AUSTRALIAN MAustralian National UniversityFACTURING WORKERS' Union v Qantas Airways Limited
[2020] FCCA 3184
•26 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN MANUFACTURING WORKERS' UNION v QANTAS AIRWAYS LIMITED | [2020] FCCA 3184 |
| Catchwords: INDUSTRIAL LAW – Small claims – application for unpaid wages – Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 9 – construction of ‘bonus jump’ in clause 4B.2.3 – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth) Fair Work (Registered Organisations) Act 2009 (Cth) |
| Cases cited: Construction, Forestry, Maritime, Mining and Energy Union v Tahmoor Coal Pty Ltd [2019] FCA 1696 WorkPac Pty Ltd v Skene [2018] FCAFC 131 |
| Applicant: | AUSTRALIAN MANUFACTURING WORKERS' UNION |
| Respondent: | QANTAS AIRWAYS LIMITED |
| File Number: | MLG 2157 of 2019 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 20 April 2020 |
| Date of Last Submission: | 20 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 26 November 2020 |
REPRESENTATION
| Advocate for the applicant: | Mr Terzic |
| Solicitors for the applicant: | None |
| Advocate for the respondent: | Mr Popple |
| Solicitors for the respondent: | Herbert Smith Freehills |
ORDERS
The applicant’s application filed 8 July 2019 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2157 of 2019
| AUSTRALIAN MANUFACTURING WORKERS' UNION |
Applicant
and
| QANTAS AIRWAYS LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application brought in the court’s small claims jurisdiction for alleged unpaid wages.[1] The application turns on the proper interpretation of the words ‘move up one level’ in clause 4B.2.3 of Appendix B of the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 9 (“the Qantas EA9”).
[1] Applicant’s application filed 8 July 2019.
For the reasons which follow, I find that the interpretation to those words pressed by the respondent is the correct one, and I therefore dismiss the applicant’s application.
Facts
The facts in this matter are not in dispute. The parties filed a statement of agreed facts[2] from which the following summary is taken.
[2] Statement of agreed facts filed 21 February 2020.
The applicant is a registered union under the Fair Work (Registered Organisations) Act 2009 (Cth).[3] Mr Steven Joseski is and was at all relevant times a member of the applicant union.[4] The respondent is and was at all relevant times, Mr Joseski’s employer.[5]
[3] Statement of agreed facts filed 21 February 2020 at paragraph 2.
[4] Statement of agreed facts filed 21 February 2020 at paragraph 4.
[5] Statement of agreed facts filed 21 February 2020 at paragraph 5.
Mr Joseski commenced employment with the respondent on 17 February 2010, initially as an apprentice spray painter.[6] Mr Joseski completed his apprenticeship on 15 February 2014 and qualified as a tradesperson spray painter.[7]
[6] Statement of agreed facts filed 21 February 2020 at paragraphs 5 and 6.
[7] Statement of agreed facts filed 21 February 2020 at paragraph 7.
From that date onwards, Mr Joseski was engaged by the respondent under the Qantas EA9 as a level 8 Aircraft Maintenance Engineer in the ‘non aircraft trades’ stream.[8] On or about 3 July 2018, the Qantas EA9 was replaced by the Qantas Airways (AWU, AMWU, CEPU) Enterprise Agreement 10.[9]
[8] Statement of agreed facts filed 21 February 2020 at paragraph 8.
[9] Statement of agreed facts filed 21 February 2020 at paragraph 11.
For the purposes of progressing through the classification structure under the Qantas EA9, Mr Joseski’s ‘anniversary date’ was 15 February each year.[10]
[10] Statement of agreed facts filed 21 February 2020 at paragraph 12.
Mr Joseski progressed through the classification systems as follows:[11]
a)On 15 February 2014, he was appointed at level 8;
b)On 1 January 2015, he progressed to level 9;
c)On 15 February 2015, he then progressed to level 10; and
d)On 15 February 2017, he progressed to level 11.[12]
[11] Statement of agreed facts filed 21 February 2020 at paragraphs 13 to 15.
[12] It was common ground that although Mr Joseski did not actually progress to Level 11 until 1 July 2017, this was remedied and he was back paid to 17 February 2017. No issue was taken with this in these proceedings.
It is common ground that from 1 July 2018, Mr Joseski moved into a ‘quota controlled’ level and therefore the issues raised in this case no longer applied to him from that date.[13]
[13] Statement of agreed facts filed 21 February 2020 at paragraph 16.
