Independent Education Union of Australia v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle T/A Diocese of Maitland-Newcastle Catholic Schools Office
[2019] FWC 123
•9 JANUARY 2019
| [2019] FWC 123 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
s.739—Dispute resolution
Independent Education Union of Australia
v
Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle T/A Diocese of Maitland-Newcastle Catholic Schools Office
(AG2018/2212, C2018/6212)
COMMISSIONER JOHNS | SYDNEY, 9 JANUARY 2019 |
Alleged dispute about any matters arising under the enterprise agreement and Application to vary an agreement to remove an ambiguity or uncertainty - Diocese of Maitland-Newcastle, Catholic Schools Office Staff Enterprise Agreement 2017.
[1] This decision is about whether the Diocese of Maitland-Newcastle, Catholic Schools Office Staff Enterprise Agreement 2017 (CSO EA) will continue to apply to employees who at one stage in their employment with the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (Diocese), by administrative arrangement, ultimately reported through to the Director of Schools of the Catholic Schools Office (CSO), but who now perform the same or similar jobs more broadly within the Diocese under a shared-services model and report to relevant Shared Services Managers.
[2] The matter arises in the context of two applications brought by the Independent Education Union of Australia (IEU) against the Diocese:
a) a dispute matter under section 739 of the Fair Work Act 2009 (FW Act) 1 (Dispute Matter); and
b) an application made under section 217 of the FW Act to remove an ambiguity or uncertainty in the CSO EA (Agreement Matter).
The CSO Agreement
[3] The relevant clauses of the CSO Agreement provide as follows:
“1.2 COVERAGE
1.2.1 This Agreement covers and applies to:
a) The Employer, the Trustees of the Roman Catholic Church for the Diocese
of Maitland-Newcastle.
b) Employees, as defined in clause 1.4 of this Agreement, who work for the
Catholic Schools Office.
c) The Union, Independent Education Union of Australia
[…]
1.4 DEFINITIONS
In this Agreement:
[…]
‘Catholic Schools Office’ (CSO) means the organisation that is responsible for the employment of Employees as defined in paragraph 1.2.1b).
[…]
‘Employee’ means a person employed by the Employer as an Administrative Support Staff Member, an Education, or Professional Officer or as a Psychologist or Counsellor.
[…]
‘Employer’ means the Employer listed in paragraph 1.2.1a).”
[4] In the Dispute Matter the IEU seek a remedy that the CSO EA continues to apply to employees engaged in providing administrative and professional services for Catholic Schools from within the Share Services Unit established by the Diocese.
[5] In the Agreement Matter the IEU want the CSO Agreement amended as follows:
1. Add the following words at clause 1.2.1(addition is underlined):
1.2.1 This Agreement covers and applies to:
a) The Employer, the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle.
b) Employees, as defined in clause 1.4 of this Agreement, who work for the Catholic Schools Office, including Employees engaged in providing administrative and professional services to the Catholic Schools Office from within the Shared Services Unit established by the Employer.
c) The Union, Independent Education Union of Australia
2. At clause 1.4, delete the existing definition of ‘Catholic Schools’ Office’ and replace with the following:
‘Catholic Schools Office’ (CSO) means the organisational unit of the Employer responsible for the establishment and operation of schools.
The hearing
[6] The hearing was conducted in Newcastle on 10 & 11 September 2018. At the substantive hearing the:
a) Applicant was represented by Mr M Gibian of Senior Counsel.
b) Respondent was represented by Mr M Easton of Counsel.
[7] I granted both parties permission to be represented pursuant to section 596 of the FW Act because I was satisfied that, because of the complexity of the matter, I would be assisted in the efficient conduct of the matter if I did so. I was greatly assisted by Messrs Gibian and Easton.
[8] At the hearing the following exhibits were received:
EXHIBIT NO. | DESCRIPTION |
IEU1 | Outline of Submissions of IEU Dated 26/06/2018 |
IEU2 | Submissions in Reply of IEU Dated 31/08/2018 |
IEU3 | Statement of Alun Bamford dated 21/06/2018 |
IEU4 | Statement of Kirrily Gaye Corbett dated 19/06/2018 |
IEU5 | Statement of Kirrily Selway dated 20/06/2018 |
IEU6 | Statement of Kathy Whipp dated 21/06/2018 |
IEU7 | Statement of Darren Gleeson dated 22/06/2018 |
IEU8 | Statement of Carol Matthews Dated 25/06/2018 Plus Annexures |
IEU9 | Amended Statement of Joseph James Stewart Dated 24/06/2018 |
IEU10 | Agent Statistic Summary Document |
IEU11 | Statement of Anthony Trappel dated 22/06/2018 |
IEU12 | Statement of Elise Southam dated 20/06/2018 |
IEU13 | Printout from Website of Catholic Schools Office |
IEU14 | 2017 - 2019 Strategic Plan of the Catholic Schools Office |
R1 | Written Outline of Respondent’s Submissions |
R2 | Witness Statement of Sean Thomas Scanlon dated 18/07/2018 |
R3 | Witness Statement of Sophie Smith dated 18/07/2018 |
R4 | Email of 8 June 2017 and Attached Document |
[9] On 8 November 2018 the parties returned to make final oral submissions. I deal with those submissions below. In coming to this decision I have had regard to the tendered exhibits, the evidence received 2 at the hearings and the final oral submissions.
