Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Robert Bosch (Australia) Pty Ltd
[2019] FWC 2770
•24 APRIL 2019
| [2019] FWC 2770 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Robert Bosch (Australia) Pty Ltd
(C2018/6428)
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Robert Bosch (Australia) Pty Ltd T/A Bosch
(C2018/6453)
The Association of Professional Engineers, Scientists and Managers, Australia
v
Robert Bosch (Australia) Pty Ltd
(C2018/6490)
The Australian Workers’ Union
v
Robert Bosch (Australia) Pty Ltd
(C2018/6504)
DEPUTY PRESIDENT MASSON | MELBOURNE, 24 APRIL 2019 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]; interpretation of agreement; commencement of negotiations of new agreement; whether company required to commence negotiations with all parties to existing agreement in accordance with Fair Work Act 2009.
Introduction
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia) and The Australian Workers’ Union (AWU) (the Applicants) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s 739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 10 of the Robert Bosch (Australia) Pty Ltd 2016 Enterprise Agreement (the 2016 Agreement). 1 The applications filed by the CEPU, Professionals Australia, AMWU and AWU were in similar terms.
[2] The 2016 Agreement has a nominal expiry date of 31 December 2018. It is expressed to apply to Robert Bosch (Australia) Pty Ltd (RBAU), all employees other than specified levels of executives and five unions including the four Applicant unions in this matter plus the National Union of Workers (NUW). The 2016 Agreement is structured in six “Chapters” with a number of schedules. The 2016 Agreement provides for terms of general application in Chapter 1 and then a series of chapters that are confined in their application to a defined scope of coverage within RBAU’s operations. The “Chapters” are structured as follows:
• Chapter 1 – General terms
• Chapter 2 – Manufacturing
• Chapter 3 – Warehouse
• Chapter 4 – Engineering
• Chapter 5 – Professional and Administration
• Chapter 6 – Specialists and Managers
[3] Having advised the five unions of its intention to seek to negotiate a new agreement with a narrower scope than the 2016 Agreement, RBAU issued Notices of Employee Representational Rights (NERRs) on 15 October 2018 to only those employees covered by Chapters 2 and 3 of the 2016 Agreement.
[4] The dispute concerns the commencement of negotiations for a new agreement and the Applicants’ contention that, by having issued NERRs to only those employees covered by Chapters 2 and 3 of the 2016 Agreement, RBAU has failed to comply with obligations under clause 16 of the 2016 Agreement to commence and conduct negotiations for a new agreement on a collective basis with all employees and all five of the unions covered by the 2016 Agreement.
Jurisdiction
[5] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term, which is clause 10 Dispute Prevention and Settlement. The relevant sub-clauses going to the jurisdiction of the Commission in the settlement of disputes are as follows:
“10 DISPUTES SETTLEMENT PROCEDURE
10.1 The following is the agreed process to settle any disputes that pertain to the employment relationship or may arise under this Agreement or in relation to the NES (contained in the FW Act) which has been referred by any of the parties covered by this Agreement for resolution in accordance with this procedure:
a. The Employee(s), shop steward and/or Union may first meet and confer with the immediate supervisor or other appropriate person. The Employee(s) may appoint another person to act on their behalf including a shop steward or delegate of their union.
b. If the matter is not resolved further discussions may occur involving more senior management as appropriate.
c. Should the matter still be unresolved following all or some of the above discussions, the parties may jointly or individually refer the matter to the FWC for assistance in resolving the matter through conciliation, mediation, expressing an opinion or making a recommendation.
d. If the dispute remains unresolved, the dispute may be referred to the FWC for arbitration. If arbitration is necessary, FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective. The parties covered by this Agreement agree to be bound by the decision of the FWC, subject to the right of appeal.
………………..”
[6] It was not contested that the questions to be determined by the Commission were capable of constituting a dispute over the interpretation or application of the 2016 Agreement. Nor was it in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Form F10 applications and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.
[7] Conciliation before the Commission did not resolve the dispute and the matter is now to be determined by the Commission by arbitration.
The hearing
[8] The matter was listed for hearing on Monday 11 February 2019, in advance of which the parties were required to file statements and material on which they intended to rely.
[9] The Applicants were represented in the proceedings by Mr S Riches on behalf of the CEPU, Mr J Gardner on behalf of the AMWU, Mr T Fooks on behalf of Professionals Australia and Mr S Bonica on behalf of the AWU. The Applicants called two witnesses:
Mr Shannon Crundwell – CEPU delegate employed by RBAU; and
Mr Malcolm Watts – Professionals Australia delegate employed by RBAU.
[10] Ms Simone Caylock of Rigby Cooke was granted permission to appear pursuant to s 596 of the Act and appeared on behalf of RBAU and called evidence from Ms J Sherlock – Human Resources Manager for RBAU.
Issues for determination
[11] The questions agreed by the parties to be determined by the Commission are as follows:
1) Does clause 16 require Bosch to begin enterprise bargaining negotiations, in accordance with the scheme provided by the Fair Work Act 2009, for a replacement to the Agreement with all of those parties as set out in clause 4.3 of the Agreement?
2) If the answer to Question 1 is yes, has Robert Bosch (Australia) Pty Ltd met that obligation?
3) Does clause 16 provide for, limit, or restrict the final scope of the agreement which may replace the 2016 Agreement?
[12] Determination of the above questions turn on the proper construction of provisions within the 2016 Agreement that deal with commencement of negotiations for a new agreement which relevantly states as follows at clause 16:
“16 RENEGOTIATION OF AGREEMENT
RBAU, Employees and the Unions named in clause 4.3 agree to commence negotiations, conducted on a collective basis, for a new Enterprise Agreement to succeed this Agreement at least 6 months before the nominal expiry date of this Agreement. The parties to this Agreement intend to conclude these negotiations prior to the nominal expiry date.”
