Construction, Forestry, Mining and Energy Union v EnergyAustralia Yallourn Pty Ltd T/A EnergyAustralia

[2017] FWC 2298

[2017] FWC 2298 [Note: This decision has been quashed - refer to Full Bench decision dated 10 July 2017 [[2017] FWCFB 3574]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
EnergyAustralia Yallourn Pty Ltd T/A EnergyAustralia
(C2016/6167)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 APRIL 2017

Application to deal with a dispute.

[1] On 15 October 2016, the Construction, Forestry, Mining and Energy Union (CFMEU) filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute.

[2] The CFMEU purports to bring the application under clause 28 – Dispute Resolution Process of the EnergyAustralia Yallourn Enterprise Agreement 2013 (the Agreement). The Agreement was approved by the Commission on 28 November 2013 and commenced operation on 5 December 2013.

[3] The dispute concerned the interpretation of clause 32.17 of the Agreement which deals with Transitional Cross-Stage Training Arrangements.

[4] The dispute was the subject of a conference convened by me with discussions between the parties but these failed to resolve it. Accordingly, on 23 November 2016, I caused directions to be sent to the parties for the filing of material in relation to the dispute ahead of the hearing on 9 February 2017.

[5] At the hearing, Mr G South appeared for the CFMEU while Mr B Avallone of Counsel was granted permission to represent EnergyAustralia Yallourn Pty Ltd (EnergyAustralia).

[6] Witnesses giving oral testimony for the CFMEU included Mr Ashley Schoer, Mr Adrian Klose and Mr John Martin. This was in addition to their statements and, in Mr Schoer’s case, supplementary statement. The CFMEU also tendered witness statements from Mr John Eason and Mr Duncan MacGregor, both of whom were not required for cross-examination. The CFMEU also filed a written Outline of Submissions and Submissions in Reply prior to the hearing and Final Submissions following it.

[7] Witnesses giving oral testimony for EnergyAustralia, in addition to their statements, were Mr Dale Hogarth, Mr Justin Felsbourg and Mr Graeme Collis. EnergyAustralia filed a written Outline of Submissions and, following the hearing, Closing Submissions.

Clause 32.17 of the Agreement

[8] As indicated, the focus was on resolving the dispute in relation to the interpretation of Clause 32.17 of the Agreement, which provides:

“32.17 TRANSITIONAL CROSS-STAGE TRAINING ARRANGEMENTS

All personnel currently in the PC1 to PC3 classifications will be provided the opportunity to declare their intent to complete cross-stage training. This will be done as part of the PDP process. Those individuals who choose not to declare a commitment to cross-stage train will be immediately classified into the pay classification commensurate with the skills currently possessed. All others will maintain at their current pay rate and have their cross-stage training commitments recorded in their PDP.

The Company will provide a scheduled training program identifying when the training will be provided.

Individuals moving to an AUC or UC level who have not previously completed the structured training course will be provided a structured training course. The program will be a two week course run as 4 x 9 hour days per week on day work.

On completion of the structured training program all individuals will be required to consolidate the training. Each individual will be rostered for 2 shift rounds on the new stage for this consolidation.

• Those at AUC level will be rostered for an additional 2 rounds in an AUC role by which time they will be expected to be deemed competent and have successfully completed the training, resulting in reclassification.



• Those moving to UC level will be rostered for an additional 3 months in a UC role by which time they will be expected to be deemed competent and have successfully completed the training, resulting in reclassification.

It is expected individuals will utilise opportunities to consolidate their newly acquired skills where appropriate.

Where a person has failed to complete the cross-stage training, in the process described above, they will be reclassified immediately into the pay classification commensurate with the skills possessed and they will be rostered for 3 shift rounds in the alternate stage to retrofit the skills required in their new pay classification after which they will be deemed competent.”

