Maritime Union of Australia v Viterra Limited
[2015] FWC 7512
•3 DECEMBER 2015
| [2015] FWC 7512 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Maritime Union of Australia
v
Viterra Limited
(C2015/4507)
VITERRA LTD BULK LOADING PLANTS ENTERPRISE AGREEMENT 2012 Stevedoring industry | |
COMMISSIONER HAMPTON | ADELAIDE, 3 DECEMBER 2015 |
Dispute about terms of an enterprise agreement – agreed arbitration – what constitutes a “meeting” of consultative committee under enterprise agreement – whether video or telephone conferencing are appropriate – approach to construction of instrument discussed – context and terms of agreement considered – meetings may be conducted by telephone or video-link – recommendations made as to how meetings should be conducted in the future.
1. The context for the dispute
[1] The Maritime Union of Australia (MUA) has made an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute in accordance with a dispute resolution procedure.
[2] The application relies on the dispute resolution procedure set out in clause 3.2 of the Viterra Ltd Bulk Loadings Plants Enterprise Agreement 2012 1(the Enterprise Agreement). The Enterprise Agreement covers the Respondent in this matter, Viterra Limited (Viterra). The Enterprise agreement also covers the MUA and applies to relevant employees employed at Viterra Bulk Loading Plants.
[3] The parties agree firstly, that the Commission should determine the dispute by arbitration in accordance with clause 3.2 of the Enterprise Agreement, and secondly, that the matter can be determined on the materials filed without the need for a hearing.
[4] The parties have followed the process required by clause 3.2 of the Enterprise Agreement and I am satisfied that the Commission is empowered 2 to determine this dispute as agreed by the parties. Neither party sought to contest the witness statements provided in this matter, and in that light, I also considered that it was appropriate to determine this matter based upon the written submissions and evidence.
2. What the dispute is about
[5] The dispute essentially concerns the meaning and import of the word “meeting” in the context of clauses 3.1.5 and 3.1.6 of the Enterprise Agreement, as set out below:
“3.1.5 The Viterra Bargaining Unit will receive the appropriate training, which will be discussed and approved by the parties involved. Viterra Management shall be responsible for arranging and conducting meetings of the Viterra Bargaining Unit.
3.1 .6 Meetings are to be held once every six months and as required.”
[6] The dispute arose in the context of Viterra proposing to conduct one or more meetings of the Viterra Bargaining Unit (VBU), which is the principal consultative structure operating under the Enterprise Agreement, using telephone facilities.
[7] The MUA position is that clauses 3.1.5 and 3.1.6 of the Enterprise Agreement require a meeting to be held in-person. Further it contends that this is the most appropriate method for conducting negotiations such as those involving the making of enterprise agreements.
[8] Viterra’s position is that it is not necessary that meetings of the VBU occur in-person and that conducting meetings via teleconference or, for example video-link, also complies with clauses 3.1.5 and 3.1.6 of the Enterprise Agreement. Further, it contends that advancements in modern technology make this an increasingly convenient option for all concerned.
3. The detailed positions of the parties
3.1 MUA
[9] The MUA contends, in effect, that a meeting for the purposes of clause 3.1 of the Enterprise Agreement means a meeting conducted in person. It does so on the following basis:
● The VBU was in operation prior to the making of the enterprise agreement and it met in-person;
● There was no agreement during the negotiations of the enterprise agreement that meetings would not be conducted in-person and the understanding of those involved from the MUA was that in-person meetings would continue; and
● As a result of a recommendations issued by the Commission in an unrelated dispute matter in late 2014, the company convened a telephone conference to meet and discuss the issues in dispute in that matter. Despite the meeting being conducted by telephone, the MUA did participate although due to the inability for participants on the telephone to hear clearly or discern who was speaking the matters in dispute remained largely unresolved. No further meetings have been held.
[10] The MUA also contends that the term “meeting” is used within the Enterprise Agreement separately to that of a conference (clause 8.3.1 and clause 9.2.1) and that a teleconference was more consistent with being a “conference” rather than a “meeting”. Further, the ordinary meaning 3 of a meeting was that it would involve a physical gathering of those participating.
[11] The MUA further contends that given the locations and distances between the ports, interaction between employees for the purposes of understanding how other ports work is limited and this is best facilitated by meeting in-person. In addition, face to face meetings are the best form of consultation.
