[2014] FWCFB 2823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

SENIOR DEPUTY PRESIDENT WATSON DEPUTY PRESIDENT KOVACIC COMMISSIONER BISSETT

MELBOURNE, 5 MAY 2014

Appeal against decision [2013] FWC 10161 of Commissioner Wilson at Melbourne on 23 December 2013 in matter number C2013/5148 — permission to appeal refused — appeal dismissed.

[1] On 13 January 2014 the Australian Municipal, Administrative, Clerical and Services Union (ASU) filed an appeal, pursuant to s.604 of the Fair Work Act 2009 (the Act) against the decision of Commissioner Wilson of 23 December 2013. 1 The decision concerned an application under s.739 of the Act by the ASU in respect of the accrual of sick leave by outdoor depot employees employed by Hobsons Bay City Council (the Respondent). The employees were employed under the Hobsons Bay City Council Enterprise Agreement – 2010 (the Agreement) and worked a nine-day fortnight.2 On 13 February 2014 the ASU sought to amend its application to add an additional ground of appeal. After hearing the parties on this aspect, we granted permission to the ASU to amend its appeal grounds.3

[2] Mr E Burgio appeared with permission for the ASU together with Mr S Shephard, while Mr T Donaghey of Counsel appeared with permission for the Respondent.

[3] For the reasons set out below we have decided not to grant the ASU permission to appeal and dismiss the appeal.

The decision of Commissioner Wilson

[4] Commissioner Wilson was asked to determine a dispute regarding the correct interpretation of the Agreement’s provisions relating to accrual of sick and carer’s leave and the consequential arrangements which apply when the relevant employees take such leave. The dispute is confined to outdoor depot based employees who work a 38 hour week as a nine-day fortnight, worked as eight days of eight and a half ordinary hours duration and one day of eight ordinary hours duration.

[5] In respect of sick leave, the Agreement provides, inter alia, at clause 39.2 of Part B, that employees “with twelve months service or more will be entitled to have twelve ordinary days leave (pro rata for Part-time) credited to the employee in respect of the ensuing year, without loss of pay”. Employees with less than twelve months service are entitled to “leave of absence of one ordinary day for each completed calendar month of service, without loss of pay”.

[6] In his decision, Commissioner Wilson set out the relevant provisions in the Agreement and characterised the question that he needed to determine in the following way:

“ Whether the correct interpretation of the Agreement is that it provides for the accrual and taking of 12 actual days of sick and carer’s leave based on the hours that would be actually worked in ordinary time on 12 ordinary days of work, equivalent to 101.28 hours per year in the case of outdoor depot based employees working a nine-day fortnight; OR

[7] In short, the ASU supported the first of the above approaches, while the Respondent preferred the latter approach. In considering the issues, Commissioner Wilson explored the different uses of the term “ordinary” in the Agreement concluding that the term is:

“. . . used within the Agreement in different contexts, and is most usually used to consistently draw a distinction between that which is within unloaded, non-penalty time, and that which deserves different, special or penalty treatment.” 5

[8] In his decision Commissioner Wilson cited extensively the decision of Commissioner Asbury (as she then was) in The Australian Workers’ Union v BP Refinery (Bulwer Island) Pty Ltd (Bulwer). 6 In doing so, he acknowledged at paragraphs 33 and 36 of his decision the factual differences between the dispute before him and the matters canvassed in Bulwer. Nevertheless, he drew from the decision in Bulwer the following principles which he adopted as relevant to the interpretation of the Agreement before him:

“ The entitlement to a particular number of ‘days’ or ‘ordinary days’ leave does not lead to the view that there is a requirement that paid Personal/Carer’s Leave accrues at the rate it is taken.

[9] Applying these principles, Commissioner Wilson formed the view that:

“[37] Within the context of the Agreement, construed as a whole, the phrase ‘entitled to have twelve ordinary days leave . . . without loss of pay’ means an entitlement to leave equal to the time that would be worked on 12 ordinary days of 7.6 hours duration. The word ‘ordinary’ is used in the Agreement to distinguish between ordinary, uneventful or unpenalised time and different words or phrases are used when something else is intended.

[38] The proper construction of the Agreement is that an employee has an entitlement to leave calculated on the basis of a notional day, which is consistent with sick leave accruals being based on the concept of averaging, and is consistent with leave sometimes being taken at a different rate to that at which it accrues because of the applicable rostering arrangements.”

