Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ausgrid

[2019] FWC 331

[2019] FWC 331

FAIR WORK COMMISSION

DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Ausgrid
(C2017/5277)

DEPUTY PRESIDENT SAMS SYDNEY, 21 JANUARY 2019

Application seeking to have the Commission deal with a dispute – payment of shift, weekend and public holiday penalties – redeployed employees – status quo – principles of agreement interpretation – ‘Berri Principles’ – meaning of ‘salary’ in the phrase ‘salary maintenance’ – no ambiguity or uncertainty – salary does not include shift work, overtime, weekend or public holiday work – inconvenience or disability must be encountered for penalties to apply – questions answered accordingly – dispute resolved.

[1] On 22 September 2017, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘the Union’) filed an application to the Fair Work Commission ‘(the Commission’), pursuant to s 739 of the Fair Work Act 2009 (‘the Act’), seeking to have the Commission deal with a dispute under the Dispute Settlement Procedure (‘DSP’) in the Ausgrid Agreement 2012 (‘the 2012 Agreement’). Initially, the dispute concerned the alleged failure of Ausgrid to maintain the ‘status quo’ in respect to the payments of shift and weekend penalties and allowances for salary maintenance purposes to 11 redeployed employees in the Sydney Contact Centre.

[2] The dispute was listed for conference on 28 September 2017, where agreement was reached that the ‘status quo’ would be maintained until the dispute was resolved, or otherwise determined by the Commission. The parties sought an adjournment to continue ‘out of session’ negotiations which were linked to the negotiations for a new Ausgrid agreement, which provided for a revised incentivised voluntary redundancy offer. The 2018 Agreement was approved by the Commission on 24 May 2018. It was anticipated that this offer might resolve any outstanding issues with the affected redeployed employees. As no advice was received for some time, as to the status of the dispute, I had cause to request on 24 April 2018 an update from the parties.

[3] In a reply from Ausgrid, it was said that as a number of affected employees had not sought voluntary redundancy, Ausgrid intended to proceed with the removal of shiftwork and weekend work penalties for these employees, as they do not work shiftwork or weekend work. Consequently, the matter was listed for further conference on 16 May 2018. The parties agreed to adjourn this conference with an expectation that further direct negotiations would resolve the matter. On 28 June 2018, Ausgrid advised that four (now three as a result of one employee accepting voluntary redundancy) of the eight former Sydney Contact Centre staff would remain in the Career Transition Program (‘CTP’) beyond 4 July 2018 and Ausgrid maintained their shiftwork penalties should cease. The matter was relisted for conference on 4 August 2018 and no resolution was reached. Accordingly, the matter was listed for hearing and directions issued.

[4] At the hearing on 30 October 2018 Mr D Austin with Mr M Buttigieg appeared for the Union and Mr S Woodbury, Solicitor Ashurst, with Ms T Firth appeared for Ausgrid with permission being granted for the employer to be represented by a lawyer, pursuant to s 596 of the Act; noting the Union did not oppose permission being granted.

THE EVIDENCE

[5] At this juncture, I set out the relevant terms of the 2012 Agreement and the provisions in the incorporated Redundancy and Redeployment Policy, dated 17 May 2013 and the Memorandum of Understanding of 1997, dated 11 April 1997. The connection between these provisions will become evident shortly.

[6] Shift work and penalty rates for weekends and Public Holidays are found at cl 14 and provide as follows:

SHIFT WORK

14.1 Definitions

14.1.1 Shift Work - work which is rostered outside the normal spread of hours and which provides for two or more shifts on a day and which requires employees to rotate or alternate in working the shifts.

14.1.2 Shift Worker is an employee who works shifts. An employee does not cease to be a shift worker during a period of leave for the purposes of determining accrued leave entitlements, pursuant to Clause 26.

14.1.3 Afternoon Shift is a shift finishing between 1800 and 2400 hours.

14.1.4 Early Morning Shift is a shift commencing between 0500 and before 0630 hours.

14.1.5 Seven Day Shift worker is a shift worker who is rostered to work on each day of the week and to be clear is a shift worker for the purposes of the Fair Work Act 2009 National Employment Standards. Seven Day Shift workers are paid the rates in Appendix 1B.

14.1.6 Night Shift is a shift finishing between 2400 and 0800 hours.

14.2 Shift Allowance

Shift workers shall be paid the extra rates in Appendix 1 D, Extra Rates, Items 3, 4 and 5. Extra rates are made on a pro rata basis for rostered shifts greater than eight hours (e.g. a nine (9) hour rostered shift receives 1.125 times the extra rate, a 12 hour rostered shift receives 1.5 times the extra rate).

14.3 Shift Penalty Rates

Penalty Rates shall be paid for shift work on Saturdays, Sundays and Agreement/Public Holidays.

Penalty rates for all time worked during an ordinary shift on:

14.3.1 Saturday - Time and one half of the shift hours,

14.3.2 Sunday - Double Time, and

14.3.3 Agreement/Public Holiday - Double Time and an ordinary day’s pay.

[7] The payments for overtime are found at cl 15 and read:

OVERTIME

15.1 Reasonable Overtime

Subject to Sub-clause 15.1.1, Ausgrid may require an employee to work reasonable overtime at overtime rates.

