Pacific National (Queensland Coal) Pty Ltd Trading as Pacific National v Australian Rail, Tram and Bus Industry Union, Australian Federated Union of Locomotive Employees

[2025] FWC 985

[2025] FWC 985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Pacific National (Queensland Coal) Pty Ltd Trading AS Pacific National
v

Australian Rail, Tram and Bus Industry Union, Australian Federated Union of Locomotive Employees

(C2024/7452)

DEPUTY PRESIDENT DOBSON BRISBANE, 8 APRIL 2025

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)] – no plain and ordinary meaning – no clear intention of the parties – unnecessary to answer the question sought to be answered in order to resolve the dispute

1. This decision concerns an application made on 21 October 2024 by Pacific National (Queensland Coal) Pty Ltd T/A Pacific National (PNQC/ the Applicant) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the dispute resolution procedure in the Pacific National Queensland Coal Enterprise Agreement 2022 (the Agreement). The application is made by PNQC. The Respondents are the Australian Rail, Tram and Bus Industry Union (RTBU) and the Australian Federated Union of Locomotive Employees (AFULE).

1. The agreed questions for determination are as follows:

Question 1:

“What is the correct interpretation of clause 19.2(f) of the Pacific National Queensland Coal Enterprise Agreement 2022?”

Question 2:

“Does clause 19.2(f) of the Pacific National Queensland Coal Enterprise Agreement 2022 confer an entitlement on employees working from Pacific National’s Gladstone Depot?”

Legislation

1. The Act provides for the Commission to deal with disputes in relation to disputes under enterprise agreement dispute settlement terms. Section 739 of the Act states:

“739      Disputes dealt with by the FWC

(1)       This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2)       The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a)       the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note:   This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3)       In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4)       If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note:   The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5)       Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6)       The FWC may deal with a dispute only on application by a party to the dispute.”

1. The matter was allocated to my chambers on 24 October 2024. I issued directions for the filing of material, on 14 November 2024 following a conference held that same day. The directions included a requirement that the parties advise whether there were contested facts and the need for a hearing.

1. Noting that there is no dispute that the pre-requisites to the Commission’s involvement have been followed, I am satisfied that the Commission is empowered to resolve the dispute in accordance with the dispute settling procedures at clause 37 of the Agreement and s 739 of the Act.

1. On 4 November 2024, the AFULE advised that the dispute involved the Applicant and the RTBU, however given that their members would be impacted by the interpretation of the clause, and because they are a signatory of the Agreement, they sought to remain an interested party and would not file substantive material.

1. On 31 January 2025, the RTBU contacted my chambers and confirmed that the parties had agreed that there were no contested facts and that they were in agreement that the matter could be determined on the papers.

Background

1. The background to this matter was traversed in the application by Pacific National (Queensland Coal) Pty Ltd.[1] I found that the Agreement could not be varied pursuant to section 217 of the Act as whilst there was ambiguity in the disputed provisions, the parties did not demonstrate, to the requisite degree of satisfaction, a clear objective intention as to how the reference to 100km should be measured, at the time the agreement was made.

1. The parties are in dispute as to the application of the remote locality allowance, set out at clause 19.2(f)(i), which reads as follows:

“f) Remote Locality Allowance:

i.Employees who have their Home Base situated more than 100 kms from Bowen, Mackay and Rockhampton (Remote Depot), will be eligible for the Remote Locality Allowance.

1. The parties contended different interpretations as to how the 100kms should be measured.

Statement of Agreed Facts

1. The parties filed a statement of agreed facts relevantly agreeing in relation to Remote Locality Allowance that:

1. During bargaining:

   (a)The union sought claims for employees at Coppabella, including a presentation in Bargaining Meeting #4 (see Ms. Glinster’s Statement, Annexure A, page 86).

   (b)These claims aimed to compensate employees at Coppabella.

   (c)The claims included an additional allowance, becoming clause 19.2(f) Remote Locality Allowance.

   (d)Pacific National expanded the claim to other remote depots, but currently, only Coppabella qualifies.

   (e)The clause was intended for Coppabella or similar future locations.

   (f)Distance measures were discussed in relation to other clauses and policies requiring driving.

2. The Agreement terms were drafted after in-principle agreement.

3. Clause 19.2(f) of the Agreement states:

(i)Employees with a Home Base more than 100 km from Bowen, Mackay, and Rockhampton are eligible for the Remote Locality Allowance.

