Mermaid Marine Vessel Operations Pty Ltd v Mr John Bridger

[2014] FWC 4545

[2014] FWC 4545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Mermaid Marine Vessel Operations Pty Ltd
v
Mr John Bridger; Mr Glenn Bridges; Ms Rachael Carter; Mr Paul Coombe; Mr/Ms Kele Croskery; Mr Mark Davis; Mr Jason Dobrec; Mr George Dupreez; Mr David Fraser; Mr/Ms Jo Kahukore; Mr Greg Lanauze; Mr Andrew Lee; Mr Jason Leitch; Mr Cody Line; Mr Anthony Matana; Mr Greg Mayne; Mr Murray McNicol; Mr/Ms Ky Nuttall; Mr Mark Orr; Mr Mark Pascot; Mr Adam Purdon; Ms Michelle Ramea; Mr Cameron Rieniets; Mr Tim Wahlsten; Mr Greg Williams
(C2014/627)

COMMISSIONER CLOGHAN PERTH, 29 JULY 2014

Industrial action.

[1] On 15 April 2014, Mermaid Marine Vessel Operations Pty Ltd (Applicant or Mermaid Marine) made application for an order to stop industrial action that was threatening, impending or probable by 25 employees (Employees) with respect to Good Friday and ANZAC Day 2014.

[2] The Application was made pursuant to s.418(2)(b) of the Fair Work Act 2009 (FW Act).

[3] At the conclusion of a hearing on 17 April 2014, I issued an Interim Order (PR549873) in which all of the Employees who were rostered to work on Good Friday and/or ANZAC Day must attend for work on Good Friday and/or ANZAC Day.

[4] The Interim Order was made pursuant to s.420(2) of the FW Act and came into force from 5:30 pm on 17 April 2014 and remains in force until replaced. The Interim Order was made because the Fair Work Commission (Commission) was unable to determine the application within two (2) days after it was made pursuant to s.420(1) of the FW Act.

[5] This is my decision and reasons for decision to dispose of the application.

RELEVANT BACKGROUND

[6] The Employees subject to the application work at the Dampier Supply Base (DSB).

[7] The Employees’ employment is regulated, in part, by the Mermaid Marine & MUA Dampier Supply Base Enterprise Agreement 2011 (2011 Agreement).

[8] Prior to the 2011 Agreement, the Employees’ employment was, in part, regulated by the Mermaid Marine Dampier Supply Base Workplace Agreement 2008 (2008 Agreement).

[9] The Employees work in accordance with Roster A (Roster A) at the wharf, or in accordance with other continuous rosters (Continuous Rosters) operating in Area A/B or Area D of the DSB.

[10] The 2011 Agreement became operative on 5 December 2011.

[11] During the operation of the 2008 Agreement, and for the first year of the 2011 Agreement, Mermaid Marine did not require its employees to work in a continuous roster regime.

[12] Appendix 2 of the 2011 Agreement is entitled “Roster Arrangements”. The roster arrangements are “Roster A - 7 day, 10 hour, Day Shift Roster”, “Roster B - 7 day, 12 hour, Roster” and another non-titled roster in which “The Company may seek to introduce another shift roster outside of the above rosters [Roster A and Roster B] in accordance with the following process...”.

[13] On 21 and 22 December 2012, Mermaid Marine gave notice to employees in the wharf area of DSB that it would be implementing Roster A commencing 2 January 2013. The notice (Notice) to employees working Roster A requires them to work on a public holiday if rostered to work on such a public holiday.

[14] Continuous rosters were also established in Areas A/B and D of the DSB in accordance with paragraph [12] above. Similar to Roster A, the Notice to Continuous Rosters employees also contains a requirement for employees to work on a public holiday if they are rostered to work on such a public holiday.

[15] After the implementation of Roster A, all employees rostered to work on Good Friday and ANZAC Day in 2013 worked on those days.

[16] On FeNacLng Day 2013, approximately 13 employees who were rostered to work on that public holiday, failed to attend for work. Following interviews with the 13 employees, Mermaid Marine became aware that some employees “had [in its words] exercised their perceived right to refuse to work the nominated public holiday” [FeNacLng Day].

[17] On New Year’s Day 2014, all employees on Roster A who were rostered to work on New Year’s Day did not attend work and approximately 50% of employees on continuous shift rosters did not attend for work. The employees expressed the view that they were exercising their right not to attend work as it was a nominated public holiday.

