Flight Attendants' Association of Australia v Qantas Airways Limited

[2015] FWC 4822

[2015] FWC 4822

FAIR WORK COMMISSION

DECISION

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

Flight Attendants' Association of Australia
v
Qantas Airways Limited
(C2015/1338)

and

Transport Workers' Union of Australia
v
Qantas Airways Limited & QF Cabin Crew Australia Pty Ltd
(C2015/1654)

COMMISSIONER CAMBRIDGE SYDNEY, 28 JULY 2015

Dispute settlement procedure - interpretation of terms of enterprise agreement - disputed terms dealing with laundering of uniforms - long standing practice of employer to limit laundering of uniforms to the dry cleaning of items that required dry cleaning only - determination of whether terms of enterprise agreement obliged employer to launder all items of uniform - no ambiguity found - construction of relevant terms as urged by applicants found to be correct - applications granted - parties to consult as to any Order.

[1] This Decision is made in connection with two applications that were taken under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The first application (C2015/1338) was lodged at Sydney on 16 January 2015. The first application was made by the Flight Attendants' Association of Australia (the FAAA) and taken against Qantas Airways Limited. The second application (C2015/1654) was lodged at Melbourne on 11 February 2015. The second application was made by the Transport Workers' Union of Australia (the TWU) and taken against Qantas Airways Limited & QF Cabin Crew Australia Pty Ltd.

[2] Both applications involved the same subject matter and although each matter was initially listed for separate proceedings, the applications were subsequently joined and they have proceeded as a single matter considered to have been taken by both the FAAA and the TWU (collectively the applicants) against Qantas Airways Limited & QF Cabin Crew Australia Pty Ltd (collectively Qantas).

[3] The Commission is empowered to deal with this matter by virtue of a DSP which is found at clause 9 of the Flight Attendants' Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012 (EBA9) (the Agreement).

[4] The dispute was unable to be resolved by conciliation and the matter has proceeded to arbitration involving a Hearing conducted in Sydney on 10 June 2015. The FAAA was represented by Mr J Nolan, counsel, who called one witness who provided evidence in support of the applications. The TWU was represented by Mr B Baarini, who also called one witness who provided evidence in support of the applications.

[5] Qantas (or the employer) was represented by Ms H McKenzie, solicitor from Ashurst Australia. Ms McKenzie adduced evidence from two witnesses as material which supported the employer’s case which opposed the applications.

Background

[6] The question in dispute in this instance has involved a claim by the FAAA and the TWU that Qantas has incorrectly interpreted and misapplied the terms of the Agreement which concern the entitlement for employees to have their uniforms laundered at Qantas’s expense. There was very little factual contest about the circumstances which gave rise to the dispute and the historical account of the manner in which Qantas had applied the relevant terms of the Agreement and similar terms contained in antecedent industrial instruments.

[7] In 1974, the work of Qantas cabin crew was governed by two Awards, one which covered male crew, referred to as flight stewards, and the other Award covered female crew, who were referred to as flight hostesses. The 1974 Award which covered the flight hostesses included terms which stated that “Uniforms shall be laundered by the Company at the Company’s expense.” The Award that covered the flight stewards did not contain these words.

[8] In 1986, a consolidated Award was made which covered both female and male cabin crew who were referred to as flight attendants. The 1986 consolidated Award included the words “Uniforms shall be laundered by the Company at the Company’s expense.” Various subsequent industrial instruments which have governed the work of Qantas cabin crew have included terms which have essentially replicated these words which are concerned with Qantas laundering uniforms at its expense.

[9] In about 1996, Qantas introduced an administrative system to facilitate the laundering of cabin crew uniforms. This administrative system provided employees with a dry-cleaning card that could be used at a nominated chain of commercial garment cleaning shops to enable particular items of the uniform to be dry-cleaned with the cost of that dry-cleaning being forwarded directly to Qantas. As an alternative to the dry-cleaning card and if one of the nominated dry-cleaning shops was not readily accessible, an employee could have the cost of dry-cleaning reimbursed by Qantas upon presentation of appropriate receipts. This administrative dry-cleaning card/reimbursement system, and subsequent iterations of it, has continued to operate up to the present day.