(ii)The allowance is 3% of the base salary annually.

(iii)For less than 12 months of service, the allowance is prorated. Payable on the same date as annual salary increments.

(iv)As at the commencement date of the Agreement, the PNQs Coppabella depot is the only PNQC depot that would satisfy the requirements set out in the Remote Locality Allowance subclause of the Agreement.

4. Clause 19.2(f) is not a kilometre reimbursement.

5. The Enterprise Agreement does not define: (a) Remote location; (b) How to measure 100 km from Bowen, Mackay, or Rockhampton.

6. A new depot at Gladstone has been established since the agreement.

7. A dispute arose over the 100 km measurement:

(a)The RTBU asserts it should be measured by road;

(b)The Applicant asserts it should be measured by radius. [2]

Applicant’s Submissions

1. The Applicant asserts that the 100km distance is measured directly – that is, ‘as the crow flies’, or radius basis and not road travel distance.

1. The Gladstone depot is within 100km radius of Rockhampton and as such, clause 19.2(f) does not apply.

1. The Applicant further submits that Sub-clause 19.2(f)(v) makes clear that, at the time of commencement of the Agreement such allowance is only payable to employees engaged at Coppabella.

1. At the time the Agreement commenced, the Applicant made a definite decision to establish a depot at Gladstone, but Gladstone was not included in 19.2(f)(v).

1. The intention of the parties was to compensate employees for living in a remote location. Gladstone is not a remote location, it is a coastal location for the purpose of this clause.[3]

1. The Applicant filed witness statements from Mr David Cranmer[4] and Ms Ashleigh Glinster[5] in support of their position.

1. The Applicant further submits that the evidence before the commission indemnifies four critical matters. These are that:

(a)   The relevant clause (the Clause)[6] in the Agreement itself does not expressly say how the distance would be calculated;[7]

(b)   The Clause was introduced in response to a log of claims from the RTBU/AFULE;[8]

(c)   The initial claim by the unions was for employees working at the Coppabella site only and the reference to other Home Bases “situated more than 100km from Bowen, Mackay and Rockhampton” was included at the request of PNQC as a matter of fairness;[9] and

(d)   The claim was made by the RTBU/AFULE to address the ‘mischief’ of employees working at Coppabella as a consequence of those employees not feeling adequately compensated for working in a remote depot. The Remote Depot Allowance’s purpose was to compensate for the quality of life issues in a remote locality as compared to a coastal depot, the high turnover rate and the perceived unfairness that permanent Coppabella employees were not receiving the same allowances as seconded employees at Coppabella.[10]

Drafting Background of the Clause

1. The Applicant submits that the meeting minutes disclose the following:

“(a) As part of the unions’ log of claims, they sought (First Glinster, pg 17):

Remote Living Incentive - Coppabella - “desert depot allowance” to be put in EA - needs to be reviewed and worried it could be removed with a change of mind post consultation - cost of living / rent has increase in Nebo / Moranbah - Coppabella turnover issue (make it more attractive)

(b)There was discussion as to who would be eligible for the allowance, in the following terms (First Glinster, pg 114):

BM [RTBU] – It is an EA claim that is COP specific. Would not be an annexure but it should specify COP only or “remote depot” x km from the coast.
DC [PN] – We would call it Coppabella. (Emphasis Added)

(c)   It was further discussed as follows (First Glinster, pg 172):

BM [RTBU] – Allot of people are out of there on days off even though the live in Moranbah, that’s always been the way, look at the mines. People live in the camp for different reasons. 2 significant points the move from Nebo camp to COP, Nebo was a terrible camp, but it was closer to Mackay, the move to COP (yes better camp) but you are stuck with miners (causes issues), the other big problem is the ability to live locally. 2 milestones with attitude changes, but what still remains is that we are a desert remote depot, and we feel like other operators, we should be remunerated better than a person on the coast. Other depots will understand it, needs to be put in the right context.