[9] More specifically, the CFMEU contention was that the question to be determined by the Commission, to which the answer should be “no”, was:

“Having regard to the terms of the Agreement does the term ‘structured training course’ in sub-clause 32.17 permit the employer to depart from the specified forms of instruction contained in the sub-clause. In particular can a period of peer-based mentoring be used as a legitimate substitute for a dedicated two week training course conducted during day work?”  1

[10] EnergyAustralia’s contention was that the question to be determined in relation to Clause 32.17 of the Agreement was:

“Is EnergyAustralia Yallourn Pty Ltd (EnergyAustralia) required by clause 32.17 of the EnergyAustralia Yallourn Enterprise Agreement 2013 (the Agreement) to provide a structured training course to Ashley Schoer, a Unit Contoller who has held that position since approximately 2008?”  2

[11] In its final submissions, the CFMEU stated “[t]he applicant’s position is that the meaning of sub-clause 32.17 of the Agreement is clear and unambiguous. The plain and ordinary meaning of the words appearing in sub-clause 32.17 oblige the company to provide the cross-stage training Ashley Schoer has requested in the manner the clause specifically prescribes.”  3

Background

[12] The Yallourn Power Station consists of four coal fired power generating units. Units 1 and 2 are known and referred to as Stage 1 and Units 3 and 4 are known and referred to as Stage 2. Up until approximately 2002, the operation panels used to operate the Units for Stages 1 and 2 were located in separate rooms.

[13] Unit Controllers (UCs), Assistant Unit Controllers (AUCs), Unit Attendants (UAs) and Power Workers (PWs) are the operators who monitor and control the units. To work in a role operating a unit, all operators are required to hold a licence to perform high risk work. Training and assessment for such a licence is carried out by a registered training organisation according to requirements of the National Standard for Licensing Persons Performing High Risk Work.

[14] Originally, UCs and AUCs worked on one stage only. While the expectation changed, such that they were to become capable of working across both Stages, this was not driven by management during the life of the two enterprise agreements that immediately preceded the Agreement, even though a new classification structure had been introduced. The Stage 1 and Stage 2 Units are now located in and operated from the same control room and during negotiations for the Agreement in 2013, Clause 32.17 was introduced. Its purpose appears to have been to more specifically address cross-stage training.

[15] At the hearing, Mr Hogarth was the only witness to give evidence regarding the insertion of Clause 32.17 into the Agreement. He said that during the negotiations, both parties agreed cross-stage training needed to be completed so operators could be rostered across both Stages as required. The first version of wording for Clause 32.17 appeared to contemplate that a structured training program would be provided to all Operations personnel in the AUC and UC ranks but the response of EnergyAustralia was to seek some changes so that the proposed cross-stage training arrangements would not apply to all operators, but instead be limited to those “who have not done the training yet.” 4

[16] Following further discussion, Mr Hogarth drafted a new version of the proposed Clause 32.17 which essentially reflected the wording now found in the Agreement.

[17] It was common ground that in 2003, Mr Schoer completed an AUC course. EnergyAustralia submitted that course included cross-stage training in Stage 1 and 2 Units which is sufficient to satisfy the requirements of the third paragraph of Clause 32.17. Mr Schoer disputes this. He said the 2003 training was provided for the purpose of initial training in the AUC role. He also the theory component of the 2003 training was not provided for the purpose of moving from one stage to the other, there was no consolidation of it and he was only ever rostered on the Stage 1 Unit at the end of the course.

[18] As to the 2012 training, EnergyAustralia submitted it qualifies as the structured training course within the meaning of clause 32.17 as it:

• included one-on-one training;



• consisted of the same, if not more, hours of supervised training as the training other employees had received on a small group basis; and



• included time for Mr Schoer’s revision of the training materials.

[19] EnergyAustralia also submitted the 2012 training was one of a number of different pathways through which cross-stage training was completed. However, taking the contrary view, the CFMEU submitted cross-stage training was not completed. It claims there was an absence of proper training records, with the ‘Etivity’ records said to demonstrate the training unreliable and not reflective of what actually occurred.