[13] Clause 16 refers to the Unions named in clause 4.3 of the 2016 Agreement and relevantly states as follows:
“4 PARTIES COVERED
This Agreement applies to:
…………….
4.3 The organisations representing RBAU Employees and their members, namely:
- The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) t/a Professionals Australia
- the Australian Workers Union
- the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
- the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
- the National Union of Workers
Please note that the Unions will only be covered by this Agreement if they elect to be covered by this Agreement in accordance with section 183 of the Fair Work Act 2009 (“the FW Act”) and it is noted in the decision of the Fair Work Commission (“FWC”) to approve the Agreement that the Agreement covers the Unions.”
Background
[14] On 8 April 2009, the Robert Bosch (Australia) Pty Ltd 2009 Enterprise Agreement 2 (2009 Agreement) was approved by Fair Work Australia with a nominal expiry date of 31 December 2012. Each of the four unions in this matter plus the NUW were party to the 2009 Agreement. Clause 15 of the 2009 Agreement dealt with commencement of negotiations for a replacement agreement and relevantly provided as follows:
“15 RENEGOTIATION
The parties commit to the negotiation of a further Agreement and will commence such negotiation in a timely manner, but not later than six months before expiry of this Agreement.”
[15] On 4 June 2013, the Robert Bosch (Australia) Pty Ltd 2013 Enterprise Agreement 3 (2013 Agreement) was approved by the Commission with a nominal expiry date of 31 December 2015. Each of the four unions in this matter plus the NUW were party to the 2013 Agreement. Clause 16 of the 2013 Agreement dealt with commencement of negotiations for a replacement agreement and which relevantly provided as follows:
“16 RENEGOTIATION OF AGREEMENT
RBAU, Employees and the Unions named in clause 4.3 agree to commence negotiations, conducted on a collective basis, for a new Enterprise Agreement to succeed this Agreement at least 6 months before the nominal expiry date of this Agreement. The parties to this Agreement intend to conclude these negotiations prior to the nominal expiry date.”
[16] Negotiation of the 2013 Agreement also resulted in a change to the previous structure of the 2009 Agreement with the introduction of six chapters. This was referred to by the parties as “chapterisation”. The 2013 Agreement provided for terms of general application to all employees covered by the agreement in Chapter 1 and then a series of chapters that were confined in their application to a defined scope of coverage of RBAU’s operations. The “Chapters” were structured as follows:
• Chapter 1 – General terms
• Chapter 2 – Manufacturing
• Chapter 3 – Warehouse
• Chapter 4 – Engineering
• Chapter 5 – Professional and Administration
• Chapter 6 – Specialists and Managers
[17] On 4 April 2016, the Robert Bosch (Australia) Pty Ltd 2016 Enterprise Agreement 4(2016 Agreement) was approved by the Commission with a nominal expiry date of 31 December 2018. Each of the four unions in this matter plus the NUW were party to the 2016 Agreement. Clause 16 of the 2016 Agreement, which is reproduced at paragraph [12] above dealt with commencement of negotiations for a replacement agreement and was in identical terms to that of clause 16 in the 2013 Agreement. The 2016 Agreement also retained the “chapterisation” structure implemented in the 2013 Agreement.
[18] On 1 June 2018, Ms Sherlock on behalf of RBAU, initiated contact via email with all five unions that were party to the 2016 Agreement regarding commencement of negotiations for a new agreement. 5
[19] On 2 July 2018, Ms Sherlock wrote to representatives of each of the five unions advising that “The Bosch 2016 Agreement expires in 6 months and as per clause 16 of the EBA we seek to commence negotiations….”. The date for the first meeting was proposed as 26 July 2018 for which confirmation of attendance was sought. Due to the unavailability of certain parties, alternate dates were subsequently proposed and agreed with the first meeting held on 13 August 2018. 6
[20] All unions party to the 2016 Agreement, including Professionals Australia, and delegates were invited to the initial meeting held on 13 August 2018 and all subsequent meetings held. Minutes of each meeting held were also circulated to all parties including Professionals Australia and their delegate Mr Watts. 7
[21] On 11 September 2018, at a bargaining meeting conducted with the unions, RBAU shared its log of claims. The log of claims included as the first item that of “Scope” on which it stated, “Agreement to cover only the employees who are covered by the Manufacturing and Warehouse chapters of the current EBA”. 8
[22] Following the 11 September 2018 meeting, RBAU agreed for each of the five unions to conduct paid report back meetings with their members. The AMWU, NUW and Professionals Australia met with their respective members on 18 September 2018. 9
[23] On 24 September 2018, RBAU wrote to the unions requesting that their logs of claims be provided by them. 10
[24] On 15 October 2018, RBAU distributed NERRs to only those employees covered by the Manufacturing and Warehouse chapters of the 2016 Agreement, reflecting RBAU’s proposed scope for a new agreement. 11
[25] On 16 October 2018, a further bargaining meeting was conducted. Officials of four of the five unions (i.e. AMWU, AWU. CEPU and NUW) attended the meeting. Professionals Australia was represented by their delegate, Mr Watts. The minutes record that the issue of scope for the proposed agreement remained a key disputed issue between the parties. 12
[26] On 16 October 2018, Professionals Australia also wrote to RBAU in relation to the proposed new agreement. In doing so they rejected RBAU’s proposal for the “Agreement to cover only the employees who are covered by the Manufacturing and Warehouse chapters of the current EBA”, and sought to “formally initiate bargaining on the existing enterprise agreement.” 13
