Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths

[2013] FWC 1335

Note: An appeal pursuant to s.604 (C2013/3859) was lodged against this decision - refer to Full Bench decision dated 17 May 2013 [[2013] FWCFB 2814] for result of appeal.

[2013] FWC 1335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees
v
Woolworths Limited T/A Woolworths
(C2012/3322)

COMMISSIONER BISSETT MELBOURNE, 19 MARCH 2013

s.739 Application to deal with a dispute - additional public holiday recognised for purposes of the Agreement - the Agreement limits the number of public holidays that can be taken.

[1] On 4 April 2012 the Shop, Distributive and Allied Employees Association (SDA) made an application for FWA to deal with a dispute between the SDA and Woolworths Ltd (Woolworths) in accordance with the dispute settling procedures of the Woolworths Limited Brisbane Regional Distribution Centre Collective Agreement 2008 (the 2008 Agreement) and the Woolworths Limited Brisbane Regional Distribution Centre Collective Agreement 2011 (Woolworths BRDC Agreement 2011 or the 2011 Agreement). The application raised issues with respect to the Christmas/New Year public holidays in December 2011 and January 2012 and the Queen’s Diamond Jubilee holiday on 11 June 2012.

[2] Following application by the SDA the matters in dispute were subject to conciliation before me. The matters were not resolved at this conciliation. They were then, in accordance with the dispute resolution procedures of both Agreements subject to further discussions between the parties. These discussions failed to resolve the dispute. It was therefore referred back to the Commission for arbitration.

[3] In referring the matters in dispute for arbitration SDA advised that the arbitration should be limited to four matters associated with the Queen’s Diamond Jubilee holiday with the remaining matters to remain in abeyance pending the resolution of similar matters currently before the Federal Court.

Matters in dispute

[4] The SDA identified the matters for arbitration to be:

1. Whether the Queen’s Diamond Jubilee holiday which occurred in Queensland on 11 June 2012 was a public holiday and recognised as such for the purposes of the NES under the Fair Work Act?

2. Whether the Queen’s Diamond Jubilee was a public holiday and recognised as such for the purposes of the Woolworths BRDC Agreement 2011?

3. Whether clause 7.2.5 of the Woolworths BRDC Agreement 2011exlcudes Monday to Friday staff from receiving the benefit of the Diamond Jubilee public holiday?

4. Whether clause 7.2.5 of the Woolworths BRDC Agreement 2011 limits all staff to a maximum of 10 public holidays?

5. Any jurisdictional arguments that may be raised. 1

[5] The 2011 Agreement provides the following with respect to public holidays:

7.2 Public holidays

7.2.1 All weekly employees will be entitled to a day off without deduction of pay, where the employee would ordinarily be rostered to work one of the following public holidays and does not work on that public holiday:

• New Year’s Day



• Australia Day



• Good Friday



• Easter Saturday



• Easter Monday



• ANZAC Day



• Queen’s Birthday



• Labour Day



• Christmas Day



• Boxing Day



• Exhibition Day



• Any additional days gazetted as public holidays which have not already been listed above.

7.2.2 Part time employees will receive a pro rata entitlement of non-rostered public holidays to a maximum of ten (10) days based on hours worked including ordinary and flexed-up hours...

Maximum number of public holidays

7.2.5 Weekly employees rostered to work on shifts, other than Monday to Friday will be compensated for the Gazetted Public Holidays which fall on days Monday to Friday, on which work has not been rostered. All permanent employees will be entitled to ten (10) public holidays only.

7.2.6 No employee on non Monday to Friday rosters will be entitled to more public holidays in any one year than is applicable to Monday to Friday full time employees.

The Queen’s Diamond Jubilee holiday

[6] In 2011 the Queensland Parliament passed the Holidays and Other Legislation Amendment Act 2011 (Qld) (the Amendment Act) which amended the Holidays Act 1983 (Qld) (the Holidays Act) to, amongst other things, provide for the Queen’s Diamond Jubilee holiday. The Amendment Act inserted a new s.11 into the Holidays Act:

11 Particular public holiday in 2012

(1) A public holiday is to be observed on 11 June 2012 for the Queen’s Diamond Jubilee.

(2) To remove any doubt, it is declared that a reference in an industrial instrument under the Industrial Relations Act 1999 to a public holiday is taken, for 2012, to include the day mentioned in subsection (1).