[12] Finally, the MUA contends that it would never have “allowed clause 3.1 to be agreed” 4 if it meant anything other than face-to-face meetings.
[13] The MUA relies upon witness statements from two of its South Australian officials; namely, Mr Jamie Newlyn, SA Branch Secretary, and Mr Campbell Duignan, Organiser.
[14] In reply submissions, the MUA also contended that the reliance upon the approach taken by the Courts to meeting under Corporations law, as contended by Viterra, was both misplaced and wrong.
3.2 Viterra
[15] Viterra accepts that the term “meeting” in the context of clause 3.1 of the Enterprise Agreement is unclear and ambiguous. However, the ordinary meaning of the term contemplates a meeting going beyond the sense of meeting face to face and can occur using modern communication technology, such as by telephone.
[16] Viterra further contends that a technical and strict approach to the construction of the provision would result in a narrow interpretation, which was not to be preferred. Rather, a broad interpretation that accepted the use of technology and recognised the practical circumstances of the business was more appropriate and should be applied.
[17] Those practical circumstances included the fact that Viterra has operations and personnel all over Australia, and the world, and it was common practice within the business to conduct meetings by telephone or using video-link facilities.
[18] In terms of the broader context of the clause and the Enterprise Agreement, Viterra contends that:
● The purpose of clause 3.1 is to facilitate effective communications and the requirement to attend in-person would limit both the number of meetings and the number of personnel that could be released to attend given the locations of many of the employees and management staff;
● Clause 10.1 of the Enterprise Agreement directly contemplates meetings of the BLP Safety Committee by phone and this confirms that a meeting for the purpose of the Enterprise Agreement can include meeting by phone; and
● There is a difference between a meeting and a conference, with the latter meaning seminar-style work or union training conferences and not teleconferences, but in any event, participation in a teleconference falls more naturally within the concept of a “meeting” and not a “conference”.
[19] In relation to the intention of the parties, Viterra contends that the subjective intention of the parties in drafting the agreement should be considered and that it communicated its intention during the negotiations for VBU meetings to be conducted by phone, and no objections were taken.
[20] Viterra also contends that the adoption of the MUA’s approach would lead to significant additional costs for the business and considerable inconvenience for the members of the VBU. This, it argued, should be avoided.
[21] It further argued that the fact the bargaining unit, which conducted the negotiations leading to the Enterprise Agreement, met in-person should not dictate how the VBU should operate under the terms of that Agreement.
[22] Viterra also sought to rely upon the attitude adopted by the Courts to the concept of meetings in corporation law to support the proposed broad approach to the provision. 5
[23] Viterra relied upon the witness statement of Mr Benjamin Norman, Director of Human Resources Australia/NZ - Glencore Grain.
4. Consideration
4.1 The approach to the interpretation of enterprise agreements
[24] Recently, a Full Bench of the Commission outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. In The Australasian Meat Industry Employees Union v Golden Cockeral Pty Limited 6 the Full Bench summarised the position in the following terms:
“[41] From the foregoing, the following principles may be distilled:
1. The AI Act 7 does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
[25] I have applied this approach in determining this dispute.
[26] In Geo A Bond & Co Ltd (In Liq) v McKenzie, 8 Street J said:
"...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award."
[27] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:
“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.”9
[28] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd 10 in the following terms:
“6. No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.
… …
8. That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position.”
[29] These observations are consistent with the approach taken in Golden Cockeral. In the end result, my present task is to ascertain the common objective intention based upon the language and terms of the Enterprise Agreement, when read as a whole, and considered having regard to its context and purpose.
4.2 The context
[30] For reasons outlined above, it is important to consider the context in which the Enterprise Agreement was made and is to operate. That context is potentially relevant to the assessment of whether there is any ambiguity about a provision as well as to how any ambiguity should be resolved.
[31] Context in this present matter includes the operation of the business, the history of the provision, and the terms of the Enterprise Agreement when read as a whole.
4.2.1 The operations of Viterra covered by the enterprise agreement
[32] Viterra is a wholly owned subsidiary of Glencore Grain, and has extensive operations across Australia, servicing growers and both domestic and international grain markets.
