Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited T/A Qantas

[2016] FWC 6257

[2016] FWC 6257

FAIR WORK COMMISSION

DECISION

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

Australian Workers' Union, The; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Qantas Airways Limited T/A Qantas
(C2015/8201)

COMMISSIONER CAMBRIDGE SYDNEY, 6 SEPTEMBER 2016

Dispute settlement procedure - interpretation of terms of enterprise agreement - disputed terms dealing with entitlements arising from attainment of training qualification - no ambiguity established - interpretation of terms provided.

[1] This Decision is made in respect of an application that was taken under section 739 of the Fair Work Act 2009 (the Act), for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 18 December 2015, and it was jointly made by The Australian Workers’ Union (the AWU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), (collectively, the Unions, or the Alliance Unions). The application was taken against Qantas Airways Limited (the employer or Qantas).

[2] The Commission is empowered to deal with this matter by virtue of two DSPs which can be found respectively at clauses 12 of each of the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 9 (the Agreement) and the Qantas Airways Limited (AWU, AMWU, CEPU) Brisbane Base Maintenance Agreement 4 (the Brisbane Agreement). The terms contained in the respective DSPs which are found in the Agreement and the Brisbane Agreement were identical. Similarly, the relevant terms of the Agreement and the Brisbane Agreement which were the subject of dispute, were sufficiently similar so that analysis has only needed to be made in respect to the terms of the Agreement, as any outcome in respect to those terms would have application in respect to the similar terms found in the Brisbane Agreement.

[3] The application was the subject of unsuccessful conciliation proceedings held on 3 February 2016. The Unions pressed the application and the matter has subsequently proceeded to arbitration which involved a Hearing conducted in Sydney on 15 June 2016.

[4] At the Hearing, the AWU was represented by Mr S Crawford and Ms J Gherjestani, the AMWU was represented by Mr M Nguyen, and Mr M Murphy briefly appeared for the CEPU. Mr Crawford introduced evidence by way of seven witness statements and one witness statement in reply. None of the seven individuals who had provided witness statements where required for cross-examination. However, the employer took issue with certain contents of the witness statements which, in broad terms, were admitted subject to the acknowledged limited weight which could be given to certain contents.

[5] The employer was granted permission, pursuant to s. 596 of the Act, for Qantas to be represented by lawyers or paid agents. Qantas was represented by Mr M Follett, a barrister, who was instructed by Ms E Anderson, a solicitor from the firm of Herbert Smith Freehills solicitors for Qantas. Mr Follett calledMr Simon Brownas a witness, who provided evidence in elaboration of a statement that he had made for these proceedings.

[6] Mr Crawford made oral submissions in amplification of written submissions which had been made on behalf of the AWU. The submissions made by Mr Crawford were supported by both Mr Nguyen from the AMWU, and by Mr Murphy from the CEPU. Mr Follett made oral submissions in elaboration of documentary material that had been filed on behalf of Qantas.

Background

[7] There was essentially no factual contest between the Parties about the circumstances which gave rise to the dispute in this matter.

[8] There was uncontested (and uncontroversial) evidence provided by a number of Aircraft Maintenance Engineers (AMEs) who have not been advanced a pay classification level as recognition for the attainment of a particular training qualification, known as CASA Basics. These AMEs and the Alliance Unions, have asserted that Qantas has not advanced these individuals one pay classification level in contravention of a requirement arising from the terms of clause 7B.1 of Appendix B of the Agreement, which deals with recognition for attainment of eight (or more) CASA Basics training modules.

[9] There was no dispute that as a general proposition, an AME who attained eight (or more) CASA Basics would receive recognition for the completion of those training modules which, in the ordinary course of events, would include, inter alia, advancement of one pay classification level. Further, it was also common ground that in particular circumstances, a classification level increase was not available despite an individual attaining eight CASA Basics. The particular circumstances where no classification level increase would apply in respect to an individual who had attained eight (or more) CASA Basics, involved the situation whereby that individual had obtained a quota level position, a.k.a. a quota controlled position.