15.1.1 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:

15.1.1.1 any risk to the employees’ health and safety

15.1.1.2 the employee's personal circumstances including any family responsibilities

15.1.1.3 the needs of the workplace

15.1.1.4 the notice (if any) given by Ausgrid of the overtime and by the employee of his or her intention to refuse it, and

15.1.1.5 any other relevant matter.

15.2 Overtime Hours

15.2.1 All time worked in excess of the scheduled ordinary hours shall be overtime unless the employee and the manager have altered them by agreement on a casual basis in accordance with Sub-clause 13.1 Hours of Work.

15.2.2 All time worked outside the period 0600 - 1800 hours Monday to Friday shall be overtime unless the majority of employees and their manager have entered into a Local Workplace Flexibility Agreement which complies with Clause 24 Local Workplace Flexibility.

15.3 Overtime rates

15.3.1 All overtime which commences between midnight Sunday and midday Saturday shall be paid at time and a half for the first two (2) hours and double time thereafter.

15.3.2 All overtime which commences between midday Saturday and midnight Sunday shall be paid at double time.

15.3.3 All overtime which commences on an Agreement/Public Holiday is paid at double time and a half until the employee finishes.

15.3.4 In the case of day workers, all work done on an Agreement/Public Holiday during the time which would have been the employee's normal working time is paid at triple time.

15.3.5 All overtime worked by shift workers on a day on which they are rostered off shall be paid at double time until released from duty. Shift workers are not entitled to overtime as a result of changed shifts which they organise amongst themselves.

15.4 No payment will be made for unauthorised overtime.

15.5 Rest period after Overtime

15.5.1 Where overtime is necessary, whenever possible it shall be organised so that employees shall have at least ten (10) consecutive hours off duty. If so much overtime is worked that an employee cannot take a ten (10) consecutive hour break before the normal commencement time, they shall be entitled to time off without loss of normal pay until they have had a ten (10) consecutive hour break. If a ten (10) hour break is not given then the employee is paid double time for all hours worked until a ten (10) consecutive hour break is taken.

15.5.2 If a day worker is recalled to work overtime between the time determined by extending the employee's usual ceasing time on the previous day by eight (8) hours and 0400 hours, the employee's normal starting time the next day shall be put back by the number of hours worked between those times or paid at double time for the number of hours worked between those times.

15.5.3 If an employee is required to resume duty after being recalled to work overtime which exceeds four (4) hours, whether continuous or not, before having an ten (10) hour break, the employee shall be paid double time for all hours worked until a break of ten (10) consecutive hours has been taken.

15.6 Recall to work Overtime

15.6.1 Except where overtime is continuous (subject to a reasonable meal break) with the usual commencing or ceasing times of either a day worker’s ordinary working hours or a shift worker's ordinary rostered shift on a day upon which the employee has been rostered on, "Recalled to work overtime" means:

15.6.2 a direction given to an employee to commence overtime work at a specified time which is two (2) hours or more prior to either the employee’s usual or rostered commencing time, or one (1) hour or more after the employee's usual or rostered ceasing time (whether notified before or after leaving the employee's place of work); or

15.6.3 a notification given to an employee after completion of the employee’s day’s work directing the employee to take up overtime work; or,

15.6.4 a notification given to an employee whose normal hours do not include work on a Saturday, Sunday or Agreement holiday to work on any such day; or

15.6.5 a notification given to a shift worker to work on a rostered day off.

15.7 An employee, who is recalled to work overtime and is not On Call, as provided in Clause 16 On Call, shall be paid for a minimum of four (4) hours at the appropriate overtime rate.

15.7.1 The payment for an employee who is recalled to work overtime commences from the time the employee receives the call and continues until the employee arrives home.

15.7.2 Except in the case of unforeseen circumstances arising, the employee shall not be required to work the full four (4) hours if the job to which the employee was recalled, or which the employee was required to perform, is completed within a shorter period.

15.8 This clause applies except where a Local Workplace Flexibility Agreement is in place.

[8] The Ausgrid Redundancy and Redeployment Policy (‘R and R Policy’) provides as follows:

1.1 Objective

1.1.1 To provide a procedure which ensures that redeployment and redundancy are consistently and fairly managed at Ausgrid.

1.2 Scope

1.2.1 The procedure is for use of managers who consider offering redeployment or redundancy to employees of Ausgrid.

1.2.1.1 The procedure provides for fairly administering and fully informing affected employees about redeployment or redundancy options at all stages of organisational review and change.

1.2.2 Redeployment is preferred to redundancy.

1.2.2.1 Positions rather than people are identified as excess to requirements. Redeployment is the first consideration for employees whose positions are declared excess. Personnel with needed skills are retained, and appropriate retraining is provided.

1.3 Procedure

1.3.1 Employees are fully informed about redeployment programs.

1.3.1.1 Such a program is based on an organisational review and employees are fully informed of the circumstances behind it. Before any redeployment program commences there is consultation with employees and unions. Employees are fully informed of the options available to affected staff and the scope of assistance and entitlements provided.

