[2019] FWC 392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Adam Calvert
Mr Paul Anthony Hendley
Mr Kent Scott
Mr Peter Alan Jones
Mr Benjamin Canton
v
Cobham Aviation Services Engineering Pty Ltd
(C2018/6754, C2018/6755, C2018/6756, C2018/6757, C2018/6758)

COBHAM AVIATION SERVICES ENGINEERING PTY LTD SCHEDULED MAINTENANCE ENTERPRISE AGREEMENT 2016

Airline Operations

COMMISSIONER HAMPTON

ADELAIDE, 27 FEBRUARY 2019

Dispute about matters arising under the enterprise agreement – multiple applicants – payment of supervisory allowance during overtime – overtime rate expressly payable on base salary – annual allowance described as being for ‘all purposes’ of salary – terms used inconsistently and interchangeably - operation of agreement ambiguous – Commission to ascertain objective intention of agreement based upon the language and terms when read as a whole, and considered having regard to its context and purpose – relevance of extrinsic material discussed - objective intent drawn from its own terms and treatment of other provisions - supervisory allowance not intended to be payable on overtime - applications determined.

1. The dispute

[1] This decision concerns the determination of a dispute about the proper application of the Cobham Aviation Services Engineering Pty Ltd Scheduled Maintenance Enterprise Agreement 2016 (the 2016 EA). That instrument is an enterprise agreement approved¹ by the Commission under the Fair Work Act 2009 (the FW Act). The matter is before the Commission as a result of applications lodged under s.739 of the FW Act by Mr Adam Calvert, Mr Paul Hendley, Mr Kent Scott, Mr Peter Jones, Mr Benjamin Canton (the Applicant employees). Each of the Applicant employees is a Supervisor employed by Cobham Aviation Services Engineering Pty Ltd (Cobham) - the respondent employer.

[2] The enterprise agreement commenced operation on 28 June 2016 and it covers and applies to Cobham, the Australian Licenced Aircraft Engineers Association (ALAEA) and the Applicant employees (amongst other employees) who are engaged in the scheduled maintenance operations of Cobham.

[3] The substance of this matter involves a dispute about whether the relevant supervisory allowance provided by clause 5.6 of the 2016 EA is payable (as an additional amount) during a period of overtime performed by the Supervisors. This involves the consideration of the import of clause 4.3 – Additional Hours and clause 5.6 – Supervisory Allowance in the context of the definitions of Annual Salary in clause 1.2.3, salaries and allowances in schedules 1 and 3, and the terms of Agreement more generally.

[4] The Applicant employees contend, in effect, that the relevant supervisory allowance specified in clause 5.6 and schedule 3 is payable in addition to the penalty applied to the base salary provided by clause 4.3.2 when overtime work is performed by them as Supervisors. That is, during a period of overtime, Supervisors should be paid the relevant penalty (150% or 200% of their base salary) plus the supervisory allowance (without any loading).

[5] Cobham contends that the Agreement provides that only the relevant penalty-loaded base salary set out in clause 4.3.2 is payable when such overtime is performed.

[6] The Commission conducted a conference with the parties on 12 December 2018. This, and the various direct discussions between the parties, did not resolve the dispute.

[7] It is common ground that the Commission is empowered under s.739 of the FW Act and clause 1.9 Resolving Workplace Concerns or Disputes of the 2016 EA to determine this dispute. The relevant procedures required by clause 1.9 have been followed such that the matters are properly before the Commission for arbitration and determination.

[8] For reasons that will be outlined shortly, the Commission’s role in this matter is not to arbitrate the substantive industrial merit of the competing positions. Rather, it is to determine the proper application of the existing enterprise agreement, which is the matter in dispute.

2. The relevant terms of the Enterprise Agreement

[9] Without overlooking the other provisions of the 2016 EA more generally, the following provisions are directly relevant for present purposes.

[10] Clause 1.4 of the 2016 EA provides as follows:

“ 1.4 RELATIONSHIPS TO OTHER INDUSTRIAL AWARDS AND AGREEMENTS

This Agreement is a comprehensive Agreement and replaces all previous Agreements and operates to the exclusion of the Award.”

[11] The concepts of annual salary and the hourly rate are defined in clause 1.2 in the following terms:

“1.2 DEFINITIONS

In this Agreement:

… …

1.2.3 “Annual Salary” means the base salary relevant to the classification as set out in Schedule 1, plus any licence payments as set out in Schedule 2 and any supervisory allowances that are applicable to the Employee. The salary has been calculated to incorporate award payments such as annual leave loading. For the purpose of calculating termination payments, licence and supervisory allowances will only form part of the annual salary where such allowances have been paid to the Employee for a period of at least 12 months immediately prior to his/her cessation of employment. The 12 month rule will not apply when redundancy is paid.

… …

1.2.18 "Hourly Rate" meansannual salary divided by 1976 hours.”

[12] I note that this provision also appears to differentiate between the “annual salary” and “base salary”. The annual salary is the base salary plus licence payments and any supervisory allowance applicable to the employee concerned.

[13] The additional hours provision in clause 4.3 of the 2016 EA, which defines what the parties have referred to as overtime and associated arrangements, is as follows:

“4.3 ADDITIONAL HOURS

In this clause "Additional Hours" means hours that are worked in excess of the limit of hours in clause 4.1.1.