Issue
It was common ground that the applicant’s progression up to and including his move to level 10 on 15 February 2015 was consistent with the terms of the Qantas EA9.[14]
[14] Statement of agreed facts filed 21 February 2020 at paragraph 17.
The issue between the parties relates to the proper interpretation of the words ‘move up one level’ in clause 4B.2.3 of the Qantas EA9.
If the applicant’s interpretation of the Qantas EA9 is accepted, Mr Joseski has been underpaid. If the respondent’s interpretation is accepted, there has been no underpayment.
Qantas EA9
Clause 4B.2.3 of the Qantas EA9 relevantly provides:
From the first full pay period on or after 1 January 2015, all Trades (Aircraft and Non Aircraft) employees will move up one level in the Trades Structure as set out in Table 1A, Clause 1B of Appendix B. ... Employee’s anniversary dates for the purpose of advancement within the classification structure will not be affected by the level jump.[15] (emphasis added)
[15] Applicant’s outline of submissions filed 6 March 2020 page 107.
Relevantly, for the Non Aircraft trades, which included Mr Joseski, clause 4B.2.5 of the Qantas EA9 went on to say:
Advancement through the classification levels and Quota levels for Non Aircraft Trades from the first full pay period on or after 1 January 2013 will be as set out in this clause. Table 10 in clause 4B.2.5 will operate from the first full pay period on or after 1 January 2013 and will be replaced by Table 11 from the first full pay period on or after 1 January 2014, which will be replaced by Table 12 from the first full pay period on or after 1 January 2015.[16]
[16] Applicant’s outline of submissions filed 6 March 2020 page 108.
Tables 10, 11 and 12 then set out the progression from Trades 8 level to Trades 13 level.[17] It is clear that progression from one level to the other was based on completing a period of service at each level, subject to satisfactory performance. Moreover, it is equally clear, and there was no dispute between the parties, that progression from level 8 to 9 and level 9 to 10 required one year’s completed service, whereas progression from level 10 to 11 and beyond required two years completed service at each level. That is, an employee had to complete two years’ service at level 10 before progressing to level 11, two years at level 11 before progressing to level 12, and so on.
[17] Applicant’s outline of submissions filed 6 March 2020 pages 108 and 109.
The only issue between the parties was whether the effect of the ‘bonus jump’ in clause 4B.2.3 is:
a)a one off level increase, as submitted by the respondent; or
b)that once the employee has ‘move[d] up one level’, the employee must always remain one level ahead of where he would otherwise have been, as submitted by the applicant.
The applicant conceded that:[18]
a)the interpretation submitted by the respondent is not unreasonable; and
b)the competing contentions are ‘finely balanced’.
[18] Applicant’s outline of submissions filed 6 March 2020 at paragraph 18.
Having said that, it was submitted for the applicant that there was the potential for an element of unfairness if the respondent’s interpretation was accepted, depending on an employee’s anniversary date and where he or she was on the classification ladder on 1 January 2015.[19]
[19] Applicant’s outline of submissions filed 6 March 2020 at paragraph 21.
An example of this ‘unfairness’ was set out at paragraphs 21 to 27 of the applicant’s written submissions[20] and can be summarised as:
Depending on whether the Bonus jump occurs in-between levels where the anniversary jump is annual or biennial, the benefit to the Employee varies significantly. … The AMWU approach smooths out this disparity.[21]
[20] Applicant’s outline of submissions filed 6 March 2020.
[21] Applicant’s outline of submissions filed 6 March 2020 at paragraph 23.
The applicant acknowledged that there was the potential for unfairness when an arbitrary date is chosen, however it was submitted for the applicant that its interpretation is ‘more in tune with the industrial realities and purposes of the EA9.’[22]
[22] Applicant’s outline of submissions filed 6 March 2020 at paragraph 27.
Attached to the statement of agreed facts is a copy of a ‘Summary of Agreement’ which was circulated at the time the parties negotiated the Qantas EA9.[23]In relation to ‘AWU/AMWU/CEPU trades’ it states that the Qantas EA9 provided base wage increases of 3% ‘with effect from the first pay period in January 2014 and January 2016’.[24]It also noted that the Qantas EA9 provided for ‘a movement up of one grade for all tradespersons in January 2015’.[25]
[23] Statement of agreed facts filed 21 February 2020 at pages 6 and 7.
[24] Statement of agreed facts filed 21 February 2020 at page 6.
