By Philippe Doyle Gray and Vincci Chan -
Snapshot
- Reading industrial awards ‘as a whole’ may require consideration of activities covered by the award that are unrelated to the activity undertaken by parties to the dispute, to ascertain its purpose.
- Reading industrial awards ‘as a whole’ may also require consideration of how different constructions are likely to be understood in the relevant industry.
- There is no need to settle on a single interpretation of an industrial award as correct, to the exclusion of competing interpretations, if a court would make the same orders.
The moot point in the case of Hazell v Sewell [2021] FCAFC 76 (‘Hazell’) concerned the grammatical conjunction ‘and/or’. This conjunction has been long and often criticised. Perhaps the zenith of judicial vitriol was reached in 1935 when an American judge, Justice Fowler of the Wisconsin Supreme Court, referred to it as ‘that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to know what he did mean’ (Employers Mutual Liability Insurance Co. v. Tollefson, 263 N.W. 376 at 377).
