“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Unilever Australia Trading Limited
[2021] FWCFB 2781
•25 MAY 2021
| [2021] FWCFB 2781 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Unilever Australia Trading Limited
(C2020/8611)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 25 MAY 2021 |
Appeal against decision [2020] FWC 5935 of Deputy President Dean at Sydney on 6 November 2020 in matter number C2018/4767.
[1] The Appellant, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applies for permission to appeal and if granted, appeals a decision of Deputy President Dean made on 6 November 2020. 1
Introduction and background
[2] On 29 August 2018, the AMWU applied under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with the dispute settlement term under clause 28 of the Unilever Australia Trading Ltd (trading as Streets Ice Cream, Minto) Enterprise Agreement 2017 (the Agreement). 2
[3] The Agreement is expressed to cover Unilever Australia Trading Limited (Unilever), the AMWU and all employees who are employed pursuant to the terms and conditions of the Manufacturing and Associated Industries and Occupations Award 2010 and the Food, Beverage and Tobacco Manufacturing Award 2010. Unilever is engaged in the manufacture of ice cream products at its factory in Minto, New South Wales.
[4] The Agreement was approved on 1 December 2017. It commenced operating on 8 December 2017 and its nominal expiry date is 31 August 2021. The Agreement introduced a new category or mode of employment known as “Flexible Permanent Part Time” (FPPT) employment.
[5] The dispute related to a provision in the Agreement regulating the minimum proportion of non-maintenance full-time employees compared to non-maintenance employees in other employment categories employed under the Agreement.
[6] Specifically, the dispute concerned whether casual employees were to be included in the proportion set out under clause 10.1.3(4) of the Agreement for categories other than full-time, and if it were so, when and how casual employees were to be so included. 3
[7] Clause 10.1.3(4) of the Agreement is as follows:
“Full time permanent employment will make up at least 65% of the non-maintenance employees employed under this Agreement. FPPT and Seasonal workers may make up to the remaining 35%.”
[8] Essentially, the AMWU contended that casual employees were counted in “the remaining 35%”, while Unilever contended that they were not.
[9] Prior to the hearing before the Deputy President, the parties could not agree on the questions which if answered, would resolve the dispute. Accordingly, the Deputy President determined to resolve the dispute by proposing to answer the following questions:
“a. Are casual employees included within the 35% ratio referred to in clause 10.1.3(4) of the Agreement?
b. If yes, are casual employees counted only on each occasion they perform individual engagements or when they form part of a pool of casual employees employed by Unilever?” 4
[10] On 6 November 2020, the Deputy President issued a decision determining the dispute. 5
[11] The Deputy President determined that casual employees are not counted for the purposes of clause 10.1.3(d) of the Agreement and answered “no” to the first question. We note that there is no clause 10.1.3(d). This is an obvious typographical error, and the Deputy President intended to refer to clause 10.1.3(4). The Deputy President also determined, given her answer to the first question, that the second question did not arise.
[12] By its notice of appeal, lodged on 26 November 2020, the AMWU seeks permission to appeal, and if granted, appeals the Deputy President’s determination to answer the first question in the negative.
[13] The Deputy President’s decision the subject of the appeal is not a discretionary decision. The Deputy President determined the dispute by construing the Agreement and determining the meaning of disputed terms. If permission is granted, the task on appeal is to consider whether the Deputy President’s construction of the Agreement is correct. Error of the kind identified in House v The King 6 need not be shown.
The decision
[14] The Deputy President’s decision sets out the background to the making of the Agreement, including that the AMWU described there being “highly contested circumstances”, 7 and that the Agreement introduced a new employment category known as “Flexible Permanent Part Time” (FPPT) employment.
[15] The Deputy President notes that the clauses of the Agreement the parties identified as relevant to determining the dispute included clause 10 – Employment Status, and Appendix C – Career Path. 8
[16] The Deputy President then proceeded to set out the respective cases for the AMWU and Unilever. 9
[17] The Deputy President’s reasoning is brief and is set out in full below:
“Having considered the submissions made by the parties and having reviewed the Agreement in the manner set out in Berri, I find the interpretation put forward by Unilever to be the correct interpretation of the Agreement.
Clause 10.1.3(4) simply makes no reference to casual employees. Both the clause and the example that follows are specific about which types of employment are included in the percentages. Giving the words their ordinary meaning, casual employees are not included in the 35% proportion.