[18] The employees assert that their right to refuse to work on a nominated public holiday is contained in Clause 21 of the 2011 Agreement.

CLAUSE 21 OF THE 2011 AGREEMENT

[19] Clause 21 of the 2011 Agreement is reproduced below in its entirety.

“21. Public Holidays

21.1 A full time employee is entitled to observe the following public holidays without loss of pay for ordinary hours of work rostered on that day:

21.1.1 Christmas Day;

21.1.2 New years Day;

21.1.3 Good Friday;

21.1.4 Shire of Roebourne Day (FeNacLng);

2.1.15 ANZAC Day.

21.2 If any of the days mentioned in 21.1 falls on a Saturday or Sunday, the holiday shall be observed on the following Monday or Tuesday. In each case the substituted day shall be a holiday without deduction of pay and the day for which it is substituted shall not be a holiday.”

THE DISPUTE

[20] Reduced to its essentials, this dispute is whether employees on Roster A and continuous shift rosters who are rostered to work on the nominated public holidays in Clause 21 of the Agreement, are able to decline to work on those days and “observe the day as a paid public holiday”.

[21] The MUA, on behalf of the Employees, contends that the employees are able to elect whether to work or not on the nominated public holidays. The Employer asserts that if employees are rostered to work on the nominated public holiday (with the exception of Christmas Day) they are required to work on those days.

APPLICANT’S CASE

[22] The Applicant asserts that:

● Clause 21 should not be viewed in isolation. To do so is overly simplistic, incorrect and opportunistic;

● the Employees’ interpretation contradicts the essence of the continuous shift system in the 2011 Agreement;

● the Employees’ interpretation is “double dipping”;

● Clause 21 needs to be construed in the context of the 2011 Agreement as a whole. Clause 21 cannot be sensibly applied literally to employees who are rostered to work on a nominated public holiday when working a continuous shift regime;

● if Clause 21 is applied without qualification to employees working a continuous shift regime “anomalies arise” with respect to subclause 21.2;

● the Employees’ interpretation is incompatible with the provisions in Appendix 2 of the 2011 Agreement;

● the Employees’ interpretation cannot be reconciled with Clause 1 of the 2011 Agreement; and

● in the event that the Commission concludes that the 2011 Agreement is capable of supporting both the Employees and the Applicant’s construction, regard should be had for extrinsic material as a means of discerning the parties true intention.

EMPLOYEES’ CASE

[23] The Employees submit:

● any rosters developed under Appendix 2 are subject to the terms and conditions of the 2011 Agreement;

● Clause 21 provides that employees are not required to work on the nominated public holidays in that clause;

● Clause 21 is not ambiguous or inconsistent when read with other provisions of the 2011 Agreement. The Employees’ interpretation does not produce a result which is absurd or unreasonable;

● Appendix A is subordinate to Clause 21; and

● Clause 21 should be given its plain and ordinary meaning.

CONSIDERATION

[24] This is the second occasion within 12 months in which a dispute has arisen with regard to the interpretation of clauses in the 2011 Agreement.

[25] Appendix 3 of the 2008 Agreement provides:

“Rostering system

Add in a clause which allows for the ability of a rostering system to be introduced and discussed should the growth of the base exceed the current requirements.”

[26] The ordinary hours of work in Clause 12 of the 2008 Agreement provides for day workers to work 38 hours between Monday to Friday inclusive or, for shift workers, an average of 38 hours per week over a shift cycle which is to be worked from Monday to Sunday.

[27] The hourly rates of pay in the 2008 Agreement are contained in Appendix 1. There is no difference between the rate of pay for day workers and shift workers.

[28] With respect to annual leave in the 2008 Agreement, subclause 16.1 provides that “an employee is entitled to five (5) weeks annual leave and an extra one (1) week in lieu of 5 Public Holidays (the public holidays which are to be worked consist of the following: Australia Day, Labour Day, Easter Monday, Foundation Day and Boxing Day). The Annual Leave Days nominated for annual leave are as follows: Christmas Day, New Year’s Day, Good Friday, Shire of Roebourne (FeNacLng) and ANZAC Day...Therefore all employees will be entitled to 6 weeks annual leave...”

[29] Clause 19.0 Public Holidays of the 2008 Agreement is in the same terms as Clause 21 of the 2011 Agreement.