[10] This in turn led him to determine that:

“. . . the correct interpretation of the Agreement is that it provides for a sick leave entitlement accrual of 12 ordinary days per year, notionally of 7.6 hours each, equivalent to an accrued entitlement of 91.2 hours per [year] in the case of outdoor depot based employees working a nine-day fortnight.” 8

The request to admit new material

[11] The submissions and evidence led in the proceedings before Commissioner Wilson did not in any substantive way canvass the history or genesis of the relevant provisions in dispute. Those provisions are set out in the Victorian Local Authorities Award 2001 (the 2001 Award) which forms part of the Agreement.

[12] In its written submissions, the ASU sought to draw on a number of relevant provisions of predecessor awards to the 2001 Award. In particular, the ASU sought to draw on the sick leave provisions of the Municipal Employees’ (Victoria) Award, 1981 9 (the 1981 Award), the Local Governing Authorities, Employees (Victoria) Award 198410 (the 1984 Award) and the Victorian Local Authorities Interim Award 199111 (the 1991 Award) to guide the interpretation of the meaning of the equivalent provisions in the 2001 Award. The ASU described the documents as extrinsic material as opposed to evidence. In response to questions from the Full Bench, the ASU indicated that none of this material was put or relied upon in the proceedings before Commissioner Wilson “. . . simply because they were not available to the ASU at the first instance.”12 Relying on Moshirian v University of New South Wales (Moshirian),13 the ASU contended that historical material relating to an agreement can be a permissible extrinsic aid to interpretation. The ASU also cited Short v F W Hercus Pty Limited (Hercus)14 as supporting a reliance on historical instruments as an aid in interpreting the meaning of a provision in an award or agreement.

[13] The Respondent submitted that, as it was unaware what the ASU intended to say in respect of these historical provisions, prejudice to the Respondent weighed against the ASU being able to rely on the material. The Respondent further submitted that the absence of any explanation of the provisions by someone with knowledge of them rendered them of “limited value” and warranted the Fair Work Commission (the Commission) exercising its discretion against admitting the additional material. 15

[14] Section 607 of the Act, which sets out the process for appealing and reviewing decisions, provides at s.607(2) that:

“The FWC may:

(a) admit further evidence; and

(b) take into account any other information or evidence.”

[15] The principles governing the exercise of the discretion to admit further evidence are set out in Akins v National Australia Bank 16 (Akins). In Akins, the Court held at that:

“Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.” 17

[16] We now turn to address each of the principles set out in Akins.

Principle 1

[17] As noted above, the ASU submitted that the material which it now sought to draw on in the appeal was not available to it at the time the matter was heard by Commissioner Wilson. In response to questioning from the Full Bench, the ASU indicated that at the time of the hearing before Commissioner Wilson it was unable to obtain copies of the various awards and “wasn’t aware of what relevance, if any, these instruments might have.” 18 Further, the ASU conceded that in seeking to obtain copies of the instruments it did not make an inquiry of the Commission’s Library until after its initial notice of appeal was lodged in January 2014.19

[18] While we acknowledge the potential difficulty in obtaining documents which are up to 33 years old, in our view the ASU offered no compelling reason as to why the material could not have been obtained for use in the proceedings before Commissioner Wilson. In our view, in circumstances where the material was not held by the ASU, one of the first ports of call should have been the Commission as the owner of the instruments. Based on the ASU’s responses at the hearing, it appears that this course of action did not occur until after Commissioner Wilson’s decision had been handed down. As such, it could be seen as something of an afterthought.

Principle 2

[19] The ASU submitted that the instruments clearly inform the interpretation of the 2001 Award, highlighting the change to the measure of sick leave from hours to days in the 1984 Award as determinative of the conclusion which the Commission should reach regarding the meaning of the provisions.

[20] The Respondent submitted that in the absence of any explanation of the material by any person the material is of “limited value” in drawing a conclusion that there was an error at first instance. 20 The Respondent referred to Hercus as “one well known authority that in order to use drafting as an extrinsic aid and as a historical background . . . one must have something of the history beyond the mere drafting.”21

[21] The material itself shows that a transition provision was included in the 1984 Award to guide the change from a 40 to 38 hour working week. The provision also defined the terms “one ordinary day” and “twelve ordinary days”. The provision, which is set out below, did not appear in successor awards.

“41—SICK LEAVE

. . .

