, the transport somehow becomes something other than public transport when the train arrives at Nowergup depot.  It is not a correct interpretation.  To adopt such an interpretation would be to divorce the word 'public' from 'transport'.  Secondly, the PTA says the learned Commissioner was also correct when the true interpretation of the clause is considered taking into account the objective intention of the parties.  It is said that the clause is intended to compensate a rail car driver for the extra time and distance that he or she is required to travel to a foreign depot.  If the union's construction was accepted, then even where a rail car driver was reasonably able to use a train operated by the PTA to get from their home depot in Mandurah to a foreign depot (being Nowergup), they would receive double the allowance to compensate them for the extra time and distance to travel despite the fact that they could obtain free (and convenient) transport on the publicly available trains that will stop at Nowergup depot for rail car drivers.  Thus, it is said the objective intention of the parties is that there would be no need for double the allowance to be paid in those circumstances, given that the rail car driver can easily access free and convenient public transport.

65      The PTA says that ground 3 of the grounds of appeal is without merit.  First of all they say that the ground is meaningless because the union attacks the declaration made by the learned Commissioner as to the true meaning of cl 5.2.1(b) on the basis that the learned Commissioner gave inadequate reasons, however, the union ultimately seeks for the Full Bench to declare the true interpretation of cl 5.2.1(b) in the same manner as the learned Commissioner so declared.  Thus, they say there is no utility in the Full Bench considering this ground of appeal.

66      The PTA also point out that the ratio of the reasons for decision is a finding that is whether an employee is reasonably able to use public transport will only be able to be decided on a case by case basis and what is reasonable will depend upon all the circumstances.  In making observations that there may be other relevant locations, such as for example the park and ride facility where a driver may be dropped off at to use public transport, are obiter observations which are not appealable.  Further, in any event, at its highest, all the learned Commissioner is saying is that in certain circumstances it might be appropriate for the depot manager to consider whether or not the rail car driver can take a short car journey to a park and ride facility when considering if the rail car driver is reasonably able to use public transport.

67      The PTA makes a similar submission in relation to ground 4 of the grounds of appeal.  It says that ground 4 is based on an incorrect assumption regarding the finding of the learned Commissioner.  All the learned Commissioner did was to make obiter observations.  Obiter observations, it is said, are not a decision within the meaning of s 49 of the Act so there is no jurisdiction of the Full Bench to consider the matters raised in ground 4.

Public interest - findings

68      When considering whether the matter is of such importance that in the public interest an appeal should lie, the principles are well established.  In Rainbow Coast Neighbourhood Centre Inc v Wood [2011] WAIRC 00821; (2011) 91 WAIG 1831, the Full Bench observed in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873 it was settled by a Full Bench unanimously [24]:

[T]hat the words 'public interest' are not to be narrowed to mean 'special or extraordinary circumstances'. An application may involve circumstances which are neither special nor extraordinary. It may involve circumstances which, because of their very generality, are of great importance in the public interest. Each matter will be a question of impression and judgment whether the appeal has the required degree of importance. Also important questions that may have effect in other industries, and substantial matters of law affecting jurisdiction, can give rise to matters of sufficient importance in the public interest to justify an appeal:  Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 (Ritter AP) [13] - [14].

69      I am of the opinion that the appeal against the decision dismissing the union's application is of sufficient importance it is in the public interest an appeal should lie.  This is because the appeal raises important questions of law going to the jurisdiction of the Commission to interpret an 'award' (including an industrial agreement) pursuant to the power conferred by s 46 of the Act and the power of the Industrial Magistrate's Court to enforce an award, industrial agreement or order pursuant to s 83 of the Act.

Scope, purpose and function of applications brought under s 46 and s 83 of the Act - two specific powers

(a) Application for enforcement - s 83 of the Act

70      Much has been written about the scope and purpose of the exclusive jurisdiction of the Industrial Magistrate's Court to enforce an industrial instrument including awards and industrial agreements brought under s 83 of the Act.

71      Pursuant to s 83(3) and s 81CA(1) of the Act, an application for enforcement comes with the general jurisdiction of an Industrial Magistrate's Court.  An application of this kind cannot be made to the Commission.  Section 83 applications are civil penalty proceedings whereby a penalty may be imposed on a person found to have contravened an industrial instrument (s 83E).  Orders can also be made against an employer requiring payment of any amount found to have been underpaid to an employee (s 83A).  When hearing a matter under s 83, the Industrial Magistrate is bound by the rules of evidence.  The powers, practice and procedure to be observed by an Industrial Magistrate's Court when exercising general jurisdiction are those provided for by the Magistrates Court (Civil Proceedings) Act 2004 (WA) as if the proceedings were a case within the meaning of that Act.

72      An enforcement of an industrial instrument requires a finding being made by an Industrial Magistrate's Court of an actual contravention or failure to comply with an industrial instrument.  Where a contravention is proved, the Industrial Magistrate's Court may provide relief in the nature of injunctive relief to prevent any further contravention or failure to comply (s 83(5)).  The Industrial Magistrate's Court can also make an interim order under s 83(5) (s 83(7)).

73      Consequently, the purpose of the Industrial Magistrate's Court proceedings brought pursuant to s 83 of the Act is to determine whether a pre-existing legal obligation or entitlement (by operation of a provision in an industrial instrument) has been breached.

74      Claims for the enforcement of existing legal rights necessarily invoke the exercise of judicial power:  Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656, 666; Re Cram; Ex parte The Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140; Re Cram applied in Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623.

(b) Interpreting an industrial agreement - general principles of interpretation

75      In determining whether a party to proceedings has contravened or failed to comply with a provision of an industrial instrument, an Industrial Magistrate's Court must necessarily interpret the provisions of an industrial agreement in accordance with the principles that apply to the interpretation of industrial agreements:  Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1.  These principles are also to be applied by the Commission when hearing and determining an application for the true interpretation of an award as defined under s 46 of the Act, which includes an industrial agreement.

76      In Health Services Union of Western Australia (Union of Workers) v The Director General of Health [2012] WAIRC 01117; (2012) 93 WAIG 1, Beech CC and I observed that [38] - [40]:

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).

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.

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.

77      These observations were applied by the majority of the Full Bench in United Voice WA v Director General, Department of Education [2013] WAIRC 00053; (2013) 93 WAIG 80 [53].  In that matter, Beech CC and I observed that [52]:

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]).

78      In an appeal to the Industrial Appeal Court against the decision of the Full Bench, the Industrial Appeal Court found the Full Bench had erred in construing the provision of the industrial agreement in question, but did not find error with the analysis of the principles to be applied when interpreting an industrial agreement:  Director General, Department of Education v United Voice WA.  Justice Pullin, with whom Le Miere J agreed [18] - [22]:

(a) affirmed the application of the principle in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40] and Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22];

(b) applied the principle in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 requiring ambiguity before regard could be had to surrounding circumstances;

(c) had regard to the principle in Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 that a phase must be construed in the context of the agreement read as a whole; and

(d) had regard to the principle that industrial agreements are not always framed with that careful attention to form and draftsmanship which one expects to find in an Act of Parliament:  George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498, 503.

79      In Re Harrison; Ex parte Hames [2015] WASC 247 Beech J summarised the general principles that apply to construction of contracts and other instruments.  At [50] - [51] he said:

The general principles relevant to the proper construction of instruments are well‑known. In summary:

(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;

(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;

(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;

(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;

(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and

(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation (Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ); Kidd v The State of Western Australia [2014] WASC 99 [122]; Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106] - [112]; Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 [55] (Martin CJ, Pullin & Murphy JJA agreeing)).

These general principles apply in the construction of an industrial agreement (Director General, Department of Education v United Voice WA [2013] WASCA 287 [18] - [20] (Pullin J, Le Miere J agreeing), [83] (Buss J)). The industrial character and purpose of an industrial agreement is part of the context in which it is to be construed (Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ and McHugh J); Director General v United Voice [81]; see also Amcor v CFMEU 66 (Kirby J), 129 - 130 (Callinan J)).

80      Thus, it appears clear that, in interpreting industrial agreements, they are:

(a) to be interpreted generously;

(b) drafted without the careful attention given to the form of a statutory instrument;

(c) enforceable at law within a statutory context and a person bound cannot be freed or discharged from any liability or penalty or from the obligation by reasons of any contractual provision (s 114(1) of the Act); and

(d) to be interpreted in light of the context of the industrial character and purpose of an industrial agreement not divorced from industrial realities in the industry to which an industrial agreement extends.

(c) Applications for a true interpretation of an industrial agreement - s 46 of the Act

81      Section 46 of the Act provides:

(1) At any time while an award is in force under this Act the Commission may, on the application of any employer, organisation, or association bound by the award —

(a) declare the true interpretation of the award; and

(b) where that declaration so requires, by order vary any provision of the award for the purpose of remedying any defect therein or of giving fuller effect thereto.

(2) A declaration under this section may be made in the Commission's reasons for decision but shall be made in the form of an order if, within 7 days of the handing down of the Commission's reasons for decision, any organisation, association, or employer bound by the award so requests.

(3) Subject to this Act, a declaration made under this section is binding on all courts and all persons with respect to the matter the subject of the declaration.

(4) Section 35 does not apply to or in relation to this section unless an order is made under subsection (1)(b) or under subsection (2).

(5) In this section award includes an order, including a General Order, made by the Commission under any provision of this Act other than this section and an industrial agreement.