[27] On 19 October 2018, RBAU responded to Professionals Australia’s correspondence of 16 October 2018. In doing so, RBAU acknowledged that the scope of the proposed agreement was not agreed and will be an issue for bargaining, recognised Professionals Australia as the bargaining representative for its members and advised of its willingness to meet with Professionals Australia and receive and consider any logs of claims from them. 14
[28] On 30 October 2018, at a scheduled bargaining meeting the AMWU, AWU and NUW shared their logs of claims. The CEPU emailed their log of claims to RBAU prior to the meeting as they were unable to attend. Further bargaining meetings were then conducted on 13 and 20 November 2018 and 11 and 18 December 2018. At the 18 December 2018 meeting RBAU tabled an offer based on the state of bargaining at that point. 15
[29]
At the bargaining meeting on 18 December 2018, Mr Fooks of Professionals Australia who was in attendance along with the Professionals Australia delegate Mr Watts, asked at the commencement of the meeting whether RBAU was willing to bargain for an enterprise agreement that would include employees currently covered by Chapters 4 – 6 of the 2016 Agreement. Ms Sherlock advised “no” in response. Mr Fooks then advised that as a consequence, Professionals Australia did not represent any employees within the proposed scope of the new agreement, did not regard themselves as a bargaining representative for the new agreement and would not continue to participate in bargaining meetings. Mr Fooks and Mr Watts then withdrew from the meeting and have not participated in bargaining since. 16
Case for the Applicants
[30] Mr Riches of the CEPU presented the case on behalf of the Applicants who each supported the submissions made by Mr Riches in relation to the three questions to be determined.
[31] In respect of Question 1, the Applicants submit that the answer to the question posed is “Yes”. According to the Applicants, clause 16 makes explicitly clear that RBAU agrees to negotiate “a new enterprise agreement, to succeed this agreement.” According to the Applicants, it logically follows from that wording that such negotiations must be undertaken in accordance with the scheme provided at Part 2 - 4 of the Act.
[32] The Applicants further submit that to find otherwise would “produce a result that would give the words contained within Clause 16 no work to do as if the negotiations were not to accord with the legislative scheme, then any agreement that might be produced as a result of those negotiations would not be capable of approval” 17 by the Commission. Put more simply, unless the negotiations were conducted in accordance with Part 2 – 4 of the Act there could be no agreement “made” to succeed the 2016 Agreement.
[33] The Applicants also refer to and seek to draw support from the “surrounding circumstances”, 18 that being changes made to the structure of the agreement during the negotiation of the 2013 Agreement, changes which have since been retained in the 2016 Agreement. Those changes included the “chapterisation” of the agreement and amendments to Clause 16 – Renegotiation of the Agreement. The Applicants contend that those changes reveal that there were discussions between the parties regarding clause 16 and that context provides assistance in resolving the objective intent of the parties as to the meaning of the clause.
[34] In support of their submissions as to the context and objective intent of the parties in negotiating changes to clause 16 during negotiations for the 2013 Agreement, the Applicants adduced evidence from current delegates, Mr Crundwell 19 and Mr Watts,20 both of whom became delegates prior to and were involved in negotiation of both the 2013 Agreement and 2016 Agreement. Mr Crundwell and Mr Watts variously state that:
1) RBAU sought as part of the 2013 Agreement negotiations to restructure the agreement through the introduction of “chapterisation”. 21
2) Delegates and union officials held concerns at that time of the impact of the introduction of chapterisation and it was believed to be the intent of RBAU to split the interests of the unions operating as a single bargaining unit. 22
3) At the same time as the introduction of the “chapterisation”, the parties also negotiated changes to the agreement renegotiation clause as a result of a claim raised by the NUW. 23
4) Changes to the agreement renegotiation clause that were agreed to as part of the 2013 Agreement resulted in the referral in clause 16 to all employees and unions covered by the agreement. 24
5) An agreement renegotiation clause had been included in all predecessor agreements prior to negotiation of changes to clause 16 in the 2013 Agreement. 25
[35] On the basis of Question 1 being answered in the affirmative, the Applicants submit that Question 2 must be answered “No”.
[36] The Applicants submit that s 173 of the Act provides for the commencement of negotiations by the employer agreeing to or initiating bargaining with its employees, which may also be indicated by the employer issuing a NERR to the employees to be covered by the proposed agreement. RBAU issued NERRs on 15 October 2018 to only those employees covered by Chapters 2 and 3 of the 2016 Agreement. Further, according to the Applicants, RBAU has not agreed to bargain with employees covered by Chapters 4 – 6 of the 2016 Agreement.
[37] The Applicants contend that by initiating bargaining by the distribution of NERRs to only those employees covered by Chapters 2 and 3 of the 2016 Agreement, RBAU has not met the obligations set out in clause 16 of the 2016 Agreement. That is because clause 16 of the Agreement makes clear who RBAU is obliged to bargain with as it (clause 16) refers to the parties via reference to clause 4.3 of the 2016 Agreement. Clause 4.3 names each of the five unions that are covered by the 2016 Agreement. The Applicants further submit that the Commission need go no further than compare the terms of the NERR as issued in contrast to the parties listed in clause 4.3 of the 2016 Agreement.
[38] The Applicants submit that compliance with clause 16 of the 2016 Agreement requires that RBAU agrees to or initiates bargaining with all of the parties to the 2016 Agreement and must then issue NERRs to all employees that fall with the scope of Chapters 2 – 6 of the 2016 Agreement within 14 days of the “notification time”.
