Mr Alan Hutchings v Coles Group Supply Chain Pty Ltd T/A Coles Kewdale Distribution Centre

[2016] FWC 4050

[2016] FWC 4050  [Note: This decision has been quashed - refer to Full Bench decision dated 11 January 2017 [[2017] FWCFB 50]

FAIR WORK COMMISSION

DECISION

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

Mr Alan Hutchings
v
Coles Group Supply Chain Pty Ltd T/A Coles Kewdale Distribution Centre
(C2015/8010)

DEPUTY PRESIDENT BULL SYDNEY, 29 JULY 2016

Section 739 application to deal with an alleged dispute arising under the Coles Kewdale Distribution Centre WA Agreement 2014

[1] On 4 December 2015, Mr Alan Hutchings; an employee of Coles Group Supply Chain Pty Ltd (Coles) and employee delegate for the Shop, Distribution and Allied Employees’ Association (WA Branch) (SDA) filed a s.739 application for the Commission to deal with a dispute in accordance with a dispute settlement procedure under the Fair Work Act 2009 (the Act).

[2] The dispute essentially involves the parties differing views as to the application of clause 10 titled “Productivity / Performance Based Incentives” of an enterprise agreement known as the Coles Kewdale Distribution Centre WA Agreement 2014 (the Kewdale Agreement), although the application is framed differently. The originating application sought from the Fair Work Commission (the Commission) a declaration as to how the form and structure of the incentive scheme under the Kewdale Agreement can be revised and an order that the relevant employees be back paid to 4 May 2015.

[3] Both parties sought to be represented by counsel based on a number of grounds including that the matter would be dealt with more efficiently due to the complexity involved. As per s.596(2)(a) of the Act, I was satisfied that leave should be granted on this basis. Mr Millman from Slater & Gordon appeared for the applicant and Mr Allen from Herbert Smith Freehills appeared for the respondent.

Background

[4] Coles has a long history of paying performance incentives to its employees engaged at its Western Australian Distribution Centres, which are in addition to the wages ordinarily paid. Both parties benefit from this arrangement with an increase in productivity for Coles and increased remuneration for employees. Since 2005, a reference to the performance incentive scheme has been included in the relevant enterprise agreement.

[5] In May 2015, a dispute arose between the SDA and Coles on the alleged basis that Coles had unilaterally made a decision to alter the ‘form and structure’ of the performance scheme in contravention of the Kewdale Agreement. The decision taken by Coles was that the rate at which the performance incentives were to be calculated would be frozen at the 2014 base rate of pay. The SDA, on behalf of the applicant, submits that this decision by Coles could not be taken, firstly without their consent and, secondly, without consulting with the workforce.

[6] Advice relating to the future method of calculating the incentive scheme was provided to employees in a written communication from the Kewdale Distribution Centre Manager. The document is dated 4 May 2015 and titled DC Communication, Kewdale RDC, Annual Wage Increase 2016 1. The communication discussed the upcoming wage increase of 3.9% and that the Kewdale Distribution Centre has the highest incentive earnings in the Coles network. The communication concluded by stating:

“It’s important whilst we reward our team members with a competitive pay rate and benefits package, the business must remain competitive and operate efficiently to maintain it’s (sic) position in the market. It’s (sic) being widely reported that Aldi will soon have a presence in WA, which is a very real threat to our business and market share, the business is already underway with its plans to invest back to price to protect that market share in the future. Therefore, the business has decided that the current pay rate used to calculate incentive payments will no longer increase in line with the EBA pay rate increases, the rate at which the incentive is calculated will be based on the 2014 rate.”

[7] Coles raised a number of issues in opposing the application; including that the Commission does not have the jurisdiction to entertain the application. Coles submitted that the application involves the exercise of judicial power in a manner that is not available to an arbitral body such as the Commission.

[8] Both the SDA and Coles provided written submissions and called witnesses to support their respective positions, some of whom were subject to cross examination. The clause in dispute reads as follows:

“10. PRODUCTIVITY / PERFORMANCE BASED INCENTIVES

The Company undertakes to examine the introduction and if deemed appropriate, the cessation, of a productivity and performance based incentive scheme (“the scheme”) for team members covered by this Agreement. Such a scheme will be developed on the basis that:

i. The form and structure of the scheme will be determined by the Parties in consultation with the team members; and

ii. The objective of instituting the scheme will be to provide an “at risk” additional wage benefit to the team members at no detriment to wage rates specified in Clause 8 hereof; and

iii. Any additional wage benefit payable to the team members from the scheme, including in its formation and introduction, will not constitute any part of a team members ordinary time earnings and will not be included for the purposes of calculating entitlements in respect of annual leave loadings or any other entitlements of a team member; and

iv. The Parties may revise the form and structure of the scheme in consultation with the team members.”

(My underline)

[9] The underlined subclause (iv) above, is the phrase that is in dispute in respect to its meaning.

