TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act, 1984
s.70 appeal against decision

Tasmanian Chamber of Commerce and Industry Limited
(T4715 of 1993)

Appeal - interpretation - Declaration and Order in T.Nos. 4614, 4615, 4616, 4617, 4619, 4620 and 4621 of 1993 - Musicians Award - appeal upheld - Declaration and Order revoked

REASONS FOR DECISION

This appeal, made by the Tasmanian Chamber of Commerce and Industry Limited, was against a declaration and order by the President, pursuant to section 43 of the Act, dated 28 October, 1993, arising out of applications T.Nos.4614, 4615, 4616, 4617, 4619, 4620 and 4621 of 1993 in respect to the Musicians Award.

The grounds of appeal were as follows:

"1. The President erred in not considering the actual meaning of the words in contention contrary to the rules of interpretation set down in T No 30 of 1985.

2. The President erred in applying to the words in contention a meaning contrary to their ordinary meaning in breach of the rules of interpretation set down in T No 30 of 1985.

3. The President erred in retrospectively altering the terms of the Award to create a liability where none had existed rather than declare that on interpretation of the Award no liability existed contention contrary to the rules of interpretation set down in T No 30 of 1985.

4. The President erred by relying on matters not before him without affording the parties an opportunity to be heard on that material contrary to the provisions of Section 20(4) of the Industrial Relations Act 1984.

5. The President erred by not providing the parties to the Award an opportunity to address the Commission on the proposed variation to the Award contrary to the rules of natural justice.

6. The President erred by not exercising the discretion available under Section 43(1A) of the Act to direct that an application be made to vary the Award to clarify the provision of the award thereby denying the parties and employers potentially affected by an Award variation natural justice.

7. The President erred in determining that the variation to the Award by No 2 of 1989 constituted a defect in the Award without declaring how the provisions of the Award should be interpreted contrary to Section 43(1A) of the Act.

8. The President erred in failing to consider the public interest contrary to the provisions of section 20(1)(d) and 36 of the Act.

9. The President erred in making an Order to vary the Award to apply to a class of employees employed in an occupation by purporting to exercise a jurisdiction previously available under Section 33(1)(b) of the Act but which had been removed with effect from 1 March 1993.

10. Such other grounds as the Commission may deem appropriate."

Section 43(1A) states -

"On receipt of an application under subsection (1), the President must -

(a) declare, retrospectively or prospectively, how the provision of the award is to be interpreted and, if the declaration so requires, by order, vary any provision of the award to remedy any defect in it or give full effect to it; or

(b) if satisfied that a declaration under paragraph (a) would be inappropriate, by order, direct that an application to vary the award be made to clarify the provision of the award in respect of which the application was made."

The original application, which gave rise to this appeal, sought an interpretation of the Musicians Award in respect to the following clauses:

Clause 2 - Scope;

Clause 6 - Parties and Persons Bound;

Clause 7 - Definitions - (casual employee, musical services, regular weekly part-time employee, weekly employee)

In a decision arising out of T.30 of 1985, the Commission handed down some of the more important guidelines that should be understood by those wishing to bring interpretation matters before the Commission. They were as follows:

"First: 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.

Second: 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 is, on the basis of what one party or the Commission believes the provision in question should mean.

Third: 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 the suggested by ordinary English usage.

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

Fifth: 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.

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

Seventh: It is no 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."

We have had regard to those guidelines when determining this appeal.

It seems to us, from studying the transcript of the original hearing, that the parties, on a number of occasions, made submissions on the question of merit and intent and the work undertaken by a certain individual, (who was the subject of a dispute application being heard under another section of the Act), as opposed to the meaning of the words actually used, even if those words may not have achieved what was intended.

We are unable to find from reading the declaration required to be made by the President, pursuant to section 43 of the Act, how the award provisions being the subject matters of the original application, are to be interpreted. We also note that the Order, arising out of the original hearing, varies the Parties and Persons Bound clause in the award but nowhere in the declaration can we find how the existing clause in the award is to be interpreted.

We are of the view that the President fell into error, in that he turned his mind to the merit of the application which is not open to him under the principles to be used when interpreting a clause(s) or a word(s) contained in the award.

When making an order, pursuant to section 43 of the Act, the President must in the first instance, declare how the provision of the award is to be interpreted and after that has been done, and if he is of the view that the interpretation leads to a defect in the award, then he has recourse to remedy that defect by varying the provisions of the award by issuing an order.

Careful examination of the declaration arising out of the original hearing, shows that there were no declarations made on the subject matters contained in the original application.

For the abovementioned reasons we are of the view that grounds number one (1) and seven (7) of the appellant's application should be upheld.

Given our findings on those two grounds, we see no useful purpose being served by addressing other grounds of appeal.

Therefore, the Declaration and Order arising out of applications, T.Nos. 4614, 4615, 4616, 4617, 4619, 4620 and 4621 of 1993 are revoked and an Order giving effect to our decision is attached.

If certain provisions in the award are perceived to be unclear, and we make no finding on that point, then one of the options open to any party would be to make application to vary the award and the submissions, presented at that time, would be considered on merit.

Appearances:
Mr T J Edwards for the Tasmanian Chamber of Commerce and Industry Limited
Mr D Shelverton for the Musicians' Union of Australia, Hobart Branch

Date and Place of Hearing:
1993
Dec 16
Hobart