Australian Nursing and Midwifery Federation v Regis Aged Care Pty Ltd T/A Regis Aged Care
[2022] FWC 3013
•18 NOVEMBER 2022
| [2022] FWC 3013 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Nursing and Midwifery Federation
v
Regis Aged Care Pty Ltd T/A Regis Aged Care
(C2022/6610)
| COMMISSIONER RIORDAN | SYDNEY, 18 NOVEMBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
On 30 September 2022, the Australian Nursing and Midwifery Federation (ANMF/the Applicant) lodged an application (the Application) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute with Regis Aged Care Pty Ltd T/A Regis Aged Care (Regis/the Respondent). The dispute relates to clause 41 – Renegotiation of Replacement Agreement – of the Regis Aged Care Registered Nurses, Enrolled Nurses & Assistants in Nursing, Queensland Agreement 2018 (the Agreement) (the Dispute).
The Respondent raised an objection on the basis that the Commission does not have jurisdiction to deal with the Dispute.
The Jurisdictional Hearing took place in Brisbane, with the Respondent appearing by video connection via Microsoft Teams, on 14 November 2022.
At the Jurisdictional Hearing, the Applicant was represented by Mr Kevin Crank. Leave was granted for the Respondent to be represented by Ms Catherine Pase of Counsel.
This Decision determines the jurisdictional issue.
Relevant Provisions of the Agreement
Clause 39 of the Agreement sets out the Dispute Settling Procedure:
“39 DISPUTES RESOLUTION PROCEDURE
39.1 In relation to any matter under this Agreement and the National Employment
Standards that may be in dispute ('the matter') the parties:
(a) Will attempt to resolve the matter at the workplace level, including, but not limited to:
• The Employee and his or her supervisor meeting and conferring on the matter; and
• If the matter is not resolved at such a meeting, the parties arranging further discussions involving some senior levels of management (as appropriate); and
(b) Acknowledge the right of either party to appoint in writing another person to act on behalf of the party in relation to resolving the matter; and
(c) Agree to allow either party to refer the matter to FWC or another agreed person for conciliation, mediation or other alternative dispute resolution process;
(d) Agree that during the time when the parties attempt to resolve the matter:
• The parties continue to work in accordance with their contract of employment unless the Employee has a reasonable concern about an imminent risk to his or her health or safety; and
• The parties must cooperate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible.
39.2 If a dispute is not resolved by conciliation, mediation or alternate dispute resolution, either party may refer the dispute to the FWC for arbitration. FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.
39.3 All parties shall give due consideration to matters raised or any suggestions or recommendations made by the FWC with view of prompt settlement of the dispute.
39.4 Any Order or Decision of the FWC (subject to the parties' right of appeal under the Act) will be final and binding on all parties to the dispute.”
(My emphasis)
Clause 41 sets out the requirements for renegotiation of a replacement agreement:
“41 RENEGOTIATION OF REPLACEMENT AGREEMENT
41.1 The parties will use their best endeavours to commence negotiations for a replacement agreement no later the three (3) months before the nominal expiry date of this Agreement.”
(My emphasis)
For the sake of completeness, I have repeated the parties’ written submissions.
Respondent’s Submissions
Regis submitted that the Commission does not have jurisdiction to deal with the Dispute and, further, that the Application is an abuse of process and has been made vexatiously and without reasonable cause.
Commission does not have jurisdiction
Regis submitted that pursuant to section 595 of the Act, the Commission may deal with a dispute only if it is expressly authorised to do so under, or in accordance with, another provision of the Act. Regis submitted that there is no provision in the Act under, or in accordance with, which the Commission is authorised to deal with the Dispute.
Regis submitted that section 739 of the Act does not apply to the Dispute as the Dispute Resolution Procedure does not require or allow the Commission to deal with the Dispute. Regis submitted that the Dispute Resolution Procedure relates to any matter “under this Agreement and the National Employment Standards that may be in dispute”. However, Regis argued that the Dispute does not concern or relate to the National Employment Standards or a matter under the Agreement, rather, the matter in dispute between the parties is the terms and conditions of a new enterprise agreement to replace the Agreement. That is, the ongoing bargaining and negotiation process for a new enterprise agreement.