[10] A quota controlled position is a pay classification level above those levels which are progressed through automatically following particular lengths of satisfactory service. Thus, an AME with satisfactory performance, progresses up the pay classification levels automatically with length of service until they reach the highest level before a quota controlled position. Qantas has retained discretion to appoint individuals to quota controlled positions which are on pay classification levels above the highest levels which can be automatically achieved via satisfactory length of service.

[11] The Agreement contains a number of tables which set out the pay classification levels and the corresponding service requirements which provide for the automatic progression to the highest level before a quota controlled position. These levels, which apply before quota controlled levels, are referred to as the range available to an employee before quota controls apply. Relevantly, the tables applicable for AME’s progression through range operated differently for the calendar years of 2013, 2014 and 2015.

[12] The first of the classification tables operated for 2013, and it includes the levels for automatic progression or range, up to the highest level before a quota controlled position being level 12. Consequently, in 2013, the first quota controlled position was at level 13. The next table operated for 2014, and it extended the automatic progression range to level 13. Consequently, in 2014, the first quota controlled position was at level 14. The next table operated for 2015, and it extended the automatic progression range another level to level 14. Consequently, in 2015, the first quota controlled position was at level 15.

[13] As a result of the progressive raising of the level for the first quota controlled position, a number of AMEs who were occupying a quota controlled position had that position altered so that it was no longer a quota controlled position. For instance, an AME who had obtained a quota controlled level 13 position before 1 January 2014, had that level 13 position become the highest level for the automatic progression range after 1 January 2014. Similarly, an AME who had been appointed to a quota controlled level 14 position before 1 January 2015, had the quota controlled aspect of their position removed from 1 January 2015, and as of that date, level 14 became the highest level for automatic progression range.

[14] These alterations to the quota controlled positions had an impact on the classification level advancement that potentially arose from attaining eight CASA Basics. A level which had previously been quota controlled and operated to preclude a level advancement, no longer operated as a barrier to a level increase. The practical consequences of the interaction between the removal of quota controlled positions in 2014 and 2015, and the impact upon the CASA Basics level advancement, which was previously not available at those quota controlled levels, represented the genesis of the dispute.

[15] The first practical consequence of the removal of the previous quota control restriction meant that an individual who attained the eight CASA Basics after the quota control restriction had been removed, could then obtain the level advancement which had hitherto been unavailable at that classification level. This particular practical consequence was not the subject of argument. Qantas accepted that an individual, who attained the eight CASA Basics after the removal of any previous quota control restriction, was entitled to the one level advancement.

[16] The second practical consequence arose in respect to an individual who had previously attained the eight CASA Basics, and he or she had been precluded from advancement of one classification level because at the time the individual had obtained a quota controlled position. Subsequently, as a consequence of the progressive removal of quota controlled positions, the individual then no longer held a quota controlled position.

[17] In such changed circumstances, the Alliance Unions asserted that there was no longer any quota controlled restriction to classification increase. Therefore, an individual who had previously attained eight CASA Basics but was prevented from a classification increase because they were in a quota controlled position at that time, was subsequently entitled to the one classification level advancement. Qantas rejected this proposition, and it maintained that the operation of the relevant terms of the Agreement applied only at the particular point in time when an individual attained the eight CASA Basics. Therefore, if at that time, the individual held a quota controlled position they had no entitlement to advance one classification level, and any subsequent alteration to the quota controlled restriction did not activate an entitlement for the classification level advancement.

[18] Therefore, the dispute has involved a contest as to whether the terms of the Agreement provide an entitlement for a classification level increase in recognition of the attainment of eight CASA Basics, in circumstances where a quota controlled restriction applied at the time of the attainment of the CASA Basics, but such quota controlled restriction has subsequently been removed.

[19] The answer to this contest has involved an examination of the relevant terms contained within the Agreement. The primary analysis has been undertaken in respect to the terms of clause 7B.1 of Appendix B of the Agreement, which deals with the entitlements that arise in respect to the completion of CASA Basics. The dispute has been resolved by providing the correct construction for the particular terms of the Agreement under examination.

