"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Coates Hire Operations Pty Limited

[2019] FWC 4719

[2019] FWC 4719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Coates Hire Operations Pty Limited
(C2019/1261)

COMMISSIONER RIORDAN SYDNEY, 24 SEPTEMBER 2019

s.739 Application to deal with a dispute - Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) notified a dispute to The Fair Work Commission (the Commission) on 27 February 2019, in relation to a dispute with Coates Hire Operations Pty Limited (Coates), involving an interpretation of a clause of the Coates Hire Operations Pty Limited National Agreement 2017 1 (the Agreement).

[2] The dispute between the parties is whether employees of Coates, whose employment is regulated by the Agreement and the Manufacturing and Associated Industries and occupations Award 2010 (the Manufacturing Award), who are employed in NSW and have traditionally been granted an additional public holiday on Easter Tuesday, are actually entitled to a public holiday on Easter Tuesday. Also, whether employees who work in the Newcastle region are entitled to a public holiday for Newcastle Show Day. It is not in dispute (and I know from my past experience) that Easter Tuesday was previously the day of the Metal Industry Picnic Day in NSW.

[3] The AMWU was represented by its Legal Officer Mr Sean Howe whilst Coates was represented by Mr Michael Mead from the Australian Industry Group (AIG).

Background

[4] In early March 2018, Coates advised its employees that Easter Tuesday 2018 (which fell on 3 April, 2018) would not be treated by Coates as a public holiday because neither the 2017 Agreement nor the Manufacturing Award, provided for a “picnic day” or an additional public holiday on Easter Tuesday.

“From: Lancaster, Ashley (Corp)

Hi Team,

There have been questions raised about the entitlement to a “Picnic Day” for NSW employees who are Fitters and Trades Assistants and that the company is advising that there is no entitlement to Picnic Day. To assist you in understanding the issue I provide the following information:

Wages employees of Coates Hire are covered by the Coates Hire Operations Pty Limited National Agreement 2017 [the CNA]

The CNA incorporates the terms of following Awards into the Agreement

•  Manufacturing and Associated Industries and Occupations Award 2010 [Metals Award]

•  Road Transport and Distribution Award 2010 [Transport Award]

•  Waste Management Award 2010 [Waste Award]

•  Electricians State Award (NSW) as at 27 March 2006 [Electrical Award]

There is no entitlement under either the CAN or the Metals Award or Transport Award or Waste Award for a Picnic Day for NSW employees classified

1. Under the Metals Award as either METALS C9 or METALS C10 or METALS C11 or METALS C12 or METALS C13 or METALS C14 or METALS Apprentice – or

2. Under the Transport Award as either TRANSPORT FEDERAL G1, or TRANSPORT FEDERAL G2, or TRANSPORT FEDERAL G3, or TRANSPORT FEDRAL G4, or TRANSPORT FEDERAL G5 or TRANSPORT FEDERAL G6 or

3. Under the Waste Award as either TRANSPORT WASTE G2 or TRANSPORT WASTE G3 or TRANSPORT WASTE G4 or TRANSPORT WASTE G5 or TRANSPORT WASTE G6 or TRANSPORT WASTE G7

While in past years the company has provided a “Picnic Day” benefit to NSW based employees covered by the Metals Award classifications we have not provided the same benefit to employees covered by the Metals Award classifications in other states nor have we provided a Picnic Day benefit to any employees covered by the Transport or Waste Award classifications.

This year we have determined to provide benefits only where there is a clear Agreement or Award entitlement and therefore as there is no entitlement to a Picnic Day benefit in the Metals Award we will be not be providing a Picnic Day benefit to those employees.

Please share this email with your teams.

Please give myself or Christie Ikonomou a call should you wish to discuss this further.

Regards
Ashley Lancaster
General Manager – NSW/ACT” 2

[5] It is not in dispute that the relevant award, which preceded the Manufacturing Award, was the Metal, Engineering and Associated Industries Award 1998 (the Metals Award). The Metals Award provided for a picnic day on Easter Tuesday (prior to 2006) and had previously been incorporated into the Coates 2009 Agreement and its predecessor agreements.

