Agreement, award, contractual and statutory rights interpreted


Agreement, award, contractual and statutory rights interpreted

Four different types of legal instruments are interpreted in the cases noted here. In each case the relevant court or tribunal looked to the plain meaning of the words in issue.


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Four different types of legal instruments are interpreted in the cases noted here. In each case the relevant court or tribunal looked to the plain meaning of the words in issue.
Agreement provided for 'foul equipment' allowance
The NSW IRC has found that an industrial agreement providing for an allowance to employees who were required to work on any pipeline or equipment containing body fluids or waste had to be interpreted in the context of the particular workplace in this case, a zoo. 
The union claimed that the employer failed to pay a fouled equipment (FE) allowance as specified in the enterprise agreement. 
This case concerned an interpretation pursuant to s175 of the Industrial Relations Act 1996 (NSW) of the allowance in the 2000 Agreement. The allowance was currently $4.66 a day for any time an employee is required to work on any pipeline or equipment containing body fluids or waste.
The Commission was satisfied that works and trades employees operate machinery and handling equipment that collects and removes animal waste. It seemed likely that the employees would experience pungent and unpleasant odours and gases. 
From time-to-time the fouled material may spill on the employees or their clothes. Occasionally, employees would be required to clean spillages from the roadway. The employees were required to clean their equipment and machinery, which obviously was fouled by animal waste. 
In the Commission’s opinion, these duties must mean the employees would come into contact with animal waste.
Principles of interpretation
The Commission considered the key principles to be applied when interpreting awards or enterprise agreements:
  • Interpretation of awards or agreements cannot be approached in exactly the same way as the interpretation of statutes.
  • The actual words used should be given their plain, ordinary English meaning.
  • If the words are unambiguous, it is not permissible to extend or limit their ordinary common sense meaning.
  • A too literal interpretation of an award or agreement provision should be avoided.
  • It may be appropriate to consider the intention of the industrial parties who drafted the award or agreement.
  • The meaning of a particular clause may be ascertained in the context of the award or the agreement as a whole.
The Commission interpreted the disputed clause in the enterprise agreement as being applicable to animal and human body fluids and waste.
However, the Commission added that claims for the FE Allowance should be made on a sensible basis and not merely by writing the initials 'FE' on the employee's time sheet.
To this end, a claim for the allowance should be made on an appropriate claim form that expressly provided for the nature of the claim to be spelt out and for the claim to be approved by the relevant supervisor and signed-off by management.
See: Australian Workers Union, NSW Branch and Zoological Parks Board of NSW [2003] NSWIRComm 49 Industrial Relations Commission (NSW) (Sams DP) 13 March 2003.
Fixed-term contract ended university lecturer’s engagement
The AIRC has found that the engagement under a contract of employment for a specified period of time precluded a university lecturer from bringing a claim for unfair dismissal.
In two letters of appointment dated 15 and 22 December, 1999 the lecturer was offered an appointment as a Lecturer (Academic Level B) by the University of the Sunshine Coast for a fixed-term period of three years commencing on 4 January, 2000 and ending on 3 January, 2003.
The employer objected to the Commission hearing a termination of employment case on the grounds that the employee was contracted for a fixed period of time.
The lecturer claimed that the employer had breached a provision of the agreement when it made the relevant non-continuing appointment and further, that it did not provide her with sufficient notice for non-renewal of her lecturing contract.
The Commission found that the contract was expressed in unambiguous terms for a fixed period of three years commencing from the dates stated in the letter.
The Commission rejected the first challenge to the validity of the fixed-term contract, based on the premise that the university was not entitled to engage the applicant in a non-continuing capacity. This challenge failed due to the Commission not having sufficient evidence before it.
The second challenge by the applicant to the validity of the exclusionary provisions of the fixed-term contract was a claim that the employer did not comply with the terms of the agreement that governed the lecturer's employment. 
On this claim the Commission found that the evidence had not substantiated the lecturer's claim that her expectation of a continuing appointment with the university was justified.
The Commission concluded that the applicant was an employee engaged under a contract of employment for a specified period of time and was therefore excluded from relief for unfair dismissal. There was a want of jurisdiction and the claim was dismissed.
See: Jeannie Ledington and University of the Sunshine Coast - AIRC (Hodder C) - PR928685 - 13 March 2003.
Firefighter wins award claim for mortgage costs
The NSW IRC has found that the Crown Employees’ (NSW Fire Brigades Firefighting Staff) Award 2001 requires an employee to be reimbursed for a fee charged for early discharge of a mortgage when such arose from employment obligations.