The Incentive Scheme

[10] The Coles Incentive Scheme (the Incentive Scheme) while referenced in the Agreement does not contain any detail of its form and structure. The Incentive Scheme is said to be based on the Labour Management System (LM System), also known as the Manhattan Labour Management System. The LM system measures employee productivity by measuring the time an employee performs a task as compared to the expected timing associated for the performance of that task. Where an employee performs a task faster than expected, they are credited with a positive performance percentage. For example, where an employee completes a task that is timed to take 10 minutes but does so in 5 minutes, then their performance percentage will be 10/5 x 100% = 200%. Employee performance is averaged over a pay cycle and where they have a positive performance percentage (that being over 100%) they are eligible to receive an incentive payment under the Incentive Scheme. This calculation is completed throughout the day and then tallied to provide an overall performance percentage rate.

[11] The expected time to complete a task is the result of engineering standards measured by industrial engineers using average moderate/skill and effort to complete a task while observing all health and safety requirements. Allowances for minor delays, fatigue and personal breaks are built into the expected times. Employees using normal skill and effort should under the LM System achieve 100% performance on all activities covered by the standard. A document titled Kewdale Regional Distribution Centre - Labour Management System 2 purports to explain to employees how the LM System works.

Applicant’s Case

[12] The applicant’s case was put by the SDA as the applicant’s representative. The heart of the SDA submission was that Coles wish to have the right to unilaterally alter the form and structure of the Incentive Scheme without having to seek agreement with the SDA or consult with employees. It was put that this ability existed in other distribution centre enterprise agreements and that Coles had unsuccessfully attempted to achieve this in negotiations for the Kewdale Agreement. Having been unsuccessful, Coles still took action which was in breach of the intention and wording of the Kewdale Agreement. It was put that the historical evidence clearly shows that the Incentive Scheme payments have always been based on an employee’s base rate of pay, which has been adjusted to account for wage increases.

[13] It was submitted by the SDA that an employee’s base rate of pay; including any wage adjustments was part of the form and structure of the Incentive Scheme. As such, Coles’ decision and action to exclude the May 2015 and 2016 pay rises from the Incentive Scheme calculation is in breach of the Kewdale Agreement as the SDA were neither properly consulted or agreed to the change as required under subclause (iv) of clause 10 of the Agreement.

[14] The SDA submitted that the clause was ambiguous and that based on authorities relating to the interpretation of the industrial agreements, extrinsic material can be relied upon to demonstrate the meaning of the clause.

[15] In respect to the word “Parties” as it appears at subclause10 (iv) in the sentence “The Parties may revise the form and structure of the scheme in consultation with the team members.” the SDA submitted that this can only mean the parties as defined in the Kewdale Agreement. Namely, this would be the SDA and Coles. It would be absurd for the clause to allow either party to unilaterally revise the form and structure of the Incentive Scheme. Parties can only sensibly mean that the SDA and Coles can jointly revise the form and structure of the Incentive Scheme assuming the consultation requirement is also satisfied.

[16] Where there is an agreement between the parties to a revision of the form and structure of the Incentive Scheme, then there is a requirement to consult with employees prior to implementation of that revision. The SDA submitted that consultation requires more than one party telling another party what they wish to do, that is; there should be a genuine opportunity for team members to express a view on the proposed change in order to persuade Coles to adopt a different course. As no agreement between the parties existed to revise the form and structure of the Incentive Scheme, the SDA submitted that Coles was in breach of the Kewdale Agreement.

[17] Secondly the SDA submitted that the consultation undertaken by Coles was also insufficient to meet its obligations under the Kewdale Agreement, even accepting that Coles could unilaterally introduce a change to the form and structure of the Incentive Scheme. The SDA relied on a number of authorities that expanded on the meaning of consultation and submitted that the conduct of Coles fell well short of having undertaken ‘genuine’ consultation.

[18] Mr Millman sought to vary the relief sought in the originating application by removing the reference to a ‘declaration’ being made by the Commission and substituting it with an ‘order’. The SDA relied upon the Commission’s decision in The Australasian Meat Industry Employees Union v Teys Australia Pty Ltd 3 to support its assertion that the Commission has jurisdiction to order back pay to employees.

Evidence of Mr Bullock

[19] Mr Bullock (former SDA National Organiser) and Mr O’Keeffe (SDA(WA) secretary) gave oral evidence on behalf of the SDA.

[20] Mr Bullock, who up until mid-2014 was the Secretary of the SDA (WA), gave evidence on behalf the SDA which included a historical review of the origins of the Coles Incentive Scheme. Mr Bullock stated that in around November 1990, he participated in negotiating the introduction of an incentive scheme at the Coles Canning Vale Distribution Centre.

[21] Mr Bullock stated that in 2005, he proposed the introduction of the Incentive Scheme into the 2005 enterprise agreement. One of the reasons for doing so was that it would be more secure if it was formally referenced in an enterprise agreement. This resulted in the inclusion of clause 54 - Productivity/Performance-Based Incentives in the 2005 enterprise agreement.

[22] Commencing mid-2007, Mr Bullock participated in negotiations for the 2008 enterprise agreement covering employees at the Coles Kewdale site (Canning Vale site having moved to Kewdale). Mr Bullock stated that the wording of clause 10 Productivity/Performance-Based Incentives was subject to negotiation with Coles seeking to change the reference to the words ‘The Parties’ at subclause 10 (iv) to read ‘the Company’. It was agreed that the words ‘The Parties’ remain, however; the following words were also agreed to be inserted into the clause “and if deemed appropriate cessation” allowing Coles to cease the Incentive Scheme unilaterally. In Mr Bullock’s opinion, while Coles could cease the Incentive Scheme there was never any agreement that Coles could unilaterally change the ‘form and structure’ of the Incentive Scheme.

