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T9027

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.43(1) application for interpretation of award

Sandy Bay Caravan Park
(T9027 of 2000)

HOTELS, RESORTS, HOSPITALITY AND MOTELS AWARD

 

PRESIDENT P L LEARY

HOBART, 13 March 2001

Interpretation - Clause 7 Division B Food Beverage-Housekeeping - resorts - motor inn - caravan park - serviced apartments - application dismissed

REASONS FOR DECISION

This is an application pursuant to s.43(1) of the Industrial Relations Act 1984, as amended, (the Act), for interpretation of a provision found in the Hotels, Resorts, Hospitality and Motels Award (the Hotels Award). The application is made by the owners/proprietors of the Sandy Bay Caravan Park.

The application as filed seeks an interpretation of the following provision:

"Definitions Clause 7 Division B Food Beverage-Housekeeping - General cleaning duties."

The applicant claimed, when filling out the details of circumstances giving rise to the application, that "caravan parks are not included in any award definitions", he also claimed that "Sandy Bay Caravan Park trades only in Tourism/Holiday accommodation".

The application for interpretation is unusual and follows from a letter written by a member of the Commission to parties to an application alleging underpayment of wages. That letter provides an `opinion' by the Commission member as to what was considered the appropriate award by which a former employee should receive benefit. The `opinion' expressed the view that the appropriate award was the Miscellaneous Workers Award.

It is that `opinion' which the applicant in this matter challenges by seeking an interpretation of the Hotels Award. I am of the view that the letter purporting to express an `opinion' as to which is the appropriate award to cover the employee has no status. It is not a decision of the Commission, if it were, it could be appealed, accordingly it is no more than an opinion expressed by a member of the Commission, perhaps similar to a view expressed in a conciliation conference.

Mr Dutton, a partner in the Sandy Bay Caravan Park, submitted that:

" ... the award system is designed to set the parameters for payment in specified industries, thus, in the manufacturing industries where work and circumstances are set for certain times and finish at certain times. The awards rightly envisage additional payment over and above the normal longer hours of work or for return to work or for weekend and bank holiday work. Similarly, with retail industries and most other industries. However, in the tourist accommodation industry no such hours may be dictated. Tourists, as people, require 24 hour service, 24 hour attendance and 24 hour, seven day a week, every day attendance. The awards covering the tourism and leisure industry therefore are cognisant of the need for a 24 hour coverage and do not dictate seriously penalising rates for tourism and leisure industries outside of normal working hours."

and further:

" ... the Sandy Bay Caravan Park is a motel in all but name. The park has sixteen (16) self contained cabins, three (3) units and sixteen (16) on site vans. The only difference in the accommodation provided by the Sandy Bay Caravan Park as against any motel is that the accommodation itself is not brick built nor attached to the realty. In all other aspects they are identical. The cleaner's duties are to clean and service the accommodation units. The beds are fully made up, the place is swept, hoovered, cleaned, or any washing up requiring done and put away and washing up liquid, tea, coffee and milk and sugar provided."

and ...

"Sandy Bay Caravan Park is a tourist resort only. There are no permanent residents. Accommodation is provided for short periods only and there are no accommodation structures on the park other than those owned by the applicants."1

Mr Dutton provided no submissions in support of his application for an interpretation of the Hotels Award but relied on his view that his establishment was, in all but name, a motel and is therefore covered by the Hotels Award. He also submitted:

"It had crossed my mind whether or not the application should have been more in the terms that Sandy Bay Caravan Park could be classified as a resort under the award itself."2

The award does include reference to `resorts', although the word `resort' is undefined.

Mr Edwards, on behalf of the Tasmanian Chamber of Commerce and Industry (TCCI), a registered interested party to the Award, also disagreed with the `opinion' expressed by the Commission member, but acknowledged that such `opinion' had no status and was not relevant to the determination of this application.

He referred to a decision of President Koerbin, a former President of this Commission (the Koerbin decision), which enunciated the principles to be applied in applications for interpretation of an award provision [T30 of 1985].

