Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Limited

[2015] FWCFB 4994

[2015] FWCFB 4994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Maritime Union of Australia, The
v
Patrick Stevedores Holdings Pty Limited
(C2015/4158)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BOOTH
COMMISSIONER ROBERTS SYDNEY, 23 JULY 2015

Appeal against decision [2015] FWC 2990 of Vice President Watson at Melbourne on 14 May 2015 in matter number C2014/6816.

[1] The following decision, now edited was issued during proceedings conducted on 22 July 2015.

[2] This is an appeal by the Maritime Union of Australia against a decision 1 (Decision) of Vice President Watson made on 14 May 2015 in relation to an application made by Patrick Stevedores Holdings Pty Limited pursuant to s.739 of the Fair Work Act 2009 (the Act).

[3] We have had the opportunity of considering and taking into account the detailed written and oral submissions of the parties in reaching our decision.

[4] In our view Vice President Watson correctly outlined the principles for interpreting an enterprise agreement at paragraph 14 of his decision as follows:

“Principles of Interpretation

[14] It is important to note the principles for interpreting an enterprise agreement arising from various High Court and Federal Court decisions. These are conveniently summarised in a recent Full Bench decision as follows:

“1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. (our emphasis)

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 (sic) 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.”

[5] We adopt these principles.

[6] Where we disagree with Vice President Watson is in his application of the principles. Applying the principles correctly, we consider that the agreement has a plain meaning and is not ambiguous.

[7] That two parties disagree about the meaning of a term of an agreement does not render it ambiguous.

[8] Given our finding that the agreement has a plain meaning, evidence of the surrounding circumstances should not have been admitted to contradict the plain language of the agreement.

[9] At the outset of the hearing today we provided the parties with calculations that represent our view of the obligations that, given the events that transpired, arose from the plain reading of the relevant terms of the agreement.

[10] Our calculations arise from a plain reading of the relevant terms of the agreement in their context and take into account the purpose of the agreement. The context includes the agreement as a whole and the legislative context of the Superannuation Guarantee legislation and the Federal Government’s policy at the time of making the agreement.

[11] We conclude that the agreement means that subject to, (colloquially expressed) “a productivity threshold” being reached, 0.75% is to be added annually to the rate contained in the Maritime Super Trust Deed and Rules (or the minimum benefit payment in accordance with Superannuation Guarantee legislation for those who are eligible, but do not join Maritime Super). We consider that this rate is the “superannuation rate” referred to in the agreement.

[12] Permission to appeal is granted and the appeal is upheld. We quash the Decision and determine that the current superannuation contribution should be 11.75% in accordance with the agreement.

VICE PRESIDENT

Appearances:

S Crawshaw SC and A Jacka for the MUA.

Y Shariff of counsel instructed by M Parker for the Respondent.

Hearing details:

Sydney

2015

22 July;

 1  [2015] FWC 2990.

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