1.3.2 Training assistance can enhance redeployment options.

1.3.2.1 All affected employees are offered retaining where it will enable them to fill another position within a reasonable time. Such employees will receive study leave or a subsidy for course fees if training cannot be provided by.

1.3.3 The redeployment process is fairly administered.

1.3.3.1 The Industrial Commission has indicated that employees cannot be forcibly redeployed to an unlimited range of classifications without being offered the option of voluntary redundancy. Division/Branch managers ensure that redeployment options across Ausgrid are made known and affected employees are selected for vacant positions according to the merit appointments procedure.

1.3.4 Salary maintenance for redeployed employees is provided for twelve (12) months.

1.3.4.1 State Government Policy provides for maintenance of an employee’s wage or salary for his/her appointed position for a period of twelve (12) months from the date of redeployment to a lower graded position or from the date the employee is officially advised that his/her position is declared excess, whichever occurs first.

1.3.4.2 All employees whose positions are excess may receive salary maintenance including those presently occupying positions on an existing employee-only basis. At the end of the twelve (12) month salary maintenance period employees receive the rate or pay applicable to the position held at that time.

1.3.4.3 At least one (1) month before the end of a salary maintenance period the position of an affected employee is reviewed and a three-way consultation between the manager/ supervisor, employee and union may be requested by any of the persons covered by this Agreement to discuss the employee’s future.

1.3.5 Transition arrangements for redeployed employees are clearly defined.

1.3.5.1 After twelve (12) months salary maintenance, redeployed employees are paid the rate of pay for the position they now occupy. If the position has a range of increments, a salary adjustment is usually made to the level closest to the employee’s rate of pay in the previous position.

1.3.5.2 Potential increments or any service progression arrangements do not necessarily carry over with the redeployed employee into the new position.

1.3.5.3 Subject to award conditions, travelling time is paid for six (6) months, where through redeployment, employees are required to travel additional distances.

[9] The Memorandum of Understanding of 1997 (‘the 1997 MOU’) states at paragraph 2 of its preamble:

‘Agreement to the new policy emerged from recognition by the parties that salary maintenance is an important safety net for meeting the special needs of employees during the period of the Company’s restructuring and reform process and underpins commercial initiatives to meet EnergyAustralia’s increasingly competitive market place.’

[10] The following persons provided statement and oral evidence in the proceeding:

•  Mr Chun Ho – Customer Service Representative; and

•  Mr Greg McDonald - (then) Senior Industrial Relations Advisor, Ausgrid.

Mr Chun Ho

[11] Mr Ho was appointed as a Customer Service Officer (CSR) in Ausgrid’s Sydney Contact Centre on 20 October 2014, until the Sydney Contact Centre closed in 2017. During this time he performed a range of phone answering and administrative duties in respect to calls from energy retailers, the general public, emergency services and the State Emergency Service (SES). He worked an eight week, rotating shift roster of seven days, including weekend and public holidays, with his shifts generally between 6:30am to 2:30pm or 2:30pm to 10:30pm.

[12] In late March 2017, Mr Ho was made aware that the Sydney Contact Centre was to be closed in April or June that year and relocated to the Wallsend Contact Centre. Mr Ho claimed he was not provided with any opportunity to discuss his redeployment, or a move to Wallsend, prior to being relocated.

[13] On 27 June 2017, Mr Ho received a letter from Ausgrid advising he was at risk of redeployment and in late September he and the Team were advised of the closure of the Sydney Contact Centre and directed to report to the redeployment pool the following Monday. At the time, Mr Ho understood his redeployment was subject to the R and R Policy and the 1997 MOU.

[14] Mr Ho agreed that since this matter was placed in dispute, Ausgrid has maintained the ‘status quo’ and continues to pay him as if he is working the rotating shift roster he had previously been on, including shift allowances, notwithstanding he no longer works shift work, or on weekends or public holidays. Mr Ho believed a loss of the shift allowances would result in a cut of 30 to 40 percent of his income, resulting in a significant effect on himself and his family. He provided a payslip which showed an example of Saturday and Sunday penalties of $156.37 and $312.75 respectively.

[15] Mr Ho said he had recently been redeployed to a three month full time day work position, taking metering inquiries from clients. He understood that most of the roles advertised internally by Ausgrid have been technical roles, for which he does not have the necessary qualifications.

[16] In cross examination, Mr Ho confirmed that he had previously worked for Energy Australia, the predecessor entity of Ausgrid, since 2005. From 2005 to 2014 he worked as a day worker in CSR roles. Mr Ho was then taken to each of his five letters of appointment since 2005, when he had been employed in a part time role. He then moved from part time to full time in 2007, had a change of hours in 2010, reverted to full time in July 2014 and to shift work on 30 October 2014. This last letter of appointment as a CSR reads in part:

‘I am pleased to advise you that you have been selected for appointment to the position of Customer Service Representative – Shift Work through the limited contestability process that occurred after the role was ruled to be an unchanged position.