DC [PN] – That’s important for the wording “remote”.” (Emphasis added)

1. The Applicant submits that these extracts demonstrate that:

(a)The remote locality allowance in cl 19.2(f) was intended to compensate and retain employees who live in remote locations, not those that travel to work on a daily basis;

(b)The relevance of making the allowance referrable to ‘remote locality’ was intended to identify those that live in remote locations;

(c)The precise measure of remoteness was spoken about in general terms, as ‘x km from the coast’; and

(d) Unlike other clauses of the agreement which were discussed by reference to diving distance or time, the remote locality allowance was unrelated to driving and the cost or time associated with driving.[11]

Applicant’s submissions on Proper Construction

1. The Applicant’s position is that the proper construction of the clause is that the text of the provision must be the starting place. Highlighting that the text speaks of “[a] Home Base situated more than 100kms from Bowen, Mackay and Rockhampton”, the Applicant submits that the clause requires the measurement be taken from three distinct locations or bases, and then to identify whether the ‘Home Base’ is located 100kms from each of those locations. The Applicant goes on to submit that in practical terms, eligibility for the allowance is most easily ascertained by drawing a 100km radius from each of the distinct locations, and then on a map, identifying the depot in question and observing whether it falls within one or more of the radius circles.

1. The Applicant submits that the plain English reading of the clause means ‘distance’ to be read in its most basic form; measured in a straight line, or as the crow flies. The Applicant refers to s35 of the Acts Interpretation Act 1901 (Cth) which says that any measurement of distance shall be “measured in a straight line on a horizontal plane.”[12]

1. The Applicant also submits that in the context, the clause was worded in such a way to introduce a measure of remoteness. The Applicant points to evidence that they say discloses the clause was originally discussed in terms of “x kms from the coast”, and that objectively speaking, the measure was introduced to give effect to the clause being a “Remote Locality Allowance”.

1. The Applicant goes on to submit that in consideration of the question of purpose, that their evidence demonstrates the allowance was introduced to compensate employees who were living at a remote depot, not those driving to the remote depot, or seconded to the depot, who receive different entitlements.

1. The Applicant concludes that the bargaining meeting records demonstrate that the parties engaged in discussions concerning driving and driving distance with respect to other clauses during negotiation, but clearly did not engage in those discussions with respect to the clause in question. The Applicant’s position is that in determining the objective intention of the parties in drafting, it can be inferred that consideration of ‘driving’ was not deemed relevant to the discussions regarding the clause, and they suggest that the intention was to capture ‘distance’ in its ordinary meaning.

1. The Applicant points to the bargaining meeting minutes and submits that they make plain that the purpose of the clause was to address the ‘mischief’ of Coppabella employees not feeling adequately compensated for the reduced quality of life compared to costal depots. It was also the intention to address the high turnover rate and the comparative unfairness perceived by permanent Coppabella employees who were not receiving the same allowances as seconded employees at the same location. The compensation was intended to address the effects of remoteness on the living conditions, rather than for driving. The Applicant concludes that the text, context, and purpose uniformly support their interpretation. [13]

Respondent’s Submissions

1. The RTBU’s position is that the 100km distance ought to be measured by the travel distance by road.

1. Further, the RTBU submits that employees engaged to work with a home base of Gladstone in Queensland, should be paid the allowance on the basis that such location is more than 100km road travel distance from Bowen, Mackay and Rockhampton, albeit less than 100km from Rockhampton, as the crow flies.[14]

1. The RTBU filed witness statements from Mr Bruce Mackie[15] and Mr Ben Mathieson[16] in support of their submissions.

1. The Respondent contends that during bargaining, which commenced in May 2021, the Applicant and the Respondent spoke of the term “distance” several times with respect to several “ideas and permutations of existing entitlements and proposed, and ultimately not accepted entitlements”.[17] The RTBU indicate that these discussions included those around the Roster Code of Practice, Driver Only Operations and Remote Site Operations. The RTBU submits that these matters require employees to drive. The RTBU contends that the only entitlement which created accessibility rules based on “distance” without referring to how it would be calculated in the Agreement, is the clause in question.

Respondent’s submissions on Proper Construction

1. The RTBU refers to Berri[18] in submitting that the common intention of the parties should be objectively identified by reference to a reasonable person’s understanding of the language in the Agreement. The RTBU further refers to the judgement of French, J in City of Wanneroo,[19] which highlights that context of a clause may appear from the text of the agreement as a whole and its place in the agreement. [20] The RTBU submits that there is a continuing line of authorities which promote avoidance of a narrow or pedantic approaches to interpretation, or interpretations detached from industrial realities. In referring to Amcor the RTBU submits that the construction of an agreement should contribute to a “sensible industrial outcome such as should be attributed to the parties who negotiated and executed the agreement”[21]

1. The RTBU submits that if the words of the clause are deemed to be ambiguous, then limited evidence of the surrounding circumstances will be admissible, and should be treated cautiously in interpretation. Such limitations were set out in Berri[22], and also in Union Firefighters’.[23] The RTBU further refers to Ridd for the Full Bench’s distillation of the principles of interpretation.[24]

Respondent’s submissions on Ordinary Meaning of the Words

1. The RTBU suggest that the first task to undertake is to determine the ordinary meaning of the words provided for in the clause, within the context of itself and its place in, and relationship with, the rest of the Agreement. The RTBU submits that the clause is unambiguous in its meaning.