82      Little has been written in Western Australia for many years about the scope, purpose and effect of the power of the Commission conferred by s 46 to declare the true interpretation of an 'award' as defined in s 46(5).

83      When one delves into the history of interpretation of s 46 and its predecessors in the Industrial Arbitration Act 1912 (WA), it emerges that the purpose of s 46 is to determine the objective intention of the parties as it is embodied in the words they have used.  This may involve ascertaining whether an ambiguity arises in a provision in an award and, if so, to then examine the surrounding circumstances of the conditions of the relevant industry at the time of the making of the award (or in the case of an industrial agreement, the entering into the industrial agreement) to ascertain the true intention of the provision.  If no ambiguity is raised, no inquiry is necessary.  However, regard cannot be had to surrounding circumstances to determine if an ambiguity arises:  Director General, Department of Education v United Voice WA [19] (Pullin J).  If an ambiguity is raised and if after inquiry a defect emerges revealing the true meaning is not reflected in the words used in the provision in question, then pursuant to s 46(1)(b) the Commission is empowered to remedy the defect or to amend the provision to give fuller effect to the true meaning.

84      Section 88 of the Industrial Arbitration Act 1912 in 1941 provided:

With respect to every Award the Court by order at any time during the term of the Award may declare the true interpretation of the Award and shall have power to amend the provisions of the Award for the purpose of remedying any defect therein or of giving fuller effect thereto.

85      In 1941, a predecessor to the Full Bench of this Commission, the Court of Arbitration of Western Australia, held that the Court in a proper case should exercise its power of interpretation irrespective of whether the Industrial Magistrate's Court or any other court had under its consideration any case or cases involving applications for enforcement in which the construction or interpretation of a provision of an award was involved:  The Commissioner of Railways v West Australian Locomotive Engine Drivers, Firemen's and Cleaners' Union of Workers (1941) 21 WAIG 451.  In that matter, the majority of the Court found in the matter before it the parties had not drawn any attention to any ambiguity, latent or otherwise, in the clause in question (451).  The question put to the Court asked not for an interpretation of the award, but for a decision on certain facts upon which the Industrial Magistrate had already delivered a decision that the Commissioner of Railways was not satisfied and the proper remedy was by way of an appeal from the Industrial Magistrate's decision.

86      In 1984 in the often cited decision of the Industrial Appeal Court in Norwest Beef Industries Ltd v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124, as the principles that apply to the construction of the terms of an award, the matters before the Court concerned appeals against a decision of the Full Bench in respect of two applications made pursuant to s 46 of the Act to the true interpretation of provisions in two meat industry awards before Martin C.  At the time the appeals to the Court were heard, s 90 of the Act provided appeals from a decision of the Full Bench could only be made on the ground that the decision is erroneous in law or is in excess of jurisdiction.  In that context, Olney J observed (2130):

Without intending to unnecessarily add to the volume of judicial and other opinion that has been expressed over many years concerning the function of section 46 and its equivalent provisions in previous State and counterpart Federal legislation, it is appropriate at this stage to observe that in view of the limited appellate jurisdiction of this Court these appeals are only competent if in the facts of the particular case the declaration of the true interpretation of the awards in question involves a question of law. It has not been suggested on either side that the case is otherwise and for that reason and also in view of the conclusion I have reached, it is neither appropriate nor necessary for me to enter upon a consideration of whether a question of law is in fact involved. It is sufficient to say that I am by no means convinced that on every occasion an application for the declaration of the true interpretation of an industrial award will necessarily involve a question of law entitling a dissatisfied party to take the matter through the appellate structure ultimately to this Court. There is some authority to suggest that the jurisdiction of the Commission pursuant to section 46 is at least in part arbitral in nature and indeed I can imagine circumstances where the only real function to be performed upon an application for a declaration as to the true interpretation of an award would be fact finding, and this would be particularly so in cases where the meaning of terms or the established custom and usage in an industry are in issue.

87      After considering the arguments put on behalf of the parties, the majority of the Court dismissed the appeals after finding the Full Bench had correctly stated the relevant principles of law and there was no ambiguity in the relevant provisions of the awards.

88      In the decision of the Full Bench that was the subject of the appeal to the Industrial Appeal Court in Norwest Beef, O'Dea P and Collier C in a joint judgment set out at some length the approach to the interpretation of an award under s 46 of the Act that had been established since the enactment of the power to do so was conferred upon the Court of Arbitration by s 88 of the Industrial Arbitration Act 1912:  Derby Meat Processing Co Ltd v West Australian Branch, Australasian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 862.  At (864 - 865) O'Dea P and Collier C found:

It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties. Furthermore the strict rules do not permit construction of any document by having regard to acts done under it, see Seamen's Union of Australia v. Adelaide Steamship Co. Ltd. and Others 46 F.L.R. 444 applying; L. Schuler A. G. v. Wickman Machine Tool Sales Ltd (1973) 2 All E.R. 39. See also Amalgamated Engineering Union v. Adams and Co. Pty. Ltd. and Others 24 C.A.R. 63 at 67.

There are normally limitations on the permissible extent of considering matters extraneous to the award. The following are examples:—

We have referred to the provisions of the relevant clauses of the award and examined also the terms of the judgment accompanying it to see what the nature and circumstances of the industry were to which the clauses were addressed and what was the object appearing from the nature and circumstances of the industry which the tribunal in framing those clauses had in view. This is an authoritative and sound method of approach to the question of the proper interpretation of an award regulating the conditions of employment of employees in an industry as complex as iron and steel making. It should be pointed out, however, that nothing that has been said would justify a meaning being given to the words that they are not capable of bearing. (In re Iron and Steel Works Employees (Australian Iron & Steel Limited) Award (No. 2) [1943] 42 A.R. 462 at 470.)

Again—

Where a provision has appeared in an award or succession of awards for a lengthy period of time and been acted upon without challenge by parties in a certain manner then if the award is reasonably capable of bearing such a meaning the Court ought in the normal course to adopt it as its proper meaning. (O'Donnell v. Walter Buchanan Limited (1947) N.Z.L.R. 906 at 910.)

It is not without precedent, of course, for this Commission to treat a long held practice as expressing the true intention of an award but we think the fundamental rules of construction are normally applied unless it is necessary to seek out and apply the true meaning because the award when read is ambiguous or susceptible of more than one meaning. This was the approach followed by the first President of the Court of Arbitration when speaking of the equivalent to section 46 of the present Act by which equivalent the Court was empowered to 'declare the true interpretation of the award, and shall have power to amend the provisions of the award for the purpose of remedying any defect therein or giving fuller effect thereto'.

The President said:—

A perusal of section 88 of the Act above quoted will show that in an interpretation case this Court is exercising not only its judicial but also its arbitral functions, and consequently where there is in an award any doubt or uncertainty or ambiguity as to any of its provisions, or when there has been an accidental omission or where something has been inserted in error, the Court is entitled to look into the whole of the surrounding circumstances and explore what avenues it may deem necessary even to the extent, where desirable, of appointing experts to investigate and report, in order to ascertain the true intention and to remedy a defect in the award; provided always, of course, that a specific provision of the award to which the foregoing does not apply may not be altered. (The Chief Secretary and the Hospital Employees' Industrial Union of Workers of W.A. (Coastal Branch) 11 W.A.I.G. 105 at 106.)

Twenty years later Jackson J. the then President, said:—

1. Normally speaking, an Award is interpreted by reading the document itself and giving to the words used their ordinary commonsense English meaning. If, when this is done, there is no doubt or ambiguity, then the obvious meaning is the one which is to be given to the words used. Occasionally a rare case may arise where it may be shown that there has been some slip or error in the wording used and, if this is demonstrated clearly, then undoubtedly the error should be corrected.

2. If, upon the reading of the Award any provision is susceptible of more than one meaning, then it is the duty of the Court to seek and apply the true meaning. For this purpose regard may be had to the history of the Award and the circumstances and conditions of the industry at the time it was made. Regard may also be had, in my opinion, under the provisions of section 90 of the Act, to whatever can be ascertained to have been the true intention of the award-making tribunal. I mention section 90 in this connection because that is the section which authorises the Court to declare the true interpretation of an Award and in the same section the Court is empowered to amend the Award for the purpose of remedying any defect therein or of giving fuller effect thereto. The granting of these powers presupposes that an award may not have properly expressed the Court's true intention.

3.Where the Award being interpreted is one which has been made by the Court itself and made at a time when the members of the Court were the same as those constituting the Court at the time the interpretation is sought, there should in general be little difficulty in the Court ascertaining from its own files and records what was intended. If then the Award has not expressed what the Court knows to have been its true intention, it is just and equitable that the true intention should immediately be made known and, if necessary, the Award amended accordingly. In doing so, the Court departs from the normal principles of interpretation of documents as applied by the civil Courts but it does so because, in my opinion it is empowered to do this by the legislature and the whole spirit of the Act under which this Court operates is that technicalities should be avoided and justice and equity should be done.

4. Where, however, the Court is interpreting an Award made by some other industrial tribunal (such as a Conciliation Commissioner or an Industrial Board) or made by the Court itself, but by the Court as constituted by previous occupants of the Bench, it is not so easy for the Court to ascertain the true intention of the tribunal which made the Award. Where the Award was made by a tribunal still in existence and readily available, the Court can take advantage of paragraph (vi) of section 71 and refer the question to that tribunal for a report. Where the Award was made by a differently constituted Court then, in the absence of any clear expression of intention such as might appear on the transcript particularly at the time of the speaking to the minutes of the Award, the Court interpreting the Award can in general only apply the normal rules of legal interpretation. (The United Furniture Trades Industrial Union of Workers, Perth, W.A. v. Dale Manufacturing Co. Pty. Ltd. and others 30 W.A.I.G. 539 at 540.)