[7] As is relevant to this matter the Holidays Act also states:

2 Public holidays

(1) A public holiday is to be observed on the days set out in the schedule.

(2) Subsection (1) applies subject to section 3.

3 Minister may change public holidays

The Minister may, by Gazette notice, substitute another day for a public holiday under section 2.

[8] The Schedule to the Act sets out a number of public holidays and the day on which each of these is to be observed. The Schedule does not include the Queen’s Diamond Jubilee holiday.

[9] The Holidays Act also states that

4 Special holidays

(1) Subject to subsections (2) and (3) the Minister may by notification published in the Gazette appoint a day or the forenoon or afternoon of a day to be a holiday either throughout the State or within such district as may be specified.

The matter to be arbitrated

[10] In their written submissions Woolworths states that it accepts that section 115(1)(b) of the Fair Work Act 2009 (the Act) operates to designate 11 June 2012 a public holiday. Further it says that, regardless of any strict legal obligations it had permitted an employee ordinarily rostered to work on 11 June 2012 to have the day off work without loss of pay if the employee so wished and paid a penalty rate of pay for any work actually performed on the day. 2 As a result of this the SDA has advised that it no longer sought to press matters 1 and 3 [at 4 above] but continued to press the matters 2 and 4.3

[11] The matters to be determined in this arbitration therefore are:

• Whether the Queen’s Diamond Jubilee was a public holiday and recognised as such for the purposes of the Woolworths BRDC Agreement 2011?



• Whether clause 7.2.5 of the Woolworths BRDC Agreement 2011 limits all staff to a maximum of 10 public holidays?

[12] The SDA sought relief in the form of findings going to each of these matters.

Representation and jurisdiction

[13] Mr Merrell of counsel appeared with permission for the SDA.

[14] Mr Jauncey appeared with permission for Woolworths.

[15] Mr Christopher Ketter, Queensland State Branch Secretary of the SDA gave evidence for the SDA.

[16] Mr Christopher McGrath, a Human Resources employee with Woolworths, gave evidence for Woolworths.

Jurisdiction

[17] The dispute settling procedure in the 2011 Agreement is as follows:

3.1. Grievance procedure

3.1.1. A grievance is between an employee and the employer about:

a. a matter arising under this Agreement or

b. in relation to the NES (except a dispute about whether the employer has reasonable business grounds under subsection 65(5) or 76(4) of the Act).

3.1.2. In the first instance, the matter will be discussed between the employee and the employee’s line manager. At this stage or any subsequent stage, the employee has the option of enlisting the support of a representative of the employee’s choice who may or may not be a Union representative.

3.1.3. If the matter is not resolved within seven (7) days or longer by mutual agreement, the employee and/or the representative of employee’s choice can then raise the matter with the relevant Senior Operations Manager and Human Resource Specialist.

3.1.4. If the matter is still not resolved within seven (7) days or longer by mutual agreement, the employee and/or the representative of employee’s choice can then refer the matter to the Queensland Logistics Manager and Queensland Human Resource Manager.

3.1.5. If the matter is still not resolved within seven (7) days or longer by mutual agreement, the employee and/or the representative of employee’s choice may then refer the matter to the National Logistics Manager and National Operations Human Resource Manager.


3.1.6. If the matter has still not been resolved, either party may refer it to FWA for conciliation.

3.1.7. If the matter is not resolved by conciliation, the employee and/or their appointed representative can raise the matter with the relevant General Manager and Director of Human Resources. In instances where the employee elects to be represented by the Union, the National Secretary of the Union will represent the employee in discussions with the employer’s relevant General Manager and Director of Human Resources.

3.1.8. If after clause 3.1.7, there is still no resolution and clauses 3.1.1 to 3.1.7 have been completed and the employer’s Director of Human Resources and the employee agrees or where the employee elects to be represented by the Union, the employer’s Director of Human Resources and the National Secretary of the Union agree, the matter may proceed to arbitration by FWA.

3.1.9. The decision of FWA will bind the parties, subject to either party exercising a right of appeal against the decision.

3.1.10. At any stage of this process, the employee has seven (7) days or longer by mutual agreement after receiving a response from the Company to progress to the next step or the grievance will be considered finalised.

3.1.11. It is a term of this agreement that while the grievance resolution procedure is being conducted work will continue as normal before the dispute arose unless an employee has a reasonable concern about an imminent risk to his or her health or safety.