4.3.1 In response to these demands and subject to the safety provisions of this clause, the Employee agrees that they will continue working until the required work is completed or the Employee is relieved from duty.

4.3.2 Where an Employee works additional hours than the rostered hours per roster block as defined in Clause 4.1.1.1 the Employer will pay the Employee for each additional hour at a rate of 150% of the Employees base salary. Additional hours worked on a Sunday and after the first four hours on a Saturday will be paid at 200% of the Employees base salary (double time). Payment will not be made if less than one hour overtime has been worked in any pay period. Alternatively by mutual agreement between the Employer and Employee the Employee may request the Employer to take these hours as time off in lieu which will be taken at a rate of 1.5 hours.

4.3.3 Where an Employees shift is extended, the person on duty who is responsible for the Employees work will monitor the Employees ability to work safely and competently. The Employee will be directed to have a break or to cease work when the person in charge deems it as necessary.

4.3.4 The Employee is responsible to report to the person in charge their ability to continue working safely. If the Employee feels that they are tired or otherwise not in a proper state to continue work, the Employee will be released from duty immediately.”

[14] As part of the provisions dealing with remuneration more generally, clause 5.1 refers to the “rate of pay’ in the following terms:

“5.1 RATE OF PAY

5.1.1 The Employees annual rate of pay (salary) will be as prescribed for the classification in which the Employee is employed in Schedule 1.

5.1.2 Salary will be paid by installments on or around the 15th of the month and the last working day of the month into a financial institution nominated by the Employee. You may nominate up to three financial institutions.

5.1.3 The salary is inclusive of minimum salary and payments specifically referred to in parts of this Agreement, including award payments such as, annual leave loading and, meal breaks. The residual amount over and above the 'inclusions' will be deemed over-award payments.”

[15] It is appropriate to consider how the 2016 EA treats allowances more generally as a potential insight to its intended operation. The supervisory and other allowances are defined in clause 5.6 and the amounts are specified in the relevant schedules. Clause 5.6 of the 2016 EA provides as follows:

“5.6 ALLOWANCES & PENALTIES

Shifts and Shift Allowances

5.6.1 The base salaries as provided in this Agreement include an allowance for shift work and flexibility as required for the operation, however when an Employee is rostered on shift the following additional allowances will also be paid:

5.6.2 The normal rate of pay specified in the Agreement will apply to rostered shifts that fall wholly within 0600 to 1800, Monday to Friday.

5.6.3 A loading of 15% will apply to any shift Monday to Friday with hours falling outside of 0600 to 1800.

5.6.4 A loading of 25% will apply to any shift with hours falling on a Saturday or Sunday.

Licence payments

5.6.5 Subject to the conditions in this clause, the Employee will receive license payments as set out in Schedule 2.

5.6.6 These licence payments only apply upon nomination by the Heavy Maintenance Manager.

5.6.7 Where an Employee holds a licence but has not been nominated for a licence payment and is subsequently called upon to use that licence, the Employee will receive a full year's licence payment. The Employer will back pay the first payment, and then make pro rata monthly payments for the remainder of the calendar year.

Supervisory Allowance

5.6.8 The supervisory annual allowances listed on Schedule 3 are payable pro rata during any period where the role is a part of the Employee's normal duties. This allowance will be regarded as part of the Employees salary for all purposes in this Agreement.

5.6.9 Employees will be appointed to a supervisory role, normally for one or more checks and such appointment will be confirmed by approval of a higher duties allowance form by the Heavy Maintenance Manager.

5.6.10 All LAMEs are to exercise supervisory responsibility over AMEs and T/As on a daily basis as the need arises, without any additional allowance.

Skill Allowances

5.6.11 The Skills Allowances set out in Schedule 4 are paid to the Employee at the Employer's discretion based on the Employers requirements for the skills.

5.6.12 Skill Allowances that are paid per week ongoing will continue to be paid unless the Employee is no longer required to use the skill. The Employer will give the Employee one month's notice that the payment is to be discontinued.

Accommodation and Allowances

5.6.13 When the Employee is away from home base (but within Australia) on a layover the Employer will provide accommodation, including transport to and from the airport. Where this occurs the company will pay a layover allowance as described below.

5.6.14 The Employer may, at its discretion, provide accommodation only and pay the Employee meal and layover allowances. Meal and Layover Allowances will be adjusted on 1 July each year in accordance with the Australian Taxation Office Reasonable Allowance Limit issued for that income year.

5.6.15 Meal allowances are not payable while on an airline where meals are provided.

5.6.16 When the Employee travels outside Australia on Company business, arrangements in relation to accommodation meals and expenses will be agreed in advance, based on 90% of ATO Overseas Travel Allowance guidelines.

Own accommodation

5.6.17 Where the Employee and Employer mutually agree, the Employer will pay the Employee an Own Accommodation allowance as specified in Schedule 5. This allowance is in place of, and not in addition to, any other allowances in this Agreement pertaining to layovers.

Call Out

5.6.18 If, without prior notification from the Employer the Employee is recalled to work on a rostered day off or having already left their place of work, the Employer will pay a callout payment as specified in Schedule 3 plus the Employee's hourly rate for each hour worked rate plus a loading of 50%. Call-out time includes traveling to work to attend the call-out.