[39]
The effect of RBAU’s conduct according to the Applicants is the exclusion of those employees covered by Chapters 4 – 6 of the 2016 Agreement from bargaining and as a necessary consequence, the exclusion also of Professionals Australia from bargaining for an agreement to “succeed” the 2016 Agreement. By that conduct RBAU has, according to the Applicants, failed to comply with the clear requirements of clause 16 of the 2016 Agreement.
[40] With respect to Question 3, the Applicants concede that clause 16 does not in any way limit or restrict the final scope or content of an agreement which may “succeed” the 2016 Agreement.
Case for RBAU
[41] Ms Sherlock was called to give evidence for RBAU and variously states as follows:
1) That she is responsible for the conduct of enterprise agreement negotiations on behalf of RBAU and had been involved in all agreement negotiations as a HR representative since 2012. 26
2) The commencement of negotiations for an agreement to replace the 2016 Agreement was initiated in the same manner as occurred with respect to the 2013 Agreement and 2016 Agreement. That is, by RBAU contacting each of the unions on 1 June 2018 and seeking to establish an initial meeting to deal with housekeeping matters, facilitating paid meetings of the unions with their members to develop logs of claims, booking meeting rooms for weekly meetings, sending recurring calendar invites to all union officials and delegates and the parties exchanging logs of claims. 27
3) That the “scope” of the agreement had been an issue in previous negotiations as evidenced by a narrower scope having been sought by one of the unions during previous negotiations. 28
4) That no discussion occurred nor was there any agreement reached during negotiations for the 2016 Agreement in respect of the scope of future agreements. 29
5) Confirmed that “chapterisation” introduced in the 2013 Agreement was sought by RBAU and was a more logical way to group employee entitlements on the basis of classification and function. 30
6) The current clause 16 was agreed and inserted in the 2013 Agreement following a claim by the NUW 31 and an iterative negotiation process as evident from meeting minutes.32
7) That while RBAU had initiated contact with each of the unions on 1 June 2018, she believed bargaining actually commenced on 13 August 2018 when the first bargaining meeting occurred. 33
8) Acknowledges that employers are required to issue NERRS to employees within 14 days of the commencement or initiation of bargaining and states that the delay in RBAU issuing NERRS until 15 October 2018 was at the request of the unions due to the disputed issue of agreement scope. 34
[42] RBAU in its submissions contends that Question 1 must be answered in the negative for the following reasons.
[43] RBAU submit that construction of the meaning of clause 16 of the 2016 Agreement begins with the ordinary meaning of the relevant words and that aside from the “parties” and the “nominal expiry date”, none of the terms in clause 16 are defined. Further, despite the reference in clause 4.3 to s 183 of the Act and the reference in clause 12.5 to variations to the agreement being made in accordance with the Act, there is no reference to Part 2 – 4 of the Act in the 2016 Agreement.
[44] RBAU submit that whilst it is implicit that the manner in which negotiations commence should not be in conflict with the Act, clause 16 does not refer to or incorporate the bargaining framework of Part 2 – 4 of the Act and is, in effect, a parallel process not contemplated by the Act. RBAU also contends that clause 16 is silent as to how negotiations are to be initiated, what claims may be made by the parties regarding content and/or scope and what the outcome of bargaining might be.
[45] RBAU submit that contrary to the Applicants’ claims, clause 16 does not require RBAU to:
1) Commence negotiations with all of the parties set out in clause 4.3 of the 2016 Agreement;
2) Commence negotiations on the basis that the new agreement will cover all employees/unions covered by the 2016 Agreement; and
3) Issue NERRs to all employees covered by the 2016 Agreement.
[46] RBAU further submit that clause 16 is focused on the period in which negotiations for a new agreement should commence with the objective of timely commencement of negotiations and conclusion of a new agreement prior to the nominal expiry date of the 2016 Agreement.
[47] While acknowledging that extrinsic material may be used as an interpretative aid, it cannot be used to disregard or rewrite provisions and there is, according to RBAU, nothing regarding the context or purpose of clause 16 that would displace its plain meaning. They also specifically reject the proposition put by the Applicants that the revised format of the 2013 Agreement, i.e. the “chapterisation” structure, provides relevant context that would displace the plain meaning of the words in clause 16. Further, there is no common intention of the parties to conduct future negotiations on the basis of the same scope as the 2016 Agreement.
[48] RBAU submit that there is no evidence that at the time of negotiation and inclusion of the current wording of clause 16 in the 2013 Agreement, that the meaning of the term “conducted on a collective basis” was objectively understood by the parties as locking in the agreement scope for future agreements.
[49] RBAU submits that should the Commission answer “no” to Question 1, it is unnecessary to answer Question 2. However, if the Commission determines that the answer to Question 1 is “yes”, then RBAU submits that it has complied with its obligations of commencing negotiations with all the parties listed at clause 4.3 of the 2016 Agreement for the following reasons:
1) On 1 June 2018, RBAU initiated contact with all relevant officials from each of the five unions via email proposing an initial meeting to start bargaining for a new agreement.
2) On 2 July 2018, RBAU invited all unions to the opening meeting by stating “The Bosch 2016 Agreement expires in 6 months and as per clause 16 of the EBA we seek to commence negotiations.”
3) After the opening meeting, RBAU arranged for a meeting room to be booked on a weekly basis with a recurring weekly invite sent to all union officials and delegates.
4) On 11 September 2018, RBAU shared its log of claims for a new agreement with all unions and delegates.
