Eraring Energy and Construction, Forestry Mining and Energy Union (NSW) [2005] NSWIRComm 13 (21 February 2005)

Last Updated: 4 March 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Eraring Energy and Construction, Forestry Mining and Energy Union (NSW) [2005] NSWIRComm 13

FILE NUMBER(S): IRC 4190

HEARING DATE(S): 29/10/2004

DECISION DATE: 21/02/2005

PARTIES:

Appellant:

Eraring Energy

Respondent:

Construction, Forestry Mining and Energy Union (New South Wales Branch)

JUDGMENT OF: Walton J Vice-President Backman J McLeay C

LEGAL REPRESENTATIVES

Appellant:

Mr J Phillips SC

Solicitor: Mr B Swebeck

Swebeck Legal

Respondent:

Mr Endacott

Mr Drew

Construction, Forestry, Mining and Energy Union (New South Wales Branch)

CASES CITED: Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales (2004) 135 IR 56

Construction, Forestry Mining and Energy Union (New South Wales Branch) and Delta Electricity (2003) NSWIRComm 135

Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales (2001) 106 IR 217

Federated Clerks' Union (New South Wales Branch) v Australian Workers' Union (1971) AR (NSW) 419

San Remo (Southland) Pty Ltd v Farrell (1987) 22 IR 291

Quinn v Jack Chia (Australia) Ltd (1991-1992) 43 IR 91

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WALTON J, Vice-President

BACKMAN J

McLEAY C

21 February 2005

Matter No IRC 4190 of 2004

ERARING ENERGY AND CONSTRUCTION, FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

Application by Eraring Energy for leave to appeal and appeal against a decision of Deputy President Harrison given on 28 June 2004 in Matter No IRC 985 of 2003

DECISION OF THE COMMISSION

1 This is an application for leave to appeal and, if granted, an appeal by Eraring Energy ("the appellant") against a decision of Deputy President Harrison delivered on 28 June 2004.

2 The proceedings before his Honour commenced by a Notification of Dispute under s130 of the Industrial Relations Act 1996 ("the Act") which was lodged on 25 February 2003 by the Construction, Forestry Mining and Energy Union (NSW Branch) ("the respondent") against the appellant.

3 A compulsory conference was held during which many of the issues were resolved. An unresolved issue concerned the contention by the respondent that the appellant had failed to pay two of its employees, Glenn Currington ("Mr Currington") and Grant Smith ("Mr Smith"), in accordance with the Eraring Energy Employee Consent Award 2002 ("the Award").

4 On 2 September 2003 the respondent filed an application under s379 of the Act claiming payments on behalf of the two employees from the appellant in the amounts of $3060.57 and $3300.35 respectively. The basis of the claims was that Mr Currington and Mr Smith had been underpaid as a result of the appellant's incorrect application of clause 10.42 of the Award which specifically applied to the classification, "Operator Eraring". The respondent contended that both employees were entitled to be paid in accordance with the more general shift work provisions found in clauses 10.6, 10.7, 10.12, 10.13 and 10.16.

5 His Honour concluded that clause 10.42 did not apply because both employees did not come within the classification of "Operator Eraring" and accordingly they had been underpaid.

Factual background

6 The terms and conditions of the appellant's employees were regulated by the Award. A document entitled the "Production Group Skills Development, Career Path And Remuneration Program", referred to in short form as "the Matrix", ("the Matrix"), also regulated aspects of employment.

7 The Matrix applied to a production group bearing the single classification "Operator Eraring". This production group was to operate within self-contained production teams which consisted of sixteen members who were allocated to one of five shift panels. The membership included ten Assistant Power Plant Operators or "APPOs".

8 Clause 8 of the Matrix headed "Dispute Settlement" provided that in the event of a conflict between the terms of the Matrix and the Award, the Award would prevail.

9 Sometime in early 2002 three vacancies occurred within the Matrix for the position of APPO. Six employees were selected for training including Messrs Currington and Smith.

10 At the completion of training, four persons were selected to fill four vacancies. The two remaining employees, Messrs Currington and Smith, were appointed to the position in relieving capacities. Their appointments were in excess of the shift containment provisions in Clause 7 of the Matrix which only allowed for ten APPOs to be assigned to each of the five shift panels, that is a total of fifty APPOs.