[33] In southern Australia, Viterra has a significant storage and handling network spanning many of the key grain growing regions. This includes both regional and port terminal networks including those previously operated by SA Co-operative Bulk Handling Limited, ABB Grain Ltd and Southern Wharf Services Pty Ltd.
[34] The Enterprise Agreement covers Bulk Loading plants at Port Adelaide, Wallaroo, Port Giles, Port Lincoln and Thevenard, all in South Australia. Viterra has its local head office in Adelaide and each of the plants, with the exception of Port Adelaide, are some distance from the Head Office. All plants are also some distance apart from each other and are located as follows:
● Port Giles is situated on the eastern side of Yorke Peninsula, 217km by road and 35 nautical miles from Adelaide;
● The Port of Wallaroo is situated on the eastern side of Spencer Gulf, 160km by road and 197 nautical miles from Adelaide;
● Thevenard is situated on the west coast of South Australia, 793km by road, 367 nautical miles and 550km by air from Adelaide;
● Port Lincoln is situated at the southern tip of Eyre Peninsula, 682 km from Adelaide by road and 280km west by air; and
● Port Adelaide is situated near the mouth of the Port River and is approximately 25 km by road from the Adelaide CBD.
[35] All ports, with the exception of Wallaroo and Port Giles, have some access to commercial air services.
[36] Viterra conducts a number of its regular management and staff meetings by telephone and it is in the process of installing video-link facilities in the west coast areas of its operations.
4.2.2 The history of the provision
[37] Previous industrial instruments applying to the parties (or their predecessors) contained various provisions dealing with consultation. These generally established a consultative structure and contemplated meetings but did not specify how, or how often, these were to be conducted. There is no direct evidence about whether these committees met as consultative mechanisms under the relevant agreement, and if so, how.
[38] The present clause 3.1 was developed and agreed during the negotiations leading to the 2012 Enterprise Agreement. The final clause was based in large part upon its predecessor provision 11 and the parties discussed and agreed that the clause should additionally provide that a meeting of the VBU should be held every six months and as required.
[39] It is the evidence of Mr Norman that during a bargaining discussion on 25 July 2012 he discussed the concept of the VBU meetings taking place by telephone however this is disputed by Mr Duignan who was also at that session. At its highest, the evidence of Mr Norman is that no objection was taken to the concept. Ultimately, I do not need to resolve that dispute given that on either account, a common objective view that the provision would operate in that manner was not formed in the sense contemplated by Cockerall.
[40] The VBU has been formed for the purposes of the agreement provision and although its precise membership may vary, I understand that it comprises four head office management representatives together with managers as appropriate from each of the plants, depending upon the nature of the issues being considered. The employee representatives comprise one elected member from each of the plants (with one each from the inner and outer harbour loading plants at Port Adelaide). The MUA also participates in the VBU.
[41] There has been one “meeting” of the VBU under the 2012 Enterprise Agreement, conducted by telephone on 9 January 2015. The fact that this “meeting” was not conducted in-person was disputed by the MUA at that time. I will deal with the implications of this event as part of my consideration of the primary issue.
[42] Viterra also proposed to conduct a further “meeting” by telephone in July 2015 and this did not take place but ultimately lead to this arbitration.
4.2.3 Other provisions of the Enterprise Agreement
[43] It is important to consider the whole of clause 3.1, which provides as follows:
“Clause 3.1 - Consultative Mechanism
3.1.1 The parties agree that the effective operation of this Agreement is dependent on the continuation of the established Consultative Structures within the workplace.
3.1.2 The principal Consultative Structure is the Viterra Bargaining Unit.
3.1.3 The Viterra Bargaining Unit will consist of:
• Employer representatives nominated by the Company;
• Elected members from the BLP operators from the workforce from each location;
3.1.4 A party may appoint another person, organisation or association to accompany or represent them.
3.1.5 The Viterra Bargaining Unit will receive the appropriate training, which will be discussed and approved by the parties involved. Viterra Management shall be responsible for arranging and conducting meetings of the Viterra Bargaining Unit.
3.1 .6 Meetings are to be held once every six months and as required.”
