Short v. FW Hercus Pty Ltd, Re

40 FCR 511
1993 - 0223A - FCA; No. S I3 of 1992 Fed No. 72

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(Decision by: Drummond J)

Between: Short
And: FW Hercus Pty Ltd

Court:

Judges: Keely J
Burchett J

Drummond J

Subject References:
Industrial Law

Hearing date: 11 November 1992, 12 November 1992
Judgment date: 23 February 1993

Adelaide

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Decision by:
Drummond J

I agree, for the reasons given by both Keely J. and Burchett J., that the redundancy clause here in question is unambiguous and with the order proposed by Keely J.  I wish only to add a few comments of my own.

In giving its decision on 9 August, 1985, as a result of which the clause was inserted by its later order of 14 May, 1986 in the Metal Industry Award, 1984 - Part II - Draftsmen, Production Planners and Technical Officers ("the award"), the Australian Conciliation and Arbitration Commission said (at page 1 of Print F9780):

"The matter before the Commission concerns an application for flow-on of the standards established in the Termination, Change and Redundancy Case decisions of the Commission. The Awards concerned are the Metal Industry Award, 1984 - Part II - Draftsmen, Production Planners and Technical Officers (the Metal Industry Award) and ... The parties are agreed on the incorporation of the new standards into the Awards other than in relation to the question of notice of termination of employment and the operative date."

(The questions concerning notice of termination that then required resolution by the Commission are of no present relevance.)

The reasons of the Commission show that the redundancy clause was incorporated in the award by consent of the various parties, as a clause containing one of the "new standards" fixed by the Termination, Change and Redundancy Case decisions.  The content of the new standard, so far as redundancy is concerned, is set out in the reasons for decision in the first of those cases, Termination, Change and Redundancy Case (1984) 8 IR 34, particularly at 61-62 and 72-73, and the reasons for the supplementary decision in that case reported at (1984) 9 IR 115, particularly at 128-129. The redundancy clause in this award is a copy of the draft clause prepared by the Commission to cover redundancies occurring in a wide range of circumstances, including redundancies resulting from a general economic downturn or from an insufficiency of work available to the particular employer, i.e., from the kind of circumstances that caused the respondent to terminate the appellant's employment.

For the reasons given by Burchett J., I think that, even though the redundancy clause is free of ambiguity, recourse can be had to these matters in interpreting it:  they form part of what his Honour has described as "the wider context of the award provision".

Moreover, the clause is part of the order of the Commission of 14 May, 1986 that varied the award.  Australian Energy Limited v. Lennard Oil N.L. (No. 2) (1988) 2 Qd R 230 is authority that, in interpreting the order of a tribunal framed in unambiguous language regard should still be had to the reasons given by the tribunal for making the order:  they form part of the context in which the order was made.  That case turned on the proper construction of a declaration made in earlier proceedings between the parties. At page 232, Andrews C.J. (Kelly S.P.J. agreeing) rejected an argument that resort could only be had to the reasons for decision of the judge who made the declaration if it was shown to be ambiguous.  He also said:

"I would further hold that it is necessary in order fully to understand the effect of the declaration to examine the reasons expressed by McPherson J. in coming to his decision and the extrinsic evidence and surrounding circumstances relied upon by him.  This is not so much to construe the words of the declaration as to understand it in its place in the context of the matter and thus give it its true construction."

Such an approach to construing orders does not conflict with what appears to be the rule, recognised by the majority in Australian Consolidated Press Ltd. v. Morgan (1965) 112 CLR 483 , that ambiguity in a court order (even ambiguity curable by recourse to relevant contextual material) will be fatal to a claim that a person is in contempt of court by breaching that order.