CPSU, the Community and Public Sector Union and anothervCivil Aviation Safety Authority
[2012] FWA 5558
•29 JUNE 2012
[2012] FWA 5558 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
CPSU, the Community and Public Sector Union and another
v
Civil Aviation Safety Authority
(C2012/326 and 3018)
COMMISSIONER DEEGAN | CANBERRA, 29 JUNE 2012 |
Dispute arising under an enterprise agreement; dispute settlement clause; interpretation and application of enterprise agreement clause; context of clause; pay point progression
[1] On 13 March 2012 the Australian Licensed Aircraft Engineers Association (the ALAEA), lodged an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) on behalf of Mr Mark Hinchcliffe who is a member of ALAEA. The application requested that Fair Work Australia (FWA) deal with a dispute in accordance with a dispute settlement procedure in the Civil Aviation Safety Authority Enterprise Agreement 2010-2011 1 (the 2010 Agreement). The dispute relates to the interpretation and application of clause 19.1 of the 2010 Agreement. On 2 April the CPSU, Community and Public Sector Union (the CPSU) lodged an application in similar terms relating to the same provision.
[2] At the request of the parties the two disputes were dealt with together. Conciliation took place on a number of occasions in April and May 2012. However, as no resolution was forthcoming, consistent with the dispute settlement procedure in clause 10 of the 2010 Agreement, and s739(4) of the FW Act, the matter was listed for arbitration. The parties exchanged and filed an outline of submissions and witness statements prior to the hearing.
[3] At the hearing on 1 June 2012 the ALAEA was represented by Mr L Amos, and the CPSU was represented by Mr K Barlow. Mr Harrington, of counsel, was granted permission to appear for the employer. Mr Rule, a CASA employee also appeared for the employer.
The Clause
[4] The dispute that is the subject of both applications relates to the interpretation and application of clause 19.1 of the 2010 Agreement. Both the CPSU and the ALAEA contend that the clause has been incorrectly applied by CASA. This contention is based on CASA’s decision not to permit pay point progression to two employees, Mr Hinchcliffe and Ms Bitossi who, the Unions submit, are entitled to such progression under the clause. Clause 19.1 provides:
19.1 An employee will progress 1 pay point from 1 October each year where the employee:
19.1.1 is not already at the top increment for their classification;
19.1.2 has been at their existing increment for at least 6 months from 1 January in the relevant year; and
19.1.3 has been assessed under the PACS as at least “on target”
[5] It was submitted by the CPSU and the ALAEA that the words in the clause are unambiguous and should be given their plain and ordinary meaning. According to the CPSU the clause:
allows an employee who has been at their existing pay point for 6 months from January to 1 October of the relevant year to obtain pay point progression.
[6] CASA contends that they have at all times complied with the terms of clause 19.1. In relation to decisions that did not provide pay point progression to certain employees, including Mr Hinchcliffe and Ms Bitossi, CASA submits that the critical word in 19.1.2 is ‘from’, and that this word is used to ‘anchor the commencement of the six month period’ 2 in the PACS cycle, that is, the employee has to be in their current pay point on and from 1 January of the relevant year.
[7] In response to this contention, the CPSU submits that “(t)o adopt the construction advanced by CASA would be to read into clause 19.1.2 words restricting the operation of the clause which are plainly not relevant” 3.
Origins of the dispute
[8] A witness statement 4 was filed by Samantha Marie Bitossi in support of the CPSU case. Ms Bitossi was not required for cross-examination. It was Ms Bitossi’s evidence that she had been employed by CASA since 2007 and was appointed to a new position on 10 March 2011. According to her evidence, although she was assessed as “above target” in her performance assessment in July 2011, she was not advanced a pay point on 1 October 2011. She had raised the issue of the failure to be advanced with her immediate managers and the CASA People and Performance section. She was advised that she was not eligible to be advanced as she had not been in her new position at 1 January 2011.
