Jillian Bradshaw v Queensland Baptist Union Carinity T/A Carinity
[2024] FWC 1269
•16 MAY 2024
| [2024] FWC 1269 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Jillian Bradshaw
v
Queensland Baptist Union - Carinity T/A Carinity
(C2024/1110)
| COMMISSIONER SIMPSON | BRISBANE, 16 MAY 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES – Enterprise Agreement ambiguous – Common intention
On 23 February 2024, Ms Jillian Bradshaw (the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. The Applicant was represented by the Independent Education Union (the IEU). Queensland Baptist Union – Carinity T/A Carinity (the Respondent / Carinity) is the Respondent in the matter.
The matter was listed for a private conference on 27 March 2024. At the conclusion of the conference, I requested the Respondent to advise my chambers as to how it wished for me to deal with the dispute. On 5 April 2024, the Respondent requested that I issue a written recommendation in relation to the dispute.
Background
The dispute concerns the interpretation of clause 19 of the Carinity Schools Enterprise Agreement 2021 (the Agreement / the 2021 Agreement). The clause, entitled Progression through Pay Points, states:
“(a)At the end of each 12 months’ continuous employment, an employee will be eligible for progression from one pay point to the next within a level if:
(i)the employee has acquired and satisfactorily used new or enhanced skills within the ambit of the classification, or
(ii)where the employee has demonstrated satisfactory performance for the prior 12 months’ employment.
(b)Where the requirements of 19 (a) have been met, staff will move to the next pay point within their level 12 months after their appointment and annually thereafter.”
Clause 40(c) of the Agreement is also relevant to this dispute. It provides as follows:
“The hours of directed duties for a Teacher/ Trainer are outlined in clause 41, below. To assist in the calculation of hourly rates of pay, and number of hours worked per annum for progression through pay points, Carinity considers that a Teacher/Trainer performs work on an average for 76 hours per fortnight, however a Teacher/ Trainer is not required to attend a school during non-term weeks, subject to the needs of the Employer with regard to professional development and other activities requiring the Teacher’s/ Trainer’s attendance. Any attendance will be within the parameters outlined within this clause 40. To be explicit, 76 hours is a divisor for administrative purposes, and is subject to clause 45. Teacher/ Trainers are not required to attend school outside their hours of directed duties.”
Ms Bradshaw commenced employment with Carinity in March 2021 as a Vocational Education and Training Trainer (VET Trainer) on a part-time basis. She was initially employed at pay point 1, and on 11 August 2022, progressed to pay point 2.
On 17 October 2022, the Agreement commenced operation. The Applicant contends that on 11 August 2023, exactly one year after her last progression, she was eligible to progress to pay point 3, in accordance with clause 19 of the Agreement. However, the Respondent did not progress Ms Bradshaw to pay point 3 at this time.
Applicant’s submissions
The Applicant submitted that she was entitled to progress to pay point 3 on 11 August 2023, as one year had passed since she progressed to pay point 2 on 11 August 2022. The Applicant says this is based on the ordinary meaning of the words in clause 19 of the Agreement.
The predecessor to the Agreement, the Carinity Schools Enterprise Agreement 2017 (the 2017 Agreement), stated at clause 19:
“Progression for all classifications for which there is more than one pay point will be:
(a) For full time Employees, by annual movement to the next pay point
(b) For part time and casual Employees, after 1976 hours”.
Clause 38(c) of the 2017 Agreement is the equivalent of clause 40(c) of the 2021 Agreement. Both clauses in the Agreements have identical wording.
The Applicant noted that the requirement of “1976 hours” in the 2017 Agreement has not been reproduced in clause 19 of the 2021 Agreement. The Applicant submitted this must have been an intentional omission. Therefore, the Applicant contended that clause 19 of the Agreement has an ordinary meaning and does not need to be qualified by clause 40(c). Accordingly, having satisfied the requirements of clause 19(a) and (b), Ms Bradshaw says she was entitled to progress to pay point 3 on 11 August 2023.
Respondent’s submissions
The Respondent submitted that a “technical error” has created a misunderstanding in clause 19 of the 2021 Agreement. Clause 19 of the 2017 Agreement, which the Respondent says was clearer than the 2021 Agreement, provided the requirement for part time employees to attain 1976 hours before becoming eligible for progression. It was submitted there was no intention of either party during bargaining for the 2021 Agreement to remove this requirement.
The Respondent noted that clause 40(c) of the 2021 Agreement is expressed to assist in “the number of hours worked per annum for the progression of pay points”, and that in schedule 1.2 of the 2021 Agreement, the hourly rates provided are calculated by dividing the provided annual rate by 1976.
If part time employees were to progress at the same time as full-time employees, despite having worked fewer hours in the preceding 12 months, the Respondent argues it would be prejudicial to the full time employees. Had this been agreed, the Respondent contended it would have been included in the IEU’s log of claims and would be reflected in the minutes of bargaining meetings. Instead, the Respondent argues that the minutes show that the IEU said words to the effect of, “your pay point and anniversary date is based on 1 year of FTE service in reference to majority of EA’s and Awards”. These minutes, the Respondent says, were confirmed by the IEU.
Consideration
A Full Bench of the Fair Work Commission in AMWU v Berri Pty Ltd[2017] FWCFB 3005 said as follows:
“[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.”
I am satisfied that the language in clause 19 of the 2021 Agreement is ambiguous in that it is susceptible of more than one meaning. The words “12 months’ continuous employment” do not have a plain meaning in relation to part time employees. Had the Agreement said “12 calendar months’ continuous employment”, it could more readily be argued that what clause 19 of the 2021 Agreement intended for the purpose of the progression of part time employees through pay increments was plain and clear. The ambiguity arises because clause 40(c) of the 2021 Agreement is expressed to assist in “the number of hours worked per annum for the progression of pay points.”
Where an enterprise agreement is ambiguous or susceptible of more than one meaning, then evidence of surrounding circumstances is permissible to aid the interpretation. Whilst this is a recommendation, and the Commission does not have before it formal evidence at this stage, it appears to be the case that the issue of the progression through pay points under the 2021 Agreement for part time employees was not the subject of any negotiations between the parties prior to the Agreement being made. The Respondent refers to the minutes of a meeting where it is said the Union representative was recorded as saying words to the effect of, “your pay point and anniversary date is based on 1 year of FTE service in reference to majority of EA’s and Awards” and these minutes were confirmed.
It is noted that the words at clause 38(c) of the 2017 Agreement and clause 40(c) of the 2021 Agreement are identical in referring to “the number of hours worked per annum for the progression of pay points”. It is clear the language in clause 19 of the 2021 Agreement is different to the language in clause 19 of the 2017 Agreement, however the objective facts concerning there having been no discussions about a change to the method for part time employees progressing through pay points from the 2017 Agreement to the 2021 Agreement, and the minutes indicating it was understood pay point progression would be based on 1 year FTE service, supports the conclusion that when assessed objectively, the common intention of the parties was that part time employees would continue to progress through pay points under the 2021 Agreement after the completion of 1976 hours as had been the case under the 2017 Agreement, and the words “12 months’ continuous employment” in clause 19 of the 2021 Agreement was intended to mean 1976 hours.
COMMISSIONER
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