[44] The Enterprise Agreement also establishes its objectives and purpose through the following provisions:
“Clause 2.2 - Intent and Objectives
The objectives of this Agreement are to:
• Ensure that the parties are compliant with this Agreement;
• Create a co-operative and safe work environment;
• Provide a more flexible and adaptable work practices to meet client needs;
• Establish more effective communication between the Company, its clients and its employees;
• Be better trained, multi skilled and provide for a flexible workforce;
• Improve job security, career paths and employment opportunities;
• Maintain a high standard of occupational health, safety and welfare, environmental responsibilities;
• Increase productivity to improve the quality of the Company's product and services;
• Ensure that the Company improves its operational systems and procedures; and
• Introduce new technology and associated changes, where appropriate to maintain and enhance the Company's competitiveness in both Australian and overseas markets.
Clause 2.3 - Introduction and Purpose
2.3.1 The purpose of this Agreement is to establish:
2.3.1.1 A work culture where there is a constructive, positive and consultative approach to Industrial Relations in the workplace;
2.3.1.2 A clear commitment from all parties to increase efficiency and productivity in a safer and more congenial work environment where training and skill development are integral parts of those aims;
2.3.1.3 The working environment which provides security of tenure and potential for increased employment, better wages, conditions and overall benefits to the Company and its employees.
[45] Clause 8.3 makes separate reference to “conferences” and “meetings” in the following terms:
“Clause 8.3 - Overtime while Travelling
8.3.1 With consultation and agreement, if an Employee is required to travel outside normal working hours for a specific job task, training courses, conferences, meetings or non-job specific purpose, the time required for travelling will stand alone and will be considered as normal time and normal rates will apply. The time paid will be for the time it takes to return to the Terminal or the specified destination for the day (e.g. motel, home), whichever is determined by Management.
8.3.2 If an Employee is required to travel outside normal working hours for a specific job task, the time required for travelling will be considered as normal work and ordinary rates will apply. Time spent travelling will stand alone.
8.3.3 Travelling time to another port will be paid as set out herein at ordinary rates of pay:
From | To | Time |
| Adelaide | Wallaroo Thevenard | 2.5 hours 3 hours 2 hours (air) 3 hours (air) |
| Wallaroo | Adelaide | 2.5 hours 1.5 hours 6 hours 7.5 hours |
Port Giles | Adelaide | 3 hours 3 hours 5 hours 9 hours |
Port Lincoln | Adelaide | 2 hours (air) 5 hours 5 hours 5 hours |
Thevenard | Adelaide | 3 hours (air) 6 hours 9 hours 5 hours |
8.3.4 Permanent Full Time Employees
All time for travelling will be deducted from the Employee's Total Hours Bank as ordinary hours (1:1.2). Where an Employee has completed all Total Hours Bank, they will be paid at the appropriate rate.”
[46] I note that clause 9.2 Union Training also refers to the concept of “conferences” and “meetings”.
[47] Clause 10.1 Occupational Health and Safety establishes a BLP Safety Committee and provides as follows:
“...
A BLP Safety Committee will be established across all ports and will meet every three months by phone. A representative from these committees will also attend the Site Safety Meetings when they are scheduled. The Company commits to ensure employees have sufficient training to perform these duties. In addition, the parties to this agreement acknowledge their rights and responsibilities of duly elected safety representatives and their right to be trained. Employees shall be supplied with personal protective equipment by the Company and replaced on an as needs basis.
...”
4.3 What is a meeting for present purposes?
[48] I am dealing the application of clause 3.1 of the Enterprise Agreement and the concept of a meeting of the VBU in that particular context. Although the VBU might, as a matter of convenience, be used as the forum for negotiations for a new enterprise agreement, I am not determining here whether in-person meetings are required by the relevant bargaining provisions of the Act. That is, the good faith bargaining obligations in s.228 of the Act operate in a particular statutory context including the basis upon which bargaining representatives are determined. Disputes about such matters may be resolved by way of an application for a bargaining order made under s.229 of the Act, having followed the necessary process leading to that point.
[49] I consider that the relevant provisions of clause 3.1 are ambiguous as to the form of the required meetings and I have considered the objective framework of facts and the context set out above.
[50] As referred to by both parties, the Macquarie Dictionary defines “meeting” as follows:
“Meeting
noun
1. a coming together.
2. an assembling, as of persons for some purpose.
3. an assembly or gathering held.
