Appeal against a decision of the Industrial Magistrate in matter no. M 80/2018 given on 1 May 2019

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2019 WAIRC 00713

DELIVERED : Monday, 16 September 2019

FILE NO. : FBA 6 OF 2019

Appellant

AND

Director-General, Department of Justice

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Magistrates Court

Coram : Industrial Magistrate D Scaddan

Citation : 2019 WAIRC 00206

File No : M 80/2018

Catchwords : Industrial Law (WA) - Appeal against decision of Industrial Magistrate - Award interpretation - Clause 37 Public Service Award 1992 - Whether employee should be granted paid leave to attend union business in proceedings before the Public Service Appeal Board - Whether cl 37(1)(a) applies only to Association or union business - If so whether representation of employee by the appellant before the Appeal Board constituted Association or union business

Legislation : Industrial Relations Act 1979 (WA) ss 44, 66, 72, 72A, 83, 96B, 112A

    Interpretation Act 1984 (WA) s 32

    Legal Profession Act 2008 (WA) s 112A

   Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr W Claydon of counsel and with him Ms D Larson

Respondent : Mr D Anderson of counsel and with him Mr T Ledgar of counsel

Solicitors:

Appellant : Civil Service Association

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Amcor Ltd v Construction Forestry Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241

BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) & Ors [2006] WASCA 124; (2006) 86 WAIG 1477

City of Wanneroo v Holmes (1989) 30 IR 362

Director General, Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1

Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182

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

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

Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418

University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481

Water Board (NSW) v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Whooley v Shire of Denmark [2019] WASCA 28; (2019) 99 WAIG 87

Case(s) also cited:

AFMEPKIU v BHP & Ors [2002] WAIRC 05009; (2002) 82 WAIG 2048

ASU v Australian Red Cross Blood Service (1999) 79 WAIG 709

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

Australian Unity Property Ltd v City of Busselton [2018] WASCA 38

Australian Worker’s Union v Cleanevent Australia Pty Ltd [2015] FCA 1477

Barlow v Qantas Airways Ltd (1997) 75 IR 100

CFMEU v Sanwell Pty Ltd [2004] WAIRC 1094

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

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Department of Community Services and Others v Civil Service Association of Western Australia Inc. (1994) 74 WAIG 1709

Fedec v Minister Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595

Hammersley Iron Pty Ltd v AMWSU (1990) 70 WAIG 3001

House v The King (1936) 55 CLR 499

Luck v Independent Broad-Based Anti-Corruption Commission [2013] VCAT 1805

Metal and Engineering Workers Union v Cockburn Engineering WA [1998] WAIRComm 80

New South Wales v Bujdoso (2007) 69 NSWLR 302; [2007] NSWCA 44

Pearce v Commissioner of Police, WA Police (2019) WAIRC 00201; (2019) 99 WAIG 625

R v Cohen Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577

R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71

R v Industrial Commission (SA); Ex parte Fire Brigade Board (1977) 15 SASR 546

R v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353

Raylene Jeakings and Trevor Ward v The State School Teachers Union of WA (1998) 78 WAIG 1136

Re Foley; Channell v Foley (1952) 53 SR (NSW) 31

Re Harrison; Ex parte Hames [2015] WASC 247

Re The Manufacturing Grocers' Employees Federation of Australia and Another; Ex parte The Australian Chamber of Manufactures and Another [1986] HCA 23; (1986) 160 CLR 341

Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164; (2014) 48 WAR 261

Toben v Jones (2003) 129 FCR 515

Reasons for Decision

KENNER SC:

Introduction

1         In August 2017, Mr Mayerhofer, a member of the appellant Association, commenced an appeal to the Public Service Appeal Board under s 80I of the Industrial Relations Act 1979 arising from the imposition of disciplinary action against him by the respondent. The appellant represented Mr Mayerhofer in the appeal proceedings. Mr Mayerhofer attended directions hearings before the Appeal Board in October and December 2017.  The appeal was heard over two days in late February and early March 2018.  Mr Mayerhofer gave evidence on his own behalf.  The appeal proceedings were settled prior to the determination of the merits of the appeal.

2         Mr Mayerhofer, both prior to and after the Appeal Board proceedings, applied for paid leave under cl 37(1)(a) of the Public Service Award 1992. This entitles an officer to paid leave in relation to “Association business”. The respondent declined to grant it. The appellant commenced proceedings in the Industrial Magistrate’s Court for the enforcement of cl 37(1)(a) of the Award, under s 83 of the Act.  The enforcement proceedings failed.

3         The learned Industrial Magistrate was not persuaded, as a matter of construction, that cl 37(1)(a) extended to the proceedings at which Mr Mayerhofer attended before the Appeal Board, being essentially proceedings of a private or personal nature, commenced in his name. The learned Industrial Magistrate concluded that cl 37(1)(a) of the Award, construed in the context of the remainder of cl 37 and the terms of the Award as a whole, was concerned with paid leave to attend “union business”, with such union business being characterised by the professional operations, and commercial dealings of the appellant. Such matters might include, but are not limited to, the collective representation of members in negotiations with employers directly and before industrial tribunals, and meeting with consultative committees, government ministers and the like. The character of Mr Mayerhofer’s appeal before the Appeal Board, although the appellant represented him, was not, in the opinion of the learned Industrial Magistrate, of the kind contemplated by cl 37(1)(a) of the Award.