[9] Mr Mark Hinchcliffe filed a witness statement 5 in support of the ALAEA case. He was not required for cross-examination. Essentially his evidence was similar to that of Ms Bitossi. He had commenced employment with CASA on 14 February 2011. He had been assessed as “on target” in his performance appraisal. He had not been advanced a pay point on 1 October 2011. He had raised this matter with his supervisor and staff of the CASA People and Performance Team and he had then raised the matter with his union, the ALAEA.
[10] It was admitted by CASA that in respect of both Ms Bitossi and Mr Hinchliffe, that neither employee had been progressed to the next pay point on 1 October 2011 because each employee was not, in 2011, at “their existing increment for at least 6 months from 1 January”, as required by clause19.1.2 of the Agreement 6.
Historical context
[11] Each party to the dispute submitted that where the term of an industrial instrument is ambiguous, it is appropriate to look at the history of the relevant provision for the purposes of construction and any contemporaneous extrinsic evidence that may establish the objective knowledge of the parties at the time the instrument was made.
[12] To this end, the CPSU filed a witness statement 7 that was made by Mr Kim Barnes, a CPSU industrial officer. Mr Barnes was not required for cross-examination. It was the evidence of Mr Barnes that negotiations were conducted with CASA for a new enterprise agreement throughout 2005. During this time, CASA sought to introduce performance based pay and a common advancement date for all staff. Attached to Mr Barnes statement were documents which set out a draft of the proposed scheme at March 20058 (the first draft PACS document) and about December 2005 (the second draft PACS document)9.
[13] In this respect, Mr Barnes’ evidence was consistent with that of Mr Michael David Whitfield, who filed a statement 10 in support of CASA’s case. Mr Whitfield, Manager, Strategic Projects within the CASA People and Performance Branch, commenced employment with CASA in March 2004 and, until June 2009 held the position of Manager, Workplace Relations. After a period of leave from June 2009 until January 2010 he returned to work in his current role. Mr Whitfield was cross examined at the hearing. It was Mr Whitfield’s evidence that:
- Negotiations took place for an enterprise agreement in 2005. Prior to this time pay point progression was received by employees each year on the anniversary of their appointment;
- During the time that the negotiations for the certified agreement were taking place, a number of drafts were exchanged relating to the implementation of a Performance Appraisal and Communication Scheme (PACS), the creation and implementation of which was to form a integral part of pay point progression in the agreement that was eventually approved by employees and certified in February of 2006 11. This agreement was known as The Civil Aviation Safety Authority Certified Agreement 2006 - 2008 (the 2006 Agreement);
- During 2005 and 2006, in relation to PACS, the following occurred:
- The date identified in the 2006 Agreement as the common pay point progression date for all employees at clause 24.1 was 1 October. This clause also referred to the PACS which was introduced in clause 25 of the Agreement;
- Clause 24.1 was reproduced in the 2008 - 2010 Agreement 12 at clause 20.1 in identical terms. Clause 20.1 was reproduced in the 2010 Agreement in clause 19.1 with additional wording added to sub clause 19.1.2. Mr Whitfield was unable to comment on why the amendment to the wording in 19.1.2 (previously 20.1 (ii)) was made as he was not involved in the process;
- Since the introduction of PACS in 2006, CASA has administered the scheme on the basis that no employee is eligible for pay point progression on 1 October unless the employee has accrued 6 months of service at current level in the PACS cycle (1 July to 30 June) in the relevant year.