[30] What is plainly different in the 2011 Agreement is the introduction of Appendix 2 which provides for the introduction of Rosters A and B, and other rosters as part of “Roster Arrangements”.

[31] The “driver” behind the introduction of Rosters A, B and Other Rosters was for the Employer to provide a service to its clients 365 days of the year (save Christmas Day).

[32] Roster A has a panel of three (3) crews of which two (2) crews work on any day for 10 hours per shift. Two crews working 243 days per year provide the Employer with 20 hours coverage each day for 365 days of each year.

[33] As a consequence of working Roster A, the employees receive an hourly rate of pay (subclause 15.2 of the 2011 Agreement) which is different to the ordinary hourly rate of pay for day workers contained in subclause 15.1 of the 2011 Agreement.

[34] The current hourly difference, for a Roster A employee and a Monday to Friday day worker, is approximately an average of 37%.

[35] The approximate 37% difference between the employees is accounted for in subclause 15.3 “Annual Salary principles”. Simply put, the differential in hourly rate of pay for a Roster A employee takes into account the following factors: ordinary time, week day overtime, weekend penalties and overtime, shift loadings, annual leave and ordinary time and overtime worked on public holidays.

[36] It should be highlighted that the 2008 Agreement does not include any reference to “Annual Salary principles”.

[37] In the 2011 Agreement, the annual leave provisions remained the same as the 2008 Agreement for those day workers required to work Monday to Friday. However, for those employees who are “required to work a roster that includes rostered shifts on weekends and public holidays” they receive six (6) weeks annual leave.

[38] The public holidays referred to in Clause 18 of the 2011 Agreement are Australia Day, Labour Day, Easter Monday, Foundation Day and Boxing Day. The following days in Clause 18 are described as annual leave days: Christmas Day, New Year’s Day, Good Friday, Shire of Roebourne (FeNacLng Day) and ANZAC Day. Clause 18 Annual Leave of the 2011 Agreement further states “therefore all employees will be entitled to six (6) weeks annual leave...” Obviously this provision must be in error as Clause 18 already states that those employees who work on a roster which includes weekends and public holidays receive, as a minimum six (6) weeks annual leave, plus an additional one (1) week in lieu of the five (5) public holidays in which they may be required to work.

[39] In summary the introduction of Rosters A, B and Other Rosters in the 2011 Agreement were significant and required extensive accommodating changes to the 2008 Agreement.

[40] The second dot point in Clause 18 Annual Leave of the 2011 Agreement states for those employees “rostered [to work]...shifts on weekends and public holidays” must have some utility for employees to receive an additional week’s annual leave. However, it is not clear whether it is for working weekends or “public holidays”. If it is “public holidays”, to be internally consistent with Clause 18, it can only refer to Australia Day, Labour Day, Easter Monday, Foundation Day and Boxing Day. I say, “internally consistent”, because the other “public holidays” are referred to as annual leave days.

[41] In my view, the parties to the dispute did give consideration to the introduction of the Employer’s operational requirements to provide a service to its client 365 days of the year. What was that consideration?

[42] Mr Lee’s written witness statement states that bargaining for the 2011 Agreement commenced on 10 January 2011. On 23 and 24 August 2011, Mr Lee states that “the annual salary rates for working Roster A were set out on the whiteboard and it was agreed between all parties that the proposed rates and make up of those rates were correct and it demonstrated 365 day coverage”. Notwithstanding the difficulties with such evidence, it is the only written evidence I have from a person attending the bargaining which led to the 2011 Agreement. I have no written evidence from the MUA or Employees regarding what occurred during bargaining.

[43] The remaining documentation which was tendered by the parties during proceedings occurred post the operative date of the 2011 Agreement. The value of such documentation is difficult to ascertain as each party generally articulates and declares the rightness of their respective positions. This leads me to the oral evidence.

[44] The Applicant submits that the MUA, as the representative of the employees “appear to adopt the approach that clause 21 is to be viewed in complete isolation. Viewed that way, the Rostered Employees assert that clause 21 is to be interpreted literally as meaning that all Rostered Employees, regardless of whether they work a continuous shift, are entitled to take (“observe”) the Nominated Public Holidays 1...”then is an overly simplistic, incorrect and opportunistic interpretation”2.