[50] RBAU further submit that the Act does not prescribe the process for commencing enterprise bargaining negotiations, although it does require an employer to take all reasonable steps to issue NERRs to employees who will be covered by the proposed agreement within 14 days from when the employer agrees to or initiates bargaining. Further, if NERRs are not issued to particular groups of employees, that does not mean that an employer has not agreed to commence negotiations. Consequently, resolution of the contention that RBAU has failed to comply with clause 16 cannot be resolved by simply comparing the terms of the NERR to the parties identified in clause 4.3 of the 2016 Agreement.
[51] RBAU submit that they have at all times recognised all of the unions as bargaining representatives for their members and that scope is a matter for bargaining (subject to the Commission’s power to make a scope order pursuant to s 238 of the Act). They further reject that Professionals Australia have been excluded from bargaining and refer to the evidence of the invitations extended to Mr Fooks and Mr Watts to attend all bargaining meetings and to submit a log of claims.
[52] RBAU also submit that:
1) In dealing with a dispute under s 739 of the Act, the Commission cannot make a decision which is inconsistent with the Act;
2) It would be inconsistent with the bargaining scheme provided at Part 2 – 4 of the Act to make a decision that RBAU was prevented at the outset of bargaining from seeking to pursue a different agreement scope, as such a decision would be akin to making a scope order other than in accordance with the Act;
3) The real dispute is a dispute over the scope of a future agreement, not rights or obligations under the current agreement;
4) There is no obligation on RBAU to agree to modify its position on scope unless the Commission makes a scope order; and
5) The relief sought by the Applicants is unclear, but if it is that RBAU be required to issue a NERR to all employees covered by the Agreement, the Commission has no power to make such an order.
[53] As regards Question 3, RBAU also submit that the answer is “no” and notes that the Applicants agree with that answer.
Approach to construing enterprise agreement terms
[54] The approach to construing enterprise agreements was most recently set out in a Decision of a 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 Ltd35(Berri)as follows:
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[55] In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine,36 a Full Bench of the Commission held that the context of an agreement provision is significant. In this regard, the Full Bench set out the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA,37 emphasising the following matters:
• Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means38 and there is always some context to any statement;39
• Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;40
• To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;41
• The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context;42 and
• Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction.43
[56] The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose are relevant to the construction of provisions in an enterprise agreement and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.
Consideration
Question 1: Does clause 16 require Bosch to begin enterprise bargaining negotiations, in accordance with the scheme provided by the Fair Work Act 2009, for a replacement to the Agreement with all of those parties as set out in clause 4.3 of the Agreement?
[57] This dispute arises from the Applicants’ dissatisfaction with the manner in which RBAU has sought to narrow the scope of the agreement that will replace the 2016 Agreement which reached its nominal expiry date on 31 December 2018. The dispute raises questions as to the obligations of the parties under Clause 16 when commencing negotiations for a new agreement.
[58] While neither the Applicants nor RBAU contend that the final agreement reached through negotiations must have the same scope, format or substantive content of the 2016 Agreement, there is disagreement as to how negotiations must commence. The Applicants submit that Clause 16 of the 2016 Agreement requires that RBAU must agree to and commence bargaining with all of the five unions and must also distribute NERRs to all employees within the scope of the 2016 Agreement. Furthermore, that commencement of the negotiations must occur in accordance with the enterprise bargaining scheme of the Act in order that the product of those negotiations, i.e. a new agreement, is capable of approval by the Commission.
[59] RBAU reject the Applicants’ submission that the commencement of bargaining must be in accordance with the Act, rather that it is implicit that it cannot be inconsistent with the Act. RBAU also reject that it must agree to bargain collectively with all five unions that are party to the 2016 Agreement and that commencement of negotiations can only be found to have occurred upon distribution of NERRs to all employees covered by the scope of the 2016 Agreement.
[60] As I understand the question before me, I am required to consider whether RBAU is required to begin negotiations with all of the parties to the 2016 Agreement consistent with the scheme provided by the Act.
[61] Clause 16 appears directed to ensuring a number of particular requirements are met with respect to the negotiation of a new agreement to replace the 2016 Agreement. They relevantly include as follows:
i. The timing of commencement of negotiations – at least 6 months before the expiry of the 2016 Agreement;
ii. How the negotiations are to be conducted - on a collective basis; and
iii. When negotiations for a new agreement are intended to be concluded - prior to 31 December 2018.
[62] A key focus of Clause 16 is the timely initiation and completion of bargaining for a new agreement. It requires the parties to commence negotiations at least six months prior to the expiry of the 2016 Agreement. On its face, those words seem straightforward enough, that is, the parties have agreed that at least six months prior to the expiry of the 2016 Agreement, negotiations for a replacement agreement will commence. The contest, however, is over how the process is to “commence” both with respect to what specific actions of RBAU constitute the commencement of bargaining and whether such actions must be taken with respect to all of the parties.
[63] I firstly consider what is required to “commence” or “begin” negotiations under Clause 16.
[64] Unhelpfully, only two of the terms in Clause 16 are defined, that being the “unions” which are listed in clause 4.3 and the “nominal expiry date” of the agreement, which is 31 December 2018 as prescribed in clause 5. None of the other terms in the clause, including the term “commence” are defined. Absent any definition or prescription of how bargaining is to “commence”, I am not persuaded that the meaning of the clause is clear and unambiguous. It is therefore necessary to consider the context and purpose of the provision.
[65] The 2016 Agreement was made and subsequently approved on 4 April 2016 pursuant to the requirements of Part 2-4 of the Act. It is a creature of the statutory framework within which it was negotiated and approved. It confers rights and obligations and importantly, for the purpose of the present matter, Clause 16 deals with the process of commencement of negotiations for a replacement agreement.