Further, it must be assumed that in introducing a new type of employment and in the context of the highly contested circumstances described by the AMWU, care would have been taken in the drafting of clause 10.1.3(d) or the following example. The omission of any reference to casual employees cannot, in my view, be accidental or simply a drafting error.
There is in my view nothing ambiguous about the relevant provisions of the Agreement. Neither party submitted that the relevant Agreement provisions were ambiguous, however the AMWU did deal with this as a submission in the alternative.
While I accept the submission of the AMWU that a percentage is a proportion of a whole and that numbers expressed as percentages cannot add up to more than 100, it does not follow that casual employees are included in the 35% proportion. This is because the clause provides for the named employment types to make up the whole, and this does not include casual employees.
When the Agreement is read as a whole, and considering the relevant provisions and their place in the Agreement, I find that casual employees are not included in the 35% cap. Further, Unilever is permitted to engage casual employees provided that such engagement is consistent with clause 10.2.3.
The dispute is so determined.” 10
Appeal grounds and summary of contentions
[18] The AMWU’s notice of appeal contains two appeal grounds. The first contends that:
“The Deputy President acted outside of power in determining that Unilever was not required to count casual employees within the proportions set out in cl 10.1.3(4) of the Unilever Australia Trading Limited (Trading as Streets Ice Cream Minto) Enterprise Agreement 2017 (the “2017 Agreement”) as this was inconsistent with the provisions of 2017 Agreement and thus not in conformity with s 739(5) of the Fair Work Act 2009.”
[19] The second appeal ground contends that:
“The Deputy President erred in finding that she was not required to refer to the evidence of the parties in resolving the dispute.”
[20] As to the first ground, the AMWU contends the Deputy President erred in her interpretation of the provisions of the Agreement. It contends that if the Agreement is construed correctly, the Deputy President should have answered the first question in the affirmative.
[21] The key elements of the AMWU’s submissions in the support of this contention are set out below:
• Clause 10 of the Agreement deals with “Employment Status” and sets out the basis upon which employees may be employed. Clause 10.1 sets out categories of “Permanent Employees”. Permanent Employees can be “Full Time” employees (clause 10.1.1), “Part Time” employees (clause 10.1.2) or Flexible Permanent Part Time employees (FPPT) (clause 10.1.3);
• Clause 10.2 sets out categories of “Non Permanent Employees”, including “Short Term (Seasonal)” employees (clause 10.2.1), “Fixed Term” employees (clause 10.2.2) and “Casual” employees (clause 10.2.3);
• The purpose of clause 10.1.3 can properly be characterised as balancing the competing obligations of flexibility of operations with permanency and security of employment. 11
[22] Noting that the Deputy President found that the “whole” to which the respective percentages set out at clause 10.1.3(4) of the Agreement are directed was the sum of Full Time Employees, FPPT and Seasonal Employees, the AMWU submits the Deputy President was wrong because: 12
• This construction was inconsistent with the phrase “employees employed under this Agreement” in clause 10.1.3(4). The ordinary meaning of the phrase “employees employed under this Agreement” should be understood as referring to employees to whom theAgreement applies, including employees employed on a full time, parttime, FPPT, seasonal, fixed term and casual basis;
• There are no textual indicators in clause 10.2.3 that would suggest that casual employees are not “employed under this Agreement”. To the contrary, their terms and conditions are set by the Agreement pursuant to clause 10.2.3;
• The Deputy President relied on the wording of the example set out below 10.3.1(4) in reaching her finding, however the example should be treated with caution as a basis for such a finding because it is plainly intended to be an example only, rather than an exhaustive list. It is imprecisely worded in that it proceeds on the basis that seasonal employees are permanent employees, when they are defined as non-permanent employees under the Agreement; and
• Casual employees should be considered to be “employed under this Agreement” and are included in the 35% set out in clause 10.1.3(4).