In our respectful opinion where it is necessary to seek the true meaning of a provision susceptible of more than one meaning departure from normal principles of interpretation is not necessarily involved.

Nevile J., as President, may be thought to have gone somewhat further in Field Construction Co. v. The Boilermakers' Society of Australia, Union of Workers, Coastal Districts 41 W.A.I.G. 990 where in part of his judgment he said:—

That then raises the question as to how we should now interpret the Award. Normally, once the meaning of the words 'outside work' in this industry is ascertained from the evidence to be work away from the workshop or its vicinity, there would seem to be little ambiguity in the remainder of the clause, so one would feel impelled to give to the words their ordinary meaning. But in this case the clause has to the knowledge of all parties, been applied in a much more restricted sense. It is clear that in 1938 and also as, I think, in 1951, both the employers and the Unions assumed that the clause only applied to workers sent to an outside job and to those picked up on that job. It follows, I think, that when the parties in 1954 agreed to the insertion in the current Award of a clause in words identical with those in which the similar provision in previous Awards had been expressed, they could not have intended the clause to operate in a manner differing from that in which it had previously operated over such a long period. At the risk therefore of doing some violence to the words in which the clause is expressed, I would interpret the clause as if the words 'sent to' were substituted for the words 'engaged on'. After all, as Isaacs J. pointed out in Pickard v. John Heine & Son Ltd. (1924) 35 C.L.R. at p.6, an industrial tribunal when interpreting an Award, is acting in an arbitral rather than a purely judicial function, and should therefore attempt to interpret the Award in a sense best fitted to carry into effect the intention of the Award making tribunal even if such an interpretation in effect amends the Award.

Moreover, in my view, once it is made clear that the words in which an Award is expressed do not correctly express the Court's intention in making the Award, there is a defect in the Award. (See Hospital Employees' Case 11 W.A.I.G. 105.) I should perhaps add that it will be only in very rare cases that the Court can be absolutely sure that a defect of that nature exists as, ordinarily, the Court's intention can be ascertained only from the words it has used in making the Award. But in this case I am so convinced, and as, if this were an application for interpretation we would have authority under section 90 of the Act to cure the defect, I think we should in this application interpret the Award so as to give effect to the intention of the parties and the Court.

Upon reading the awards Martin C. understood their meaning and adopted the interpretation for which the respondent contended and rejected the appellants' argument while finding that such an interpretation was clearly different to that applied to the awards in the practices followed in the industry. There was nothing in the material before him which would compel a different interpretation unless by reference to the general practices which he found operating in the industry, it appears that the words of the awards do not correctly express their intention when they were made, even though they are not susceptible of more than one meaning nor ambiguous in the accepted sense. The appellants relied upon the practice as constituting an accepted custom in the industry but their argument went more to the ordinary meaning of the provisions of the awards than to a new intention to be found outside the words used.

In exercising the Commission's jurisdiction Martin C. was entitled to refer to the sources from which he obtained the history which he recounted including the expressed opinion of Mr Commissioner O'Sullivan. He was not bound by that opinion but what he did ascertain led him to firm conclusions. If those matters be treated for the moment as relevant aids to interpretation a number of things should be noted. The practice of the employers, which in 1972 was affirmed by Mr Commissioner O'Sullivan, was inconsistent with the intention which was expressed in the earlier awards which he issued, as that intention is normally construed, by reading the awards. Furthermore, to the extent the practice of paying penalties to slaughtermen then applied, it was not supported by a literal reading of the relevant provisions. The Commission settled the dispute, including that matter, in 1972 and the employers continued to assess payment for penalties as before but the provisions remained unamended. Yet it is to those provisions the Commission must look to ascertain what was the intention unless the known practice leads to an assumption that something different is agreed upon and intended to be adopted.

It may be possible to construe the inaction of the union over the years as acceptance of the employer's application of the provisions but it does not follow that the union accepted or recognised that such application accorded with the true interpretation.

To ignore the plain meaning because that meaning has not been applied in practice is to go beyond what was done in the Field Construction case (supra) where it was made clear to the Court, because both parties assumed it to be the case, that the words in which the award was expressed did not correctly express the Court's intention and the award was therefore defective.

In our opinion Martin C. had no alternative in these circumstances but to seek the clear expression of intention from the language of the awards. There is ample provision to apply for their amendment.

... It is no part of the duty of the Court in construing an award on an application for interpretation to give it a meaning either with the object of prescribing that which it considers to be proper or for the purpose of carrying out what it supposes to be the intention of the award-making authority unless the words of the award can reasonably bear that meaning. (The Australian Workers Union v. E. A. Abbey and Others 40 C.A.R. 494 at 495.)

89      On appeal from the decision of the Full Bench in Norwest Beef this approach was approved.  Justice Olney said (2133):

If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J. in United Furniture Trades Industrial Union v. Dale Manufacturing Co. Pty. Ltd., 30 W.A.I.G. 539, at p. 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said:

It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties.

In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless.

90      Although Brinsden J was in the minority in Norwest Beef as he found the clause in question in both awards to be ambiguous, his Honour applied the same approach to interpretation of the awards as O'Dea P and Collier C did.  He observed that ambiguity in a document can arise in two circumstances.  Firstly, his Honour found ambiguity can arise from doubt as to the construction in the totality of the ordinary and in themselves well understood English words the parties have employed.  Secondly, his Honour found ambiguity may arise from the diversity of subjects to which those words may, in the circumstances, be applied (2127).  Justice Brinsden then observed the latter is a matter of interpretation of terms which is always a question of fact (2127).  After considering the meaning of the provisions in the award, his Honour found (2127):

In the hope that I have not fallen into the lawyers' trap of seeing difficulties where none exist my view is Clause 12 is ambiguous in a number of respects. Having reached that view it seems to me I am entitled not only to consider earlier awards involving the same parties and the reasons for the making of them, but also the conduct of the parties over the years in the carrying on of their relations to each other pursuant to the earlier awards and indeed under these two awards: see Furniture Trades Award v. Foy and Gibson 30 W.A.I.G. 231; Merchant Service Guild v. Sydney Steam Collier Owners 1 F.L.R. 248 at 251, 254, 256, 257.

91      In other jurisdictions, observations about a similar provision in Commonwealth legislation and the difference between an application for interpretation of an award and proceedings for its enforcement were made by the Full Court of the Federal Court in Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1981] FCA 49; (1981) 54 FLR 358.  Section 110 of the Conciliation and Arbitration Act 1904 (Cth), and later s 51 of the Industrial Relations Act 1988 (Cth), and subsequently s 413 of the Workplace Relations Act 1996 (Cth) provided that the Court may give an interpretation of an award and the decision of the Court is final and conclusive and binding on the organisations and persons bound by the award who have had an opportunity of being heard by the Court.

92      In Master Builders', the Court held that the jurisdiction of the Federal Court to interpret an award did not extend to the determination of the issue of entitlements of a particular employee.  At (360 - 361), Evatt and Northrop JJ found:

The nature of the jurisdiction and powers conferred by s. 110 of the Act are described by Northrop J. in Re Metal Industry Award 1971 (Part II)-Draughtsmen, Production Planners and Technical Officers ((1978) L.B.Co.'s Indus. Arb. Serv., Current Review, p. 543). His Honour drew a distinction between the jurisdiction conferred by s. 110 and the jurisdiction and powers conferred on the court to enforce compliance with an award, c. f. s. 119, s. 122 and s. 123 of the Act. In his reasons for judgment his Honour said:

'The present application, in substance and in form, seeks an order affecting the right of John Valves Pty. Ltd. to deduct payment from the wages payable to a specified employee on specified days. Any order made is binding on each of the organizations and persons bound by the award. The construction of cl. 9(b) of the award is not in dispute, the only issue relates to the finding of facts and the application of the clause to the facts so found. This process does not constitute an interpretation of an award under s. 110 of the Act. It is in the nature of the enforcement of an award.

'Sections 119, 122 and 123 of the Conciliation and Arbitration Act confer jurisdiction on the Court under which a person is able to seek the enforcement of an award. The procedures applicable to proceedings under those sections are different to the procedures applicable to proceedings under s. 110. In proceedings under those sections, the Court is empowered to determine disputed questions of fact and to construe an award. The Court then applies the award as so construed to the facts so found and makes orders necessary to give effect thereto. Any order made, subject to any appeal, is binding on the parties to the proceedings before the Court and forms the basis of an estoppel between those persons' ((1978) L.B.Co.'s Indus. Arb. Serv., Current Review, at p. 545).

93      The Master Builders' decision has been construed as authority for the proposition that in determining an application for interpretation under s 110 of the Conciliation and Arbitration Act and later s 413 of the Workplace Relations Act there is no power to determine factual disputes.  In Barlow v Qantas Airways Ltd, Marshall J in considering an appeal against a decision interpreting the words in an award, 'Where a flight attendant is reinstated or re-employed following a successful appeal against dismissal', certain consequences of being returned to a seniority list were to follow.  At (115 - 116) Marshall J said:

If I am in error in determining that Wilcox CJ correctly interpreted cl 23(a)(ix) of the award and that restoration of the seniority rights of the third respondents was only possible as a result of the re-employment of them following a successful appeal against dismissal, there is insufficient material before the Court to enable a determination as to whether each of the third respondents was 'dismissed'. Whether such 'dismissals' occurred is a contested question of fact which is inappropriate for determination in proceedings under s 413 of the Act: see Printing and Kindred Industries Union v Bendigo Advertiser and Independent Pty Ltd (unreported, Industrial Relations Court of Australia, Gray J, 25 February 1988) where his Honour said at pp 9-10:

'It is no part of the function of the Court, in determining an application pursuant to s 110 of the Act [now s 413], to determine the facts of any particular case. It is therefore unnecessary for me to determine whether any particular employee has reached pensionable retiring age, and to construe that phrase.'