4         In the alternative, whilst not necessary to decide the matter, the learned Industrial Magistrate commented on the respondent’s further arguments, at first instance, that if cl 37(1)(a) of the Award did apply to Mr Mayerhofer’s claim for paid leave, then such a provision was contrary to s 96B of the Act, as providing preferential treatment to a person by reason of their membership of an organisation. The appellant now appeals against the decision of the Court.

Relevant provisions of the Award

5         It is convenient to set out relevant provisions of the Award at this juncture. Clause 37 - Leave to Attend Association Business is the key provision in issue.  Its terms provide as follows:

37. - LEAVE TO ATTEND ASSOCIATION BUSINESS

(1) The employer shall grant paid leave at the ordinary rate of pay during normal working hours to an officer:

(a) who is required to attend or give evidence before any Industrial Tribunal;

(b) who as a Union-nominated representative is required to attend any negotiations and/or proceedings before an Industrial Tribunal and/or meetings with Ministers of the Crown, their staff or any other representative of Government;

(c) when prior arrangement has been made between the Union and the employer for the officer to attend official Union meetings preliminary to negotiations and/or Industrial Tribunal proceedings; and

(d) who as a Union-nominated representative is required to attend joint union/management consultative committees or working parties.

(2) The granting of leave is subject to convenience and shall only be approved:

(a) where reasonable notice is given for the application for leave;

(b) for the minimum period necessary to enable the union business to be conducted or evidence to be given; and

(c) for those officers whose attendance is essential.

(3) The employer shall not be liable for any expenses associated with an officer attending to union business.

(4) Leave of absence granted under this clause shall include any necessary travelling time in normal working hours.

(5) An officer shall not be entitled to paid leave to attend to union business other than as prescribed by this Clause.

(6) The provisions of the Clause shall not apply to:

(a) special arrangements made with the union which provide for unpaid leave for officers to conduct union business;

(b) when an officer is absent from work without the approval of the employer; and

(c) casual officers.

6         Additionally, as it was referred to in submissions, cl 36 – Union Facilities for Union Representatives, provides:

36. - UNION FACILITIES FOR UNION REPRESENTATIVES

(1) The employer recognises the rights of the union to organise and represent its members.  Union representatives in the agency have a legitimate role and function in assisting the union in the tasks of recruitment, organising, communication and representing members' interests in the workplace, agency and union electorate.

(2) The employer recognises that, under the union's rules, union representatives are members of an Electorate Delegates Committee representing members within a union electorate.  A union electorate may cover more than one agency.

(3) The employer will recognise union representatives in the agency and will allow them to carry out their role and functions.

(4) The union will advise the employer in writing of the names of the union representatives in the agency.

(5) The employer shall recognise the authorisation of each union representative in the agency and shall provide them with the following:

(a) Paid time off from normal duties to perform their functions as a union representative such as organising, recruiting, individual grievance handling, collective bargaining, involvement in the electorate delegates committee and to attend union business in accordance with clause 37 - Leave to Attend Union Business of the Award.

(b) Access to facilities required for the purpose of carrying out their duties.  Facilities may include but not be limited to, the use of filing cabinets, meeting rooms, telephones, fax, email, internet, photocopiers and stationery.  Such access to facilities shall not unreasonably affect the operation of the organisation and shall be in accordance with normal agency protocols.

(c) A noticeboard for the display of union materials including broadcast email facilities.

(d) Paid access to periods of leave for the purpose of attending union training courses in accordance with Clause 38 - Trade Union Training Leave of the Award.  Country representatives will be provided with appropriate travel time.

(e) Notification of the commencement of new officers, and as part of their induction, time to discuss the benefits of union membership with them.

(f) Access to awards, agreements, policies and procedures.

(g) The names of any Equal Employment Opportunity and Occupational Health, Safety and Welfare representatives.

(6) The employer recognises that it is paramount that union representatives in the workplace are not threatened or disadvantaged in any way as a result of their role as a union representative.

7         Finally, cl 41 – Witness and Jury Service is in the following terms:

41. - WITNESS AND JURY SERVICE

Witness

(1) An officer subpoenaed or called as a witness to give evidence in any proceeding shall as soon as practicable notify the manager/supervisor who shall notify the employer.

(2) Where an officer is subpoenaed or called as a witness to give evidence in an official capacity that officer shall be granted by the employer leave of absence with pay, but only for such period as is required to enable the officer to carry out duties related to being a witness.  If the officer is on any form of paid leave, the leave involved in being a witness will be reinstated, subject to the satisfaction of the employer.  The officer is not entitled to retain any witness fee but shall pay all fees received into the Consolidated Fund.  The receipt for such payment with a voucher showing the amount of fees received shall be forwarded to the employer.

