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Federal Court of Australia |
Last Updated: 31 July 2006
FEDERAL COURT OF AUSTRALIA
P & O Services
Pty Ltd v ALHMWU [1999] FCA 1129
INDUSTRIAL LAW - Award -
Interpretation of - Allowances payable to cleaners employed "in premises of
Colleges of Technical and Further Education" - Whether expression has same
meaning as in State Acts regulating educational institutions - Whether resort to
history of change
from State to Federal Award prescription available as an aid
to construction - Words and phrases - "premises of Colleges of Technical and
Further Education"
Workplace Relations Act 1996
(Cth) s 413
Tertiary Education Act 1993 (Vic)
Vocational Education and
Training Act 1990 (Vic)
Royal Melbourne Institute of Technology Act 1992
(Vic)
Building Services (Victoria) Award
1994
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996)
186 CLR 389 applied
Short v F W Hercus Pty Ltd [1993] FCA 51; (1993) 46 IR 128
applied
Australian Municipal, Administrative, Clerical and Services Union
v Treasurer of the Commonwealth (1998) 82 FCR 175 referred to
Scott v
Sun Alliance Australia Ltd [1993] HCA 46; (1993) 178 CLR 1 referred
to.
P & O SERVICES PTY LTD
(ACN 003 807 350) v
AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION
VG 553 OF 1997
RYAN
J
18 AUGUST 1999
MELBOURNE
|
P & O SERVICES PTY LTD (ACN 003 807
350)
Applicant |
|
|
AND:
|
AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS
UNION
Respondent |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
|
THE COURT
ORDERS:
That upon the true meaning and
intent of cll 8A and 16(k) of the Building Services (Victoria) Award 1994
"premises of Colleges of Technical and Further Education" include
premises occupied from time to time by the Technical and Further Education
Division of the Royal Melbourne Institute of Technology
for the purpose of
providing technical and further education as defined in the Tertiary
Education Act 1993 (Vic.)
Note: Settlement and entry of orders is
dealt with in Order 36 of the Federal Court Rules.
|
AND:
|
REASONS FOR JUDGMENT
RYAN J
1 This application under s 413 of the Workplace Relations Act 1996 raises a narrow point of construction of sub-clauses 8A(a) and 16(k) of the Building Services (Victoria) Award (1994) as varied ("the Award") made by the Australian Industrial Relations Commission ("the Commission"). Sub-clause 8A(i) was in the following terms:
"8A - EXCESS SUPPLEMENTARY PAYMENT
That in addition to the rates of pay prescribed in clause 8 - Classifications and wage rates, the following payments shall be made for all purposes of the award.
Adult employees
(a) (i) TAFE: In premises of Colleges of Technical and Further Education
Full-time; per week $21.10
Part-time; per hour Mon - Fri $ 0.64
Saturday $ 0.92
Sunday $ 1.19
Public holidays $ 1.47
N.B. See subclause (k) of clause 16 – Allowances."