This dispute concerned a refusal by the employer to reimburse the employee a 'break cost fee' in the amount of $4,103 which he incurred in the early discharge of a fixed-rate home loan. The sale of the property arose as a result of a transfer of his place of employment.
Until 1 April, 1998, claims for reimbursement of costs associated with taking up residence in a new location had been processed by the Crown Solicitor's Office, but after that date the task was devolved to individual departments. 
In order for departments to understand how the process worked, a training guide was issued to all departments on the interpretation to be applied to the relevant provisions in the Crown Employees (Transferred Officers' Compensation) Award. 
The training guide made it clear the Crown Solicitor's Office considered that the cost associated with early discharge of a mortgage, which was said to be a penalty fee, was not reimbursable.
The Commission said that while it was clear that in 1997 the union agreed to the terms of the new Award, there was no evidence that the union was aware of the training guide and its interpretation of the provisions dealing with reimbursement of conveyancing and associated costs. 
Further, there was no evidence that in the making of the 2001 Award the union was aware of the interpretation by the Crown Solicitor's Office of clause 29.12.3 of that award, which is in substantially similar terms to clause 13(iii) of the Crown Employees (Transferred Officers' Compensation) Award.
The Commission found that according to the general terms and conditions of the loan contract, by repaying the loan early Mr Campbell was also required to pay the break cost fee. So closely connected was the break cost fee to the ultimate discharge of the mortgage that it could not be contended other than that the break cost fee was 'associated' with the discharge of the mortgage.
The Commission had some reservations about the appropriateness of the Brigades being required to reimburse a transferred officer a fee which was, in effect, the amount of interest foregone on a loan, but found it was not part of the court's task to assign a meaning in order that the award may provide what the court thought was appropriate.
See: New South Wales Fire Brigade Employees Union and New South Wales Brigades [2003] NSWIRComm 55 - 10 March 2003 - Industrial Relations Commission (NSW) (Boland J).
Leave entitlements recovered
The NSW Chief Industrial Magistrate has found that an employee should not have to bring an action to recover legal entitlements under the statutory provisions and the award for monies outstanding to him. 
A number of the elements of the application had been satisfied and these issues arose due to poor administration. However, the sick leave claim was substantial and this claim was upheld in favour of the employee.
The employee sought an adjustment of long service leave in the amount of $265; a claim for public holidays not credited in the untaken holiday pay and an adjustment of the rate of pay at termination and a sick leave claim for some 46 days sick leave that the employee claims he was entitled to during his period of his illness from May, 2001 to 10 September, 2001.
The employee commenced full-time employment on 1 May, 1968 with the employer who conducted a legal practice. The applicant’s employment was terminated by the employer on 10 July, 2002. At the time of termination, the employee was employed as the employer's managing law clerk.
In regard to the adjustment to long service leave, it was conceded by the applicant that $702 per week was the appropriate rate to pay out the applicant’s long service leave entitlement of 29.47 weeks. The Magistrate noted the employer had paid the amount of $20,688 in respect of long service leave therefore satisfying this aspect of the claim.
In regard to the holiday pay claim, the issue revolved around whether public holidays have been credited to the applicant in the calculation of the 19 weeks untaken annual leave upon termination. The Magistrate was satisfied on examination of the time and wage records before him and the evidence before him that the applicant was paid for public holidays and mistakenly these were not deducted by the respondent from annual leave taken. This had been corrected in the calculation of 95 days (19 weeks) untaken leave in the employer's 'journal' and subsequently paid at the rate of $688 per week.
Documentary evidence supported the employer's view, particularly the time and wage records that show $688 gross having been paid to the applicant since 1988 and with no objection taken by the employee to this weekly payment. The Christmas bonus was not within the class of bonus, incentive or other scheme as referred to in s2(a2) of the Annual Holidays Act.
The employee was absent on sick leave for 13 weeks (65 days) for which he was not paid sick leave. As at 10 September, 2001, the applicant had accrued 39.66 days of sick leave.
Accordingly, once that accrued leave had been taken then any future absence would have been leave without pay. In such circumstances, the Magistrate allowed 39.66 days to the applicant at the rate of $137.60 per day (1/5 of $688) = $5,457.
The employer was ordered to pay to the applicant the above amount within 28 days. In addition, interest was to be paid on that above amount from the date of termination that was, 10 July, 2002 at the rates prescribed in this jurisdiction.
Costs were awarded in favour of the employee. The Magistrate noted that an employee should not have to bring an action to recover legal entitlements under the statutory provisions and the award for monies outstanding to him. In such circumstances the applicant should not be disadvantaged regarding costs.
See: Andrew Templeton v Jack Katz [2003] NSWCIMC 25 - Chief Industrial Magistrate’s Court (NSW) (Miller CIM).
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