Evidence of Mr O’Keeffe

[23] Mr O’Keeffe is employed as the SDA(WA) Secretary. Mr O’Keeffe’s evidence included the observation that no management representatives involved in the 2008, 2011 and 2014 enterprise agreement negotiations are currently employed by Coles. Mr O’Keeffe stated that during the 2014 enterprise agreement negotiations Coles proposed an amendment to subclause 10 (iv) to enable itself to unilaterally revise the form and structure of Incentive Scheme without having to consult the SDA or employees. This would have had the effect of bringing the incentive clause wording into line with the wording of incentive schemes in other distribution centre agreements. In this regard, Mr O’Keeffe’s evidence was that in other enterprise agreements the wording provides that “the Company may revise the form and structure of the scheme” 4 and that the wording contained in the Kewdale Agreement is unique.

[24] Mr O’Keeffe acknowledged that Coles could change the engineering standards which could affect the earnings of employees in a negative manner.

[25] Mr O’Keeffe stated his understanding of the form and structure of the Incentive Scheme. In his evidence, Mr O’Keeffe expressed his view on how the incentive payment is calculated; being a percentage applied to the employee’s base rate of pay which has been increased from time to time. 5

Evidence of Mr Hutchings

[26] Mr Hutchings, an SDA (WA Branch) member and fork lift driver for Coles tendered a witness statement 6 in which he stated that in about 2012 the former Kewdale Distribution Manager attempted to freeze the rate at which the incentive payment was calculated. However through SDA involvement this change only lasted a few months. Mr Hutchings was not cross-examined on his evidence.

Evidence of Mr Benjamin Langmaid

[27] Mr Langmaid, an organiser for the SDA (WA Branch) also provided a witness statement 7 and was not cross-examined on his evidence. He stated that on Thursday, 30 April 2015 the Kewdale Distribution Centre Manager, Ms Scriven, asked him to come in early the next morning as Coles were releasing information to team members on the following Monday and she wished him to view the information beforehand.

[28] The following morning Ms Scriven handed him a one-page document which she said was to be released to team members on Monday. The final paragraph referred to Coles’ decision to fix the rate at which the Incentive Scheme is paid to 2014 levels. On questioning why this was to occur, Ms Scriven stated that the decision had been made over “East” and that most distribution centres around Australia had already made this change. Mr Langmaid then advised that the matter should be brought to the Joint Consultative Committee meeting (JCC) which was scheduled be held on Wednesday, 6 May 2015. Ms Scriven agreed that the matter could be discussed at the JCC meeting. At the JCC meeting on Wednesday 6 May, Ms Scriven confirmed that the intent of Coles was to freeze the base rate calculation to 2014 wage levels.

Submissions of the Respondent

[29] Coles opposed the orders sought by the applicant on number of grounds, the first being that the relief in the form of a declaration and order for back payments was outside the jurisdiction of the Commission as it would result in the exercise of judicial rather than arbitral power.

[30] Secondly, Coles submitted that the Act does not empower the Commission to deal with a dispute by arbitration that determines rights and obligations arising out of the Kewdale Agreement unless it is undertaken as a step in the process of resolving a dispute that is capable of being resolved by arbitration. In support of this proposition, Coles relied upon the decision of the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Wagstaff Piling Ptd Ltd and Others 8 where the majority, Buchanan and Katzmann JJ, stated at page 377:

“Although FWA cannot exercise the judicial power of the Commonwealth, it is well established that a federal industrial tribunal, exercising powers of conciliation and arbitration, may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers (see Re-Cram; Ex parte Newcastle Wallsend Coal Company Pty Ltd (1987)163 CLR 140 at 149).

However, the decision of the Commissioner did not observe this fundamental distinction. The Commissioner expressed an opinion about a legal matter, but did not do so for the purpose of taking some further step within his own power.”

[31] Coles further submitted that where subclause 10 (iv) refers to ‘The Parties’ this is not a reference to Coles and the SDA. Where clause 2.1 of the Kewdale Agreement refers to ‘the parties’ to the Kewdale Agreement being Coles and the SDA; it is not a definitions clause and the term is used throughout the Kewdale Agreement in a range of contexts. Had the clause meant an agreement between both the SDA and Coles; the clause would have read “By agreement the parties may revise …”

[32] It was stated that as the SDA accepted that the clause allows Coles to unilaterally cease the Incentive Scheme, it is an inconsistent outcome if Coles is not able to revise the form and structure of the Incentive Scheme.

[33] Further, Coles submitted that a requirement to reach agreement with the SDA before consulting with team members and implementing any change is inconsistent the nature of consultation as it would require a pre-agreed decision to be put to employees in circumstances where the SDA is also the representative of those employees.

[34] Coles accepts that it is required to consult with team members prior to revising the form and structure of the Incentive Scheme and states that it has satisfied this requirement even though it is not required to on this occasion. This is because there has been no change to the form and structure of the Incentive Scheme.