[25] Statement of agreed facts filed 21 February 2020 at page 6.
Interpretation
The principles of interpretation of awards and industrial agreements are well settled. As noted by the applicant, the Full Court of the Federal Court recently summarised these principles as follows:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “…turns on the language of the particular agreement, understood in the light of its industrial context and purpose …” Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). the words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in Liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with the expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced; see Kucks v CSR Limited [1996] IRCA 166; (1966) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).[26]
[26] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197].
Applying these principles, the starting point in determining this matter is to give the words of the agreement, when read in context, their ordinary meaning.
The ordinary meaning of clause 4B.2.3 is that there is to be one ‘bonus’ level increase. So much is clear from the fact that the opening words of that clause identify when that increase is to occur, namely on the first full pay period on or after 1 January 2015.
I have considered whether the use of the word ‘from’ at the commencement of that clause could suggest the need to maintain a one level increase at all times, but am not persuaded that that construction gives effect to the ordinary meaning of the clause, nor is otherwise justified.
This is particularly so when the first sentence in clause 4B.2.3 is read together with the last sentence in that clause. That is, the clause goes on to make it clear that notwithstanding the ‘bonus’ level increase, the employee would otherwise continue to move up the classification structure on their anniversary date, in accordance with the usual classification progression.
Moreover, clause 4B.2.3 must be read in context of the Qantas EA9 as a whole. It is difficult to reconcile the interpretation submitted by the applicant with the wording of clause 4B.2.5, which expressly deals with progression through the classification structure after 1 January 2015. It makes no reference to maintaining an employee one level above the classification level they would have held, had there been no ‘bonus’ level jump at all times.
As to the industrial context, whilst enterprise agreements do need to be considered in context, there is no evidence as to the industrial context at the time the Qantas EA9 was entered into that would support the applicant’s interpretation. Nor does the Summary of Agreement[27] provide any support for the interpretation advanced by the applicant. Indeed, as noted by the respondent, the summary suggests that the purpose of the ‘bonus level increase’ was for there to be one increase, not a series of increases.[28]
[27] Statement of agreed facts filed 21 February 2020 at pages 6 and 7.
[28] Respondent’s outline of submissions filed 30 March 2020 at paragraph 10.
Another difficulty with the applicant’s position in this matter is that it requires the court to read into clause 4B.2.3 words which are not there. There is nothing in the clause itself, nor in the context of the Qantas EA9 as a whole, which would support the interpretation now contended for by the applicant.
I accept that there may be a level of disparity in the way in which the clause would operate depending on an employee’s classification level as at 1 January 2015. That is, if an employee had just prior to that date moved to level 10, the effect of the ‘bonus level jump’ would result in that employee avoiding the need to complete two years at level 10 before moving to level 11. Whereas an employee, such as the applicant, who was sitting at level 8 on 1 January 2015, only receives the benefit of avoiding the need to complete one year before moving up to level 9. That is the same consequence that would have resulted from an employee who was in their second year of level 10, for example, on 1 January 2015. They would move up to level 11, avoiding only one year of service that would otherwise have been required to progress to that level.
Ultimately, the issue for this court is not to determine what is fair, but rather to interpret the words in the Qantas EA9.
As noted by Flick J in Construction, Forestry, Maritime, Mining and Energy Union v Tahmoor Coal Pty Ltd [2019] FCA 1696:
[10] The general approach to the manner in which industrial instruments, such as the present Enterprise Agreement, are to be construed is well-settled.
[11] An oft-repeated formulation of that general approach is that provided as follows by Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184:
Legal principles
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’(emphasis added)[29]
[29] Construction, Forestry, Maritime, Mining and Energy Union v Tahmoor Coal Pty Ltd [2019] FCA 1696 at [10] and [11].
Applying these principles, I find that, when given its ordinary meaning, and when read in the context of the Qantas EA9 as a whole, including clause 4B.2.5 which clearly provides for progression through the classification structure based on years of service (and satisfactory performance), clause 4B.2.3 provides for one level increase in 2015 alone.
If the applicant’s interpretation was correct, the Qantas EA9 could have expressly dealt with that either in clause 4B.2.3, or indeed in clause 4B.2.5, noting that Table 12 in clause 4B.2.5 expressly deals with the issue of progression on and after 1 January 2015 and makes no reference to an employee in Mr Joseski’s position moving up from level 10 to level 11 after completing less than the full two years at level 10.
For each of these reasons, the applicant’s application is not successful, and is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 26 November 2020
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