the first draft PACS document was provided by CASA in March 2005 identifying a common increment pay point progression date for all employees. This was proposed to be 1 August;
the second draft PACS document was provided by CASA in December 2005. In the second draft it was proposed that the performance cycle for each year was to conclude on 1 October;
a final draft (the final draft PACS document) was provided by CASA in January 2006. The final draft maintained the performance cycle was to commence on 30 September and to conclude on 1 October of each year;
a ‘PACS Kit’ was circulated to all staff in July 2006. In the PACS Kit, it was stated that the performance cycle was to commence on 1 July and conclude on 30 June of each year and provided that the pay point progression date was to be 1 October. This document was the final document that was issued and has since been utilised by the organisation in relation to the administration of the PACS;
between the final draft being provided and the circulation of the PACS Kit which altered the timing of the performance cycle, the 2006 Agreement was certified. Mr Whitfield accepted that there was no documentation that was produced before the 2006 Agreement was certified which indicated a gap between the end of the performance cycle and the progression date of 1 October;
[14] The final witness statement 13 filed for the CPSU was that of Kristin Barlow, Legal Officer with the CPSU. Mr Barlow’s evidence centred on the circumstances surrounding the amendment made to the wording of the disputed clause at the time the 2010 Agreement was negotiated. It was Mr Barlow’s evidence that the 2010 Agreement was a “rollover agreement” from the previous agreement involving a pay rise and only some minor changes. According to Mr Barlow, during negotiations for the 2010 Agreement, CASA proposed amending the wording of clause 19.1.2 of the Agreement to add the words “from 1 January in the relevant year.” Mr Barlow claimed that CASA had assured him that the change to the wording did not alter the operation of the clause and it was on the basis of that assurance that CPSU agreed to the change proposed to clause 19.1.2.
[15] During cross examination Mr Barlow reiterated this evidence, stating that CASA had “argued for the changes on the basis the proposed changes did not alter operation of the clause as it was currently worded and was consistent with existing practice” 14. When he was taken by Mr Harrington to the attachments to Mr Whitfield’s statement, Mr Barlow agreed that he had seen the PowerPoint slide show at Annexure MW5 to that statement at the time the 2010 Agreement was going through the approval process. He indicated that he did not believe he had seen the explanatory memorandum15 that accompanied the slide show, in particular the explanation of slide 8. He agreed, however, that the explanation of Slide 8 included the words “(t)his clause has been amended to reflect the practice of taking the relevant six-month period from 1 January in the relevant year." He also agreed that the clause was being amended to “clarify openly what happens now”16.
[16] When questioned by Mr Amos for the ALAEA, Mr Barlow reiterated that he had agreed to the change to clause 19.1.2 of the 2010 Agreement because CASA had given assurances that it didn't change the meaning of the clause. He was unable to remember the exact details of the conversations that he had with CASA concerning the proposed amendments but had accepted CASA’s assurances at face value. It was his evidence that he accepted the statement made in the explanatory memorandum to the slide show that one of the reasons the change was being made was to reflect the current practice at CASA.
Submissions
CPSU
[17] It was the CPSU submission that clause 19.1 of the 2010 Agreement is not ambiguous and that the plain meaning of the words in 19.1.2 is that any employee who had been on his or her existing increment for any six month period between 1 January and 1 October in the relevant year (and who satisfied the additional criteria concerning level and performance) was entitled to pay progression on 1 October.
[18] According to the CPSU if the tribunal accepted that the clause is ambiguous then regard should be had to the evidence of the negotiations conducted in 2005 and 2006 for the 2006 Agreement, and to the documents relating to the development of the PACS provided with the witness statement of Mr Barnes. It was the CPSU position that these documents indicated that the only employees who were to be excluded from pay point progression were those who had not been at their current increment for the six month period leading up to the common progression date.
[19] It was put for the CPSU that the evidence showed that:
- At the time the 2006 Agreement was concluded the PACS cycle was to end on 30 September with pay point progression occurring immediately thereafter on 1 October;
- When the final PACS was issued in the PACS Kit in July 2006 the PACS cycle had been altered to end on 30 June, while the date for pay point progression under the 2006 Agreement remained at 1 October.
[20] It was the CPSU submission that, by end July 2006, there was conflict between the 2006 Agreement and the PACS, with the Agreement providing that to be eligible for progression an employee needed 6 months at their current increment prior to 1 October while PACS required 6 months of the PACS cycle at the current increment.
