The Australian Workers' Union and "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Communications, Electrical,...

[2021] FWC 6096

[2021] FWC 6096

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union and "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Qantas Airways Limited T/A Qantas
(C2021/409)

COMMISSIONER CAMBRIDGE SYDNEY, 28 OCTOBER 2021

Dispute settlement procedure - dispute about interpretation of clause providing for payment of early morning shift allowance - interpretation made - application granted.

[1] This Decision is made in respect of an application that was taken under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 28 January 2021, and it was made by The Australian Workers’ Union (AWU)and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU)and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the Alliance Unions). The application was taken against Qantas Airways Limited T/A Qantas ACN: 009 954 661 901 (Qantas or the employer).

[2] The application was advanced pursuant to a DSP which can be found at clause 12 of the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 10 (EA10). The Parties agreed that the procedures contained in the DSP had been followed such that the matter in dispute had been validly referred to the Commission. The Commission convened conciliation proceedings on 26 February, 19 March, and 14 April 2021 which were unsuccessful in resolving the dispute.

[3] The Alliance Unions requested that the unresolved dispute proceed to arbitration and on 15 April 2021, the Commission issued Directions which required the Parties to file and serve evidence and submissions in accordance with a timetable that provided for the matter to subsequently proceeded to a Hearing via video link which was conducted on 7 September 2021. At the outset of the Hearing, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents.

[4] At the Hearing held on 7 September 2021, the following appearances were recorded:

Mr S Crawford appeared for the AWU,

Mr J Martin appeared for the AMWU,

Mr M Murphy together with Mr B Currey appeared for the CEPU, and

Mr R Warren, barrister, instructed by Ashurst lawyers, appeared for Qantas.

[5] Mr Crawford on behalf of the Alliance Unions, introduced evidence by way of a witness statement of Mr Glenn Wilcox, who, as an employee of Qantas since 1996, is a Delegate/Convenor for the AMWU at Mascot airport. The witness statement of Mr Wilcox was admitted as evidence without any requirement for cross-examination. Mr Warren adduced evidence by way of a statement of Mr Mark Wade, who is the employer’s Senior Regional Manager, North East, New South Wales and Queensland. The witness statement of Mr Wade was admitted as evidence without any requirement for cross-examination.

[6] Mr Crawford made the primary oral submissions for the Alliance Unions, and supplementary oral submissions were provided by Mr Martin and Mr Murphy. Mr Crawford referred to and relied upon written submissions dated 19 May and 6 July 2021. Mr Warren provided oral submissions on behalf of Qantas in elaboration of documentary material that had been filed on 22 June 2021.

Background

[7] There was little factual contest between the Parties about the circumstances which gave rise to the dispute in this matter. The dispute arose from a decision taken by Qantas to not pay an early morning shift allowance of 17.5 % to all employees who commence a shift at Mascot airport between 4:00 am and 5:59 am. The disputed entitlement has arisen from the words contained in subclause 25.4.7(a) of EA10 which reads as follows:

“25.4.7 Shift work between midnight Sunday and midnight Friday

25.4.7(a) Early morning shifts

“Early Morning Shift A - Employees must be paid ordinary rates plus 22.5% for all shifts which commence between midnight and no later than 0359.

Early Morning Shift B” - Employees must be paid ordinary rates plus 15% for all shifts which commence at 0400 and no later than 0559. Provided that at Mascot, for an early morning shift that commences no later than 0559 the allowance shall be 17.5%.”

[8] The focus of the dispute has involved the words appearing in the “Early Morning Shift B” paragraphwhich reads: “Provided that at Mascot, for an early morning shift that commences no later than 0559 the allowance shall be 17.5%.” In particular, the dispute has turned upon the meaning that should be given to the words “at Mascot”. Qantas has determined that the meaning of the words “at Mascot” do not have application to all employees covered by EA10 who work at the Mascot airport but instead applies such that the entitlement to the higher 17.5% allowance is confined to particular employees who had, until a recent organisational restructure, worked in a distinct workgroup called Sydney International Operations (SIO).