[45] In short, the Applicant submits that the MUA’s interpretation is literally word for word, without exaggeration or inaccuracy.

[46] The Applicant appears not to argue that the MUA’s interpretation, in isolation, is incorrect but that Clause 21 of the 2011 Agreement needs to be construed as a whole.

Interpretation of Enterprise Agreements

[47] The Applicant relies upon the Australian Workers’ Union, Western Australia Branch v Co-operative Bulk Handling Limited[2010] FWAFB 4801 (CBH) to support its proposition that the 2011 Agreement should be construed as a whole. While I do not contest that this is the correct approach to the interpretation of industrial agreements, it is not on point with regards to this application.

[48] The Full Bench in CBH observed as follows:

“[12] Neither Swire nor Watson is authority for the proposition that in resolving the question of whether terms of an agreement are ambiguous and susceptible of more than one meaning, regard may not be held to extrinsic material. In so holding the commissioner erred. Because the manner in which agreements should be construed is in issue in this appeal, it is worthwhile extracting, in full but omitting footnotes, the distillation of the law by Vice President Lawler in Watson:

“[8] There are well established principles under the general law for the construction of contracts. Those principles are generally applicable in the construction of certified agreements. For example, in Telstra Corporation Ltd v CEPU a Full Bench of the Commission was concerned with applications to vary a number of certified agreements and, in the course of its decision, summarised the principles governing the resolution of ambiguity in a certified agreement:

“[33] The judgment of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW established widely accepted principles for resolving ambiguity in contracts. In that case Mason J stated the rule thus:
‘The true rule is that evidence of surrounding circumstance 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 when it has a plain meaning. 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’

[34] In BP Australia Pty Ltd v Nyran Pty Ltd, Nicholson J distilled, by reference to Codelfa, the following points of principle for resolving ambiguity in contracts:

● it is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity;

● if the contract has a plain meaning, evidence of surrounding circumstances will not be admissible to contradict the language of the contract;

● if the language of the contract is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances is admissible to assist in the interpretation of the contract;

● the concept of surrounding circumstances is to be understood to be a reference to the objective framework of facts. It will include:

● evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract;

● facts so notorious that knowledge of them is to be presumed;

● evidence of a matter in common contemplation and constituting a common assumption.

[35] After referring to the foregoing points of principle Nicholson J continued as follows:
‘From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible’”

[9] In Kucks v CSR Limited Madgwick J held:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
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.”

[10] These remarks were made in the context of construing an award. However, Madgwick J’s approach has been adopted in relation to the construction of certified agreements. In Australasian Meat Industry Employees’ Union v Coles Supermarkets Australia Pty Ltd Northrop J observed:

“The increase in the number of certified agreements gives rise to an area of possibly greater dispute as to the construction of provisions contained in the agreements. The parties may adopt a multitude of different structures and methods of terminology. No common pattern may develop. Nevertheless certified agreements are to be construed adopting the same methodology as that used in construing awards. In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J, sitting as a judge of the Industrial Relations Court of Australia, at 184 expressed his opinion on the legal principles to be applied in construing awards under the Act. I agree with that statement of principles. They have even stronger application to certified agreements.”

[11] This view was approved by the Full Court of the Federal Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association. 

[12] In United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board the Full Court of the Federal Court, in the context of construing a dispute resolution clause in a certified agreement, noted:

“The parties agree that the proper approach to the construction of industrial instruments was stated by Madgwick J in Kucks at 184. His Honour’s statement of the principles was followed by a Full Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8] and by two Justices of the High Court in Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 at [96] per Kirby J and at [130] per Callinan J. That was the approach which was adopted by the learned primary judge.
A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively, bearing in mind that they are likely to have been people of a practical bent of mind. Their intention may well have been expressed in ways likely to have been understood in the relevant industry, rather than in “legal niceties or jargon.”; see Kucks at 184.
Clearly enough, the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement: Short v FW Hercus Pty Limited [1993] FCA 51; (1993) 40 FCR 511 at 518. The context will include the statutory context in which the agreement is made.” (emphasis added)

[13] In Short v FW Hercus Pty Ltd Burchett J, with whom Drummond J agreed, considered whether inter alia, with whether it is legitimate, for the purpose of construing a clause of an award, to look at the history of the provision. After considering a number of authorities, Burchett J observed:

“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) 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) 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.”
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
...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) 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.
But even if the language, read alone, appeared pellucidly clear, the tendency of recent decisions - and this is the other answer to the argument put - would seem to require the court to look at the full context. Only then will all the nuances of the language be perceived. The judgment of Mason J. (with which Stephen and Wilson JJ. expressed agreement) in Codelfa Construction Proprietary Limited v. State Rail Authority of New South Wales (1982) 149 CLR 337 at 347-353 contains an extended discussion of the principles upon which a court may take account, when construing a contract, of the circumstances surrounding the agreement of the parties upon those particular terms. In the course of that discussion, Mason J. suggested (at 350) that “perhaps ... the difference ... is more apparent than real” between the view that evidence is admissible only to resolve an ambiguity, not to raise it, and the view that extrinsic evidence is receivable both to raise and to resolve an ambiguity. He concluded (at 352):
“The true rule is that 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 when it has a plain meaning. 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 ... if the facts are notorious knowledge of them will be presumed.” (emphasis added)
The fact is that words are frequently susceptible of more than one meaning. Paradoxically, ambiguity may be born of the reader’s clarity of thought which perceives a potentiality for an alternative meaning. But in many cases only evidence of extrinsic facts can show that the potentiality has substance. The old case Macdonald v. Longbottom (1859) 1 El and El 977 (120 ER 1177), to which Mason J. referred, is an example, since there is nothing necessarily ambiguous in the expression “your wool” (indeed Erle J. at 986 described it as “most explicit”) - only evidence that at the time the vendor had both wool of his own growing, and also wool which he had bought in from others, could raise an ambiguity, while at the same time solving it once the other party was shown to have known the facts.

Mason J. returned to the subject in his dissenting judgment in K. and S. Lake City Freighters Proprietary Limited v. Gordon and Gotch Limited (1985) 157 CLR 309 at 315, when he said:

“Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.”
This is a broad proposition, applicable to problems of construction generally, although it was put forward in the context of statutory interpretation. ...”

[14] While Short v FW Hercus Pty Ltd was concerned with the proper construction of a clause in an award, it is clear it is equally applicable to the construction of certified agreements as illustrated by the reliance placed upon it by the Full Court in United Firefighters’ Union of Australia in the passage set out above.

[15] In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales apply to the construction of industrial agreements. However, consistent with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.”

[13] Recently, Logan, J, after citing the passage from Kucks succinctly stated:

“The starting point must always be the language employed by the parties to an industrial agreement but industrial context and purpose are always relevant when construing that language...” 3 (my emphasis)

[49] In CBH, the issue was whether weighbridge duties were part of the plant operator’s duties under the Geraldton Plant Operators Union Collective Agreement 2008 (Plant Operators Agreement).

[50] In CBH, there was no mention of “weighbridge duties” in the position requirements of a plant operator in the Plant Operators Agreement. In the course of the initial decision, the Commissioner came to the view, notwithstanding the lack of reference to “weighbridge duties” in the position description, that there was no ambiguity and consequently, he was unable to consider any extrinsic material. The Full Bench in CBH considered that the Commissioner erred in this respect.

[51] What is clear in CBH is that the clause in dispute was capable of more than one meaning and the Full Bench came to the view that, having regard to all of the extrinsic material “that it was the objectively discernible intention of the parties in the formation of the agreement that weighbridge duties would not form part of plant operators duties under the agreement” 4.

[52] Put simply, the lack of specificity on whether weighbridge duties were part of the position description for plant operators, raised ambiguity and uncertainty. That is not the case in this application.

[53] In this application, the Employer did not articulate or identify exactly how Clause 21 of the 2011 Agreement is ambiguous or capable or more than one meaning. The Employer essentially argued that Clause 21 has certain consequences which were not intended by the Applicant when it made the 2011 Agreement.

[54] However, if I return to CBH, and the citation of Mason J in Codelfa who saw “the true rule [in resolving ambiguity] is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible to more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning”. Further, the Full Bench referred to Nicholson J in BP Australia Pty Ltd v Nyran Pty Ltd,in which his Honour distilled, by reference to Codelfa, the following principles for resolving ambiguity in contracts and that is, “if the language of the contract is ambiguous or susceptible of more than one meaning, evidence of surrounding circumstances is admissible to assist in the interpretation of the contract”.