4. an assembly of people with responsibilities towards an organisation, held to conduct the business of that organisation.”
[51] Viterra referred to the decision of the Federal Court in Minister for Immigration & Citizenship v Yucesan. 12 That decision involved consideration as to whether it was necessary for the parties to have physically met in the context of whether there was a genuine marriage decision for the purposes of immigration laws. The Court ultimately relied upon the context of relevant Act and determined that the decision to marry and live together as spouses involves a commitment to physical cohabitation, not just to a meeting of minds, and that some actual physical meeting was required. In so doing, the Court discussed the notion of what it is “to meet” in the following terms:
“[17] As both parties conceded, the verb "to meet" has more than one meaning. What may be regarded as the primary dictionary meaning has the sense of two or more persons coming into each other’s physical presence. The Macquarie Dictionary expresses this meaning as "to come into the company of" and adds the examples: "I met him in the street; I’ll meet you at the restaurant". The question, "Have you met George?" would generally evoke a positive answer only if the answerer had been in George’s company in this sense, as distinct from the answer, "No, but I have spoken to him on the telephone" or "I have exchanged emails with him". Nevertheless it is true that the meaning of words evolves with time and also with technological progress. With the growth of the internet, the comment, "We met over the internet" would not surprise.
[18] An example of such evolution may be found in the development at common law of the notion of a meeting, especially in the context of company law where an earlier requirement for physical presence has given way to acceptance of a meeting of minds that may occur with the aid of modern communication technology. The general principle at common law is that, in the absence of a specific provision – either in the company’s constitution or by statute, a single person cannot constitute a meeting. In Sharpe v Dawes (1876) 2 QBD 26 at 29 Lord Coleridge noted that "the word ‘meeting’ prima facie means a coming together of more than one person". Lord Justice Mellish, at 29, said that "according to the ordinary use of the English language, a meeting could no more be constituted by one person than a meeting could have been constituted if no shareholder at all had attended".
[19] In Higgins v Nicol (1971) 18 FLR 343, Joske J at 357 held that, in the absence of a specific provision, a meeting could not be conducted over the telephone. His Honour observed that this position might be modified by future "technical television improvements" but his Honour’s view at the time was that:
A meeting is not only something where people speak but where they also meet each other in the flesh.
[20] A similar view was expressed by Perry J in construing articles of association which provided for directors to "meet together" for the dispatch of business; Re Southern Resources Ltd; Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 15 ACLR 770 at 795; see also (1988) 48 SASR 565 at 603. Magnacrete Ltd v Douglas-Hill
[21] More recently however, the technological improvements anticipated by Joske J have led to suggestions that company meetings may be conducted by telephone or video conference. In Re Ferguson (1995) 58 FCR 106 (also reported as Re GIGA Investments Pty Ltd (in admin) (1995) 17 ASCR 472) Branson J considered whether directors could ‘meet together’ by telephone or video conference. The articles considered by her Honour were similar to those considered in Re Southern Resources. They stated that the directors of GIGA Investments might ‘meet together’ for the despatch of business. Branson J followed the approach taken by Tadgell J in Bell v Burton (1993) 12 ACSR 325 and Santow J in Wagner v International Health Promotions (admin apptd) (1994) 15 ACSR 419. In Bell v Burton Tadgell J said at 328-9:
No doubt there is no necessity nowadays - if there ever was - that directors should gather physically together at a directors’ meeting. In appropriate circumstances they may meet by assenting to a document, or by telephone, video link, or other electronic means which caters for a meeting of their minds.
[22] Tadgell J’s concept of a meeting of minds was adopted by Santow J in Wagner where, at 421-422, his Honour used the concept to explain the requirements for a meeting:
Essentially, what his Honour held was that, under articles not materially different to those before me ... there is no necessity for the directors to gather physically together at a directors’ meeting. I agree that the words "meet together" connote a meeting of minds made possible by modern technology and not of bodies. There is evidence that there was a telephone conference call so that the conversations took place with everyone hearing everyone else.