[9] In order to understand the limited application that Qantas has given to the words “at Mascot” appearing in subclause 25.4.7(a) of EA10, it is necessary to provide an outline of the organisational workgroups that existed for employees covered by EA10 working at Mascot airport prior to the restructure that Qantas commenced to implement in February 2021. In February 2021, Qantas implemented significant changes to the structure of its maintenance workforce at Mascot airport. Essentially, the restructure involved the amalgamation of three previously discrete workgroups into a single workgroup called the Sydney Line Maintenance (SLM).

[10] Prior to the restructure which involved the establishment of SLM, there were relevantly five discrete workgroups across both the domestic and international operations identified as follows:

● Sydney International Operations (SIO) - until November 2020, almost exclusively engaged in work at the International terminal.

● Sydney Domestic Operations (SDO) - prior to the establishment of SLM, almost exclusively engaged in work at the Domestic terminal.

● Sydney Intermediate Maintenance (SIM) - prior to the establishment of SLM, almost exclusively engaged in work at various hangars adjacent to the Domestic terminal.

● Maintenance Support Services (MSS) - prior to and after the establishment of SLM, almost exclusively engaged in work at a hangar adjacent to the Domestic terminal.

● Aero Engine Support Shop (AESS) - prior to and after the establishment of SLM, almost exclusively engaged in work at a building (engine shop) near Qantas Drive and North from the hangars adjacent to the Domestic terminal.

[11] The first three of the workgroups identified above, SIO, SDO, and SIM were essentially combined to form the SLM. SLM employees now perform a range of duties that will include from time to time, work at either the International or Domestic terminals and at the various hangars adjacent to the Domestic terminal. The restructure has meant that there will be no work exclusively performed at the International terminal as was previously undertaken by the SIO workgroup. The restructure did not alter the locations where work is undertaken by the MSS and AESS workgroups.

[12] In addition to the relocation impacts that the amalgamation of the SIO, SDO, and SIM workgroups has had, the restructure also involved alterations to the rostering arrangements that had previously applied to the three separate workgroups. Prior to the establishment of SLM, early morning shift B start times were a part of the rostering arrangements for SIO employees. However, there were no regular rostered early morning shift B arrangements (shift start between 4:00 am to 5:59 am) that applied for either the SDO or SIM workgroups. The restructure involving the establishment of the SLM, has introduced a regular shift roster pattern that includes a shift which is described as an “Early Day” and which starts at 5:00 am.

[13] Somewhat predictably, those employees that were previously engaged in the SDO and SIM workgroups and who now form part of the SLM, have asserted that the SLM “Early Day” shift which commences at 5:00 am, is an early morning shift B which at Mascot, requires payment of the higher 17.5% allowance. Qantas has rejected this assertion on the basis that the higher 17.5% allowance was only payable in respect to SIO employees who worked exclusively at the International terminal. Essentially, the position of Qantas is that the words “at Mascot” appearing in subclause 25.4.7(a) of EA10 mean “at the International terminal”.

[14] Although the restructure which has established the SLM results in there no longer being any work which is exclusively performed at the International terminal, Qantas has decided to continue payment of the higher 17.5% early morning shift B allowance for those employees working in the SLM who previously worked in the SIO workgroup. Separately, Qantas has continued to pay the higher 17.5% early morning shift B allowance to employees in the AESS workgroup. However, these payments will only apply to existing AESS workgroup employees and will not be made to any new employees who are engaged in the AESS in the future.

[15] The Alliance Unions, on behalf of their members employed by Qantas at Mascot airport, have challenged the decision of Qantas to confine payment of the higher 17.5% early morning shift B allowance to only those employees working in the SLM who previously worked in the SIO workgroup, and to current employees in the AESS workgroup.