11 Messrs Currington and Smith commenced their duties as relieving APPOs on 21 November 2002 and 14 December 2002 respectively. They worked twelve-hour shifts and were paid in accordance with the shift provisions of clause 10.42 of the Award.

The decision at first instance

12 In the decision at first instance Deputy President Harrison posed the central question as:

... whether clause 10.42 Twelve Hour Shifts applies to all work on twelve hour shift or is limited to those employees working in accordance with the Matrix Agreement

...

Clause 10.42 is limited to Operators Eraring. The question to be asked is whether Messrs Currington and Smith were or became Operators Eraring. This question must be answered in the negative.

13 His Honour's conclusion was that clause 10.42 is limited to Operators Eraring but that neither Mr Currington nor Mr Smith were Operators Eraring. Later in the decision this conclusion was expanded upon when his Honour purported to create two distinct classifications, namely, Operators Eraring and Acting Operators Eraring. This was expressed by his Honour in the following way:

The provisions of clause 10.42 apply to Operators Eraring. Mr Currington was not and Mr Smith is not, an Operator Eraring; they are acting in these positions at the direction of the employer.

14 In arriving at this conclusion his Honour made a number of observations and findings.

15 First, he found that the Matrix had no application to both employees. This was because the employees formed part of a relief pool which was outside the arrangements of the Matrix and therefore they were not subject to the package of rights and obligations contained in that document.

16 Secondly, his Honour found that both employees while acting as Operators Eraring remained in their respective positions. This finding, according to his Honour, was confirmed in part by reliance on Quinn v Jack Chia (Australia) Ltd (1991 - 1992) 43 IR 91 per Ashley J, who said (at 99) that where there has been agreement between employer and employee concerning a profound alteration to the employee's duties and responsibilities, a new contract of employment may be created. By contrast no new contracts of employment were created here because of the right of the employer to require its employees to take on additional duties.

17 This right, so his Honour reasoned, is found in the provisions of clause 15 of the Award. His Honour identified in clause 15.2 the prescription for higher payment in two categories, namely, one where an employee is required to perform duties in a higher-grade position, and the second where an employee is required to perform additional duties but at a higher rate of pay.

18 According to his Honour, Messrs Currington and Smith fell into the first category. As a result, the two employees were paid at the same rate as permanently-appointed Operators Eraring.

19 His Honour then observed that clause 15 specified rates of pay only, therefore, both employees were subject to a return to their substantive positions which would result in lower salaries.

20 An argument advanced at first instance, that if the employees were not paid in accordance with clause 10.42 then they would be paid more than appointed operators, was rejected by his Honour as "specious".

21 This argument arose in the context of a comparison of the shift allowances payable under clause 10.42 and the shift allowances payable under the general shift provisions of the Award, notably clauses 10.6 and 10.7. Under the latter-mentioned clauses, a shift worker on afternoon shift (a shift finishing after 6.00pm and at or before midnight) would be entitled to a 20% loading for all hours worked under Clause 10.42(h)(i). An employee in the position of Operator Eraring who worked on a twelve-hour day shift (7.00am to 7.00pm) would receive a 20% loading for four hours only, namely from 3.00pm to 7.00pm. This would produce the result that if Messrs Currington and Smith, while acting as Operators Eraring performing twelve-hour shifts, were paid pursuant to clauses 10.6 and 10.7, they would receive a higher payment than appointed Operators Eraring.

22 In rejecting this argument, his Honour referred to the fact that there were many instances outlined in the Award where part-time shift work attracted overtime rates well in excess of per-shift remuneration for permanently-appointed employees.

23 Thirdly, his Honour pointed to what he considered to be two distinct classifications, one comprising permanent appointees to the position and the other comprising persons such as Messrs Currington and Smith acting in the position.

24 Confirmation of these two classifications, his Honour said, was to be found in a range of important distinctions, the central distinction being that acting employees do so at the direction of the employer in the exercise of the right as set out in clause 15.

25 During the course of his reasons, his Honour, on a number of occasions, emphasised that the central question, namely whether clause 10.42 applied to Operators Eraring (and, in turn, whether Messrs Currington and Smith were Operators Eraring) must be answered by the application of the ordinary rules of interpretation of an Award.