[23] The AMWU also submits that the use of the word “will” sets out a firm obligation on Unilever to ensure no less than 65% of non-maintenance employees employed under the Agreement, in contrast with “may” in the second sentence which denotes a discretion about the composition of categories comprising the remaining 35%, 13 and that it follows that the ordinary meaning of clause 10.1.3(4) as a whole is that Unilever is obliged to ensure that full time employment does not drop below 65% of the non-maintenance employees, but retains a discretion as to the composition of the remainder.14
[24] The AMWU says that the Deputy President’s interpretation of clause 10.2.3(4) robs clause 10.1.3(4) of meaning and effect and should not be preferred, whereas the interpretation for which the AMWU contends gives effect and meaning to both clause 10.1.3(4) and 10.2.3. It says further that “[t]his interpretation is also consistent with the purpose of the clause dealing with FPPT employment as a whole, which is to balance competing interests of flexibility of operations on one hand and security and permanency of employment on the other.” 15
[25] Unilever submits that: 16
• There is no public interest in the appeal;
• The Deputy President found there was no ambiguity in the provisions, and this is not challenged;
• The principles that apply to the interpretation of an Agreement are well settled and not in contention and the Deputy President had regard to these principles and her approach accords with these principles.
• The clause in question, being 10.1.3, is of limited application at Unilever’s factory in Minto;
• No error is disclosed in the Deputy President’s decision;
• The Deputy President noted that the employment types making up the 35% proportion were named and did not include casual employment and the conclusion was therefore correct. The AMWU’s “approach requires the Deputy President read a reference to ‘casuals’ into clause 10.1.3(4), in effect to re-write the Agreement”;
• The AMWU’s submissions seek to isolate clause 10.1.3 and construe it without regard to its arrangement and place in the Agreement as a whole;
• Clause 10.1 and clause 10.1.3 and its 55 sub paragraphs are concerned with permanent employment and indicators in the Agreement, including clause 10.1.3, indicate that clause 10.1.3 is not concerned with casual employment. It is clause 10.2 that deals with non-permanent employees (including casual employees);
• Clause 10.2.3 provides for the terms on which casual employees are employed and the limits on casual employment. There is no indication that clause 10.1.3 applies additionally to casual employment, whether to add to or qualify those circumstances;
• The phrase “employees employed under this Agreement” is to be understood as a reference to “permanent employees” engaged under the Agreement as indicated in the “Example” under clause 10.1.3(4);
• “The juxtaposition of ‘will’ / ‘may’ does no more than provide that up to 35% of the number of permanent non-maintenance employees may be either flexible permanent part time employees or seasonal employees (as acknowledged by the Applicant) whereas, of that number, 65% are to be in full time permanent employment. The Deputy President’s conclusion that casual employees are not included in the 35% is consistent with the plain ordinary meaning of the words and is correct”;
• The Deputy President’s construction gives clause 10.1.3(4) meaning and effect, just not the meaning and effect contended by the AMWU;
• “By reading both clauses 10.1.3 and 10.2.3, as should be done, clause 10.1.3(4) has a meaning and effect in the way construed by the Deputy President”; and
• The AMWU’s contention operates to constrain the meaning and effect of clause 10.2.3 in a manner not provided for in the Agreement.
[26] The second ground of appeal concerns the Deputy President’s reference to the context of the “highly contested circumstances” in which the Agreement was made. The Deputy President found having regard to that context it must be assumed that care would have been taken in drafting the relevant provisions. 17 However, the AMWU points out that this reference was made notwithstanding that the Deputy President found the relevant clause was not ambiguous, and it was therefore not necessary to consider extrinsic material.
[27] The AMWU submits that in the circumstances, there was not a proper consideration of the extrinsic material and, if there was, it would have given the interpretation pressed for by the AMWU. 18
[28] Unilever submits that the Deputy President’s reference to the “highly contested circumstances” was made in the context of the Deputy President’s reasoning to the conclusion that there was nothing ambiguous in the relevant provisions in the Agreement.
[29] Unilever also submits that even if evidence is admitted as an aid to construction, the evidence is limited to objective facts, not subjective intentions, and the evidence to which the AMWU refers is not evidence of objective facts of the kind that may be taken into account as a guide to construction. 19
Consideration
Permission to Appeal
[30] Section 739(5) of the Act has the effect that the Commission is prohibited from making a decision which is inconsistent with the terms of an enterprise agreement (being a species of “fair work instrument”), properly construed. This means that where an appellant raises a seriously arguable contention that a decision made pursuant to s 739(4) involves a misconstruction of the enterprise agreement to which the decision relates, it may be necessary to grant permission to appeal to ensure compliance with s 739(5). For the reasons given below, we have determined that the answer given by the Deputy President to the first question posed for determination in the decision under appeal is inconsistent with the terms of the Agreement, properly construed. Accordingly, we consider that permission to appeal should be granted.