Regis submitted that the ANMF appears to claim that the Commission has jurisdiction to deal with the Dispute because it relates to a dispute about clause 41 of the Agreement. Regis acknowledged that clause 41 deals with the bargaining and negotiation of a new enterprise agreement, however, it submitted that it plainly does so in very limited manner. Regis submitted that clause 41 deals only with the matter of timing of the commencement of such negotiations and not with matters pertaining to the ongoing negotiation process or the terms of any replacement agreement.
Regis submitted that it is not in dispute between the parties that negotiations for a replacement agreement have commenced, therefore, clause 41 of the Agreement has no further work to do and cannot be the subject of current or further disputation, including this Dispute.
Application is an abuse of process
Regis submitted that the Application is an abuse of process for the following reasons.
Regis submitted that the Application is an attempt by the ANMF to exert bargaining pressure on Regis in the course of negotiations for the replacement agreement. Regis submitted that the Application improperly circumvents the bargaining regime prescribed in the Act, whose object is to achieve productivity and fairness through enterprise-level collective bargaining underpinned by simple good faith bargaining obligations.[1]
Regis submitted that since bargaining commenced, the parties have engaged in seven meetings in the course of negotiations for a replacement agreement and have exchanged draft agreements setting out their initial bargaining positions. Regis’s position is that negotiations have proceeded in a constructive manner.
Regis noted that on 18 July 2022, the ANMF filed a bargaining dispute (Bargaining Dispute) with the Commission. It submitted that while three separate conferences were conducted in that Bargaining Dispute, the matter did not resolve. Regis submitted that the ANMF sought for the Bargaining Dispute to be arbitrated, however, Regis refused this request. Accordingly, pursuant to section 240(4) of the Act, the Bargaining Dispute was not able to be resolved by way of arbitration. On 27 September 2022, the ANMF withdrew the Bargaining Dispute, and the Commission closed the matter.
Regis noted that the ANMF filed the Application in this Dispute three days later, which it submitted is an abuse of process for two reasons:
“• First, the Application seeks to ventilate matters that are clearly bargaining issues as between the ANMF and Regis – see the matters raised in paragraphs (h) to (l) in section 2.1 of the Application. The appropriate and proper forum for the ventilation of those matters is in the course of bargaining or in a bargaining related application under the FW Act (for example, a bargaining dispute made pursuant to section 240 of the FW Act – a pathway that has already been accessed by the ANMF); and
· Secondly, many of the matters the ANMF is ventilating in this Dispute were the subject of the Bargaining Dispute. Notwithstanding that those matters were not able to be resolved in that matter by reason of Regis lawfully exercising its right to withhold agreement to arbitration pursuant to section 240(4) of the FW Act, the ANMF should be prevented from seeking to reagitate those matters in this Dispute and expending the time and resources of both the Commission and the parties in doing so.”
Applicant’s Submissions
The ANMF submitted that the Dispute is in relation to the negotiation of a replacement agreement, which is a matter under clause 41 of the Agreement, and, therefore, the Dispute is “In relation to any matter under this Agreement” within the meaning of subclause 39.1 of the Dispute Resolution Procedure. The ANMF submitted that, therefore, the Commission has jurisdiction to deal with the Dispute.
The ANMF submitted that the Application is not an abuse of process and has not been made vexatiously or without reasonable cause.
Commission has jurisdiction
The ANMF agreed with the Regis that, pursuant to section 595 of the Act, the Commission may deal with a dispute only if it is expressly authorised to do so under, or in accordance with, another provision of the Act. The ANMF submitted that section 739 of the Act applies to the Dispute because the Dispute Resolution Procedure requires the Commission to deal with the Dispute and now to arbitrate it, as it has not been resolved by the conciliation that has been undertaken by the Commission.
The ANMF submitted that the Dispute Resolution Procedure prescribes a procedure to resolve “any matter under this Agreement and the National Employment Standards that may be in dispute”. It submitted that the Dispute relates to a matter under the Agreement, being “negotiations for a replacement agreement” in terms of clause 41.1.