[66] Clause 16 expresses an intention of the parties to negotiate a new agreement to replace the 2016 Agreement on its expiry. A new agreement cannot replace or “succeed” the 2016 Agreement unless it is “made” in accordance with Part 2-4 of the Act. Consequently, it is implicit that for a new agreement to be made and approved, the parties must comply with the various requirements of Part 2-4 of the Act. For the purpose of the present application, this relevantly includes the initiation of bargaining and the distribution of NERRs. These statutory obligations are detailed at s 173 of the Act where it is relevantly stated as follows:
“173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
……………………….
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
……………………….”
RBAU submits that the process for initiating negotiations for a new agreement prescribed by Clause 16 is a parallel process and does not incorporate the statutory bargaining framework of the Act. RBAU do, however, concede that the manner of commencement of negotiations should not be in conflict with the Act. In circumstances where the end product of the negotiation, a new agreement, must be registered under the Act in order to “succeed” the 2016 Agreement, I find the submissions that Clause 16 provides for a “parallel process” unpersuasive for the reasons that follow.
[67] According to Clause 16, the clear objective of negotiations for a new agreement is to produce an agreement that “succeeds” the 2016 Agreement. It cannot do so unless the statutory requirements of Part 2-4 of the Act are complied with, including those provisions contained in s 173. It is only through compliance with the various statutory requirements that a replacement agreement can be approved under the Act. It follows, as RBAU rightly concede, that commencement of negotiations for a new agreement should not be in conflict with the Act. I am not persuaded in the circumstances of this matter that the term “not be in conflict with” is materially different to stating that commencement of negotiations “must be in accordance” with the Act.
[68] A failure to comply with the various statutory requirements of Part 2-4 of the Act, including s 173, would mean that an agreement reached between the parties would be incapable of approval. Having regard to the context and purpose of the provision, that is the commencement of negotiations for an agreement to replace the 2016 Agreement, I am satisfied that the commencement of such negotiations cannot be in conflict with the requirements of s 173 of the Act, otherwise an agreement ultimately reached between the parties could not “succeed” the 2016 Agreement. Stated another way, commencement of bargaining must be consistent or in accordance with the Act. To conclude otherwise would fly in the face of the clear purpose of Clause 16, to ensure commencement of negotiations for an agreement that can “succeed” the 2016 Agreement.
[69] I am satisfied that read in its proper context, that is, the intended negotiation of an agreement that will replace the 2016 Agreement, Clause 16 requires RBAU to “begin” enterprise bargaining negotiations in accordance with the scheme of the Act for a replacement to the 2016 Agreement. Such a construction supports the expressed intention in Clause 16 to conclude negotiations for a replacement agreement prior to the nominal expiry date of the 2016 Agreement of 31 December 2018.
[70] In having found that RBAU is required to “begin” negotiations in accordance with the Act, I now turn to consider whether it must do so with all of the parties to the 2016 Agreement.
[71] The Applicants contend that clause 16 requires that RBAU must “begin” negotiations with all of the unions that are defined within clause 4.3 of the 2016 Agreement, including Professionals Australia. They draw support in their submissions from the surrounding circumstances of changes made in the 2013 Agreement including “chapterisation” and changes made to Clause 16 during negotiations for the 2013 Agreement, wherein the clause was amended to specifically refer to all of the parties agreeing to commence negotiations, those parties being “RBAU, Employees and the Unions named in clause 4.3”. This was, according to the Applicants, to be contrasted with prior agreements in which the various parties were not explicitly listed or referred to in the Renegotiation of Agreement clause but were simply described as the “parties”.
[72] I am not persuaded that much turns on the change in the drafting of the clause. Prior to the 2013 Agreement, it was the case that the Renegotiation clause stated that the “parties commit to the negotiation of a further agreement…..”. It was not contended that the “parties” so described in clause 15 of the 2009 Agreement were any different to the parties now referred to in Clause 16 and listed in Clause 4.3 of the 2016 Agreement. In fact, Clause 4 of the 2009 Agreement which deals with the Parties Covered is in almost identical terms to Clause 4 of the 2016 Agreement in that it lists all of the “parties” to the agreement including each of the five unions. Unlike the 2016 Agreement, the link is not explicitly made between Clause 15 and Clause 4 of the 2009 Agreement, but the intent is nonetheless clear and that is that all of the “parties” to the 2009 Agreement, including “RBAU” and the “Unions” committed to the timely commencement of negotiations.
[73] A more significant difference between Clause 16 of the 2016 Agreement and Clause 15 of the 2009 Agreement is the reference in Clause 16 of the 2016 Agreement to negotiations being conducted on a “collective basis”. In my view, however, the reference to “collective basis” is directed to describing how actual negotiations are to be undertaken, rather than how the negotiations are to commence. Consequently, it does not assist in resolving how the negotiations are to commence.
[74] Nor does the evidence of the witnesses for the Applicants, Mr Crundwell and Mr Watts, shed any light on the objective intent of the parties during negotiation of the 2013 Agreement as to how and with whom the negotiations are to “commence”. The evidence does no more than reveal the personal impressions and concerns of the delegates arising out of the 2013 Agreement negotiations with respect to the “chapterisation” of the agreement and the future implications of that change.
[75] It is RBAU’s submission that Clause 16 does not require it to begin negotiations with all of the unions. Rather, it is each of the parties that have agreed to commence negotiations. Paraphrasing RBAU’s argument, the clause does not state that all of the parties agree to commence negotiations with all of the other parties. I do not accept such a narrow construction of the clause. To do so would give the clause no work to do. It would on such a construction allow each of the parties to pick and choose with whom they were prepared to commence negotiations with. I do not accept that a plain reading of the words supports such a construction.