The Unions’ Case

[20] In short summary, the Unions have asserted that the relevant provisions of the Agreement require Qantas to advance an AME one classification level upon completion of eight CASA Basics, in circumstances where such advancement was previously unavailable because of the quota controlled restriction, and then such restriction is subsequently removed.

[21] Mr Crawford from the AWU, made submissions which identified the relevant contested terms contained in the Agreement, and in particular, the words contained in clause 7B.1 of Appendix B were analysed. Mr Crawford asserted that by way of application of relevant principles for interpretation, the words in clause 7B.1 established four distinct entitlements that arose for an individual who attained eight or more CASA Basics.

[22] Mr Crawford submitted that clause 7B.1 firstly provided for the payment of $100 to an employee in respect of each CASA Basic unit that an individual attained. Mr Crawford said that there was no controversy about the $100 payment entitlement.

[23] The submissions made by Mr Crawford then addressed the second entitlement that was provided for by clause 7B.1, and it was this part of the clause that was the matter of contest between the Parties.

[24] Mr Crawford referred to the evidence of the various AMEs who had notified Qantas of the completion of the eight CASA Basics at a time when they were in a quota controlled position, and the exclusion to the classification advancement as set out in paragraph (a) of the clause applied. However, Mr Crawford submitted that as a result of the new classification structure that subsequently operated, these AMEs were no longer in a quota controlled position, and in that circumstance, Qantas could no longer rely upon the exclusion provisions of paragraph (a) of clause 7B.1. Mr Crawford stressed that the classification advancement was clearly something that could only apply on a once-off basis, but as it had not applied previously to the particular AMEs, the entitlement could still be accessed on a once-off basis at the point in time when the AMEs were no longer in a quota controlled position.

[25] The submissions of Mr Crawford then referred to the third entitlement that he said arose from paragraph (b) of clause 7B.1. In this regard, Mr Crawford submitted that the Parties were in furious agreement about the application of paragraph (b). Mr Crawford submitted that these terms extended the range available to an employee before quota controls would apply. Mr Crawford submitted that the practical application of the extension of the range was the same as the outcome that would be achieved by adoption of the interpretation of paragraph (a) as was urged by the Alliance Unions.

[26] Mr Crawford made further submissions about the fourth entitlement that he identified within clause 7B.1. Mr Crawford noted that the fourth entitlement involved the payment of an all-purpose allowance to employees who had no prospect whatsoever of a classification movement because they were already in the highest level. Mr Crawford said that the payment of the all-purpose allowance supported the proposition that he advanced as the correct construction for the operation of paragraph (a) of clause 7B.1.

[27] In summary, Mr Crawford submitted that the words of clause 7B.1 of Appendix B in the Agreement were plain and unambiguous. Mr Crawford submitted that the clear intention and purpose of the clause was to provide AMEs with an incentive to complete eight or more CASA Basics. Mr Crawford submitted that the terms of clause 7B.1 which did not allow a classification level advancement when an employee obtained a quota level position, did not operate so as to prevent an employee from obtaining the classification level advancement if they no longer were in a quota level position. Mr Crawford urged the Commission to adopt the construction of the contested terms of clause 7B.1 as had been advanced by the Alliance Unions, and to issue Orders in the form of a proposed Draft Determination which had been filed.

The Employer’s Case

[28] Mr Follett appeared for Qantas, and he made submissions which rejected the interpretation of the contested terms of the Agreement as was advanced by the Alliance Unions. Mr Follett made oral submissions and he also relied upon the documentary material filed on behalf of Qantas.

[29] Mr Follett acknowledged that the factual circumstances which underpinned the dispute were pretty clear. He said that there was no dispute that employees who notified Qantas of their eight CASA Basics at a time when they were in a quota controlled position were not advanced one classification level because the proviso contained in paragraph (a) of clause 7B.1 operated at that point in time. Mr Follett said that subsequently these individuals have argued that they are now entitled to the classification level increase because of changed terms applying from other provisions of the Agreement.