[21] So far as the amendments made by the 2010 Agreement were concerned, it was noted by the CPSU that the explanation given by CASA was that the amendment reflected the current practice adopted by CASA. Mr Barlow conceded that despite some initial opposition, the CPSU had agreed to the changes made by the 2010 Agreement and that he understood at the time that CASA wanted to clarify clause 19.1.2. Mr Barlow noted that he had accepted CASA’s assurance that the amendment reflected current practice and did not change the meaning of the clause. It was put for the CPSU that there was some doubt whether this was actually the case and it may have been that CASA wished to change the clause because their current practice conflicted with the clause. Whatever CASA’s intention, it was the CPSU position that the change made to the clause did not achieve the result sought by CASA. According to the CPSU the insertion of the words “from 1 January in the relevant year" did not require an employee to have completed six months of a PACS cycle given that the progression date under the 2010 Agreement is 1 October.
[22] The CPSU noted that under CASA's interpretation of the clause an employee could end up serving a minimum nine months at their position before receiving pay point progression and a maximum of 21 months before receiving pay point progression. On the CPSU's interpretation, an employee could progress with a minimum of six months and a maximum of 18 months at increment.
[23] Mr Barlow submitted that in determining the matter it was not open to the tribunal to take into account evidence sought to be adduced which conflicts with the actual language used in the agreement 17. He contended that CASA, in purporting to rely on the July 2006 PACS Kit and the 2010 Agreement amendments, were attempting to rely on evidence of subjective intention which was not admissible
[24] According to the CPSU the position adopted by CASA amounted to reading additional words into clause 19.1.2. It was noted that the clause does not provide that an employee needs to have completed six months of a PACS cycle, or six months to 30 June (the end of the PACS cycle).
[25] It was put that CASA’s evidence as to their administration of the scheme was not admissible evidence as it post-dated the construction of the clause in question 18. Additionally, it was argued that the reference in the 2006 Agreement to PACS being introduced during the life of the Agreement could only be a reference to the PACS that was intended to be introduced at the time the Agreement was certified, and not to a PACS that was altered significantly as to the timing of pay point progression.
[26] In summary, it was the CPSU position that under the provisions of clause 19.1.2 an employee, in order progress on 1 October, was required to have been at their current increment for six months in the period from 1 January until the pay point progression date of 1 October.
ALAEA
[27] Mr Amos for the ALAEA noted that the crucial matter in dispute was the meaning of clause 19.1.2, as the evidence was generally undisputed and there were no issues of jurisdiction. He noted that the principles of construction which should guide the decision in this matter were that the clause was to be given its objective, plain and ordinary meaning 19, but if the clause is found to be ambiguous or susceptible to more than one meaning extrinsic evidence can be used to determine the meaning20. It was his submission that any such extrinsic evidence was confined to matters known at the time the Agreement was constructed, such as negotiations, previous drafts and correspondence21, and that evidence of subsequent conduct of the parties was not admissible in determining the meaning of the clause22.
[28] The ALAEA position was the same as that of the CPSU, that there is nothing in the words of clause 19.1.2 which supported the construction of the clause that was put forward by CASA. There was no mention of 30 June or the PACS assessment cycle in the clause. The only date mentioned was 1 January with a reference to a time period of six months. It was the ALAEA submission that any six months after 1 January leading up to the progression date of 1 October was sufficient.
[29] It was put that the evidence was that the PACS documents were “not known” to new employees at the time employment with CASA was accepted and, as a consequence, those documents are not incorporated into the Agreement and do not have the ability to contradict the plain words of the clause.
[30] According to the ALAEA if the clause was found to be ambiguous and the history relevant, there was evidence that all the drafts of PACS at the time the original clause was inserted in the 2006 Agreement had proposed that the six month period ended at the end of the PACS cycle and the pay point progression was the next day. It was noted that the first draft PACS document gave a specific example of an employee fulfilling their requirement in the last six months of the PACS cycle and being eligible for progression the day after the PACS cycle ended.