Transition provision and definition

(g) (i) The hours of accumulated sick leave standing to the credit of an employee as at 1 November 1983, shall be converted to days by dividing the total number of hours by eight.

(ii) For the purpose of this clause, from 1 November 1983 ‘one ordinary day’ and ‘twelve ordinary days’ shall have the following meaning:

(1) during the first year of service:

in circumstances where the employee works 38 hours per week ‘one ordinary day’ shall be one day of 7.6 hours; and

in circumstances where the employee works on a roster wherein he/she has a rostered day off during that work cycle, ‘one ordinary day’ shall be one day of eight hours.

(2) During subsequent years of services:

in circumstances where the employee works 38 hours per week ‘twelve ordinary days’ shall be twelve days not totalling more than 91.2 hours; and

in circumstances where the employee works on a roster wherein he/she has a rostered day off during that work cycle, ‘twelve ordinary days’ shall be twelve days not totalling more than 96 hours.”

[22] While it is not surprising that the transitional component of the provision did not appear in successor awards, it is surprising that the definitional elements of the provision did not survive in successor awards. No explanation was provided as to why this may have been the case. In our view, in the absence of any probative material indicating that the intent of the parties was for the definitions in clause 41(g)(ii) of the 1984 Award to have continuing operation in circumstances where those definitions did not appear in successor awards, the predecessor instruments provide little guidance on how the contemporary provisions in the Agreement should be interpreted. Further, we note that the definitions in clause 41(g)(ii) do not appear to support the interpretation of the Agreement’s sick leave provisions advanced by the ASU either before Commissioner Wilson or before us. Accordingly, we consider that the material, if it were to be admitted, would not be likely to lead to, let alone, as per Akins, offer a high probability of leading to, a different verdict.

Principle 3

[23] While the credibility of the documents was not challenged, as we said in respect of principle two, their value is limited in the absence of any material indicating the underlying intent of the parties regarding the relevant provisions, particularly as to the continuing application of the definitions in clause 41(g)(ii) of the 1984 Award.

Conclusion

[24] As noted above, the ASU cited both Moshirian and Hercus to support its submission that the Commission should admit the various instruments it sought to draw upon in its submissions. However, in both of those cases historical material was at first instance either relied upon to support a particular interpretation of the relevant agreement provision or alternatively used to construe the meaning of the relevant provision. In the matter before us, it is not disputed that the historical material which the ASU sought to draw on was not raised in the proceedings before Commissioner Wilson.

[25] Against that background, and having regard to the principles set out in Akins, we see no basis for agreeing to admit the additional material as sought by the ASU.

The appeal

The ASU’s grounds of appeal and submissions

[26] The ASU’s amended grounds of appeal cite three grounds:

“1. The Commissioner erred in finding that the correct interpretation of the Agreement is that it provides for a sick leave entitlement accrual of 12 ordinary days per year, notionally of 7.6 hours each, equivalent to an accrued entitlement of 91.2 hours per year in the case of outdoor depot based employees working a nine-day fortnight.

2. The Commissioner erred in his interpretation of ‘ordinary days leave’ in clause 39.2.3 of Part B of the Agreement.

3. The Commissioner erred in failing to give any or adequate reasons for his consideration and determination of the matters of interpretation, as outlined in grounds 1 and 2 above.”

[27] In its written submission, the ASU dealt with grounds 1 and 2 jointly. In this regard it submitted that Commissioner Wilson misconstrued the relevant clauses in the Agreement and the objective mutual intention of the parties concerning sick and carer’s leave entitlements. Further, the ASU alluded to Commissioner Wilson’s reliance on the decision in Bulwer, submitting that the decision had no bearing on determining the intention of the parties in the 2001 Award and the Agreement. More particularly, the ASU contended, among other things, that: 22

1. Commissioner Wilson erred in construing the measure of sick leave as being hours as opposed to days or ordinary days as per clauses 37.1.1(a) and 39.2.3 of the Agreement respectively;

2. the term “day” should be given its ordinary meaning;

3. clause 33.3.8 of the Agreement deems the “ordinary hours of duty” to be an “ordinary day” for the relevant employees;

4. where the intention of the parties was for reference to a period of days or weeks to mean a specific number of hours, the Agreement makes this clear; and

5. the relevant employees work “ordinary days” which differ from the average hours per day.

[28] In respect of ground 3, the ASU relied on Barach v University of New South Wales 23 (Barach) as summarising the established principles on the duty to give adequate reasons for a decision. The ASU submitted that Commissioner Wilson failed to provide adequate reasons for his findings.

