Re State Rail Authority of New South Wales v Australian Federated Union of Locomotive Enginemen [1985] FCA 249 (12 July 1985)

FEDERAL COURT OF AUSTRALIA

Re: STATE RAIL AUTHORITY OF NEW SOUTH WALES
And: AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE ENGINEMEN
No. 39 of 1984
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY
INDUSTRIAL DIVISION
Beaumont J.

CATCHWORDS

Industrial Law - interpretation of Award - s.110 Conciliation and Arbitration Act, 1904 - engineman released from duty during broken shift - whether time "in traffic" - discretion.

Interpretation of instruments - admissibility of extrinsic material where no patent ambiguity - inadmissibility of parties' subsequent conduct on construction.

Words and Phrases - "traffic".

HEARING

SYDNEY
12:7:1985

ORDER

1. Declare that, on the interpretation of The Lomotive Enginemen's Award, 1966, where an engineman is "booked off" or otherwise released from duty during a broken shift, that interval of time is not time "in traffic" within the meaning of cl.20(c) in Part II of the said Award.

Note: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

DECISION

The applicant, State Rail Authority of New South Wales, applies pursuant to s.110 of the Conciliation and Arbitration Act, 1904 ("the Act") for the interpretation of certain provisions of The Locomotive Enginemen's Award, 1966 ("the Award"). The applicant, as successor to the Public Transport Commission of New South Wales, and the respondent, Australian Federated Union of Locomotive Enginemen, are bound by the Award.

2. A difference of opinion has arisen between the parties as to the proper interpretation of cl.20 of the Award in these circumstances. The applicant has proposed the following roster for an engineman with his home station at Broadmeadow:

9.43 a.m. At Broadmeadow sign on at engine shed and walk
to station.

10.10 a.m. At Broadmeadow station take charge of engine
on North Coast Daily Express.

10.16 a.m. Depart Broadmeadow station.

1.56 p.m. Arrive Taree station and walk to engine shed.

2.17 p.m. At Taree sign off at engine shed.

4.33 p.m. At Taree sign on at engine shed and walk to
station.

4.50 p.m. At Taree station take charge of engine on XPT.

4.52 p.m. Depart Taree.

7.51 p.m. Arrive Broadmeadow station and walk to engine
shed.

8.18 p.m. At Broadmeadow sign off at engine shed.

3. The respondent opposes the introduction of this roster. A point of departure between the parties in this connection is the application, if any, of cl.20(c) of the Award in this connection. Clause 20 provides:

"20 - LIMITS OF MILEAGE IN SHIFTS

(a) Except in the case of accident or
unavoidable necessity an engineman
driving a suburban electric train
shall not be required to work such
train in excess of 152 miles on a
shift.

(b) An engineman, other than when
driving a suburban electric train,
shall not be required to work a
shift where the mileage run exceeds
230 miles, more often than four
times in any one week.

(c) Except in the case of accident or
unavoidable necessity the rostered
working of an engineman shall not
exceed 8 hours in traffic, if the
distance to be worked in such
rostered shift exceeds 230 miles.
(Emphasis supplied.) (The return
journey from Broadmeadow to Taree
is approximately 268 miles.)

(d) An engineman working in excess of
230 miles on a shift shall be
relieved upon arrival at the
terminal point of the train worked.

(e) An engineman working a double shall
be relieved upon arrival at the
terminal point on the return trip
where the spread of a shift exceeds
ten hours.

(f) A 'double' means a shift worked by
an engineman when working on
express, mail, passenger or fruit
mail train from his home station to
another station and return and the
total mileage exceeds 160 miles,
provided that a minimum period of
30 minutes is rostered at the
turn-round point during which
engineman could partake of a meal."

4. The applicant contends that, upon the true interpretation of the Award, where an engineman is booked off during a broken shift, such interval is not time "in traffic" for the purposes of cl.20(c). That is to say, according to the applicant's interpretation, in the case of the roster proposed, the period between 2.17 p.m. and 4.33 p.m. is time booked off and not time "in traffic" for the purposes of cl.20(c).

5. In order to understand the respective submissions of the parties, it is necessary to mention certain other provisions of the Award. By cl.2(c) of Part II, dealing with New South Wales Railways, a "shift" is defined as a turn on duty during which some actual work is performed. Limits of shifts are dealt with by cl.7 in various ways. For present purposes, the relevant limit is imposed by cl.7(c) to the effect that an engineman of another train shall not be rostered to work more than 10 hours on a shift excepting in the following circumstances:

(i) when he can return home by working one shift
instead of being booked off for rest away from
his home station;

(ii) when he can return home in one shift after
having been booked off for rest away from his
home station;

(iii) when he can work one shift from his home
station to another station and after rest
return from that station to his home station in
one shift;

in which circumstances the rostered shifts may exceed 10 hours but not more than ll hours.