The Case for the Alliance Unions

[16] Mr Crawford made the primary oral submissions on behalf of the Alliance Unions. Mr Crawford referred to and relied upon the written submission documents respectively dated 19 May and 6 July 2021. Mr Crawford noted that the questions for determination of the dispute that were proposed by the Alliance Unions were set out at paragraph 9 of the 19 May 2021 written submissions. The questions proposed by the Alliance Unions were as follows:

“(i) Are all employees covered by EA 10 who perform an Early Morning Shift B at Mascot airport from midnight Sunday to midnight Friday entitled to a 17.5% shift allowance pursuant to clause 25.4.7(a) of EA 10?

(ii) If the answer to question (i) is “no”, which group/s of employees at Mascot airport are entitled to the 17.5% shift allowance when they work an Early Morning Shift B from midnight Sunday to midnight Friday?”

[17] The submissions made by Mr Crawford referred to the evidence provided in the witness statement of Mr Wilcox. In this regard, Mr Crawford said it was relevant to note that Mr Wilcox had been a lead delegate for bargaining for EA10 and the predecessor instruments, referred to as EA9 and EA8. Mr Wilcox had no recollection of any discussion during any of the enterprise bargaining meetings which concerned the limited operation of the 17.5% early morning shift B allowance being confined to a particular group of employees. Mr Crawford submitted that employees who voted in the processes which led to the making of EA10 and the predecessor instruments, would have had no basis to think that the 17.5% early morning shift B allowance only applied to a particular group of employees. Mr Crawford further submitted that this proposition was reinforced by the evidence provided by Mr Wilcox that the term “Mascot” was used to describe the whole of the airport, and he was not aware of the term ever being associated with only one section of the airport such as the International terminal.

[18] Mr Crawford also made submissions which referred to the terms contained in the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 (LAME EA10). Mr Crawford referred to terminology found at subclause 24.4.1 of the LAME EA10 which also dealt with early morning shifts B, and which stated:

“Early morning shifts ‘B’ 15% more than the ordinary rates for such shifts. Provided that at Mascot for an early morning shift that commences before 0600 such allowance shall be 17-1/2% (International only)”

[19] Mr Crawford submitted that the inclusion of the words in brackets “International only” in the relevant provisions of the LAME EA10 represented an important omission from subclause 25.4.7(a) of EA10. Mr Crawford submitted that Qantas was attempting to have the terms of subclause 25.4.7(a) of EA10 apply as if the words in brackets “International only” which appear in subclause 24.4.1 of the LAME EA10, had been included. Mr Crawford said that the terms “International only” had not been included in EA10 or any of the relevant predecessor instruments, and that it was extremely telling that a large and sophisticated employer like Qantas had at no stage, attempted to include the terms “International only” in the knowledge that those words appeared in the LAME EA10.

[20] The submissions made by Mr Crawford acknowledged that the higher 17.5% early morning shift B allowance originated from a time when Qantas was conducting only an international business. However, according to the submissions made by Mr Crawford, after Qantas had merged with Australian Airlines in 1992, it had negotiated a number of industrial instruments that covered both its international and domestic operations, yet the reference remained simply to “at Mascot” and there was no insertion of the words in brackets “International only” in EA10 or any of the predecessor instruments to EA10.

[21] The further submissions made by Mr Crawford referred to the principles for interpretation of the terms of an enterprise agreement as set out in the Full Bench Decision in AMWU v Berri  1 (the Berri principles). In this regard, Mr Crawford submitted that the terms “at Mascot” were in no way whatsoever ambiguous, and that it was not open to the Commission to rewrite the agreement to suit Qantas’ preferred outcome simply because of the historical origins of the higher 17.5% early morning shift B allowance.

[22] Mr Crawford submitted that the Berri principles established that the words of the EA10 were critical, and they must take precedent and trump historical factors in circumstances where words have a clear meaning. Mr Crawford also said that there was no evidence of any common understanding between the Parties that the higher 17.5% early morning shift B allowance was only applicable to a particular group of employees at Mascot.

[23] In further submissions, Mr Crawford challenged the interpretation that Qantas sought to place on the words “at Mascot” as applying to employees working at the International terminal only. Mr Crawford said that this interpretation was inconsistent with Qantas’ own practical application of the higher 17.5% early morning shift B allowance. Mr Crawford pointed to the AESS workgroup that had not been engaged at the International terminal and yet Qantas had historically paid the higher 17.5% early morning shift B allowance to the AESS workgroup.