Submissions of the CFMEU – Clause 32.17

[20] In the presentation of its case, the CFMEU submitted two main arguments in support of its construction of Clause 32.17:

1. Given its ordinary, grammatical meaning, Clause 32.17 requires EnergyAustralia to provide training to Operator personnel transitioning from one stage to another in a structured training course. This involves giving form or organisation to the development of certain skills through a systematic, ordered and formal process of instruction. Such course is comprised of:

• A two week course run as 4 x 9 hour days per week on day work, followed by



• Consolidation training in the new stage consisting of 2 shift rounds, followed by



• An additional 2 rounds in an Assistant Unit Controller role, followed by



• An additional 3 months in a Unit Controller role (for those moving to Unit Controller).

2. In the alternative, if it is held that Clause 32.17 is ambiguous as to the meaning of a structured training course, then it is permissible to have regard to the relevant extrinsic material to determine whether there is an ambiguity and to resolve such ambiguity. In such circumstances, an important aid is the custom and practice in delivery of the structured training course.

[21] The CFMEU further submitted that as a matter of grammatical construction, the essential obligation on the part of EnergyAustralia contained in the clause is straightforward, being to provide training to Operators to enable them to transition from one stage to another. The CFMEU relied on various dictionary definitions in submitting the plain meaning of structured training course is: “to give form or organisation to the development of certain skills through a systematic, ordered and formal process of instruction.”

[22] The CFMEU also submitted:

• When read in the context of the requirement in Clause 32 of the Agreement for there to be a level of certainty, Clause 32.17 sets out the steps for cross stage training in specific and prescriptive detail in order to provide the specified certainty;



• The requirement for a “specific training plan” separate from “generic training” in Clause 30.1 of the Agreement further supports the plain meaning of “structured training course”;



• The use of the words “fully trained” and “as detailed in” in relation to the reference to “Transitional Cross-Stage Training Arrangements” in Clause 32.18 of the Agreement further support and are consistent with, the plain meaning of the term “structured training course” and support, and are consistent with, the detailed training plan provided for in Clause 32.17.

[23] In support of its alternative submission, if the Commission was to form the view Clause 32.17 is ambiguous, the CFMEU submitted consistent with The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 5 (Golden Cockerel), it would be permissible to have regard to certain extrinsic material going to the mutual intentions of the parties in attempting to interpret these clauses. In this regard, it submitted there is evidence of past and current custom and practice, which show the shared mutual intent for Clause 32.17.

[24] In this regard, the CFMEU cited the example of Mr Martin, Unit Controller, who:

• Had a similar training history to Mr Schoer, receiving the same training in 2003 but only working on Stage 2; and



• Commenced the theory component of a structured training course in November 2016 comprised of a two week course run as 4 x 9 hour days per week on day work, followed by consolidation training in the new stage consisting of 2 shift rounds, to be followed by an expected additional 2 rounds in an Assistant Unit Controller role in order to complete his training as an AUC in Stage 1.

[25] The example of Mr Eason was also cited, as were requirements under the National Standard for Licensing Persons Performing High Risk Work for “structured training” and “practical training and experience.”

[26] In its Final Submissions, the CFMEU asserted Clause 32.17 was introduced into the Agreement with the purpose of making the requirements for cross-stage training clear and unambiguous, as well as ensuring it was completed. This purpose, it said, was reflected in the highly prescriptive language used in Clause 32.17.

[27] The CFMEU submitted the plain meaning of each paragraph was as follows:

a) The first paragraph is contextual, reinforcing the opportunity provided is for the purpose of cross-stage training;

b) The second paragraph confirms the obligation to provide a training program and a schedule of when it will be provided. It does not provide a discretion as to how the program must be delivered;

c) The third paragraph must be read within the general context of the provision of structured cross-stage training in providing for operators at AUC and UC level who have declared the intent to move to the opposite stage, and who have not previously completed the structured training course to be provided such a structured training course to enable them to do so. It then provides that this is a two week course run as 4 x 9 hour days per week on day work;

d) The third paragraph goes on to provide for consolidation that must follow completion of the structured training program and implicit in the words “On completion” is that the consolidation must follow immediately after the completion of the two week course;

e) The fourth paragraph provides for further consolidation where opportunities arise; and

f) The final paragraph makes it plain that the complete process described must be completed in order for an operator to be considered cross-staged trained and outlines what happens if it is not.