(3) An officer subpoenaed or called as a witness to give evidence in an official capacity shall, in the event of non-payment of the proper witness fees or travelling expenses as soon as practicable after the default, notify the employer.

(4) An officer subpoenaed or called, as a witness on behalf of the Crown, not in an official capacity shall be granted leave with full pay entitlements.  If the officer is on any form of paid leave, this leave shall not be reinstated as such witness service is deemed to be part of the officer's civic duty.  The officer is not entitled to retain any witness fees but shall pay all fees received into the Consolidated Fund.

(5) An officer subpoenaed or called as a witness under any other circumstances other than specified in subclauses (2) and (4) of this clause shall be granted leave of absence without pay except when the officer makes an application to clear accrued leave in accordance with Award provisions.

Jury

(6) An officer required to serve on a jury shall as soon as practicable after being summoned to serve, notify the supervisor/manager who shall notify the employer.

(7) An officer required to serve on a jury shall be granted by the employer leave of absence on full pay, but only for such period as is required to enable the officer to carry out duties as a juror.

(8) An officer granted leave of absence on full pay as prescribed in subclause (6) of this clause is not entitled to retain any juror's fees but shall pay all fees received into the Consolidated Fund.  The receipt for such payment shall be forwarded with a voucher showing the amount of juror's fees received to the employer.

Principles of interpretation

8         Relevant principles in relation to the interpretation of awards and industrial agreements are now well settled. The base principle in this jurisdiction is that when interpreting an award or an industrial agreement, the same approach is adopted as in the interpretation of instruments generally: Norwest Beef Industries Ltd and Another v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124 per Brinsden J at 2127 and Olney J at 2133 (as adopted and applied by the Industrial Appeal Court in Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia and Others (1987) 67 WAIG 1097). This base principle has been affirmed by the Industrial Appeal Court, with the qualification that a generous and not a pedantic approach to construction is to apply, especially in the case of industrial agreements. In each case, the starting point for interpretation is the text, as interpretation is a text based activity: Director General Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1; BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineerings, Printing and Kindred Industries Union of Workers (Western Australian Branch) & Ors [2006] WASCA 124; (2006) 86 WAIG 1477; Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182; Amcor Ltd v Construction Forestry Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241.

9         In City of Wanneroo v Holmes (1989) 30 IR 362 French J said at 378-379:

The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words: Re Clothing Trades Award (1950) 68 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).

10      I adopt and apply this approach to the present matter.

Grounds of appeal

Grounds 1 and 2

11      Both grounds 1 and 2 can be conveniently dealt with together.  Ground 1 is in the following terms:

Ground 1 - Construction of clause 37(1)

The learned Industrial Magistrate erred in law in by construing the entirety of clause 37, and implicitly sub-clause 37(1)(a) of the Public Service Award 1992 as being confined to circumstances relevant to union business, between the union and government departments, ministers or staff in broad terms on matters affecting the public service workforce and at the very least union members as a collective.

1. The learned Industrial Magistrate's conclusion in this regard is at [76] and [77] of the Reasons for Decision.

2. The construction Her Honour attributed to sub-clause 37(1) is an unreasonable or absurd construction. The construction attributed creates ambiguity by incorporating the terms "matters affecting the public service workforce" and "matters affecting union members as a collective."

3. The construction Her Honour attributed to sub-clause 37(1) is unreasonable or absurd because it limits the scope to exclude attendances for industrial tribunal proceedings which involve the union, but do not involve the government entities described, despite the fact that such proceedings might affect the workforce and members. The imposition of these limitations is arbitrary in light of the text of the clause in its context.

4. Her Honour's construction is contrary to the principle that the intention of the instrument is to be gleaned from the words used.

5. Her Honour's construction is contrary to the principle that the industrial instrument should be given a generous construction.

6. Her Honour erroneously had regard, at [57], to the clause heading to construe sub-clause 37(1), overriding or confining the ordinary and natural meaning of clause 37(1)(a) where there was no ambiguity, but for the heading.

7. The correct construction of clause 37(1) is that the "association business" to which it relates is any of the activities listed in sub-clauses 37(1)(a) to 37(1)(d), on their plain and ordinary meaning.

12      Ground 2 is as follows:

Ground 2 - Meaning of "union business" in clause 37

The learned Industrial Magistrate erred in law and in fact in finding implicitly, if not expressly, at [47] and [48] that the term "union business" as it appeared in clause 37(1)(b) to (d), meant the professional operations or commercial dealings of the Appellant as a collective but did not include the union's dealings in individual member matters.

1. Her Honour erred by preferring the dictionary definition of "business" as professional operations or commercial activities over matters, dealings or activities, these latter terms being consistent with the objective intention of the instrument ascertained by reference to the words used in their context and industrial realities.

2. Her Honour erred by failing to give the term a generous construction. None of the text or the context of the clause indicated a requirement to limit the term to professional or commercial matters or activities nor to collective matters or activities.