The ANMF submitted that Regis has rightly conceded that “Clause 41 of the Agreement does deal with the bargaining and negotiation of a new enterprise agreement.” The ANFM submitted that this is “really all that matters because it is all that is required for the FWC to have jurisdiction”. However, the ANMF also submitted that clause 41 deals with “negotiations for a replacement agreement” in a very broad manner, not a limited one. The ANMF submitted:
“That Clause 41 includes the timing of the commencement of such negotiations does not mean that the dispute about the terms of a replacement agreement is not “in relation to” the negotiations of those terms which is at the centre of Clause 41.”
The ANMF submitted that the Application is not a prosecution for a contravention of clause 41 (via section 50 of the Act or otherwise). It submitted that there is no ‘defence’ to be mounted to the Application and so it is not a ‘defence’ to the application that negotiations for a replacement agreement have commenced. The ANMF submitted that there is no suggestion that the intent of the parties in agreeing to clause 41 was to commence negotiations and then abandon negotiations without a replacement agreement being made. The ANMF submitted that there is no authority cited by Regis for its implication that a dispute cannot exist in relation to a clause of an agreement that has no work to do at a particular time; but that even if such authority existed, clause 41 of the Agreement has work to do until a replacement agreement is made and approved.
Application is not an abuse of process
The ANMF submitted that the Application is not an abuse of process, and, further, Regis has not cited any authority in support of its ‘abuse’ contention, merely provided two reasons for contention which the ANMF argued were both based on falsehoods.
The ANMF submitted that the Application is not an attempt by it to exert bargaining pressure on Regis in the course of negotiations for the replacement agreement. The ANMF submitted that Regis does not allege any communication from the ANMF or any other fact to support that “false contention” about the ANMF’s motive. The ANMF submitted that it has “given up all hope of reaching an agreement with Regis through bargaining with it, and so we have referred the dispute the FWC for arbitration”.
The ANMF argued that the Application does not improperly circumvent the bargaining regime prescribed in the Act, whose object is to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining. The ANMF argued that the enterprise-level collective bargaining regime of the Act includes multi-employer bargaining and more than one source of power for the Commission to arbitrate disputes arising in bargaining.
The ANMF submitted that the arbitrated outcome it seeks would maintain almost all of the results of enterprise-level collective bargaining by maintaining almost all of the trade-offs “(that employers generally describe as ‘productivity’)” in the current Agreement. The ANMF argued that the granting of the relief sought by this Application would increase fairness by:
“• increasing employees’ real wages by 3% per year;
· ensuring that work in excess of 8 hours is overtime; and
· clarifying the medication responsibilities of an AIN.”
The ANMF rejected Regis’s submission that negotiations have proceeded in a constructive manner, however, it submitted this is not relevant to the jurisdiction of the Commission to arbitrate the Dispute.
As to the Bargaining Dispute filed on 18 July 2022, the ANMF agreed with Regis’s submission that an “… appropriate and proper forum for the ventilation of (bargaining issues) …is in the course of bargaining or in a bargaining related application under the FW Act (for example, a bargaining dispute made pursuant to section 240 of the FW Act – a pathway that has already been accessed by the ANMF).” However, the ANMF submitted that Regis does not argue that the only “appropriate and proper” power of the Commission to deal with a dispute concerning bargaining is created by section 240.
The ANMF submitted that:
“We understand why an employer such as Regis would wish that a Union was restricted to a single section of the FW Act through which it might achieve anything for its members, but the FW Act does not grant such a wish.”
The ANMF submitted that, rather, another objective of the Act (in section 3(f)) is to provide “…accessible and effective procedures to resolve grievances and disputes”. The ANMF submitted that objective is most relevant to section 739 of the Act, and so section 739 should be construed in the context of that particular objective of the Act. The ANMF submitted that section 739 should be read to make the dispute resolution procedure of the Agreement accessible and effective to resolve this Dispute, and should not, “as the Respondent would have it”, be read to:
“• deny access to the dispute resolution procedure, or at least the part thereof that provides for arbitration by the FWC;
· prevent the dispute resolution procedure being effective in this dispute; and
· prevent the resolution of the dispute.”
The ANMF submitted that proceedings under section 240 of the Act are not the only kind of proceedings under which the Commission may have power to arbitrate a dispute involving bargaining. It submitted that where an agreement provides power to the Commission to arbitrate a dispute referred to it by either side and that agreement also provides for the negotiation of a replacement agreement, then the Commission has power under section 739 of the Act to arbitrate a dispute which relates to the negotiation of a replacement agreement.