[28] It was asserted by the CFMEU that “the nub of the issue” is whether EnergyAustralia has an obligation to provide the cross-stage training referred to in Clause 32.17 in the manner prescribed. Whether some operators have in the past been cross-staged trained using a different path, what Mr Schoer did or did not do in his personal time and whether previous accommodations were made for him are, in the submission of the CFMEU, not relevant.

[29] As to the UAC course Mr Schoer undertook in 2003, the CFMEU submitted it was 13 years ago, was not provided for the purpose of cross-stage training and falls outside the scope of the cross-stage training envisaged in Clause 32.17. It also claimed the 2012 course relied on by EnergyAustralia was not completed and highlighted the failure of EnergyAustralia “to provide any proper training records covering the disputed period.” 6

Submissions of EnergyAustralia – Clause 32.17

[30] In its Outline of Submissions, EnergyAustralia submitted that the only dispute properly before the Commission, as a result of having gone through the dispute resolution clause in Clause 28.1 of the Agreement, is whether it is required by Clause 32.17 to provide the structured training course to Mr Schoer. Its position is that the answer to that question is “No”, such that its only obligation to Mr Schoer is to provide a scheduled training program and advise him when it will be provided.

[31] As to the content of the scheduled training program, EnergyAustralia submitted this is a matter for its discretion, having regard to Mr Schoer’s training, skills and experience.

[32] EnergyAustralia submitted the construction of an enterprise agreement begins with a consideration of the ordinary meaning of its words, with regard paid to the context and purpose of the provision or expression being construed. Context, it was said, may appear from the text of the agreement taken as a whole, its arrangement and the place occupied by the clause in question. 7 In referring to the principles relating to the interpretation outlined in Golden Cockerel, EnergyAustralia submitted the legislative context was also a relevant consideration and therefore, the objects of the Act favour a construction of industrial instruments that will operate fairly to both sides and foster a co-operative workplace environment.8

[33] EnergyAustralia said the relevant context was that structured cross-stage training had been part of the UAC course since 2003, cross-stage training includes not only structured training but also the consolidation training that is completed on the job.

[34] The clear and unambiguous meaning of Clause 32.17 was said by EnergyAustralia to be:

a) the first paragraph requires employees who are translating from the old PC1-PC3 classifications to commit to complete their cross-stage training – if they did not make such a commitment their classification would drop to the relevant level without cross-stage competency;

b) the second paragraph requires EnergyAustralia to “provide a scheduled training program identifying when the training will be provided.” Subject to the third paragraph – and if thethird paragraph applies, then also the fourth paragraph – the second paragraph leaves to thediscretion of EnergyAustralia the content and timing of the “scheduled training program”;

c) paragraphs three and four only apply to “Individuals moving to an AUC or UC level who have not previously completed the structured training course…”. For those employees(and those employees only), a two week course (run as 4x9 hour days per week on daywork), followed by consolidation training of two shift rounds;

d) individuals are expected to utilise opportunities to consolidate cross-stage skills where appropriate; and

e) if an individual does not complete cross-stage training, they will drop to the relevant level without cross-stage competency.

[35] The current dispute was said to particularly concern the words “structured training course” in the opening words of the third paragraph of Clause 32.17: “Individuals moving to an AUC or UC level who have not previously completed the structured training course…” which EnergyAustralia submitted, having regard to various dictionary definitions, mean “a system with form or structure, to develop a person’s skills, habits and attitudes.” EnergyAustralia submitted that if a person had already undergone such training when the 2013 Agreement commenced operation, then the third and fourth paragraphs of Clause 32.17 would not apply.