1. The RTBU breaks down the Clause and suggests that it creates a set of rules in the employment relationship and suggest they should be distilled as follows:

a.Employees who have their Home Bases situated more than 100 km from the Bowen Depot, Mackay Depot, and the Rockhampton Remote Depot: or

b.Whose Home Base is located at the Coppabella Depot;

c.Will be eligible for the Remote Locality Allowance; and

d.The Remote Locality Allowance will be paid at 3% of an employee’s base wage, or at pro-rata if the employee has less than 12 months service at an eligible depot;

Unless

e.The employee’s Home Base is in operation before the approval of the Agreement and is located at a depot which is more than 100 km from the Bowen Depot, Mackay Depot, or the Rockhampton Remote Depot; and

f.Is not the Coppabella Depot.

g.In which case the employee is not entitled to receive the allowance.[25]

1. The RTBU points out that the Applicant does not contest that employees of the Gladstone Depot are not eligible to receive the payment on any other grounds than distance, and that they consider the clause should be measured “as the crow flies”. The RTBU submits that employees covered by the Agreement are not provided with other travel methods apart from driving and that the Applicant’s belief in how distance should be considered puts aside any concerns about geography and accessibility.[26]

1. The RTBU highlights that if looking elsewhere in the Agreement for references to measure travel or distance, the Applicant only provides measurements for distances based on car travel. Highlighting clause 40, the RTBU submits that it informs that distance measured should be considered in terms of terrestrial travel[27] (by motor vehicle or train) and considers that the plain and ordinary meaning of 100kms is to be measured by road and not by “as the crow flies”. [28]

Respondent Submissions on Intention of the Parties and Context of Clause Formation

1. The RTBU submits that the parties failed to succinctly and concisely discuss the manner in which distance should be measured in relation to clause 19.2(f). The RTBU contends that the evidence available to the Commission can only demonstrate the following:

a.     There were concerns that employee retention at the Coppabella Depot was poor.

b.    The Respondent sought to originally limit the claim to only Coppabella Depot.

c.     The Applicant sought to future proof the allowance for future depots.

d.    That the most significant recorded discussion about distance with respect to this payment was the following:

“BM [RTBU] – It is an EA claim that is COP specific. Would not be an annexure but it should specify COP only or “remote depot” x km from the coast.”

e.     Mr Mackie, the formulator of this basic idea, believes that the allowance needed to “reflect the real work conditions faced by employees” that being that employees commuted to work via road travel.

1. The RTBU notes that references to a “100km” rule in the bargaining notes filed by the Applicant, relate to a hypothetical employee driving a motor vehicle in the following:

“AM (Ashley Mosedale) – DOO Driving –want provisions around limited car driving in between 2200 and 0600 for DOO – understandable with unforeseen events but when this is rostered, this is the issue – also can talk about km’s as well – barracks to mine etc – restrict DOO driving to 100km from Home Depot between 2200 and 0600 – 2 parts to the puzzle both around safety “ [29]

1. The RTBU contends that “it would not be a long bow to draw”, to suggest that the parties settled on a fusion of the following principles during negotiations:

a.     Initially the Remote Locality Allowance was to only be conferred on employees whose Home Base was the Coppabella Depot.

b.    The Remote Locality Allowance was to be expanded as new Depots became operational; and

c.     Mr Mackie suggested a distance rule of some kind to permit the expansion of this payment at future dates; and

d.    Mr Mosedale raised 100km as a distance, being measured by road with respect to another claim by the RTBU.

e.     No discussions were held that referenced ‘as the crow flies’ to measure distance for any entitlement.[30]

1. The RTBU further contends that as a consequence, the Commission must “assume the intention of the Parties was to measure the distance using road distance.’[31]

