Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking v Transport Workers' Union of Australia
[2017] FWCFB 2907
•8 JUNE 2017
| [2017] FWCFB 2907 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Transport Workers’ Union of Australia
(C2017/1406)
VICE PRESIDENT CATANZARITI | SYDNEY, 8 JUNE 2017 |
Appeal against decision [2017] FWC 911 of Deputy President Bull at Perth on 28 February 2017 in matter number C2016/5290.
[1] On 28 February 2017, Deputy President Bull issued a Decision 1 and Order,2 which found that the provisions of clause 24 of the Road Transport and Distribution Award 2010 (“the Award”) in respect of meal breaks apply to employees of Glen Cameron Nominees Pty Ltd (“the Appellant”), who perform shift work and are covered by the Glen Cameron Nominees Pty Ltd NSW EBA 2015-2019 (“the Agreement”).
[2] On 17 March 2017, the Appellant lodged a Notice of Appeal, appealing against the Decision and Order of Deputy President Bull. We heard the appeal on 19 May 2017 and reserved our Decision. At the hearing, Mr M. Baroni, solicitor, sought permission to appear for the Appellant and Mr M. Gibian, of Counsel, sought permission to appear for the Transport Workers’ Union of Australia (“the Respondent”). Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to both parties to be represented.
The Decision at First Instance
[3] The Deputy President found that the relevant words in the Agreement concerning meal breaks and the incorporation of and operation of the Award where it is not inconsistent in whole or in part with the Agreement, were not ambiguous or uncertain in accordance with Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 3 (“Golden Cockerel”).
[4] The Deputy President noted that if, as put by the Appellant, clause 18.1 of the Agreement has application to shift workers, he would accept that the meal break provisions of the Award are inconsistent with the meal break provisions in the Agreement, and the Agreement meal break provision must prevail. However, the Deputy President did not accept that it was a logical reading of the Agreement to maintain that the unpaid meal break provisions have application to shift workers. This is because the Deputy President found that the Agreement does not deal with the engagement of shift workers and their separate entitlements, for example, shift penalties, whereas the Award makes separate provision for shift workers and their various entitlements.
[5] The Deputy President found there was nothing in the Agreement that suggested the meal break provisions were to be exhaustive or the exclusive provisions applying to both shift and non-shift workers, other than the reference to “an employee”, which the Appellant submitted should be interpreted as an intention to exclude the specific shift work meal break provisions of the Award. In this regard, the Deputy President held that adopting such an interpretation would be to adopt what is often criticised as a narrow or pedantic approach to interpretation.
[6] As such, the Deputy President issued a Decision and Order, which found that the provisions of clause 24 of the Award in respect of meal breaks apply to employees of the Appellant, who perform shift work and are covered by the Agreement.
The Appeal
[7] At the heart of the appeal was whether the Deputy President correctly construed and applied clause 18.1 of the Agreement and clause 24.9 of the Award.
Appellant’s Submissions
[8] The Appellant outlined the following errors that it asserted the Deputy President made at first instance:
(a) Subordinating the proper interpretation of enterprise agreements to a “logical reading” of how the Agreement should be applied to the parties;
(b) Failing to identify the true meaning of clause 18.1 of the Agreement. That is, by failing to have regard to the relevant evidence when determining whether the clause contained inconsistency;
(c) Failing to give effect to the intention of the parties at the time of making the Agreement;
(d) Failing to give clause 15 of the Agreement, specifically the phrase “ordinary hours”, its proper meaning;
(e) Misapplying the principles applicable to the interpretation of enterprise agreements including by finding that the literal construction of clause 18.1 of the Agreement did not apply to all employees;
(f) Failing to give effect to clause 2 of the Agreement with respect to inconsistencies between a clause in the Agreement and a clause in the Award “in part or in whole, the clause in this Agreement shall prevail to the complete exclusion of the Award clause”;
(g) Relying on conduct after the Agreement was made, including the Form F17, to ascertain the meaning of the Agreement;
(h) Discerning the existence of an obligation on the part of the Appellant that was significantly different to the text of clause 18.1 of the Agreement;
(i) Admitting, and relying on, evidence as to the subjective intentions and understandings of two employees of the Appellant and failing to draw adverse inferences which were open to him without giving reasons;
(j) Failing to find that there was a “common understanding” between the parties as to the meaning of clause 18.1 of the Agreement contrary to the objective evidence that was available to the Deputy President; and
(k) Failing to objectively construe clause 18.1 of the Agreement, including by reference to objective documentary records.