[31] Mr Amos also relied on the decision in Short v FW Hercus Pty Ltd 23 for the proposition that the July 2006 PACS Kit could not be relied upon in order to construe the clause. It was also argued that if the effect of the change made to the clause by the 2010 Agreement (which was a rollover agreement) was to alter the effect of the clause, then it was not a rollover agreement.
[32] Finally, Mr Amos submitted that neither union contested the six months in the performance cycle as being a consistent factor but that when the 2006 Agreement was certified, the position had been that the end of the performance cycle and the date of pay point progression had coincided and it was only subsequently to the approval of the 2006 Agreement that a delay of three months was introduced between the end of the cycle and the progression date. It was put that this was a crucial change that had disentitled some employees.
CASA
[33] Mr Harrington, for CASA, commenced his submissions by setting out the factual history concerning the clause. In doing so he emphasised Mr Whitfield’s uncontested evidence was that when the PACS was initially conceived it was intended that there would be a 12 month assessment cycle and a common pay point progression at the end of the cycle and that the second draft PACS document, produced in December 2005, contained the following statement:
To be eligible for a salary increment increase to the next salary point in a classification, an employee must have actively participated in PACS during the performance cycle for at least six months. 24
According to his submission the concept of 6 months of the PACS cycle was critical.
[34] It was the CASA submission that together with clause 24 of the 2006 Agreement, which dealt with the matter of the common pay point progression, clause 25 was of significance as it provided for the introduction of the PACS scheme. That scheme was introduced, by means of the PACS Kit, in July 2006. The evidence was that from the introduction of the scheme in July 2006 no dispute concerning the operation of the scheme had been raised until the current matters before the tribunal, some five and a half years later.
On this basis it was argued that there was uncontested evidence of a “clear common understanding of how PACS was to operate” from 2006 until the amendment made by the 2010 agreement.
[35] At the time of the negotiation of the 2010 Agreement CASA had indicated a desire to clarify the clause dealing with common pay point progression (clause 20 of the 2008 agreement). The purpose of the clarification was spelt out in the PowerPoint presentation, where it was explained that "[t]his clause has been amended, proposed clause 19, to reflect the practice of taking the relevant six-month period from 1 January in the relevant year." It was put for CASA that the parties had negotiated the 2010 agreement in good faith and it was accepted that the amendment reflected the practice that had been adopted up until that time.
[36] CASA took issue with the CPSU contention that the clause in dispute provided for pay point progression where an employee had been at their existing increment “for a period of six months to 1 October." It was put that the CPSU position collapsed two concepts, that of pay point progression on 1 October and the concept of having been at the existing increment for 6 months from 1 January. It was also put that the period of time that an employee might have to wait in order to progress was not relevant to the meaning of the clause in dispute.
[37] CASA submitted that given that an ambiguity had arisen about the meaning of the clause it was necessary to look at the surrounding context of the introduction of the forerunner to the current clause in 2006. It was put that the practice that had been adopted went to the issue of the common understanding of the operation of the clause. And the context of the amendment made to the clause by the 2010 Agreement was also relevant.
[38] According to CASA the key concept was the need to have participated in at least six months of a performance cycle prior to progression. The requirement was in the second draft PACS document in December 2005, and in the diagram in the PACS Kit that was promulgated in July 2006. It was contended that all these matters were relevant as there was no doubt that extrinsic material was admissible 25.
[39] Mr Harrington referred to the submissions of the ALAEA claiming that they were designed to ignore the matter of PACS when attempting to determine the meaning of clause 19.1. In this respect it was noted that 19.1.3 of the 2010 agreement, requires an employee to have been “assessed under the PACS as at least on target." It was submitted that PACS is part of clause 19.1 and that the 2010 Agreement states that PACS will operate “in accordance with the PACS guidelines in the HR guide” which are those included in the July 2006 PACS Kit. In addition, clause 21.4 of the 2010 Agreement states:
Pay point advancement under the PACS will occur on 1 October of any year.
Consideration
[40] A recent Full Bench 26 of this tribunal has conveniently summarised the principles that are to be adopted in the interpretation of enterprise agreements.