2 Clause 8, which preceded cl 8A, created classifications and indicated work requirements and skill levels for a Building Attendant Grade One (Cleaner), a Building Attendant Grade Two and a Building Attendant Grade Three. Weekly rates of pay were then prescribed for each of those classifications and junior rates were prescribed as the following percentages of the appropriate rate of pay for an adult employee:
"- under 19 years of age 70%
- at 19 years of age 80%
- at 20 years of age 93%"
3 Paragraph (ii) of sub-cl 8A(a) prescribed extra supplementary payment for employees "in premises of State Government Departments and Instrumentalities" ("S.G.D.I."). Those supplementary payments were all in excess of the amount of $21.10 payable "across the board" to employees "in premises of Colleges of Technical and Further Education under paragraph 8A(a)(i)". The extra supplementary payments for full-time employees in S.G.D.I. premises were:
"Building Attendant Grade One $24.70
Building Attendant Grade Two $25.90
Building Attendant Grade Three $28.40"
4 The excess supplementary payments prescribed by paragraph (iii) of cl 8A(a) for employees in premises of government schools were, except for head cleaners, even higher. For full-time employees that prescription was:
"(iii) SCHOOLS: In premises of government schools
Cleaner (Grade 1)
Full-time; per week
Cleaners on commencement $36.50
After 1 year service/experience $40.10
After 2 year service/experience $43.90
Sole Cleaner (Grade 2)
Full-time; per week
On commencement $24.20
After 1 years service/experience $27.80
After 2 year service/experience $30.70
Head Cleaner I (Grade 3)
Full-time; per week
On commencement $ 0.40
After 1 year service/experience $ 4.00
After 2 year service/experience $ 6.90
Head Cleaner II (Grade 4)
Full-time; per week
On commencement $ 7.90
After 1 year service/experience $11.50
After 2 year service/experience $14.40
5 It seems that the classifications "Cleaner", "Sole Cleaner", "Head Cleaner I" and "Head Cleaner II" had been used in an earlier Victorian State Award, the School Cleaning Award, which covered cleaners in government schools before the making of the Award. Accordingly, cl 8A(c) of the Award provided the following "translation" to assign those employees to the appropriate one of the new classifications of Building Attendant 1, Building Attendant 2 and Building Attendant 3:
"Translation
(c) An employee formerly classified under the School Cleaning Award shall translate in accordance with the table below:
School Cleaners Classification in clause 8
Cleaner Building Attendant 1
Sole Cleaner Building Attendant 2
Head Cleaner 1 Building Attendant 3
Head Cleaner 2"
6 Clause 16 bore the general heading "ALLOWANCES" and prescribed a diverse range of allowances including leading hand allowance, meal allowance, cleaning toilets and hot and cold work. Sub-clause (k) of cl 16 was in the following terms:
"T.A.F.E. colleges
(k) An employee engaged in cleaning premises of Colleges of Technical and Further Education, shall be paid an additional all purpose allowance of $16.58 per week on commencement, $20.51 after 1 year service and $24.65 after 2 years service."
7 The question concerns the meaning to be given to the expression "premises of Colleges of Technical and Further Education" and, in particular, whether that expression comprehends premises occupied by the Royal Melbourne Institute of Technology ("the R.M.I.T."). The R.M.I.T. is now a University having been formed from the merger of two educational institutions, one conducted under the same name, the Royal Melbourne Institute of Technology, and the other conducted as the Phillip Institute of Technology. Since the merger, the R.M.I.T. has operated from at least two campuses, one at Bundoora and the other which was occupied by the former Royal Melbourne Institute of Technology in the Central Business District of Melbourne.
8 It is clear from the use of initial capital letters in the phrase "Colleges of Technical and Further Education" that it comprehends a number of specifically identifiable institutions and is not apt to denote a general class of establishments answering a description understood as a matter of ordinary English usage as applying to that class. There are no relevant definitions in the Award itself nor, as far as the resources of Counsel have been able to find, in any Act of the Commonwealth Parliament which might be available by virtue of the Acts Interpretation Act 1901 and s 55 of the Workplace Relations Act 1996.
9 However, there was in force, at the time of making the Award, State legislation which defined "technical and further education". That expression was defined as follows in s 3 of the Vocational Education and Training Act 1990 (Vic):
"technical and further education: has the same meaning as in the Tertiary Education Act 1993."
10 The same section of the Vocational Education and Training Act also contained the following relevant definitions:
""TAFE" means technical and further education.
"TAFE college" means an institution specified in Schedule 1 but if an institution is also specified in Schedule 2 of the Tertiary Education Act 1993 means that part of the institution which provides technical and further education;
"TAFE institution" means a university, school, college or centre at or from which technical and further education is provided;
"university with a TAFE division" means the Royal Melbourne Institute of Technology, Swinburne University of Technology and Victoria University of Technology."