[6] Clause 36 of the Agreement which states:

“36. Public Holidays

36.1. Employees covered by this Agreement shall be entitled to take public holidays in accordance with the relevant Incorporated Award.

36.2. Employees covered by this Agreement shall be entitled to take the same public holidays that they were entitled to take in the calendar year immediately preceding the approval of this Agreement.”

[7] I note that the exact same wording appears in the Agreement of 2012, 2009 and 2006.

[8] It is not in dispute that the issue of additional public holidays or picnic day was not discussed during the negotiation or ballot process of the Agreement.

Submissions and Evidence

[9] Witness Statements for the AMWU were sworn by Mr Cory Wright (Assistant Secretary, NSW Branch), Mr Glenn Thompson (Official, AMWU), Mr Patrick Johnston (former National Organiser) and for Coates by Ms Belinda Cornish (HR Business Partner – South, Coates Hire Operations Pty Limited). Attached to Mr Wright’s statement were a number of signed declarations by employees. No witnesses were required for cross examination. Verbal submissions were made at the Hearing on 11 June and 22 July 2019.

[10] The AMWU submitted that in order for clause 36.2 of the Agreement to have any relevance or “work to do”, that the clause must provide some additional public holiday benefit above the eight public holidays identified in the NES through the incorporated Award via clause 36.1 of the Agreement.

[11] The AMWU argued that the origin of the clause in question traces back to the 2006 Agreement. Further, the Metals Award, which was incorporated into both the 2006 and 2009 Agreements provided for:

“7.5.1 Prescribed Holidays

7.5.1(a) A full-time employee under this award is entitled to the following public holidays, without loss of pay:

•  New Year Day

•  Australia Day

•  Good Friday

•  Easter Saturday (In Tasmania, employees shall have one public holiday in lieu of Easter Saturday. This public holiday shall either be the relevant Show Day or another day agreed upon between the employer and the majority of employees concerned, other than a Saturday or a Sunday).

•  Easter Monday

•  Anzac Day

•  Queen's Birthday

•  Labour Day or Eight Hours' Day

•  Christmas Day

•  Boxing Day (In South Australia, except at Whyalla, Proclamation Day (26 December) shall be observed instead of Boxing Day)

•  Where another day is generally observed in a locality in substitute for any of the above days, that day shall be observed as the public holiday in lieu of the prescribed day.

7.5.1(b) In addition to the public holidays prescribed in 7.5.1(a), full-time employees are entitled to one additional public holiday without loss of pay. The additional public holiday which applies in each State is:

(i) In Queensland - the day gazetted for the local show in the appropriate area;

[Pt I:Pt 7:7.5.1(b)(ii) substituted by S5027 from 14Apr2000]

(ii) In New South Wales – the Tuesday immediately following Easter Monday but if that Tuesday is a gazetted or Proclaimed Public Holiday then on another day mutually agreed between the employer and the employee. The additional holiday is not cumulative and must be taken within each calendar year.

(iii) In Victoria - Melbourne Cup Day or a local equivalent;

(iv) In Tasmania - Regatta Day in Southern Tasmania (ie. in Oatlands and all towns south of Oatlands) and Recreation Day in Northern Tasmania (ie. all towns North of Oatlands);

(v) In South Australia - the third Monday in May.” 3

(my emphasis)

[12] The AMWU contended that because there was an entitlement to the picnic day through the Metals Award via the provisions of an earlier Agreement, which was subsequently and annually observed by the parties up until March 2018, that clause 36.2 of the Agreement requires the on-going benefit of picnic day being observed on Easter Tuesday due to an imaginary and unbroken chain back to 2005 where the entitlement existed.

[13] The AMWU submitted a number of members signed statements which indicated that they had enjoyed the benefit of Union Picnic Day and Newcastle Show Day for many years. Relevantly, no employee stated that they were made aware that they would lose either of these benefits at the time of the ballot for the 2017 Agreement.