Your current base salary remains unchanged at customer service representative level 4, pay point 26 on a 36 hour week. All other conditions of your employment will be governed in line with the Ausgrid Agreement 2012.’

[17] Mr Ho accepted that his entitlement to shift penalties is set out in cl 14 of the 2012 Agreement. He acknowledged that when he first commenced his role, he was not working shift work and was not paid shift penalties. However, Mr Ho understood that when he worked day work, it was by voluntary contractual arrangement. However, Ausgrid’s current proposal is not voluntary. He believed that salary maintenance meant that he would be paid the flat rate he was on, plus shift work penalties, until June 2020.

For Ausgrid

Mr Greg McDonald

[18] Mr McDonald had been in his then position for four years and had been involved in a number of changes at the Sydney and Wallsend Contact Centres. It was Mr McDonald’s evidence that rosters at the Sydney Contact Centre changed from time to time ‘based on the number of employees and the business’ requirements at the time. A rotating shift roster was introduced in March 2014 and involved 12 employees. In July 2016, as the numbers decreased to eight, more afternoon shifts were added with fewer day shifts.

[19] Mr McDonald set out the consultation process with employees which occurred when Ausgrid decided in March 2017 to operate only one Contact Centre at Wallsend. The process included answering over 240 questions from affected employees and the Union. The consultation process was finalised by agreement in June 2017 and all CSRs and Team Leaders were issued shortly after with Reform Affected Letters, advising of their options. Around 20 September 2017, the 11 affected employees who had not been appointed to alternative positions, were advised their positions would be made redundant form 22 September 2017 and they would be required to move to the Career Transition Program (‘CTP’). As a result, effective 23 September 2017, there was no longer any business requirement for the employees to perform shift work.

[20] Mr McDonald returned to the Agreement’s provisions in respect to shift work and shift allowances and penalties. He pointed out that cl 38.9 provides:

‘38.9 Where a role covered by this agreement has become redundant then the employee in that role will be managed in accordance with the Ausgrid R and R Policy.’

[21] The reference to the R and R Policy contains the following relevant provisions:

‘38.10 The redundancy policy for the term of this agreement is the Ausgrid R and R Policy dated 17/5/2013.

38.11 The salary maintenance policy for the terms of this agreement is the Memorandum of Understanding – Salary Maintenance dated 11 April 1997.’

[22] Mr McDonald said that from his inquiries, only two other employees, who became redeployed prior to September 2017 and had previously been continuous afternoon shiftworkers, were not paid the afternoon loadings when they transferred to the CTP.

[23] Mr McDonald then set out the history of the dispute in relation to the closure of the Sydney Contact Centre and Ausgrid’s decision to continue to pay the three remaining employees Mr Ho, Ms Jody Armadoros and Mr Frank Taylor, according to their previous shift arrangements, on a without prejudice basis, until the dispute is resolved. This history is not disputed and I do not repeat it.

[24] In response to Mr Ho’s evidence, Mr McDonald outlined Mr Ho’s history of employment with Ausgrid and Energy Australia through his various letters of appointment over 13 years; see: para [16] above.

[25] Mr McDonald identified at least seven administrative roles, advertised internally, since August 2017 and added that Mr Ho did not apply for a CSR role at Wallsend.

[26] In respect to the two other employees who are in dispute, Mr Taylor and Ms Armadoros, Mr McDonald said they both commenced as Flexible Part Time CSRs with Energy Australia in 2005, and like Mr Ho, had various changes in working arrangements identified in new letters of appointment since that time. Ms Armadoros was appointed Team Leader Admin/Clerical Officer Grade 10 in November 2010 and commenced working shift work on 22 January 2011.

[27] In cross examination, Mr McDonald explained the various rosters at the Sydney Contact Centre over the years. He accepted that when rosters changed, an employee who had worked for the full 12 cycle roster, would be paid the same as before. It was Mr McDonald’s understanding that salary maintenance continued for the affected employees which reflected the eight person roster (introduced July 2016) and which similarly did not affect pay and there was a regular basis for calculating earnings.

[28] In questioning about the 1997 MOU, Mr McDonald agreed the document does not define ‘salary maintenance’. He was referred to the paragraph in the 1997 MOU set out at para [9] above and denied the safety net is flawed if regular payments are not being made.

[29] Mr McDonald was asked about the 242nd question and answer in the list of questions asked by employees and the Union during the consultation process. This was:

‘If contact centre staff are in the Redeployment pool will salary maintenance including shift allowances be remunerated to staff?’

and answered:

‘Salary maintenance will be applied in accordance with the redundancy and redeployment Policy. The paypoint is base salary and does not include shift allowances.’

[30] Mr McDonald said he became aware of the two only other employees who were not paid afternoon shift allowances as redeployees, when he was asked about salary maintenance during this dispute. He was not aware if these two employees queried their salary maintenance at the time. Mr McDonald understood that salary maintenance is the salary an employee is receiving at the time of redundancy, at the base rate. Salary maintenance does not apply in reverse; i.e. if you are redeployed to a higher graded position, you are paid the higher rate.