[18] The matters in dispute have been subject to discussion between the parties, conciliation before the Fair Work Commission (then called Fair Work Australia) and further discussion at the national level of the SDA and Woolworths in accordance with clause 3.1 of the procedure. The matters remain unresolved.

[19] The parties have agreed that the matters in dispute associated with the Queen’s Diamond Jubilee holiday be referred for arbitration.

[20] I am satisfied that the matters subject to dispute are matters arising under the 2011 Agreement, that the provisions of the dispute resolution procedure of the 2011 Agreement have been complied with in full and, therefore, that the Commission has jurisdiction to arbitrate the matter in accordance with the dispute settling procedure.

Was the Queen’s Diamond Jubilee holiday a gazetted holiday?

[21] In determining if the Queen’s Diamond Jubilee was a public holiday and recognised as such for the purposes of the 2011 Agreement it is necessary to determine if the holiday was ‘gazetted’ such that it came within the expression ‘any additional days gazetted as public holidays...’ in clause 7.2.1 of the 2011 Agreement and hence was a public holiday for the purpose of the Agreement.

[22] A copy of an excerpt from the Queensland Government Gazette No.106 (the Gazette notice) is attached to the first witness statement of Mr Ketter. 4 It states, in part:

It is advised for public information that in pursuance of the provisions of the Holidays Act 1983, that the following Public Holidays (excluding Show Days) are to be observed in Queensland.

[23] What follows is a list of some 2011, 2012 and 2013 days and dates, including Queen’s Diamond Jubilee on Monday 11 June 2012, which are the days to be observed as Public Holidays in Queensland.

[24] Mr Jauncey submits that the phrase ‘any additional days gazetted as public holidays which have not already been listed above’ should be read as requiring that the additional days be created by Gazette, that is be created by the Minister exercising his or her power pursuant to s.4 of the Holidays Act.

[25] Mr Jauncey says that the Queen’s Diamond Jubilee holiday came into existence because of the enactment of s.11 of the Holidays Act and not because it was gazetted. The holiday was not created by the Minister exercising his power pursuant to s.4 of the Holidays Act. As such, Mr Jauncey says, 11 June 2012 was not a day ‘gazetted as a public holiday.’ Mr Jauncey further submits that the notice that appeared in the Queensland Government Gazette No.106 was not a ‘gazettal’ as provided for under the Holidays Act but rather an advice from the Minister and that each of the holidays advised in the gazette notice is, in fact, created as a public holiday by the terms of the Holiday Act itself. The notice in the Gazette is not an exercise of the discretion to the Minister pursuant to s.4 of the Holidays Act.

[26] Mr Jauncey submits that a day ‘gazetted as a public holiday’ is not the same as a day created by virtue of the Act itself. The 2011 Agreement recognises such distinctions as evidence by the use of the term ‘gazetted or proclaimed’ in clause 7.2.8 of the 2011 Agreement. The Queen’s Diamond Jubilee holiday was proclaimed, not created by gazette notice in accordance with s.4 of the Holidays Act and therefore is not a holiday contemplated by clause 7.2.1 of the 2011 Agreement.

[27] Mr Merrell submits that the purpose of the phrase, ‘any additional days gazetted as public holidays which have not already been listed above’ is to encompass additional (not substituted) public holidays as created by Parliament. He submits that the Gazette clearly shows that the Minister notified the Queen’s Diamond Jubilee holiday as occurring on 11 June 2012. 5

[28] Alternatively he says that the Holidays Act allows a public holiday to be brought into effect by the exercise of the Minister’s powers pursuant to s.4 or by making an express amendment to the Holidays Act. In this instance the Queensland Parliament chose the latter. However, the purpose of the last point in clause 7.2.1 of the 2011 Agreement is to recognise any additional public holidays created in the State. To say that the Queen’s Diamond Jubilee holiday should not be recognised under the 2011 Agreement because it was not created by Gazette is to do ‘what Kirby J warned against in the Amcor case 6 when it came to the construction of industrial instruments.’7 In particular Mr Merrell referred me to the statement of Kirby J in Amcor where, in citing from the decision of Madgwick J in Kucks v CSR Ltd8 he said:

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. 9

[29] Mr Merrell submits that to suggest the Queen’s Diamond Jubilee holiday is not a public holiday for the purposes of the 2011 Agreement would be counter to the reasoning of Kirby J.