11 Section 3 of the Tertiary Education Act 1993 (Vic) contained the following relevant definitions:
""post-secondary education institution" means an institution which is supported directly or indirectly by government funds providing post-secondary education including but not limited to a TAFE college, an autonomous college and a university;
"TAFE college" means an institution specified in Schedule 1 to the Vocational Education and Training Act 1990 but if an institution so specified is also specified in Schedule 1 or 2 to this Act means that part of the institution which provides technical and further education;"
"technical and further education" means post-secondary education wherever provided or offered which is not directed towards –
(a) the award of a degree or diploma at an autonomous college or university; or
(b) a higher education award within the meaning of section 9;
"university", except in section 10, means an institution specified in Schedule 1."
12 The R.M.I.T. is one of the "universities" listed in Schedule 1 to the Tertiary Education Act. No institutions are listed in Schedule 2 to that Act which is headed "Autonomous Colleges".
13 The Vocational Education and Training Act as amended from time to time up to 5 June 1997 identifies in Schedule 1 exclusively those institutions designated as colleges of technical and further education. The R.M.I.T. is not now listed in that Schedule. However, the "Royal Melbourne Institute of Technology Limited" was listed in the Schedule to the Vocational Education and Training Act when it was originally enacted.
14 By the Royal Melbourne Institute of Technology Act 1992 (Vic) the R.M.I.T. was established as a University. The same Act provided for the merger with the University of the Phillip Institute of Technology and by s 51 provided that:
"Subject to this Act, on and from the appointed day –
(a) the University is the successor in law of the RMIT Institute; and
(b) any scholarship, prize or bursary of a continuing nature administered by the RMIT Institute or the RMIT company and existing immediately before the appointed day shall be administered by the University, but otherwise in accordance with the terms and conditions to which it was subject immediately before the appointed day; and
(c) all contracts, deeds, bonds, agreements, arrangements, guarantees and other instruments (except contracts, agreements or arrangements relating to the members of staff of the RMIT Institute) made or entered into by, on behalf of, or in relation to the RMIT Institute and in force immediately before the appointed day have effect as if made or entered into by, on behalf of, or in relation to, the University; and
(d) all actions, claims, arbitrations, applications and other proceedings (including proceedings on appeal or review) pending or existing immediately before the appointed day by, against, or in relation to the RMIT Institute have effect as if they were actions, claims, arbitrations, applications and proceedings by, against, or in relation to the University, and may be continued and completed accordingly; and
(e) any permit, licence or authority of any kind whatsoever issued or granted to the RMIT Institute or the RMIT company by or under any Act continues to operate, despite anything in this Act, in favour of the University in the same way and to the same extent as it operated in favour of the RMIT Institute or the RMIT company; and
(f) unless the contrary intention appears, a reference to the RMIT Institute or to the RMIT council is deemed to be a reference to the University if the reference –
(i) is in an Act, other than this Act, a subordinate instrument within the meaning of the Interpretation of Legislation Act 1984, a judgment or order or any other document whatever; and
(ii) is in relation to a period occurring on or after the appointed day; and
(g) all records and documents of the RMIT Institute become the property of the University."
15 Section 31 of the Royal Melbourne Institute of Technology Act established a Technical and Further Education Division of the R.M.I.T. by providing :
"(1) There shall be a Technical and Further Education Division of the University.
(2) The Board of Technical Studies is part of the Division.
(3) The Council may make Statutes making provision relating to the composition and purposes of the Division."
16 An understanding of the circumstances which explain the presence in the Award of some of the provisions set out above can be derived from a decision by Commissioner Deegan of the Commission on 23 December 1996 [Print N7649]. That decision was given in respect of an application by the present respondent, the Australian Liquor Hospitality and Miscellaneous Workers' Union ("the ALHMWU") for the provision of an "industry allowance" for cleaners employed by cleaning contractors in higher education institutions in Victoria. Those employees, the Commissioner noted, were currently covered by the Award.
17 In the course of his decision, the Commissioner traced the history of Federal award regulation of employees of cleaning contractors in Victoria. He first observed:
"It was claimed that in early 1994 an agreement was reached between the ALHMWU and the Australian Building Services Association concerning the creation of a federal award covering cleaning contractors in Victoria. According to the ALHMWU, that agreement recognised the fact that, at the time, different rates of pay applied in different sectors of the contract cleaning industry in the State. These rates were set in four former awards of the Victorian industrial relations system. The awards dealt with the contract cleaning area and with cleaners employed directly in State Government departments and instrumentalities, TAFE colleges and schools.