[10] Significantly, the administrative dry-cleaning card/reimbursement system has been restricted to certain items of the uniform and at different times, most notably when entire uniform styles have been changed, different items of the uniform have been either excluded or included as part of the system. In broad terms, the basis for inclusion of items of the uniform as acceptable for the dry-cleaning card/reimbursement system has involved a requirement that a particular item is dry-cleanable only, that is, it is an item which would not be able to be washed by conventional machine or hand washing methods.

[11] Despite its on-going operation, the dry-cleaning card/reimbursement system has not been embodied or referred to in any of the terms contained in the relevant industrial instruments. The more recent enterprise bargaining negotiations have not traversed the issue of uniform laundering and the terms of recent Agreements have simply “rolled over” the words which can be traced back to, at least, 1974, albeit apparently applicable only to flight hostesses at that time.

[12] The dry-cleaning card/reimbursement system has appeared to operate without major complaint or issue since its inception. Although from time to time issue has arisen as to whether a particular item of uniform was or was not included in the system.

[13] In 2014, Qantas decided that as part of broader cost savings measures, it would invoke particular provisions of the Agreement which led to a reduction in the amount paid to cabin crew as meal allowances when away from home base in slip ports. In brief, Qantas advised that it would invoke a term of the Agreement, (clause 8.2.2) which permitted it to provide a meal rather than pay a meal allowance. Qantas had historically paid the meal allowance and rather than loose the allowance completely and receive an actual meal, agreement between Qantas and the FAAA was reached to reduce the amount paid as a meal allowance by about 15%.

[14] Many cabin crew members were understandably upset at the reduction in the amount paid as meal allowances and they have scrutinised the terms of the Agreement to find provisions which employees might invoke so as to obtain an entitlement that may have not otherwise been provided to cabin crew. The provisions regarding the laundering of uniforms were discovered and used as a basis to claim that these terms require Qantas to launder all items of uniform rather than dry-clean just those items which have been dry-cleaned in accordance with the administrative dry-cleaning card/reimbursement system.

[15] Subsequently, individual cabin crew members have tested the laundering of uniforms provisions of the Agreement by making claims for laundering of items which were not specified as part of the dry-cleaning card/reimbursement system. Qantas has rejected such claims, and the FAAA and the TWU have, after making representations to Qantas, filed the applications which have jointly become the dispute requiring resolution in this instance.

[16] These dispute proceedings have subsequently led to the Commission being required to determine whether the terms of the Agreement provide an entitlement for cabin crew to have all items of uniform laundered at Qantas’s expense or, in the alternative, for any laundering of uniform obligations arising under the Agreement to have been satisfied by the administrative dry-cleaning card/reimbursement system.

The FAAA Case

[17] At the Hearing, Mr J Nolan, barrister, was granted permission to appear on behalf of the FAAA. Mr Nolan made submissions which elaborated upon written outlines of submissions which had been filed on behalf of the FAAA.

[18] Mr Nolan commenced his submissions by stating that the determination of the matter involved the interpretation of what he described as quite straightforward clauses which were very simply expressed in emphatic terms in the Agreement. Mr Nolan submitted that the words “Uniforms must be laundered at the Company's expense” provided very little room for ambiguity or doubt. Mr Nolan stressed that these words could not be interpreted to restrict laundering to items that were dry-cleanable only.

[19] The submissions made on behalf of the FAAA referred to the Full Bench Decision in The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  1 (Golden Cockerel) as providing a very useful summary of the relevant principles to guide the determination required in this matter. Mr Nolan submitted that the disputed terms of the Agreement had a plain meaning particularly as the ordinary meaning of the word “launder” was to wash and iron clothing. Mr Nolan said that the disputed clauses in the Agreement were clear and contained no ambiguity and therefore there was no requirement to consider surrounding circumstances as the words in their unvarnished form governed the way that the Agreement was intended to operate.