Background
[10] The following facts are agreed or not otherwise disputed by the parties. Consequently, I make the following findings of fact:
a) The Diocese employs approximately 3,500 employees. 3
b) The Diocese is organised into a number of different agencies, including schools, CatholicCare and St Nicholas Early Education Centres. 4
c) The CSO is a discrete and identifiable operational unit within the Diocese and provides support services to the 58 schools in the Diocese. These services include education, human resources, finance and technology. 5
d) The Diocese is headed by the Bishop William Wright who was appointed in 2011. 6
e) In late 2015 or early 2016 the IEU was approached by its members in the CSO seeking assistance in negotiating an enterprise agreement. Discussions commenced from March 2016 about the possibility of establishing an enterprise agreement that would reflect the existing conditions of CSO employees who were engaged as education officers, professional officers, counsellors/psychologists, and administrative support staff. 7
f) On 1 July 2016 the Director of the CSO, Mr Ray Collins, held a meeting with CSO staff regarding the possibility of an enterprise agreement. A poll was conducted. 84 of 94 eligible voters cast a vote in favour of commencing bargaining. On 8 August 2016, Head of Employee Services, CSO, Mr Garry Muirhead, advised the IEU that the Diocese would commence bargaining. 8
g) On 1 November 2016 the IEU received the first draft of the CSO EA from the Diocese. 9 Negotiations continued regarding its wording until the IEU received the Diocese’s final draft on 6 June 2017.10
h) On 25 May 2017 Bishop William Wright circulated a letter to all staff of the Diocese announcing “Many Parts. One Body. One Mission,” a proposed restructure of Diocesan operations. 11
i) On or around 7 June 2017, whilst bargaining was ongoing for the CSO EA, the IEU became aware of the proposed restructure. 12
j) On 8 June 2017 the IEU sought the following changes to the proposed CSO EA: 13
i. the inclusion of the words “or any body which replaces this body” at the end of the paragraph in Clause 1.2.1 (b);
ii. the inclusion of the words “or any agreement that replaces such EA” in the exclusion contained in Clause 1.2.2 (e); and
iii. an amendment to the definition of Catholic Schools Office as follows “Catholic Schools Office’ (CSO) means the central office (however named) where the provision of Catholic Systemic schooling of the Dioceses is directed, managed and/or controlled.”
Only the second amendment was agreed to.
k) On 13 June 2017 Bishop William Wright wrote to all school staff in the Diocese outlining further steps that would be taken in relation to the restructure. 14
l) Also on 13 June 2017 the IEU wrote to Bishop William Wright seeking clarification on a number of matters. 15 In particular the IEU wanted to know who would act as the employer on a day to day to basis and whether there would be a change in employment conditions.
m) On 15 June 2017 the IEU:
i. wrote to the Diocese to indicate that they would be making a dispute application to the Commission; 16 and
ii. lodged a dispute with the Commission (C2017/3234) about the lack of consultation regarding the restructure. 17
n) On 20 June 2017 the CSO advised the IEU that the agreement was ready to go to a vote bar a few minor changes. Later that day the IEU was advised by a representative of the CSO that the Bishop had directed the CSO EA not proceed to a vote and that the Diocese would now be represented by the Catholic Commission for Employment Relations (CCER). 18
o) On 21 June 2017 IEU members employed at the CSO passed a motion which was sent to the Diocese asking why the vote had been delayed, when the agreement would be distributed for voting, whether anything would change in the agreed agreement and who made decision. 19
p) Also on 21 June 2017 the Diocese advised the IEU that in light of the lodgement of matter C2017/3234, the CSO EA would not proceed to a vote. 20
q) On 23 June 2017 the IEU received a reply to the motion passed on 21 June 2017 from the Catholic Commission for Employment Relations. It confirmed that “the Director of Schools has, and continues to have, delegated authority to negotiate the Enterprise Agreement...” 21
r) On 26 June the IEU wrote to Bishop William Wright stating that a motion was passed by a contingent of mostly primary school principals seeking clarification regarding the restructure. 22
s) On 27 June 2017 in reply to the correspondence from the Diocese on 21 and 23 June 2018, the IEU notified the Diocese of its intention of members to take protected industrial action. 23
t) On 29 June 2017 Bishop William Wright wrote to the IEU in an open letter containing responses to concerns raised in relation to the restructure. 24 He wrote (amongst other things) that:
i. the restructure was in initial stages;
ii. the process might take up to 18 months;
iii. “the proposed CSO enterprise agreement will be put the vote imminently and if successful, will have coverage over CSO staff”; and
iv. during the transition process (while new heads of shared services are recruited) the Director of Schools will continue to have authority over CSO staff.