“The Interpretation of Enterprise Agreements
[5] By virtue of s.46 of the Acts Interpretation Act 1901 (Cth) that act is applicable to the construction of enterprise agreements as if the enterprise agreement were an act. Section 46 states:
“s.46 Construction of instruments
(1) If a provision confers on an authority the power to make an instrument that is neither a legislative instrument for the purposes of the Legislative Instruments Act 2003 nor a rule of court, then:
(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and
(b) expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time; and
(c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.
(2) If any instrument so made would, but for this subsection, be construed as being in excess of the authority's power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.” 27
[6] Section 7(1) of the Legislative Instruments Act 2003 (Cth) declares that ‘fair work instruments (within the meaning of the Fair Work Act 2009)’ are not ‘legislative instruments.’ The definition of a ‘fair work instrument’ in s12 of the Act includes an enterprise agreement. An ‘enterprise agreement’ is defined to include, relevantly, a ‘single enterprise agreement’ which is in turn defined to mean an enterprise agreement made as referred to in s172(2). The Total Corrosion Agreement is such an agreement.
[7] As to the general approach to the construction of enterprise agreements the observations of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) 28are apposite:
“[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”
[8] While his Honour’s observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements. 29 For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in Amcor v CFMEU:30
“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”
[9] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo, at paragraph [57]:
“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeoA Bond and Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.” 31
[41] It is my view that the above approach to the interpretation of enterprise agreements is consistent with the authorities cited and relied upon by the parties.
[42] It is clear from the authorities that, while the words in the clause in dispute must be given their ordinary meaning it is also necessary to read the disputed clause in context. To determine the context of the sub clause, regard must be had to the other subclauses in clause 19, the Agreement as a whole and “other documents with which there is an association” 32.
[43] Taken out of context, clause 19.1.2 of the 2010 Agreement can be read as permitting pay point progression where an employee had been employed at his or her current increment for any six month period between January and 1 October in the relevant year. Clause 19.2.1, however, does not deal with the matter of pay point progression on 1 October of each year in a vacuum. An employee cannot progress where the employee is already at the top increment of their level 33. More importantly for the purposes of interpreting clause 19.1.2, an employee cannot progress unless that employee has been assessed under the PACS as at least “on target”34.
[44] The evidence concerning the development and introduction of the PACS was extensive. It was introduced during the 2006 Agreement and the undisputed evidence was that the PACS Kit distributed in July 2006 set out the guidelines for the operation of the scheme. There was also evidence 35 that the operation of the PACS had continued in the same manner since its introduction and that the July 2006 PACS Kit remained current.
[45] The following explanation of eligibility for pay point progression under PACS can be found at page 9 of the PACS Kit :
Remuneration and Other Outcomes
Eligibility
To be eligible for a salary increment to the next salary point in a classification an employee must have:
- Actively participated in PACS during the performance cycle for at least six months (this includes periods of paid leave); and
- Received a rating of 2 or above (i.e. ‘On Target’ or ‘Consistently Exceeds Expectations”.
[46] While this section of the PACS Kit does not spell out that in order to progress an employee must have actively participated in PACS during the performance cycle for at least six months at their current increment and have receiveda rating of 2 or above for performance at that increment, any other interpretation would be, in my view both absurd and inconsistent with the purpose of the PACS.
[47] A clear example of the intended operation of the PACS in this respect can be found at page 23 of the PACS Kit where the matter of employees who are promoted or on a long term transfer is dealt with. It is stated that “(t)hese employees are required to develop a PACS plan but will not be entitled to be considered for a remuneration increase until the employee completes at least six months of a PACS cycle (including any paid leave) at the higher classification within the first performance cycle following their promotion”.