[14] Coates submitted that the question that the AMWU is asking the Commission to determine is flawed. Coates argued that the correct question should be:

“For employees who fall within the scope of clause 5.4 of the Coates Hire Operations Pty Limited National Agreement 2017 (the Agreement), and are employed in New South Wales, is the Tuesday which immediately follows Easter Monday a public holiday for the purpose of clause 36.2 of the Agreement.” 4

[15] Coates submitted that the terms of 36.2 are unambiguous and have a plain and ordinary meaning. Coates argued that:

“14. Whilst the Respondent accepts that clause 36.2 operates to provide an entitlement to public holidays that are not otherwise provided for by clause 36.1 – the operation of clause 36.2 is of significantly narrower compass than that which is asserted by the AMWU.

15. Specifically, the Respondent submits that for clause 36.2 to be operative, there are two criteria that need to be established:

a) That the day which is being preserved needed to have met the standard of being a “public holiday” as defined by clause 36.1; and

b) That this definitional standard needs to have applied in the calendar year immediately preceding the approval of the 2017 Agreement – that is the period from 1 January in the year the Agreement was approved up until the date of Approval of the Agreement.” 5

[16] Coates submitted that the provisions of clause 36.2 should be read narrowly and that the wording was introduced into the Agreement to cover the scenario when public holidays such as Anzac Day fell on a weekend and the following Monday was not gazetted as a public holiday.

[17] Coates argued that the AMWU’s case is built on a prevailing award condition from 2005 and that for the Applicant to succeed, the Applicant needs to be able to sustain a continuous link of Easter Tuesday being designated as a picnic day via the last 4 enterprise agreements.

[18] Coates agreed that the employees did receive the benefit of the Easter Tuesday picnic day up until 2018, but argued that the provision of this benefit was due to the generosity of Coates in providing a long running “over-agreement” benefit. Coates submitted that this benefit was “Coates’ to give but also Coates’ to take away” 6. Further, that the withdrawal of the picnic day is not a change to the operative terms of the Agreement but a change to the practice.

[19] Coates argued that, even though the employees received their picnic day on 17 April 2006, there was no entitlement to the additional day as the picnic day was extinguished by the commencement of the Workplace Relations Act, 2006 (Work Choices Legislation) on 26 March 2006. Relevantly, section 515 states:

“515  Matters that are not allowable award matters

(1)  For the purposes of subsection 513(1), matters that are not allowable award matters within the meaning of that subsection include, but are not limited to, the following:

(a)  rights of an organisation of employers or employees to participate in, or represent an employer or employee in, the whole or part of a dispute settling procedure, unless the organisation is the representative of the employer’s or employee’s choice;

(b)  conversion from casual employment to another type of employment;

(c)  the number or proportion of employees that an employer may employ in a particular type of employment;

(d)  prohibitions (whether direct or indirect) on an employer employing employees in a particular type of employment;

(e)  the maximum or minimum hours of work for regular part-time employees;

(f)  restrictions on the range or duration of training arrangements;

(g)  restrictions on the engagement of independent contractors and requirements relating to the conditions of their engagement;

(h)  restrictions on the engagement of labour hire workers, and requirements relating to the conditions of their engagement, imposed on an entity or person for whom the labour hire worker performs work under a contract with a labour hire agency;

(i)  union picnic days;

(j)  tallies in the meat industry;

(k)  dispute resolution training leave;

(l)  trade union training leave.” 7

(my emphasis)

[20] In an attempt to gather further evidence of the intentions of the bargaining parties a decade ago, in accordance with section 590 of the Act, I wrote to Mr Andrew Williamson, whom I have known for more than 25 years. Mr Williamson was an Official of AIMPE when I first met him in the 1990’s. I had further dealings with Mr Williamson when he took up the role of Group Manager of Employee Relations at Coates in 2008.