[36] EnergyAustralia also submitted the words of Clause 32.17 of the Agreement were clear and it was not necessary to go beyond the words of the clause to examine the surrounding circumstances to construe its meaning. However, it submitted that if regard was to be had to the surrounding circumstances, this would confirm that not all UCs and AUCs are required to undergo the two-week training course referred to in Clause 32.17. In this regard it submitted the initial draft clause claimed by the CFMEU sought that all UCs and AUCs would be required to undergo a structured training course, regardless of whether or not they had already completed such a course, but agreement was reached on a clause that acknowledged that if employees had already completed the relevant training, there was no need to do so again.

[37] It was the position of EnergyAustralia that taken individually, the 2003 and 2012 cross-stage training undertaken by Mr Schoer satisfy the requirement in the third paragraph of Clause 32.17 for a “structured training course” and the two courses, viewed collectively, satisfy the requirements of the third paragraph of clause 32.17.

[38] In closing submissions, EnergyAustralia submitted the question it identified in paragraph [10] above turns on the proper interpretation of the third paragraph of Clause 32.17, which has two elements, relating to periods before and after the Agreement commenced:

• As regards the period before the Agreement commenced, the paragraph is enlivened if the AUC/UC is a person who has “not previously completed the structured training course”; and



• if the employee is such a person, in the future (ie after the commencement of the Agreement), that employee “will be provided a structured training course” and the program “will be a two week course run as 4x9 hour days per week on day work.” (emphasis added)

[39] It was submitted the Agreement does not prescribe “the structured training course” required for the period prior to the commencement of the Agreement but the evidence revealed there were a number of different pathways to completing cross-stage training prior to November 2013, including the training Mr Schoer received in 2003 (which included cross-stage training in Stage 1 and Stage 2 Units) and 2012. EnergyAustralia submitted it is not obliged to provide Mr Schoer with another structured training course because these instances satisfied the intended meaning of "the structured training course" at the time the Agreement was made, such that the third paragraph of clause 32.17 does not apply to him.

[40] EnergyAustralia asserted the only relevant obligation imposed upon it is the obligation in the second paragraph of clause 32.17 to “provide a scheduled training program identifying when the training will be provided”, the contents of which was left to its discretion.

[41] As to the material before the Commission, EnergyAustralia submitted:

• Mr Hogarth’s evidence going to the surrounding circumstances of the Agreement and its negotiation was unchallenged;



• no weight should be given to the evidence given by witnesses for either party that simply conveyed their opinion regarding whether the cross-stage training received by Mr Schoer prior to the commencement of the Agreement satisfied the third sentence of the Clause 32.17;



• there was no reason why one sides’ witnesses’ evidence should be preferred over the others. The various witnesses’ opinions went both ways and cancelled one another out; and



• the events of 2016 were irrelevant.

[42] EnergyAustralia submitted that read in context, Clause 32.17 has a plain meaning. It summarised the context as follows:

a) theory, simulator and plant-based training on both of Stages 1 and 2 was part of the AUC course that Mr Schoer completed in 2003;

b) cross-stage training includes consolidation training that is completed on the job, at some stage after the cross-stage training course, in order to become cross-stage competent;

c) in 2013 many Operators had only become competent in one Stage despite the expectation (reflected in the 2004 and 2008 Agreements) that UCs and AUCs would be able to work across both Stages;

d) the union and the company expressly acknowledged as part of the 2013 Agreement negotiations that cross-stage training of Operators needed to be completed so that Operators could be rostered across both Stages;

e) some Operators, however, were already cross-stage trained and did not require further cross-stage training; and

f) prior to November 2013 (when the 2013 Agreement commenced operation) there had been several pathways taken by Operators to become cross-stage trained.