u) On 4 July 2017 there was a meeting between representatives of the Diocese (the Bishop and Sean Tynan, Manager of Zimmerman Services within the Diocese) and the IEU. In the scheme things, it was likely an important meeting. However, no minutes of the meeting were tendered into evidence. Ms Matthews’ Witness Statement did not record what happened at the meeting. None of the Diocesan representatives who attended the meeting gave evidence.
v) On 6 July 2017 the IEU wrote to Bishop William Wright confirming their understanding of commitments made at the meeting held on 4 July 2017 including that, “There will be no change to conditions of employment of CSO staff.” The letter ended “Please advise if you agree with the outline of the discussions.”
w) On 6 July 2017 the Diocese agreed to take the CSO EA to a vote. 25
x) On 12 July 2017 the Bishop William Wright wrote to the IEU in reply to their letter of 6 July 2017. He wrote, “as discussed, the proposed CSO enterprise agreement will be put to the vote immediately and if successful, will have coverage over CSO staff.” 26
It is to be noted that the Bishop did not confirm that “There will be no change to conditions of employment of CSO staff.”
y) On 26 and 27 July 2017 employees voted on the CSO EA, 27 and that of 125 eligible employees, 112 cast a valid vote to approve the CSO EA.28 That is to say the Agreement was “made” on 27 July 2017. What was the objective intention of the parties on that date is one of the matters to be determined in this matter.
z) On 3 August 2017 the IEU wrote to the Bishop in response to his letter of 12 July 2017. The IEU noted their disappointment that the Bishop had not confirmed there would be “no change to the conditions of employment of CSO staff.”
aa) On 10 August 2017 the Bishop replied. He wrote: 29
“From your letter of 3 August I understand that the IEU is seeking further consultation on members’ terms and conditions as they transition into Shared Services. I had believed the issue had been addressed by my earlier assurances that the Trustees are committed to honouring the “new agreement”, on the assumption that the agreement is approved by the Fair Work Commission, for all staff to whom it is applicable, including those CSO staff transitioning to Shared Services.” (emphasis added) (Undertaking).
Having considered the material tendered in the proceedings, it seems that this is the first time that any express statement was made about CSO staff who were to transition to the Shared Services units.
bb) In response to the letter dated 10 August 2017 the IEU discontinued the dispute matter C2017/3234. 30
cc) On 31 August 2017 the CSO EA was approved by the Commission. 31 Its nominal expiry date is 31 December 2018.
dd) On 18 September 2017, in reply to an undated open letter from the IEU to CSO staff, Father Matthew Muller sent an open letter to staff of the CSO which stated in relation to the Undertaking: 32
“The Diocese is concerned that point #1 is framed as an open-ended commitment, which was not and cannot be given. The Diocese has guaranteed that the “CSO EA will continue to be the industrial instrument applying to all members currently covered by it” for the duration of the current EA.”
ee) On 28 March 2018 the IEU lodged a dispute notification. Subsequently, the Diocese released a Briefing Paper regarding the proposed restructure, this stated:
“All shared Services Staff will retain their current salary and conditions of employment until 31 December 2018. In Particular this means that, while those staff who were working in the Catholic Schools Office (CSO) who transfer to Shared Services will no longer be covered by the CSO Agreement once they transfer out of the CSO, they will nevertheless retain their existing salary and conditions provided for by that Agreement until its expiry date, namely 31 December 2018. This guarantee will be specified in their respective Diocesan contracts.” 33
ff) On 13 April 2018, the IEU wrote to Father Matthew Muller Chancellor of the Diocese requesting further information regarding the restructure to which Father Matthew Muller replied on 19 April 2018. 34
gg) On 9 May 2018, following several meetings between the parties, the IEU wrote to Bishop William Wright, restating that, given the Undertaking, the Diocese proposed actions in the Briefing Paper represented a breach of trust. Further, the IEU asserted that employees who move from the CSO to Shared Services should have their entitlements under the Agreement continued indefinitely by way of contract. 35
hh) On 10 May 2018 the Diocese wrote to the IEU in relation to several issues raised by the IEU. 36
ii) On 18 May 2018 Bishop William Wright wrote to the IEU in response to the correspondence of 9 May 2018 which reiterated the point made in the open letter to CSO staff on 18 September 2017 (i.e. that the Undertaking was not an open-ended commitment, but rather for the duration of the CSO EA). 37
jj) As of 23 July 2018 approximately 33 of the 152 employees who work in the CSO moved to the new unit known as “Shared Services.” 38
Jurisdiction
[11] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.