Other Aircraft Type

5.6.19 If a new aircraft type is introduced the maximum base salary will be based on the 717 salary. Additional group payments however will be paid. This is for up to two additional aircraft types.”

[16] The base salary for each position is set out in Schedule 1 of the 2016 EA. For each classification, there is an (annual) salary based upon the relevant qualifications, certifications and role.

[17] The Licence Allowances in Schedule 2 are specified as being an allowance payable depending upon the type of licence held.

[18] Schedule 3 specifies the annual allowances for Supervisors in the following terms:

[19] I note that by contrast, the skill allowances in Schedule 4 are specified in the following manner:

[20] Unlike the Supervisory allowance, the skill allowances are not specified within the Agreement as being part of an employee’s salary for all purposes. Further, the Agreement provides the following:

“Skill Allowances

5.6.11 The Skills Allowances set out in Schedule 4 are paid to the Employee at the Employer's discretion based on the Employers requirements for the skills.

3. The positions of the parties

3.1 The Applicant employees

[21] The Applicant employees provided joint submissions and contend that the relevant supervisory allowance should be paid per hour and that for every hour worked, including overtime, the hourly rate of the supervisory allowance should be applied. That is, the annual supervisory rate should be paid, in addition to the loading on the base rate, for each overtime hour calculated by dividing the relevant supervisory rate by the annual ordinary hours; being 1976.

[22] The basis of the Applicant employees contentions may be summarised as follows:

• Clause 5.6.8 plainly states that the allowance is “payable pro rata during any period where the role is part of the Employee’s normal duties” and the allowance will be regarded as part of an Employee’s salary for “all purposes”;

• The base hourly rate of the supervisory allowance should be added to the overtime base salary rate once the base salary has been adjusted for the 150% or 200%;

• Clause 4.3.2 and clause 5.6.8 do not exclude one another – the application of overtime rates under clause 5.6.8 to the base salary operates in conjunction with clause 4.3.2 – and the supervisory allowance is paid under the clause 5.6.8 for “all purposes”; and

• The Aircraft Engineers (General Aviation) Award 1999 is the originating basis of the higher duties allowance and the allowance in that Award provides that it will be paid on all allowances and penalty payments “for the whole day” and “will apply for all purposes. This should to be considered as the minimum standard that “employees once worked to and where the current allowance evolved from.” 2

[23] The effect of the Applicant employees’ position as set out in final submissions was that clause 5.6.8, when read utilising the defined or conventionally understood terms, was as follows:

“5.6.8 The supervisory annual allowances listed on Schedule 3 are payable as a proportionate amount of money during any length of time where the role is a part of the Employee's normal duties. This allowance will be regarded as part of the Employees salary added to an employees hourly rate in this Agreement.” (emphasis in original submissions)

[24] The Applicant employees also contend that Cobham had during recent bargaining meetings agreed that the supervisory allowance should have been included in the overtime rates. This included that the Cobham representatives involved indicated that they thought this was already the case and advising that any monies owed to employees would be backdated. In that light, they contend that Cobham has subsequently reneged on that “agreement”.

[25] Amongst other documents, the Applicant employees relied upon a signed statement provided by members of the Cobham Base Maintenance EBA team which referenced discussions at a negotiation meeting conducted on 13 March 2018. Mr Matthew Stanton, an EBA bargaining representative involved in negotiations for the 2016 EA and the most recent bargaining round, also provided sworn evidence and was cross-examined about those matters.

3.2 Cobham Aviation Services Australia

[26] Cobham contends that the 2016 EA has a plain and ordinary meaning; being that additional hours are paid at a rate of 150% (or 200%) of the employee’s base salary and no other payment is due to the Supervisors for such hours. In that light, its primary submission is that there is no need to look to the surrounding circumstances.

[27] The basis of Cobham’s primary contention relies upon an assessment of clause 4.3.2 and clause 5.6.8. In relation to the first provision, Cobham posits that:

• Clause 4.3.2 states that additional hours are paid ‘at a rate of 150% of the Employee’s base salary’. The words have a plain meaning and it is clear that for such hours, the rate of pay is calculated on the base salary only, without any additional payments; and

• There is no clause in the Agreement which states that other named amounts also apply on top of this payment.

[28] In relation to clause 5.6.8, Cobham contends that:

• The clause makes two statements; namely, that the allowance is paid pro rata during any period where the role is a part of the Employee’s normal duties; and the allowance is regarded as part of the Employee’s salary for all purposes of this Agreement.

• As the clause entitles an employee to payment of the supervisory allowance during any period described, and there is no definition in the Agreement which would narrow a broad ordinary definition of a length or proportion of time, it is open for the employer to determine what measure of time will be used to define a ‘period’ for the purpose of implementing clause 5.6.8, provided that it does not breach any other parts of the Agreement.

• Cobham has historically administered this by reference to a pay period and as the supervisory allowance is an annual sum, the payment of it on a pro rata basis is made by apportioning the total annual amount of the allowance per pay period throughout the year.