See also Victoria v Australian Teachers Union (1993) 49 IR 149 at 151 where Northrop J said:

'Section 51 corresponds to s 110 of the Australian Conciliation and Arbitration Act 1904. It has been held that the provision is designed to enable the Court to give an authoritative decision on the meaning of an award. Essentially the decision is based upon the proper construction of words used in the award. The construction is to have general application and is not directed to the particular facts of any matter in dispute between parties. At the same time it is necessary for the Court to have some background information to constitute a framework within which the award is to be construed.'

See further Media Entertainment and Arts Alliance v John Fairfax Group Ltd (1993) 49 IR 374 at 375.

Consequently, in the event that I am in error as to the correct interpretation of the award, it would not be appropriate to make a declaration in the terms sought by the appellant. It would be more appropriate to remit the matter to the trial judge to enable him to determine if agreement can be reached on the question as to whether each of the third respondents was dismissed. In the absence of such agreement it would be appropriate for the application to be dismissed on the basis that it essentially seeks enforcement of the award as distinct from an interpretation upon undisputed facts: see Master Builders Association of Victoria v BLF (1981) 54 FLR 358 at 360-362 and Actors Equity v Australian Broadcasting Corporation (1986) 17 IR 393 at 394.

Having regard to the foregoing the order I would make is that the appeal be dismissed.

94      It does not follow from Marshall J's reasoning that the Master Builders' decision or the decision of Gray J in Actors' Equity of Australia v Australian Broadcasting Corporation [1986] FCA 618; (1986) 17 IR 393 are authority for the proposition that an interpretation of an industrial instrument can only be made without regard to any facts found by the decision maker.  It was, however, correct to find as Marshall J did that in Qantas a determination of whether a particular employee had been dismissed was a question of fact relevant to the enforcement of the award.  This distinction was made by Gray J in Actors' Equity.  In that case, controversy had arisen as to whether a member of the union, Mr Larking, was entitled to receive some of the gross revenue from the sale of a documentary pursuant to a provision in an award for 'voice over work'.  An interpretation was sought in relation to the performance of 'voice over work'.  Evidence of what constituted 'voice over work' was heard and considered by Gray J.  At (394 - 395) Gray J said:

It should be understood clearly that, in this proceeding, the court is not called upon to decide any question as to the rights of Mr Larking. In points of defence filed prior to the hearing, the respondent raised the contention that 'the contract the subject of the proceedings was not a contract of employment'. This contention was based on the misapprehension that Mr Larking's rights would be determined in the proceeding. At the hearing, Mr Peterson agreed that the question whether Mr Larking was or was not an employee was not in issue in this case. A proceeding under s 110 would not be appropriate for a determination of the issue of the entitlements of a particular person. See Master Builders Association (Vic) v Australian Building Construction Employees & Builders Labourers' Federation (1981) 54 FLR 358, especially at 360-362.

There can be no doubt that a real controversy exists between the parties as to the proper construction of cl 50 of the award. It is conceded that that clause and cl 47 of Determination No 114 of 1974 are in identical terms in all material respects. The opposing contentions which have been raised in relation to Mr Larking are therefore likely to be raised in relation to other members of the applicant. Such members may wish to know where they stand before accepting offers to perform work of various kinds in relation to television programmes. There would be little point in seeking an interpretation of the determination, even if there were power in the court to give such an interpretation, because, for future purposes at least, the award supersedes the determination (see cl 4 of the award). In addition, it is at least arguable that the rights of persons in Mr Larking's position may depend upon the award, and not upon the determination. On one view of cl 50 of the award, no right arises until a sale to an overseas organisation has been effected; a right is then accorded to each person falling within the clause, as having been engaged as an employee in the original recording of the programme concerned. Mr Peterson informed the court that sales of 'Douglas Mawson — The Survivor' have been made to overseas buyers, both before and after the award came into effect. This fact may give rise to rights under cl 50 of the award, for those employees engaged in the original recording of that programme. It is unnecessary to reach a final determination on this question in the present case. It is enough that the question is arguable. For these reasons it seems to me to be entirely appropriate for the court to exercise its jurisdiction under s 110 of the Act, to give an interpretation of cl 50 of the award in the present case.

The interpretation was sought in relation to the performance of 'voice over' work. The parties differed somewhat as to the meaning to be attributed to this phrase. In an affidavit filed with the application, the federal secretary of the applicant described 'voice over' as work performed by an actor or actress, by recording a spoken narrative to sychronise with visual images, where the narrative is recorded at a different point in time to the visual images and the narrator does not necessarily appear in the visual images. Mr Peterson pointed out that voice over work may be done by a person who is not an actor or an actress, but who may be, for instance, an announcer. He also stated that voice over work is often performed by recording on tape, entirely independently of the visual images; the voice tape is then edited as part of the sound track, and sychronised with the visual images to make the completed programme. Mr Peterson also stated that it is usual that the narrator is not seen in a television programme.

Accepting these differences of view, for the purposes of this case, it can be taken that 'voice over' work includes the recording of a narrative by a person who does not appear in a television programme, but which narrative forms part of the sound track of that programme.

95      Thus, Gray J did not allow any evidence going to the question whether Mr Larking was an 'employee' as defined for the purposes of the award as such a determination of fact was a matter that went to the enforcement of the award provision and was not a matter that should be determined in an application for interpretation.  It is also clear from his Honour's reasons that matters of fact that go to the interpretation of words in an award that are likely to be raised by a group of persons whose conditions of employment are covered by the award, are relevant matters of fact that can be taken into account in determining the meaning of particular words in an industrial instrument.  Such evidence is often matters going to the custom, practice and usage of particular types of work that exist in a particular industry.

96      Similar issues were raised in the Supreme Court of Victoria in Firefair Pty Ltd v Employee Relations Commission of Victoria [1996] 1 VR 446.  In that matter, the union applied to the Employee Relations Commission for a declaration that two of its members belonged to a particular classification under an award.  The Commission granted the application.  The employer applied for a review of the decision on grounds that the application was in substance in the nature of proceedings for enforcement of the award and should have been brought in the Magistrate's Court.  In making this submission, the employer relied upon the reasoning in Master Builders'.  Justice Hansen rejected this argument in Firefair finding that the Commission's power to declare the 'meaning or effect' of an award was wider than a mere power to interpret.

97      Notwithstanding the legislation considered in Firefair is different to the power conferred in s 46 of the Act, Hansen J made some observations that are apposite to the scope, purpose and function of s 46 of the Act.  Firstly, his Honour said (454):

It is important to bear in mind the nature of a declaratory order. Such an order is a declaration of the right of a party. It does not enforce the right, but declares it: see Hasham v Zenab [1960] A.C. 316 (J.C.). If, notwithstanding the declaration, it is necessary to enforce the right, a separate order is required to carry the declaration into effect. In a suit for specific performance, for instance, such an order can be made by the court at the same time as the declaration is made or later if the time for performance of the relevant obligation has not yet arrived. It is no bar to an application for a declaration that it involves the determination of disputed facts.

98      Secondly, his Honour said (456):

Once it is concluded that the application was for a declaration of existing right and that the declaration was within the power in s. 29 there can be no argument that the proceeding was in the nature of enforcement. For that is to argue that in effect the application sought relief which was obtainable only in the Magistrates' Court by way of s. 160. But that was not this proceeding, and it is not to the point that the employees could have chosen to commence such a proceeding in that court.

In its reasons on this aspect of the appeal, the commission seems to have considered it relevant that it was not a court and bound by the rules of evidence and where legal representation was not universal. I am not sure what is meant by these comments and note merely that the conclusion on a question of statutory interpretation cannot vary according to whether or not the subject body is a court. There is power or there is not, and one acts within that power or one does not. The meaning or effect of the words of the legislature does not vary according to whether the consideration is that of a court or another body such as the ER Commission.

Interpretation or a decision on the facts for enforcement?

99      It is plain that by the enactment of the power to vary an award (as defined in s 46(5)), the power to declare the true meaning of an award is wider than the power to interpret that was conferred on the Federal Court by s 110 of the Conciliation and Arbitration Act and successive provisions of the Industrial Relations Act 1988 and the Workplace Relations Act.

100   From the authorities referred to above and the express provisions of s 46 and s 83 of the Act, the following principles emerge in respect of an award as defined in s 46(5):

(a) The power to interpret the true meaning of an award, pursuant to the power conferred by s 46, is to enable a determination of whether ambiguity arises and to resolve it, if it does.

(b) If a provision in question is capable in the ordinary sense of not having an ambiguous meaning, then consideration of the expressed or supposed intention of the provision does not fall to be considered under s 46.