6. Broken shifts are dealt with by cl.8 relevantly as follows:

"(a) A broken shift is one during which
an employee is released from duty
for other than meal breaks and
consists of two working parts.

(b) An employee who has intervals
during his time on duty when he is
not required to work may be booked
off; provided that where any such
interval is in the day time (i.e.,
between the hours of 6 a.m. and 8
p.m.) the booking off shall be for
not less than 2 hours ... Such
times are to be exclusive of times
allowed after arrival and before
starting on the next trip.

...

(e) Where the interval on a broken
shift is away from the home
station, payment shall be made at
the rate of one-half for such
interval, subject to a minimum
payment of one hour ...

(f) An employee working a broken shift
shall be paid a minimum of 8 hours
for each broken shift so worked.

(g) Excepting in cases of accident or
of unavoidable necessity, a broken
shift shall be completed within
twelve hours."

7. Time allowances are dealt with by cl.15. Clause 15(b) provides that an engineman when relieved at a traffic station on the road shall be allowed:

(i) 10 minutes to sign off;

(ii) if required to attend at the engine shed, if to
sign off only, five minutes;

(iii) in travelling home by the quickest service
available at the rate of his acting grade; and

(iv) waiting time at the acting grade up to one hour if
in the day time, with half time thereafter or up to
two hours if at night time with half time
thereafter.

8. An engineman relieving at a traffic station on the road shall be allowed 10 minutes to sign on and take charge of his engine and if required to sign on at the engine shed shall be made a further allowance for walking time to be fixed after actual experiment (cl.15(c)).

9. The Award contains no definition of the phrase "in traffic" where used in cl.20(c). No other reference to the phrase is to be found in the Award.

10. The respondent seeks to refer to certain extrinsic material as an aid to construction of the Award. Since this is a contentious matter, I will defer consideration of it and I will deal in the first instance with the respective arguments of the parties as to the interpretation of the Award when taken on its face.

11. The applicant's submission is simple enough. It says that the words "in traffic" should be accorded their ordinary meaning with the consequence that an engineman should not be regarded as so engaged when he is released from duty for the purposes of cl.8(a) by being booked off pursuant to the machinery provided by cl.8(b) or otherwise so released.

12. On the other hand, in this branch of the argument, the respondent seeks to avoid the applicant's construction of cl.20(c) by submitting that cl.20 can have no application whatever to broken shifts. This construction, it is said, arises from the language and context of cl.20 itself. Further, it is suggested that a reading of the provision indicates that cl.20(c) is intended to apply to single journeys only so that return trips or "doubles" are excluded from its operation.

13. In my opinion, the applicant's construction of cl.20(c) should be upheld. Prima facie, the words "in traffic" should receive their ordinary meaning. In its definitions of "traffic", the Macquarie Dictionary includes the following:

"1. the coming and going of persons,
vehicles, ships, etc., along a way of
passage or travel.

2. the persons, vehicles, etc., going
along such a way.

...

6. the business done by a railway or
other carrier in the transportation of
goods or passengers."

14. It is, of course, possible that the context of a statutory or other provision under consideration may indicate that an expanded notion of these concepts should be attributed to a particular case. For example, in Harrington v. The Wellington Harbour Board (1895) 14 NZLR 347, s.4(5) of the Wellington Harbour Board and Corporation Land Act, 1880 provided that "the lines of railway built on the said wharf and Waterloo Quay shall be maintained by Her Majesty the Queen, who may conduct the whole of the traffic on the said railway and Railway Wharf.". Prendergast, C.J. said (at p.354):

"The word 'traffic' when used as to
railways, seems to mean not only the mere
passing and repassing of trains, but the
business carried on on the railway; and
so, with regard to a wharf, 'traffic' is
not the mere passing and repassing of
persons and vehicles, but the business
carried on on the wharf."

15. But, in my view, even if it were possible to expand the notion of "traffic" so as to pick up incidental activities of the type described by Prendergast, C.J., it would not assist the respondent. Where, as here, the engineman is actually released from duty and "booked off" accordingly, it is not, I think, possible to describe his activities, if any, as incidental to the conduct of the applicant's operations in any sense: the shift has been broken and the engineman's time is his own for the purposes of the Award. (The position under worker's compensation legislation and the like may well be different but this involves other considerations.)

16. As has been said, it is submitted on behalf of the respondent that cl.20 and, in particular, cl.20(c), should be read down so as not to apply to broken shifts nor to return trips. This interpretation is said to flow from the language of cl.20 itself. The difficulty confronting the respondent in pressing this submission is that the terms of cl.20 contain no clue that any reading down along the lines suggested was intended.

17. It may be accepted that the propriety of departing from the literal interpretation of a statute or similar instrument "extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions" (per Mason and Wilson, JJ. in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at p 32l). But, to borrow again the language of Mason and Wilson, JJ. in Cooper Brookes, if "one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended". In Cooper Brookes itself, that displacement arose because of an obvious mistake by the draftsman.