• In relation to the “all purposes” notion associated with the Supervisory allowance, Cobham further contends that:

• The plain and ordinary meaning of this provision simply defines how the allowance is to be regarded; that is, it is to be regarded as a component of a prescribed amount for any purpose that that amount serves. It is a mechanical provision that does not independently create any additional rights;

• There is therefore nothing in the words of clause 5.6.8 which has the effect of overriding the words of clause 4.3.2 or that create a new entitlement to payment of the supervisory allowance during overtime;

• In the absence of a definition provided by the Agreement, the plain and ordinary meaning of a ‘salary’ is the amount a person is paid each year and in this case this is a reference to the ‘annual salary’ and not the ‘base salary’, as the annual salary is the amount an employee is paid each year, whereas the base salary is a component of that salary;

• Where the Agreement creates a right or obligation based on the annual salary, the supervisory allowance is regarded as part of the annual salary for that particular purpose; and

• The quantum of the annual salary serves no purpose in the calculation of overtime, and is therefore not relevant.

[29] In the alternative, Cobham contends that that if there is an ambiguity in the words of the relevant clauses or they are otherwise susceptible of more than one meaning, the evidence of the surrounding circumstances supports the Respondent’s interpretation. This includes:

• The provisions in question have been in place in an identical form since 2006, the Supervisory allowance has not been paid during overtime, and no issue has been raised about the issue during negotiations or otherwise until very recently where the issue has been dealt with by a variation as part of a new enterprise agreement;

• This history represents notorious facts of which knowledge is presumed, and evidence of subsequent conduct which shows a consensus in the interpretation; and

• While it is not determinative, the fact that this position has not been challenged in the history of the provisions’ existence must lend weight to a finding that the parties knew and understood this was how the provisions operated.

[30] In relation to the recent negotiations associated with a new enterprise agreement, Cobham contends that when the issue was first raised an initial response was given but later checked. Subsequently, the provision was amended as part of the new agreement to provide a new entitlement as claimed. As a result, it posits that none of this is relevant to the proper meaning of the 2016 EA.

[31] Cobham relied upon the witness statement of Ms Charlotte Bottrill, Human Resources Business Partner, and associated documentation. Ms Bottrill also provided sworn evidence and was cross-examined.

4. Observations on the evidence

[32] There is no significant factual dispute related to this matter. There are some differences between the parties about the detail and import of statements made in the context of bargaining for an enterprise agreement to replace the 2016 EA.

[33] I have found that Mr Stanton and Ms Bottrill were honest and open in their evidence. The differences that do exist about the recent bargaining are largely matters of perspective and the fundamental sequence of events is not in dispute.

[34] To the extent that any of the statements or other “evidence” referenced the subjective views of the proponents about the intended application of the 2016 EA, this is properly a matter for the Commission to determine and I have treated any of that material as submissions.

5. The approach to be applied to determining the proper application of an enterprise agreement

[35] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited³ (AMWU v Berri) in the following terms:

“[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 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.”

[36] This is a non-exhaustive statement of the principles to be adopted⁴ and I have applied this approach in determining this dispute.

[37] In Geo A Bond & Co Ltd (In Liq) v McKenzie,⁵ (Geo A Bond) 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.”

[38] 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.”6

[39] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd⁷ 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.”⁸

[40] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia⁹ in the following terms:

“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘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.’”

[41] More recently, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene 10 (WorkPac) provided the following convenient summary of the required approach:

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” 11 (citations omitted)

[42] All of the above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention of the 2017 EA based upon the language and terms of the agreement, when read as a whole, and considered having regard to its context and purpose.

[43] For completeness, I observe that the Commission is not being requested to grant some form of declaratory relief and is not empowered to do so.¹² Rather, the Commission is determining the proper application of the 2016 EA in order to determine the dispute between the parties about that instrument under the terms of the agreed dispute resolution procedure.¹³

6. The broad factual context

6.1 The workplace

[44] Cobham is a large provider of contract aviation services in Australia. This includes the provision and maintenance of a comprehensive aerial fleet. The 2016 EA applies to the scheduled maintenance operations of its business. The line maintenance operations of the business are covered by a different enterprise agreement; being the Cobham Aviation Services Engineering Line Maintenance Enterprise Agreement 2016 (the Line Maintenance EA).

[45] There are approximately 20 Supervisors covered by the 2016 EA. The Supervisors are appointed either on an ongoing or project basis. The 2016 EA provides supervisory allowances in Schedule 3 for Shift Supervisors (with a minimum and maximum annual rate) and an allowance for the Production Supervisor. The practice is that the actual allowance for the Shift Supervisors is set by the Base Manager within the prescribed range.

[46] Employees are paid on a fortnightly basis.

6.2 The history of the Agreement provisions and payments to Supervisors

[47] Although there is no direct connection with the 2016 EA, the predecessor business of Cobham (National Jet Systems Pty Ltd) was subject to the Aircraft Engineers (General Aviation) Award 1999. That Award provided as follows:

“Clause 20 - Higher Duties Allowance

Where an employee is required to act in a higher position, the employee will be paid at the rate, including all allowances and penalty payments, appropriate to that position for the whole day. An employee who acts in a higher supervisory position will receive an increase in pay at least equal to the leading hand allowance prescribed in 11.11.2 which will be included in the employee's rate and will apply for all purposes under this award while acting in such higher position.”

[48] I observe that under clause 1.4, the 2016 EA wholly replaces that Award and its modern award equivalent.