3. None of the ordinary accepted meanings of the word "business" exclude dealings in individual member matters.

4. Her Honour erred by having regard to inadmissible evidence, namely the Appellant's Rules, in support of Her Honour's construction in circumstances where there was no evidence that the Rules were current or known to the parties at the time of the making of the Public Service Award 1992 such that the Rules were relevant and admissible surrounding circumstances.

13      As to ground 1, in summary, and hopefully not doing any injustice to the detailed and careful submissions made, the appellant contended that the terms of cl 37(1)(a) are clear and unambiguous. It was submitted that taken as a “stand alone” provision, there is no warrant to read it down as conditioned by the other subclauses in cl 37.  The appellant submitted that cl 37(1)(a) means what it says:  if an officer is required to attend or to give evidence before an industrial tribunal, for any purpose, that is enough to trigger the entitlement.  According to the appellant’s submissions, it is to impose an impermissible gloss on cl 37(1)(a) of the Award, to require the proceedings to be concerned with Association or union business. The learned Industrial Magistrate erred in so concluding, as the appellant’s submission went.  Furthermore, support for this approach to the interpretation, as advanced by the appellant, was said to be found in cl 37(2)(b), which draws a distinction between “union business” on the one hand, and “evidence to be given” on the other.

14      It was also contended that the learned Industrial Magistrate was in error in placing any weight on the heading to cl 37.  This submission was put on the basis that a heading to a statutory provision cannot be used to detract from or to impair the meaning of such a provision, in cases where its meaning is clear and unambiguous.

15      As to ground 2, in the alternative, the appellant contended that even if cl 37(1)(a) must be concerned in some way with Association or union business, then the proceedings brought before the Appeal Board by Mr Mayerhofer, subsequently as represented by the appellant, satisfied this criterion. Some support for this position was sought to be obtained from cl 36(5), set out above.  The appellant submitted that the concept of “union business”, in the context of that provision, given the range of matters it sets out, is broad.  Some distinction was also drawn between cl 37 – Leave to attend Association business, on the one hand, and cl 41 – Witness and Jury Leave, on the other.

16      Reference was also made to the history of both cls 37 and 41, as being formerly the subject of Administrative Instructions under the former public service legislation.  A distinction was sought to be drawn between the history of these provisions and cl 36 of the Award, which was not formerly an Administrative Instruction, and which was introduced into the Award by way of a consent variation in 2004. It was not immediately clear how it is that this history assisted the appellant in its contentions.  It was accepted that these matters were not raised or argued before the Court at first instance.  I comment on this issue further below.

17      There was also a general submission made that the subject matter of Mr Mayerhofer’s claim before the Appeal Board was an “industrial matter” for the purposes of the Act.  Also, the subject matter of his claim before the Appeal Board, and the fact that he was represented by the appellant, was directly connected with the relationship of employer and employee.  Accordingly, the appellant contended this was not a personal or private matter, contrary to the conclusions reached by the learned Industrial Magistrate.  As an extension of this argument, the appellant referred to s 112A(3) of the Act, in relation to the representational rights of the appellant, despite the terms of the Legal Profession Act 2008 (WA). By s 112A(3)(c) and (e), an officer of the appellant is permitted to provide advice and other services to a member of the appellant in relation to industrial relations matters. Consequently, according to the appellant, such advice and representation constitutes “union business”.

18      Therefore, the distinction that the learned Industrial Magistrate drew between private business on the one hand, and union business on the other was, according to the appellant, arbitrary and without proper foundation. It was submitted that there may be types of matters, such as unfair dismissals, workplace grievances and workers’ compensation matters, that may also be personal or private in nature to an individual, but are still nonetheless, union or Association business.  This extends to the core function of the appellant, in furthering its objects, by assisting and providing representation of members in relation to workplace matters, including in relation to matters that concern an employee’s individual employment circumstances. The appellant also submitted that on the learned Industrial Magistrate’s construction of cl 37(1)(a) of the Award, matters arising under s 66 of the Act, dealing with allegations of non-compliance with union rules and matters under ss 72 and 72A, dealing with amalgamations and the representational rights of unions, would also be excluded.

19      The respondent relied upon and adopted its submissions at first instance, for the purposes of the appeal. In this respect as to the first issue, the respondent submitted that whilst at first sight and taken literally, cl 37(1)(a) would entitle an officer to paid leave to attend or give evidence before an industrial tribunal, irrespective of the nature of those proceedings, the provision must be read in context.  This was especially so in circumstances where, as here, the scope of the provision in question is ambiguous. When taken in its context, given the nature of the activity of unions in making, varying and enforcing industrial instruments; in conducting negotiations on behalf of members and other such matters, as expressly referred to in other parts of cl 37 of the Award, then cl 37(1)(a) must be read as referring to proceedings before industrial tribunals in relation to the appellant’s business and not just for any reason.  It was also contended by the respondent that the heading to cl 37 can be used as a guide to the intended scope of the provision and assistance can be gained from the terms of other clauses of the Award, including cl 41-Witness and Jury Service.