By consent, the Building Services Award was varied in July 1994 to recognise the different rates of pay applying under the former state awards. A new clause 8A was inserted to provide for excess supplementary payments in the relevant sectors to make up the difference between the rate set under the former awards and the minimum wage rates set by the Building Services Award."
18 The Commissioner then quoted this passage from the reasons for decision of a Full Bench of the Commission dismissing an appeal against the refusal by Commissioner Leary [Print L6222] to prevent higher education institutions in Victoria from contracting out cleaning services unless the employees of the cleaning contractors were employed on terms and conditions no less favourable than those accorded to cleaning staff directly employed by educational institutions;
"However we accept the more general contention that there has been an almost comprehensive regulation by award or industrial agreement in the higher education sector in Victoria in relation to the terms and conditions for the performance of cleaning and security work by "direct" employees and "indirect" employees engaged under independent contracts. That regulation is effectively based on a number of common components of pay and conditions."
19 Commissioner Deegan then continued his recital of the history of regulation of this industry by noting;
"The ALHMWU claimed that the industry rate in the higher education sector arose from the agreement known as the CCAV (College Councils Association of Victoria) agreement which had been registered in the former Victorian system and applied to Colleges of Advanced Education in Victoria. As Colleges of Advanced Education merged with universities it was asserted that the "industry rate" became payable in universities to cleaning staff directly employed by them. The ALHMWU also claimed that as universities in the State commenced the contracting out of their cleaning requirements the higher rate was, by agreement with the union, made a condition of the tendering process.
According to the ALHMWU the higher rate has continued to be paid by universities to their direct employees, but as subsequent cleaning contracts have been let, the tender requirements of the universities no longer included a provision requiring the successful tenderer to pay at the rate provided in the CCAV agreement. Direct employees of the universities are covered by the Higher Education Workers Victoria (Interim) Award 1993 [Print K7016 [H0130]]. The wage rates in this award include a Supplementary Payment but no evidence was presented comparing the wages of direct employees under this award with indirect or contract employees."
20 The Commissioner then summarised the evidence given by witnesses called before him by the ALHMWU, the last of whom was Mr Breheny, a Union organiser. In respect of part of his evidence, it was observed:
"When cross-examined on his statement, Mr Breheny agreed that the relevant allowance paid to cleaners who work in former TAFE buildings forms part of the Building Services Award. He further agreed that cleaning contractors taking over certain contracts and not paying that allowance, are not paying that amount because they are not obliged to do so by the award. Mr Breheny agreed under cross-examination that universities, as separate entities, were never bound by the CCAV agreement, but that the university/CAE amalgamation complicated the issue. He claimed that at the time that the amalgamation process occurred, universities guaranteed that their employees would not be disadvantaged financially by the amalgamation. This statement was contested by the representative of the employers."
21 Reference was then made to the earlier State regulation of cleaners in some educational institutions and the translation of that regulation into the Award. As to those matters the Commissioner said:
"The ALHMWU submitted that the industry allowance being sought was clearly identifiable in clause 14 of the CCAV agreement which applied the State Incremental Payments Scheme. The ALHMWU made it clear that the application was not attempting to strike a new rate, the rate had already been struck by the State Industrial Authority (through the approval of the CCAV agreement). The ALHMWU was seeking to have the rate as struck in 1989 recognised in the same way that the industry had recognised the excess supplementary payments for the TAFE sector, for the school sector and the State government departments and instrumentalities sector. Clause 8A of the Building Services Award gave recognition to those rates."