[20] It was submitted by Mr Nolan that any other interpretation of the particular terms of the Agreement, particularly that as was advanced by Qantas, would involve a wishful rewriting of the Agreement which would be contrary to the ordinary meaning of the expression “launder”. Mr Nolan submitted that the interpretation urged by Qantas really sought to describe a long-standing custom and practice which, if adopted, would more accurately reflect delinquent conduct rather than the plain and obvious meaning that should be given to the words of the Agreement.

[21] Mr Nolan submitted that the proper construction of the relevant clauses of the Agreement, did not allow for the interpretation that the expression “launder” could be confined to dry-cleaning only. It was submitted by Mr Nolan that Qantas had by virtue of its conduct over many years, accepted that launder included dry-cleaning. However, according to Mr Nolan, Qantas could not walk away from that meaning and adopt another meaning which would somehow establish that to launder meant only to dry-clean.

[22] In summary, Mr Nolan stressed that it was inappropriate to suggest that the words in the Agreement contained any uncertainty or ambiguity. Mr Nolan urged that the Commission reject any suggestion that there was ambiguity and instead provide for the plain and ordinary meaning of the terms of the Agreement. According to Mr Nolan, that plain and ordinary meaning simply extended to a requirement for Qantas to launder all items of uniform including those items which were not dry-clean only.

The TWU Case

[23] Mr B Baarini appeared for the TWU and made oral submissions which elaborated upon documentary outlines of submissions. Mr Baarini submitted that the actual words in an enterprise agreement are determinative and in this regard he referred to the Full Bench Decision in the case of TWU v Linfox 2. Mr Baarini said that the evidence in this case had revealed what he described as a changing feast in respect to items that may or may not be subject to the dry-clean only items that Qantas accepted as being applicable to the laundry provisions of the Agreement. Mr Baarini said that against this changing feast the words in the Agreement became paramount.

[24] Mr Baarini made submissions which stressed that the terms of the Agreement created obligations on both the employer and the employee in respect to uniforms. In this regard Mr Baarini noted that there was an obligation on employees to wear their uniforms at all times, in addition there was a further obligation to maintain uniforms in good order and also in certain circumstances to replace their uniform at their own cost. Mr Baarini submitted that the terms of the Agreement relating to uniforms contained positive obligations on both Parties and there was a clear obligation on the employer to launder the uniforms at its expense.

[25] Mr Baarini submitted that Qantas had enjoyed the benefit of past practice through creating policies and procedures which stripped away the obligation to launder uniforms at its expense. According to the submissions made by Mr Baarini, Qantas had limited the items that it would be prepared to launder to just those that they considered to be dry-clean only and that this was simply an exercise in reducing costs. Further, Mr Baarini said that Qantas had, through its practice of reliance upon cabin manuals, policies and procedures, avoided the obligation imposed upon it by the terms of the Agreement.

[26] In further submissions Mr Baarini also referred to the Golden Cockrell Decision. Mr Baarini submitted that there was no ambiguity that could be found in the terms contained in clauses 17 and 20 of the Agreement. Mr Baarini said that the words in these clauses should be given their plain and ordinary meaning and there was no need to consider extrinsic material particularly that involving what was in effect Qantas's failure to meet the obligations of the terms of the Agreement.

[27] In conclusion, Mr Baarini submitted that the Commission should accept that the plain and ordinary meaning of the words contained in the Agreement which stated that uniforms must be laundered at the Company's expense, did not involve any further qualification or limitation as had been practiced by Qantas. Mr Baarini urged that the Commission determine the application in favour of the interpretation of the terms of the Agreement as advocated on behalf of the TWU.

The Qantas Case

[28] Ms H McKenzie, solicitor, was granted permission to appear on behalf of Qantas. Ms McKenzie referred to and relied upon written submissions which had been filed on behalf of Qantas. Ms McKenzie made further oral submissions in elaboration of the earlier filed material and in response to the submissions made on behalf of the applicants.