[12] Clause 739 provides that:
“Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[13] The Agreement contains a dispute resolution clause. It is clause 7.2.1. It provides for the resolution of disputes arising under the Agreement and the National Employment Standrads.
Principles of interpretation
[14] It is necessary to interpret the Agreement having regard to the principles in the 9 June 2017 decision in amwu v Berri (Berri). 39
[15] Prior to Berri the principles relevant to the task of construing an enterprise agreement were summarised in Golden Cockerel 40 as follows:
“1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] 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.”
[16] In 2017 a Full Bench of the Commission modified the above summary in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd (Berri). 41 The Full Bench made the following observations:
“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,42 Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.43 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’. 44
….
[44] There is considerable force in the Appellant’s contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect. It would seem to follow that the inclusion of a laundry allowance in Appendix 3 of the 2014 Agreement should not be regarded as superfluous or insignificant. Such an approach accords with the principles of statutory construction, 45 and, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to the interpretation of enterprise agreements. As the Full Bench observed in Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union:46
‘Australian Paper made the submission that no principle of statutory construction has any application to the interpretation of enterprise agreements, and relied upon the proposition stated in Golden Cockerel that the Acts Interpretation Act 1901 (Cth) does not apply to the construction of enterprise agreements in support of that submission. The submission is rejected. It does not follow from the fact that enterprise agreements are not instruments to which the Acts Interpretation Act applies that modes of textual analysis developed in the general law in the context of the interpretation of statutes are incapable of application to enterprise agreements. While it undoubtedly remains necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument, it is equally the case that there has been a convergence in the approach taken to the interpretation of statutes, agreements and other types of instruments - in particular, in the emphasis on the objective ascertainment of the instrument’s purpose and the move from textual to contextual interpretation. Additionally, many of the grammatical aides to the interpretation of statutes are equally applicable to other types of instruments. In the High Court decision in Royal Botanic Gardens and Domain Trust v South Sydney City Council, Kirby J said “... it would be indefensible for this Court, without good reason, to adopt a different approach in the ascertainment of the meaning of contested language in a contract from the approach observed in respect of legislation”. We therefore do not consider that Golden Cockerel should be taken as an exhaustive statement of the means by which the text of an enterprise agreement might be construed.’ (references omitted)
….
[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided, 47 and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.48 A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement. For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited,49Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:
‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’ 50
[47] We acknowledge that the fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. But it is also relevant that the instrument being interpreted in these proceedings is an enterprise agreement made pursuant to Part 2-4 of the FW Act and, as observed by White J in National Tertiary Education Union v La Trobe University, 51it may be inferred that such agreements are intended to establish binding obligations:
‘The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of [the disputed clause in the agreement]’. 52
[48] Of course his Honour’s observation does not mean that an enterprise agreement may not include ‘matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements’ 53 – so much is clear from Reeves v MaxiTRANS Australia Pty Ltd.54 The fact that the 2014 Agreement is an enterprise agreement made pursuant to Part 2-4 of the FW Act is also relevant to the weight to be given to evidence of prior negotiations, a point to which we shall return shortly.
….
[60] It seems to us that there is an ambiguity in the 2014 Agreement regarding the laundry allowance referred to in Attachment 3. In particular, it is unclear in what circumstances the amount specified is to be paid and to whom. The frequency with which any such payment is to be made is also unclear.
[61] Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa): 55
‘… evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract where it has a plain meaning.’ 56
[62] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:
‘… when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting.’ 57
[63] As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
[64] As to category (i), evidence of prior negotiations will be admissible – but only for a defined purpose. As Mason J observed in Codelfa:
‘Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.’ 58
[65] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Limited: 59
‘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.’
….
[88] The diversity of interests involved in the negotiation and making of enterprise agreements warrants the adoption of a cautious approach to the admission and reliance upon evidence of positions advanced during the negotiation process. As Rares J recently observed, in Australian International Air Pilots Association v Qantas Airways Limited: 60
‘Substantially, the Act provided that the agreement was a tripartite document between a body of employees, a corporation with numerous officers and an industrial association. The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity. It is important, in doing so, to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who had sought to protect their differing interests by various formulations of words in it. Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79], Gray J said:
“In the days when an award might be negotiated between a union and an employer, and made by consent, the existence of a common understanding between the union and the employer as to the meaning of terms might have had some role to play in their construction. Whatever were the terms of such an agreement, and whatever their meaning was, those terms were imposed upon the employees who became bound by the award. In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past.”‘
….