22 Evidence was also adduced before Commissioner Deegan by the respondent employers who opposed the ALHMWU's application for an interim award. The Commissioner's summary of that evidence, so far as relevant for present purposes, was as follows:
"The evidence given by the four university administration personnel was similar in nature. All four witnesses referred to the fact that universities had in the past employed cleaners. In the early 1990s it had become usual for universities to commence contracting out cleaning work, and that, currently, it was unusual for universities to directly employ cleaning staff. The evidence was that, when the original tenders were let for cleaning contracts in universities, it was the CCAV rate of pay that was applied to those tenders. This was the rate paid by universities to their own staff, prior to the contracting out process. It was also the common experience of these witnesses for there to have been an agreement with the union, made at the time the contracting process began, that the CCAV rate would be applied. In some cases a time limit had been imposed on the application of the CCAV rate.
.....
Evidence given by Mr Farrugia from the Victorian University of Technology was that different rates of pay were being paid to employees of contract cleaners for cleaning of different buildings on the university campus. Cleaners in buildings which originated in the TAFE system were paid at the higher rate in accordance with clause 8A of the Building Services Victoria Award; other cleaners who were employed under new contracts for cleaning the university buildings were not being paid an extra allowance.
The evidence given by the two witnesses who were employed by cleaning contractors was generally to the effect that there was no difference in the cleaning required of university buildings and any other buildings which would justify the payment of an extra allowance. These witnesses acknowledged that they pay the extra allowance required to be paid under clause 8A of the Building Services Award where the premises cleaned are within the terms of that award."
23 The nature of the CCAV agreements which preceded the making of the Award was also illuminated by the submissions of the respondents before Commissioner Deegan who encapsulated them in this paragraph:
"The Respondents denied that the CCAV agreement was a binding agreement on universities or that universities were obliged to honour the terms of that agreement when tendering for the cleaning services. The Respondents recognised that the CCAV agreement was entered into between the College Councils Association of Victoria and was binding on colleges of advanced education, but disputed that the CCAV agreement had any former, or current, binding effect on universities, in spite of the CAE/universities amalgamations. In the Respondents' view Commissioner Leary had correctly characterised the situation in the decision at Print L6222 at page 8.
"I do not accept the argument of the union that the CCAV agreement is still a current viable agreement binding on the parties to it."
Colleges of Advanced Education no longer exist. The CCAV, in the submission of the Respondents, was never intended to apply to most university sites in Victoria; the agreement had expired and could not be revived."
24 The respondents also touched on cl 8A of the present Award in their submissions to the Commissioner who said:
"The Respondents submitted that no conclusion adverse to their case could be drawn from the fact that the employer representatives had consented to the inclusion of clause 8A in the Building Services Award. It was their view, however, that a conclusion adverse to the ALHMWU case could be reached as a consequence of the ALHMWU consenting to the making of the Building Services Award in the absence of the allowance sought in this matter."
25 In the result, Commissioner Deegan refused the ALHMWU's application for an interim award, observing on the way to reaching that conclusion;
"The ALHMWU maintained that the allowance sought is an "industry allowance" which was paid to cleaners employed directly by universities in Victoria and which was paid to the employees of contract cleaners who initially tendered and gained cleaning contracts with universities at the time the universities moved from direct employment of cleaners to contract cleaners. The ALHMWU acknowledges that the payment of the "allowance" is no longer standard and that the amount of the allowance has been eroded in many areas. Provision for the payment of the allowance has not been a part of new contract tendering arrangements in many universities and some contractors no longer pay any amount over and above the basic payment prescribed in the Building Services Award.
....
I accept that, in many universities in Victoria, rates above those provided for in the Building Services Award are paid. There is not, however, any consistency in the level of these rates. This situation has arisen as the allowances, which appear to have been widely paid in the early 1990s, have been absorbed into safety net adjustments or have ceased as universities and subsequently cont[r]actors have considered that no legal obligation existed which required their payment.
...
The allowance sought by the ALHMWU is that set by the CCAV agreement in 1989. The rate of that allowance is in excess of the allowance currently provided in the TAFE sector under clause 8A of the Building Services Award. Inequities will remain even should the interim award be made.
.....