18. In my opinion, there is nothing in the language of cl.20 or its general context which would warrant its being read down so as not to apply to broken shifts nor to return trips in the manner contended for by the respondent. To the contrary, in my view, what emerges from a reading of the provisions of cl.20 specifically and of the Award generally is compelling evidence of an intention on the part of the draftsman to lay down a comprehensive code to cover every conceivable contingency which might arise. The detail of these provisions speaks best for itself. It follows that it is impossible to attribute to the draftsman any oversight of the kind now suggested. Any other conclusion would, I think, be pure speculation.

19. It follows, in my view, that cl.20 is capable of application to any type of shift and also to "doubles". It further follows, in my opinion, that the phrase "in traffic" should bear its ordinary meaning with the consequence that an engineman who is released from duty and "booked off" accordingly is not engaged "in traffic" for the purposes of cl.20(c).

20. As has been indicated, the respondent sought to adduce evidence of certain extrinsic material as an aid to construction of the Award. I admitted the evidence subject to the applicant's objection to its relevance. The evidence sought to establish a long standing practice that the respondent would roster engineman so that any long mileage "double" exceeding 230 miles would be completed within eight hours. Particular reliance was placed upon a "Stable Rostering Code" issued by the respondent in July 1980. Section 5, para.6 of the Code reads:

"Rostering limits for local work are as
follows -

(i) Round trips & doubles
(Passenger trains 10 hours
(Freight trains ll hours.

Note: Enginemen working such turns
of duty which entail more than 230
miles are not to be rostered for a
period of more than 8 hours 'in
traffic' ie; from the time of
departure from the home station to
the time of arrival at the home
station and must be relieved
immediately on arrival at the home
station.

Enginemen MUST NOT be rostered for
more than four (4) such turns of
duty in any period of seven (7)
consecutive days."

21. In my opinion, the evidence tendered is not admissible. Evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is "ambiguous or susceptible of more than one meaning. But it is not admissible (as here) to contradict the language of the (instrument) when it has a plain meaning" (per Mason, J. in Codelfa Construction Proprietary Limited v. State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at p 352; Gilberto v. Kenny (1983) 48 ALR 620 at p 623). Moreover, much of the evidence tendered, including the respondent's "Stable Rostering Code", constitutes an impermissible attempt to adduce evidence, on a pure question of construction, of the parties' subsequent conduct (see Australian Paper Manufacturers Ltd. v. Pulp and Paper Workers' Federation of Australia (1981) 55 FLR 303 at p 308 and the cases there cited): the views of the parties, evidenced by their conduct or otheriwse, as to the legal interpretation of the instrument in question cannot deprive the court of its jurisdiction to determine that question which is necessarily one of law (see L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. [1973] UKHL 2; (1974) AC 235 at p 261; Codelfa at p 348; Seamen's Union of Australia v. Adelaide Steamship Co. Ltd. (1976) 46 FLR 444 at p 445; Jennings Construction Limited v. F.R. Coyle Pty. Limited (Court of Appeal, N.S.W. Supreme Court, unreported, 17 October 1984).

22. I reject the respondent's extrinsic material accordingly. It may well provide good reasons for varying the Award, a matter for others to judge, but it is strictly inadmissible on the legal question of its construction.

23. Finally, it is submitted by the respondent that the Court, in its discretion (see The Corporation of the City of Burnside v. The Municipal Officers' Association of Australia, Keely, J., unreported, 23 May 1985 at p 10 and the cases there cited), should decline to exercise its jurisdiction under s.110 of the Act. It is pointed out that changes in the timetable for the North Coast Daily Express are proposed. It is also suggested that the applicant is attempting, by this application, to achieve a situation where it may appear that the Court has given its imprimatur to the Broadmeadow-Taree roster proposed.

24. In my view, neither of these considerations is of sufficient weight to justify the Court's declining to construe the Award. The limited powers of the Court in the exercise of its jurisdiction under s.110 are well established (see Master Builders' Association of Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1981) 54 FLR 359), and, one must assume, understood in the industry. In the circumstances, it is hardly necessary to say that, whatever the Court's interpretation of cl.20(c), it is not to be perceived as expressing any view on the merits or otherwise of the proposed roster. On the other hand, a difference of legal opinion having arisen as to the meaning of cl.20, there is no discernible prejudice accruing to either party if the Court were to exercise the jurisdiction contemplated by s.110. To the contrary, there is reason to suppose that, even if the present dispute as to the roster and timetable for the Broadmeadow-Taree sector were resolved, the same or a similar question as to the meaning of c.20(c) could arise in another context.

25. I make the following order:

1. Declare that, on the interpretation of The
Locomotive Enginemen's Award, 1966, where an engineman is
"booked off" or otherwise released from duty during a broken
shift, that interval of time is not time "in traffic" within
the meaning of cl.20(c) in Part II of the said Award.