[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged.
[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction. 61 But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.62
[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, 63a majority of the High Court adopted the ‘general principle’ that ‘it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made.’ Of course, the expression ‘general principle’ is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):64
‘It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.’
[104] As Allsop P observed in Metcash (at [6]), ‘much ink has been spilt over the last 30 years on this topic’. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct, 65 but no clear consensus appears to have emerged.
[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd 66gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:
‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’ 67
[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties.
[107] We also note that in Spunwill 68 Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd 69:
‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’”
[17] The Full Bench in Berri then modified the summary set out in Golden Cockerel in light of the observations made in the course of our decision:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[18] I adopt the Berri principles. Consequently, it is necessary to:
a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement;
b) determine whether the Agreement has a plain meaning;
c) review the text of the Agreement as a whole;
d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome;
e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement;
f) not adopt an overly technical approach to the interpretation of the Agreement; and
g) not contradict the plain language of the Agreement.
Principles applicable in s.217 matters
[19] The application has been made under s.217 of the Act, which provides as follows:
“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty
(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
[20] In 2002 a Full Bench of the Australian Industrial Relations Commission in Re Tenix Defence Systems Pty Limited 70 (Tenix) outlined what was considered to be the proper approach to be taken when determining an application to remove an ambiguity or uncertainty pursuant to s.170MD(6) of the Workplace Relations Act 1996, a provision whose terms are similar to s.217 of the 2009 Act:
“[28] Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.
[29] The first part of the process - identifying an ambiguity or uncertainty - involves an objective assessment of the words used in the provision under examination. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Re Linfox - CFMEU (CSR Timber) Enterprise Agreement 1997:
“The identification of whether or not a provision in an instrument can be said to contain an `ambiguity’ requires a judgment to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the `parent’ award with which a complimentary provision is to be read.”
[30] We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect.
[31] The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.
[32] Once an ambiguity or uncertainty has been identified it is a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.
[33] We agree with Tenix that the first step in dealing with a s.170MD(6)(a) application - the identification of an ambiguity or uncertainty - requires the determination of a `jurisdictional fact’. In Corporation of the City of Enfield v Developmental Assessment Commission the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ described the term `jurisdictional fact’ in these terms:
`The term `jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.’
[34] Similarly in Re: CFMEU - Termination of Bargaining Periods, Lee and Madgwick JJ said:
`... the question presents as one of whether the Commission may have erred as to a `jurisdictional fact’, that is, the existence or non-existence of a state of affairs which was a statutory precondition to the Commission acting ...’
[35] In the context of s.170MD(6)(a) the Commission must first identify the existence of an ambiguity or uncertainty before exercising its discretion to vary the agreement. We agree with the Full Bench in Re: CFMEU Appeal which described the existence of an ambiguity or uncertainty as `a necessary statutory prerequisite to any variation being made.’
[36] In dealing with an appeal from the determination of a jurisdictional fact a Full Bench of the Commission is concerned with whether the member at first instance reached the right conclusion. It is not concerned simply with whether the decision of the single member was reasonably open to him or her. As Gummow J pointed out in Minister for Immigration and Multicultural Affairs v Eshetu, a court or tribunal cannot give itself jurisdiction by erroneously deciding that a jurisdictional fact exists. In our view the converse also applies - an erroneous decision about the non-existence of a jurisdictional fact would be a constructive failure to exercise jurisdiction.
…
[53] On balance we find that the extent to which Appendix 3 of the Agreement can be said to regulate work cycles for the period during which the Agreement is in operation is ambiguous and uncertain. In our view it is arguable that there is some question as to the status of the calendar - what obligations or entitlements does it create in the context of the Agreement and the Award? The absence of express provisions stating that the RDOs will be observed on, and cannot be altered from, the days in the calendar gives rise to an ambiguity or uncertainty.
[54] As we have identified an ambiguity or uncertainty in the Agreement it is now a matter of discretion as to whether or not the Agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the Commission is to have regard to the mutual intention of the parties at the time the Agreement was made.
…
[57] ... In the proceedings before us Tenix conceded that if we formed the view that the objectively ascertained mutual intention of the parties was that the work cycle implicit in Appendix 3 was to remain unchanged for the life of the Agreement then we could properly give effect to that intention by varying the Agreement pursuant to s.170MD(6).
[58] To the extent that it is necessary to do so we have decided that the approach adopted by the Commissioner, in limiting his consideration of the issue to the variations proposed by Tenix, amounted to an error warranting correction on appeal.”