Those principles are as follows:

"1. Construction or interpretation of award provisions can only be made by considering their meaning in relation to specific facts. It is futile to attempt such an exercise in any other way.

2. It must be understood that in presenting an argument in support of or in opposition to a disputed construction relating to an award provision it is not permissible to seek determination of the matter on merit; that it, on the basis of what one party or the Commission believes the provision in question should mean.

3. Provided the words used are, in the general context of the award and its application to those covered by its terms, capable of being construed in an intelligible way, there can be no justification for attempting to read into those words a meaning different from that suggested by ordinary English usage.

4. An award must be interpreted according to the words actually used. Even if it appears that the exact words used do not achieve what was intended, the words used can only have attributed to them their true meaning.

5. If a drafting mistake has been made in not properly expressing the intention of the award maker, then the remedy lies in varying the award to accord with the decision given.

6. Where genuine ambiguity exists, resort may be had to the judgement accompanying the award as an aid to discovering its true meaning.

7. It is not permissible to import into an award by implication, a provision which its language does not express. The award being a document which is to be read and understood by persons not skilled in law, or versed in subtleties of interpretation, any omission or imperfection of expression should be repaired by amendment rather then by implying into it provisions which are not clearly expressed by its language."

In this matter Mr Edwards relied on the award definition for "Motor inn and motel" and argued that when adopting the principles espoused in the Koerbin decision it was clear that the award was intended to cover caravan parks. The definition is as follows:

"`Motor inn and motel" means and includes an accommodation establishment (not being a licensed hotel as defined in Division A) where accommodation is made available to paying guests which may also include the service of food and/or liquor and without limiting the generality of the foregoing includes an establishment where food and/or liquor is made available to members of the public seated at tables in dining rooms or restaurants, such dining operations being in association therewith. An accommodation establishment shall not include any establishment covered by the jurisdiction of the Restaurant Keepers or Licensed Clubs Award. It shall also, subject to the foregoing include the following:

Unlicensed private hotels, serviced apartments, resorts, time share facilities, health or recreation farms, guest houses, ski lodges, holiday flats/units, holiday ranches or farm condominiums and establishment of a like nature together with restaurants, function areas, convention centres or like facilities, ancillary to or part of any of the above whether such establishments are licensed to serve alcoholic drinks or not and in or in connection with preparing and serving food, cleaning and attending to the premises and all other services associated therewith."

Mr Edwards quoted the Chambers Combined Dictionary Thesaurus which provides the following definition for `motel':

"a hotel near a main road, intended for overnight stops by motorists, with extensive parking."

He also referred to the Collins Paperback English Dictionary definition of `motel', which is as follows:

"a roadside hotel for motorists".

I note that the Macquarie Dictionary provides the following:

motel: "a roadside hotel which provides accommodation for travellers in self-contained, serviced units, with parking for their vehicles."

hotel: "a building in which accommodation and food and usually alcoholic drinks are available; public house."

caravan park: "a supervised area where caravans may park or be hired".

The Australian Pocket Oxford Dictionary provides the following definitions:

motel: "roadside hotel or group of cabins for motorists."

hotel: "house for travellers, large inn, public house."

public house: "house licensed to sell alcoholic liquor to be drunk on the premises."

caravan: "house on wheels towed behind car, truck &c. for use by holiday makers &c., or stationary (esp. in park) for use as temporary dwelling."

The Collins Gem Australian Dictionary provides:

motel: "a roadside hotel with accommodation for motorists and vehicles."

hotel: "commercial establishment providing lodging and meals; establishment serving alcoholic drink."

caravan: "large enclosed vehicle for living in, pulled as trailer by car, etc."

The submissions of Mr Dutton, on behalf of the Sandy Bay Caravan Park, provided little assistance and were mainly concerned with the `opinion' expressed by the Commission member with which he disagreed. He said that his establishment was a `motel' in everything but name, and accordingly, the Hotels Award was the appropriate award.