(c) If a provision is found to be ambiguous, the Commission acting pursuant to s 46 can embark upon a fact-finding exercise to determine the surrounding circumstances that existed when the award or industrial agreement was made.  These surrounding circumstances can include ascertaining the object of the provision by:

(i) inquiring into the history of the award;

(ii) any established custom, practice or usage which led to the making of the award and any relevant established custom, usage and practice since the award was made.

(d) If ambiguity is found and after ascertaining the true meaning of the award and declaring its effect it is found the words in the provision in question are defective, in that the words do not put into effect or reflect that meaning or it is found that the words used require amendment to give fuller effect to the true meaning, the Commission is authorised to exercise arbitral power to amend the provision.

(e) The power to interpret an award or industrial agreement pursuant to s 46 of the Act is, except for the power to amend a provision in s 46(1)(b), merely declaratory and any declaration made cannot be made as an order to enforce a right.

(f) The determination of whether a particular employee has an entitlement pursuant to the provisions of an award is an enforcement matter in relation to which the Industrial Magistrate has exclusive jurisdiction to determine, pursuant to the power conferred by s 83 of the Act.

Conclusion - Is error established?

(a) Union's application to dismiss PTA's s 46 application

101   When regard is had to the proper construction of the power of the Commission to interpret an award or industrial agreement pursuant to the power conferred by s 46 of the Act, it is clear the learned Commissioner erred in his construction of s 46 and in finding that s 46(3) was a complete answer to the union's s 27(1)(a) application to dismiss the PTA's application.  He also erred in finding that the Commission's role under s 46 was to provide assistance to the Industrial Magistrate's Court.

102   The powers conferred by s 83 of the Act and s 46 of the Act can be characterised as special powers within the Act when contrasted with the Commission's general jurisdiction conferred by s 23(1) of the Act to enquire into and deal with any 'industrial matter'.

103   The power conferred by s 46 to interpret an award or industrial agreement is a power to determine whether ambiguity arises in the provisions of the instrument.

104   The principles applying for the exercise of the power to determine the meaning of a provision in the absence of ambiguity is the same as the power of an Industrial Magistrate to interpret a provision in enforcement proceedings instituted pursuant to s 83 of the Act.  As Hansen J pointed out in Firefair, these principles apply irrespective of the point that the Commission pursuant to s 26(1)(b) is not bound by rules of evidence (456).

105   Whilst s 46(3) of the Act provides that a declaration made under s 46 is binding on all courts and persons, the effect of this provision is not to elevate the power to interpret conferred by s 46(3) as a superior power to the power conferred on an Industrial Magistrate to enforce the provisions of an award or industrial agreement.  This is because the function and operative scope of the power conferred by s 46(3) is different to the function and operative scope of proceedings instituted under s 83 of the Act.  Section 46(3) provides for a bald interpretive power, or put another way a declaratory power although not exclusively as s 46(1)(b) also provides for the Commission to amend the award to remedy any defect or to give fuller effect, in the case of ambiguity:  Crewe.  However, s 83 may require an interpretation of an award or industrial agreement as a step in the process of the Industrial Magistrate deciding if there has been a breach.

106   Consequently, insofar as the dispute as to the meaning of cl 5.2.1. of the Industrial Agreement relates to all employees of the PTA whose terms and conditions are covered by the Industrial Agreement, the Commission has jurisdiction to make a declaration as the rights of those employees and the PTA in determining the true meaning of cl 5.2.1 pursuant to s 46 of the Act.

107   However, the Commission had no power to consider whether cl 5.2.1 had been breached by the PTA by not paying Mr Olynyk an allowance calculated in accordance with the rate specified in cl 5.2.1(b)(i).  In particular, the Commission had no power to consider the alleged facts pleaded in the PTA's application under the heading, 'Facts giving rise to the application', as the matters pleaded relate solely to issues of fact applicable only to the circumstances of Mr Olynyk as to whether cl 5.2.1 has been breached by the PTA and, if so, whether orders should be made under s 83 of the Act, in particular whether on the day in question Mr Olynyk was able to use public transport to travel to and from the foreign depot.

108   Questions 1 and 2 in the PTA's application, however, are capable of being predicated on factual circumstances that can arise generally and perhaps can be said not to be restricted to the facts pleaded as they relate to Mr Olynyk.  Potentially both questions relate to circumstances that could be raised at any time when a depot manager is required to assess whether an employee whose employment is covered by the Industrial Agreement is entitled to payment of an allowance calculated in accordance with cl 5.2.1(b)(i) or cl 5.2.1(b)(ii).

109   Yet, the parties did not seek to restrict the matters for hearing before the learned Commissioner to matters that applied generally to all employees whose terms and conditions of employment are covered by the Industrial Agreement.  Both parties raised circumstances relevant to and made arguments relating to the circumstances of Mr Olynyk's claim and contentions about whether the PTA had breached the Industrial Agreement.

110   Whilst the matters put in questions 1 and 2 were matters that were within the jurisdiction of the Commission to consider in an application to declare the true meaning of cl 5.2.1, the matters the learned Commissioner should have taken into account when considering the union's application to dismiss the PTA's application for interpretation were, in my opinion:

(a) The PTA was ordinarily entitled to invoke the jurisdiction of the Commission under s 46 to seek a declaration of the true meaning of cl 5.2.1 of the Industrial Agreement as both parties in written submissions filed prior to the hearing at first instance put an argument that cl 5.2.1 was ambiguous.

(b) Section 46(3) of the Act enabled the Commission to bind the Industrial Magistrate's Court by the making of a declaration to an interpretation of cl 5.2.1 of the Industrial Agreement insofar as it applies to all employees whose terms and conditions of employment are covered by the Industrial Agreement.

(c) The Industrial Magistrate's Court is also empowered to resolve the interpretation dispute insofar as the issues raised relate to the circumstances of Mr Olynyk.

(d) The Commission is not empowered under s 46 to determine whether cl 5.2.1 had been breached by the PTA by not paying Mr Olynyk an allowance calculated in accordance with the rate specified in cl 5.2.1(b)(i) of the Industrial Agreement.

(e) On 19 July 2016, the union brought an application under s 83 to enforce the Industrial Agreement in claim M 101 of 2016.  The claim before the Industrial Magistrate's Court alleges that the PTA failed to comply with cl 5.2.1(b)(i) of the Industrial Agreement by underpaying rail car driver Mr Olynyk his travel allowance due for 28 May 2016.

(f) M 101 of 2016 was listed for hearing before the Industrial Magistrate's Court on 26 April 2017.

(g) The PTA made its application for interpretation pursuant to s 46 on 1 February 2017.

111   Given that:

(a) the PTA delayed bringing the s 46 application;

(b) the fact that the s 46 factual circumstances relied upon by the PTA related only to the circumstances of Mr Olynyk, that is, it was the same matter that was before the Industrial Magistrate's Court, and was not about the circumstances applying generally; and

(c) because the Commission is not empowered pursuant to s 46 to enforce the provisions of an Industrial Agreement;

I am of the opinion the learned Commissioner erred in dismissing the union's application.

112   The learned Commissioner, however, did not consider these matters.

113   For these reasons, I am of the opinion that ground 1 of the appeal has been made out.  However, this preliminary issue has not come before the Full Bench prior to a hearing of the merits.  Consequently, it would be difficult to uphold the appeal, suspend the decision to dismiss the union's application to dismiss the PTA's application for interpretation and remit the matter for further hearing and determination or vary the decision by making an order to dismiss the PTA's application.  This is because the PTA's application has been heard, determined and a declaration made.

(b) Are the terms of the declaration made pursuant to s 46 erroneous?

114   In my opinion, ground 2 is incompetent.  Although the learned Commissioner made observations and a finding about the meaning of the words 'public transport' and was the central issue raised in question 2, he made no declaration of the true meaning of these words as they appear in cl 5.2.1(b) of the Industrial Agreement.  Whilst he turned his mind to question 2 and said the answer was, 'Yes', he made no declaration of his finding.  The only declaration the learned Commissioner made related to the matters put in question 1.  In these circumstances, the finding made by the learned Commissioner about the meaning of 'public transport' in cl 5.2.1(b) of the Industrial Agreement must be regarded as mere obiter and do not have any binding effect pursuant to s 46(3) of the Act.

115   For these reasons, ground 2 of the appeal has not been made out.

116   As to ground 3 of the appeal, I do not agree that the reasons for decision were inadequate.  In particular, although the union argues that the reasons for decision were not clear or coherent, I do not agree.  The heart of the union's complaint with the observations made in the reasons for decision is that a number of observations are inconsistent with the declaration made by the learned Commissioner.

117   When the terms of the declaration are read with the reasons for decision, including the answer the learned Commissioner gives to question 1, in my respectful opinion I agree a clear inconsistency arises.  Question 1, in effect, asks when deciding whether an employee is reasonably able to use public transport to travel to a foreign depot, whether the depot manager is permitted to base the decision on the employee's ability to use public transport between the employee's home depot and the other depot?  The learned Commissioner's answer to this question is, ' Not as a rule but circumstances may arise where that is appropriate depending on the facts' ([66], AB 43).

118   Yet, in the declaration of the true meaning of cl 5.2.1(b) the learned Commissioner declares that the depot manager is to consider as relevant locations the employee's place of residence and other depot.  The clear inference that arises from the terms of the declaration is that the employee's home depot is not a relevant location.  However, such an inference is inconsistent with the answer given by the learned Commissioner to question 1.