Merits of the Appeal
[31] The resolution of the appeal turns on a proper construction of the terms of the Agreement.
[32] The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.20
[33] It is convenient to begin by setting out the relevant clauses in the Agreement.
[34] Clause 3 of the Agreement sets out the coverage as follows:
“This Enterprise Agreement shall be binding on the following Parties;
a) Unilever Australia Trading Ltd, (trading as Streets Ice Cream, Minto),
b) The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU)
c) All employees who are employed pursuant to the terms and conditions of the Manufacturing and Associated Industries and Occupations Award 2010 and the Food, Beverage and Tobacco Manufacturing Award 2010.”
[35] Clause 10 is a lengthy clause containing two major subclauses (10.1 and 10.2) each containing 3 substantive numbered subparagraphs within clause 10.1.3 containing a further 55 subparagraphs, numerous of which regulate the engagement and employment conditions of FPPT employees. The relevant parts of clause 10 are set out below:
“10. EMPLOYMENT STATUS
DEFINITIONS
10.1 Permanent Employees
Permanent full time and part time employees will be employed on a fortnightly basis directly by Unilever Australia Trading Ltd, trading as Streets Ice Cream, Minto.
(10.1.1) Full time: Employees who work an average of 40 hours and 33 minutes per week. Refer to clause 3.(iv) c ii for details on summer / winter shift averaging.
(10.1.2) Part Time: Employees who work less than an average 40 hours and 33 minutes per week 24/5) and who are rostered to work regular hours on regular days. Such rosters shall be established with the agreement of the employees concerned. The minimum number of hours worked is 16 on a normal shift rotation. These employees will be paid at the hourly rate appropriate to the employee’s classification and the associated shift penalties as shown in Clause 22
If there are any hours worked outside of the employee’s rostered hours, then overtime provisions will apply.
10.1.3 Flexible Permanent Part Time Employees
General
1. Flexible Permanent Part Time employment (FPPT) is intended to address Unilever’s flexibility needs while still providing permanent employment opportunities.
2. FPPT employment is intended to supplement, not replace, full time employment. The Seasonal Clause 10.2.1 will remain in place and may be used to supplement FPPT labour, although this is not the parties’ preference.
3. FPPT employees are permanent employees.
4. Full time permanent employment will make up at least 65% of the non-maintenance employees employed under this Agreement. FPPT and Seasonal workers may make up to the remaining 35%.
Example: if Unilever employed 100 permanent operators, only 35 of those positions could be flexible part time and/or seasonal positions.
…
10.2 Non Permanent Employees
Other employees include short term, fixed term and casual, to be directly employed by Unilever Australia Trading Ltd, trading as Streets Ice Cream, Minto.
10.2.1 Short Term (Seasonal):
Employees working on a short-term contract for a duration not exceeding six (6) months and not less than one (1) month. These employees will be utilised to cover seasonal peaks in demand. It is agreed by the parties that the normal period of high seasonal demand falls in the summer months each year, but seasonals may be required to commence earlier for training or demand requirements. The employer shall notify the employees concerned of the term of employment at the time of engagement. The employment period may be extended by agreement with the employee. In exceptional circumstances the employment period may be extended outside of six {6) months by agreement with the employee and in consultation with the Delegates Committee, such extension can be for a period no greater than two (2) months.
These employees will be paid at the full time rate of pay for their classification. They will be entitled all benefits of a full time employee and to pro rata annual Leave and long service leave.
…
10.2.2 Fixed Term:
Employees working on a short-term contract for a duration of not less than 1 months and generally not more than 12 months. These employees will be utilised to replace a permanent employee on Parental leave, Workers Compensation, USCP (salary continuance), career breaks, leave or the backfilling of an internal secondment for a fixed term. The employer shall notify the employees concerned of the term of employment at the time of engagement. The employment period may be extended by agreement with the employee if the absence of the employee they are replacing continues for longer than initially envisaged.
Fixed term employment shall not be used to engage and re-engage on a continuing basis employees who could otherwise be provided with permanent employment.