[30] The submissions made by Mr Follett suggested that the argument advanced by the Alliance Unions amounted more to what they would like the clause to say, as opposed to what the clause actually says. It was submitted by Mr Follett that this was an opportunistic argument which sought to disregard the once-off application of the benefit, which did not readily lend itself to the proposition that the benefit could be held for activation in future.

[31] Mr Follett asserted that the correct interpretation of the contested provisions of the Agreement meant that those terms operated once only, at the time at which an employee advised Qantas that they had attained eight or more CASA Basics. Mr Follett submitted that it was not very common to see terms of an enterprise agreement that might provide for something to happen years later upon which a new benefit would then be provided. Mr Follett said that the “horse had well and truly bolted” and that once the individuals had advised Qantas that they had attained eight or more CASA Basics, the operation of the clause had been exhausted.

[32] According to the submissions made by Mr Follett, the construction of the relevant terms of the Agreement as was urged by the Alliance Unions, would involve the creation of something that you could hold in abeyance for the future just in case things might change, and this was, according to Mr Follett, a fundamentally odd way to construe terms of an enterprise agreement. Mr Follett further stressed that the interpretation of the terms of the Agreement was not an exercise in what was fair, but instead, an exercise in what the Agreement actually said, and therefore required focus on the language of the clause.

[33] The submissions made on behalf of Qantas asserted that the benefit or entitlement provided by clause 7B.1 (a) was time sensitive and automatic. It was submitted that the clause would operate on a once-off basis and exhaust itself. The words contained in clause 7B.1 (a) were, according to the submissions made by Qantas, automatic and direct language which did not extend to enabling the “cashing in” of the benefit several years after the event, including under a completely different enterprise agreement.

[34] It was submitted by Mr Follett that the plain and ordinary meaning for the words contained in paragraph (a) of clause 7B.1 provided for the benefit to be obtained only once, and constrained the operation of the clause to the point in time at which an individual attained the eight CASA Basics and notified Qantas accordingly. Mr Follett submitted that at that point in time, (when you notify Qantas), if you could advance a level you do; and if you can’t you don’t; and that was the end of the operation of the terms of the clause. Mr Follett rejected the proposition that in changed circumstances, an employee could reinvigorate the benefit provided by clause 7B.1.

[35] Consequently, it was submitted by Mr Follett that the correct construction to be given to the terms of clause 7B.1 and in particular, the proviso contained in paragraph (a), did not provide for some form of stored entitlement that might be able to be activated at some time in the future. Mr Follett submitted that the proper construction to be given to the contested terms of the Agreement established that the clause operated on a once-off basis at the point in time that an individual notified Qantas that they had attained eight or more CASA Basics.

[36] According to the submissions made by Qantas, the construction for the terms of clause 7B.1 of Appendix B of the Agreement, as was urged by the Alliance Unions, should be rejected, and the matter dismissed accordingly.

Consideration

[37] The dispute in this instance has involved a contest regarding the correct interpretation or construction that should apply to particular terms of the Agreement. In the particular circumstances of this case, the determination of the matter also encompassed substantially similar terms contained in the Brisbane Agreement.

[38] The approach to resolving questions of contested interpretation/construction of the terms contained in an enterprise agreement has been the subject of a significant Decision of a Full Bench of this Commission in the matter of The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  1 (Golden Cockerel). Both Parties acknowledged and referred to the Golden Cockrell Decision and in particular, the principles set out at paragraph 41 of that Decision which stated:

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) 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;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.

10. 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.”

[39] Further, in respect to resolving matters of contested construction, the question of the conduct of the Parties in connection with the contested terms, has been examined in the following extract from the Full Bench Decision in Essential Energy v Australian Municipal, Administrative, Clerical and Services Union and Others  2 (Essential Energy):

“[23] In addition, there is one well-established further principle relevant to the interpretation of industrial instruments, including enterprise agreements, which we consider to be relevant, namely that it is not permissible to take into account the conduct of parties which occurs after an industrial instrument is made as an aid to interpret that industrial instrument.”