Is there a limitation on the number of public holidays?

[30] Despite the provisions of clause 7.2.1 of the 2011 Agreement, clause 7.2.5 appears, on a literal reading, to place some limitation on the number of public holidays an employee covered by the Agreement is actually entitled to.

[31] Clauses 7.2.5 and 7.2.6 of the 2011 Agreement state:

Maximum number of public holidays

7.2.5 Weekly employees rostered to work shifts, other than Monday to Friday will be compensated for the Gazetted Public Holidays which fall on days Monday to Friday, on which work has not been rostered. All permanent employees will be entitled to ten (10) public holidays only.

7.2.6 No employee on non Monday to Friday rosters will be entitled to more public holidays in any one year than is applicable to Monday to Friday full time employees.

[emphasis added]

[32] Clauses 7.2.5 and 7.2.6 were negotiated as part of the 2008 Agreement (they appear as clause 7.2.5 in that Agreement) and were included unaltered in the 2011 Agreement. 10 The inclusion of clause 7.2.5 in the 2008 Agreement was as a result of real issues in the workplace at that time the 2008 Agreement was being negotiated with respect to the entitlement to certain public holidays. The wording of clause 7.2.5 of the 2008 Agreement was subject to negotiation between the parties.

[33] The SDA say that the purpose of the clause should prevail and that is to ensure that all fulltime employees 11 have the same number of public holidays regardless of their shift roster and that the clause was never intended to limit the number of public holidays if there were additional gazetted or proclaimed public holidays. Woolworths say that the clause is plain in its meaning and that no permanent fulltime employee is entitled to more than 10 public holidays.

[34] Mr Merrell submits that, in considering this provision, a purposive approach should be taken to the clause. In support of this Mr Merrell referred me to the decision in Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd 12 (Lion Nathan) cited with approval in Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd13 (Woolworths SA). In Lion Nathan Weinberg J found that:

To determine the objective intention of the parties regard must be had, of course, to the words in the document themselves, but regard should also be had to all of the surrounding circumstances which were known to the contracting parties at the time the document was created including the underlying purpose and object of the commercial transaction. 14

[35] Mr Merrell submits that the decision in Lion Nathan stands for the proposition that a strict, literal interpretation of the provision in dispute may not lead to the proper understanding of the purpose of the provision. To discover the underlying purpose, he says, regard may be had to all of the surrounding circumstances that were known to the parties at the time the document was made.

[36] Mr Merrell submits that an objective determination of the meaning of clause 7.2.5 requires that regard be had to the context and circumstances surrounding the making of the 2008 Agreement. The uncontested evidence of Mr Ketter is that when the 2011 Agreement was made, clause 7.2.5 of the 2008 Agreement was once again agreed by the parties without change or debate. He says therefore that it is relevant to consider the circumstances that led to the inclusion of clause 7.2.5 in the 2008 Agreement in determining the objective intention of the parties and that this intention holds, unchanged, for the 2011 Agreement.

[37] Mr Merrell further submits that the principles relevant to interpretation are those set out in Woolworths SA: that is, that a narrow or pedantic approach should be avoided; that the search is for the meaning intended by the framers of the document keeping in mind they are of a practical bent of mind; and, that meanings which avoid inconvenience or injustice may be strained for and that regard may be had to the surrounding circumstances in identifying the underlying purpose of the provision. 15

[38] Mr Merrell submits that the evidence shows that the circumstance that existed at the time of negotiating the 2008 Agreement was that there was some disputation between employees and the Respondent as to the right of non-Monday to Friday employees to receive a benefit for the Exhibition Day (also known as Ekka or Show Day) public holiday even though they did not work on that day. The purpose of clause 7.2.5 of the 2008 Agreement was to ensure the maintenance of what had been custom and practice under the previous Woolworths Limited Supermarkets Distribution Centres (South-East Queensland) Certified Agreement 2004 (the 2004 Agreement). The practice was such that Monday to Friday employees enjoyed ten public holidays per year excluding any additional days (they did not get the benefit of Easter Saturday as they were not rostered to work) and non-Monday to Friday employees did not receive any more or less than Monday to Friday employees. The intention was to ensure that this ‘status quo’, regardless of roster, was not disturbed. Mr Merrell submits that the intention in negotiating clause 7.2.5 in the 2008 Agreement was to give clarity to the provisions that had existed in the 2004 Agreement. The SDA, in agreeing to the wording of the 2008 Agreement, did so on the basis that it was not intended to alter the status quo under the 2004 Agreement.