20      As to the second issue, if these contentions are correct and there is a requirement in cl 37(1)(a) that union or Association business be involved, then this criterion was not satisfied in this case. This was because on the respondent’s case, the appellant did not and indeed could not, commence the appeal to the Appeal Board in its own right, because it had no standing to do so under s 80I of the Act. It was effectively acting as Mr Mayerhofer’s agent in acting on his instructions to pursue an appeal in relation to an individual grievance he had with his employer. This grievance was unrelated to any wider issue with the appellant’s members of an industrial relations nature, such as for example, proceedings under s 44 of the Act, that may have implications for the appellant’s members more broadly.

Consideration

21      For the following reasons, I am not persuaded that the appellant has made out these grounds of appeal.

22      I have set out the relevant provisions of the Award above. By cl 37(1)(a) an “officer” is to be granted paid leave if they are “required to attend or give evidence before any Industrial Tribunal”. There was no dispute in the proceedings at first instance that Mr Mayerhofer is an “officer’ as defined in cl 6 – Definitions of the Award, as being a public service officer employed in the public service under Part 3 of the Public Sector Management Act 1994 (WA).  There can also be no doubt, and as the learned Industrial Magistrate found, that the Appeal Board is an “Industrial Tribunal”, it being a constituent authority of the Commission, constituted under Part IIA Division 2 of the Act.

23      Clause 37 is headed “Leave to Attend Association Business”. Whilst for the purposes of statutes, headings to sections are not part of the written law, headings to Parts, Divisions and Subdivisions do form part of a written law and regard may be had to them: s 32 Interpretation Act 1984 (WA).  This is subject to the proviso that in the case of a conflict between the text of a statutory provision, where the latter is unambiguous, the heading must give way (See generally DC Pearce and RS Geddes Statutory Interpretation in Australia 4th edition at [4.35]). In my view, the terms of cl 37(1)(a) are not clear and unambiguous.  Furthermore, given this is an award rather than a statutory provision, and a generous approach is to be taken to the interpretation of terms of the Award read as a whole, I see no reason to not give some weight to the clause heading, as an indication of the subject matter that the draftsperson had in mind, when the terms of the Award were settled.

24      Notably, the clause heading refers to “Association Business” and to “union business” in the body of the clause in cls 37(2)(b), (3), (5) and (6)(a).  Given the definition of “Union” in cl 6 – Definitions of the Award, as the Civil Service Association, plainly, reference to “Association” and “union”, for the purposes of the Award generally and cl 37, are one and the same. There is no definition of “Association Business” or “union business” in cl 6 – Definitions or elsewhere in the Award. The phrase should be given its ordinary and natural meaning, unless the context in which the words are used require otherwise.  There is context in this case.

25      The context is that the relevant phrases are used in an industrial award and the parties to it are the appellant (the Association or union) and the employers listed as named respondents. The terms of the Award prescribe conditions of employment for employees governed by it, the rights and entitlements of the Association as a union, and the employees and employers bound by it. Those rights, obligations and entitlements are of an industrial relations nature. Furthermore, as to context, some indication of the intention of the framers of the subclause and the meaning of cl 37 as a whole, can also be gleaned from other parts of cl 37, such as subclauses (1)(b), (c) and (d), and also, from the terms of cl 36 – Union Facilities for Union Representatives, in particular cls 36(1) and (5), especially (5)(a).  I do not consider that cl 37(1)(a) should be read in isolation, as appeared to be the import of some of the appellant’s submissions. To do so would be contrary to the established principles of interpretation, to which I have referred. 

26      Clause 37(1)(b) concerns attendance at negotiations, proceedings before an industrial tribunal and meetings with Ministers and government representatives. Clause 37(1)(c) seemingly covers meetings preparatory to those types of activities set out in cl 37(1)(b).  Joint management committees etc are the subject matter of cl 37(1)(d). It seems clear that taking pars (b), (c) and (d) together, that they concern themselves with activities of an industrial relations nature, engaged in by representatives of the appellant, who are nominated by it, and others with whom they have dealings, about matters that one would traditionally associate with the normal industrial activities of a union on behalf of its members generally.

27      In my view, the scope of the right conferred by cl 37(1)(a) is also confirmed by comparing it with the terms of cl 41 – Witness and Jury Service, set out above.  By cl 41(2) and (3) an officer subpoenaed or called as “a witness in any proceeding” in an official capacity or on behalf of the crown, is entitled to paid leave.  Under cl 41(5), an officer called as a witness or subpoenaed in any other case, is only entitled to leave without pay. There is a conflict between cl 41(5) and cl 37(1)(a).  It is not at all apparent why, and it would be an odd result, if a person called in a personal capacity to give evidence in proceedings other than  industrial tribunal proceedings is not entitled to paid leave, but the same person, called to give evidence in the same kind of proceeding, would be entitled to paid leave simply because the proceedings were before an industrial tribunal, without there being the need for it to be “official” union business.  