[9] Moreover, the Appellant outlined the following eight grounds of appeal, which we briefly summarise as follows.
[10] First, the Appellant contended the Deputy President erred by reading down clause 18.1 of the Agreement to apply to an employee engaged on “ordinary hours” only. Further, to the extent that there was an “inconsistency” between clause 18.1 of the Agreement and clause 24.9 of the Award, the Appellant submitted that the Deputy President erred by failing to give effect to clause 2 of the Agreement which operated to exclude clause 24.9 of the Award from operation. Further, the Appellant asserted the Deputy President departed from the literal meaning of clause 18.1 of the Agreement, which, at the least, rendered meaningless the deliberate omission of the words “ordinary hours” from clause 18.1 of the Agreement.
[11] Second, the Appellant posited that it was not permissible for the Deputy President to subordinate the express text and language of the Agreement by concluding at [56] of the Decision that “… the Agreement does not deal with the engagement of shift workers and their separate entitlements.”
[12] Third, the Appellant contended the Deputy President made an artificial distinction with respect to what terms and conditions the Agreement contained and, consequently, fell into error with respect to the meaning of clause 18.1 of the Agreement.
[13] Fourth, the Appellant submitted that, in departing from the literal construction of the Agreement, the Deputy President relied upon “post-Agreement” conduct, namely:
(a) Having regard to the issue raised by the Deputy President with respect to the Form 17 at [36] of the Decision; and
(b) The evidence of the Appellant “paying the meal allowance after the Agreement had been made” at [38] of the Decision.
[14] Fifth, the Appellant asserted that, in departing from the literal construction of the Agreement, the Deputy President reasoned by use of “logic” to dispose of the Appellant’s contentions at [56] of the Decision.
[15] Sixth, the Appellant posited that the Deputy President erroneously failed to consider relevant evidence of the parties’ intentions at the time the Agreement was made when determining whether clause 18.1 of the Agreement was inconsistent with clause 24.9 of the Award, in particular, at [48] of the Decision.
[16] Seventh, the Appellant contended the Deputy President failed to have regard to the “common understanding” of the parties as to the meaning of clause 18.1 of the Agreement and clause 25A of the Former Agreement.
[17] Eighth, the Appellant submitted that the Deputy President erred by not drawing an adverse inference from the Respondent’s failure to call any witnesses who were present during the negotiation of the Agreement. Further, that the Deputy President failed to have regard to the minutes of the negotiation meetings which gave rise to the Agreement. 4
[18] For the above reasons, the Appellant asserted that the appeal should be upheld, the Decision should be quashed and the Respondent’s application should be dismissed.
Respondent’s Submissions
[19] The Respondent addressed each of the Appellant’s eight grounds of appeal as follows.
[20] In relation to the first ground of appeal, the Respondent contended the Deputy President applied relevant authorities in relation to the approach to the interpretation of industrial instruments, including City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union 5(“Wanneroo”) Kucks v CSR Limited6(“Kucks”)and Australasian Meat Industry Employees’ Union v Golden Cockerel7 (“Golden Cockerel”). Further, the Respondent submitted the Deputy President was correct to interpret the meal break provisions of the Agreement in the context of the Agreement as a whole. In this regard, the Respondent asserted that the Deputy President would have fallen into error if he had, as urged by the Appellant, interpreted a particular provision in isolation from other provisions of the Agreement.