119   As to ground 4, as the union points out, the declaration is inconsistent with the observations made by the learned Commissioner that in determining whether a person is able to use public transport to get to and from the foreign depot, access to and proximity to a bus stop, park and ride facilities or obtaining a lift from another person to public transport may be relevant circumstances for a depot manager to consider when determining whether an employee is reasonably able to use public transport.  Plainly, these 'circumstances' could, if the learned Commissioner's reasoning is applied, constitute relevant locations and such a finding is inconsistent with the declaration.

120   For these reasons, I am of the opinion that ground 4 of the appeal has been made out.

121   I am not satisfied that the declaration should be varied by the Full Bench.  However, I am of the opinion that the declaration should be quashed.  The reasons why I am of the opinion that the declaration should not be varied are as follows.

122   Firstly, the observation made by the learned Commissioner that a consideration of whether a particular employee is reasonably able to use public transport to travel to and from a depot will depend upon the circumstances that are relevant to the particular individual employee is correct.  Such an assessment may or may not include an assessment of the location of the employee's home depot, the location of the foreign depot and any other relevant location.  A determination of this issue is a question of fact.

123   Secondly, whether a PTA rail depot can also be regarded as the use of 'public transport' within the meaning of cl 5.2.1(b) of the Industrial Agreement is, in my opinion, ambiguous.

124   Clause 5.2.1 must be construed in context as one condition of employment.  An employee to whom cl 5.2.1 applies may or may not be considered a member of the public when travelling to a foreign depot.  Clause 5.2.1 applies to an allowance an employee is to receive when travelling to commence work at a foreign depot.  It is apparent from cl 5.2.1 that the time spent travelling to work is otherwise unpaid time as the employee is not at work until their shift commences:  see cl 3.1 and c. 5.1 of the Industrial Agreement.

125   Consequently, when regard is had to the words 'to use public transport' in their context as part of the whole of the agreement, the words are capable of being construed either as:

(a) the use of public transport infrastructure upon which an employee can embark, travel and alight at particular locations (which would include a depot); or

(b) the use of public transport that is only available to a member of the public to embark, travel and alight (which would not include a depot that a member of the public cannot depart from or alight at).

126   Having reached the view that ambiguity arises, regard could be had to the history of cl 5.2.1 and the conduct of the parties in relation to each in respect of this provision as part of the surrounding circumstances in ascertaining the intention of the provision.  In the absence of evidence about such matters at first instance, it is my opinion that the Full Bench is not in a position to determine the true interpretation of the meaning of the words 'public transport' in cl 5.2.1 of the Industrial Agreement.

127   For these reasons, I am of the opinion that an order should be made to uphold the appeal and quash the declaration.

SCOTT CC

128   I have had the benefit of reading the draft reasons of Her Honour, the Acting President.  I agree with those reasons and have nothing to add

KENNER ASC

129   The Commission at first instance had an application before it under s 46 of the Industrial Relations Act 1979 (WA) to interpret cl 5.2.1 of the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016. The issue arising between the parties was the method of calculating payment of an allowance to railcar drivers when they are required to begin their days' work at a depot other than their home depot. In short, the difference between the parties was that the Union contended that a depot manager should be required under the clause to assess whether the driver can travel from and back to their usual place of residence by public transport. On the other hand, the PTA contended that the relevant factor for the depot manager's decision should be travel from and back to the driver's home depot. The learned Commissioner decided on its true interpretation under cl 5.2.1(b) that a depot manager shall consider the relevant locations as the employee's usual place of residence and the other depot, to which they are required to travel.

130   The Union now appeals against the declaration.  However, there is a twist.  At first instance, the Union also made an application under s 27(1)(a)(ii) and (iv) of the Act, that the application to interpret the Agreement should be dismissed. The Union contended that the interpretation proceedings were not necessary or desirable in the public interest and constituted an abuse of process.

131   The s 27(1)(a) application was made by the Union because there was on foot at the time of the interpretation proceedings before the learned Commissioner, enforcement proceedings in the Industrial Magistrates Court between the parties involving the same factual allegations. The Union argued before the Commission at first instance, that the proper interpretation of cl 5.2.1 of the Agreement was a live issue both before the Industrial Magistrates Court and the Commission. The Union argued that the Industrial Magistrate has an implied jurisdiction to interpret the Agreement, and an inference could be drawn from the PTA's interpretation application at first instance, that it wanted the Commission and not the Industrial Magistrate to interpret the Agreement and make a declaration, which will then be binding on the Court. The submission was that this led to a duplication of proceedings, was forum shopping and would be a waste of time and resources.

132   The learned Commissioner rejected the Union's application. He held that s 46(3) of the Act, to the effect that a declaration of the Commission under s 46 binds all courts, was a complete answer to the issue. Furthermore, the learned Commissioner held that the Commission, as a specialist industrial tribunal, has been given by Parliament a specific power to interpret awards and industrial agreements and it is best placed to determine such matters. In doing so, the Commission provides assistance to the Industrial Magistrates Court and does not cut across its jurisdiction. He further held that it could not be an abuse of process or undesirable for the Commission to exercise a power that Parliament has given to it.

133   Accordingly, the Union also appeals against the learned Commissioner's dismissal of its s 27(1)(a) application.

Ground 1 - s 27(1)(a)

134   The Union in ground one maintained that the Commission erred in dismissing its application under s 27(1)(a). There were two bases for this. Firstly, the Union said that the learned Commissioner was wrong to conclude that s 46(3) of the Act was a "complete answer" to the application to dismiss. Secondly, the Union maintained that the learned Commissioner erred in saying that the role of the Commission was to provide assistance to the Industrial Magistrates Court.

135   As the s 27(1)(a) application by the Union did not finally decide the matter between the parties, and therefore it was a "finding" for the purposes of s 49(2a) of the Act, the Full Bench must form an opinion that the matter is of such importance that, in the public interest, an appeal should lie. In this respect, the Union contended that the matter was of importance in the public interest because at the time of the appeal, there had been three occasions where the PTAPTA had brought applications under s 46 of the Act to "delay or interrupt" applications for enforcement before the Industrial Magistrates Court. On each of those three occasions, s 27(1)(a) applications were brought by the Union and on each occasion, the application was dismissed by the Commission. The submission was that it was likely that the issue would arise in the future and therefore it was a matter of importance in the public interest for the Full Bench to consider whether it is "legitimate for the Commission to entertain a s 46 application where that application will cut across proceedings that are before the Industrial Magistrates Court" (see appellant's further outline of submissions 9 June 2017 par 6).

136   I do not, without more being before the Full Bench, accept the contention of the Union that the purpose of the s 46 application by the PTA was to delay or interrupt the Industrial Magistrates Court proceedings or otherwise to cut across those proceedings. However, given that the Full Bench wrote to the parties on 7 June 2017, seeking submissions from them on the hearing of the appeal, as to the relationship between ss 46 and 83 of the Act, I consider that the matter is of such importance that in the public interest, leave to appeal on this point should lie. On at least one past occasion, the relationship between key provisions of the Act has been regarded as sufficiently important for an appeal to lie in the public interest: Mount Newman Mining Co Pty Limited v Australian Workers' Union, WA Branch Industrial Union of Workers (1986) 66 WAIG 1925.

137   Section 27(1)(a) is a power to dismiss an application or refrain from further hearing an application. This power is broad in scope and should be exercised with caution.  It is in the following terms:

27. Powers of Commission

 (1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

 (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

 (i) that the matter or part thereof is trivial; or

 (ii) that further proceedings are not necessary or desirable in the public interest; or

 (iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

 (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

  And

…

138   In The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431, in considering an application under s 27(1)(a)(ii) to dismiss a matter before the Commission in the public interest, I said at pars 22 and 23:

22 In another context, in The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268, I considered the meaning of the "public interest" for the purposes of s 36A(1) of the Act.  In referring to s 27(1)(a)(ii) of the Act, empowering the Commission to dismiss or refrain from further hearing a matter, I referred to QEC and at par 35 I observed as follows:

35 Given the construction I have placed on s 36A(1) of the Act, it is for the PTA to demonstrate that it would not be in the public interest for the Proposed Award to the made.  The notion of the "public interest" is somewhat amorphous.  Consideration of this issue is similar to the terms of s 27(1)(a)(ii) of the Act empowering the Commission to dismiss or refrain from further hearing a matter on the basis that further proceedings are not necessary or desirable in the public interest.  Similar provisions exist in other industrial jurisdictions.  In Re Queensland Electricity Commission and Ors; Ex-parte Electrical Trade's Union of Australia (1987) 21 IR 151 the High Court in proceedings for prerogative writs against a Full Bench of the then Australian Conciliation and Arbitration Commission, held that for the purposes of the then s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth) that "Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree" (per Mason CJ and Wilson and Dawson JJ).  In the same case, Deane J in dealing with the refrain from hearing power in the public interest observed at 162:

"The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked.  That prima facie right to insist upon the exercise or jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is "amenable to the jurisdiction" of the courts and other public tribunals (cf Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 193).  In the rare instances where a particular court of tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf per Higgins J, Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association [No 1] (1920) 28 CLR 278 at 281).  That position is a fortiori in a case where no other court or tribunal, Commonwealth or State, possesses jurisdiction fully to deal with the particular dispute.  Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary consideration of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, "Access to Justice:  Social and Historical Context:  in Cappelletti and Weisner (eds) Access to Justice, vol II, book 1 (1978) pp 5ff; Raz, The Authority of Law, (1979), at p 217)."