[21] In June 2003 the decision of Senior Deputy President Marsh in Beltana Highway Mining Pty Ltd 71 (Beltana) sets out a summary of the relevant principles (citing Tenix) to be applied in relation to applications to vary an agreement to correct an ambiguity (presently s.217 of the FW Act):
“[23] The following guidance can be discerned from authorities which have dealt with s.170MD(6) applications:
• before exercising its discretion to vary an agreement pursuant to s.170MD(6)(a) the Commission must first identify the ambiguity or uncertainty (PR917548 at para.28, Print M2454 at p.3, Print 2431 at para.8);
• the Commission may then exercise the discretion to remove the ambiguity or uncertainty by varying the agreement (PR917548 at para.28, PR903843 at para.7, Print M2454 at p.4);
• the first step i.e. identification of an ambiguity or uncertainty requires the determination of a “jurisdictional fact” (PR917548 at para.33, 199 CLR 135 at 148);
• the correct approach to identifying an ambiguity or uncertainty requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning (PR917548 at para.49, PR903843 at para.7, Print M2454 at p.3);
• the words used in the provision are construed in their context including where appropriate the relevant parts of the parent award with which a complementary provision is to be read (Print Q2603 at para.30 per Munro J);
• s.170MD(6)(a) is not confined to the identification of which words of a clause give rise to an ambiguity or uncertainty. A combination of clauses may have that effect (Print R2431 at para.12);
• the Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention (Print M2454 at p.4, Print R2431 at para.14);
• the Commission’s task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. It must avoid contentions that are “self serving” (PR924146 at para.20 and PR903843 at para. 7);
• the second step in the process is the exercise of discretion as to whether or not an agreement should be varied to remove the ambiguity or uncertainty (PR917548 at para.54);
• the Commission may not appropriately use its power to rewrite an agreement to install something that was not inherent to the agreement when it was made (Print Q2603 at para.29);
• the Commission is to have regard to the mutual intention of the parties at the time the agreement was made (PR917548 at para.54) and subsequent conduct of the parties;
• the Commission is empowered to remove an ambiguity or uncertainty by varying an agreement to remove it in a manner which gives effect to the mutual intentions of the parties at the time the agreement was made. The Commission is not limited by the form of the application before it (PR917548 at para.56);
• in looking at the context of a provision the Commission is entitled to consider (46 IR 128 at p.134):
• the effect of a prefatory statement made by the parties at the time when it was introduced into the award;
• the circumstances of the origin and use of the clause;
• the time when and the circumstances under which the instrument is made;
• the entire document of which the contentious provision is part or other documents with which there is an association;
• ideas that give rise to an expression in a document.
[24] In summary, the task is to make an objective judgment as to whether the wording of a provision(s) is susceptible to more than one meaning. If that judgment is in the affirmative then the Commission may exercise its discretion to decide whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.”
[22] The approach in Beltana has been endorsed by numerous first instance decisions of this Commission. 72 Most recently, in Sunfresh Health Pty Ltd,73 Deputy President Asbury summarised the principles applicable to s.217 matters:
“[11] An ambiguity or uncertainty must be identified as a jurisdictional fact before the Commission’s power to vary an Agreement is enlivened under s.217 of the Act. 74 There is no clear test for determining when an ambiguity exists75 but the Commission will generally err on the side of finding an ambiguity or uncertainty where rival contentions are advanced and there is an arguable case made out for more than one contention76. However, the Commission must make an objective assessment about whether, on the proper construction of the Agreement, it is susceptible to more than one meaning.77 Even if an ambiguity or uncertainty is found it remains a discretionary matter whether the Commission will make a variation to the Agreement having regard to the mutual intention of the parties at the time of making the Agreement.”78
[23] On 7 June 2017 Tenix was applied by a Full Bench in Monash University v NTEU. 79 This is 2 days before the decision in Berri.
[24] However, it should be noted that the Commission has also applied the Golden Cockrel/Berri principles of agreement interpretation in the context of s.217 applications. For example:
a) Deputy President Sams in MSS Security Pty Ltd t/as MSS Security applied the principles of Golden Cockrel; 80 and
b) on 27 July 2018 a Full Bench in CFMEU v Macmahon Contractors Pty Ltd applied Berri with no mention of Tenix or Beltana. 81
[25] This raises a question about which line of authority applies in s.217 matters, Beltana/Tenix vs Golden Cockrel/Berri or some combination of the two.
[26] Having regard to the chronology of Full Bench decisions I think the better view is that the Golden Cockrel/Berri line is the prevailing view. Berri was handed down 2 days after Monash University v NTEU. The Berri decision is then cited in CFMEU v Macmahon Contractors Pty Ltd. Although Berri makes no mention of Tenix/Beltana, it is significantly more recent and considers the FW Act (although not s.217 directly). The October 2018 decision in Sunfresh appears to be an outlier in its continuing reference to the Tenix/Beltana line of authority. This is likely an indication of how the matter was conducted noting that the employer made the application and there was no opposition to it (no union was covered by the agreement in question).