[43] Having regard to that context, the Closing Submission of EnergyAustralia as to the plain and unambiguous meaning of each paragraph of clause 32.17 was largely a repeat of what it had put in its Outline of Submissions (see paragraph [34] above).

[44] In concluding, EnergyAustralia submitted:

• Mr Schoer was not the only person to have undertaken a different pathway to becoming cross-staged trained;



• Taken individually, the 2003 training and 2012 cross-stage training satisfies the requirement of the third paragraph of Clause 32.17 for “a structured training course”;



• Further, and in the alternative, the two courses, viewed collectively, satisfy the requirements of the third paragraph of Clause 32.17;



• Mr Schoer has completed the structured training course referred to in the third paragraph of clause 32.17 of the Agreement. That being the case, there is no need for EnergyAustralia to now offer him a place on the post-2013 course;



• Having committed to complete his cross-stage training, it is appropriate that Mr Schoer engage in consolidation training as set out in the training matrix prepared by EnergyAustralia in May 2016 consistent with the second paragraph of clause 32.17; and



• It is not, however, necessary that Mr Schoer undergo a further two week training course, and the content of his future training schedule is a matter for the discretion of EnergyAustralia.

Relevant Legal Principles

[45] The principles relating to the interpretation of enterprise agreements are set out inthe passage below from Golden Cockerel:

“[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.”

Consideration of Clause 32.17 of the Agreement

[46] It is useful to again outline Clause 32.17:

“32.17 TRANSITIONAL CROSS-STAGE TRAINING ARRANGEMENTS

All personnel currently in the PC1 to PC3 classifications will be provided the opportunity to declare their intent to complete cross-stage training. This will be done as part of the PDP process. Those individuals who choose not to declare a commitment to cross-stage train will be immediately classified into the pay classification commensurate with the skills currently possessed. All others will maintain at their current pay rate and have their cross-stage training commitments recorded in their PDP.

The Company will provide a scheduled training program identifying when the training will be provided.

Individuals moving to an AUC or UC level who have not previously completed the structured training course will be provided a structured training course. The program will be a two week course run as 4 x 9 hour days per week on day work.

On completion of the structured training program all individuals will be required to consolidate the training. Each individual will be rostered for 2 shift rounds on the new stage for this consolidation.

• Those at AUC level will be rostered for an additional 2 rounds in an AUC role by which time they will be expected to be deemed competent and have successfully completed the training, resulting in reclassification.



• Those moving to UC level will be rostered for an additional 3 months in a UC role by which time they will be expected to be deemed competent and have successfully completed the training, resulting in reclassification.

It is expected individuals will utilise opportunities to consolidate their newly acquired skills where appropriate.

Where a person has failed to complete the cross-stage training, in the process described above, they will be reclassified immediately into the pay classification commensurate with the skills possessed and they will be rostered for 3 shift rounds in the alternate stage to retrofit the skills required in their new pay classification after which they will be deemed competent.”

[47] Having regard to the second principle in Golden Cockerel, I must firstly determine “whether an agreement has a plain meaning or contains an ambiguity.” The primary position of both parties was that Clause 32.17 has a plain meaning and my reading of Clause 32.17 leads me to the same conclusion.

[48] I consider the words of Clause 32.17 of the Agreement have a plain meaning and there is no ambiguity. Mr Hogarth’s evidence regarding the Agreement’s negotiation process and drafting does not persuade me otherwise. I noted Mr Hogarth drafted the version of Clause 32.17 that appears in the Agreement and that it was a result of a discussion with Mr Geoff Aitken of the CFMEU that took place after an initial discussion they had regarding an earlier, different version of the clause.

[49] The practical effect of the provision is that when personnel currently in the PC1 to PC3 classifications declare their intent to complete cross-stage training, they will be provided with a scheduled training program identifying when it will be provided.