[35] It is submitted that consultation regarding the change to the Incentive Scheme occurred in the following manner:

• On 30 April 2015, the Kewdale Distribution Centre Manager, Ms Scriven, approached Mr Langmaid and provided him with a copy of the Coles proposal.

• Ms Scriven then took the matter to the next Joint Consultative Committee meeting where it was discussed with SDA delegates.

Form and Structure

[36] Should the Commission determine that it has jurisdiction to deal with the dispute, Coles argued that its decision not to continue to increase the base rate value it uses in its incentive calculations in line with the negotiated wage increases in the Agreement is not a matter relating to a revision of the ‘form and structure’ of the Incentive Scheme. Coles relies on the Oxford Dictionary meaning of the word ‘revise’ being to reconsider and alter. The decision to continue to use the May 2014 base wage rate is a continuation of the status quo as opposed to any alteration of the Incentive Scheme. There is no requirement to flow on increases to the base wage rate in the calculation of the incentive scheme payment. It was further submitted that even if the failure to apply wage increases into the base rate used to calculate the incentive payment is a revision of the Incentive Scheme, it is not one that concerns the form and structure of the Incentive Scheme.

[37] It was put by Coles that the form and structure of the Incentive Scheme is the Manhattan Labour Management System and that it does not extend to the manner in which the LM system measures employee performance. Coles argued that this reasoning is demonstrated in that any changes to the LM system to maximise the integrity and productivity of the LM system are not considered by the SDA to be changes to the form and structure of the Incentive Scheme. 9 A change to the form and structure of the Incentive Scheme would be to change the type of elements reflected in the incentive payment formula.10 For example a proposal to use an entirely different method to assess employee performance.

[38] It was submitted that the LM system is a constantly evolving system. For example, where new equipment is introduced or improved, the system is changed to reflect the expected times for completing certain tasks. Where a more efficient piece of plant or equipment is used to complete a task, the expected time for the task is likely to be revised downwards and employees will be expected to complete the task in a shorter period.

[39] Mr Allen on behalf of Coles stated that the form and structure of the Incentive Scheme does not include the inputs such as the engineering standards and base salary of employees. It was asserted that no common intention between the parties that the base rate calculation for the purposes of the incentive payment calculation can be demonstrated. Coles also provided written submissions and witness statements in support of its case.

Evidence of Ms Joanna Scriven

[40] Ms Scriven, the Manager of the Kewdale Distribution Centre (Kewdale DC) gave evidence on behalf of Coles and was subject to cross examination. 11 Ms Scriven described the purpose of the Incentive Scheme as being a reward for employee performance and productivity. Ms Scriven went on to state that employees performing ‘on-standard’ duties will on average earn an incentive payment of $200 and it is possible for a team member to earn incentive payments of $600-$1,100 per week, of which many do12

[41] In January 2015, Ms Scriven commenced an analysis to understand the Labour Management process and how it linked to employee productivity. At the time, the Kewdale DC was financially unstable from a productivity perspective and Coles needed to ensure it was looking at all opportunities to improve its position. The Incentive Scheme was one of the initiatives that were examined. Having obtained advice that it was permissible to cease increasing the incentive payments in line with the base wage rate annual increases, Ms Scriven prepared a communication to be provided to employees. However their first task was to inform the SDA and then the Joint Consultative Committee (JCC).

[42] In accordance with her usual process, Ms Scriven raised the matter as a discussion item on the agenda for the upcoming 4 May 2015 JCC meeting and had an initial discussion with the SDA site delegate Mr Langmaid on 30 April 2015. Ms Scriven communicated the decision to Mr Langmaid and her intent to brief the JCC. At the JCC meeting, team members were advised that they needed to be more realistic and realise that Coles was operating in a competitive market which was producing tough conditions, including having to invest money into price, to ensure the business remained competitive in the marketplace. Subsequent to the JCC meeting Ms Scriven briefed team managers. Ms Scriven prepared a flyer that communicated the Incentive Scheme decision to team members, which was then put on tables in the canteen. The flyer was to be used by team managers as part of their daily pre-work briefing session.

[43] Ms Scriven also stated that in August 2015, the Kewdale DC commenced an audit into the engineering standards that form the basis of the LM system. A partial completion of this audit identified that team members had been paid inflated incentive payments because the expected time for various tasks were not sufficiently accurate.

[44] Ms Scriven’s evidence was that it is Coles who determines how the incentive payment is calculated administratively and employees are provided with a net figure on their payslip. Ms Scriven advised that the Kewdale DC is the only Distribution Centre in the Coles network where annual increases in the base wage rate are applied to the incentive scheme payment.

Evidence of Ms Catherine Murdoch

[45] Ms Murdoch, the Coles WA Human Resources Manager, also gave evidence on behalf of Coles. Ms Murdoch confirmed that a national evaluation of the engineering standards that form the basis of the LM system do not accurately reflect the equipment being used, the upgrades in technology or the improved and optimised processes. There has not been any challenge to the ability of Coles to conduct the assessment of the engineering standards being used or to make any necessary revisions.