[76] It is also useful to consider the context in which the clause operates. There has been a succession of agreements negotiated between RBAU, its employees and the five unions. On the evidence before me, it is clear that previous negotiations were commenced and undertaken with all parties represented during previous bargaining rounds. The surrounding circumstances and context is, in my view, relevant to assisting resolve the meaning of Clause 16 with respect to with which parties bargaining for a new agreement must “commence”.
[77] While Clause 16 may not expressly state that RBAU agrees to commence bargaining for a new agreement with all of the parties to the 2016 Agreement, I am satisfied having regard to the context and surrounding circumstances that Clause 16 requires RBAU to “commence” negotiations for a new agreement with all parties, not merely those of its choosing. To read it otherwise would, in my view, lead to the clause having no purpose. It is an expressed collective intent of all of the parties to the 2016 Agreement to start the process of bargaining for a new agreement six months prior to the expiry of the 2016 Agreement. If such commencement of bargaining is not with each other, it begs the question with who and/or which organisations.
[78] It follows from the above that I am satisfied that RBAU is required to begin enterprise bargaining negotiations, in accordance with the scheme provided by the Fair Work Act 2009, for a replacement to the Agreement with all of those parties as set out in clause 4.3 of the Agreement. The answer to the Question 1 is therefore “yes”.
Question 2: If the answer to Question 1 is yes, has Robert Bosch (Australia) Pty Ltd met that obligation?
[79] Having answered Question 1 in the affirmative, I turn now to determine whether RBAU has met its obligation. Before considering that question, it is useful to briefly summarise events.
[80] RBAU contacted each of the five unions on 1 June 2018 and again on 2 July 2018 to arrange the first meeting for bargaining for a new agreement, the intended purpose of the first meeting being to deal with administrative and preliminary matters associated with the conduct of bargaining. It is evident that RBAU’s approach to initiating bargaining for a new agreement was consistent with the approach adopted by it in commencing negotiations for the 2016 Agreement.
[81] The first meeting was not held until 13 August 2018 with a further meeting then held on 11 September 2018 at which RBAU shared its log of claims. It was at the 11 September 2018 meeting that RBAU presented its claim for a narrower agreement scope than that provided for in the 2016 Agreement. Following the 11 September 2018 meeting, each of the five unions were afforded an opportunity to conduct paid meetings with their members to assist in the preparation and then submission of logs of claims.
[82] RBAU distributed NERRs to employees covered by the Manufacturing and Warehouse chapters of the 2016 Agreement on 15 October 2018, consistent with its stated objective of securing a new agreement with a narrower scope than the 2016 Agreement. Logs of claims were subsequently prepared and submitted by the AWU, AMWU, NUW and CEPU for a 30 October 2018 bargaining meeting. Through this period, it is clear that the unions including Professional Australia disputed RBAU’s claim for a narrower agreement scope for a new agreement and that the disputed agreement scope remained a threshold issue.
[83] RBAU have been consistent in their position of declining to bargain for a new agreement with an agreement scope consistent with the 2016 Agreement. Notwithstanding their unwillingness to bargain for an agreement with the scope sought by the Applicants, RBAU invited Professionals Australia officials and its site delegate to all bargaining meetings, invited them to provide a log of claims and also circulated minutes of all meetings to them.
[84] The Applicants contend that commencement of negotiations in accordance with the Act includes various elements: that it must be undertaken on a collective basis; requires that the negotiations must involve all five unions that are party to the 2016 Agreement; and finally, requires the distribution of NERRs to all employees covered by the 2016 Agreement. I do not accept the Applicants’ submissions that commencement of negotiation requires all the steps they have outlined for the reasons that follows.
[85] The 2016 Agreement does not define how the process is to commence. While I have already found that the commencement of the negotiations must be consistent with the Act, Clause 16 does not state that commencement of negotiations requires that RBAU agree to bargain for a new agreement with all of the unions. Nor does it state that RBAU must distribute NERRs to all employees that are covered by the 2016 Agreement. Such a construction would require reading into the clause terms that are not present.
[86] Guidance as to the meaning of the term “commence” in the context of the Applicants’ submissions may be found by reference to the Full Bench decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited 44 (Collinsville) where as part of that decision the Full Bench considered whether the distribution of NERRs marks the commencement of the negotiation process. The Full Bench found that it is not the case that the commencement of negotiations may only occur through the distribution of NERRs where they said:
“[41] The decision in Peabody concerned the validity of the notice considered in the context of an application to approve an agreement. The passage relied upon does not stand for a more general proposition that once an invalid notice is given then the issuing of a fresh notice of employee representational rights commences bargaining anew or afresh. Whether the whole process must begin anew depends on the circumstances and in particular, whether a valid notice can be given within the time prescribed after an employer agrees to bargain or initiates bargaining. The issuing of a representative rights notice to employees does not mark out the time at which bargaining for a proposed agreement commences, although it may do so if given contemporaneously with an agreement to bargain or the initiation of bargaining. Indeed a notice of employee representational rights may be given within a reasonable period before an employer has agreed to bargain or has initiated bargaining for an agreement.