[21] I sent Mr Williamson the following correspondence:

“7 August 2019

Dear Mr Williamson

In accordance with section 590 of the Fair Work Act, 2009 (the Act), I write to you in relation to a dispute between Coates Hire and the AMWU.

Whilst I personally had dealings with you in your earlier role at the NSW Branch of AIMPE, I cannot remember your exact start date and Coates as their HR Manager, although I believe it was after 2007/08.

Clauses 36.1 and 36.2 of the 2017 Coates Hire Agreement are in the exactly the same terms as clauses 28.1 and 28.2 of the 2012 Agreement, which you signed on behalf of Coates, which said:

“28. PUBLIC HOLIDAYS

28.1 Employees covered by this Agreement shall be entitled to take public holidays in accordance with the relevant Incorporated Award.

28.2 Employees covered by this Agreement shall be entitled to take the same public holidays that they were entitled to take in the calendar year immediately preceding the approval of this Agreement.”

These terms had their origin in the 2006 Coates Hire Agreement. Neither party to the dispute can provide an explanation from any representative from this time period as to the actual meaning of clause 28.2.

I accept that your recollection of a particular clause from an agreement negotiated some seven or eight years ago, which may or may not have been the subject of negotiation, may be imprecise but it would be of assistance to the Commission if you could answer the following questions:

1. When were you employed by Coates and in what capacity?

2. What do you understand to be the intention of the parties in relation to clauses 28.1 and 28.2 of the 2012 Agreement?

3. The 2012 Agreement incorporates the Modern Manufacturing Award. The Manufacturing Award does not contain a provision granting a Union picnic day, yet Coates continued to provide a picnic day to Members of the AMWU on Easter Tuesday throughout the life of the 2012 Agreement. Can you explain why?

4. Do you have any recollection in relation to Newcastle Show Day? Newcastle Show Day was last gazetted by the NSW Government as a public holiday in 2011. Do you know why Coates continued to grant Newcastle based employees a holiday on Newcastle Show Day after 2011?

5. Did Coates continue to provide these benefits on an “over-agreement” basis?

It would be greatly appreciated by the Commission, if you are able to answer any of these questions. If so, would it be possible for you to provide your answers by way of a statutory declaration?

Thank you for your assistance.

Yours sincerely
COMMISSIONER”

[22] Mr Williamson replied on 10 August 2019 by way of statutory declaration:

“Western Australia

Oaths, Affidavits and Statutory Declarations Act 2005

I, Andrew Fraser Williamson of 42 Blue Mountain Circuit, Aubin Grove, Western Australia, currently not engaged in paid employment since 26 July 2019, sincerely declare as follows:

1. I was employed with Coates Hire as the Group Manager Employee Relations from 8 December 2008 through to 13 September 2013.

2. A key part of that role with Coates Hire was the negotiation of enterprise agreements.

3. The company has historically had in place a National Enterprise Agreement covering its network of Branches and maintenance facilities in each of the four Business Units. During my period of employment, Coates Hire had four Business Units; namely, North (its operations in QLD) East, covering its operations in NSW & the ACT, South, covering its operations in VIC,TAS & SA, and lastly, West covering WA & the NT.

4. Additionally, Coates Hire had a Corporate Office which during my employment was located in Homebush and subsequently Mascot in the State of NSW. At all times in my period of employment with Coates Hire, I was based at its Corporate Office.

5. As part of the National Enterprise Agreement, provision was made for the conferral of public holidays. For instance, in the 2012 EA, the provision of the entitlement to public holidays was contained in the subject matter Clause 28.

6. This had two sub clauses; namely, 28.1 & 28.2

7. 28.1 conferred an entitlement to public holidays by virtue of that EA incorporating the terms of one of the three relevant Awards.

8. 28.2 conferred an entitlement to public holidays corresponding to the public holiday entitlement in force the day prior to the operative commencement of the 2012 EA.