10.2.3 Casual:
Hourly hired employee working 12 hours per workday. There is no minimum number of workdays. These employees will be paid a casual loading of 25 per cent, on top of their equivalent base hourly rate and appropriate shift penalty for the shift(s) worked. A casual employee will be engaged for a cumulative period of employment no greater than 3 months FTE in a calendar year. Casual employees will be engaged for a minimum period of four (4) hours to cover planned and unplanned leave and irregular or intermittently occurring work which cannot otherwise be covered by any of the other forms of employment status contained in this clause. In each case, letters of offer and contracts of employment will specify the employment status at recruitment.
Whilst it is the company’s intention to minimise the need for casuals, there may be occasions where there will be a need to utilise casual labour. The parties agree to the use of casual employees to benefit the site by enabling the Company to utilise skilled full-time employees in production, improve the flexibility of the workforce, achieve planning targets and cover periods of planned or unplanned absences. The use of casuals will be restricted to the ICM 2 classification and is to provide improved flexibility for short term requirements. In the exception that there is a casual that maintains the previously acquired Streets skills to operate at a higher level, may be used at this level. This will not limit an existing or previous employee from having an opportunity to take up casual employment, if they so choose. Casuals will be paid at the role they are engaged for.”
(emphasis in original)
[36] Clause 10.1 of the Agreement deals with a category of employment described as “permanent employees” which comprises full-time, part-time and FPPT employees. Clause 10.2 deals with a category of employment described as “non permanent employees” and comprises short term (seasonal), fixed term and casual employees.
[37] The reference to “full time permanent employment” in clause 10.1.3(4) is a reference to employees employed in the full time category described in clause 10.1.1 of the Agreement.
[38] “FPPT” in clause 10.1.3(4) refers to employees employed in accordance with clause 10.1.3.
[39] “Seasonal workers” in clause 10.1.3(4) refers to employees employed as short term (seasonal) employees described in clause 10.2.1.
[40] The phrase “non-maintenance employees” in clause 10.1.3(4) refers to employees employed pursuant to the Agreement who are not employed in a maintenance classification. The various classifications (and their assigned competencies and qualifications) in which employees may be employed are set out in appendices C and D to the Agreement. The rate of pay assigned to each classification is set out in clause 22.
[41] As set out earlier, in construing clause 10.1.3(4), the Deputy President found that “the clause provides for the named employment types to make up the whole, and this does not include casual employees.” 21 However, this construction is not consistent with the ordinary meaning of the words read in the context of the Agreement as a whole.
[42] By clause 3 the Agreement covers all employees covered by the Manufacturing and Associated Industries and Occupations Award 2010 and the Food, Beverage and Tobacco Manufacturing Award 2010. The whole of the class (100%) with which clause 10.1.3(4) is concerned is “non-maintenance employees employed under this Agreement”. A non-maintenance casual employee covered by the Agreement is employed under it. There is nothing evident in the words of clause 10.1.3(4) or elsewhere suggesting that casual employees or any other category of employees is excluded. Casual employees are employed under the Agreement and some of their terms and conditions of employment are described in clause 10.2.3. On the Deputy President’s construction, non-maintenance part-time employees would also be excluded from the remaining 35% with which clause 10.1.3(4) is concerned. On Unilever’s preferred construction (as set out in its written submissions) this could not be the case since it says the phrase “employees employed under this Agreement” is to be understood as a reference to “permanent employees” engaged under the Agreement. 22 It did not appear to submit that “permanent employees” is to be further confined to only two of the three categories of permanent employees for which clause 10.1 provides23 however, we accept that this is the effect of its subsequent oral submissions.24 On the construction the Deputy President adopted (and for which Unilever contends), non-maintenance part-time employees are not part of the whole (100%) because the minimum 65% must be comprised of full-time employees and the remaining 35% may only be comprised of FTTP and seasonal employees. However, we consider that non-maintenance part-time employees are plainly part of the whole. Moreover even if clause 10.1.3(4) is concerned only with non-maintenance employees covered by the Agreement who are “permanent employees”, a proposition we reject, there is no cogent reason why such “permanent employees” would not include non-maintenance part-time employees.