SUBMISSIONS

For the Union

[31] The Union seeks that the Commission determine two questions in the affirmative; namely,

(a) whether, for employees in redeployment prior to the 2018 Agreement, salary maintenance applies according to the terms of the 2012 Agreement; and

(b) whether such employees are entitled to salary maintenance to include overtime and shift penalties payable under a regular roster worked by them as shift workers prior to redeployment.

[32] In answering these questions the Union relies on the ‘Berri Principles’ in interpreting agreements; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union v Berri Pty Ltd[2017] FWCFB 3005.

[33] Clause 1.3 of Appendix 5 to the Ausgrid Agreement 2018 provides:

‘1.3. Upon commencement of this Agreement any previous policies or agreements dealing with redeployment, redundancy or salary maintenance, including the Ausgrid Redundancy and Redeployment Policy dated 17 May 2013 and the Memorandum of Understanding - Salary Maintenance dated 11 April 1997, are both rescinded and no longer apply to Ausgrid and its employees.

1.3.1 This will not remove an employees’ existing salary maintenance arrangements from continuing to apply under this Agreement.’

It was said that the clear intention here is to ‘grandfather’ salary maintenance entitlements which may have arisen prior to the time the 2018 Agreement came into effect.

[34] The Union’s submission then dealt with the relevant provisions of the R and R Policy and the 1997 MOU; both which were incorporated into the 2012 Agreement by their references at cl 38.9, cl 38.10 and cl 38.11. The Union observed that the 1997 MOU does not expressly define ‘salary maintenance’, or what parts of salary are included, or not included. It was therefore submitted that the ordinary meaning of the term is that the employees shall receive the same pay they regularly received, prior to being entitled to salary maintenance. This includes shift allowances and shift penalties, where the employees had previously worked regular shifts.

[35] The Union developed this argument by relying on a term of the 1997 MOU which makes clear that salary maintenance is not only to provide pay for work done, but is intended as an ‘important safety net for meeting the special needs of employees during the period of the Company’s restructuring and reform process’.

[36] In addition, the Union maintained that the usual requirement to work shift work in order to be entitled to shift penalties, is not the relevant test here. Salary maintenance is clearly tied to having a particular salary prior to redeployment and to ensure no loss of income; in this case a significant income loss of 30 to 40 percent.

[37] In oral submissions, Mr Austin said that it is common ground that the 2012 Agreement is applicable for the purposes of this dispute. The dispute is simply a case of the construction of two incorporated documents – the R and R Policy and the 1997 MOU, such as they concern the circumstances salary maintenance might include, or not include shift allowances and penalties for work on weekends or public holidays.

[38] Mr Austin reiterated the Union’s position that the employees are entitled to salary maintenance under the 1997 MOU and the ordinary and commonly understood meaning of the word salary; see: Workpac Pty Ltd v Skene [2018] FCAFC 131. Mr Austin noted that there was no difficulty in Ausgrid’s assessing and calculating the employee’s regular income by capturing the roster they worked at the relevant time – as they had been doing for some time. This should continue.

[39] In supplementary submissions, Mr Buttigieg emphasised the different circumstances where an employee enters into voluntary arrangements, to the position here, where employees were forced into redundancy and redeployment. From Mr Buttigieg’s experience, everyone keeps their salary maintenance beyond 12 months as set out in the 1997 MOU and this will continue until 2020 by virtue of the NSW Government’s sales legislation.

For Ausgrid

[40] Ashurst also set out the background to the dispute which I do not repeat. Unsurprisingly, in answer to the two questions posed by the Union; see paragraph [31] above, it was submitted that the answers should be ‘yes’ and ‘no’ respectively.

[41] Ausgrid’s submissions set out the relevant clauses in the Agreement, the R and R Policy and the 1997 MOU and observed that nowhere is it expressly stated what payments are included, or excluded from salary maintenance. This requires a consideration of the word ‘salary’ in accordance with the Berri Principles. It was put that ‘salary’ may be capable of more than one meaning, but ordinarily it refers to the element of remuneration that is predictable or certain, in contrast to remuneration that is based on allowances or penalties that operate only when the relevant circumstances are encountered. Ausgrid relied on this interpretation, by reference to all of the employees’ letters of appointment which refer to ‘base salary, with other conditions as appropriate’. Moreover, the pay records disclose varied remuneration, based on different allowances and penalties applying week to week.

[42] In any event, shift penalties and weekend penalties are paid to compensate employees for working inconvenient hours or days. When these circumstances do not arise, no penalties or allowances are payable. As this is the case for the three employees in this dispute, the same principle should apply. There was no evidence that the reverse position has applied. The employees knew this during the consultation process; see: Q & A 242 (as quoted in paragraph [29] above).

[43] Ausgrid further submitted that in finally having this dispute determined, has resulted in a ‘windfall’ for the employees which Ausgrid will not seek to recover, if its arguments are accepted by the Commission. It was further noted that each of the employees have worked as day workers before and various changes to shift arrangements, has meant no regular or consistent patterns of employment.