9. 28.2 is cumulative to 28.1

10. To illustrate, if 28.1 of the 2012 EA conferred an entitlement to 10 public holidays which I will hypothetically refer to as A to J, and the 2009 EA made provision for the observance of amongst other public holidays, a public holiday I will refer to as K, the public holiday entitlement in its totality would be 11 days comprising public holidays A through to K.

11. During my employment with Coates Hire, I was responsible for the negotiations culminating in both the 2009 & 2012 EAs. There was no discussion in either of those wage rounds over public holiday entitlements.

12. Separate to those bargaining negotiations, I do recall an Organiser whose name I now do not recall, from the AMWU raising with a Branch in Newcastle in NSW, an entitlement to paid time free of duty or if work were to be undertaken, the payment of penalty rates, for a day the NSW State Government had gazetted as a public holiday on Newcastle Show Day. Upon reviewing the terms of the EA in place at the time, I formed the view that the Organiser was correct in her assessment that an entitlement existed in the terms of the claim advanced by the Union.

13. Other than the Newcastle Show Day issue set out in paragraph 12 above, I have no recollection of any discussion with the AMWU over the provision of public holidays.

This declaration is true and I know that it is an offence to make a declaration knowing that it is false in a material particular.

This declaration is made under the Oaths, Affidavits and Statutory Declarations Act 2005 at Aubin Grove in WA on 10 August 2019, by Andrew Fraser Williamson.”

(my emphasis)

[23] The parties were offered the opportunity to make submissions in relation to Mr Williamson’s statutory declaration.

[24] Coates submitted that:

•  It is inappropriate for the FWC to issue the Order in accordance with section 590 on the basis that the matter has already been the subject of two hearings written submissions and the probative value of Mr Williamson’s responses are of little value;

•  The value and weight that the Commission can place of Mr Williamson’s declaration is “very narrow and limited”;

•  The Commission must follow the Full Bench decision in Berri in relation to a number of areas associated with subjective opinion and the admissibility of extrinsic evidence.

[25] The AMWU submitted that:

•  The Commission does have the right to inform itself of the surrounding circumstances, if ambiguity is found to exist, in interpreting a provision of an enterprise agreement;

•  On the basis that there is no probative before the Commission in relation to Coates’ prior practice in relation to the granting of additional public holidays or that it granted these holidays on a voluntary basis, that the Commission’s approach to seek Mr Williamson’s declaration was orthodox and appropriate;

•  The uncontested evidence of Mr Williamson and a number of employees supports a finding that the entitlement to public holidays pursuant to clause 36.2 of the Agreement is ambiguous;

•  Relevantly, Mr Williamson’s evidence does not support Coates’ contention in relation to the operation of clause 36.2 of the Agreement based on Mr Williamson’s evidence that clause 36.2 provides and additional benefit to employees in excess of the public holidays in the Manufacturing Award and the NES.

Consideration

[26] In perusing the 2003 and 2009 Agreements that were presented as evidence by the parties, I note that I signed the 2003 and 2009 Agreements in my previous role. There is every chance that I also signed the 2006 Agreement as well but the signature page for the 2006 Agreement is not in evidence or in the Commission’s archives. I have no recollection of signing any of these Agreements. Neither party raised any concerns in relation to this issue.

[27] I have taken into account all of the evidence and submissions that has been submitted by the parties. The fact that an issue has not been mentioned in this decision does not mean that it has not been considered.

[28] I have taken into account the evidence of Mr Williamson, in particular that clause 36.2 of the Agreement is cumulative to 36.1.

[29] Both parties agree that the Fair Work Commission Full Bench in AMWU v Berri Pty Limited 8(Berri), is the pre-eminent decision in relation to the interpretation of Enterprise Agreements.

[30] Relevantly, the Full Bench in Berri determined:

“[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.” 9

[31] The most important question for this matter is the ordinary meaning of the words contained in clause 36.2 of the Agreement, based on its context and purpose. It is unusual to use the term “entitled” twice in the same sentence. The Collins Dictionary defines the term “entitled” to mean:

“having the right or permission to do something.”

I have adopted this definition.