[50] The third paragraph must be read as a whole. The use of the term “the structured training course” (my emphasis) in the first sentence of the third paragraph is telling. If an individual moving to an AUC or UC level has not previously completed “the structured training course”, the first sentence requires they be provided with one. The second sentence defines what “the structured training course” referred to in the first sentence is: a two week course run as 4 x 9 hour days per week on day work. The result is that if Mr Schoer, being an individual moving to an AUC or UC level, has not previously completed “the structured training course” as defined in the second sentence of the third paragraph, he is to be provided it.

[51] I accept a different interpretation might result from the first sentence reading, for example:

• “Individuals moving to an AUC or UC level who have not previously completed a structured training course…”; or



• “Individuals moving to an AUC or UC level who have not previously completed structured training…”; or



• “Individuals moving to an AUC or UC level who have not previously completed cross-stage training…” (my emphasis)

In such scenarios, if some sort of training had previously been provided and completed, there would be no obligation to offer nor a requirement to complete the program described in the second sentence of the third paragraph. It is the use of the word “the” in the phrase “the structured training course” that is, in my view, decisive.

[52] The fourth paragraph of Clause 32.17 outlines the requirement and process for consolidation of “the structured training program” established in the third paragraph. The wording of it indicates that the gateway to the consolidation is the completion of “the structured training program,” as opposed to other forms of training. Finally, the last paragraph of Clause 32.17 outlines that reclassification is the consequence of the failure to complete “the cross-stage training, in the process described above,…”. This further suggests to me that Mr Schoer, who has not completed cross-stage training, is required to complete it in accordance with the process outlined in paragraphs three, four and five of Clause 32.17 in order to avoid reclassification, not by some other process.

[53] Notwithstanding the volume of evidence in this case concerning the nature and extent of the training Mr Schoer had undertaken and the circumstances surrounding it and Mr Hogarth’s evidence going to the surrounding circumstances of the Agreement and its negotiation, there is no basis for me to admit evidence of these matters to contradict the plain language of the Agreement. I draw on the fourth principle articulated in Golden Cockerel in this regard because I have found Clause 32.17 has a plain meaning and there is no ambiguity.

[54] Although the parties have outlined the question to be determined in different terms, they both framed it as a question pertaining to the circumstances of Mr Schoer and his entitlement to training. I have had regard to this and consider the s.739 application filed by the CFMEU for the Commission to deal with a dispute in accordance with Clause 28 of the Agreement requires me to determine whether, in providing training to Mr Schoer for the purpose of him completing cross-stage training, EnergyAustralia is permitted to depart from the two week course run as 4 x 9 hour days per week outlined in Clause 32.17. I find that it is not.

Conclusion – Clause 32.17 of the Agreement

[55] I find that Clause 32.17 of the Agreement has a plain meaning and requires EnergyAustralia to provide Mr Schoer with a two week cross-stage training course run as 4 x 9 hours per day on day work, together with the consolidation Clause 32.17 requires upon its completion.

DEPUTY PRESIDENT

Appearances:

Mr G South for the Construction, Forestry, Mining and Energy Union.

Mr B Avallone of Counsel for EnergyAustralia Yallourn Pty Ltd.

Hearing details:

2017.

Melbourne:

February 9.

 1   Exhibit A7 - paragraphs [2] and [3].

 2   Exhibit R8 – paragraph [1.1] and EnergyAustralia’s Closing Submissions dated 2 March 2017 – paragraph [1.1].

 3 CFMEU’s Final Submissions – paragraph [2].

 4   Exhibit R4 – Attachment DH4.

 5   [2014] FWCFB 7447.

 6 CFMEU’s Final Submissions – paragraph [17].

 7   In this regard, EnergyAustralia cited City of Wanneroo v ASU [2006] 153 IR 426 at 438 a [53] per French J; Amcor Ltd v CFMEU (2005) 214 ALR 56 at [2] per Gleeson CJ and McHugh J; ANMF v Eastern Health [2013] FCAFC 137 at [11].

 8   CFMEU v Spotless Facility Services Pty Ltd[2015] FWCFB 1162 at [15].

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