[49] In 2006, Australian Workplace Agreements (AWAs) operated in this workplace. The provisions dealing with the definitions and calculation of salary and the supervisory allowance were different; however in relation to the present issue, Mr Calvert’s (and other employee’s) AWA had the same basic provisions in the equivalent of what is now clauses 4.3 and 5.6 of the 2016 EA.

[50] Since 2006, successive workplace and later enterprise agreements have also contained provisions applicable to the scheduled maintenance operations that are broadly consistent with the provisions being relied upon by the parties in this matter.

[51] Prior to the more recent events outlined below, the supervisory allowances have not been paid on overtime by Cobham to any of the Applicant employees (or any others under the 2016 EA). This was known and understood in the workplace. It is also the case that the issue has not been raised or discussed by the parties or their representatives in any of the bargaining rounds, including those leading to the 2016 EA, before the most recent events.

[52] The Line Maintenance EA, which applies to same general class of employees but in a different operational division of Cobham, contains different provisions bearing upon the payment of supervisory allowances on overtime. The definitions are largely the same for present purposes however the relevant provisions dealing with additional hours provides as follows:

“4.3.2 Where an Employee works additional hours than the rostered hours per roster block as defined in Clause 4.1.1 the Employer will pay the Employee for each additional hour or part thereof at the Employee's hourly rate as defined herein plus a loading of 50%. Payment will not be made if less than one hour overtime has been worked in any pay period. Alternatively by mutual agreement between the Employer and Employee the Employee may request the Employer to take these hours as time off in lieu which will be taken at a rate of 1.5 hours (maximum accrual is to be 4 days /40 hours).”

[53] The “Leading Hand” provision in the Line Maintenance EA is also differently expressed as follows:

“5.6.4 Leading Hand and SBE Allowance

5.6.4.1 A supervisory allowance is payable to appointed Leading Hands and Senior Base Engineers (SBEs) with and without overnighting aircraft.

5.6.4.2 Except where otherwise defined, this allowance will be regarded as part of the annual salary for all purposes in this Agreement.

5.6.4.3 In the case of the Senior Base Engineers and the Leading Hands with overnighting aircraft, an Employee will receive an additional payment for each aircraft permanently based at his/her base of responsibility as described in Schedule 4.”

[54] Supervisors under the Line Maintenance EA have been paid the leading hand allowance on overtime since 2001. I observe that given reference to the “Employee’s hourly rate as defined” in clause 4.3.2, and the fact that this term is defined in clause 1.2.16 by reference to the annual salary (which includes any supervisory allowances), this entitlement is clearly established. The reference to annual salary in clause 5.6.4.2 also reinforces this outcome given that under the Line Maintenance EA, clause 4.3.2 relies upon the defined term of employee’s hourly rate, which expressly includes the annual salary.

[55] These findings are broadly relevant to an assessment of the context within which the 2016 EA was made. In the circumstances, they do not, however, directly inform the proper application of the Agreement.¹⁴ I will return to the implications of the long standing non-payment of the allowance on overtime to the Applicant employees (and others in the scheduled maintenance operations) shortly.

6.3 The negotiations for a new enterprise agreement

[56] During negotiations for an enterprise agreement to replace the 2016 EA, the employee interests raised a claim that the higher duties/supervisory allowances should be paid on overtime. That is, they proposed that as they were continuing to perform the supervisory duties at those times, the allowance should now also be paid.

[57] In a meeting on 13 April 2018, representatives for Cobham initially indicated that the practice of not paying the Supervisory allowances on overtime did not appear to be correct and was unusual, that the issue would be looked into, and if there was any back pay due, they would get payroll to look into that. This was confirmed in an update provided by Cobham in the following terms:

“It was confirmed that the Supervisory Allowance should be included in overtime rates – Payroll are reviewing this and any monies owed will be backdated”. 15

[58] The evidence before the Commission is that the initial response to the issue was influenced by the fact that it had, in that period, been engaged in discussions relating to the Line Maintenance EA, where the allowance was paid on overtime.

[59] Subsequently, Cobham’s payroll department advised that the allowance had never been paid on overtime to the scheduled maintenance employees, and based upon further advice, the Cobham representatives formed the view that it was not payable in these circumstances under the 2016 EA.

[60] Later, Cobham negotiated a resolution of a claim for potential “back pay” advanced by the ALAEA, and an offer was made to all of the Supervisors to formally settle the issue through a partial payment. All of the Supervisors, with the exception of the Applicant employees, accepted the offer and entered into deed of release. The offers and the deeds were undertaken on a denial of liability basis.

[61] Negotiations for the replacement enterprise agreement continued and in early January 2019 a majority of the employees endorsed a new agreement. The new agreement 16 is yet to be approved by the Commission. I note that in the new agreement sub clause 4.3.2 now reads as:

“4.3.2 Where an Employee works additional hours than the rostered hours per roster block as defined in Clause 4.1.1.1 the Employer will pay the Employee for each additional hour at the Employees hourly rate as defined herein plus a loading of 50%.

Additional hours worked on a Sunday and after the first four hours on a Saturday will be paid at the Employees hourly rate plus a loading of 100% (double time) Payment will not be made if less than one hour overtime has been worked in any pay period. Alternatively by mutual agreement between the Employer and Employee the Employee may request the Employer to take these hours as time off in lieu which will be taken at a rate of 1.5 hours.” (emphasis added)

[62] In effect, the yet to be approved agreement utilises the definition of hourly rate in clause 1.2.18 to confirm the inclusion of all elements of the annual salary (including supervisory allowances) and to define how that is to be calculated (divisor of 1976). This is consistent with the approach adopted in the Line Maintenance EA (albeit that a different hourly divisor is used).