Consideration

[46] The dispute before the Commission is whether Coles has the ability to unilaterally decline to increase the base wage rate value it uses in its Incentive Scheme calculations in line with the negotiated wage increases in the Kewdale Agreement. The dispute arises from the communication to employees by the Kewdale Distribution Centre Manager provided in written form dated 4 May 2015 13. The 4 May 2015 written communication states that the current pay rate used to calculate the incentive payments would no longer increase in line with the EBA pay rate increases, and that the rate at which the incentive will be calculated will be based on the 2014 rate.

Jurisdiction to deal with dispute

[47] Coles submitted that the application cannot be dealt with by the Commission as the application seeks a binding determination on the rights or obligations arising from the Kewdale Agreement, as opposed to forming a view about legal rights for the purpose of taking some other step in resolving a dispute within the Commission’s jurisdiction.

[48] As discussed above, the SDA amended its originating application (which sought a ‘declaration’) during the hearing to seek an order from the Commission. Mr Allen, on behalf of Coles, argued that it makes no difference whether the SDA seeks an order or declaration. It is not uncommon that a dispute may alter in character during proceedings in the Commission. 14

[49] As the application was filed under s.739 of the Act, the question is whether the dispute settlement procedure in the Kewdale Agreement “requires or allows” the Commission to deal with the dispute. It is therefore necessary to examine the text of the dispute settlement procedure, to determine whether the dispute, when properly characterised, falls within it. 15 Accepting that the scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed:

“to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.” 16

[50] Clause 20 of the Kewdale Agreement provides for a “Dispute Settlement Procedure” under which the application has been brought to the Commission. Clause 20.1.2 provides that the definition of dispute includes any matter concerning the application of the terms of the Agreement or matters arising from the Agreement. Clause 10 refers to Productivity/Performance-Based Incentives, and subclause 10 (iv) is in the following terms:

“The parties may revise the form and structure of the scheme in consultation with the team members.”

[51] In TWU v Mayne Nickless Ltd 17 the Full Court of the Federal Court held that in determining whether an application requires the Commission to exercise judicial, as opposed to arbitral power, `a court should review the entire factual background to properly characterise the claim and the power sought to be invoked’.18In ascertaining the nature of a dispute the Commission is not confined to the application.19

[52] In the High Court decision of Construction Forestry Mining and Energy Union v Australian Industrial Relations Commission 20 it was stated that the power of arbitration under a dispute settlement clause is a power conferred by the parties under their agreement.

“There is, however, a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.

Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.

To the extent that s.170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s.170MH of the IR Act is valid.”  21

[53] The Commission's jurisdiction therefore arises from the dispute settlement procedure in the Kewdale Agreement, qualified by any limitation in the Kewdale Agreement. 22 It is necessary to have regard to the nature of a dispute said to arise under the terms of the Kewdale Agreement having regard to the original notification and the relevant factual circumstances as they evolve through the process of conciliation and arbitration of the dispute. Such a broad approach was endorsed by a Full Bench of the Australian Industrial Relations Commission in the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited23 where the following was stated:

“[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is ‘over the application of the agreement’ within the meaning of s.170LW of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:

“A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement. ...”

[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores 24that:

“[23] ...what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

[54] In characterising the nature of the dispute in this matter, the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context, I adopt the approach taken by the Full Court of the Federal Court in TWU v Mayne Nickless Ltd. That is, in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral power, ‘a court should review the entire factual background to properly characterise the claim and the power sought to be invoked.’ 25

[55] It has long been held that when the Commission is arbitrating a dispute pursuant to a dispute settlement procedure in an enterprise agreement, it is not exercising judicial power, but a power of private arbitration. 26 As a private arbitrator, the Commission is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies.27 That involves deciding “all questions both of law and of fact”28 that arise in the dispute, subject to any limitation on power in the dispute settlement clause and a requirement not to make a decision that is inconsistent with the Act, or a Fair Work instrument that applies to the parties.

[56] In view of the clear authority on the subject matter of the Commission acting as a private arbitrator as per dispute settlement clauses of industrial instruments, I find that there is no express limit on this delegation under the Kewdale Agreement. Further, the Commission has the ability to determine the meaning and effect of the Kewdale Agreement’s terms even where this involves a finding on the legal rights and obligations under the Kewdale Agreement. Insofar as the dispute is a dispute about the application of the Productivity/Performance-Based Incentives clause of the Kewdale Agreement, I consider that the Commission has jurisdiction to deal with it as the dispute is in relation to the application of the Kewdale Agreement and falls within the ambit of “any matter concerning the application of the terms of the Agreement … or matters arising from the Agreement”.

Interpretation of Agreement

[57] In Kucks v CSR Limited 29 (1996) (Kucks), a matter relating to the interpretation of an industrial award, Madgwick J held that that a narrow pedantic approach to interpretation of awards should be avoided and meanings which avoid inconvenience or injustice may reasonably be strained for:

“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.” 30

[58] In Amcor Limited v Construction, Forestry, Mining and Energy Union (2005)  31 (Amcor) similar observations were made in respect of a certified agreement:

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.” 32

[59] In Amcor Kirby J said 33:

“However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.