28      Furthermore, and put another way, the distinction between cl 37(1)(a) and cl 41 is also illustrated by the fact that for the purpose of cl 41, the reference to giving evidence is in relation to “any proceedings”, which could include any tribunal, whereas the draftsperson of cl 37(1)(a) confined the proceedings to those before an “industrial tribunal”. It seems somewhat incongruous that if there is no necessary connection between the requirement “to attend and give evidence” and union business, as on the appellant’s principal contention, that the draftsperson would confine the attendance or the giving of evidence in cl 37(1)(a) to such a tribunal, rather than to courts and tribunals more generally.

29      I refer to the appellant’s argument that cl 37(2)(b) supports its principal contention, because it draws a distinction between union business to be conducted on the one hand, and the giving of evidence on the other.  I do not consider this provision can be read in the way submitted. As pointed out by the respondents in its oral submissions to the Full Bench, this provision does not make any reference to a requirement to attend before an industrial tribunal, being the first limb of cl 37(1)(a).  As a matter of construction, in the context of cl 37, it thus would make sense to subsume this activity into the broader concept of union business, otherwise it would be an activity unaccounted for in the clause.  As to the giving of evidence, it would be an odd result if this activity was to be separate and distinct to the requirement to attend before an industrial tribunal, which is union business, and the giving of evidence is not. Taken in its context, I think the draftsperson intended both activities to be considered in the same way.

30      Clause 37(3) provides that no expenses are payable to an officer who attends to union business. If the appellant’s principal submission was accepted, then officers required to engage in the activities set out in cl 37(1)(b), (c) and (d) would not be entitled to the payment of any expenses incurred by them.  However, on its face, no such exclusion would apply to officers engaged in the activity in cl 37(1)(a), if that activity is not characterised as union business. There would seem to be no logical reason for such a distinction, given that officers, especially those required to travel any distance from their home base, may all incur some expenses in doing so.

31      Additionally, cl 37(5) provides that no paid leave is available to attend to union business, other than as set out in cl 37. Given there is no reference to business other than union business in this provision, suggests that it is only union business, and not other business, such as attending at or giving evidence before an industrial tribunal, that is the subject matter of the entitlement prescribed by the clause. 

32      Finally, it is to be noted that cl 37(6) contains several exclusions to paid leave to attend to union business.  One, in cl 37(6)(a), refers to the circumstance of a “special arrangement” with the union, which is the appellant, to provide for unpaid leave to deal with union business. Notably, the making of such a special arrangement with the union itself, in relation to officers conducting such business, tends to confirm the linkage between the business to be undertaken and the union as an entity and the activities it engages in on behalf of its members.             

33      As to the written and oral submissions of the appellant in relation to the history of cl 37, it was conceded when the matter was raised by the Full Bench, that such issues had not been raised or argued before the learned Industrial Magistrate at first instance.  Whilst the issue does not relate to a matter that may have been met by the other side with additional evidence, nonetheless, the well settled principle is that except in very exceptional circumstances, a party may not raise a point or issue on appeal, that was not taken in the proceedings at first instance: Whooley v Shire of Denmark [2019] WASCA 28; (2019) 99 WAIG 87 citing Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418; University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Water Board (NSW) v Moustakas [1988] HCA 12; (1988) 180 CLR 491. No exceptional circumstances were raised by the appellant and in my view, none are apparent, in terms of the interests of justice, that would warrant departing from this principle. In any event, I note that the proceedings before the Commission referred to by the appellant, leading to the making of the Public Service Award 1992, as it then was, proceeded by consent without any specific reference to the relevant provisions of the Award. The other history referred to by the appellant, related to the former terms of cl 36 of the Award, which appeared to have been included in various industrial agreements, without any determination by the Commission.     

34      Therefore, I consider that on its proper construction, cl 37(1)(a) is not, contrary to the submissions of the appellant, to be considered as a “stand alone” provision, entitling an officer to paid leave of absence if they are required to attend or give evidence before an industrial tribunal for any reason, unrelated to Association or union business, as that phrase should be understood. To construe cl 37(1)(a) in the way urged by the appellant, would require the reader to disregard the rest of the clause and other relevant provisions of the Award and accordingly, the context in which cl 37(1)(a) appears.

35      The next question is the meaning of union or Association business and whether Mr Mayerhofer’s proceedings before the Appeal Board could be so characterised. The ordinary meaning of the word “business” includes “an activity…function, stated occupation, profession or trade…” (Shorter Oxford Dictionary). Taking into account the terms of cl 37 as a whole, whilst not wanting to overly confine or limit what activity may be involved, the phrase “Association Business” or “union business” wherever it appears, for the purposes of cl 37, should be considered as relating to the functions, trade or work of the appellant as a collective, which the appellant is, as a registered organisation under ss 60 and 61 of the Act, in relation to activities such as negotiations with employers about terms and conditions of employment for members; proceedings before industrial tribunals in connection with matters pertaining to members of the appellant and to which the appellant is a party principal; the participation in joint committees with employers; meetings with Government Ministers and other government staff in connection with industrial and employment matters and other like activities. In short, as was concluded by the learned Industrial Magistrate, these can be described as the “professional operation of the claimant or the commercial activity or dealings of the claimant… and its operation as a collective” (see reasons at first instance pars 45-48). 