[29] The submissions made on behalf of Qantas confirmed that the relevant principles to be applied to resolving a contest regarding the construction of terms of an industrial instrument, such as the Agreement, are summarised in the Full Bench Decision in the Golden Cockrell case. In applying these principles it was asserted that there was uncertainty and ambiguity arising from an examination of the contested terms which were contained a clause 17 of Part 1, and clause 20.3 of Part 2 of the Agreement.

[30] Ms McKenzie made submissions which emphasised that the contested terms of the Agreement were long-standing provisions and that according to Ms McKenzie, as Qantas was a very reputable employer it would, by implication, have been in blatant breach of its EBA and Award obligations for some 40 years. Consequently, Ms McKenzie urged that the Commission should be reluctant to provide for the interpretation of the contested terms of the Agreement as was urged by the applicants.

[31] Ms McKenzie made further submissions which referred to the evidence of the history of the relevant terms of the Agreement and numerous predecessor industrial instruments. Ms McKenzie said that it was also relevant to note that the applicants had raised the current dispute as a protest or response to the reduction in meal allowances. Ms McKenzie submitted that it was somewhat opportunistic for the applicants to have scrutinised the terms of the Agreement in order to try to find some retaliatory provisions and that they now believe that “they’ve hit the jackpot” in respect to the uniform laundering issue.

[32] The submissions made by Ms McKenzie referred to the slightly different terminology used in the two clauses which deal with uniform laundering and which are contained in separate parts of the Agreement. Ms McKenzie submitted that there was ambiguity and lack of clarity as to the meaning of these provisions. Further, according to the submissions of Ms McKenzie, the Commission should be satisfied that in the context of this Agreement, the word “launder” meant to dry-clean and it meant to dry-clean those parts of the uniform that are only able to be cleaned through dry-cleaning. Ms McKenzie also rejected that the word “launder” meant to wash and iron in the context of the Agreement having regard for the industrial history of the application of the relevant terms of the Agreement and its predecessor industrial instruments.

[33] Ms McKenzie submitted that in applying the principles that had been developed in the Full Bench Decision in Golden Cockrell, the prospect emerged that when dealing with industrial instruments it would not stretch the bounds of reasonableness to sometimes find that the words don't mean what on their face one would otherwise think that they would mean. In this regard Ms McKenzie submitted that it was appropriate to have regard to the surrounding circumstances including the objective background of facts which appeared to establish that the particular provisions had not been the subject of any direct negotiation between the Parties. Further, according to Ms McKenzie, it was important to have regard for the long-standing practice which had involved Qantas assuming responsibility for the cost of dry-cleaning those uniform items which formed the core of the uniform and which could not be washed by employees.

[34] Ms McKenzie submitted that the Commission should have regard to the surrounding circumstances and come to the view that there is some ambiguity in respect to the contested provisions of the Agreement. Ms McKenzie urged that the ambiguity should be resolved having regard to the long-standing practice of Qantas over many years such that the term “launder” would be construed to mean to dry-clean. According to Ms McKenzie, it followed that items of the uniform that are not dry-clean only are the responsibility of employees to wash themselves as had been the practical position for the past 40 years.

[35] In conclusion, Ms McKenzie submitted that the matter should be determined on the basis that the ambiguity of the contested terms of the Agreement should be resolved having regard to the long-standing practices adopted by Qantas. Therefore the dry-cleaning of uniforms in accordance with Qantas policy and its cabin crew operating manuals represented the appropriate construction for the contested terms of the Agreement.

Consideration

[36] The dispute in this instance has involved a contest regarding the correct interpretation or construction that should apply to particular terms of the Agreement.

[37] The principles that are to apply to the approach to interpretation/construction of the terms contained in an enterprise agreement has been the subject of a Decision of a Full Bench of this Commission in the matter of The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  3 (Golden Cockerel). At paragraph 41 of the Golden Cockerel Decision the Full Bench set out the following principles that apply to the approach to interpretation/construction of terms of an enterprise agreement:

“[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.”