[39] Mr Merrell submits that the purpose of the clause was to ensure that the number of public holidays to which an employee was entitled was not dependent on the roster worked. Its intention was not to limit the number of public holidays and in this context the limitation to ten public holidays included in the clause reflected the number of public holidays a Monday to Friday employee was entitled to at the time the 2008 Agreement was negotiated. Mr Merrell further submits that the evidence shows that neither party, in negotiating the 2008 Agreement, took into consideration the creation of an additional public holiday as occurred with Queen’s Diamond Jubilee holiday.

[40] Mr Jauncey submits that, even if the Queen’s Diamond Jubilee holiday is a holiday for the purpose of the 2011 Agreement, the provisions of clause 7.2.5 are clear and unambiguous. In National Union of Workers v Graincorp Operations Limited 16 (cited with approval in Australian Rail, Tram and Bus Industry union v Rail Corporation of New South Wales17) Ives DP found that:

Among the general principles to be followed in the interpretation of awards and certified agreements are these:

(a) if the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning (Re Clothing Trades Award (1950) 68 CAR 597);... 18

[41] Mr Jauncey submits that the history of the applicable agreements shows that a ten day cap has been imposed on part time employees at least since the 2004 Agreement 19 with this exclusion continuing unchanged in the 2008 and 2011 Agreements. The cap for part time employees, he submits, has never been subject to challenge, regardless of the actual number of public holidays in any one year but with respect to full time employees the SDA is proposing that the clear words of the clause be ignored.

[42] Mr Jauncey submits that there is no evidence that the clause was ever intended to apply if a ‘non-recurring’ holiday occurred in any year. The evidence of Mr McGrath is that the concept of on ‘non-recurring’ holidays was not mentioned in the negotiations for the 2008 Agreement and of Mr Ketter that he could not recall the term being used. The evidence of the material presented to union members by the SDA in the lead up to the second ballot on the 2008 Agreement 20 shows that the term was not used.

[43] The Respondent accepts that at the outset of negotiations for the 2008 Agreement the SDA was seeking an increase in the number of public holidays for fulltime employees to 11 per year 21 but it was Woolworths’ intention that all employees, regardless of their shift roster, should receive 10 public holidays per year. In his evidence Mr Ketter concedes this was so. The position taken by the SDA was, Mr Jauncey submits, a change from the 2004 Agreement. That is, the public holidays provisions proposed by the SDA in 2008 were not the maintenance of the status quo from the 2004 Agreement.

[44] Mr Jauncey submits that all through the negotiations for the 2008 Agreement there was no shared intent as to the public holidays clause - the clause was subject to changes in wording and the intention of the negotiating parties was not the same. The SDA intent, evidenced by its log of claims, was to have all employees gain the benefit of eleven public holidays throughout the year whilst Woolworths’ intention, evidenced by material it put to the SDA, 22 was to cap the number of public holidays at ten. The first version of the 2008 Agreement, rejected by employees, shows that, at that time, the provision sought to manage the interaction of Easter Saturday and Exhibition Day with the effect of the clause being to deny an employee the benefit of Exhibition Day if they had gained a benefit from Easter Saturday. Up until the approval of the 2008 Agreement at the second vote23 Mr Jauncey says the positions of both parties were changing.

[45] The final wording of clause 7.2.5 of the 2008 Agreement was tabled in negotiations by the Respondent on the only day of negotiations following the rejection of the first draft of the 2008 Agreement by employees. Mr Jauncey submits that Mr Ketter, in his evidence, concedes that this was a change in position by Woolworths from what was put to employees in the first unsuccessful vote on the 2008 Agreement.

[46] In evidence Mr McGrath states that, during negotiations for the 2008 Agreement, there was never any discussion as to what would occur with respect to public holidays if an additional public holiday declared or gazetted. Mr Ketter’s evidence does not contradict this. On this basis Mr Jauncey submits that the only conclusion that can be reached based on the evidence is that the parties never turned their minds to what was to occur if an additional public holiday was declared 24 to the apparent cap on the number of public holidays.