36      Furthermore, whilst not in any way detracting from this view, there also seems to be a conceptual distinction between leave for engaging in “union or Association business” under cl 37, by a “union–nominated representative”, in relation to which conditions are prescribed in cl 37(2) on the one hand, and the work of “union representatives” in cl 36, on the other. In the case of the latter, these persons as representatives, or “workplace delegates” as they are otherwise known, engaging in the types of activities contemplated by cl 36, have an unqualified right to paid time off from normal duties “to perform their functions as union representatives…” By cl 36(5)(a), such union representatives are also entitled to “attend union business in accordance with cl 37 – Leave to Attend Union Business of the Award”.  This latter reference tends to suggest that there is some distinction to be drawn between the performance of functions by union representatives under cl 36 on the one hand, and the grant of paid leave to attend to Association or union business, on the other. 

37      The right or entitlement to “paid time off from normal duties” for the purposes of cl 36(5)(a) appears to contemplate a workplace union representative engaging in the type of functions there set out, in the workplace itself. That is, the duties normally associated with a union workplace delegate. This is emphasised in cl 36(1), which specifically refers to the performance of functions “in the workplace, agency and union electorate”. In contrast, cl 37 contemplates the taking of “paid leave” to attend to certain matters, which seems more concerned with the engagement of officers or union-nominated representatives, other than union representatives under cl 36, in activities away from the workplace. Whilst such a union representative under cl 36 may also be a “Union-nominated representative” under cl 37, there seems no requirement for it to be the same person.  I also note in this respect, that whilst “individual grievance handling” is a specified activity in cl 36(5)(a) for a union representative, there is no reference to such matters in cl 37.  The fact that a union representative in the workplace, for the purposes of cl 36 may apply for leave under cl 37, seems to reinforce the distinction between the two types of activities and those who may engage in them. There does not seem, from the language used in cl 36(5)(a), an entitlement to such leave by a union representative. If an application for leave was to be made, then the terms of cl 37 would need to be complied with.

38      Thus, I am not persuaded by the appellant’s submissions to the effect that the activities set out in cl 36(5) inform the meaning of union business for the purposes of the present matter such that it may be regarded as one and the same thing as union business under cl 37.  There is no doubt the terms of cl 36(5) set out what union representatives may do in the workplace and receive paid time off normal duty to attend to.  However, the context is different.  For example, there could be no suggestion that the activity of “organising and recruiting”, which is part of the functions of a union representative in cl 36(5), could inform the meaning of cl 37(1)(a), in terms of an application for paid leave.  Certainly, there is reference to “collective bargaining”, which could find parallels with cl 37(1)(b) and (c).  However, the crucial issue is what the entitlement is in cl 37, which was the basis of Mr Mayerhofer’s claim.

39      Further, the references to “Union-nominated representative” and “official Union meetings” in cl 37(1)(b), (c) and (d), reinforce the required connection between the request for leave by an officer and the relevant business involved, being related to the appellant as an entity, in the conduct of its activities contemplated by cl 37(1) as a whole.

40      Returning to the central issue, having regard to the foregoing, I do not consider that cl 37(1)(a) is concerned with the grant of paid leave to an officer who has personally commenced a proceeding in an industrial tribunal against their employer, for the purposes of vindicating a right particular to that individual. Furthermore, I do not consider that cl 37(1)(a) contemplates the provision of paid leave to an officer who may be called to give evidence in a proceeding commenced by another officer, for these purposes, either. The conclusion of the learned Industrial Magistrate that Mr Mayerhofer’s appeal did not involve any connection with “union business” in the relevant sense was, in my view, correct.

41      There may well be certain situations where the appellant, as a registered organisation, commences a proceeding in its own right, but on behalf of a member(s), which proceeding has as its purpose or purposes for example, the establishment or the variation of a matter of significant industrial principle, such as a “test case”, where it may be able to be established that such a proceeding before an industrial tribunal, is “Association Business” or “union business”.  This could include as examples, the notification of disputes and conference proceedings under s 44 of the Act, that are ultimately referred for arbitration. There could also be disputed applications by the appellant to vary award(s) of the Commission, as another example, that have a relevant connection with the appellant’s business on behalf of its membership. An officer required to attend, perhaps to produce documents or to provide instructions, or to give evidence in any such proceedings may well, depending on the facts, be required to do so in the course of “attending to Association or union business”.

42      However, the proceedings instituted by Mr Mayerhofer were instituted in his name and in respect of a matter arising from an individual grievance he had with his employer. There was no evidence or suggestion that it involved any notion of the broader membership of the appellant, as a collective, or the public service generally. Nor was there any evidence or suggestion that it had any impact on other persons as members, or those eligible to be members, of the appellant. 

43      Furthermore, simply because it may be said that for the purposes of cl 36(5)(a), a union representative is able to have paid time off to assist Mr Mayerhofer in relation to his handling of his grievance in the workplace at the time that it arose, this does not transform that same grievance into “union or Association business” as that phrase is contemplated by cl 37, by the commencement of proceedings by Mr Mayerhofer, in his own right. The purposes of these two clauses, and the rights and entitlements they confer, seem to be, to a degree at least, separate and distinct.