[42] The CFMEU submitted that Collinsville agreed to bargain or initiated bargaining during the first week that the 21 employees began employment, namely between 28 and 31 January 2014 at which time it is suggested that the employees were each given a notice of employee representational rights during the on boarding program supervised by Mr Dave Olive. Even if that be correct, for the reasons given in the preceding paragraph, the issuing of a notice to employees of the representational rights does not mark the beginning of bargaining. Bargaining for an enterprise agreement, relevantly, begins when the employer agrees to bargain or initiates bargaining. Collinsville has said that it initiated bargaining on 4 February 2014 and the material relied upon by the CFMEU, provides no basis for concluding otherwise.” (emphasis added) 45
[87] In light of the above, I am not persuaded by the Applicants’ submissions that commencement of negotiations requires the distribution of NERRs. If that were the intent of the parties it could have been expressly stated. The step of distributing NERRs is a statutory requirement, however, while it may mark the commencement of negotiations in some circumstances it is not the case that it is only when NERRs have been issued that negotiations of a new agreement can be said to have “commenced”.
[88] As I have stated above, Clause 16 does not mandate how bargaining is to commence, although commencement of bargaining and the steps that follow must be consistent with the Act, lest the product of the bargaining (i.e. a new agreement) will be incapable of approval by the Commission.
[89] I am satisfied that commencement of bargaining occurs when an employer either “agrees” to or “initiates” bargaining under s 173 of the Act. It is clear enough, in my view, that RBAU initiated bargaining by its correspondence to each of the five unions, including Professionals Australia, on 1 June 2018. I am fortified in this conclusion by RBAU’s subsequent actions in arranging bargaining meeting dates, booking meeting rooms, facilitating paid meetings of the five unions with their members and encouraging the development and submission of logs of claims. In my view, it is not possible to reconcile those subsequent actions with a conclusion that the negotiations for a new agreement had not been initiated.
That RBAU may have adopted a bargaining position of pursuing an agreement scope narrower than the 2016 Agreement does not alter my view that it has complied with its obligations under the 2016 Agreement. The scope of an agreement is a matter for bargaining, a position apparently accepted by all parties to the dispute. Where disagreement over the scope of an agreement persists during bargaining aggrieved parties are able to make relevant applications for resolution of such disputes under the Act, be that via a majority support determination under s 236 of the Act or scope order under s 238 of the Act.
[90] I am satisfied that commencement of negotiations in accordance with the Act required by Clause 16 requires RBAU to “initiate” or “agree” to bargain. I am further satisfied that RBAU has initiated bargaining with all five of the unions. It follows that RBAU has met its obligation to begin enterprise bargaining negotiations, in accordance with the scheme provided by the Fair Work Act 2009, for a replacement to the Agreement with all of those parties as set out in clause 4.3 of the Agreement. The answer to Question 2 is therefore “Yes”.
Question 3: Does clause 16 provide for, limit, or restrict the final scope of the agreement which may replace the 2016 Agreement?
[91] Both parties agreed that clause 16 does not provide for, limit or restrict the final scope of the agreement which may replace the 2016 Agreement, a position with which I agree. It is therefore unnecessary for me to determine the question.
Conclusion
[92] For the foregoing reasons, the questions to be determined are answered as follows:
1) Does clause 16 require Bosch to begin enterprise bargaining negotiations, in accordance with the scheme provided by the Fair Work Act 2009, for a replacement to the Agreement with all of those parties as set out in clause 4.3 of the Agreement?
The answer is “Yes”
2) If the answer to Question 1 is yes, has Robert Bosch (Australia) Pty Ltd met that obligation?
The answer is “Yes”
3) Does clause 16 provide for, limit, or restrict the final scope of the agreement which may replace the 2016 Agreement?
Both parties agreed that the answer to this question is “No” and that it was unnecessary for the Commission to determine the question.
[93] The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
S Riches on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
J Gardner on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
T Fooks on behalf of The Association of Professional Engineers, Scientists and Managers, Australia.
S Bonica on behalf of The Australian Workers’ Union.
S Caylock on behalf of the Respondent.
Hearing details:
2019
Melbourne
11 February.
Printed by authority of the Commonwealth Government Printer
<PR707303>
1 PR578640.
2 PR995790.
3 PR537586.
4 PR578640.
5 Exhibit R1, Witness Statement of Ms Jess Sherlock, dated 4 February 2019, Attachment 1.
6 Ibid, Attachment 2.
7 Transcript at PN122-PN123.
8 Ibid, Attachment 4.
9 Ibid at paragraph [13].
10 Ibid, Attachment 5.
11 Ibid at paragraph [17].
12 Ibid, Attachment 6.
13 Ibid, Attachment 7.
14 Ibid.
15 Ibid at paragraph [21]-[22].
16 Ibid at paragraph [2], Attachment 8.
17 Applicant Submissions dated 18 January 2019 at paragraph [17].
18 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[2017] FWCFB 3005 at [114].
19 Exhibit A1, Witness Statement of Mr. Shannon Crundwell, dated 18 January 2019.
20 Exhibit A2, Witness Statement of Mr. Malcolm Watts, dated 18 January 2019.
21 Exhibit A1 at paragraph [6], Exhibit A2 at paragraph [10].
22 Exhibit A2 at paragraph [11].
23 Exhibit A1 at paragraph [11].
24 Exhibit A2 at paragraph [19].
25 Ibid at paragraph [18].
26 Exhibit R1 at paragraph [5].
27 Ibid at paragraph [5].
28 Ibid at paragraph [6].
29 Ibid.
30 Ibid at paragraph [8].
31 Ibid at paragraph [26].
32 Ibid, Annexure 10.
33 Transcript at PN196.
34 Transcript at PN196 – PN198.
35 [2017] FWCFB 3005 at [114].
36 [2017] FWCFB 4487.
37 [2014] NSWCA 184 at [71] – [85].
38Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.
39Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].
40Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].
41Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing) and Dale v The Queen [2012] VSCA 324 at [73].
42Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].
43 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].
44 [2014] FWCFB 7940.
45 Ibid at Paragraph [41]-[42].
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