[44] In oral submissions, Mr Woodbury argued that the source of the entitlement to salary maintenance is the 2012 Agreement itself, not the R and R Policy or the 1997 MOU. The Union’s case is flawed in the sense that it seeks to isolate these attachments and claim they operate independently of the 2012 Agreement and should be divorced from the 2012 Agreement. This is an erroneous approach. The Berri Principles speak of the construction exercise as involving context of the language of the words in the 2012 Agreement, as a whole, not the exclusive reliance on the words in the R and R Policy and the 1997 MOU.

[45] Nevertheless, when the Commission looks at these documents, in the context of the 2012 Agreement as a whole, only one inescapable conclusion must follow. The construction exercise commences by going back to the source of the document – the 2012 Agreement – because salaries are not included in either the R and R Policy or the 1997 MOU, but in Appendix 1 of the 2012 Agreement where annual salary refers to pay points, as Mr Ho’s statement acknowledges. So the 2012 Agreement fits neatly together with the R and R Policy and the 1997 MOU.

[46] Mr Woodbury put that the Union seeks to read words into the R and R Policy and the 1997 MOU, which are simply not there. The shift work allowances and penalties are only found at cl 14 and must be predicated on the employee being entitled to such penalties by actually working the shift arrangements there set out. Mr Ho’s own evidence confirms that when working shift work, he received the penalties and when he did not work shift work, he did not.

[47] Mr Woodbury submitted that salary maintenance operates as a safety net when an employee’s role, as determined by a particular pay point, is made redundant and the employee retains that pay point. While it might be generous and beneficial for an employee to be paid shift penalties, it represents a ‘windfall’, because shiftwork is not being worked. The Union’s approach is not the correct approach to the construction of the Agreement.

CONSIDERATION

[48] At its core, the question for the Commission to determine is whether the word ‘salary’ should be read to apply to employees, who prior to their position being made redundant, should be paid shift penalties, allowances and penalties for weekend and public holiday work when they no longer work shift work or on weekends or public holidays. It is apparent from the submissions of the parties that this is the crux of their dispute. Accordingly, I intend to approach the matter from that standpoint, which begins with the principles to be applied by the Commission when interpreting the words in an enterprise agreement; in this case the 2012 Agreement and the incorporation of the terms set out in the R and R Policy and the 1997 MOU.

[49] To this end, and as invited by the parties, I intend to apply the principles set out by the Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005 (‘Berri’) which modified the principles of enterprise agreement interpretation, which had hitherto been applied using the principles set out in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd[2014] FWCFB 7447 (‘Golden Cockerel’).

[50] I set out the ‘Berri Principles’ below:

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 aid 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.

[51] The ‘Berri Principles’ have as their foundation the long line of authority as to the approach to be applied by Courts, Commissions and Tribunals when called upon to interpret the words in an industrial instrument. Prior to the preponderance of certified agreements and enterprise agreements, this was invariably applied to Awards. Recent iterations of the legislative framework, necessitated a refinement of these principles; but some of the basic fundamentals remain. I refer to some of these cases to make good this proposition.

[52] As mentioned, the early well-known cases dealt with the construction of Awards. In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 (‘City of Wanneroo’), French J said at 53:

‘53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘... the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of theCommonwealthofAustralia (1998) 80 IR 345 (Marshall J).’

[53] Then at paragraph 57, His Honour observed:

‘57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities – City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

‘Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.’’

[54] Madgwick J in Kucks v CSR Ltd [1996] IRCA 166 (‘Kucks’); (1996) 66 IR 182 opined that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:

“... [T]he task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[55] As the legislative focus shifted towards agreement making, the same principles were recognised to apply to the interpretation of certified/enterprise agreements. In Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (‘Amcor’), the High Court, Gummow, Hayne and Heydon JJ said:

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[56] In the same case, His Honour Kirby J said:

“However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.

. . .

The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.’ [references omitted]”

[57] Again in Amcor, His Honour Callinan J said there was substance in the observations of Madgwick J in Kucks. His Honour then said:

“An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties.”

[58] In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 (‘Codelfa’) Mason J, as he then was, (and with whom Stephen, Aickin and Wilson JJ agreed) said:

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.

Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”

[59] The nature of the present task was emphasised by the Full Bench of the Commission in DP World Brisbane Pty Ltd v The Maritime Union of Australia[2013] FWCFB 8557 in the following terms:

‘[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’

[60] All of the above observations are consonant with the approach set out in Golden Cockerel and Berri as have been applied in numerous cases since ‘Berri’. In short, the Commission’s task here is to ascertain the objective intention of the contested words, based upon the language and terms of the 2012 Agreement, when read as a whole, having regard to their context and purpose.

[61] While Ausgrid submits that the R and R Policy and the 1997 MOU are not terms of the Agreement, per se, there is little doubt they are incorporated in the 2012 Agreement (and I note referred again in the 2018 Agreement at Appendix 5, although amalgamated in that Appendix with some variation) by virtue of the express provisions of cl 38.9 to 38.11; see: [20] and [21] above. Even so, in proper context, I agree with Mr Woodbury’s submission that the R and R Policy and the 1997 MOU must be read in conjunction with the Agreement, when regarded as a whole. That said, the construction of the word ‘salary’ in the phrase ‘salary maintenance’ pressed by the Union is, in my opinion, untenable for the following reasons:

(a) The ordinary plain meaning of the term ‘salary’ and how it is understood in industrial circles, and by applying a common sense approach to its meaning, is that it is related to the wages or payments associated with the performance of a role, or a position, exclusive of other terms or conditions, which may be required to be paid in order for that role, or position, to be competently performed, or worked according to the conditions under which it is worked, or the operational requirements of the employer as to how the role, or position, is to be performed. When viewed in this way, shift penalties, shift allowances or overtime cannot be said to be a component of ‘salary’.