…

The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. ... .” ”

[60] In Amcor Callinan J also supported the observations of Madgwick J in Kucks stating:

“An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties.” 34

[61] In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) (City of Wanneroo) French J, as he then was, observed: 35

“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).” 36

[62] While the decisions in City of Wanneroo and Kucks above dealt with the interpretation of an award, the same principles have been held to apply to the interpretation of enterprise agreements. 37

[63] The Full Bench decision of Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 38 (Golden Cockerel) traversed the approach to be taken in interpreting enterprise agreements39 and held that the general approach to the construction of enterprise agreements was explained in the judgment of French J, as he then was, in City of Wanneroo discussed above.

[64] The Full Bench in Golden Cockerel then drew on other authorities to expand on the approach to be taken at paragraphs 20 to 22 of their decision including the decision in Kucks.

At paragraph [41] of Golden Cockerel, 10 principles are listed in what the Full Bench describe as being distilled from the authorities and are stated as:

“1. The AI Act 40 does not apply to the construction of an enterprise agreement made under the Act.

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

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

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

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[65] My understanding of these authorities is that the interpretation of an industrial agreement begins with a consideration of the natural and ordinary meaning of the words in question. The words are to be read as a whole and in context Ambiguity and uncertainty if any, may be resolved by a consideration of the history and subject matter of the agreement.

[66] The SDA submitted that the wording in dispute was ambiguous in the sense that the meaning was not clear and straightforward. I accept and find that clause 10 in its entirety suffers from a lack of preciseness and particularity leaving much of its meaning and operation within the knowledge of the parties. It appears that outside the form and structure of the Incentive Scheme, its introduction and application rests within the discretion of Coles to the extent that if it considered it appropriate, it may cease the Incentive Scheme unilaterally. The clause is, in my view, written in terms that merely confirm the existence of an incentive scheme which is largely administered by Coles outside the terms of the Kewdale Agreement. Simply because the clause takes this form does not necessarily result in a finding that the wording is ambiguous.

[67] On the evidence of Mr Bullock, the clause reflects an agreed understanding that dates back to what was put in place at the Canning Vale Distribution Centre in 1990, at which time the clause was not included in any industrial instrument. It was not until 2005 on the insistence of the SDA that it was inserted in the Coles Myer Logistics Canningvale Distribution Centre Enterprise Agreement 2005 41 and has not substantially changed since then; including the retention of the now redundant wording that Coles undertakes to examine the introduction of an incentive scheme.

[68] On the basis of what has been put before the Commission, in my view the question that needs to be determined is what is meant by the “form and structure” of the Incentive Scheme as referred to in subclause 10 (iv). In doing so, it is necessary to have regard to any evidence of matters in common contemplation and constituting a common assumption regarding the subclause. 42

Form and Structure of the Incentive Scheme

[69] Little evidence of exactly what the ‘form and structure’ of the Incentive Scheme refers to was provided to the Commission. The written material available included: attachment CM1 to the witness statement of Ms Murdoch 43 titled Kewdale Regional Distribution Centre - Labour Management System – Coles and attachment CM2 copies of various signs44 located around the Kewdale DC explaining the LM System to team members in the order process being undertaken by Coles.

[70] Coles submitted that the incentive scheme formula is not documented and there has never been a promise of a particular monetary value to be used. The May 2014 base wage rate is the current rate used, (and intended to continue to be used by Coles) although this is not expressed in writing in any documentation.

[71] There was no evidence of a common intention by the parties that the base wage rate in the calculation of the incentive payment used at the time the Incentive Scheme was introduced would be increased as per any increases in wage rates. While the practice has been to base the incentive payments on the prevailing base wage rate, I am unable to conclude that this practice constitutes part of the ‘form and structure’ of the Incentive Scheme. The practice is not contained in any of the documentation tendered and made available to the workforce. The form and structure of the Incentive Scheme gleaned from this documentation appears to be the measuring of employee performance based on the time it takes to perform a task against an expected time period (100%) based on an employee using average skill and effort to complete the task. Performance above the expected time (100%) attracts an incentive payment. This is the fundamental form and structure of the Manhattan Labour Management System

[72] Within this form and structure it is an accepted practice that how an employee’s performance is measured and the calculation of the expected time to perform a task are revisions not concerning the form and structure of the Incentive Scheme.

[73] However, in respect of the form and structure of the Incentive Scheme it remains unchanged, despite Coles determining that the monetary value used in the calculations are to remain at the 2014 base wage rates. There was no evidence before the Commission that the monetary value to be used in the calculations would be the base rate of pay as varied from time to time.

[74] As such I am unable to find that Coles has revised the form and structure of the Incentive Scheme.

[75] As I have concluded that the practice of Coles to freeze the base rate at which the incentive payment is calculated is not concerned with the form and structure of the Incentive Scheme, the question as to whether Coles has complied with any consultation obligations and whether the reference to ‘Parties’ in the clause means the SDA and Coles becomes otiose. However, as the argument was extensively run, it is only fair to express a view.

The Parties

[76] Clause 10 reads:

“The Company undertakes to examine the introduction and if deemed appropriate, the cessation, of a productivity and performance based incentive scheme (“the scheme”) for team members covered by this Agreement. Such a scheme will be developed on the basis that:

i. The form and structure of the scheme will be determined by the Parties in consultation with the team members; and
………………….
iv. The Parties may revise the form and structure of the scheme in consultation with the team members.”