26 In this respect, his Honour specifically rejected reliance on a log of claims which had been tendered by the appellant at first instance in support of its argument that the two employees were properly classified as Operators Eraring and therefore they fell within the provisions of Clause 10.42.

Leave to appeal

Submissions concerning leave to appeal

27 The appellant seeks leave to appeal pursuant to sections 187 and 188 of the Act.

28 The appellant submitted that it is in the public interest that leave to appeal should be granted.

29 The appellant's primary argument was that leave to appeal should be granted because his Honour misapplied the principles of award interpretation which required appellate intervention.

30 Other matters were advanced by the appellant in submitting that leave should be granted. These other matters included, the wider application of the Award to the appellant's employees covered by the Award, and, the potential impact of the decision beyond the appellant's particular circumstances given that some of the provisions of the Award are similar to the provisions contained in other awards in force in New South Wales, for example, those provisions concerning acting in higher-graded positions.

31 In written and oral submissions the appellant contended that leave should be granted because the matter raised the proper interpretation of clause 10.42 of the Award and the application of that clause to persons acting in higher-grade positions as Operators Eraring while fulfilling the duties of that position.

32 The respondent submitted that leave to appeal should be refused because his Honour did not apply incorrect principles of interpretation; instead, the matter was approached by the application of the ordinary rules of interpretation.

33 As part of the respondent's arguments that the decision at first instance contained no errors of interpretation, it was contended that clause 10.42 applied exclusively to Operators Eraring. Since that expression had its genesis in the Matrix, it was open to his Honour to consider the Award by reference to that document.

34 The respondent also argued that the matter affected only two employees of the appellant and that the expression "Operators Eraring" was unique to the Award, therefore, none of the issues raised by the appellant in support of its application for leave justified appellate intervention on the basis of public interest.

Principles concerning leave to appeal

35 The long-established principles concerning leave to appeal in this Commission were recently re-stated in the Full Bench decision of Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales (2004) 135 IR 56 at [13] [14] [15] and [17]:

13 Appeals to the Full Bench of the Commission are governed by s188 of the Industrial Relations Act. Section 188 provides that an appeal from a Member of the Commission may only be made with leave of the Full Bench and that leave will be granted in the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted.

14 The principles to be applied in determining whether to grant leave are well established: leave to appeal to a Full Bench of the Commission will not be lightly or automatically granted and will be restricted to appropriate cases that meet the public interest test stated in s188(2) of the Act. It will also be relevant to consider whether the appellant has brought a substantially different case in the appeal and whether the appeal raises substantial issues of principle or fact or has wider implications for the jurisprudence of the Commission: see, for example, King v State Bank of New South Wales [2002] NSWIRComm 353 at [52]-[55] and Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381 - 382.

15 Leave to appeal will not usually be granted where the issues in the appeal have already been the subject of authoritative pronouncement: De Simone Consulting Pty Limited v Ison (2000) 97 IR 478 at 482 and Cash Converters Pty Ltd v Yildiz (1999) 94 IR 474 at 475-476.

...

17 It is well established that leave is rarely granted where an appeal seeks, by and large, to challenge findings of fact which are otherwise open on the evidence. In Box Valley Pty Ltd v Price (2000) 97 IR 484, the Full Bench stated:

In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave.

See also King v State Bank of New South Wales at [54] and Weisser v Spur Group Pty Limited (2003) 121 IR 89 at [33].

The substantive appeal

Grounds of the appeal

36 The appellant set out thirteen grounds of appeal in the Notice of Appeal. These grounds may be summarised as follows:

(i) errors in the interpretation of that part of the Award concerning the expression, "Operator Eraring", namely, the finding at first instance that the expression did not include persons acting in the position; the fact that, "acting Operator Eraring" was a classification different from "Operator Eraring", and, as a consequence, that the former classification did not come within clause 10.42;

(ii) error in not having regard to certain extrinsic material where there was ambiguity within the terms of the Award;

(iii) error in having recourse to the Matrix to negate terms of the Award;

(iv) the failure to give adequate reasons;

(v) the taking into account of irrelevant considerations and the failure to take into account relevant considerations.