1. The RTBU contends that employees engaged under the Agreement are subject to forms of travel that are only reliant on ground travel such as driving by road or rail.[32] Further, the RTBU submits that ‘typical workings are not organised around fly-in-fly-out practices’.[33] The RTBU claims this is supported by Mr Mathieson’s statement which asserts his understanding of what happens at PNQC and pointing to the fact that the Agreement compensates employees for travel by paying them for each kilometre they drive, when they are required to travel by road.[34]

1. Further, the RTBU submits that Mr Mathieson’s evidence about discussions with PNQC pertaining to whether the language of as the crow flies versus kilometres driven on the road is generalised, lacks detail or specifics and is unsupported by actual examples.[35]

1. Further, the RTBU contends that “a thorough examination of the clause and surrounding context in light of the principles of interpretation requires the following conclusion:

a.     19.2(f) fails to directly address the means of measuring the 100 km distance for eligibility because the Agreement provides an acceptable means of measurement elsewhere for other entitlements (clause 40); and

b.    These measurements of distance are to be measured by road travel; and

c.     The bargaining parties failed to succinctly record or state the means of measuring in 19.2(f); and

d.    It can be strongly assumed that the bargaining parties synthesised clause 19.2(f) from a number of different conversations; and

e.     Where the means to measure distance were discussed it was done so with a mind to road travel; and

f.   The ordinary industrial and operational reality of the business unit does not rely on means of travel that overcome distances by ignoring geographical realities such as air travel;

g.    Therefore, to import ‘as the crow flies’ as a means of measurement for the purposes of 19.2(f) would be failure of proper interpretation.”[36]

Principles Relevant to the Interpretation of an Enterprise Agreement

1. The principles were conveniently summarised in the Full Bench decision of Berri[37].

Consideration

1. It is uncontested by the parties in this present matter and in my previous decision I have found that there is an ambiguity and hence and uncertainty:

“the Agreement is ... capable of more than one meaning due to the lack of qualifying words around the 100km.”[38]

1. The context and purpose of the clause is relevant to its interpretation.[39] On the evidence before me, I am satisfied that the purpose of the allowance was to introduce a manner in which to provide compensation for employees who live at a remote depot. I further accept that the claim for the Remote Depot Allowance was made to address the quality of life issues experienced in a remote depot as opposed to a coastal depot.[40]

1. I do not accept that the evidence demonstrates an intention that the remoteness would be determined by calculating 100km by road distance nor that any parallel should be drawn to the way a vehicle allowance is measured. A vehicle allowance is self-evidently calculated on the number of kilometres the employee actually drives their vehicle. Such other references to distance present an entirely different concept to the measure of remoteness purposed in this clause. Further, I am not satisfied on the evidence that there was any clear mutual intention by the parties to align the definition of the remote allowance with any other entitlement that calculated distance by road.[41] Neither have the parties shown any subsequent conduct that draws such a parallel.

1. In considering the Applicant’s contention that the 100 km reference should be determined as meaning “as the crow flies”, I note in Berri[42] the Acts Interpretation Act does not strictly apply to an Enterprise Agreement, although I find that this contention is not without some merit in all the circumstances. I have found that the reference to 100km is ambiguous and I have not found any evidence of a clear intention that it should be either considered as a distance by road nor as a distance as the crow flies. Further, while I note that evidence of objective facts can be considered, and in some cases, extrinsic material can be used to assist with a disputed meaning, that is only provided it is not used to “rewrite” a provision to create something new[43] or to contradict the plain and ordinary meaning of the words.[44]

1. I am satisfied however, on the evidence before me, that there was an agreed intention that the Remote Locality Allowance would apply to Coppabella and critically, “that it would not apply to Nebo and not to Coastal depots”.[45] (emphasis added). There is no disagreement by the parties that the allowance does not apply to coastal depots. I find that the parties have provided evidence of this intention in the notes of bargaining meetings[46] that the criteria for payment of the allowance is both remoteness and the distance of that location ‘x km from the coast’[47] and this is uncontested in the statement of agreed facts. I accept the uncontested contention of the Applicant that Gladstone is a coastal location.[48] Gladstone is located on the coast and is a major port for the state of Queensland. It cannot be described as remote, let alone more remote than Nebo, which the parties agree does not qualify for the Remote Locality Allowance.[49]

1. In the present matter, given my findings at paragraph [49], it is my view that the meaning of clause 19.2(f) of the Agreement is that a Remote Locality Allowance would be paid to compensate for a lesser quality of life caused by remoteness. That remoteness, while expressed in the Agreement as being where the home base of an employee is located 100km from a major town (Bowen, Mackay, Rockhampton), the parties also intended remoteness to be measured by being some distance from the coast which as a consequence, defines that a remote location is not a coastal location.