[29] The ASU reiterated the above in its oral submissions submitting that the accrual and the deduction of sick and carer’s leave should be based on days. 24 The ASU’s submissions relied on, in part, its construction of the various predecessor instruments to the Agreement and the 2001 Award. Consistent with our decision not to grant permission to admit that material, we have attached no weight to that aspect of the ASU’s submissions in our consideration. In any event, as previously alluded to, on their face and in the absence of probative material those predecessor instruments provide no guidance as to the objective intention of the parties in terms of the interpretation of the relevant provisions in successor instruments.

[30] As to the question of public interest, the ASU submitted that if Commissioner Wilson’s decision was wrong “. . . substantial injustice would be visited upon the ASU’s members and employees of the Respondent employer” and that the “. . . questions raised have not previously arisen on appeal . . . and affect, not only the parties to the dispute, but the wider Victorian local government sector”. 25

The Respondent’s submissions

[31] The Respondent submitted that the appeal has no merit as the ASU had not identified an error on the part of Commissioner Wilson. The Respondent further submitted that the Agreement does not deal with the taking of leave but the accrual of leave and that the ASU’s interpretation of the Agreement equated an “ordinary day” to an “actual day”. In this respect the ASU’s submissions ignored the evidence of Ms Carmitto, a payroll officer for the Respondent, at first instance that the Respondent had applied “ordinary day” as 7.6 hours for 24 years, with that practice speaking against the ASU’s contention. The Respondent also rejected the ASU’s characterisation of clause 33.3.8 of the Agreement as a deeming clause, describing the clause as existing to demonstrate the ordinary hours of duty of an employee. 26 While the Respondent did not query the principles of interpretation of industrial instruments cited by the ASU, it did submit, inter alia, that:

(i) “The mutual intention of how the deductions for leave should be taken is absent from the 2010 agreement” and “has been left to . . . custom and practice”; 27 and

(ii) “The process of compressing hours [of work] into a limited number of days . . . serves only to enlarge the entitlements of a group of employees . . .” where the Agreement does not provide for any other type of employment for that group. 28

Appeal principles

[32] This is an appeal brought under s.604 of the Act. That section is expressed as follows:

“604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.”

[33] The powers of the Commission in an appeal under s.604 of the Act are exercisable only if there is error on the part of the primary decision maker. There is no automatic right to appeal. Rather, an appeal may only be made with the permission of the Commission. However, the Commission must grant permission, if it is satisfied that it is in the public interest to do so.

[34] As noted by the Full Bench in Power Projects International Pty Ltd v Automotive, Food. Metals, Engineering, Printing and Kindred Industries Union: 29

“An appeal pursuant to s.604(1) of the Act is an appeal by way of re-hearing. The observations of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission as to the nature of an appeal under s.45 of the WR Act remain relevant. The Full Bench is required to be satisfied that there is error on the part of the primary decision maker before it can exercise its appellate power.”

[Citations omitted]

Consideration

Grounds 1 and 2

[35] These grounds go to the interpretation of the relevant provisions of the Agreement. The approach to the interpretation of industrial instruments was summarised by Vice President Lawler in Watson v ACT Department of Disability Housing and Community Services in the following way: 30

“In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales apply to the construction of industrial agreements. However, consistent with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.”

[Citations omitted, emphasis added]

[36] Consistent with that approach, and looking at the Agreement as a whole, we set out below the relevant provisions of the Agreement.

“PART A

. . .

17. CONDITIONS

. . .

17.2 Spread of Hours

For employees on standard engagement, the ordinary spread of hours of work for Outdoor, Depot based staff will be between 6.00am and 6.00pm, on any roster on Monday to Friday (inclusive). The spread of hours may also be varied or extended by agreement.

The ordinary spread of hours of work for all other staff on standard engagement will be between 7.00am and 7.00pm, on any roster on Monday to Friday (inclusive). The spread of hours may also be varied or extended by agreement.

Provided that where the applicable Part of this Agreement or other agreed arrangement designates the hours of work outside the hours of 7.00am and 7.00pm, the provisions of the applicable Part of this Agreement or the other agreement will apply.

17.3 Time in Lieu/Overtime

Senior Officers and Senior Executive Officers will not be eligible for time-in-lieu and/or overtime payments.