(My underline)

[77] As highlighted above, the word “Parties” appears twice in clause 10 at subclauses (i) and (iv). While not being a definitions clause, subclause 2.1 of the Kewdale Agreement states that the Parties to the Agreement are Coles and the SDA. Under the existing provisions of the Act it is arguable as to whether technically there can be ‘parties’ to a single enterprise agreement outside the employer and employees between whom the agreement is made. Section 172(2) refers to a single enterprise agreement being made between the employer and the employees employed at the time the agreement is made. Whereas ‘greenfield agreements’ are made between the employer and the relevant union. Where a union has acted as a bargaining representative in single enterprise agreement negotiations as in this case, it may give notice to the Commission pursuant to s.183(1) of the Act that it wishes to be covered by the agreement. 45

[78] That is not to say that a reference to a union in a single enterprise agreement as constituting a party for the purposes of consultation or any other purpose in an agreement cannot be made.

[79] By virtue of the clauses referred to above, and to provide any meaningful definition to the reference ‘the Parties’ contained within the clause 10 of the Kewdale Agreement it must be interpreted to being a reference to the SDA and Coles.

Consultation Obligations

[80] Consultation clauses in enterprise agreements have been the subject of litigation in the Federal Court. In Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) Murphy J extensively canvassed the subject matter and relevant case law stating in relation to the obligation to consult the following: 46

272. … There can be no real question that the consultation obligation in cl. 7 finds its roots in the Termination, Change and Redundancy Case (1984) 294 CAR 175 and the Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673 (“TCR Cases”). Over time those decisions led to the introduction of termination, change and redundancy clauses (“TCR clauses”) in industrial awards and agreements around Australia. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591; (2010) 268 ALR 514 (“CEPU v QR”) at [47]-[63] Logan J usefully set out some of the history of the development of TCR clauses.

273. The decisions of the Australian Industrial Relations Commission and its successors (“the Commission”) which preceded the Agreement assist in understanding the meaning of “consultation” within such clauses. In CEPU v QR Logan J gathered some decisions in which the Commission discuss the meaning of “consultation”: see Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (C2758 Dec 1533/98 S Print R0234) (Full Bench); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (C2001/5770 PR911257) (Cmr Smith); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Ltd AW791910 Print L4596) (Cmr Smith).

274. I respectfully agree with Logan J’s observation in CEPU v QRat [43], that the Commission decisions show that:

... A key element of [the content of consultation] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

(Emphasis added.)

275. Nor has there been any real change in the Commission’s approach over the years. Recently in Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates[2014] FWCFB 1276 at [35] the Full Bench of the Fair Work Commission held:

Consultation does not mean joint decision making, it does involve a genuine opportunity to persuade (CPSU, the Community and Public Sector Union v Vodafone Network Pty Ltd [PR911257] per Smith C (as he then was); Modern Award Consultation Clause case [2013] FWCFB 10165 at [31] - [32]). The terms of the FW Act demonstrate that the legislature has intended to attach significance to the right to consultation in redundancy situations.

276. The history of the development of TCR clauses, and the Commission decisions which predate the Agreement, show a context in which the obligation to consult under industrial awards and agreements is generally aimed at providing employees an opportunity to have input into proposed major workplace changes. I have little doubt that this is in recognition of the fact that genuine consultation is likely to facilitate proposed changes and because the exchange of views between employers and employees is accepted as good management practice. This context points away from construing the obligation to consult in the Agreement as being limited to the period after PKCT had made the relevant decision and only to questions around the implementation of that decision.

277. Fifth, (sic sixth) construing the consultation obligation as arising when management is considering a change rather than when a final decision is made is consistent with the meaning given to consultation in other settings. As Logan J noted in CEPU v QR (at [43]):

Thus, in Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at 1124 the Judicial Committee observed of a consultation obligation in an ordinance in respect of measures to alter local government boundaries that: “[t]he nature and object of consultation must be related to the circumstances which call for it” and “The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed; they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties; they must be free to say what they think.” These observations as to what was entailed in a requirement to consult commended themselves, in the different context of their use in broadcasting legislation, to Toohey J when a judge of this Court in TVW Enterprises Ltd v Duffy (No 2) [1985] FCA 251; (1985) 7 FCR 172. His Honour pithily remarked (at 178), “Consultation is no empty term.” That same sentiment is evident in the following passage from the judgement of Sachs LJ in Sinfield v London Transport Executive [1970] 1 Ch the at 558 concerning a consultation obligation which attended a power to alter bus routes:

It is apposite first to mention that Mr Francis emphasised not once but several times that whatever be the true construction of section 22(3) [which contained the consultation requirement] and whatever order this court might make, it was in the end the executive and no one else who made the decision. If that was intended to intimate that the executive merely looked on consultations as being an opportunity for those consulted to make ineffective representations, it would represent an approach that, to put it mildly, cannot be supported. Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start from the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at a formative stage of proposals – before the mind of the executive becomes unduly fixed.

[81] In respect of the consultation arguments put by both parties, I find those put by the SDA to be more persuasive. Subclause 10 (iv) states that “The Parties may revise the form and structure of the scheme in consultation (my underline) with the team members.” Having regard to the authorities above and accepting that consultation requires the affected party to be provided with an opportunity to be heard prior to a definite and final decision having been made, I find that the actions of Coles did not achieve this threshold.