[47] As to the interaction between the provision in clause 7.2.1, which allows for additional gazetted days to be recognised, and clause 7.2.5, which restricts the number of public holidays, of the 2008 and 2011 Agreements Mr Jauncey submits that these clauses are consistent and that the effective issue becomes how many additional non-rostered benefits need to be provided to ensure all full time employees receive 10 public holidays.

[48] In addition Mr Jauncey says that, even if it is found that the Queen’s Diamond Jubilee holiday is public holiday for the purposes of the 2011 Agreement and even if the limitation at the end of clause 7.2.5 is ignored, the days of the week on which the public holidays fell in 2012 means that Monday to Friday full time employees could only have received the benefit of ten public holidays (including the Queen’s Diamond Jubilee holiday). This means that non-Monday to Friday full time employees could only have received the benefit of 10 public holidays in accordance with clause 7.2.6. He relies on the decision in Shop, Distributive and Allied Employees Association v Woolworths Ltd 25 where Marshall J found that the term ‘an additional public holiday,’ when used in an industrial instrument in not substantially different terms from that found in the 2008 and 2011 Agreements, meant an additional public holiday to those already provided for in the clause. A declaration that the clause is not intended to limit the number of public holidays therefore has no utility.

Approach to interpreting agreement

[49] The resolution of the issues in dispute rests on the proper construction of the public holidays clause in the 2011 (and 2008) Agreement.

[50] The approach taken by the courts in the construction of industrial awards and contracts provides guidance as to the approach that should be taken by the Commission in determining the correct construction of the terms of an industrial instrument.

[51] Mr Merrell submits that the principles relevant to the construction of an industrial agreement were recently summarised in Woolworths SA  26 where Marshall, Tracey and Flick JJ found that:

Support for the position that the industrial context and the intention or purpose of the makers of an industrial instrument should be paramount notwithstanding the strict wording of the document is found in the judgments of members of the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241.

In Amcor, Gleeson CJ and Mc Hugh J stressed at paragraph [2] that:

(t)he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation.

(Emphasis added.)

See also at paragraph [13], where their Honours referred to:

…the industrial purpose of the agreement, and the commercial and legislative context in which it applies.

Further, the purposive approach to the construction of industrial instruments was persuasively illustrated by Kirby J in Amcor at paragraph [96] where his Honour said:

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. 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.

(Original emphasis.)

See also per Gummow, Hayne and Heydon JJ at [30].

The approach of the High Court in Amcor is consistent with the modern approach to interpretation of commercial agreements where context and surrounding circumstances will be taken into account “even if the words at issue are not ambiguous, or susceptible of more than one meaning”; see Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1 at paragraph [46], per Weinberg J and see also at paragraph [251] where Lander J said:

It is now clear and settled law that the meaning of commercial contracts and documents is to be determined objectively. To determine the objective intention of the parties regard must be had, of course, to the words in the document themselves, but regard should also be had to all of the surrounding circumstances which were known to the contracting parties at the time the document was created including the underlying purpose and object of the commercial transaction: Pacific Carriers per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [22].

What is true of commercial contracts and their construction is also true of the construction of industrial agreements where regard must be had to the industrial context and the purpose of the provisions in question. In that regard, see also Short v FW Hercus Pty Ltd (1993) 40 FCR 511, especially at 518 to 520 per Burchett J, and City of Wanneroo v Holmes (1989) 30 IR 362 at 378 per French J... 27

[52] Mr Jauncey referred to the decision in Amcor Limited v CFMEU 28 where Gleeson CJ and McHugh J stated that the issue of interpreting an agreement turned upon the ‘language of the particular agreement, understood in the light of its industrial context and purpose...’29 Further he says that narrow or pedantic approaches to the construction are to be avoided and the Commission is not free to give effect to ‘some anteriorly derived notion of what would be fair and just, regardless of what has been written into’ the agreement.30

[53] Mr Jauncey cautions the Commission that, in considering the common intention of the parties, these are to be understood ‘by the language in which the parties have expressed their agreement.’ 31

[54] Mr Jauncey submits that the task confronting the Commission is to consider and apply the actual words in the 2011 Agreement and not to determine if a particular benefit should be extended to the employees concerned.

[55] In addition Mr Jauncey notes that even if a holiday is recognised under the NES there is no requirement to pay an employee who does not have ordinary hours on that day and does not work. Nor does the NES prescribe how an employee who does work on such a day be paid. The prescription of such matters, he says, is to be found in the relevant award or agreement.