44      I therefore do not consider that Mr Mayerhofer’s claim before the Appeal Board, seeking to overturn the imposition of a disciplinary penalty applicable to him alone in the workplace, should be regarded as, or has in some way, been transformed into Association or union business, as that concept should be understood, simply because the appellant subsequently represented Mr Mayerhofer in those proceedings, in its representative capacity.  It is the proceedings themselves that must be able to be characterised as being union or Association business. If they could not be so described by Mr Mayerhofer commencing and prosecuting his claim on his own behalf, it is difficult to see how this requirement could be met by the simple expedient of the appellant subsequently representing him. The fact that the appellant did so, did not in any way alter the character of the proceedings before the Appeal Board.  It also is the case that such appeals, as s 80I(1) of the Act makes clear, are made by the individual public service or government officer concerned, although they may be instituted by the officer or the appellant, on the officer’s behalf, under s 80J. 

45      In its submissions, the appellant drew attention to the objectives of the appellant, which I take to mean the terms of its registered Rules, in Rule 3 - Objects. Whilst the appellant seemed to take objection in par 4 of appeal ground 2, to her Honour’s reference to the appellant’s Rules, there was no argument on this point in either the written or oral submissions. A copy of the appellant’s Rules was tendered in evidence by the respondent at first instance, without objection by the appellant (see transcript at first instance p 25 and exhibit 2). According to the Rules, they were certified by the Registrar as current and correct as at 16 April 2014. There was no difficulty in her Honour referring to them, particularly as there was no objection from the appellant at first instance.  She did so (see pars 41, 42, and 50 reasons at first instance) to highlight the nature of the services provided by the appellant to a member such as Mr Mayerhofer, under its Rules, such as the provision of welfare and representational services. This was in the context of the distinction between the provision of those services on the one hand, and the nature of Mr Mayerhofer’s appeal, on the other, and that there was no connection between them. The learned Industrial Magistrate in effect concluded that the fact Mr Mayerhofer availed himself of those services of the appellant under its Rules, to assist him with his appeal, did not “re-characterise the Appeal so that it becomes union business” (see par 50 reasons at first instance). I agree. I also refer to my reasons at par 44 above, without repeating them.

46      The industrial activities of the appellant, in terms of negotiations, applications to industrial tribunals etc, are referred to in sub rule 3(b) and its advisory and representational services to members, are dealt with in sub rule 3(p) of its Rules.  In connection with this, the submission was made that conduct of this kind in accordance with the appellant’s objectives was “union business” and thus, the advice to and representation of Mr Mayerhofer should be so described, even if it was accepted, contrary to the appellant’s principal contention, that cl 37(1)(a) must involve union or Association business. Whilst this argument may have some superficial attraction, it must be remembered that the contravention alleged at first instance was not that the respondent had denied Mr Mayerhofer the opportunity to access his rights as a member of the appellant, but that he had been wrongly refused paid leave under cl 37(1)(a) of the Award. This entitlement to leave is not for the purposes of obtaining advice or representation in relation to his individual grievance with his employer, which no doubt is part of the day to day work of unions for their members, but for the purpose of attending to union business, as that concept should be understood in the context of cl 37 of the Award.

47      I also regard the appellant’s submissions in relation to s 112A(3) of the Act in a similar vein. This section of the Act concerns the registration of industrial agents generally and the conduct of the appellant in its representative capacity.  I do not think that it assists the appellant in relation to the interpretation and enforcement of cl 37(1)(a) of the Award.

Ground 3

48      This ground of appeal is in the following terms:

Ground 3 - Freedom of Association

The learned Industrial Magistrate erred in law and in fact in finding at [95] to [100] that section 96B of the Industrial Relations Act 1979 (WA) precluded the operation of clause 37(1)(a) in the manner contended for by the Appellant, Her Honour's finding being manifestly unreasonable.

(1) Sub-clause 37(1)(a) cannot operate in the discriminatory manner which was alleged because the entitlement is not qualified by the requirement that the officer claiming the entitlement be a member of the Appellant or any union.

(2) The observations at paragraphs [95] to [100] contained speculation as to the application of clause 37 in relation to non-union members, which was not supported by evidence.

49      As noted at the outset, given the learned Industrial Magistrate’s conclusions at first instance, the determination of this issue was not necessary for the disposition of the proceedings below. As I have concluded that grounds 1 and 2 of the appeal have not been made out, it is not necessary to consider the arguments on this ground any further. This matter is best left to another occasion, when the issue is fairly and squarely raised for consideration.

Conclusions

50      The appeal must be dismissed.

EMMANUEL C:

51      I have had the benefit of reading the draft reasons of the Senior Commissioner.  I agree with those reasons and have nothing to add.

MATTHEWS C:

52      I also have read the draft reasons of the Senior Commissioner. I too, agree with those reasons and have nothing further to add.