[82] I am of the view that the requirement to consult with employees would ordinarily take place ‘prior’ to the implementation of a decision. As defined in the Oxford dictionary, to consult would be to ‘seek information or advice from, refer to a person for advice, take into account (feelings, interests, etc.).’ (My underline).

[83] The evidence of Mr Langmaid, an organiser for the SDA, was that Ms Scriven, the Manager of the Kewdale Distribution Centre, asked him to come in early one morning as Coles were about to release information to team members and she wished him to view the information beforehand.

[84] Ms Scriven handed him a one-page document where the final paragraph referred to the decision to fix the rate at which the Incentive Scheme is paid to 2014 levels in the following terms:

“Therefore, the business has decided that the current pay rate used to calculate incentive payments will no longer increase in line with the EBA pay rate increases, the rate at which the incentive is calculated will be based on the 2014 rate.”

(My underline)

[85] Upon Mr Langmaid questioning why this was to occur Ms Scriven stated that the decision had been made over “East” and that most distribution centres around Australia had already made this change.

[86] It is clear that the decision to implement the change had already been made by Coles before being communicated to the SDA, which was reflected in the document provided to Mr Langmaid. Subsequent discussions at the Joint Consultative Committee did not change this fact. The communication by Coles in regard to the change could best be described as advanced advice of the decision which had already been made. It was not consultation in the sense that the views of employees and their representatives would be taken into consideration prior to a final decision being made.

[87] Ground one of the relief sought by the applicant was couched in general terms. That ground asked the Commission to determine whether, upon a general reading of clause 10, revisions to the form and structure of the Incentive Scheme would require consultation with employees and the consent of both the SDA and Coles. The wording is unambiguous and a plain reading of sub clause 10 (iv) allows Coles to revise the form and structure of the Incentive Scheme only in conjunction with the SDA and in consultation with employees. However, as determined, I am not satisfied that Coles’ decision to fix the Incentive Scheme rates of pay at the 2014 base rate of pay constitutes a change to the form and structure of the Incentive Scheme. Consequently, grounds two and three of the relief sought by the applicant cannot be granted.

[88] In view of the conclusions reached above, the application by Mr Hutchings for orders to resolve the dispute concerning Coles’ decision not to adjust base salary rates in line with the Kewdale Agreement for the purposes of the Incentive Scheme is dismissed on the basis that no revision to the form and structure of the Incentive Scheme has occurred.

DEPUTY PRESIDENT

Appearances:

Mr S. Millman, Solicitor on behalf of the applicant

Mr R. Allen, Solicitor for the respondent

Hearing details:

Perth

2016

1 June 2016

 1   Annexure B to the application

 2   Attachment CM1 of Exhibit R1 - Statement of Catherine Murdoch

 3   [2016] FWC 2477

 4   See Coles Group Supply Chain Pty Ltd Edinburgh Parks Distributions Centres an enterprise Agreement 2015 sub clause 10(d) and the Coles Queensland Distribution Centres Enterprise Agreement 2014 at sub clause 58.1.6

 5   See paragraph 19 of Mr O'Keeffe's witness statement Exhibit A1

 6   Exhibit A3

 7   Exhibit A4

 8 [2012] FCAFC 87

 9   See paragraph 17 of witness statement of Peter O'Keeffe Exhibit A1

 10   Respondent’s Outline of Submissions 12 April 2016 at (49), (53)

 11   See Witness Statement of Ms. Scriven Exhibit R2

 12   Ibid at paragraph 14

 13   Attachment JS5 to Exhibit R2

 14   United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board PR973884 at [16] and [19]

 15   CEPU v Thiess Pty Ltd (2011) 212 IR 327 (CEPU vThiess) at [42] & [47]; CFMEU v AIRC [2001] HCA 16

 16   SDA v Big W Discount Department Stores PR924554 at [23]

 17   [1998] 1022 FCA per Olney, Drummond and Moore JJ

 18   This approach was adopted in AMWU v Holden Limited PR940366 at [47]

 19   Ibid

 20 [2000] 203 CLR 645

 21 [2000] 203 CLR 645 at 657-658

 22 See s. 739 of the Fair Work Act 2009

 23   PR940366

 24   PR924554

 25   PR940366

 26  Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [38]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]

 27   CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]

 28   AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36]

 29 (1996) 66 IR 182

 30   Ibid at 184

 31 (2005) 222 CLR 241

 32   Ibid at 253 per Gummow, Hayne and Heydon JJ

 33   Ibid at 270-271

 34   Ibid at 283

 35 (2006) 153 IR 426

 36   Ibid at 438

 37   See Swire Cold Storage Pty Ltd v TWU [2008] AIRCFB 397 at [29] and AMWU v Silcar Pty Ltd [2011] FWAFB 2555 at [11]

 38  [2014] FWCFB 7447

 39   However, much of which is not relevant to this matter

 40   Acts Interpretation Act1901

 41   See paragraph 13 of Witness Statement of Mr. Bullock Exhibit A2

 42   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20] where the Full Bench held that the relief sought may cast light on the true nature of the dispute in some cases.

 43   Exhibit R1

 44   Witness Statement of Catherine Murdoch Ex R1 at (26)

 45   The SDA provided such notice.

 46 [2015] FCA 1088

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