The Australian Liquor, Hospitality and Miscellaneous Workers Union (the Union), a party with a registered interest in the Award, made reference to the Motels, Accommodation and Resorts Award, 1998 (the Federal award), an award of the Australian Industrial Relations Commission, and in particular clause 6.1.1 which defines the industry covered by the award in the following terms:

"This award relates to the industry of persons employed in any capacity whether permanent or casual in or in connection with motor inns or motels, unlicensed private hotels, serviced apartments, resorts, time share facilities, health or recreation farms, guest houses, ski lodges, holiday flats/units, holiday ranches or farms, condominiums and establishments of a like nature together with restaurants, function areas, convention centres or like facilities, ancillary to or part of any of the above whether such establishments are licensed to serve alcoholic drinks or not and in or in connection with preparing and serving food, cleaning and attending to the premises and all other services associated therewith."

There is some nexus between the Federal award and the Hotels Award, although it was submitted by Mr Edwards that such is a matter of debate depending on the specific condition at issue, however, I note that there are some forty-nine (49) pages of named respondents to the Federal award, not one of which is a caravan park.

Mr Tullgren, for the Union, noted that despite the comprehensive description of the industry and the vast number of manifestations of accommodation named, there was no reference to caravan parks. He traversed the making of the Hotels Award and noted that the definition of `Motor inn and motel', inserted in 1991, was consistent with the industry description in the Federal award.

Further, he submitted that in 1985 [T165 of 1985] the Union lodged an application to vary what is now the Hotels Award by including in the industry description reference to, amongst other things, caravan parks. That matter did not proceed to determination and was discontinued by the Union, with the agreement of the employer representative.

Mr Tullgren submitted that the events in 1985, whilst not pursued, supported his contention that the Hotels Award did not then, and does not now, apply to caravan parks. It was his submission that had the Hotels Award intended to include caravan parks, it would have specifically said so by using the actual words.

He referred to a number of authorities which addressed the matters to be considered when an award interpretation is sought. In Bryce and another v Apperley [82 IR 452] a Full Bench of the Industrial Commission of New South Wales said:

"In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers Union of Australia, New South Wales Branch, re Tank Tops [1961] AR (NSW) 312 at 314:

`The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light.'

Indeed, after referring with approval to what was said by Street J in Geo A Bond & Co Ltd (In Liq), as recited earlier, French J cautioned as follows in City of Waneroo v Holmes (1989) 30 IR 362 at 379:

`It is of course no part of the court's task to assign a meaning in order that the award may provide what the court thinks is appropriate - Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co Pty Ltd v Howarth [1960] AR (NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J).'"

The Bench also quoted the decision of Olney J in Norwest Beef Industries Ltd v Australian Meat Industry Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 in this way:

"If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd 30 WAIG 539 at 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said:

`It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties.'

In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless."

The authorities quoted and relied upon by Mr Tullgren generally espoused the same approach enunciated in the Koerbin decision and relied upon by Mr Edwards.

Findings

Having considered the submissions of the parties in this matter I am of the view that the Hotels Award does not have application to employees working in caravan parks. It would seem to me that had it been the intention of the parties to the Hotels Award that it have such application the award would say so. It describes, by commonly used English language, many manifestations of accommodation types and the terminology `caravan park' is a common and well understood description not normally consistent with the description of a `motor inn or motel'.

Adopting the principles found in the Koerbin decision, as proposed by Mr Edwards, I make the following comments:

    1. The specific facts in this matter are that when the award was initially made there appeared the following definition of Motor Inn and Motel:

"`Motor inn and motel' means and includes an accommodation establishment (not being a licensed hotel) where accommodation is made available to paying guests which may also include the serving of food and/or liquor and without limiting the generality of the foregoing includes an establishment where food and/or liquor is made available to members of the public seated at tables in dining rooms or restaurants, such dining operations being in association therewith. An accommodation establishment shall not include any establishment covered by the jurisdiction of the Restaurant Keepers Award."

The Hotels Award was varied in 1991 to, amongst other things, include the expanded definition now found, which states:

"It shall also, subject to the foregoing include the following:

Unlicensed private hotels, serviced apartments, resorts, time share facilities, health or recreation farms, guest houses, ski lodges, holiday flats/units, holiday ranches or farm condominiums and establishment of a like nature together with restaurants, function areas, convention centres or like facilities, ancillary to or part of any of the above whether such establishments are licensed to serve alcoholic drinks or not and in or in connection with preparing and serving food, cleaning and attending to the premises and all other services associated therewith."