[27] Consequently, in considering the question of ambiguity in the present s.217 application I have decided to apply the Berri principles. It is not enough that the Agreement might be said simply to be susceptible to more than one meaning. Therefore, I have decided not to err on the side of finding an ambiguity or uncertainty just because rival contentions have been advanced.
Submissions
[28] The IEU made the following written submissions:
“Introduction
1. There are two proceedings before the Commission on application by the Independent Education Union (“the IEU”). Both proceedings concern a restructure which is being implemented in the delivery of certain administrative and professional services within the Maitland-Newcastle Diocese of the Catholic Church.
2. The two proceedings are as follows:
(a) A dispute notified to the Commission under clause 7.2, Dispute Resolution Procedures, of the Diocese of Maitland-Newcastle, Catholic Schools Office Staff Enterprise Agreement 2017 (“the Enterprise Agreement”); and
(b) An application under s 217 of the Fair Work Act 2009 (“the FW Act”) seeking to vary the Enterprise Agreement to remove an ambiguity or uncertainty in relation to the coverage of the Agreement.
3. Both the dispute proceedings and the variation application concern the coverage of the Enterprise Agreement of employees providing administrative and professional services in relation to catholic schools in the diocese. With effect from July 2018, the respondent intends to transfer employees performing information technology, human resources and payroll functions for catholic schools from the Catholic Schools Office to a new administrative unit to be known as “Shared Services”.
4. The IEU submits that:
(a) The Enterprise Agreement, on its proper interpretation, covers employees performing information technology, human resources and payroll functions for catholic schools whether or not they are purported to be transferred to another administrative unit established by the respondent; and
(b) In addition, or in the alternative, the Enterprise Agreement should be varied to remove an ambiguity or uncertainty so as to make clear that it covers employees performing information technology, human resources and payroll functions for catholic schools even if transferred to a new Shared Services unit.
Background to the Proceedings
5. Bargaining with respect to the Enterprise Agreement took place from around November 2016 to August 2017. The proposed Enterprise Agreement was put to a vote of employees on 6 July 2017 and, on 28 July 2017, the IEU was informed that the employees had voted to approve the Agreement.82 The Enterprise Agreement was approved by Commissioner Lee on 31 August 2017 in Diocese of Maitland-Newcastle, Catholic Schools Office Staff Enterprise Agreement 2017 [2017] FWCA 4536.83
6. On or around 7 June 2017, whilst bargaining was ongoing, the IEU became aware of a proposal to restructure the Catholic Schools Office.84 The proposal to integrate services within the diocese had been announced to staff by notification dated 25 May 2017 under the title “Many Parts. One Body. One Mission” which indicated that senior leaders of the diocese intended to bring together resources and services that all areas of the curia may benefit from.85
7. On 15 June 2017, the IEU notified a dispute in relation to lack of consultation about the proposed restructure.86 On 20 June 2017, the respondent informed the IEU that it would not put the Enterprise Agreement to a vote having regard to the dispute notification.87 By letter dated 21 June 2017, the Catholic Commission for Employment Relations expressed the view that the dispute raised “a number of questions about the proposed enterprise agreement covering staff in the Catholic Schools Office Maitland-Newcastle” and confirmed that a vote would not be held until the dispute was resolved.88
8. The IEU and the respondent then communicated in relation to the dispute. A meeting between the parties took place on 4 July 2017. By letter dated 6 July 2017, the IEU communicated its understanding of commitments given by the respondent at the meeting, including noting its understanding that the diocese had committed that:89
3. There will be no change to conditions of employment of CSO staff.
9. By letter dated 12 July 2017, the Bishop of Maitland-Newcastle, the Most Reverend William Wright, indicated that:90
3. as discussed, the proposed CSO enterprise agreement will be put to a vote imminently and if successful, will have coverage over CSO staff;
…
10. By letter dated 3 August 2017, the IEU sought a more direct response to the concerns it had raised.91 By letter dated 10 August 2017, Bishop Wright again wrote to the IEU confirming that there would be no change to the employer of staff as a result of the restructure and that the staff would simply now be grouped in a new “administrative construct”. The letter continued by stating as follows:92
From your letter of 3 August I understand that the IEU is seeking further consultation on members’ terms and conditions as they transition into Shared Services. I had believed the issue had been addressed by my earlier assurances that the Trustees are committed to honouring the ‘new agreement’, on the assumption the agreement is approved by the Fair Work Commission, for all staff to whom it is applicable, including those CSO staff transitioning to Shared Services.