[43] Given the restriction on the composition of the 35% remainder adopted by the Deputy President, non-maintenance part-time employees could only be employed by increasing the proportion of full-time employees to such an extent beyond 65% of the whole of the restricted class, so that the employment of non-maintenance part-time employees would still result in non-maintenance full-time employees comprising a minimum 65% of the whole. Otherwise, Unilever could never employ non-maintenance part-time employees and comply with clause 10.1.3(4). On the construction we prefer non-maintenance part-time employees comprise part of the whole, may therefore form part of the remaining 35% and the minimum percentage of non-maintenance full-time employees is unaffected.
[44] As to the example given under clause 10.1.3(4), which could be taken to provide an indication that only FPPT and/or seasonal positions make up the 35 positions out of the 100, we observe first that it is only an example. It sets out one possible application of the clause. It does not tell the whole story nor limit the operation of the clause.
[45] Secondly, the example does not align with the text of clause 10.1.3(4) because it commences with a reference to 100 permanent operators (emphasis added). It would follow that the 35 positions subsequently referred to must also be permanent employees. But seasonal employees are not permanent employees. As clause 10.2 makes clear, seasonal employees, that is “short term (seasonal) employees”, are non-permanent employees. Given its imprecise wording and the fact that it is only an example (something that is illustrative rather than exhaustive), the example cannot be relied on to displace the ordinary meaning of the operative provision which is clause 10.1.3(4).
[46] As earlier noted, clause 10.1 is expressed (by virtue of its heading), to deal with permanent employees. That clause 10.1.3(4) is part of clause 10.1 lends some support to the construction preferred by Unilever that “employees employed under this Agreement” is to be understood as a reference to “permanent employees” employed under the Agreement. However, as we have already observed, clause 10.1.3(4) also references seasonal workers. This category is not within “permanent employees”. It is a category of “non-permanent employees”. Further, despite the heading of clause 10.1, three of the first four subparagraphs of clause 10.1.3 are concerned with regulating the relationship between categories of permanent employees and other employees, both permanent and non-permanent employees.
[47] Returning to the text of clause 10.1.3(4), it is evident that there is a deliberate use of the word “will”, thus mandating the composition of the 65% of non-maintenance employees to be employed. Only one category is permitted in this composition – full time permanent employees. As to the remaining 35%, Unilever “may” make this up with FPPT and seasonal workers.
[48] We consider that the use of the word “will” in the first sentence of clause 10.1.3(4) sets out a firm obligation on Unilever to ensure that no less than 65% of the “non-maintenance employees employed under this Agreement” are persons employed in in the category described in clause 10.1.1 of the Agreement. The word “may”, indicates that Unilever has some flexibility in determining the categories that comprise the remaining 35%. This may include any combination of non-maintenance employees, both permanent and non-permanent, who are not full-time employees.
[49] Unilever’s contention that the juxtaposition of ‘will’ / ‘may’ does no more than provide that up to 35% of the number of permanent non-maintenance employees may be either FPPT employees or seasonal employees must be rejected. First, the clause itself does not refer to the whole class as “permanent non-maintenance employees”. It refers only to “non-maintenance employees”. Secondly, as we have already discussed, the notion that clause 10.1.3(4) is concerned with only permanent non-maintenance employees cannot survive in the face of the permitted inclusion as part of the whole a category of employment (seasonal workers) which is plainly part of the non-permanent employees’ category with which clause 10.2 is concerned. Thirdly, if the clause was intended to do no more than provide for the 35% to be comprised of either FPPT employees or seasonal employees, but no other categories, one would expect that intention to find expression in the text, perhaps by using the word “only” either before the acronym “FPPT” in the second sentence, or after the word “may”.
[50] Because clause 10.1.3(4) mandates that full-time permanent employment is not to drop below 65% of non-maintenance employees employed under the Agreement, the exclusion of casual employees from comprising part of the whole of the class, whilst not robbing the clause of meaning, would water down its evident intended protective effect. The construction we prefer gives effect and meaning to both clause 10.1.3(4) which is protective of full time permanent non maintenance employment and clause 10.2.3.