[21] In relation to the second ground of appeal, the Respondent posited that this submission is without substance. The Respondent contended the Deputy President was entitled, and indeed obliged, to interpret the text of particular clauses in the context of the Agreement as a whole. In this regard, the Respondent submitted it was clearly relevant to the proper interpretation of clause 18 that the Agreement generally does not provide for shift work. Thus, the Respondent asserted that the Deputy President did not subordinate the express text, but properly interpreted the text in its context.
[22] In relation to the third ground of appeal, the Respondent posited that clause 2 distinguishes between a “clause of the Agreement” and a “clause of the Award” for the purposes of considering whether inconsistency arose. For the purposes of considering the Appellant’s submission that there was an inconsistency between the Agreement and the Award, the Respondent contended the Deputy President was required to consider the terms of the Agreement itself and the terms applying by reason of the incorporation of the Award.
[23] In relation to the fourth ground of appeal, the Respondent submitted that the reasons for the Decision do not support the Appellant’s assertion that the Deputy President relied upon either matter in interpreting the Agreement. The Respondent posited that the Deputy President referred to the contents of the Form F17 and the fact that the Appellant provided paid meal breaks for a period in the part of the Decision in which he summarised the submissions of the Appellant. In this regard, the Respondent contended that neither issue is referred to or relied upon when the Deputy President in the part of the Decision entitled “Consideration and Determination”.
[24] In relation to the fifth ground of appeal, the Respondent asserted that no error is demonstrated by the Appellant and that the longstanding approaches to statutory interpretation include consideration of the consequences of a particular interpretation, including whether the interpretation proposed is logical.
[25] In relation to the sixth ground of appeal, the Respondent posited that the Appellant does not identify any particular relevant evidence of the parties intentions which it is said the Deputy President failed to consider and no error could be identified in the Decision. In any event, the Respondent noted that it does not appear that the Appellant contends that the Agreement is ambiguous. In those circumstances, the Appellant contended the submissions do not assist the Appellant.
[26] In relation to the seventh ground of appeal, the Respondent submitted that the mere fact that successive agreements may have contained the same provision and no claim was made under an earlier instrument will not sustain an assertion that the parties had a common understanding as to the meaning of a provision. In circumstances in which an enterprise agreed does not have “parties” in the contractual sense, the Respondent asserted that the “common understanding” principle is not capable of application.
[27] In relation to the eighth ground of appeal, the Respondent posited that the Appellant does not identify any factual question which was resolved against it in relation to which it is said an adverse inference should have been drawn, nor it is clear what relevant evidence any witness of the Respondent could have given in relation to the negotiations. Further, the Respondent submitted that evidence of the conduct of the Respondent or other negotiations generally is likely to have been inadmissible on the question of the interpretation of the Agreement.
[28] For the above reasons, the Respondent contended no error has been identified and the appeal should be dismissed.
Consideration – Permission to Appeal
[29] The Commission will grant permission to appeal if it is in the public interest to do so. 8 The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.9 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,10 the Full Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
[30] Alternately, the second ground for granting permission to appeal is that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 11
[31] In determining whether permission to appeal should be granted, we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.
[32] We now turn to consider whether permission to appeal should be granted.
[33] Clause 2 of the Agreement states as follows:
“The parties to this agreement are Glen Cameron Nominees Pty Ltd (herein called the Company), the Transport Workers Union of Australia and all employees of the Company which fall within the jurisdiction of the Road Transport and Distribution Award 2010 (the ‘Award’) with the exception of employees covered by, the Glen Cameron Huntingwood Warehouse Employees Enterprise Agreement 2009 to 2012.
It is further agreed that all of the terms of the Award, as amended from time to time, shall apply to employees covered by this Agreement provided however that where a clause of this Agreement is inconsistent with a clause of the Award in part or in whole, the clause in this Agreement shall prevail to the complete exclusion of the Award clause.”
[34] Clause 18.1 of the Agreement states:
“18.1 Meal Break
An employee shall be allowed a 30 minute unpaid meal break, for every five hours of work performed. The employee shall use their discretion to take the meal break but it may not be taken within the first 4 hours of commencing work and shall not be taken later than 5 hours after commencing work. The meal break shall be taken as directed by the Supervisor, only where it would otherwise cause a disruption to the on-going performance of work.”