[32] Coates also raised an issue in relation to the definition of a “calendar year”. Coates argued that the calendar year should be defined as the days between 1 January and the date that the Agreement was approved of the relevant year. For example, today is 24 September 2019. If a new Coates Agreement was approved today then Coates believe that calendar year would then be 1 January 2019 – 24 September 2019.

[33] The AMWU have a different interpretation to that of Coates. The AMWU submitted that the term “calendar year” means the full year from 1 January through to 31 December of the preceding year. Using 24 September 2019, as the example, the AMWU believe that the calendar year would be 1 January 2018 – 31 December 2018.

[34] The Collins Dictionary defines the phrase “calendar year” to mean:

“containing 365 day or in a leap year 366 days. It is based on the Gregorian calendar, being divided into 12 calendar months and is reckoned from January 1 to December 31”.

[35] Taking into account the above definition, I find that the phrase “calendar year” means the period from January 1 to December 31.

[36] Clause 36 of the Agreement has a heading of “Public Holidays”. Clause 36.1 is uncontroversial and unambiguous and entitles employees to take the public holidays as provided for in the relevant Award.

“36.1. Employees covered by this Agreement shall be entitled to take public holidays in accordance with the relevant Incorporated Award.”

[37] The Manufacturing Award, at clause 44 provides for the following public holidays:

“44. Public holidays

[Varied by PR504593]

44.1 Public holidays are provided for in the NES.

[44.2 deleted by PR504593 from 02Dec10]

44.2 Substitution of certain public holidays by agreement at the enterprise

[44.3 renumbered as 44.2 by PR504593 from 02Dec10]

(a) By agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned, an alternative day may be taken as the public holiday instead of any of the prescribed days.

(b) An employer and an individual employee may agree to the employee taking another day as the public holiday instead of the day which is being observed as the public holiday in the enterprise or part of the enterprise concerned.”

[38] The NES provisions of the Act in relation to Public Holiday are found at section 115, which states:

“Meaning of public holiday

The public holidays

(1) The following are public holidays :

(a) each of these days:

(i) 1 January (New Year's Day);

(ii) 26 January (Australia Day);

(iii) Good Friday;

(iv) Easter Monday;

(v) 25 April (Anzac Day);

(vi) the Queen's birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);

(vii) 25 December (Christmas Day);

(viii) 26 December (Boxing Day);

(b) any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday.”

[39] Relevantly, there is no mention of Union Picnic Day in the Manufacturing Award or the Act. I have taken this into account.

[40] I have taken into account that, the Metals Award, 1998, did contain an additional public holiday which was universally recognised as Union picnic day:

“7.5.1(b) In addition to the public holidays prescribed in 7.5.1(a), full-time employees are entitled to one additional public holiday without loss of pay. The additional public holiday which applies in each State is:

(i) In Queensland - the day gazetted for the local show in the appropriate area; [Pt I:Pt 7:7.5.1(b)(ii) substituted by S5027 from 14Apr2000]

(ii) In New South Wales – the Tuesday immediately following Easter Monday but if that Tuesday is a gazetted or Proclaimed Public Holiday then on another day mutually agreed between the employer and the employee. The additional holiday is not cumulative and must be taken within each calendar year.

(iii) In Victoria - Melbourne Cup Day or a local equivalent;

(iv) In Tasmania - Regatta Day in Southern Tasmania (ie. in Oatlands and all towns south of Oatlands) and Recreation Day in Northern Tasmania (ie. all towns North of Oatlands);

(v) In South Australia - the third Monday in May.”

(my emphasis)

[41] It is widely accepted that every word and clause in an Enterprise Agreement has “some work to do”. I agree with this understanding.