[38] Accordingly, the principles as established by the Full Bench Decision in Golden Cockerel have been adopted and relevantly applied in this instance to the contested construction of the terms of the Agreement.

[39] The contested construction in this instance can be summarised as an argument as to whether ambiguity can be found in the terms contained in two separate clauses of the Agreement which deal with uniforms and in particular, the laundering of uniforms. The FAAA and the TWU have asserted that the words of the contested provisions have a plain meaning and do not contain any ambiguity. Alternatively, Qantas has contended that these words have ambiguity particularly having regard to surrounding circumstances.

[40] The relevant provisions of the Agreement are those which deal specifically with Uniforms and are found at clause 17 of Part 1 and clause 20 of Part 2, these clauses are in the following terms:

“17. UNIFORMS

Uniforms required by the Company to be worn by employees must be provided on an adequate scale by the Company and replaced from time to time as may be required as a result of fair wear and tear whilst on duty. The employee must wear the uniform at all times whilst on duty and must keep the uniform in good order and condition and must, at his or her own cost, replace the uniform if such replacement becomes necessary, otherwise than as a result of fair wear and tear. Uniforms remain the property of the Company at all times, and must be returned by the employee on termination of his or her employment.

Where the Company prescribes a particular type of overcoat and handbag, they must be provided by the Company. Female employees must be provided with six pairs of pantihose or three pairs of an agreed brand of supporting hose each two months. Employees must be issued with an overnight bag.

Uniforms must be laundered at the Company's expense.

When the Company proposes to change the style of the uniform or any item of the uniform or the handbag or the overnight bag, the Company shall consult with the Association of such an intention.

17.1 Uniform Fittings

Employees who are required to attend a fitting for a Company supplied uniform will receive duty credits of 30 minutes, provided that this period will count for pay purposes only and not otherwise for duty hour calculations or limitations.

20. UNIFORMS

20.1 Uniforms required by the Qantas/QCCA to be worn by an employee must be provided on an adequate scale by Qantas/QCCA and replaced from time to time as may be required as a result of fair wear and tear whilst on duty. The employee must wear the uniform at all times whilst on duty and must keep the uniform in good order and condition and must, at his or her own cost, replace the uniform if such replacement becomes necessary, otherwise than as a result of fair wear and tear. Uniforms remain the property of Qantas/QCCA at all times, and must be returned by the employee on termination of his or her employment.

20.2 Where Qantas/QCCA prescribes a particular type of overcoat and handbag, they must be provided by Qantas/QCCA. Female employees must be provided with six pairs of panty-hose or three pairs of an agreed brand of supporting hose each two months. Employees must be issued with an overnight bag.

20.3 Uniforms must be laundered by Qantas/QCCA at the Qantas/QCCA expense.

20.4 When Qantas/QCCA proposes to change the style of the uniform or any item of the uniform or the handbag or the overnight bag, Qantas/QCCA must notify the Association of the intention to effect changes in sufficient time for the Association to consider such proposals, and such proposals must be given full consideration in the making of any changes.”

[41] The most significant terms are those words which are contained in the third paragraph of clause 17, Part 1, which state; “Uniforms must be laundered at the Company's expense” and those words contained in clause 20.3, Part 2, which state; “Uniforms must be laundered by Qantas/QCCA at the Qantas/QCCA expense.”

The Meaning of “launder”

[42] The Macquarie dictionary meaning of the word “launder” is; to wash and iron (clothes, etc.), and the Macquarie dictionary meaning of the word “wash” is; to apply water or some other liquid to for the purpose of cleansing; cleansed by dipping, rubbing, or scrubbing in water, etc. Further, the Macquarie dictionary meaning of the hyphenated word “dry-clean” is; to clean (garments, etc.) with chemical solvents rather than water.

