Paper Australia Pty Ltd T/A Australian Paper v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)
[2018] FWCFB 7220
•3 DECEMBER 2018
| [2018] FWCFB 7220 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Paper Australia Pty Ltd T/A Australian Paper
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2018/5189)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 3 DECEMBER 2018 |
Appeal against decision ([2018] FWC 2750) of Commissioner Cirkovic on 3 September 2018 in matter number C2017/6457 – dispute concerning interpretation of an enterprise agreement – whether apprentices are “full time permanent employees” within the meaning of clause 39.3 of the enterprise agreement– permission to appeal refused.
Introduction
[1] Paper Australia Pty Ltd trading as Australian Paper (Australian Paper) has lodged an appeal, for which permission is required, from a decision of Commissioner Cirkovic issued on 3 September 2018 (Decision) 1 concerning a dispute under the Australian Paper (Enterprise) Agreement 2016-2019 Maryvale Mill Mechanical Maintenance and Engineering Store (Agreement). Clause 33.5.4 of the Agreement provides, inter alia, that the arbitrated decision, subject to the parties’ right of appeal, should be accepted. Neither party suggested that this provision conferred a right of appeal so that permission to appeal was not required.
[2] Australian Paper and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) dispute whether apprentices should be counted to satisfy the manning levels set out at clause 39.3 of the Agreement.
[3] Clause 39.3 establishes minimum manning levels that are to be maintained “during this agreement” and provides that the relevant manning levels “indicate the full time permanent employees and for clarity do not include limited term employees or casuals”.
[4] The AMWU contends that apprentices are not to be counted in the manning levels because they are not full time permanent employees. Australian Paper holds a contrary view. It is not contended by either party that apprentices are limited term employees or casuals. 2
[5] The Commissioner concluded that apprentices were not permanent employees and should not therefore be counted to satisfy the manning levels set out in clause 39.3. 3
Consideration
Grounds of Appeal and summary of competing contentions
[6] Australian Paper advances six appeal grounds which we need not reproduce. In essence Australian Paper contends that the Commissioner incorrectly applied the principles of construction of enterprise agreements as set out in Automotive Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 4(Berri) by resorting to extrinsic material in the form of a dictionary definition rather than first examining the text of the Agreement as a whole.5 Australian Paper contends the word “permanent” in clause 39.3 of the Agreement does not have a meaning divorced from the Agreement as a whole. Australian Paper says that which is “permanent” is established by clause 8.1 of the Agreement, which in turn calls up clause 8.6. Clause 8.6 of the Agreement, headed “Weekly Employment” provides that “[E]mployment shall be engaged by the week unless engaged as a Casual”. Employees who are “weekly” employees in clause 8.6 are thus engaged by “the week… ‘permanently’” within the meaning of clause 8.1. The phrase “full time permanent employees” in clause 39.3 takes its meaning from clauses 8.1 and 8.6 so as to produce the result that it means an employee who is engaged by the week permanently and who is full time. An apprentice falls within that description.6
[7] The AMWU contends in summary that the Commissioner applied orthodox principles of construction of an enterprise agreement, confined her consideration to the text of the Agreement construed in the context of the Agreement as a whole and arrived at the correct conclusion. The AMWU contends in the alternative that even if we were to conclude that the Commissioner arrived at the wrong conclusion, permission to appeal should not be granted. This is because the appeal does not raise any issue of importance or general application. The AMWU contends that the meaning of “permanent employment” was recently considered by a Full Court of the Federal Court in Workpac Pty Ltd v Skene 7 and there is no need for a Full Bench of the Commission to give further consideration to that issue.
Appeal principles
[8] Section 604 of the Act does not confer a right of appeal and permission to appeal must be obtained. As we have already observed neither party contended that the dispute settlement procedure of the Agreement provided a right of appeal. Subsection 604(2) of the Fair Work Act 2009 (Act) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 8 Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.9
[9] It seems to us uncontroversial that the decision the subject of this appeal relates to the proper construction of the Agreement and accordingly the issue for us is whether the interpretation adopted by the Commissioner was correct. 10
Proper construction of the Agreement
[10] Much like the approach to construing a statute, the construction of an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the instrument taken as a whole, or in their arrangement and place in the instrument being considered. The statutory framework under which the instrument is made may also provide context, as might an antecedent instrument or instruments from which particular provisions might have been derived. 11
[11] The subject matter of clause 39.3 of the Agreement is “manning levels” and it determines the minimum number of “mechanical” employees and “engineering store” employees that are to be maintained by Australian Paper during the Agreement. The words “[T]he above manning levels indicate the ‘full time permanent employees’” operate upon the types of mechanical and engineering store employees that are to be counted as part of the minimum manning level for which provision is made in clause 39.3.