[63] Having regard to all of the evidence before the Commission, I find as follows in relation to these events:

• In the context of the historic non-payment of supervisory allowances on overtime, the employee bargaining representatives raised a claim that this should change in the new agreement;

• Cobham initially responded to the effect that the non-payment was unusual, they agreed that it should be changed in the new enterprise agreement, would have the existing arrangements checked and if there were underpayments, these would be addressed;

• After checking, Cobham confirmed its view that the allowances were not payable under the 2016 EA;

• There was no enforceable agreement or concluded understanding arising from the immediate events that required Cobham to pay the Supervisory allowances on overtime under the 2016 EA; and

• The offers and resolution of the issue for the other Supervisors took place on a without concession basis by all those involved.

[64] In these circumstances, the events surrounding the negotiations for a new enterprise agreement do not inform the objective intention of the 2016 EA.

7. The proper application of the Enterprise Agreement

[65] The initial question is whether the provisions of the Agreement are ambiguous or capable of more than one meaning? This question arises from the approach summarised in AMWU v Berri. In this respect, regard may be had to evidence of surrounding circumstances provided that those circumstances are not relied upon to contradict the plain language of the agreement.¹⁷

[66] I find that the terms of the Agreement are ambiguous and capable of more than one meaning, when considered both on the plain language and when informed by the context.

[67] There is tension between certain provisions and their placement within the Agreement is not in such a manner as to clearly confirm their import or the relationship between those provisions and the other agreement provisions more generally. As I will outline in more detail below, the Agreement also uses differing terms, including annual salary, base salary and salary, and the use of this latter expression is not internally consistent. The implications of the concept of the Supervisory allowance operating for all purposes of the salary are also not clear on the face of the document.

[68] As a result, the surrounding circumstances tending to establish objective background facts which were known to the parties, but not the subjective intention of the parties, are an aide to the interpretation of the Agreement.

[69] As outlined earlier, in AMWU v Berri, the Full Bench urged considerable caution in the use of extrinsic material for present purposes and stated a relevant principle in the following terms:

“In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 18

[70] This principle is drawn from the following more detailed discussion of the Full Bench:

“[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:

‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’

[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties.

[107] We also note that in Spunwill Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd:

‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’

[108] In the present case, one of the parties to the 2014 Agreement is a corporation and, further, the post-agreement conduct amounted to little more than the absence of a complaint about the non-payment of a laundry allowance. Such evidence is insufficient to establish a common understanding. As Gray J observed in ALHMWU v Prestige Property Services Pty Ltd:

‘Care must be taken … to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.’” 19

[71] In this case there was clear knowledge within the workplace that the supervisory allowance was not being paid on overtime under the 2016 EA or its predecessors. Further, a specific claim was brought to change the Agreement in the context of the most recent bargaining negotiations. However, there is no evidence that the issue was expressly considered at any of the negotiations associated with each new agreement (prior to the present round), or more importantly, that the issue and the practice were advised to the employees as part of an enterprise agreement approval process.

[72] In the circumstances, I consider that the context is relevant and an aide to the construction of the Agreement more generally. However, the evidence in this matter falls short of demonstrating a common objective contemplation of the intended meaning of the provisions as would, of itself, resolve the apparent ambiguity present in the terms of the Agreement.

[73] Given this finding it is convenient to further consider the overall provisions of the 2016 EA including its approach to remuneration and hours of work. This includes how various concepts of salary are used within the Agreement.

[74] At the outset I observe that the Agreement does not follow the more conventional approach often seen in instruments that adopt an annual salary concept. That is, to load the salary by incorporating other payments and have it apply consistently in lieu of certain other allowances and provisions. Rather, the 2016 EA defines the annual salary but does not then consistently use that defined term to directly prescribe the remuneration of the employees. It does use that term to define the entitlements (either directly or indirectly) where the full annual salary is intended and then generally adopts either “base salary”, “salary”, “minimum salary” or “hourly rate” in relation to calculation of remuneration. The following emerges:

• The terms “salary” and “minimum salary” are not expressly defined;

• “Base Salary” is, in effect, defined and means the relevant salary set out in Schedule 1;

• “Annual Salary” is defined and includes both licence payments and supervisory allowances. It also apparently includes award payments (not defined) such as annual leave loading, although this may be because it incorporates the base salary which has that effect. This term is used to define the “hourly rate” (clause 1.2.18) and as part of purchase leave (clause 6.5.1);

• “Hourly rate” is defined in clause 1.2.18 and is used in relation to the calculation of rates for causal employees (clause 3.2), call out arrangements where it is used in conjunction with the relevant allowance (clause 5.6.18) and purchased leave (clause 6.5.1); and

• The term “salary” is used in various provisions including in clause 5 where it is apparent that it is intended to refer to the base salary (clause 5.1.1), and in all probability in the same clause, is intended to refer to the annual salary (clause 5.1.3).