[43] Consequently, it would seem to be somewhat unremarkable that the ordinary meaning of the word “launder” in the context of a sentence such as; “Uniforms must be laundered at the Company's expense” would encompass the washing and ironing of the items of the uniform which may also involve the dry-cleaning of some of the items of the uniform. Dry-cleaning is but one form of laundering. Or, alternately expressed as, dry-cleaning is a subset of laundering.

[44] In this instance, unless the plain and ordinary meaning of “laundered” could be departed from, the applicants’ construction of the contested terms of the Agreement would have to be correct. In order for the plain and ordinary meaning of “laundered” to not apply there would need to be the identification of some ambiguity in the terms as they appear in the Agreement.

The Question of Ambiguity

[45] It was asserted that ambiguity existed with the word “laundered” appearing in the contested terms of the Agreement because of a number of factors. Firstly, it was contended that some ambiguity arose because of the additional words; “by Qantas/QCCA” which appear in clause 20.3 of Part 2 and which are not included in clause 17 of Part 1 of the Agreement.

[46] A literal interpretation of the additional words contained in clause 20.3 might be construed as a requirement for Qantas to actually perform the laundering rather than have the laundering performed by a third party. However, upon reflection, these additional words do not impact upon any meaning that might be given to the word “laundered” so as to create some ambiguity in respect to that word but instead, introduce a potential ambiguity about who might perform the laundering. Realistically, the additional words contained in clause 20.3 are a reflection of infelicitous drafting involving a tautology.

[47] A further factor which was advanced as basis to establish ambiguity involved the degree of imprecision and absence of certain details which can be identified with particular aspects of the contested terms. For example, Qantas stated that its obligations to launder uniforms could be satisfied if the uniforms were laundered at its expense only once. Further, it was asserted that in the absence of any definition of uniform it was not clear whether uniform included every item of the uniform or just core items such as a jacket, trousers, skirts or dresses.

[48] Although consideration of the inadequacies of certain aspects of the contested terms would likely verify potential for considerable argument about various specifics of the laundering of uniforms these matters do not create ambiguity in respect of the ordinary meaning of the word “laundered”. As was identified during the Hearing, the terms of clauses 17 and 20 would be likely to invite argument as to the frequency of any laundering obligations that apply to Qantas. However, such a potential difficulty does not introduce ambiguity in respect of the meaning of the word “laundered” rather, it raises a question of how often an individual employee may be entitled to have their uniform laundered.

[49] Qantas also advanced an argument that the costs associated with overseas laundering formed part of the basis for the payment of a standard daily travelling allowance and this was introduced as part of a proposition that some ambiguity arose in respect to the obligations upon Qantas to launder all items of uniform. However, the suggestion that amounts paid as travelling allowances pursuant to clause 13 of Part 1 of the Agreement, comprehended costs associated with employees undertaking the laundering of their uniforms did not materialise from the evidence. Importantly, there was no convincing evidence which established that these travelling allowances were considered to be payments made which in part were in lieu of the ordinary laundering of uniforms but instead the evidence suggested that these travelling allowances covered anticipated costs of employees having to launder items of clothing other than their uniform whilst on slip at foreign ports. Consequently, the payment of travelling allowances did not introduce ambiguity in respect of the terminology “laundered” appearing in the contested terms of the Agreement.

[50] Perhaps the most significant factor which was advanced as basis upon which ambiguity should be established involved the long-standing practice of Qantas not laundering all items of uniform but instead dry-cleaning only those items which could not be machine or hand washed by employees.

[51] This aspect of the case for Qantas was primarily advanced upon the argument that ambiguity could be identified because, for at least the last 40 years, Qantas had interpreted the word launder to be confined to dry-cleaning. There was no dispute that the practice observed by Qantas had confined uniform laundering to dry-cleaning only items that could not be conventionally washed by machine or hand and that this practice had occurred without significant complaint.