The ANMF submitted that having two or more actions on foot simultaneously in which the same relief is sought may be an abuse of process, however, there is no other action or application being pursued now which seeks the same or similar relief as sought in this Application, noting the related section 240 application had been withdrawn.
Further, the ANMF submitted that making an argument to the Commission that is not “reasonably arguable” may be an abuse of process. The ANMF relied here on the decision in CittaHobart Pty Ltd v Cawthorn,[2] in which the High Court posited that:
“Another possible interpretation is that … the constitutional defence was not "reasonably arguable" in the sense that the constitutional defence would have amounted to an abuse of process if raised in a court.”[3]
As to the present dispute, the Applicant submitted that its argument in this Application “is reasonably arguable and is so much more; it ought to prevail”.
The Applicant relied on the decision in Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation),[4] in which the High Court found that:
“There can be no doubt that if the predominant purpose of the examination (of witness) for which an application is made under s 596A, or s 596B, is collateral or foreign to the statutory purpose of such an examination, the application will amount to an abuse of process.”[5]
The ANMF submitted that this Application is not one for the examination of witnesses and is not collateral or foreign to any statutory purpose.
The Applicant also relied on the decision in Victoria International Container Terminal Limited v Lunt,[6] which concerned an agreement, supported by the CFMMEU, that had been approved by the Commission, further to which the CFMMEU arranged for Mr Lunt to bring proceedings to quash the Commission’s approval of the agreement. The primary judge concluded that the proceedings brought by Mr Lunt should be summarily dismissed as an abuse of process because they were brought for the improper purpose of benefiting the CFMMEU. The Full Court of the Federal Court of Australia reversed the decision of the primary judge. The High Court found the decision of the Full Court was correct and should be upheld.
Relevantly, the ANMF cited paragraph [18] of that decision, which states:
“The fundamental responsibility of a court is to do justice between the parties to the matters that come before it. In the performance of that function, the doing of justice may require the court to protect the due administration of justice by protecting itself from abuse of its processes [34]. The power to stay, or summarily dismiss, proceedings because one party has abused the processes of the court is concerned to prevent injustice [35], and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter.”[7]
The ANMF submitted that the Application in the present dispute does not:
“• cause injustice to Regis or anyone else;
· stultify the fair and just determination of it;
· affect the prospects of a fair hearing of it;
· pose any threat whatsoever to the integrity of the system of justice administered by the FWC;
· and so is not an abuse of process.”
The ANMF noted that there was no arbitration of the section 240 application, which it submitted means that in hearing and determining the merits of the present dispute, the Commission will not engage in any re-litigation.
The ANMF submitted that:
“[e]xcept for this part of the proceedings dealing with Regis’ jurisdictional objection, the time and resources of both the Commission and the parties in arbitrating this dispute will be no more than if Regis had agreed to the arbitration of our s 240 application”.
The Applicant cited and relied on two further decisions as follows.
In Barrier Social Democratic Club Ltd v Broken Hill Town Employees' Union, The,[8] Deputy President Sams stated:
“[1] On 1 June 2017, the Barrier Social Democratic Club (the ‘Club’) lodged an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), which requests the (FWC)… to deal with a dispute in accordance with the Dispute Settlement Procedure (‘DSP’) under an (Enterprise)Agreement…
[2] Relevantly, the Club is currently engaged in negotiations for new enterprise agreements…
[4] On 8 May 2017, the Club made an application under s 240 of the Act for the Commission to deal with a dispute in respect to the non-managerial enterprise Agreement. …While a telephone conference with the parties on 29 May 2017 failed to make any headway in resolving the s 240 dispute, it was obvious that this s 739 notification related to and overtook the issues the Club sought to resolve by the earlier application.
…
[10] I do not apprehend any contest as to the Commission’s powers to arbitrate the matter and I will proceed to do so on that basis.”