It is clear that at the time the building Services Award was made in 1994 no allowance as sought in this application was included. That award did not initially contain the allowances contained in clause 8A relating to the TAFE, schools and other government sectors. These were included, by consent, some months after the original award was made but were anticipated by a Memorandum of Agreement made between the parties on the same day the initial award was made (16 March 1994). A copy of that Memorandum was tendered in evidence but not given an exhibit number. The Memorandum makes no reference to the higher education sector."
26 The memorandum dated 16 March 1994, so far as is relevant, was in these terms:
"This memorandum outlines the terms and conditions agreed between the employers party to the agreement and the Australian Liquor, Hospitality and Miscellaneous Workers Union, Victorian Branch, concerning first awards to be made by the Australian Industrial Relations Commission in relation to terms and conditions of employment in the contract cleaning industry within the State of Victoria.
The agreement is without prejudice to the Union's intention that awards made in part settlement of Matter No 21726 of 1992 in relation to Victorian employers, do not preclude the making of awards arising out of this matter outside the State of Victoria.
The parties agree:
1. To make a joint application for a Federal Award that preserves rates of pay and allowances as they were prescribed for the contract cleaning industry in the expired awards of the former Industrial Relations Commission of Victoria, known as the Building Services Award, the Building Services (State Government Departments & Instrumentalities) Award, the Miscellaneous Workers Post-Secondary Education (TAFE) Award and the Cleaners and Domestic Arts Assistants (Government Schools) Award.
2. That the Award made prescribe common conditions of employment for the industry, other than where to prescribe such common conditions of employment would result in a reduction in income contrary to Point 1 of this agreement.
It is acknowledged by the parties that the implementation of 1 and 2 of this agreement shall be staged as follows:
(a) An initial application to the Commission for a minimum rates award, the scope and Incidence of that award being in similar terms to the Incidence of the former Building Services Award.
(b) A second stage where the paid rates applicable in the former paid rates awards applicable to the cleaning industry are incorporated as separate parts into the Building Services Award.
....
4. That those parts of the Award prescribing rates of pay for work performed in Government Schools, Colleges of Technical and Further Education and State Government Departments and Instrumentalities, include a provision exempting an employer from the payment of the rates prescribed in those parts where a lawful employment agreement, pursuant to Part 2 of the Employee Relations Act 1992, Victoria, exists for a period of 5 months from October 11, 1993.
......"
27 Pursuant to that agreement an application to vary the Award was made to the Commission on 20 July 1994. In the course of the hearing of that application Mr Heyes, who appeared for the ALHMWU, said:
"So we have a situation where we are seeking to vary a minimum rates award to incorporate rates which were paid rates in the awards of the former Industrial Relations Commission of Victoria."
28 Those former State awards which were four in number had earlier been identified and included the Miscellaneous Workers' Post-Secondary Education (TAFE) Award.
29 Mr Heyes then introduced a draft of a proposed new cl 8A saying:
"At the moment the sectors of TAFE, state government departments and instrumentalities, and government schools are specifically excluded, and we need to drop those exclusions. And then on page 3 item 3 is a new clause 8A, Excess Supplementary Payments, and where the payment is applicable in TAFE, state government departments, and schools, are outlined.
And it goes on to define the classification in the schools because there are different duties that are applicable in the schools, and also we need to vary the allowances provisions to exclude the operation of the leading hand clause with respect to people employed in schools, to incorporate a TAFE allowance."
30 Once it is accepted that the phrase "College of Advanced Education" is a term of art and not a collection of words having their ordinary English meaning, its construction is a question of law; see eg. Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 397. That question has to be resolved with the assistance of the historical background and the textual context in which the expression has been used. Thus, Burchett J in Short v F W Hercus Pty Ltd [1993] FCA 51; (1993) 46 IR 128 pointed out at 134-135;
"The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed.
.....
Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J said in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only be reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position."
31 The first of those passages was applied by Marshall J in interpreting a Public Service Award in Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 178.