[42] I have taken into account that the custom and practice of Coates has been to provide a picnic day on Easter Tuesday for the relevant employees. Coates have provided these employees with a picnic day on Easter Tuesday for more than thirty years. Coates decided not to cross examine any of the employees who provided signed statements in this matter. As a result, I am prepared to accept these statements as unchallenged evidence. Relevantly, the signed statement of Mr Peter Campbell identifies that he has received both a picnic day and Newcastle Show Day for the 35 years prior to its removal:

“Since I have worked at Lambton Branch, 35 years, we always had a picnic day – and Show day until it was removed, with no consultation”.  10

[43] Another 17 of Mr Campbell’s colleagues, whose employment start dates vary from 1981 to 2016, provided similar statements.

[44] I have taken into account the unchallenged evidence of Mr Johnston whose uncontested evidence is that the public holiday clause of the 2006 Agreement was not the subject of dispute or discussion. On the basis that the public holiday provision is contained in the 2006 Agreement for the first time, I can only assume that the parties had discussions in relation to this provision outside of the 2006 Agreement negotiations. Whilst such a scenario would ordinarily be seen to be implausible, I note, relevantly, the industrial climate of the time and the pending Workchoices legislation. Put simply, the parties may have agreed to this wording prior to the negotiation of the 2006 Agreement in an attempt to evade the upcoming legislation which banned union picnic days. I also note that those discussions would have occurred in NSW only and that Mr Johnston, as a National Official of the AMWU, may not have been aware of discussions between Coates and the NSW AMWU Organiser.

[45] Relevantly, the industrial climate of 2006/06 was discussed during the hearing:

“PN217
THE COMMISSIONER:  No, no, I know what happened in 2006.  The Union Picnic Days were basically banned and what transpired in the agreements that I can recall was that there was an additional day put in, an additional public holiday and some people call it Coates Picnic Day, some people would have called it 'additional day'.

PN218
MR MEAD:  Yes.

PN219
THE COMMISSIONER:  But that's what transpired.  All I'm saying is that from 2006 to 2017 inclusive the employees received a Picnic Day.

PN220
MR MEAD:  Yes.

PN221
THE COMMISSIONER:  And all of a sudden in March 2018 a note comes out saying 'You're not getting the Union Picnic Day this year'.

PN222
MR MEAD:  Yes”  11

Then later:

“PN560
THE COMMISSIONER:  Before you move on to that you just made a comment that the picnic day was not granted in 2006.  My understanding from the statements of the employees, which I don't have with me, was that they received the picnic day in 2006.  They received it continuously for 15, 20 years.

PN561
MR MEAD:  I see that, Commissioner.  That may in fact - - -

PN562
THE COMMISSIONER:  So I understand your argument that there was no entitlement to it in 2006, but the evidence is that they did receive it in 2006 without the entitlement.

PN563
MR MEAD:  As I am sure you can appreciate, Commissioner, that is a difficult issue to prove one way or the other because of the way in which record keeping requirements apply.  All I can say, and this is nothing more than a submission from the Bar table and one based on my experience of operating in and around that time, is that Ai Group for its part was advising its members as at the time that Work Choices was operative that the union picnic day was not operative and therefore did not need to be extended to employees.  Coates has been a member of Ai Group throughout that entire period.  Whether Coates in fact took up that advice or not I can't say, but I do see what the employees have identified there.  It's just now a question of how reliable are those representations harking back 13 or 14 years.  It may be they are entirely reliable or they may be something that just cannot be proven one way or the other.” 12

[46] I have taken into account and find that the wording in clause 36.2 was inserted into the Agreement to protect union picnic day in 2006. From my recollection, numerous organisations inserted clauses into their Agreements, in an attempt to circumvent the Work Choices Legislation. Clauses such as a “company picnic day” or “additional day off” were inserted into agreements in lieu of the phrase “union picnic day”. However, the Coates wording, whilst undoubtedly understood by the parties at the time, relied upon an entitlement from a source outside of the bargaining parties control. I have taken into account Mr Williamson’s evidence that there were no discussions held with him in relation to public holidays during his tenure apart from an issue in relation to Newcastle Show Day.