[75] The mix of terminology adopted by the 2016 EA is further illustrated by a consideration of clause 6.5.1, where the various terms are all used:

“6.5.1 Subject to approval and operational requirements the Employee may purchase additional weeks of leave (maximum purchase allowed is four weeks) on a calendar year basis by sacrificing part of their annual salary. For instance '48/52' means purchasing an additional four weeks of leave. The Employee's annual salary is then reduced pro-rata by four weeks and the remaining salary spread over the full calendar year. This reduces the Employee's ordinary hourly rate of pay and salary based allowances like overtime payments and superannuation payments to accumulation of funds. The purchased additional leave will accrue progressively over the course of the purchase period.”

[76] What this means is that care must be taken in attempting to place too much emphasis upon some of terminology adopted by the drafters unless it is evident from the context that the specifically adopted terms are intended. Where the Agreement adopts references to “base salary” or “annual salary” these are intended to carry the import of the relevant definition. That is, absent strong contextual indicators to the contrary, expressly defined terms in a document must be given that meaning. 20 However, the term “salary” or other non-defined variants when used in this Agreement must be applied with considerable caution.

[77] The 2016 EA also adopts different approaches to some allowances and payments. I have set out the relevant terms earlier in this decision. The Licence payments are referenced in clause 2.4, have the basic conditions set out in clauses 5.6.5 to 5.6.7 and the actual amounts are contained in Schedule 2. The licence allowances are stated as being paid in relation to defined licence types, are not stated as being for all purposes, but are part of the annual salary as defined.

[78] There are certain skill allowances that are specified to be paid per week or per annum, are not stated as being paid for all purposes, and are not part of annual salary.

[79] The call out arrangements in clause 5.6.19 specifically confirm that the schedule 3 allowance is paid in addition to the hourly rate. This is potentially significant as when the allowances are intended to be paid in addition to the stated entitlement, this is generally confirmed either by direct reference, as in this case, or by reference to the annual salary or hourly rate.

[80] This all means that the 2016 EA generally intends that different entitlements and payment arrangements are to operate for each allowance and each must be considered having regard to its definition and how it is referenced in other provisions.

[81] I turn to consider the immediate issues arising from the Supervisory allowance provisions having regard to these general observations. This requires consideration of the terms of clause 4.3 Additional hours, clauses 5.6.8 and 5.6.10 Supervisory Allowance and Schedule 3 Supervisory & Call Out Allowances, all in the context of the Agreement more generally.

[82] The payments in relation to additional hours (overtime) are established in clause 4.3.2 by reference to base salary. For reasons outlined earlier, I apprehend that this is a deliberate and intended reference to the defined term that does not include other payments. Further, this provision does not use “annual salary” or “hourly rate” and, unlike clause 5.5.19, does not state that other payments will be made in addition to the defined payment. Given the approach in other provisions, this evinces an apparent intention that during any additional hours the payments are to be the relevant loading applied to the base salary.

[83] The issue that arises is whether this clause is intended to be a complete code that sets out all of the payments due on overtime. Further, whether there is some clear indication that other payments are intended during these periods. At least in relation to the Supervisory allowances, this requires a consideration of the intended import of the provisions dealing specifically with those allowances.

[84] The Supervisory allowances are specified as being an annual payment. The allowances are also stated in clause 5.6.8 to be “payable pro rata during any period when the role is part of the employees normal duties”. Further, the payments “will be regarded as part of the employees salary for all purposes of this Agreement”.

[85] Applied in a straightforward manner, the notion of the allowances being paid pro rata means that the annual payment is payable on a proportionate basis for any part (period) of the year when the employee undertakes supervisory duties as part of their normal duties. That is, for example, 1/52 per week or 1/26 per fortnight, or the full annual payment if the Supervisor acts in that capacity for the entire year. Given that Supervisory allowances are expressly stated to be annual payments, and under clause 5.6.9 appointments to Supervisory positions are normally for one or more checks, but may be ongoing, the concept of being “payable pro rata” as applied in this manner appears to be apt. However, the notion that the allowances will be regarded as part of the employee’s salary for all purposes of this Agreement, must also be taken into account.

[86] The Applicant employees contend that the “all purposes” element means that the relevant allowance is payable on each hour of overtime, calculated by dividing the allowance by the normal annual working hours (1976) without the application of the overtime loading. They rely, at least in part, upon the normal notion that such payments are paid for all purposes (on each hour), including under the previous award applying to Cobham’s predecessor entity. Cobham contends that this element, when read in context, is simply a mechanical provision confirming the obvious; namely, that the allowance is payable as part of the annual salary.

[87] Cobham sought to rely upon the decision of the Commission in MSS Security Aviation Qld Enterprise Agreement 2014–2017 21 (MSS Security) in which it was contended that the ‘all-purpose’ Aviation Allowance should form a part of employees’ base rate of pay for the purpose of overtime. As is always the case, the matter was determined in the context of that particular instrument; however the discussion does shed some light on the normal usage of various terms and concepts. In MSS Security, the enterprise agreement established and used an aggregated salary, which was utilised to calculate entitlements for some employees and included the aviation allowance. The dispute matters considered by the Commission included whether the all purposes nature of the payment meant that it was applied to the base rate before or after the inclusion of overtime and other penalty factors.22 That is, the dispute was whether the allowance was paid as a flat payment in addition to the overtime payments or itself also subject to the overtime loading. The decision, and the subsequent appeal23 which did not overturn the outcome, stand for the following propositions of relevance to this matter:

• The concept of an all purposes allowance has the normal meaning that it will be payable at all times in addition to the overtime (and other) payments or that the allowance is paid and loaded by the relevant penalty; 24

• The actual meaning of “all purposes” must be ascertained having regard to its use within the instrument and the instrument as a whole; and

• Where an instrument adopts aggregate rate concepts, care must be taken to avoid the need to unscramble the rate and to avoid double dipping.