1. I find I am unable to determine the meaning of the 100km without determining a new definition that was neither agreed, nor intended and nor was it approved by those employees covered by the Agreement. However, it is unnecessary to do so in order to resolve this dispute. There is a clear purpose for clause 19.2(f) that is uncontested on the evidence, and which results in answering the questions sought to be answered by the parties.

1. For the purposes of determining the remoteness of future depots, I express a recommendation that the parties should have further discussions in the next round of agreement bargaining with the objective of establishing clarity around how remoteness and quality of life issues warrant a qualification for this allowance.

Conclusion

1. For these reasons, the answer to the questions for arbitration are as follows:

Question 1:

“What is the correct interpretation of clause 19.2(f) of the Pacific National Queensland Coal Enterprise Agreement 2022?”

Answer: The manner in which 100km should be measured, cannot be determined however, the Remote Locality Allowance at clause 19.2(f) is not paid to employees with a home base in a coastal depot.

Question 2:

“Does clause 19.2(f) of the Pacific National Queensland Coal Enterprise Agreement 2022 confer an entitlement on employees working from Pacific National’s Gladstone Depot?”

Answer: Gladstone is a coastal depot and it follows that the answer is no.

DEPUTY PRESIDENT

[1] [2024] FWC 2499

[2] Digital Court Book (DCB) pp.830-832.

[3] DCB p.11.

[4] DCB pp.64-39.

[5] DCB pp.127-740, and in reply pp.40-126.

[6] The Agreement cl.19.2(f).

[7] DCB p.26-27.

[8] DCB p.26-27.

[9] DCB p.26-27.

[10] DCB p.26-27.

[11] DCB pp.26-28.

[12] Acts Interpretation Act 1901 (Cth) s.35.

[13] DCB pp28-30.

[14] DCB pp.11.

[15] DCB pp.759-761.

[16] DCB pp.762-764.

[17] DCB p.747 citing the statement of Ashleigh Glinster in footnote 4.

[18] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri).

[19] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426.

[20] Ibid at 426.

at [53].

[21] Amcor Limited v Construction, Forestry and Maritime Employees Union [2005] HCA 10, at [96]

[22] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri).

[23] United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853, at [30]

[24] James Cook University v Ridd [2020] FCAFC 123

[25] DCB p. 752 at [27]

[26] DCB p. 752 at [29]-[30]

[27] DCB p. 753 at [34]-[35]

[28] DCB p. 754 at [36]

[29] DCB p.755 at [40], see also witness statement of Ms Ashliegh Glinster, DCB p.

[30] DCB pp.755-756 at [42].

[31] DCB p. 756 at [43]

[32] DCB p.756 at [44];  see also witness statement of Mr Ben Mathieson DCB pp.760-761 at [15]-[17].

[33] DCB p.756 at [45]; ibid.

[34] DCB p.764 at [14]-[19].

[35] DCB pp/760-761.

[36] DCB pp.756-757 at [49].

[37] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri) 

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 aid 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 and 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”

[38] Application by Pacific National (Queensland Coal) Pty Ltd [2024] FWC 2499 at [7].

[39] Kucks v CSR Ltd (1966) 66 IR 182 at [184].

[40] DCB p.27 at [14(d)]; DCB p.28 at [15 (c)]; DCB p.30 at [25]; DCB 298 (BM second comment).

[41] United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853 at [30].

[42] Berri at [6].

[43] Ibid at [14].

[44] The Australasian Meat Industry Employees Union v Golden Cockerel[2014] FWCFB 7447.

[45] DCB p.831 at [7(b)], Statement of Agreed Facts.

[46] DCB p.240, Annexure to Statement of Ms Ashleigh Glinster, Meeting Minutes of Bargaining Meeting on 2 September 2021, contemporaneous notes, Bruce Mackie.

[47] Ibid.

[48] DCB p.11 at [2.1 (b)(iv)].

[49] DCB p.831 at {7(b)], Statement of Agreed Facts.

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