That variation specifically refers to and names a number of types of accommodation `available to paying guests', but does not specifically refer to caravan parks. If it was the intention of the parties, particularly as the list of accommodation types is comprehensive and descriptive, that caravan parks be included as accommodation `available to paying guests', it begs the question why the words `caravan park' do not appear.

In respect to principle 2 that an interpretation should not be pursued on the basis of merit, it seems to me that this application is an application based on merit. It seeks to have an interpretation based on merit, certainly Mr Dutton's submissions are all about the merit of the conditions of the Hotels Award when compared to another award, and Mr Edwards seeks to have an interpretation to include an accommodation type not named nor, in my view, assumed.

Principle 3 addresses whether the words as they are written are capable of construction in an intelligible way. Certainly, there is a general understanding of what is a caravan park, likewise there is a general understanding of what is a motor inn or motel. It is my view that persons making accommodation bookings for a motel would be surprised, perhaps even disappointed, to find that the motel for which they had made reservations was a caravan park; likewise those making a reservation at a caravan park may be less disappointed but certainly surprised if they found their accommodation was that of a motor inn or motel, particularly if they had a caravan in tow.

The words used can only have their true meaning and not some unintended interpretation as stated in principle 4. I do not accept that the definition of motor inn and motel refers to and includes a caravan park. There is a general understanding of what the actual words describing each accommodation type means.

There was no submission that a drafting mistake had occurred; so principle 5 is not relevant.

Principle 6 considers a genuine ambiguity and was not raised as an issue in this application.

Principle 7 talks about importing a provision which the language does not express. This matter is about such an intent, the Commission is being asked to ascribe the accommodation provided in a caravan park to the definition of accommodation found at a motor inn and motel. Further, the application made by the Union in 1985 to include caravan parks in the definition would suggest that there never has been an intent for such inclusion.

The definitions referred to by Mr Edwards and the definitions I have quoted are generally consistent in their descriptions of what is a motel and what is a caravan park. None of those definitions suggest that a caravan park is a motel, or vice versa.

Caravan parks are not a new concept and provide a type of accommodation well understood by the general public. The submissions presented by the applicant, and by Mr Edwards, do little to support the view that a caravan park is, for the purposes of award coverage, a motor inn or motel, despite the award definition referring to a motor inn or motel as being a place where "accommodation is made available to paying guests".

By adopting the principles in the Koerbin decision, I am not persuaded that the Hotels Award has application to employees in caravan parks.

This may not be the interpretation sought by the applicant, however, his argument was more about his concerns in respect to conditions of employment in another award rather than the provision for which he sought interpretation which he did not really address. It may well be that the Hotels Award recognises the sort of work patterns in the hospitality industry, one would expect it to do so, however it does not then follow that an applicant can seek to "import into an award by implication a provision which its language does not express", merely because it is considered more appropriate to his or her position. Principle 7 in the Koerbin decision, as relied upon by Mr Edwards, states that:

"It is not permissible to import into an award by implication a provision which its language does not express. The award being a document which is to be read and understood by persons not skilled in law, or versed in subtleties of interpretation, any omission or imperfection of expression should be repaired by amendment rather than by implying into it provisions which are not clearly expressed by its language."

Accordingly, I declare that the Hotels Award does not have application to employees employed in caravan parks. If, as submitted by the applicant, his establishment is a motel in all but name, that is a matter he is able to pursue in a different way.

 

P.L. Leary
PRESIDENT

Appearances:
Mr B Dutton for the Sandy Bay Caravan Park.
Mr P Tullgren for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch.
Mr T Edward for Tasmanian Chamber of Commerce and Industry Limited.

Date and place of hearing:
2001
February 19
Hobart

1 Transcript, p 3 and 4, 19/2/01
2 Transcript, p 25, 19/2/01