11. Given the assurances received from Bishop Wright in the letter of 10 August 2017 in relation to the application of the new Enterprise Agreement, the IEU discontinued the dispute proceedings in matter number C2017/3243.93
12. The present dispute proceedings were commenced in March 2018 following renewed uncertainty as to the conditions to be afforded to employees who transferred to the new Shared Services unit. Subsequently, the respondent released a briefing paper in relation to the proposed restructure entitled “Many Parts. One Body. One Mission. Briefing Paper”. The briefing paper recorded:94
105 Statement of Darren Gleeson, para 18.
106 Statement of Carol Matthews, CM6 p64.
107 Per the ‘Outline of Submissions of the IEU’ dated 26 June 2018 at [34(a)].
108 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union knows as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [114], (2017) 268 IR 285 at 310.
109 AMWU v Berri Pty Limited[2017] FWCFB 3005 at [106]-[107], (2017) 268 IR 285 at 309.
110 ‘Outline of Submissions of the IEU’ dated 26 June 2018 at [34] and [39].
111 Save for the stated exceptions. This seems to be an agreed understanding of the words used - per ‘Outline of Submissions of the IEU’ dated 26 June 2018 at [20].
112 See Annexure CM2 to the Statement of Carol Matthews.
113 Per Australasian Meat Industry Employees Union v Woolworths Ltd (2009) 195 IR 5, [2009] FWA 849 and other authorities in relation to scope orders under s.238.
114 Save for clause 1.2.2. where some excluded employees are identified by their role.
115 See principle 15 of paragraph 114, viz:
In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.
116 Coinvest v Visionstream (2004) 134 IR 43 at 55, PR947076, [2004] AIRC 487 at [57].
117 Per the ‘Outline of Submissions of the IEU’ dated 26 June 2018 at [34(c)].
118 At [12] citing Re Australian and International Pilots Association [2007] AIRC 303; (2007) 162 IR 121.
119 See Toyota Motor Corporation Australia; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Toyota Motor Corporation Australia[2010] FWA 9254 at [8] and Mermaid Marine Vessel Operations Pty Ltd re Mermaid Marine Vessel Operations Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010[2012] FWAA 2051 at [58]-[63].
120 Per Toyota Motor Corporation Australia; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Toyota Motor Corporation Australia[2010] FWA 9254 at [8].
121 Outline of the Respondent’s Submissions, para 15, 16, 22 and 24.
122 Outline of the Respondent’s Submissions, para 11, 15, 16 and 17.
123 See Outline of the Respondent’s Submissions, para 12.
124 Statement of Carol Matthews, CM9 p89.
125 Outline of the Respondent’s Submissions, para 16-22.
126 Outline of the Respondent’s Submissions, para 25-26.
127 See AMWU v Berri Pty Limited (2017) 268 IR 285 at [114](8).
128 Outline of the Respondent’s Submissions, para 26.
129 Statement of Carol Matthews, CM9 p88-91.
130 Statement of Carol Matthews, CM9 p90.
131 Outline of the Respondent’s Submissions, para 29.
132 Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 (unreported, AIRC (FB), PR917548, 9 May 2002) at [31]; Re 4 Yearly Review of Modern Awards — Horticulture Award 2010 (2017) 270 IR 253 at [162].
133 Re Public Service (Non Executive Staff — Victoria) (Section 170MX) Award 2000 (unreported, AIRC, Polites SDP, T3721, 24 November 2000); Re 4 Yearly Review of Modern Awards — Horticulture Award 2010 (2017) 270 IR 253 at [152].
134 Outline of the Respondent’s Submissions, para 37-38.
135 Outline of the Respondent’s Submissions, para 41.
136 Outline of the Respondent’s Submissions, para 45-58.
137 See, for example, s 170MD(6) of the Workplace Relations Act 1996 (Cth).
138 See ss 240, 368-369, 526, 595, 739 and 776-777.
139 PN1978.
140 PN1979.
141 PN1980
142 PN1981.
143 PN1982.
144 PN1986-1990.
145 PN1991-1992.
146 PN1995-1997.
147 PN1998-2002.
148 PN2005-2008.
149 PN2012-2015.
150 PN2016-2019.
151 PN2025-2026.
152 PN2026-2027.
153 PN2036.
154 PN2043-2045, 2068-2970.
155 PN2047-2048
156 PN2062-2065.
157 PN2071.
158 PN2086-2096.
159
160 PN2102-2115.
161 PN2117-2120.
162 PN2125, PN2142.
163 PN2129.
164 PN2127-2129.
165 PN2132-2133.
166 PN2134 -2137.
167 PN2138-PN2141.
168 PN2144-2147.
169 PN2148-2160.
170 PN2162 -PN2171.
171 PN2173-2185.
172 PN2191-PN2210.
173 (1986) 18 IR 444.
174 PN2211-PN2226.
175 PN2239-2241.
176 It can also be a conjunction.
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