[56] There seems to me little conflict between the parties as to the approach to be taken in determining the construction of the 2011 Agreement.

Findings

Is the Queen’s Diamond Jubilee holiday an additional holiday for the purpose of clause 7.2.1. of the Agreement?

[57] I am not convinced that the phrase ‘any additional days gazetted as public holidays which have not already been listed above’ means that only additional days that are notified in the Gazette in accordance with s.4 of the Holidays Act fall within its scope. In any event it appears to me that the Queen’s Diamond Jubilee holiday has been notified by a listing in the Gazette as a public holiday. That it may also be a public holiday by virtue of s.11 of the Holidays Act itself does not detract from the fact that it was also notified as being a public holiday in the Gazette.

[58] Further, I am satisfied that the evident purpose of the phrase ‘any additional days gazetted as public holidays which have not already been listed above’ is to provide employees covered by the agreement with the benefit of any additional public holidays as properly determined under the Holidays Act, regardless of how these additional holidays may be brought into being or be advised to the public at large. I do not consider that the intention in the use of the term ‘gazetted’ was to unduly restrict access to additional public holidays to only those that come about by a gazettal under s.4 of the Holidays Act. Such an approach would be overly pedantic.

[59] An objective consideration of the words in the last point of clause 7.2.1 indicate an intention that additional holidays should also be considered as public holidays to which an employee may (subject to the remainder of the 2011 Agreement) derive some benefit as provided for in the 2011 Agreement.

[60] Whilst it is true that since 1983 when the existing Holidays Act was first made the concept of Ministers notifying changes to the scheduled holidays or additional holidays by way of notice in the Queensland Government Gazette has been found in the legislation there is nothing that has been put to suggest that, when drafting the 2011 (or 2008) Agreement, the parties included the concept of ‘additional days gazetted as public holidays’ that they had in their minds that gazettal would only be legitimate if it was in accordance with s.4 of the Holidays Act that provided for the gazettal of such days and that no other public holiday, however created by the Holidays Act or any other legitimate means, could or would count.

[61] I am satisfied that the Queen’s Diamond Jubilee holiday is an additional holiday to the holidays listed in clause 7.2.1.

[62] I am satisfied that, in including the term ‘any additional days gazetted as public holidays which have not already been listed above’ the parties intended that any additional public holiday, however legitimately determined or declared pursuant to the relevant legislation, would be considered as a public holiday for the purpose of clause 7.2.1 of the 2011 Agreement. As such, the Queen’s Diamond Jubilee holiday is a public holiday for the purpose of clause 7.2.1 of the 2011 Agreement.

Does clause 7.2.5 of the 2011 Agreement operate to limit the number of public holidays?

[63] I am satisfied that in determining the meaning of clauses 7.2.5 and 7.2.6 in the 2011 Agreement I can have regard to the circumstances surrounding the negotiation of the 2008 Agreement. I accept the evidence that these clauses were included in the 2011 Agreement unchanged and without negotiation from the 2008 Agreement.

[64] I do not accept the submissions of Mr Jauncey that I should take the words of the clause as they stand. This would require me to take a very literal approach to the 2011 Agreement (and 2008 Agreement). While regard must be had to the words on paper regard must also be had to the surrounding circumstances. A literal approach would be at odds with the purposive approach which has been adopted as an appropriate manner in which to approach such tasks. Having said this of course the written words cannot be ignored and must carry weight.

[65] I also do not accept, as a general principle that, having started with different claims, the parties cannot have come to some agreed intention in settling on the words of clause 7.2.5 in the 2008 Agreement. The industrial reality is that parties will start with their own claims. To suggest that in doing so no common understanding can be reached at the conclusion of the negotiations would be to suggest that the surrounding circumstances should be ignored in such circumstances.

[66] The 2004 Agreement states, in part:

7.2.6 Full time employees rostered to work on shifts, other than Monday to Friday, will be compensated for the Gazetted Public Holidays which fall on days Monday to Friday, on which work has not been rostered.