[23] In Re Ferguson Branson J agreed with Santow J and held that the words, ‘meet together’ when ordinarily used in respect of a meeting of directors connote a meeting of minds made possible either by physical proximity or by technology. Her Honour said, at 111:
In my view, provided that each participating director is able to be aware of the contributions to the meeting made by each other director and to contribute himself or herself to the meeting without significant impediment, it is not of importance that the meeting together of the directors is achieved with the assistance of the telecommunications industry. I conclude that directors can, generally speaking, meet together by video links or by using telephone conference connections. A meeting of two directors only can by analogy of reasoning, in my view, generally speaking, be held using an ordinary telephone connection.
[24] Her Honour held that a ‘meeting of minds’ had been achieved with respect to the issue of the appointment of the applicant as the administrator of the company, and "that his purported appointment was valid notwithstanding that such appointment was made pursuant to a resolution of the board of the company passed at a meeting at which one of two directors was present by telephone."
[25] In Re Farnell Electronic Components Pty Ltd (1997) 25 ACSR 345 at 347, Young J applied Wagner and Re Fergson, holding that "there is no barrier to the effectiveness of the resolution because the meeting was held by telephone". His Honour noted that the term "meet together" in articles of association had been construed "as requiring a meeting of the minds of the directors rather than their bodies." This approach has statutory support in provisions of the Corporations Act 2001 (Cth); see s 249S and s 249T.
[26] These examples emphasise the importance of context, including the construction of relevant documents. Business decisions to be made at a meeting of company directors will generally be arrived at after considering the advantages and disadvantages of competing ideas. While it would be foolish to suppose that the dynamics of a meeting by some form of telecommunication would be the same as the dynamics of a meeting where the decision makers are present in person, the primacy of the intellectual component of the decision making has been accepted and has found its way into the concept of ‘a meeting of minds’.”
[52] In my view, this decision usefully reinforces the need to be mindful of the context in which the provision is being applied. It is also an indication that concepts and words evolve over time. Relevantly, whilst Courts historically took the view that meetings must occur in-person, in more recent times, decisions have recognised the technological and community changes and looked to the substantive purpose.
[53] In Re Steel Works Employees (Broken Hill Proprietary Company Limited) and Iron and Steel Works Employees (Australian Iron and Steel Limited – Port Kembla) Awards (No. 1), 13 the Industrial Commission of New South Wales was considering the distinction between a “meeting” and a “discussion” in the context of a right of entry dispute. It relevantly said at page 373:
“In some cases the line between a meeting and a discussion may be thin, but we think that, if all facts about a particular gathering were known, it would not be difficult as a rule to say whether what had occurred was or was not a meeting, Some of 'the indicia of a meeting are: that it is convened such by notice, that it has a chairman to conduct it who calls on speakers in turn, that motions and amendments are moved and seconded, that speeches are made, that a vote is taken. Any gathering that involved all those features would clearly be a meeting…”
[54] Noting that in some cases a meeting will not involve decisions being made, this approach broadly sets the form for what I consider to be a meeting.
[55] Although the processes leading to the 2012 Enterprise Agreement operated in a different context, the fact that the meetings that were conducted in-person is a relevant fact. Further, and by contrast, the evidence is that Viterra regularly conducts meetings with management and staff via the telephone. These matters assist with, but are not determinative of, the intention of the agreement.
[56] The reference to the “continuation of established Consultative Structures” in clause 3.1.1 would in some circumstances provide a useful indicator of the intention. However, the absence of evidence as to how the VBU operated as a consultative mechanism under the former agreements and whether it conducted its business in-person, means that this is of little assistance.
[57] The objects of the Enterprise Agreement and the evident intent of clause 3.1 are relevant. These emphasise the importance of consultation, communication and co-operative approaches. In addition, the aims include increased productivity and efficiency and the use of technology and associated changes to facilitate improved competitiveness.
[58] I also note the strong emphasis upon health and safety within clauses 2.2 and 2.3. In that regard, the fact that clause 10.1 specifically refers to the safety committee having to “meet every three months by phone” is significant. In my view, this is consistent with the notion that a meeting under the Enterprise Agreement can be conducted by phone. However, it is not by itself determinative of the intent of clause 3.1 as that provision does not include any express reference to the form of the meeting.
[59] The fact that the Enterprise Agreement uses the terms “meeting” and “conference” separately does not mean that it intends, what might be described as a tele-conference, to be other than a meeting. Rather, the concept of a conference as used under this agreement is more akin to a seminar or similar education forums.