The appellant's submissions

37 The appellant's written and oral submissions were directed to one issue, namely, the finding at first instance that clause 10.42 did not apply to Messrs Currington and Smith. This issue, it was said, raised the proper construction of the expression, "Operator Eraring".

38 In developing this issue, the appellant contended that the method used by his Honour in interpreting clause 10.42 was contrary to the principles of award interpretation, involving as it did, taking into account irrelevant considerations and failing to take into account relevant considerations.

39 It was pointed out by the appellant that it was common ground between the parties that the two employees had been directed to work as APPOs, that is, as operators, and that, while working in that capacity, both employees performed the same duties and worked the same hours as permanently-appointed operators.

40 The direction to work as operators was pursuant to clause 15.2 which required employees to work in higher grade positions. While this was permissible under the terms of the Award, the error made by his Honour was in finding that there existed a separate classification known as "acting Operator Eraring" even though the Award contains no such classification. According to the appellant, the expression, "Operator Eraring", is merely a label. What is important in terms of the construction principle is to examine the work performed.

41 The appellant also contended that if there was ambiguity in the expression, "Operator Eraring", then it was permissible in accordance with the rules of construction to have regard to extrinsic material. Here, a reference by his Honour to the log of claims would have resolved any ambiguity since that document exempted acting operators from the definition of "Operator Eraring" in clause 10.42. Instead, his Honour rejected reliance on it, although at the same time he had recourse to other extrinsic material, namely, the Matrix.

42 In oral submissions, the appellant argued that a proper application of the relevant principles dictates looking at the ordinary meaning of the words and that in determining what classification applies to a particular person under the Award, one must examine the actual work performed by that person. Here, there was no dispute that the work performed by Messrs Currington and Smith was the same work performed by Operators Eraring. In addition, both employees worked the same twelve-hour shifts as Operator Eraring appointees.

43 The appellant also relied in written submissions on the doctrine of approbation and reprobation. The appellant had presented an argument at first instance which it said was effectively the same as an argument based on the doctrine. That argument was that the respondent could not be permitted to select certain provisions of the Award in their favour and ignore other provisions which might be considered less favourable. Here, the appellant argued, the respondent should not receive the benefit of the higher salary rate while working as Operators Eraring but at the same time fall outside the shift allowance provision of clause 10.42(h)(i), that is, receiving a benefit at Operator Eraring salary rates on a twelve-hour shift of a 20% loading for all twelve hours worked, in accordance with clause 10.6.

The respondent's submissions

44 The respondent in written submissions identified the central issue on appeal as whether Messrs Currington and Smith were Operators Eraring under clause 10.42 when acting in the higher graded positions.

45 In contending that neither employee fell within the clause, the respondent relied upon what was termed a range of differences between persons acting and persons permanently appointed to a position. Such differences, it was contended, manifest in what could be a limited and varied basis upon which an employee assumes an acting position. The distinction was highlighted by the circumstances confronting employees in acting capacities, namely, they do so at the employer's discretion and are directed to act in the higher grade positions.

46 It was further contended by the respondents that because the expression, "Operator Eraring" in clause 10.42 originated in the Matrix, it was reasonable to conclude that the specific provisions of the clause only applied to those employees falling within the provisions of the Matrix. In oral submissions it was submitted that because the Award did not contain a detailed classification structure but the Matrix did, then in order to determine whether Messrs Currington and Smith were "Operators Eraring" within clause 10.42, recourse should be had to that document.

47 The respondent sought to support the argument that neither of the two employees, by virtue of their acting status, fell within clause 10.42, by pointing out that, on completion of their respective projects, in which both employees were engaged as acting operators, they would be returned to their substantive positions on lower salary points.

48 The respondent in written submissions argued that it was questionable whether the doctrine of approbation and reprobation had any application in an industrial law context, but that, in any event the doctrine had no application to the present circumstances. This was because at the time the matter was heard by the Deputy President, Mr Currington had been permanently appointed as an Operator Eraring and, in the case of Mr Smith, his circumstances were properly characterised as that of an employee who was underpaid as the result of the appellant's failure to pay him in accordance with the Award.

Appellant's reply

49 By way of reply, the appellant contended that the respondent's arguments concerning the non-application of clause 10.42 to Messrs Currington and Smith and the resultant reliance on the more general shift provisions contained in clause 10.6 was inappropriate, given that both employees worked two twelve-hour shifts whereas clause 10.6 applied to shift workers working three shifts.