[47] Relevantly , the Agreement states:

“5. Incorporated Awards

5.1. This Agreement incorporates by reference the terms of the following awards:

•  Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award);

•  Road Transport and Distribution Award 2010 (Road Transport and Distribution Award); and

•  Waste Management Award 2010 (Waste Management Award).

5.2. This Agreement should also be read in conjunction with the “original State Award” known as the Electricians State Award (NSW) as that award operated immediately prior to 27 March 2006. This award is incorporated into this Agreement by virtue of the operation of this subclause.” 13

[48] I note that the only Award mentioned above which includes an additional public holiday, which is known as “industry picnic day”, is the Electricians State Award. The Electricians Award was a NSW Award and therefore not affected by the Workchoices legislation.

[49] I asked Mr Mead during the Hearing what would have happened in Victoria if the Victorian Opposition were successful at the last election and repealed the Grand Final Eve Public Holiday. Mr Mead advised that, in accordance with clause 36.2, this public holiday would have continued to be observed until the next Coates Enterprise Agreement has been approved by the Commission.

Conclusion

[50] The employees were entitled to their picnic day in 2006 on the basis that the Metals Award in 2005 allowed for this additional day. In this respect, the provisions of the 2006 Agreement succeeded in evading the provisions of the Workchoices legislation. However, this evasion only remained during the life of the 2006 Agreement. The 2009 Agreement needed new wording to re-create the entitlement to picnic day because the entitlement to a union picnic day was removed from the Metals Award in 2006 by the Workchoices legislation.

[51] For the AMWU to be successful, the wording of the Agreement needed to say that “the employees could take the same public holidays that they took the previous year”. Such a provision would have allowed the “imaginary chain” to be created back to 2005 and beyond. However, custom and practice does not create an “entitlement” as required by clause 36.2

[52] I do not accept the proposition that the parties intended for this entitlement to have a finite life. If that was the case, the Agreement would not continue to maintain the entitlement for electricians under an old NSW Award. Coates now have the situation where electricians and mechanical fitters work side by side in a workshop with only one classification of employee entitled to a picnic day. Such an outcome would not have been contemplated in 2006.

[53] However, in accordance with the decision in Berri, the role of the Commission in interpreting an enterprise agreement is not to come up with a solution which it believes to be fair or equitable but to determine the meaning of a provision based on a plain language interpretation.

[54] Clause 36.2 requires an “entitlement” or “right” to a public holiday before it can be observed by the employees. This right or entitlement must be in existence in the calendar year prior to the making of the Agreement, which in this case is 2016.

[55] I find that there was no entitlement in the Manufacturing Award or the Act in 2016 to a Union Picnic Day.

[56] The entitlement to Newcastle Show Day is subject to a gazetted decision by the NSW Government. In 2016, the NSW Minister for Industrial Relations, the Hon. Gladys Berejiklian, gazetted Newcastle Show Day as a local event day only. A local event day is not a public holiday and does not enliven the provisions of section 115(1)(b) of the Act.

[57] As a result, I find that Coates was entitled to discontinue the observance of Union Picnic Day for those employees covered by the Manufacturing Award in NSW and to also discontinue the public holiday for Newcastle Show Day for those employees who work in the Newcastle region of NSW.

[58] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR710095>

 1   Coates Hire Operations Pty Limited National Agreement 2017 [2017] FWCA 3446

 2   Exhibit 1 – Cory Wright attachment CW-1

 3   AP789529CRV - Metal, Engineering and Associated Industries Award 1998

 4   AIG Submissions dated 31 May 2019 at [8]

 5   AIG Submissions dated 31 May 2019 at [14]-[15]

 6   PN205 Transcript dated 11 June 2019

 7 Section 515 Workplace Relations Act 1996 (Cth)

 8   [2017] FWCFB 3005

 9   Ibid at [114]

 10   Exhibit 1 – CW2 Statutory Declaration of Peter Campbell

 11   PN217-222 Transcript dated 11 June 2019

 12   PN560-563 Transcript dated 22 July 2019

 13   [2017] FWCA 3446 at PN5.1-5.2