[40] It is also relevant to refer to the paragraphs which immediately precede the extract quoted above from the Essential Energy Decision, and which includes the often cited extract from a Judgement of Madgwick J in Kucks v CSR Limited  3 (Kucks):

“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.”

[41] Accordingly, the principles as established by the Full Bench Decisions in Golden Cockerel and Essential Energy have been adopted, and relevantly applied in this instance to the contested construction of the terms of the Agreement. Further, the approach to the interpretation of the terms of the Agreement has been undertaken cognisant of the guidance provided by various Judgments including that in Kucks.

The Relevant Clause

[42] The relevant clause of the Agreement which is the subject of the contested construction question is clause 7B.1 of Appendix B which is in the following terms:

“7B COMPLETION OF "CASA BASICS"

7B.1 A trade’s employee who successfully completes "CASA Basics" will receive a once off bonus payment of $100 for each unit obtained. This payment will not be used to calculate any other payment due to an employee.

On a “once-off” basis, a trades employee employed in Heavy or Line Maintenance who attains 8 or more Basics will:

(a) be advanced one Level

* but note that employees who obtain a quota level position (other than by translation) will not progress by an additional Level, and

(b) the range available to an employee before quota controls apply, as specified in Clause 3B above, will be increased by one Level.

“Once-off” for the purpose of this clause refers to payments or advancement under either this EBA 7 or any previous EBA.

From the first pay period on or after 1 January 2013, an employee who is at Level 14 and who subsequently obtains 8 or more Basics will be entitled to an all purpose allowance as set out in Table 3. Where this allowance was paid to a level 13 employee immediately prior to the first pay period on or after 1 January 2013, the allowance shall continue to be paid to that employee following their translation to level 14 from the first pay period on or after 1 January 2013, in accordance with this Agreement.

From the first pay period on or after 1 January 2015, an employee who is at Level 15 and who subsequently obtains 8 or more Basics will be entitled to an all purpose allowance as set out in Table 3. Where this allowance was paid to a level 14 employee immediately prior to the first pay period on or after 1 January 2015, the allowance shall continue to be paid to that employee following their translation to level 15 in accordance with this Agreement.”

[43] The focus of the contested construction question in this instance has involved the words contained in paragraph (a), and in particular the operation of the proviso or exclusion that is established by the words appearing after the asterisk (*) in paragraph (a). For convenience, I shall refer to these words as the “asterisk exclusion.”

The Question of Ambiguity

[44] The approach to resolving this contested construction question should logically commence with an examination of the relevant words, so as to discern whether or not these words contain some ambiguity. It is well established that the approach to resolving questions of contested construction should focus upon providing the words under examination with their plain and ordinary meaning, unless for some cogent reason such ordinary meaning is inappropriate or otherwise unavailable.

[45] It is relevant to note that there was no dispute between the Parties about what the words of the asterisk exclusion meant in circumstances which involved an individual who, at the time that they attained eight or more CASA Basics, occupied a quota level position. In these circumstances, the Parties agreed that the benefit, by way of a one level classification increase, was not available by virtue of the operation of the asterisk exclusion.

[46] It is relevant to note that the Parties also accepted that particular words in clause 7B.1 which were relevant to the operation of the asterisk exclusion, had particular practical meanings. For instance, the word “attains” was, for practical purposes, given to mean “notify”. That is, for practical purposes, it was accepted by the Parties that an AME would be required to notify Qantas that they had attained eight or more CASA Basics as the means by which any entitlement to the benefits provided by paragraphs (a) and (b) could be established.

[47] Similarly, the word “obtain” which appears in the asterisk exclusion was treated to be synonymous with the word “occupy” or “hold.” The Parties frequently referred to an individual who was “in” a quota controlled position. 4 Strangely, the word “obtains” is used in the final two paragraphs of clause 7B.1 in apparent substitution of the word “attains” which appears in the sentence immediately before paragraph (a). Further, the words “completion” and “completes” and “obtained” are also used in clause 7B.1 in respect to the successful completion of CASA Basics training modules.