[12] The provisions of the Agreement which describe when an employee is engaged by the week “permanently” in clauses 8.1 and 8.6 of the Agreement give context to the meaning of “full time permanent employees” but they do not tell the whole story. The first and most obvious point that we would make is that clauses 8.1 and 8.6 regulate that which is described as the “contract of employment” and the kinds of engagement under which employees may be employed. The provisions are not definitional. Thus a person may be engaged by the week “permanently” yet not be a “full time permanent employee” when that phrase is used in a different context. That which is required by clause 39.3 is that the number of full-time permanent mechanical employees be 98 and that the number of full-time permanent engineering store employees be six during the Agreement.
[13] Appendix B of the Agreement deals with that which is described as “Maintenance Career Path Principles”. 12 Tables A and B thereof set out a number of classifications and relevant qualifications. The notes to table A include that the streams described in table A “encompassed by the above career path structure are ‘mechanical’ and fabrication”.13 The introductory words to table B are headed “Mechanical Career Path” and provide that consistent with “the Maintenance Skills Agreement the following career path applies to “mechanical’ tradesmen”.14
[14] A cursory review of the classifications for which provision is made in tables A and B discloses that the tables apply to persons who are trade qualified in respect of the particular mechanical trades attaching to the classification. This would indicate that the reference to “mechanical” in clause 39.3 of the Agreement is a reference to persons who are trade qualified as opposed to those who are undertaking an apprenticeship.
[15] The nature of an apprenticeship is also a relevant contextual consideration. An apprentice is by definition an employee who is undertaking training for the purposes of obtaining a particular qualification. The wage rates for which provision is made in the Agreement 15 reflect this fact. There is no provision in the Agreement for ongoing employment once an apprentice has completed his or her apprenticeship. Indeed the Agreement contemplates that an apprentice may have his or her employment concluded when the apprenticeship is completed.16 It would be a strange outcome if a provision which fixes the minimum manning levels in respect of, for example a “mechanical” stream, to have counted in that number persons who are not yet to be trade qualified to become members of that stream. One would expect express language to that effect, particularly since those who bargained for the Agreement are seasoned industrial players.
[16] Although an apprentice may be engaged by the week permanently within the meaning of clauses 8.1 and 8.6 of the Agreement, an apprentice is not to be regarded as a “full time permanent employee” within the meaning of the clause 39.3 because that phrase takes its meaning from the context of clause 39.3 as a whole, which is relevantly concerned with the maintenance of a minimum number of full time permanent “mechanical” employees. An apprentice is not an employee who is a “mechanical” employee in respect of which the manning levels in clause 39.3 is directed. An apprentice is a person who is in training to become qualified to be a mechanical employee.
Conclusion
[17] For these reasons we agree with the Commissioner’s conclusion. We consider it to be correct. Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
S Eichenbaum of Rigby Cooke Lawyers for the Appellant.
N Grealy from the Respondent.
Hearing details:
2018.
Sydney and Melbourne (video hearing):
October 16.
Printed by authority of the Commonwealth Government Printer
<PR702635>
1 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) v Paper Australia Pty Ltd T/A Australian Paper[2018] FWC 2750.
2 Transcript of Proceedings, dated 16 October 2018 at PN12.
3 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) v Paper Australia Pty Ltd T/A Australian Paper[2018] FWC 2750 at [38].
4 [2017] FWCFB 3005.
5 Notice of Appeal dated 18 September 2018 – Appeal Ground One; Appellant’s Outline of Submissions dated 27 September 2018 at [16]–[25].
6 Transcript of Proceedings, dated 16 October 2018 at PN79-PN80.
7 [2018] FCAFC 131.
8 GlaxoSmithKline Australia Pty Ltd v Making[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
9 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at [2328].
10 Australian, Administrative, Clerical and Services Union v Australian Tax Office[2013] FWCFB 4752.
11 See for example City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 438 and Amcor Limited v CFMEU (2005) 222 CLR 241 at 253 per Gummow, Hayne and Heydon JJ.
12 Appeal Book 79.
13 Appeal Book 80.
14 Appeal Book 81.
15 Appeal Book 89.
16 Appeal Book 83.
0
11
0