23 I adopt what I said in Skilled Rail Services for present purposes.  The discretion open to the Commission to be exercised under s 27(1)(a) is a broad one.  A gloss should not be put on the words of the section to import any particular level of satisfaction to be achieved by the Commission for the exercise of the power.  However, given that a party is entitled to invoke the Commission's jurisdiction, and prima facie expect it to be exercised there is an onus on the Authority in this case, to persuade the Commission, that in the circumstances, that prima facie right should be overridden:  QEC per Deane J at 163.  Further, in the exercise of the discretion, the Commission is required, as in all matters before it, to have regard to its statutory obligations under s 26(1) of the Act: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4.

139   This approach to s 27(1)(a) of the Act was affirmed on appeal to the Full Bench (The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00451; (2014) 94 WAIG 787) and on further appeal to the Industrial Appeal Court (The Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2015] WASCA 150; (2015) 95 WAIG 1593).

140   By s 46(1) of the Act it is open to an organisation or an employer bound by an award (which for present purposes includes the Agreement), to make an application to the Commission to interpret it. On such an application, the Commission may declare its true interpretation and if it considers it necessary, by order, vary the award to overcome any defect or to make the meaning of the relevant provision clearer. Importantly, for the purposes of this appeal, a declaration made by the Commission, is, subject to the Act, "binding on all courts and persons with respect to the matter the subject of the declaration": s 46(3) Act.

141   Therefore, the clear purpose of s 46 is to enable an industrial matter concerning a dispute as to the proper meaning of the terms of an award or industrial agreement, to be resolved by the Commission by declaring its true interpretation. Subject to any right of appeal exercised by either party to such an application, the clear intention of Parliament, by the enactment of s 46(3), is that such a determination by the Commission is final and binding. Perhaps this is so because an award made by the Commission under the Act is not an instrument of the parties, but one made by the Commission itself. The Commission is responsible under the Act for its awards and may on its own motion, vary them under s 40B and cancel defunct awards under s 47. The reasons for award making and variation are also matters of record of the Commission. However, it is not necessary to finally decide this point for the purposes of this appeal and in the absence of argument on the history of s 46(3) of the Act.

142   The nature of s 46 proceedings has been the subject of consideration in Full Bench and the Industrial Appeal Court decisions. It is unnecessary for me to refer to them at any length, other than to observe that it has been held that s 46 applications may not just involve bare questions of law. They may also involve at least in part, an arbitral and fact finding function, particularly where it may be necessary to discover a particular custom or practice in an industry and in circumstances where a variation may be necessary to correct any defect or to make the meaning of a provision more clear: Field Construction Co v The Boilermakers' Society of Australia, Union of Workers, Coastal Districts (1961) 41 WAIG 990; Norwest Beef Industries Limited and Anor v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124 per Olney J at 2130. Furthermore, the power to interpret an award under s 46 is a specific power and is to be distinguished from the Commission's general dispute resolution power in s 44 of the Act: The Liquor, Hospitality and Miscellaneous Union, WA Branch v The Roman Catholic Bishop of Bunbury Chancery Office and Ors (2007) 87 WAIG 1148.

143   On the other hand, the power in s 83 is part of the machinery in Part III of the Act dealing with enforcement of the Act, awards, industrial agreements and orders.  By Part III the Industrial Magistrates Court is established which is given both general and prosecution jurisdictions. Apart from the Industrial Magistrates Court, the Full Bench of the Commission also has an enforcement jurisdiction in respect of certain contraventions of the Act as prescribed by s 84A. The powers conferred on the Industrial Magistrates Court under s 83 are also specific to the enforcement of a prescribed industrial instrument, where a person contravenes or fails to comply. The power exercised is purely judicial, in the sense that it involves the ascertainment and enforcement of an existing legal right. On a finding of a contravention or failure to comply, the Industrial Magistrates Court may impose a civil penalty: s 83(4). The Industrial Magistrates Court also is required to order an employer to pay an amount of money to an employee, in the case where an underpayment of money on an enforcement action, is established. It is also clear, as with the practical effect of the s 46(3) final declaratory power, that s 83 confers an exclusive jurisdiction to enforce industrial instruments: s 83(3) Act. 

144   When looked at in this way, ss 46 and 83 are both specific, but clearly distinct powers, with different purposes and which are exercised by different jurisdictions.  The final disposition of an application under s 46 of the Act is the making of a declaration as to the meaning and effect of an award or industrial agreement. The final disposition of an s 83 application to enforce an industrial instrument, is either an order of dismissal, or, in the case where a contravention or failure to comply is proved, the issue of a caution or the imposition of a penalty. Further orders for the payment of monies owed may be made. 

145   Whilst it may be the case that the Industrial Magistrates Court is called on to interpret an award or industrial agreement as a part of the exercise of its jurisdiction to enforce such an industrial instrument, that is plainly not the purpose of the power. The ability of the Industrial Magistrates Court to construe the terms of an award or industrial agreement for example, as a part of hearing an application to enforce the same, is little different to the Commission being required to interpret an award or industrial agreement, as a part of resolving a dispute under s 44 of the Act, which dispute is not a matter of bare interpretation: Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623; Roman Catholic Archbishop of Bunbury. The Industrial Magistrates Court has no jurisdiction or power to make a binding declaration of the kind specified by ss 46(1) and (3), just as the Commission may not make an order to enforce an award or industrial agreement, under any provision of the Act, although an order made under s 44 may incidentally have such an effect: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 990 per Kennedy J at 992.

146   In my view, the Commission should not decline to exercise its powers of interpretation under s 46 of the Act, in a proper case of interpretation before it, only because another court may have before it, a claim to enforce the same award. This was held to be so by Dwyer J in The Commissioner of Railways v West Australian Locomotive Engine Drivers, Firemen's and Cleaners' Union of Workers (1941) 21 WAIG 451 at 451.

147   Returning then to this matter. To the extent that the learned Commissioner relied on s 46(3) as the answer to the Union's s 27(1)(a) application, in my view, he did not err. Firstly, the right of the PTA to invoke the jurisdiction of the Commission to interpret an award or industrial agreement under the Act, in accordance with s 46, is open to it at any time. Where the application under s 46 raises proper issues for interpretation, then a party seeking it is entitled to expect the Commission to exercise its jurisdiction, unless very good reason not to do so is established. Secondly, in the circumstances of these proceedings, given the Commission's power to declare the true interpretation of the Agreement, intended by Parliament by s 46(3) to be paramount, where no other tribunal possesses the same jurisdiction and power, the onus on the Union to persuade the Commission to refrain from the exercise of its powers in this case, was a heavy one. As was said by Deane J in Re Queensland Electricity Commission and Ors; Ex parte Electrical Trades Union of Australia (1987) 21 IR 151 at 162:

The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. That prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is "amenable to the jurisdiction" of the courts and other public tribunals (cf Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 193). In the rare instances where a particular court or tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf per Higgins J, Merchant Service Guild of Australasia v Commonwealth Steamship Owners* Association [No 1] (1920) 28 CLR 278 at 281). That position is a fortiori in a case where no other court or tribunal, Commonwealth or State, possesses jurisdiction fully to deal with the particular dispute. Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary considerations of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, "Access to Justice: Social and Historical Context" in Cappelletti and Weisner (eds) Access to Justice, vol II, book 1 (1978) pp 5ff; Raz, The Authority of Law, (1979), at p 217).

148   The application before the Commission at first instance was made under s 46. It sought the Commission's answer to two questions posed by the PTA, as to the meaning of cl 5.2.1(b) of the Agreement in relation to the payment of a temporary transfer allowance. The terms of the application on its face, sought answers to proper questions for interpretation. The facts set out in the s 46 application, as required by reg 52(1) of the Industrial Relations Commission Regulations 2005 (WA), were, we were informed, the same facts to be raised before the Industrial Magistrates Court in relation to the employee concerned, Mr Olynyk. However, that does not convert what is a procedural requirement of the Regulations, as a part of the context of the interpretation application, to a de-facto enforcement of the Agreement. The relief sought in the s 46 application was an answer to the two questions posed, as required by reg 53(1)(c) of the Regulations. The application did not purport to, nor could it, seek to enforce any entitlement in respect of Mr Olynyk. The reference to the statement of facts in the proceedings at first instance, from the outlines of submissions filed, was for purposes of illustration. The questions posed were generic and not fact specific. Any declaration made at first instance would bind the parties to the Agreement, and all employees covered by it, which from its terms, appeared to be about 286 employees, as at the date the Agreement was registered on 8 April 2016. In that sense, the relief sought and the outcome of the s 46 application, was wholly different in kind to that in the Industrial Magistrates Court proceedings.

149   What I have just said in my view, is a complete answer to the Union's submissions to the Full Bench that in some way the s 46 application constituted forum shopping or a duplication of proceedings. In the context of my earlier comments as to the nature of ss 46 and 83 of the Act and proceedings brought under those provisions, this simply could not be the case.

150   As to the final points made by the Union in relation to this ground of appeal, those being the timing of the Industrial Magistrates Court proceedings, the impact on them and the possibility of a waste of time and resources, even if it were necessary to consider these issues, they could not constitute grounds for the exercise of the s 27(1)(a)(ii) power, considering the views expressed above by Deane J in Re QEC.

151   In any event, given that the PTA s 46 application sought a declaration from the Commission to apply to its entire workforce covered by the Agreement, and not just one employee as in the Industrial Magistrates Court proceedings, it seems to me it would have made good sense, in those circumstances, to seek and adjournment of the Industrial Magistrates Court proceedings, pending the determination of the s 46 application, and the exercise of rights of appeal by either party.