50 The appellant in reply also maintained that contrary to any suggestion by the respondent that the Matrix could override the Award, the Award was not subject to that document.

Consideration

51 We grant leave to appeal in this matter because the issues raised concerning the principles of interpretation of industrial instruments in the context of this matter are of sufficient importance to warrant the grant of leave.

52 In the decision at first instance his Honour correctly identified the issue before him as the interpretation and application of the Award. He did not, however, apply the proper approach to the interpretation of such instruments because he gave insufficient attention to the actual words used in the award in the context in which they appear.

53 There is a considerable body of jurisprudence developed by this Commission concerning the relevant principles of construction to be applied when interpreting awards.

54 In Zoological Parks Board of New South Wales, at [43], the Full Bench emphasised, as the primary consideration when interpreting industrial instruments, the actual words used, which should be given their plain, ordinary meaning, and, the context in which the words are used.

55 In Construction, Forestry Mining and Energy Union (New South Wales Branch) and Delta Electricity (2003) NSWIRComm 135, the Full Bench of this Commission, (at [44]), found errors of principle in the interpretation of industrial instruments at first instance because of a failure:

... to have sufficient regard to the actual terms of the instruments being construed, namely the terms of the award and the agreement. Nor was the Commissioner's approach consistent with the normal approach to interpretation, including interpretation of awards, which requires the particular words or phrases under consideration to be considered in their context.

56 In Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales (2001) 106 IR 217 at 225 the Full Bench of this Commission held, in adopting an approach to the interpretation of awards by Sheldon J in Federated Clerks' Union (New South Wales Branch) v Australian Workers' Union (1971) AR (NSW) 419 at 421, that the interpretation of the phrase, "... in any clerical capacity", was a question of fact to be determined by an examination of the work performed in each case.

57 Later in Kingmill (at 231) the Full Bench added:

It is the actual duties of the employee engaged in the process of renting vehicles which must be assessed in order to determine this appeal.

58 In San Remo (Southland) Pty Ltd v Farrell (1987) 22 IR 291 at 293, 294 Macken J looked at whether the Shop Employees' (State) Award applied to an employee of the applicant. The employee had been engaged by the applicant as a manager of a liquor outlet. Macken J approached the question, namely whether the employee's employment was regulated by the Award, by focussing on the work performed:

It is the work done by an employee which determines the rate of pay to which the employee will become entitled and not the designation which may be given to it by the parties:

In Connolly v Watson [1954] AR (NSW) 533 at 534, it was said: 'Even if there were a specific contract for Connolly to be employed under the designation of caretaker, a further question would arise as to whether such a contract must be construed as one by which Connolly was to perform the type of work for which a rate is provided by the above-mentioned award.'

While the designation of "manager" is not an indicator of the employment contract which should be ignored it is to the work performed that one has to turn to determine the application of the award to the employment.

59 Clauses 10.6, 10.7 and 10.42 are in the following terms:

10.6 Shift work may be:

(a) Early Morning Shift - a shift commencing after 5.00am and

before 6.30am.

(b) Afternoon Shift - a shift finishing after 6.00pm and at or before

midnight.

(c) Night Shift - a shift:

(i) Finishing between midnight and at or before 8.00am;

(ii) Commencing between midnight and at or before 5.00am.

Eraring Energy will decide the commencing and finishing times of shifts to suit the needs and circumstances of each establishment.

10.7 Shift workers, who work on a shift work roster, must be paid the following allowances:

Early Morning - the greater of 10% of single time for the shift and $6.80

Afternoon - the greater of 20% of single time and $24.80

Night - the greater of 20% of single time and $24.80

10.42 The following provisions will apply to Operators Eraring when working 12 hour shift rosters:

(a) Each ordinary shift will be of 12 hours duration.

(b) Payment will be in accordance with the 7 x 3 x 8 hours roster.

(c) No benefits additional to those applying to the 7 x 3 x 8 roster

will be accumulated in relation to sick, annual, long service

leave or public holidays.

(d) There will be 2 ordinary shifts per day with day shift being

from 7.00am to 7.00pm and night shift being from 7.00pm to

7.00am.