The intent of the parties is that an average of 7.6 hours per day will be worked by full time employees on standard engagement. However, by mutual agreement, up to ten hours per day may be worked as ordinary hours with management approval within the spread of hours. By mutual agreement hours in excess of 152 hours per 4-week cycle but within the spread of hours, may be taken as time off in lieu at the rate of single time. These provisions may also apply to part time staff where practicable.

Time worked in excess of 10 hours within the ordinary spread of hours in any one-day will be taken as time in lieu or paid as overtime in accordance with the relevant Award Schedule, provided such overtime has been approved in advance by the supervisor.

Staff must take time-in-lieu as soon as possible, and within two months of having worked it (unless otherwise agreed by supervisor/manager), and the maximum amount of time-in-lieu to be accumulated is 5 days at any one time.

17.4 Rostered Days Off

This condition applies to full time staff only.

Outdoor, depot-based staff will work a 9 day fortnight. This entitlement applies to existing and new outdoor, depot-based staff.

All other staff (except Senior Officers and Senior Executive Officers unless otherwise negotiated) will work a 19 day four week cycle except those who currently work a 9 day fortnight will retain a 9 day fortnight.

. . .

17.8 Sick Leave

To be in accordance with Parts B and C except that those staff who currently receive entitlements in excess of Parts B and C shall retain their entitlement.

. . .

PART B

. . .

33. ORDINARY TIME HOURS OF WORK

33.1 Standard engagement

Save for casual and part-time employees and the later provisions of this clause, the ordinary hours of duty will be 38 per week to be worked between 6.00 a.m. and 6.00 p.m. on Monday to Friday (both inclusive) with a break of not less than 45 minutes or more than one hour for lunch between noon and 2.00 p.m. Provided that by Agreement between the employer and employee(s) the minimum lunch break may be reduced to 30 minutes.

33.1.1 The starting and finishing times of ordinary work on any day within the daily spread of hours will be as determined by the respondent either generally or for particular employee(s) according to work requirements from time to time.

33.1.2 Where circumstances arise which necessitate the requirement for an earlier start or later finish than the normal spread of hours by agreement between the employee and the' respondent the ordinary hours of duty may extend beyond the above spread of hours.

33.1.3 Notwithstanding any other provisions of this clause where an employee works in a centre or work location in which the spread of hours is different from that specified in 33.1 hereof, he/she may be required to work in accordance with the hours specified in that centre or work location.

33.1.4 Subject to the further provisions of this award and agreements existing at the time of the coming into force of this provision the ordinary hours of work will not exceed eight hours in anyone day.

. . .

33.3 Notwithstanding the provisions of 33.1, upon the consent of the respondent and then by written agreement between the respondent and the employee and/or employees concerned following consultation the ordinary hours of duty of any employee or any employees other than those specified elsewhere may be worked at any time on any days, Monday to Friday inclusive.

. . .

33.3.8 The ordinary hours of duty of an employee on any day when he/she is rostered for work will be the hours specified for the roster for that day.

. . .

37. CARER’S LEAVE

NB This clause applies to all employees covered by this award.

37.1 Amount of paid carer’s leave

37.1.1 An employee, other than a casual employee, who is absent from duty on account of personal illness or accident other than for which workers’ compensation is payable, will be granted sick leave with pay on the following basis.

37.1.1(a) Employees bands 1 to 5 (physical community services)

one days leave for each month of employment in the first year of employment and three days bereavement/ compassionate leave for each occasion.

twelve days leave in the second and subsequent years of employment and three days bereavement/compassionate leave for each occasion.

. . .

39. SICK LEAVE

This clause is to be read in conjunction with clause 37—Carer’s leave

. . .

39.2 Employees bands 1 to 5 (physical/community services)

39.2.1 An employee, other than a casual employee or a part-time employee who is in receipt of an allowance in lieu, or an employee engaged under 15.5.1 (a) will be entitled to and will receive sick leave in cases where he/she is unable to perform his/her work by reason of illness or on account of injury by accident for which he/she is not entitled to workers’ compensation.

39.2.2 An employee other than a casual employee, or an employee engaged under 15.5.1 (a), who is absent from work on account of personal illness or on account of injury by accident for which he/she is not entitled to workers’ compensation will, on production (within 48 hours of the commencement of such absence) of evidence of his/her illness or injury satisfactory to the employer, be entitled to and will receive leave of absence of one ordinary day for each completed calendar month of service, without loss of pay.