[55] Mr Lee’s evidence is that there was no discussions relating to Clause 21 of the 2011 Agreement in bargaining 5. Clause 21 in the 2011 Agreement is in the same terms as the 2008 Agreement6. Finally, at some stage in the bargaining, the parties undertook what is referred to as a “page turning” exercise7 but he could not recall the specific issues of the action. I have no reason to find Mr Lee’s evidence anything but truthful.

[56] Mr Lee also gave evidence that those employees who did not attend work on FeNacLng Day and New Year’s Day 2014 in accordance with Clause 21 of the 2011 Agreement were paid 8.14 hours pay notwithstanding the Employer’s interpretation of the 2011 Agreement. Mr Lee states that the payment was made to enable discussions to keep on track rather than withholding payment and ending up in the Commission 8. I also accept Mr Lee’s evidence as truthful.

[57] Mr Lee also conceded that in his correspondence to employees on 21 December 2012, that where it states that employees have to work on public holidays except for Christmas Day’ in accordance with Roster A”, that term is not contained in the Roster A provisions in Appendix 2 of the 2011 Agreement 9.

[58] Mr Harrower was not employed by Mermaid Marine at the time the 2011 Agreement was made. However, on 28 August 2013, Mr Harrower in communication to the MUA, asserts the Employer’s position that “reading the Agreement as a whole...supports the working of public holidays as part of Roster A” but goes on to say “the MUA now has a firm view about this which is not reflected in the Agreement. This has created some confusion. For the Agreement to operate in the manner that you have described it would be necessary to pursue a consent variation to the Agreement. Mermaid Marine is prepared to enter into discussions with you to consider appropriate amendments to the Agreement” 10. While it would be inappropriate to speculate on why the Employer was seeking the MUA’s agreement to a consent variation, I was not entirely convinced it was for conciliatory reasons as given by Mr Harrower in evidence11.

[59] Mr Wade put to Mr Heath in cross examination sound and sensible questions relating to why the MUA did not address the issue in contest between the parties earlier, for example, when the Applicant was implementing operational requirements and advising employees that they would be required to work on public holidays.

[60] While Mr Heath’s responses in cross examination were not “riddles” as suggested by Mr Wade, the lack of documentation from the MUA, at the time of bargaining, leads the Commission to only having his oral evidence. Mr Heath’s oral evidence is that Clause 21 of the 2011 Agreement reflects the view of the MUA that it was not prepared to agree to a change of position in relation to the provisions of the 2008 Agreement 12 and ultimately that position was reflected in the replacement enterprise agreement. I did not find Mr Heath’s evidence so manifestly incredible that it should be disregarded. Consequently, I am left with the provisions of Clause 21 of the 2011 Agreement.

[61] I am satisfied that the plain and ordinary meaning of Clause 21 of the 2011 Agreement is that the employees can elect not to attend work on Christmas Day, New Year’s Day, Good Friday, Shire of Roebourne Day (FeNacLng) and ANZAC Day without loss of pay. I am not able to find that the words are capable of any other meaning - they are neither ambiguous nor uncertain.

[62] The Applicant asserted that I should be satisfied on inferences/incompatibilities of other clauses and evidence of bargaining that Clause 21 of the 2011 Agreement could not have the definite meaning contended by the MUA. However, this does not get away from the plain and ordinary meaning of the clause. To accept the Applicant’s submission would invite the Commission to rewrite the 2011 Agreement as it relates to Clause 21; a course of action which I am not prepared to adopt.

[63] In conclusion, interim order PR549873 will be replaced by the attached order stating that it ceases to have effect. Further, for the reasons outlined above, this application is dismissed and an order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

R Wade for the Applicant.

K A Vernon of Counselwith E Palmer for the Respondents.

Hearing details:

2014:

Perth,

17 April.

Final written submissions:

Applicant: 23 April 2014.

Respondents: 22 April 2014.

 1   Paragraph 6 of Employer’s submission.

 2   Paragraph 7 of Employer’s submission.

 3   The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited [2010] FWAFB 4801

 4   Ibid [18]

 5   Transcript PN65

 6   Transcript PN67

 7   Transcript PN66

 8   Transcript PN88

 9   Transcript PN143

 10   Exhibit A2 (14)

 11   Transcript PN228

 12   Transcript PN268

Printed by authority of the Commonwealth Government Printer

<Price code C, PR552868>