[60] I have also considered the implication of the January 2015 VBU “meeting”. It was conducted by telephone and it did not resolve or significantly advance the issue in dispute at the time. Firstly, the fact that it was conducted by telephone is not relied upon by Viterra and this is appropriate given that its status as a meeting was disputed by the MUA at the time. Secondly, the issue being considered at the time was (and is) very complex and the subject of strongly held views. As such, this was not an example that can be relied upon to demonstrate that meetings by phone are by definition unproductive or problematic. I have however had regard to some of the practical difficulties referred to the evidence of the MUA officials.
[61] I do accept that there are benefits in face-to-face meetings. This operates at two levels. The capacity for the two parties to engage directly with one another and the capacity for each party to readily caucus and to meet separately in the context of a VBU meeting. In addition, where large numbers of individuals are actually expected to make a contribution, rather than essentially listening with the carriage of the meeting being in the hands of a few representatives, telephone discussions can be problematic.
[62] I also accept that given the location of the various representatives, in-person meetings are expensive and lead to managers and employee committee members being away from their work locations for much longer periods. If the provision was interpreted as meaning that all meetings must be conducted in-person, this would tend to limit the number of meetings and/or the extent of representation, particularly from the more distant management representatives.
[63] The potential benefits and the costs associated with the approaches urged by each party inform the Commission and its endeavours to avoid an interpretation that results in inconvenience, injustice or absurdity.
[64] I note that Viterra has (appropriately) not contended that its role of being “responsible for arranging and conducting the meetings” of the VBU as outlined in clause 3.1.5 means that whatever it organises will be a “meeting”, however conducted.
5. Conclusions
[65] The role of the Commission in the present context 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. 14
[66] I do not consider that clause 3.1, when read in context, requires that meetings of the VBU be conducted in-person. A meeting, whether conducted wholly or partly in-person, by telephone or video link, will be a meeting provided that it bears the basic form discussed earlier in this decision.
[67] I do however, recognise that there are benefits associated with in-person meetings and the relative value of such will depend upon the nature of the issues being discussed and the number and circumstances of those attending. This must be weighed against the cost and inconvenience that is involved. The VBU is intended to be a genuine consultative mechanism and this should inform how and when it is actually conducted.
[68] To the extent that the VBU meetings are conducted by telephone, it would be appropriate to ensure that where feasible, arrangements are made to permit the respective representatives (of the employees and management) to privately caucus. Further, given the value that does come from meeting in-person, it would be desirable that, at least occasionally, the VBU does actually meet in-person.
[69] Accordingly, I determine that a meeting, for the purposes of clause 3.1 of the Enterprise Agreement, may be conducted wholly or partly in-person, by telephone or video link. However, I would recommend as follows:
● That when not conducted wholly in-person, reasonable arrangements be made for representatives to privately caucus;
● That at least once in each two year period, the full membership of the VBU meet in-person at a time scheduled to reduce the impact of any meeting upon the operations of the Loading Plants; and
● That where an issue arises that necessitates the in-person involvement of some of the representatives, such as detailed consideration of documents or particular issues impacting upon a Loading Plant, Viterra facilitate the in-person attendance of relevant representatives.
COMMISSIONER
Appearances:
C Duignan for the Maritime Union of Australia.
B Norman, with A Gilbey for Viterra Limited.
Conference details:
2015
Adelaide
2 July
17 July via telephone.
Written submissions:
MUA
3 and 23 October 2015.
Viterrra
16 October 2015.
1 AE898882 Approved 17 December 2012
2 See s.739 of the FW Act.
3 Macquarie Dictionary.
4 MUA written submission – 3 October 2015.
5 As discussed by Federal Court in Minister for Immigration and Citizenship v Yucesan [2008] FCAFC 110 and Re: Ferguson (1995) 58 FCR 106.
6 [2014] FWCFB 7447.
7 Reference to the AI Act is to the Acts Interpretation Act 1901 (Cth).
8 [1929] AR (NSW) 498 at 503 See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].
9 Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17. See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.
10 (1993) 40 FCR 511.
11 ABB Grain Ltd Bulk Loading Plants Enterprise Agreement 2009.
12 [2008] FCAFC 110.
13 (1962) AR (NSW) 334.
14 Cockeral at [41] – point 10.
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