[48] In order to put the operation of clause 19.1 entirely in context it is necessary to have regard to that part of the evidence concerning the introduction of the PACS in the 2006 Agreement. That evidence showed that the introduction of the PACS was closely linked to the move to a common date for pay point progression for all employees covered by that Agreement. Prior to the 2006 Agreement employees progressed on the anniversary of their appointment. With the commencement of the 2006 Agreement, and the introduction of the PACS, October 1 was set as the common date for all pay point progression under the Agreement. The evidence showed that progression under PACS was to be linked to performance rather than to tenure as had been the case before the 2006 Agreement.
[49] An employee is assessed under the PACS in December (the mid-year review) and again after the PACS cycle has been completed at the end of June in each year. An employee is not assessed in any PACS cycle until the employee has completed at least six months of that particular cycle. It follows that an employee is unable to meet the requirement of sub-clause 19.1.3 unless that employee has been at their current increment at least since 1 January of the particular year.
[50] I accept that, during the negotiation of the PACS, the proposal was that pay point progression would occur immediately, at the end of the relevant PACS cycle. This proposal was not, however, adopted in the final PACS Kit promulgated in July 2006. Despite changing the dates for the operation of each PACS cycle and thereby removing the synchronicity with the pay point progression date, the requirement that, in order to progress, an employee must have completed six months of a particular PACS cycle at a particular increment, was retained.
[51] There was no evidence before me which could support the conclusion that the parties, at the time the 2006 Agreement was negotiated and the PACS developed, intended that an employee would be able to progress without meeting the requirement of having been assessed as “on target” or above in the PACS cycle in the relevant year. In order for such an assessment to have been carried out the employee concerned must have completed at least 6 months of that PACS cycle at their current level.
Conclusion
[52] It is a requirement of clause 19.1 of the 2010 Agreement that an employee cannot progress to the next increment at their pay level if the employee has not been at their current increment for the six month period commencing on 1 January in the relevant year.
[53] CASA’s decision not to provide pay point progression to Mr Hinchcliffe and Ms Bitossi is consistent with the correct interpretation and application of clause 19.1 of the 2010 Agreement.
COMMISSIONER
Appearances:
Mr K Barlow for the CPSU
Mr L Amos for the ALAEA
Mr N Harrington, of Counsel, and Mr J Rule, for the Respondent
Hearing details:
2012.
Sydney:
June 1.
1 AE878098, PR997518
2 CASA submissions at paragraph 6
3 CPSU submissions at paragraph 4.1
4 Exhibit CPSU 1
5 Exhibit ALAEA 1
6 CASA submissions at paragraph 4
7 Exhibit CPSU 2
8 Exhibit CPSU 2 at Attachment B
9 Exhibit CPSU 2 at Attachment C
10 Exhibit CASA 1
11 In decision PR968740
12 Civil Aviation Safety Authority Certified Agreement 2008 - 2010
13 Exhibit CPSU 3
14 Transcript PN127
15 Exhibit CASA 1 at Annexure MW6
16 Transcript PN 166
17 Royal Botanic Gardens and Domains Trust v South Sydney City Council, (2002) HCA 5, or 186 ALR 2899
18 Seaman’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444
19 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90; Amcor v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
20 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
21 Moshirian v University of New South Wales [2002] FCA 179
22 Short v FW Hercus Pty Ltd (1993) 40 FCR 511
23 Ibid
24 Exhibit CASA 1 at Annexure MW1 page 14
25 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90.
26 Cape Australia Holdings Pry Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 3994
27 See generally City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [52] per French J., as he then was.
28 (2006) 153 IR 426 at [53]
29 See Swire Cold Storage Pty Ltd v TWU [2008] AIRCFB 397 at [29] and AMWU v Silcar Pty Ltd [2011] FWAFB 2555 at [11]
30 (2005) 222 CLR 241 at [30]
31 CapeAustralia Holdings Pry Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 3994
32 Short v FW Hercus Pty Ltd (1993) 40 FCR 511
33 Civil Aviation Safety Authority Enterprise Agreement 2010 - 2011 at clause 19.1.1
34 Ibid at clause 19.1.3
35 Exhibit CASA 1 at paragraph 19
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