[52] However, the fact that there had been a long-standing practice of broadly compliant non-observance of particular provisions of the various industrial instruments that applied from time to time does not operate to establish ambiguity with terms which have a plain meaning. If such a basis could be used to establish ambiguity the interpretation of the terms of the instrument would involve rewriting the Agreement to achieve either what may be regarded as a fair or just outcome, or a reflection of what had hitherto represented the compliant behaviour of the Parties in the form of non-observance of the particular terms of the Agreement.

[53] It is also relevant to observe that industrial instruments like the Agreement can sometimes contain what may be referred to as dormant provisions. These dormant provisions may, for whatever reason, not be applied or observed for considerable periods of time because the Parties may adopt some alternative practice which could conceivably be permitted either by virtue of other terms in the Agreement, or by acquiescence, or by subservient policy or procedure, or by a combination of these processes or by other means. For example, the meal allowance provisions of clause 8.2.2 of the Agreement which involves Qantas potentially providing employees who are away from home base with a first-class meal rather than pay an allowance via clause 8.2.3, was essentially a dormant provision until Qantas suggested its application in 2014.

[54] Further, in respect to the question of the long-standing practice of Qantas, and the apparent acquiescence to this practice by its employees and their representatives, it is relevant to refer to the following extract from the Full Bench Decision in Essential Energy v Australian Municipal, Administrative, Clerical and Services Union and Others  4 (Essential Energy):

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

[55] It is also relevant to refer to the paragraphs which immediately precede the extract quoted above from the Essential Energy Decision and which includes the often cited extract from Madgwick J in Kucks v CSR Limited  5:

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

[56] Accordingly, the words “Uniforms must be laundered at the Company's expense” which appear in clause 17 of Part 1 of the Agreement, and the words “Uniforms must be laundered by Qantas/QCCA at the Qantas/QCCA expense” which appear in clause 20.3 of Part 2 of the Agreement, have been examined having regard for surrounding circumstances and in accordance with principle number 3 of the Golden Cockerel Decision. That examination and the consequential consideration which has followed have not identified an ambiguity. Consequently these words should be accorded their ordinary or usual meaning.

Conclusion

[57] The determination of the dispute in this instance has involved a requirement to settle a contested construction question arising from particular terms contained in an enterprise agreement. The contest which has emerged has manifested as the applicants’ agitation for the activation of dormant provisions of the Agreement in response to similar activation by Qantas of other terms in the Agreement which resulted in a reduction in the amount paid to employees as meal allowances.

[58] The contest has primarily focussed upon the competing propositions as to whether ambiguity existed in respect to the words “Uniforms must be laundered at the Company's expense.” The applicants contended that these words should be given their plain meaning. Qantas asserted that an ambiguity existed and that the word “laundered” should, in effect, be given a meaning of “dry-cleaned” and applied only to uniform items which could not be machine or hand washed.

[59] Upon analysis, and application of the principles for resolution of questions of contested construction as established by the Golden Cockerel Decision, I have concluded that the disputed terms of the Agreement cannot be identified as containing ambiguity. Therefore these words should be given their plain and ordinary meaning as contended for by the applicants.

[60] In consequence of the conclusions that I have reached the applications made by the FAAA and the TWU must be granted.

[61] Specifically, the Commission determines the dispute on the following basis: The terms of clause 17 in Part 1 of the Agreement and clause 20 in Part 2 of the Agreement establish an obligation upon Qantas to launder, at its expense, all items of uniform issued to employees pursuant to these clauses. For these purposes launder is to be given its ordinary meaning which is to wash and iron, which may include but is not limited to, dry-cleaning of items that are required to be dry-cleaned.

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

COMMISSIONER

Appearances:

Mr J Nolan of Counsel, appeared for the Flight Attendants’ Association of Australia.

Mr B Baarini appeared for the Transport Workers’ Union of Australia.

Ms H McKenzie, solicitor from Ashurst Australia appeared for Qantas Airways Limited and QF Cabin Crew Australia Pty Ltd.

Hearing details:

2015.

Sydney:

10 June 2015.

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

 2   Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2012] FWAFB 8958.

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

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

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

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