(b) It is important, I think in the context of what I have just set out, to recognise the relevance of the words in 1.2.2.1 of the R and R Policy: ‘Positions rather than people are identified as excess to requirements’. Positions are linked to classifications and pay rates. This is evident from the definition ‘appointed grade (3.7) ‘means the position to which an employee has been appointed’. In my view, a position cannot be interpreted as including entitlements which flow from working shift work or overtime on weekends and there are no words elsewhere in the Agreement to convey or imply this meaning. This must be so because a position does not change, but people may be appointed to, or moved from a position. Put another way, the notion of a position itself does not change (unless reviewed) and the person’s agreement, or the requirement to work shift work, is independent of the work performed in the position. In this case, there is no submission that the work of a CSR is any different to when it is worked on day, afternoon, or night shifts or on weekends or public holidays.

(c) The above meaning is consistent with the Macquarie Dictionary, Concise Fifth Edition’s definition of ‘salary’; that is; ‘a fixed periodical payment paid to a person for regular work or services…’.

(d) In various other of the provisions of the Agreement there is reference to base salary, salary, wages, ordinary rates of pay and ordinary hours. There is no basis to conclude that these other references are intended to include shift penalties, shift allowances or overtime. This is consistent with the Berri Principles that the meaning of the words should be ascertained within the context of the clause as a whole and the Agreement as a whole. Moreover, the shift work clause can provide no comfort to the Union’s preferred construction, as there is no reference in this clause to any circumstances being for salary maintenance or otherwise, where shift penalties are paid when the shift is not actually worked.

(e) It seems to me the position would be entirely different if the 1997 MOU was entitled ‘Remuneration Maintenance’. The notion of remuneration, as set out in the Act, and by common understanding, comprehends all forms of monetary and non-monetary benefits such as superannuation, allowances, provision of vehicles or equipment for private use, non-contingent bonuses, and regular overtime, amongst many others.

The distinction is made apparent by the reference to ‘remuneration’ in cl 2.8 and 2.10 of the 2012 Agreement which states:

2.8 The Persons covered by the Agreement agree that the remuneration payable under this Agreement is in satisfaction of any entitlements or benefits under any award or applicable enterprise agreement that applies to the employees covered by this Agreement.

2.10 Any remuneration paid by Ausgrid to an employee covered by this Agreement, which is in excess of the legislated basic minimum hourly amount payable to the employee, may be offset against any claim by an employee for entitlements or benefits under any other award or industrial instrument which might be found to apply to the employee.

(f) The position is made even clearer when one considers that the Qualified Supervisor Electrical Work Allowance, the Electrical Safety Rules and Skills Allowance and the Plumbers Registration Allowance (cll 11.1, 11.2 and 11.3) are paid for all purposes,i.e. on annual leave, personal leave etc., obviously, whether the employee is undertaking a task for which the licence relates or not. This inclusive ‘all purpose’ notion is to be plainly contrasted with other of the allowances in cl 11 of the Agreement which are payable only when the disability or reason for the allowance exists; such as the wearing of protective gear when removing asbestos, or handling silicate etc, or when engaged on unusually dirty or offensive work. Plainly, the shift work clause (cl 14) makes no reference to the shift work allowances or shift penalties as being for all purposes and unremarkably identifies different penalties are paid according to the impositional nature of the shift to which it relates, but only when that shift is worked. This is entirely consistent with the underpinning intention of other disabilities or inconveniences for which other allowances are payable.

(g) It is also of significance that the Wages and Salaries Clause (9) refers to ‘the appropriate wage and salary’ being paid according to the pay point as Appendix 1.

The clause reads:

‘9.1 Employees covered by this Agreement as classified in Appendix 1 C are to be paid the appropriate wage or salary according to their approved pay point as per Appendix 1. Wages under this agreement will increase as shown in the table below.

Date	19/12/2012	18/12/2013
Percentage	2.7%	2.7%

9.2 The rates of pay set out in Appendices 1 include an "Ausgrid Allowance". This is set a (sic) shown in the table below:

Date	19/12/2012	18/12/2013
Amount per week	$51.74	$53.14

The payment of such allowance is to take into account the performance of work in relation to heat, height, dirty work, work in confined spaces; work subject to climatic conditions; subject to the lack of the usual amenities and facilities; subject to directions for alterations and variation of starting and/or finishing locations; subject to direction for availability for emergency work outside of ordinary working hours to ensure continuity and for availability for supply; subject to requirements to complete proficiency tests and subject to changes in the system of working.’