32 Since the Award with which the present case is concerned was made on 26 April 1994 to regulate wages and conditions of cleaners in, amongst other places, Victorian educational institutions and to replace Victorian State awards including the Miscellaneous Workers Post-Secondary Education (TAFE) Award, it is appropriate to assume that references to institutions by names such as "Colleges of Technical and Further Education" have the same meaning as the identical words have, or had, in Victorian legislation establishing or regulating those institutions. A similar approach led the High Court in Scott v Sun Alliance Australia Ltd [1993] HCA 46; (1993) 178 CLR 1 at p.5 to construe the expression "ordinary time rate of pay" in the Tasmanian Workers' Compensation Act as having the same meaning as had been accorded to it in industrial and workers' compensation prescriptions in other States of Australia and New Zealand.
33 In the present case, the Tertiary Education Act comes readily to hand. Most sections of that Act were proclaimed to come into operation on 1 July 1993. The definition in s 2 of "post-secondary education institution" which has been quoted above was amended by Act No 59 of 1994 to include the reference to "a TAFE college". That amendment came into operation on 8 December 1994. It can therefore be seen that the making of the Award on 26 April 1994 and the insertion of cll 8A and 16(k) on 20 July 1994 occurred at a time of transition from State to Federal Awards when the State legislation governing the institutions in which part of the work covered by the Award was to be performed was also undergoing significant change.
34 The Tertiary Education Act, as indicated by the extracts set out above, expressly provided that "TAFE college" designated that part of an institution in Schedule 1 to the Tertiary Education Act which provided technical and further education. The R.M.I.T. was listed in Schedule 1 to the Tertiary Education Act and part of it, the Technical and Further Education Division established by s 31 of the Royal Melbourne Institute of Technology Act provided technical and further education. That part of the R.M.I.T., although not a separate legal entity, was, it follows, a "TAFE college" or "college of technical and further education" within the meaning of the Tertiary Education Act and the Vocational Education and Training Act. On this analysis, I have been led to conclude that the expression "premises of Colleges of Technical and Further Education" in cll 8A and 16(k) of the Award includes premises occupied from time to time by the Technical and Further Education Division of the R.M.I.T. for the purpose of providing technical and further education as defined in the Tertiary Education Act.
35 This conclusion is consistent with the history of award regulation of cleaners in Victorian educational institutions which I have outlined earlier in these reasons. It seems that employees who had been directly employed by the State of Victoria or a statutory corporation in buildings housing Government departments, State instrumentalities, State schools and publicly-funded post-secondary educational institutions had received, as a component of their remuneration, an amount traceable to what used to be known as the "State Incremental Payments Scheme" which recognised the inability of the State of Victoria and the relevant statutory employers to pay over-award wages.
36 Clause 8A, it is clear from the observations of Commissioner Deegan quoted above, was inserted by consent to preserve that element of remuneration for cleaners of premises in which it had previously been payable, even if the cleaners were no longer directly employed by the State of Victoria or the statutory corporation which occupied the relevant premises. I infer that cl 16(k) was similarly inserted to provide a like, additional, allowance or benefit confined to persons engaged in cleaning premises occupied by TAFE colleges. However, as Commissioner Deegan's decision makes clear, the Commission was not prepared to preserve the historical additional amount or allowance for cleaners in universities because it had not been established that there was a uniform unbroken agreement or practice whereby any single identifiable amount had been paid, in lieu of an over-award component, to cleaners of university premises.
37 For these reasons, I shall order that on the true meaning and intent of cll 8A and 16(k) of the Award "premises of Colleges of Technical and Further Education" include premises occupied from time to time by the Technical and Further Education Division of the R.M.I.T. for the purpose of providing technical and further education as defined in the Tertiary Education Act.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN. |
Associate:
Dated: 18 August 1999.
Counsel for the Applicant: |
Ms T Cirkovic |
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Solicitor for the Applicant: |
Tanya Cirkovic & Associates |
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Counsel for the Respondent: |
Mr B Tee |
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Solicitor for the Respondent: |
Brian Tee |
Date of Hearing: |
21 May 1998 |
Written Submissions filed: |
29 June, 9 July, 6, 14 and 20 August 1998 |
Date of Judgment: |
18 August 1999. |
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