[48] A careful analysis of the terminology used in clause 7B.1 has established two significant aspects of the proper meaning that can be given to particular words that are used within the clause. Firstly, the words; “completion”, “completes”, “obtained”, “attains”, and “obtains,” have been used interchangeably in respect to an individual successfully completing particular CASA Basics training modules, and advising Qantas of that fact so as to activate one or more of the benefits provided by clause 7B.1.

[49] Secondly, the analysis of the terminology used in clause 7B.1 has required examination of the word “obtain” where it is used in the asterisk exclusion. The Macquarie Dictionary definition for the word “obtain” is; v.t. 1. to come into possession of; get or acquire; procure, as by effort or request. In the context of the asterisk exclusion, where the word “obtain” is used as “obtain a quota level position”, it can be given its ordinary meaning and thus represent a circumstance where an individual came into possession of, acquired or procured a quota level position. Therefore, the meaning to be given to the words “obtain a quota level position” appearing in the asterisk exclusion, can be alternatively described as employees in possession of, or occupying, or holding, a quota level position.

[50] Consequently, there is no ambiguity that arises in respect to the words contained in the asterisk exclusion when read and considered in the context of the surrounding terminology used in clause 7B.1. In simple terms, the exclusion to the specific benefit provided by paragraph (a) of clause 7B.1 arises when an employee occupies a quota controlled position.

Contemporaneous Application

[51] The contested construction question does not involve any ambiguity of the words in clause 7B.1. However, the dispute has been created by the impact of changes caused by other terms of the Agreement (clause 4B.2.4) which altered the circumstances that had been established as providing for the operation of the asterisk exclusion.

[52] At the time that the asterisk exclusion was introduced into earlier enterprise agreements, it would have been highly unlikely that there would have been any contemplation that quota controlled positions might be removed. Consequently, the benefits of a classification level increase that were lost because of the asterisk exclusion would have been understandably anticipated to have been lost for all time. That circumstance changed dramatically when the terms of clause 4B.2.4 of the Agreement progressively removed quota controlled positions.

[53] The changed circumstances created by the impact of clause 4B.2.4 were partially addressed by the introduction of the two additional paragraphs found at the end of clause 7B.1. Importantly, there was no change to the wording of the asterisk exclusion. These terms have to be given their plain and ordinary meaning.

[54] There are no words in clause 7B which confine, restrict or limit the operation of the clause to a particular point in time when an employee notified Qantas of the attainment of eight or more CASA Basics. The mention in the clause of the once-off basis for the benefits that are prescribed does not translate into the benefits being available at only one fixed point in time. That is obvious from the fact that the once-off bonus payments of $100 would be obtained at various points in time as the training modules were completed. Further, the clause itself clarifies that the reference to once-off relates to the avoidance of any capacity to obtain any of the benefits more than once, traversing the period of operation of the Agreement and “any previous EBA”.

[55] Therefore, there is an absence of any words which would operate to restrict access to the benefits contained in the clause, so that the benefits would only be available at one point in time, namely that point in time when an individual notified Qantas of their attainment of eight or more CASA Basics. The terms contained in the clause must be read and applied in a contemporaneous manner. That is, if the particular circumstances which give rise to an entitlement to the benefit exist today, the fact that those circumstances may not have previously existed cannot, in the absence of any specific terminology to the contrary, operate to negate the operation of the terms of the clause as they apply today.

[56] Consequently, as there is no ambiguity about any of the contested terms contained in clause 7B.1, those terms must be given their plain and ordinary meaning and, in the absence of any words to the contrary, that meaning must be applied contemporaneously. Therefore, if the particular circumstance of an individual satisfies the requirements of clause 7B.1 that individual is entitled to the benefits therein prescribed. The application of such plain and ordinary meaning was accepted by Qantas in respect to any AME who notified of the attainment of eight or more CASA Basics once the position that the person occupied was no longer quota controlled.