152   As to the final point made by the Union, I agree with respect that it was not correct for the learned Commissioner to say the Commission's role is to provide assistance to the Industrial Magistrates Court. The Commission's duty is to determine the correct interpretation of the award or industrial agreement and to make a declaration accordingly. This includes any necessary variation to clear up a lack of certainty of meaning or to give proper effect to the original intention of the provision in question. However, I regard the learned Commissioner's remarks in this respect at par 27 of his reasons, when read in the context of the reasons, as obiter. It was clear that the reason for the dismissal of the Union's s 27(1)(a) application was based on s 46(3) of the Act, as referred to by the learned Commissioner at par 22 of his reasons.

153   Accordingly, ground 1 is not made out.

Ground 2 – "public transport"

154   By this ground the Union complains that the learned Commissioner was in error in interpreting the words "public transport" in cl 5.2.1(b) of the Agreement. This referred to the learned Commissioner's reasons where he found that the public at large unlike train drivers, were not able to alight at the stop adjacent to the Nowergup Depot. Despite this, the learned Commissioner concluded that there was still public transport available to and from the Nowergup Depot on the PTA's rail network. The Union therefore maintained that this constituted an error of law in the interpretation of cl 5.2.1(b) of the Agreement.

155   This ground of appeal is directed to question 2 in the grounds of the application which was in the following terms:

Question 2:

When deciding whether an employee is reasonably able to use public transport to travel to and from the depot from which the employee is temporarily working for a shift, is the Depot Manager permitted to treat a timetabled Transperth Train Operations service departing from or ending at the employee's home depot as "public transport" for the purposes of clause 5.2.1 (b) when the employee is able to alight from or embark on the service at a platform adjacent to the other depot?

156   Whilst the learned Commissioner did not incorporate his answer to this question into the declaration made, which I comment on below, read in context, the terms of the declaration must be read with the reasons for decision and the answers to the specific questions posed.

157   The learned Commissioner rejected that Union's argument that because a train stops at the Nowergup Depot from which drivers can alight but the public cannot, this means that such transport is not "public transport" for the purposes of cl 5.2.  He concluded that the words "public transport" mean what they say and that train drivers who use trains to get to the Nowergup Depot are using public transport for the purposes of the clause. The Union argued that this conclusion was an error because the word "public" means the public at large and as the Commission concluded that the public could not alight at the Nowergup platform, it was wrong to conclude that transport was "public transport".

158   It is common ground that train drivers employed by the PTA travel on its rail network free of charge.

159   In my view, the transport the subject of question two is public transport. Firstly, the words of cl 5.2.1 (b) require a depot manager to consider whether an employee may "use public transport" to travel to and from the other (foreign) depot. The clause does not say that the foreign depot is to be accessible to the public at large.  It is the means of conveyance to and from the foreign depot that is key. Secondly, as a matter of ordinary meaning, the words "public transport" must be taken to apply to any means of conveyance provided to the public at large, whether they be trains, buses, ferries, to enable people to move about the metropolitan area. There was no suggestion that trains provided by the PTA in the ordinary course, are not public transport or that in this case, members of the public are not able to be on the trains that travel through the Nowergup Depot, and from which, drivers may alight at that depot.  If the question was asked of a member of the public, whether such a train service was public transport, I have no doubt that the answer would be "yes".

160   Thirdly, in my view, this ordinary and natural meaning of "public transport" is confirmed when one has regard to the terms of cl 5.2 of the Agreement, in the context of its object and purpose. The clear intent of the clause is to provide compensation to drivers at a greater rate, when they are required to use either their or someone else's transport to travel from their home to a foreign depot and back. If the depot manager is of the view that this is not necessary, and the driver can travel on the PTA service and get to the foreign depot, in this case Nowergup, then it makes common sense that the employee should not be paid double the allowance otherwise payable. As was submitted by the PTA, it would seem to defeat the purpose of the clause, if, in circumstances where a driver can travel for free to Nowergup, they would nonetheless be required to be paid at double the rate, simply because a member of the public could not alight at the stop where the drivers do.

161   Finally, with respect, it is difficult to see the logic in the contention that a train service such as that under consideration at first instance in question two, would be "public transport" when it stops at the station prior to the Nowergup Depot and passengers board and alight, and the same at the station after it, but transforms into something else in between. In my view, the learned Commissioner made no error in his conclusion in this regard.

162   This ground is not made out.

Ground 3 – adequate reasons

163   This ground complains that the learned Commissioner did not provide adequate reasons for his declaration. The contention of the Union was that when read with the declaration itself, the reasons, in particular pars 55 and 56, are not consistent with the declaration and were not clear or coherent.

164   A Commissioner must give adequate reasons, as an incident of the decision-making process. They are required by the Act in s 35(1). Reasons for decision need only be adequate; they are not required to sift through each piece of evidence and argument. The basis for the decision needs to be ascertainable: Robe River Iron Associates per Nicholson J at pp 996-999; Ruane v Woodside Offshore Petroleum Pty Ltd (1991) 71 WAIG 913. I am not persuaded that the learned Commissioner failed to give adequate reasons for his decision. The consideration of the Commission was revealed by his reasons. The Union does not agree with how he arrived at his conclusions. That is a different issue. The basis of the Union's complaint has more to do with ground four. A further difficulty with both this ground and the next is, as has been noted above, the Union does not cavil with the actual declaration made by the Commission.  I comment on this issue further, when dealing with ground four below.

165   Accordingly, this ground fails.

Ground 4 – interpretation of cl 5.2.1

166   Despite the point just made as to the declaration, as to this ground, the Union complained that the learned Commissioner erred in law in construing cl 5.2.1 of the Agreement, having regard to his observations at pars 55 and 56 of his reasons. Those observations referred to a train driver taking a short car journey to a "park and ride" and being dropped off at public transport, necessarily excludes the conclusion that the person is thereby able to use public transport. The learned Commissioner referred to a hypothetical person as saying they may travel to work on public transport, even if they are driven a short distance to or dropped off at public transport, to access it.

167   The Union maintained that in so concluding, the learned Commissioner erred in his interpretation of cl 5.2.1 of the Agreement.  As I understood the argument, the Union contended this could not be correct because, for example, if an employee had to be dropped off to a "park and ride" or drive themselves to such a facility, that could not be regarded as using public transport.

168   I do not agree. The difficulty with the Union's argument is that it regards the depot manager's decision in cl 5.2.1(b) as absolute. Clause 5.2.1(b) does not say that a depot manager is to be satisfied whether an employee is able or not able to use public transport. The required decision of the depot manager is whether an employee is "reasonably" able to do so. This requires an assessment by a depot manager as to whether it is within reason, that an employee may access public transport. This involves an objective evaluation, having regard to the circumstances of the case. "Reasonable" in the Shorter Oxford English Dictionary is defined to include "1. Endowed with reason.  … 2. Having sound judgement; sensible, sane.  Also, not asking for too much ME. b. requiring the use of reason … 3. Agreeable to reason; not irrational, absurd or ridiculous ME.  4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate ME …". In the context of this meaning, it would be with respect, an absurd construction of cl 5.2.1(b) to suggest that it would only be reasonable for an employee to use public transport if a bus, train or other conveyance, literally stopped outside an employee's residence. Whilst this could conceivably be the case, in my view, it was in this context, that the learned Commissioner referred to possible examples in pars 55 and 56 of his reasons. These observations must be read in the context of the learned Commissioner's earlier remarks in pars 51 to 54, that each case will turn on its own circumstances.  He was not making any factual determinations and the comments referred to at pars 55 and 56, were only a "rough guide".

169   It is trite to observe, and it is not necessary to refer to authority which is now so well known, that awards and industrial agreements should be construed generously and in accordance with common sense. I do not consider the above approach to the interpretation of cl 5.2.1(b) involves any strain on the ordinary meaning of the words used in it.  On the contrary, this approach to cl 5.2.1(b) is entirely consistent with the accepted canons of interpretation of industrial instruments.

170   Thus, even if the learned Commissioner's observations at pars 55 and 56 could be considered findings, which in my view is extremely doubtful, given the context in which the remarks were made earlier in his reasons as I have noted above, I do not consider them to be wrong. A circumstance may well arise where a depot manager may consider a short walk from an employee's residence to public transport, to enable the employee to travel to a foreign depot from their home, means that the "employee is reasonably able to use public transport to travel to and from the other depot" for the purposes of cl 5.2.1(b)(ii).

171   In effect, the declaration made was consistent with the Union's case as put at first instance. The PTA now accepts that the declaration is correct and in my view this is plainly so. The terms of cl 5.2.1(a) of the Agreement say nothing of an employee's home depot. The trigger for the assessment in cl 5.2.1(b) by a depot manager, is the distance of travel from an employee's "usual place of residence" to the depot from which they will be working. The home depot is irrelevant to the threshold trigger for this assessment. Reading the clause, it is difficult to see any other reasonable conclusion that could be open.

172   With respect, it would have been better had the learned Commissioner incorporated his answers to the questions referred to in his reasons and raised in the application, in his declaration, and in a consistent fashion. This is so because the declaration needs to be read harmoniously with the reasons for decision. The reference to the home depot in the answer to question one, may be said to be somewhat confusing and inconsistent with the terms of the declaration. However, as the Union has not established that the terms of the decision of the Commission, in the form of the declaration made, was erroneous, and in any event, largely reflects what it sought to replace it with, in my view the appeal should be dismissed.