[88] This approach assists the Applicant employees as to the general notion of “all purposes”. This also supports Cobham’s contention to some extent that a particular and different meaning of all purposes may be intended here. However, there is no sense of double dipping in that the penalties for overtime are calculated by reference to the base rate and not the annual rate.

[89] The all purposes notion in clause 5.6.8 is linked to the employee’s “salary” and for reasons set out earlier, considerable care is required when approaching the use of that term in this Agreement. The Applicant employees do not contend that this reference should be taken to mean base salary. That is, they do not contend that the Supervisory allowances should be included along with the defined base salary and subject to the additional hours loading. This approach is sound given the express reference to the defined “base salary” in clause 4.3.

[90] Cobham contend, in effect, that the Supervisory allowances are to be part of the employee’s annual salary for all purposes and applied whenever that term is used. This is plausible given that the approach is consistent with the defined term involved and consistent with the fact that the relevant Supervisory allowance is payable whenever that term is used. In the normal course, an interpretation that meant the provision did little more than confirm a definition elsewhere would not be lightly adopted. However, resort to such cannons of construction should in my view be applied with caution given the drafting of this instrument.

[91] In any event, the terms of clause 5.6.8, when read in full and in context, do not reveal a clear intention that the relevant Supervisory allowance is to be paid as an additional payment (beyond the relevant penalty applied to the base salary) during periods of additional hours. This is significant given the approach to allowances in the Agreement more broadly is that generally where they are intended to apply in addition to the otherwise specified payment, such is expressly stated or provided by reference to a term that includes the relevant allowance. Further, provided that the relevant Supervisory allowance is paid pro rata for any period of an appointment held by a Supervisor and the allowance is paid for all purposes of the annual salary when that term is utilised, this would appear to accord a consistent and natural application of all of the terms of the Agreement.

8. Conclusions

[92] This Agreement fits squarely into the space contemplated in WorkPac and requires a purposive approach rather than a narrow or pedantic one. Further, I have determined the matter objectively by reference to that which a reasonable person would understand by the language the parties have used to express their agreement as reflected in the 2016 EA.

[93] When all of the provisions are considered as a whole and in context, I do not consider that the Supervisory allowances established by clause 5.6.3 and set out in Schedule 3 are payable under this Agreement as an additional payment during a period of additional hours (overtime) undertaken under clause 4.3 of the 2016 EA.

[94] I determine accordingly.

COMMISSIONER

Appearances:

Mr Adam Calvert, Mr Kent Scott, Mr Ben Canton and Mr Peter Jones, as and for the Applicant employees.

Ms Ming-Lyn Hii and Mr Michael Eleftheriou of EMA Consulting, with permission 25 for Cobham Aviation Services Engineering Pty Ltd.

Hearing details:

2019

Adelaide

8 February.

Final written submissions:

14 February 2019 for all parties.

Printed by authority of the Commonwealth Government Printer

1 [2016] FWCA 4009 on 21 June 2016.

2 Applicant employees written submissions.

3 [2017] FWCFB 3005.

4 See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union [2017] FWCFB 1621 at [21].

5 [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].

6 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.

7 (1993) 40 FCR 511.

8 This decision must be applied having regard to the fact that the instrument in that matter was an award of the Commission rather than an enterprise agreement made between the employer and a majority of the employees at the time of approval. See also AWU v Pasminco (2003) 131 IR 1 for the caution required in this regard.

9 [2013] FWCFB 8557.

10 [2018] FCAFC 131.

11 Ibid at [197].

12 AB v Tabcorp Holdings Limited[2015] FWCFB 523 at [11].

13 See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.

14 AMWU v Berri at [114].

15 Attached to Exhibit A1.

16 Cobham Aviation Services Base Maintenance Enterprise Agreement 2018 – presently subject to an application for approval under the FW Act.

17 AMWU v Berri at [114] 7 – 9.

18 AMWU v Berri at [114] 11 - 15.

19 AMWU v Berri at [105]-108].

20 See Qantas Airways v Chief Commissioner of State Revenue [2008] NSWSC 1049 at [38].

21 [2016] FWC 2774.

22 Ibid at [107].

23 United Voice v MSS Security Pty Ltd T/A MSS Security[2016] FWCFB 4979.

24 See also Mechanical Maintenance Solutions Pty Ltd [2014] FWC 9163 and The Australasian Meat Industry Employees Union v Woolworths Limited trading as Brismeat, [2015] FWCFB 1004.

25 Permission was given pursuant to s.596 of the FW Act during preliminary proceedings.

Mr Adam Calvert Mr Paul Anthony Hendley Mr Kent Scott Mr Peter Alan Jones Mr Benjamin Canton v Cobham Aviation Services Engineering Pty Ltd

[2019] FWC 392

27 FEBRUARY 2019

DECISION

3.1 The Applicant employees

3.2 Cobham Aviation Services Australia