In Queensland Nurses' Union of Employees v Uniting Church in Australia Property Trust (Q) T/A BlueCare and Wesley Mission Brisbane; The Australian Workers’ Union of Employees, Queensland; and United Voice Union of Employees - Qld Branch,[9] Deputy President Asbury noted:
“[17] On 26 March 2013, the QNU filed an application under s.739 of the Act, for the Commission to deal with a dispute in accordance with a dispute settlement procedure under the BlueCare/Wesley Mission Brisbane Nursing Agreement 2011 the predecessor to the 2013 Nursing Agreement. Conferences of the parties were held on 11 April, 11 June, 28 August, 2 September and 6 September 2013. …
[18] Prior to filing the application for a bargaining order, the QNU filed an application unders.240 of the Act seeking the assistance of the Commission to deal with a bargaining dispute. On 2 December 2013 the QNU advised that it would not pursue the bargaining dispute application.”
For the reasons outline above, and in light of the authorities, the ANMF submitted that the Commission has the necessary jurisdiction to deal with the Dispute and that it should hear the differing proposals of the parties for terms of a replacement agreement and determine what those terms will be.
Respondent’s Submissions in Reply
Scope of dispute resolution procedure
Regis maintained that the Commission does not have jurisdiction to hear this Dispute by reason that it does not pertain to any matter “under this Agreement and the National Employment Standards that may be in dispute”.
Regis highlighted two points of the ANMF’s submissions as follows:
“At paragraph 9 of the ANMF Outline, the ANMF asserts that because the Dispute is in relation to the negotiations for a replacement agreement, it pertains to clause 41 of the Agreement and is therefore a matter under the Agreement.
At paragraph 10 of the ANMF Outline, the ANMF seemingly asserts that a dispute about the terms of a replacement enterprise agreement is “in relation to” the negotiation of those terms which pertains to clause 41 of the Agreement.”
Regis submitted that this interpretation of clause 41 is entirely contrary to the well-established principles of the construction of enterprise agreements.[10] It submitted that in order for the Commission to have jurisdiction to hear the Dispute by the enlivening of section 739 of the Act, the Commission is required to read into clause 41 a meaning that it does not have and in effect, to rewrite the agreement which is not permitted to do.[11]
Regis submitted that clause 41 does not relate to “negotiations for a replacement agreement” in the sense of any dispute, agreement or otherwise about the terms of a replacement agreement and submitted that it relates only to an aspiration on the part of both parties as to the timing of the commencement of such negotiations.
Further, Regis submitted that the Commission does not have before it any evidence in support of an argument that the ANMF’s construction reflects the objective intention of the parties to the Agreement (including the employees who would be covered by that Agreement). Regis submitted that:
“[a]gainst the context of the bargaining framework provided for in the Fair Work Act and which is discussed in the Regis Outline, on its plain meaning, clause 41 does not permit the Commission to arbitrate a bargaining dispute and make orders as to terms and conditions of an enterprise agreement currently under negotiation. This would be an absurd outcome”.[12]
Regis submitted that even if clause 41 was to be interpreted in the manner asserted by the ANMF – which Regis submitted is not open to the Commission – the “negotiations for a replacement agreement” do not fall within the scope of the dispute resolution clause as those negotiations do not pertain to any matter “under” the Agreement or the NES. Regis submitted that negotiations for a replacement agreement and any dispute about the terms of that agreement plainly pertain to matters relating to the replacement agreement, not the Agreement.
Non-permitted matter
Regis submitted that clause 41, as interpreted by the ANMF, would not pertain to a permitted matter and therefore the clause would have no effect – at least to the extent that it purports to relate to bargaining disputes and the terms of a replacement agreement.[13]
Regis submitted that a term relating to the negotiations of a replacement agreement to the Agreement, particularly to the extent that such a term could result in an outcome whereby the Commission could make orders as to the terms of that replacement agreement (as are sought by the ANMF in the Dispute) does not relate to:
“(a) the relationship between the employer and the employees covered by the Agreement;
(b) the relationship between the employer and the employee organisations covered by the Agreement;
(c) deductions from wages for any purpose authorised by an employee covered by the Agreement; or
(d) how the Agreement operates.”[14]
Regis submitted that a term to the effect asserted by the ANMF would relate to the relationship between the employer and an unknown group of employees and employee organisations, being those employees and employee organisations who would be covered by the replacement agreement, not the employees and employee organisations covered by the Agreement. It submitted that to that end, even if clause 41 does have the meaning asserted by the ANMF, the term would have no effect (at least in part) and could not be the subject of a dispute under the dispute resolution clause or section 739 of the Act.