No employees on such rosters will be entitled to more Public Holidays in any one (1) year, than is applicable to Monday to Friday employees

[67] This provision would have delivered, in fact, 10 public holidays to Monday to Friday employees in 2008 (no additional days were gazetted as public holidays in that year and no public holiday, save for Easter Saturday, fell on a weekend). The status quo, at the time of negotiating the 2008 Agreement, was ten days and this was reflected in the 2008 Agreement. Aside from the declaration or gazettal of some additional public holidays - and no evidence was given that alluded to this being a regular or less than regular occurrence in Queensland - there would never be more than ten public holidays. 32

[68] It is apparent from the evidence that neither party considered what would happen if an additional public holiday was gazetted or declared in some way.

[69] I agree with the submission that the fact that the possibility of additional public holidays was not discussed does not allow me to reach any positive conclusion about what the outcome may have been if such a matter was considered. To reach any conclusion as to intent would require me to make decisions about what was in the minds of people in 2008 about a matter that they all agree was not discussed and did not come to mind. It is an unrealistic proposition to suggest that I could do so.

[70] Whilst Mr Merrell says that it was the intention of the parties to maintain the status quo from the 2004 Agreement (which would have delivered 11 public holidays in that year had an additional day been gazetted or declared a public holiday) I agree with the submission on behalf of the Respondent that I cannot know what the intention of parties was with respect to additional days when this was not a matter discussed by them.

[71] It is not for the Commission in the circumstances of this case to determine whether the benefit of the additional public holiday should be extended to employees. To do so would be to give effect to ‘some anteriorly derived notion of what is fair and just, regardless of what has been written’ in the Agreement itself.

[72] On this basis I must conclude that clause 7.2.5 of the 2011 Agreement limits the number of public holidays an employee is entitled to at ten.

Conclusion

[73] As to the questions posed to the Commission for resolution I find that, on a proper construction of the 2011 Agreement that:

• the Queen’s Diamond Jubilee holiday that occurred on 11 June 2012 was a public holiday and should be recognised as such for the purposes of the Woolworths BRDC Agreement 2011. It is a holiday that comes within the meaning of ‘additional days gazetted as public holidays which have not already been listed above’ in clause 7.2.1 of the 2011 Agreement.

• clause 7.2.5 of the Woolworths BRDC Agreement 2011 does operate to limit all staff to a maximum of ten public holidays in any one year.

COMMISSIONER

Appearances:

S. Jauncey for the Applicant.

J Merrell, of counsel, for the Respondent.

Hearing details:

2012.

Melbourne:

19 December

 1   SDA letter of 11 September 2012.

 2   Woolworths submission dated 5 November 2012, paragraphs 4 and 5.

 3   Transcript PN11-13.

 4   Exhibit SDA1, attachment CRK1.

 5   Exhibit SDA1, attachment CRK1.

 6   Amcor Ltd v Construction, Forestry, Mining and Energy Union, (2005)222 CLR 241. .

 7   Transcript PN655-60.

 8 (1996) 66 IR 182.

 9   Amcor Ltd v Construction, Forestry, Mining and Energy Union, (2005)222 CLR 241, 271.

 10   Exhibit SDA1, attachment CRK8. See clause 7.2.5 of 2008 Agreement.

 11   A separate clause, not subject to the dispute before the Commission, deals with part time employees.

 12   (2006) 156 FCR 1.

 13 [2011] FCAFC 67.

 14 (2006) 156 FCR 1, 50, [251] per Lander J.

 15   Transcript PN690-1.

 16 (2002) 117 IR 136.

 17 (2009) 187 IR 453.

 18 (2002) 117 IR 136, 145 [47].

 19   Exhibit SDA 1, attachment CRK 7, clause 7.2.8.

 20   The 2008 Agreement was voted down in the first ballot.

 21   Exhibit SDA1, attachment CRK10, item 17.

 22   Exhibit W3 attachment CM-A.

 23   The 2008 Agreement was put out to an unsuccessful vote. One of the changes between the first and second 2008 Agreement which was approved is the words in dispute.

 24   Transcript PN874. See also the evidence of Mr Ketter at PN232 and Mr McGrath at PN340-1.

 25 [2000] FCA 206.

 26 [2011] FCAFC 67.

 27 [2011] FCAFC 67, [14]-[18].

 28 (2005) 222 CLR 241.

 29 (2005) 222 CLR 241, 246.

 30   Kucks v CSR Limited (1996) 96 IR 182.

 31   Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 [40] in Transcript PN823.

 32   The number of public holidays to which an employee could gain benefit could increase if Woolworths acceded to the SDA claim for all employees to gain the benefit of 11 public holidays. There was no indication that this was a consideration.

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