Provided that the employee will notify the employer of such absence within the first part of what would have been his/her normal working day, where practical.

Provided further that for any absence, either the working day before or the working day after a rostered day off, or public holiday, an employee will be required upon request to provide a certificate of a duly qualified medical practitioner.

39.2.3 Notwithstanding the provisions of 39.2.2 hereof an employee with twelve months service or more will be entitled to have twelve ordinary days leave (pro rata for Part-time) credited to the employee in respect of the ensuing year, without loss of pay.”

[Emphasis of word “ordinary” added]

[37] The term “ordinary” is not defined in either Part A or Part B of the Agreement. As can be seen from the Agreement provisions above, the term “ordinary” is used in several contexts — “ordinary spread of hours” (clauses 17.2 and 17.3), “ordinary hours” (clause 17.3), “ordinary hours of duty” (clause 33) and “ordinary day” (clauses 39.2.2 and 39.2.3) — invariably to indicate hours of work which do not attract a penalty or loading. This is consistent with Commissioner Wilson’s conclusion as noted at paragraph 7 of this decision, a proposition with which the ASU agreed. 31

[38] The ASU contended that clause 33.3.8 of the Agreement deems the “ordinary hours of duty” to be an “ordinary day” for the relevant employees. However, it is noteworthy that clause 33.3.8 appears in a clause which deals with ordinary time hours of work. Further, the clause makes no specific mention of the term “ordinary day” and is not cross referenced elsewhere in the Agreement. Together, these factors support a finding that clause 33.3.8 does nothing more than reinforce the interpretation of the word “ordinary” as a reference to those hours which do not attract a penalty or loading. The use of the term “working day” in clause 39.2.2 of the Agreement, when setting out the notification and evidentiary requirements relating to the taking of sick leave, also suggests that the term “ordinary day” means something other than “ordinary hours of duty”.

[39] The ASU also contended that the accrual and the deduction of sick and carer’s leave should be based on days. The ASU cited Commissioner Lee’s comment in Australian Rail, Tram and Bus Industry Union and Australian Federated Union of Locomotive Employees v QR Limited T/A QR National, 32 as supporting its submission that the term “ordinary day” should be given its ordinary meaning. While we agree with Commissioner Lee’s observation, the circumstances in that matter differ from those in this case in a number of respects. For instance, the annual leave and personal leave entitlements in the agreement before Commissioner Lee were expressed in hours and also specified the deductions to be applied when leave is taken. Further, as noted above, an analysis of the use of the term “ordinary” in the Agreement before us indicates that it is used to connote unloaded or non-penalty time. The use of the term “ordinary day” as opposed to “day” further suggests a difference between the two terms. Our analysis of the Agreement does not support the ASU’s characterisation of the term “ordinary day” as equating to “actual day”.

[40] In the absence of any definition of the term “ordinary day” in the Agreement, we find no error in Commissioner Wilson construing an “ordinary day” as being of 7.6 hours duration given that clause 33.1 of the Agreement provides that the “standard engagement” for the Respondent’s employees is 38 hours per week for all employees other than casual and part-time employees, with scope to vary when “ordinary hours of duty” are performed.

[41] As to the deduction to be made when sick or carer’s leave is taken, the entitlement to such leave being “without loss of pay” in clauses 39.2.2 and 39.2.3 of the Agreement, in our view, necessitates that the deduction reflects the actual hours which would have been worked on the day or days of absence. The practical effect of this is that sick and carer’s leave accrue at a rate different to the rate at which they are taken. This in turn necessitates that for administrative purposes the entitlement be converted to hours to ensure that employees are neither disadvantaged nor advantaged vis-a-vis the Agreement. Again we discern no error on the part of Commissioner Wilson.

[42] The ASU in its submissions also alluded to Commissioner Wilson’s reliance on the decision in Bulwer, submitting that the decision had no bearing on determining the intention of the parties in the 2001 Award and the Agreement. We reiterate that Commissioner Wilson acknowledged at paragraphs 33 and 36 of his decision the factual differences between the dispute before him and the matters canvassed in Bulwer. The principles Commissioner Wilson drew from Bulwer need to be viewed against that background and are not suggestive of an error on his part.

[43] Having considered all of the above, we do not find any error in Commissioner Wilson’s reasoning or decision.

Ground 3

[44] The ASU cited the Full Bench in Barach in support of its submission that Commissioner Wilson fell into error by failing to set out the reasons for his decision. On this issue, the Full Bench in Barach said: 33

“The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.”