(e) Twelve hour shift workers who, on a public holiday:

(i) Work an ordinary rostered shift; or

(ii) Are rostered off duty (except when on annual or long

service leave)

Are entitled to have 8 hours added to their annual leave

entitlement for each public holiday prescribed in Clause 21 of

the Award. If higher-grade pay is involved, the provisions of

Clause 15.4 apply.

If observing a public holiday an employee will lose 12 hours

annualised salary allowance.

(f) When taking annual leave, employees will be debited 12 hours from their annual leave balance. No loss of allowances will apply as per annualised salary agreement.

(g) There will be no decrease in superannuation entitlements due to a change from an eight hour shift roster to a 12 hour shift roster.

(h) Allowances and Penalties

(i) Saturday 1.5 x hours of shift

Sunday 2.0 x hours of shift

Public Holidays 2.5 x hours of shift

Shift Allowance (night shift) 1.2 x hours of shift

i.e. 20%

Shift Allowance (day shift) 1.2 x 4 hours of shift

i.e. (3.00pm to 7.00pm)

(ii) Roster loading "A" (all shifts) 4.35%

(iii) Monday to Friday shifts:

Roster loading "A" and 4 hours shift allowance to be

deducted for day shift (12 hours) on sick leave not

supported by a medical certificate

Roster loading "A" and shift allowance to be deducted for

night shift (12 hours) on sick leave not supported by a

medical certificate

(iv) Saturday and Sunday shifts:

Appropriate weekend penalty to be deducted for (12 hours)

on sick leave not supported by a medical certificate

Roster loading "A" and 4 hours shift allowance to be deducted for day shift (12 hours) on sick leave not supported by a medical certificate

Roster loading "A" and shift allowance to be deducted for night shift (12 hours) on sick leave not supported by a medical certificate

(v) Public Holidays:

Appropriate public holiday penalty to be deducted on sick leave not supported by a medical certificate

Roster loading "A" and 4 hours shift allowance to be deducted for day shift (12 hours) on sick leave not supported by a medical certificate

Roster loading "A" and shift allowance to be deducted for night shift (12 hours) on sick leave not supported by a medical certificate

(i) Handover time will be (20) minutes each shift.

60 Clauses 15.1 and 15.2 provide:

15.1 Employees must carry out work at a higher grade as directed where reasonable and practicable for them to do so and must be paid in accordance with the provisions of this Clause.

15.2 Employees who are required to perform the duties and assume the responsibilities of a higher grade position which is vacant or the appointee of which is absent or is working in another position, must be paid the salary to which the employees would have been entitled if appointed to that position.

Where employees are required to perform additional duties or assume additional responsibilities above those for their current position for a specified period, payment shall be made in line with the additional duties and responsibilities undertaken.

Wherever practicable the rate of pay applicable to the higher graded duties shall be determined prior to the commencement of the acting.

Employees who work at a higher grade for more than four hours must be paid at the higher grade rate for all ordinary time worked during the day or shift.

The performance of higher graded duties must not continue for more than six months without the Managing Director's approval. This will only occur in exceptional circumstances.

61 In the present matter his Honour, in addressing the question whether Messrs Currington and Smith were Operators Eraring (and therefore fell within the terms of clause 10.42), failed to properly direct his attention to the award and in that context the actual work performed by the two employees. Here there was no dispute that Messrs Currington and Smith both performed the work of Operators Eraring, that is, they had the same duties and responsibilities, they worked the same twelve-hour shifts and they were paid in accordance with the provisions of clause 10.42 as Operators Eraring.

62 Instead, his Honour incorrectly focussed on the acting status of the two employees and drew an erroneous distinction between acting Operators Eraring and permanently-appointed Operators Eraring. This was an irrelevant consideration. In creating the distinction, his Honour was distracted from the question of whether the two employees were Operators Eraring, in accordance with the terms of the award.

63 On a plain reading of clause 10.42 of the Award, it provides for employees who perform work in an acting capacity as well as permanent appointees to the position of Operator Eraring. Nor is there any distinction apparent within the terms of that clause between acting and permanent appointees, which might otherwise lead to a conclusion that Messrs Currington and Smith, who performed the same work and worked the same shift as Operators Eraring, fell outside clause 10.42.