[51] Clause 10.2.3 contains restrictions on the use of casual employees. But it does not follow for this reason that casual employees are excluded from the whole of the class with which clause 10.1.3(4) is concerned. Clause 10.2.3 is concerned with restricting the use of casual employees. Clause 10.1.3(4) is concerned with employment levels (not staffing levels) and provides for a maintenance of a minimum proportion of the whole of Unilever’s non maintenance employee workforce as full-time employees. Read together, Unilever may employ casual employees within the limits of clause 10.2.3 while ensuring the minimum proportion of non-maintenance full-time employees in clause 10.1.3(4) is maintained. There are also further restrictions found in Appendix H to the Agreement which may affect the employment of casual employees in non-maintenance positions as well as restricting the mix of FPPT employees and other employment categories that may comprise the 35% remainder in clause 10.1.3(4). Appendix H deals with manning level guidelines and provides, inter alia, that Unilever “will ensure a minimum of 12 FPPT employees will be engaged to cover leave and absenteeism across the site12 FPPT employees in total to cover leave and absenteeism”.
[52] The construction we prefer is supported by the text of the provision read in the context of the Agreement as a whole and is consistent with the evident purpose of clause 10, which clearly seeks to balance the need for flexibility with permanent employment and clause 10.1.3(4) which is protective of non-maintenance full-time employment.
[53] For these reasons, we consider the correct interpretation of the Agreement is that casual employees are part of the whole class of “non-maintenance employees employed under” the Agreement and are therefore also to be included in the 35% remainder to which reference is made in clause 10.1.3(4). The conclusion to the contrary at first instance was in error. We should indicate that although we were referred to material as evidence about the surrounding circumstances going to bargaining for the Agreement and disputation surrounding the proposal to introducing a FPPT employment category, the material does not objectively establish a common intention which would assist in resolving the construction dispute. The material is itself inconsistent. 25
[54] On a redetermination, for the reasons given, we answer the first question posed by the Deputy President “yes”.
[55] In the circumstances, it is not necessary to consider the AMWU’s second ground of appeal. As will be apparent from the orders we make below, we consider the parties ought now be able to resolve the remainder of the dispute which underlies the second question. As will also be apparent, we are concerned about the utility of answering the second question partly because it is imprecisely drafted and the answer to which may depend on an analysis of the terms on which each casual employee is engaged. But if “casual employee” carries the same meaning under the Agreement as it does under the Act, 26 the answer should be self-evident.
Orders
[56] We order:
1. Permission to appeal is granted;
2. The Appeal is upheld on ground 1;
3. The decision in [2020] FWC 5935 is quashed;
4. On a rehearing the answer to the first question is “yes”;
5. The parties are directed to confer on whether there is utility in the second question and if so whether they can agree on a resolution to it; and
6. If there remains utility and the parties are unable to agree on a resolution to the second question the dispute is remitted to Deputy President Dean for determination of the second question.
DEPUTY PRESIDENT
Appearances:
S Howe of Counsel for the Appellant
J Fernon SC of Counsel for the Respondent
Hearing details:
2021
Melbourne (via video link)
29 January 2021
Final written submissions:
Appellant, 18 December 2020 and 13 January 2021
Respondent, 12 January 2021, 13 January 2021 and 15 February 2021
Printed by authority of the Commonwealth Government Printer
<PR729868>
1 [2020] FWC 5935.
2 AE426321.
3 Appeal Book, p. 50.
4 [2020] FWC 5935 at [6].
5 [2020] FWC 5935.
6 [1936] 55 CLR 499.
7 [2020] FWC 5935 at [10].
8 Ibid at [12].
9 Ibid at [18] – [34].
10 Ibid at [35] – [41].
11 Court Book, p. 21.
12 Ibid p. 22 – 24.
13 Ibid p. 23 – 24.
14 Ibid p. 24.
15 Ibid.
16 Ibid p. 33 – 37.
17 [2020] FWC 5935 at [37].
18 Court Book, p. 24 – 25.
19 Ibid p. 37 – 38.
20 See WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]-[130] and the authorities referred to therein.
21 [2020] FWC 5935 at [39].
22 Outline of Submissions for the Respondent (13 January 2020) at [16]
23 Ibid at [11]
24 Transcript PN95-PN98
25 For example, compare document at AB141 ((21 November 2017) to documents at AB314 (17 November 2017)
26 WorkPac Pty Ltd v Rossato [2020] FCAFC 84, 278 FCR 179, 296 IR 38, 378 ALR 585 (Noting that the High Court of Australia granted special leave on 26 November 2020)
0
4
0