Relevantly, the pay point includes both base wage or salary and an Ausgrid Allowance. No other allowance or penalty is mentioned or implied. It is evident that the two components of the pay points at Appendix I are paid ‘for all purposes’ and do not comprehend any other component.

Industrial reality

[62] While not directly related to the construction exercise, I do not accept, as a matter of industrial fairness, that penalties whose purpose is to ameliorate the inconvenience of working unusual and/or anti-social hours, should be paid when the inconveniences simply do not exist. In other words, the payment of penalties are logically predicated, on the employee actually working the arrangements, or under the conditions, for which the penalties are intended to ameliorate. It seems to me that there is a potential for discontent from other employees who are paid extra for working inconvenient or anti-social hours, if they were aware other employees are paid the same allowances for not experiencing any of the inconveniences.

[63] Of course, I accept that the employees in this dispute are in the redeployment pool, involuntarily. Nevertheless, I reject the Union’s submission that this is a relevant distinction to where employees have agreed to work shift work or overtime, as a matter of choice. This submission falls away when one considers that employees are often required to work reasonable overtime unwillingly, or work different shift patterns due to the operational requirements of the employer. In any event, the Union’s submission as to the voluntary nature of shift work, is inconsistent with the provisions at cl 14.5 which read:

‘14.5 Day workers who are required to work shifts

14.5.1 Day workers may be required to work shifts.

14.5.2 Day workers who are required to work shifts shall be paid not less than an additional 30 per cent for the first ten (10) afternoon and/or night shifts in lieu of the shift allowance. The shift allowance is still payable where the shifts occur on a Saturday, Sunday or Agreement/Public Holiday.

14.5.3 After working ten (10) consecutively rostered afternoon and/or night shifts, unbroken by a return to normal day work, an employee shall be deemed to be a shift worker.

14.5.4 The additional payments in Sub-clause 14.5.2 do not apply where a day worker is appointed to shift work at the employee's own request, or as a result of having applied for and obtained a permanent position involving shift work.’ (my emphasis)

Notably, subclause 14.5.4 above makes plain that shift allowances do not apply where the working of such shifts are voluntary. In any event, it is not strictly true, as Mr Buttigieg conceded, that employees have no options to being redeployed. The main option is a very significant voluntary redundancy package, with a one off $75,000 payment in addition, for taking Additional Voluntary Redundancy (AVR) under the 2018 Agreement (Appendix 5 cl 2.1).

[64] While also irrelevant to the construction exercise, the fact is the employees have had, as Mr Woodbury described, a ‘windfall’, in being paid the ‘status quo without prejudice’ all the usual shiftwork and other penalties, while at all times working day work for a period of almost 16 months. It is unreasonable that this situation should continue, particularly given my conclusions as to the construction of the term ‘salary maintenance’.

[65] It is also relevant that during the consultation process, it was made patently clear to the employees and the Union, that Ausgrid’s position was that ‘salary maintenance’ related to ‘base salary’. So much so is evident from the question and answer process, which included the question and answer I set out at paragraph [29] above.

[66] In addition, there was no serious challenge to Mr McDonald’s evidence that after a tumultuous and contentious period of change and transformation, involving thousands of employees, only two other persons were identified as having been in the position of losing their afternoon shift penalties, as a result of their positions being made redundant and becoming redeployed employees.

[67] The Union also contends that as the employees have had a ‘regular income’ stream this should be the basis of finding that ‘salary maintenance’ means no loss of ‘regular income’. Putting aside that their income is, and was not strictly regular, as the evidence disclosed, their earnings varied according to the time and day of the week the shifts were worked; accepting of course that the loss of income will be greater than the variances previously encountered. However, this goes to an argument of fairness, with which I am not unsympathetic. However, the construction task cannot concern itself with whether the answer to interpretation is based on what might appear to be a ‘fair and just’ outcome. This is evident from the judgment of Madgwick J in Kucks where His Honour said:

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’ (my emphasis)

[68] Further, Katzmann J, in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 echoed this principle when Her Honour said at para [77]:

‘The consequences for Mr Butterworth are unfortunate. In the 21st century it is hard to see why an employee who is required by the terms of his contract of employment to attend training far from his accustomed workplace should have to shoulder the lion’s share of the costs of travel and accommodation to enable him to do so. But the Court’s task is to interpret the award, not to remake it. It would be “wrong to strain the words of the award to achieve a result that might be considered fair or desirable according to some prior standard of fairness or proper employment practice” (ACX LTD v DCT at [115]. The remedy lies elsewhere.’ (My emphasis)

[69] In any event, I consider the interpretation I prefer, does not produce an unjust, unfair or unreasonable outcome, given all the history and circumstances of this dispute.

CONCLUSION

[70] For the aforementioned reasons, I answer the questions of the Union as set out in para [31] above, as ‘yes’ and ‘no’ respectively. Accordingly, the dispute is resolved and the proceedings are concluded.

DEPUTY PRESIDENT

Appearances:

Mr D Austin and Mr M Buttigieg for the applicant.

Mr S Woodbury for the respondent.

Hearing details:

2018.

Sydney:

October 30.

Printed by authority of the Commonwealth Government Printer

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