64 Clause 15 of the Award was relied upon in part by his Honour for the finding that Messrs Currington and Smith were not Operators Eraring. This was because, according to his Honour, clause 15 dealt with rates of pay only and this was an indication that Messrs Currington and Smith, by virtue of the uncertainty engendered by their acting status, were subject to a return to their substantive positions at reduced salaries.

65 We note in passing here, that this was not possible in any event in the case of Mr Smith since the evidence before his Honour showed that Mr Smith's substantive position had been abolished some time before the matter came before his Honour.

66 Clause 15.2 was relied upon by his Honour to support his findings that there were two separate classifications of acting and permanently-appointed operators and that Messrs Currington and Smith fell into the former category. According to his Honour, clause 15 contained a requirement which could be imposed by the employer on an employee to perform the duties of a higher graded position.

67 Clause 15.2, however, clearly states that an employee acting in a higher grade position must be paid the same salary as appointees to the position.

68 We are also of the view that his Honour's reliance on clause 15.2, as applying to Messrs Currington and Smith, was misplaced, because his Honour construed the terms of the clause too broadly. Clause 15.2 applies to employees acting in higher grade positions but only if such positions are vacant or the permanent appointee is absent or working in another position. On the evidence before his Honour neither of these two contingencies were available at the time the two employees were appointed as acting Operators Eraring. It was therefore not open to his Honour to rely on clause 15.2 to support his findings, that the two employees did not come within the classification of Operator Eraring and, therefore, that clause 10.42 had no application to them.

69 The appellant, in submissions before us, also contended that the Deputy President had impermissibly relied on extrinsic material, namely, the Matrix, while at the same time rejecting other extrinsic material, namely, the log of claims.

70 We find it unnecessary to decide this point. We would add by way of comment, however, that a careful reading of his Honour's reasons reveals, contrary to the submission, that his Honour did not rely on the Matrix to support his conclusion that Messrs Currington and Smith were not Operators Eraring.

71 In the decision his Honour made a finding that the "relief pool" constituted by the two employees was outside the Matrix arrangements. Immediately after this finding, his Honour identified, as the "central question", whether clause 10.42 applied to all work on twelve-hour shifts or only to employees working in accordance with the Matrix. His Honour then said that that question must be answered by the application of the ordinary rules of interpretation of awards.

72 There is nothing in his Honour's reasons which indicates any reliance on the Matrix to support his conclusion that Messrs Currington and Smith were not Operators Eraring. Instead his Honour relied primarily on the Award, most notably the provisions of clause 15, to create the distinction between acting and appointed Operators Eraring which led to his conclusion.

73 The only other reference his Honour made to the Matrix when considering the matter, was to the salary point awarded to APPOs which is found by reference to the Matrix. In relation to that, his Honour commented that mere use of the salary point did not mean that all other terms and conditions of the Matrix would apply.

74 In any event, to the extent that the Matrix may have been a relevant consideration (as relating to the award history or surrounding circumstances of its provisions - see Zoological Parks Board at [44] - [46]), it does not ultimately assist the respondent. The fact that Messrs Currington and Smith may not have qualified by way of substantive appointment, under the terms of the Matrix, to the position of Operator Eraring, does not mean that they did not assume the duties of that position and that the award did not then in turn apply to them (when clauses 10.42 and 15 are properly read).

75 Nor did his Honour place any reliance on the log of claims. His Honour stated in relation to that document:

There is no refuge in reference to the log of claims as advanced by Mr Phillips. There is no evidence of the interest of those claims, ... discussions, negotiations or any other aspect of the claims ...

76 We consider that his Honour was correct in the approach he took to the log of claims. We find no ambiguity in the expression, "Operators Eraring", as it appears in the Award in clause 10.42. Further, any recourse to the log of claims as an aid to interpretation would be of little or no assistance, it not being a document representative of any agreement between the parties.

77 Finally, we note that in light of the conclusion which we have reached, it is not necessary for us to deal with the submissions of the parties in relation to the doctrine of approbation and reprobation and whether that doctrine has any application to this matter.

78 We make the following orders:

1. Leave to appeal is granted.

2. The appeal is upheld.

3. The decision of Deputy President Harrison in Matter No. IRC 985 of 2003 is quashed.

LAST UPDATED: 22/02/2005