For the reasons outlined above, and those the reasons outlined in its original outline of submissions, Regis submitted that the Commission does not have the necessary jurisdiction to deal with the Dispute. It, therefore, submitted that the matter cannot proceed and the Application must be dismissed.
Consideration
I have taken into account all of the submissions that have been submitted by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
Whilst the courts have recently reinforced the relevant principles that a Court and Tribunal should follow when interpreting enterprise agreements, the most concise and comprehensive decision which collated all of the historical precedent was the Commission’s Full Bench decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).[15] Relevantly, in Berri the Full Bench enunciated 15 principles:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
i.the text of the agreement viewed as a whole;
ii.the disputed provision’s place and arrangement in the agreement;
iii.the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
i.evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
ii.notorious facts of which knowledge is to be presumed; and
iii.evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
The two relevant provisions of the Agreement are clause 39 – Disputes Resolution Procedure and Clause 41 – Renegotiation of Replacement Agreement (as extracted at paragraph [6] of this Decision).
Relevantly, clause 39 relates to “any matter under this Agreement and the National Employment Standards”. The interpretation of clause 41 is a “matter under the Agreement”. As a result, I am satisfied that the Commission has the jurisdiction to proceed to the next step in the arbitration.
As stated earlier, the Berri principles require the Commission to apply the ordinary meaning of the words contained in an agreement and not participate in a process of rewriting the Agreement in order to achieve an alternate outcome. Applying this principle, I am satisfied that the focal point of clause 41 is the phrase “to commence negotiations” for a new agreement within a specified timeframe.
The Macquarie Dictionary defines ‘commence’ as follows:
“1. to begin; to start.
2. to have a beginning; come into being”.[16]
Whilst I accept the submissions from the Applicant that there are many paths in the Act to achieve a specified outcome, I do not accept the argument that clause 41 of the Agreement empowers the Commission to determine the provisions of a new agreement. The Act has a specific provision (section 240(4)) which deals with the arbitration of enterprise agreements. A fundamental element of this provision is that both parties must consent in order for the Commission to arbitrate the provisions of an agreement. In matter B2022/693, the Respondent did not consent to the Commission arbitrating the negotiation impasse.
The Agreement is silent in relation to the Commission arbitrating a new agreement. I do not accept the submission that a combination of clauses 39 and 41, along with section 739 of the Act, provide the Commission with some unfettered right to create an expansive interpretation of a restrictive clause.
Adopting the above definition of ‘commence’, I find that the phrase “commence negotiating” means to start the negotiations for a new agreement. It does not mean to conclude. I am satisfied and find that the Commission’s jurisdiction is limited to ensuring the commencement of negotiations for a replacement agreement within three months of the expiry of the current Agreement.
Conclusion
Adopting the principles of interpretation in Berri, I am satisfied and find that the Commission does not have the jurisdiction to arbitrate the Agreement.
The Application is dismissed.
I so Order.
COMMISSIONER
[1] Fair Work Act 2009, s.3.
[2] [2022] HCA 16.
[3] Ibid at [8].
[4] [2022] HCA 3.
[5] Ibid at [8].
[6] [2021] HCA 11.
[7] Ibid at [18].
[8] [2018] FWC 877.
[9] [2014] FWC 443.
[10] AMWU v Berri Pty Limited (2017) 268 IR 285 at 310, in which the Full Bench of the Commission comprehensively set out the relevant principles that a Court and Tribunal should follow when interpreting enterprise agreements (and which have been since reinforced by the Courts).
[11] Ibid.
[12] Respondent’s Submissions in Reply at [11]; Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005[2008] AIRC 1074, at [17]; see also Australian Rail, Tram and Bus Industry Union v Rail Commissioner [2019] FWC 5705 at [46].
[13] Fair Work Act 2009, s.253(1)(a).
[14] Ibid, s.172.
[15] [2017] FWCFB 3005.
[16] Macquarie Concise Dictionary, Fifth Edition.
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