[35] Clause 24.9 of the Award states:
“24.9 Meal breaks
All shiftworkers while working on day, afternoon or night shift will be entitled to a paid meal break of 20 minutes. An employee must not be required to work more than five hours without a meal break.”
[36] Appeal grounds 1 to 5 essentially relate to one central contention by the Appellant, namely, that the Deputy President erred in his construction of clause 18.1 of the Agreement and clause 24.9 of the Award and the findings reached as a result of applying this construction. We do not agree with these submissions. The Deputy President had regard to Golden Cockerel, Wanneroo and Kucks in order to interpret the Agreement and Award before him. In construing clause 18.1 of the Agreement and clause 24.9 of the Award, the Deputy President adopted an orthodox approach in accordance with these authorities and we are not satisfied that the Deputy President’s application was disharmonious when compared with other decisions dealing with similar matters. Thus, we are not satisfied that the Commissioner erred in construing these clauses or in reaching the findings he made by applying this construction.
[37] In relation to the sixth ground of appeal, the Appellant posited that the Deputy President erred, in particular at [48] of the Decision, by failing to consider relevant evidence of the parties’ intentions at the time the Agreement was made when determining whether clause 18.1 of the Agreement was inconsistent with clause 24.9 of the Award. We do not agree with this submission. We note the Appellant did not contend that the Agreement was ambiguous. In this respect, the Deputy President may have been required to have regard to the common intention of the parties had he found that the Agreement was ambiguous in accordance with Golden Cockerel. However, the Deputy President found at [48] of his Decision that:
“I do not find that the relevant words in the Agreement concerning meal breaks and the incorporation of and operation of the Award where it is not inconsistent in whole or in part with the Agreement, are either ambiguous or uncertain.”
[38] Thus, as the Agreement was not determined to be ambiguous, there was no requirement for the Deputy President to have regard to the common intention of the parties in accordance with Golden Cockerel. As such, we are not satisfied that the Deputy President erred in this part of the Decision.
[39] In relation to the seventh ground of appeal, the Appellant contended the Deputy President failed to have regard to the “common understanding” of the parties as to the meaning of clause 18.1 of the Agreement and clause 25A of the Former Agreement. We do not agree with this submission. The Deputy President considered the context and purpose of the Agreement as a whole and, in doing so, undertook an orthodox approach. As such, we are not satisfied that the Deputy President erred in this regard.
[40] In relation to the eighth ground of appeal, the Appellant submitted that the Deputy President erred by not drawing an adverse inference from the Respondent’s failure to call any witnesses who were present during the negotiation of the Agreement. Further, that the Deputy President failed to have regard to the minutes of the negotiation meetings which gave rise to the Agreement. We do not agree with this submission. Whilst the Deputy President did not draw an adverse inference from the Respondent’s failure to call any witnesses, we are not persuaded this led the Deputy President to err in his construction of the Agreement. Further, we are also not persuaded that the Deputy President’s omission to refer to the minutes of the negotiation meetings in his Decision led him into error in construing the Agreement. Thus, we are not satisfied the Deputy President erred in this regard.
[41] We are also not satisfied that there is an arguable case of error in relation to any other part of the Decision. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The Decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[42] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal.
[43] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
M. Baroni, solicitor, for the Appellant.
M. Gibian, of Counsel, for the Respondent.
Hearing details:
2017
Melbourne via video link to Sydney:
19 May.
1 [2017] FWC 911.
2 PR590552.
3 [2014] FWCFB 7447.
4 Appeal Book, Tab 8 at p 216.
5 (2006) 153 IR 426.
6 (1996) 66 IR 182.
7 (2014) 245 IR 294.
8 Fair Work Act 2009 (Cth) s 604(2).
9 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210, [6].
10 [2010] FWAFB 5343, [27].
11 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210, [7].
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