[57] In circumstances such as those AMEs who presented evidence in this case, where they had notified Qantas in the past of their attainment of eight or more CASA Basics, but whose changed circumstances meant that they no longer satisfied the asterisk exclusion to the benefit prescribed by paragraph (a) of clause 7B.1, then, in the absence of any words to the contrary, such persons also satisfy the plain and ordinary meaning of words which provide the entitlement to the benefits prescribed by paragraph (a) of clause 7B.1. The entitlement for these persons must logically apply from the time of the changed circumstances when an individual no longer satisfied the asterisk exclusion, that is, when they no longer occupied a quota controlled position.

[58] However, it must be noted that the strict qualification of the once-off basis would apply in all circumstances. No matter what particular permutation of individual circumstances might apply, the benefits provided for by clause 7B.1 (a) and (b) can only be accessed once. Therefore, once an individual has accessed the benefits, then the operation of the clause is exhausted in respect to that individual.

Conclusion

[59] The determination of the dispute in this instance has involved a requirement to settle a contested construction question arising from particular terms contained in the Agreement. The particular terms of the Agreement which were the subject of dispute deal with benefits that are available to employees who successfully undertake training known as CASA Basics.

[60] Upon examination, the contested terms of the Agreement which are found at clause 7B.1 of Appendix B, do not contain ambiguity and should be given their plain and ordinary meaning. The issue of subsequent contest has involved a question of whether the terms contained within clause 7B.1 had application restricted to a particular point in time when an individual notified of their attainment of a prescribed number of CASA Basics.

[61] I have determined that in the absence of any words in clause 7B.1 or elsewhere in the Agreement, which confine or otherwise restrict the application of the unambiguous terms of clause 7B.1, those terms operate, prima facie, and contemporaneously. Therefore, any employee who satisfies the requirements stipulated by clause 7B.1 is entitled to the benefits prescribed therein. Further, and in particular, where an employee who was excluded from the benefit prescribed by paragraph (a) of clause 7B.1 because at the time that they notified Qantas of the attainment of eight or more CASA Basics, they held a quota controlled position, that person becomes entitled to the single classification level increase benefit provided by paragraph (a) of clause 7B.1 once they no longer hold a quota controlled position.

[62] In conclusion, by way of application of the principles for resolution of questions of contested construction as primarily established by the Golden Cockerel Decision, I have concluded that the disputed terms of the Agreement should be given a plain and ordinary meaning, and applied in the contemporaneous manner as was contended for by the Alliance Unions.

[63] As a consequence of the conclusions that have been reached, the Commission determines that the application made by the Alliance Unions in respect to the operation of clause 7B.1 of Appendix B of the Agreement is granted.

[64] In view of the determinations made as to the correct construction and interpretation that should be given to the contested terms of the Agreement, and as would consequently have application to the relevant terms of the Brisbane Agreement, it may be unnecessary to formulate any Orders to supplement this Decision.

[65] The Parties are to consult in respect to any requirement for an Order to be issued to reflect the determination of the dispute and advise the Commission accordingly within 21 days from the date of this Decision.

COMMISSIONER

Appearances:

Mr S Crawford and Ms J Gherjestani appeared for The Australian Workers’ Union.

Mr M Nguyen appeared for the Australian Manufacturing Workers' Union (AMWU).

Mr M Murphy appeared for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Mr M Follett of Counsel appeared for Qantas Airways Limited.

Hearing details:

2016.

Sydney:

June, 15.

 1   The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited [2014] FWCFB 7447.

 2   Essential Energy v Australian Municipal, Administrative, Clerical and Services Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Association of Professional Engineers, Scientists and Managers, Australia [2015] FWCFB 1981.

 3 Kucks v CSR Limited [1996] IRCA 166 (19 April 1996), 66IR182.

 4   See, for example, PN596, and paragraphs 15 and 16 of Qantas submissions dated 25 May 2016.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR584938>