[Citations omitted, emphasis added]

[45] We agree with and adopt the approach set out by the Full Bench in Barach. Paragraphs 4 to 10 of this decision provide an overview of Commissioner Wilson’s decision. More specifically, Commissioner Wilson’s decision sets out the background to the dispute and the issue which he had to determine, the relevant provisions of the Agreement, the submissions of the parties and Commissioner Wilson’s consideration of the issues. In considering the issues, Commissioner Wilson outlines his approach to interpreting the Agreement drawing on relevant authorities. Those authorities include Bulwer, which Commissioner Wilson explicitly acknowledged was different from the dispute before him but from which he adduced a number of principles which he adopted “as relevant to the interpretation of the Agreement in this matter”. 34 Commissioner Wilson then applied those principles to form the views set out at paragraphs 37 and 38 of his decision which in turn underpin his decision.

[46] When looked at in totality as per Barach, we consider that Commissioner Wilson’s decision appropriately sets out his approach to interpreting the Agreement, the principles which underpin his decision, including how he arrived at those principles, and his interpretation of the Agreement applying those principles. While Commissioner Wilson could have been somewhat more expansive in some areas, we consider his reasoning to be clear on the face of his decision. His decision is, in our view, a thorough examination and consideration of the issues based on the evidence before him.

[47] Accordingly, we find no error in Commissioner Wilson’s decision on the ground of a failure to set out the reasons for his decision.

Public interest considerations

[48] The public interest considerations, as relied on by the ASU, are set out at paragraph 30 of this decision.

[49] With regard to the first of those considerations, we would observe that, in circumstances where the Respondent has for over 24 years, applied the sick leave provision of the Agreement in the way determined by Commissioner Wilson, it is difficult to envisage how substantial injustice would be visited upon the ASU’s members and employees of the Respondent employer.

[50] Further, while we acknowledge the issues in this matter have not previously been raised on appeal, they do relate very specifically to the terms of the Agreement in dispute. The most compelling public interest consideration of those advanced by the ASU is the potential impact on the Victorian local government sector, given the likely existence of agreements in similar terms between the ASU and other local governments. However, without hearing from other local government bodies we are unable to confirm that to be the case.

[51] In GlaxoSmithKline Australia Pty Ltd v Makin 35 (GlaxoSmithKline), a Full Bench described the notion of public interest in the following terms:

“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”

[52] Applying the reasoning in GlaxoSmithKline, we do consider the public interest to be attracted in this case. Accordingly, we decline to grant permission to the ASU to appeal Commissioner Wilson’s decision.

Conclusion

[53] For all of the above reasons, permission to appeal is refused and the appeal is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

E Burgio with S Sheppard for the Appellant.

T Donaghey of Counsel for the Respondent.

Hearing details:

2014.

Melbourne:

March 12.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550102>

 1   Australian Municipal, Administrative, Clerical and Services Union v Hobson’s Bay City Council [2013] FWC 10161.

 2   Hobsons Bay City Council Enterprise Agreement - 2010 AE881284.

 3   Transcript, at para 199.

 4   [2013] FWC 10161, at para 7.

 5   Ibid, at para 21.

 6   (2012) 221 IR 237.

 7   [2013] FWC 10161, at para 36.

 8   Ibid, at para 39.

 9   Print E6823.

 10   Print F7178.

 11   Print J9778.

 12   Transcript, at para 43.

 13   [2002] FCA 179.

 14   (1993) 40 FCR 511.

 15   Transcript, at para 137.

 16   (1994) 34 NSWLR 155.

 17   Ibid, at p. 160.

 18   Transcript, at para 69.

 19   Ibid, at paras 142–155.

 20   Ibid, at paras 137.

 21   Ibid, at para 190.

 22   Written submissions of the Appellant, at para 50.

 23   (2010) 194 IR 259.

 24   Transcript, at para 217.

 25   Written submissions of the Appellant, at paras 60–61.

 26   Transcript, at para 506.

 27   Ibid, at para 513.

 28   Ibid, at para 514.

 29   (2011) 210 IR 357 at p.363.

 30   (2008) 171 IR 392 at pp.401–402.

 31   Transcript, at paras 407–408.

 32   [2012] FWA 3730, at para 86.

 33   (2010) 194 IR 259, 262 at para 16.

 34   [2013] FWC 10161, at para 36.

 35   (2010) 197 IR 266, 273.