[24] Mr Crawford also made submissions regarding the alternative question for determination of the dispute that Qantas had proposed. Mr Crawford said that the question that Qantas had proposed limited the determination to only those employees in the SLM workgroup, whilst the questions proposed by the Alliance Unions had broader application which would resolve the issue of any entitlement to the higher 17.5% early morning shift B allowance for all relevant workgroups at Mascot airport.

[25] In summary, Mr Crawford submitted that the Commission should answer the first question posed by the Alliance Unions in the affirmative, as there was no basis to read into that provision any confinement of the higher 17.5% early morning shift B allowance to the International terminal at Mascot airport. Mr Crawford reiterated his submissions that the Commission could not apply or interpret the terms of EA10 in a manner which would insert a restriction for the benefit of Qantas, and which, for whatever reason, it had not negotiated into EA10.

The Case for Qantas

[26] Mr Warren, barrister, appeared for Qantas, and he made oral submissions in amplification of written submissions that were filed on 22 June 2021.

[27] The submissions made by Mr Warren firstly referred to the different question that Qantas had proposed for determination of the matter. Mr Warren acknowledged that there was very little difference between the question that Qantas proposed for determination and that which had been proposed by the Alliance Unions. Mr Warren suggested that the second component of the question that had been proposed by Qantas provided the Commission with flexibility to make a determination as to what would be the appropriate circumstances that enlivened the higher 17.5% payment of the early morning shift B allowance.

[28] Mr Warren submitted that there was no clear evidence to provide explanation as to why the higher 17.5% early morning shift B allowance was first introduced. However, the submissions made by Mr Warren asserted that the payment of the higher allowance was related to the geographical distinction that existed for workgroups that started and finished at the International terminal. Mr Warren stressed that at the time that the higher allowance commenced, Qantas was solely an international operation, and it was important to retrace the history of the industrial award and agreement coverage that applied before and after Qantas merged with Australian Airlines to become both an international and domestic operation.

[29] Mr Warren made submissions which referred to Judgements of the Federal Court of Australia which he said had established that in certain circumstances it was appropriate to examine the relevant industrial history of particular provisions as a means to assist in the proper interpretation of those provisions. According to the submissions made by Mr Warren, the terms “at Mascot” appearing in subclause 25.4.7(a) of EA10 should be properly construed having regard for the lengthy historical development of relevant industrial instrument terminology that preceded EA10.

[30] The submissions made by Mr Warren included a detailed analysis of the history of award and agreement provisions which provided for a 17.5% early morning shift B allowance. These submissions commenced with an identification of the terminology contained in the 1972 Qantas Airways Award and traversed similar terminology that was found in the Domestic Airlines Award 1980. Mr Warren then referred to the relevant industrial instruments that applied at the time that Qantas merged with Australian Airlines, and he noted that the Australian Airlines Ltd Enterprise Bargaining Agreement 1992 did not provide for the higher early morning shift B allowance.

[31] The historical analysis that Mr Warren provided established basis for his submission that it was clear that prior to the merger of Qantas and Australian Airlines, the higher early morning shift B allowance applied to all international airline operations at Mascot, one of which was Qantas, it applied exclusively at Mascot, and nowhere else in Australia, and it did not apply to any domestic airline operations. Mr Warren submitted that although the precise reason for the higher early morning shift B allowance could not be discerned, its history established that it was based upon the geographical location involving work at the International terminal at Mascot.

[32] Mr Warren submitted that following the merger of Qantas and Australian Airlines, the relevant industrial instruments had sought to provide for the continuation of the higher early morning shift B allowance for employees working full-time at the International terminal. Prior to the restructure which created the SLM, Mr Warren submitted that any payment of the higher early morning shift B allowance arose only as an entitlement for employees who worked full-time at the International terminal, specifically those in the SIO workgroup. Mr Warren submitted that the higher payments to the AESS workgroup had not been made because of any entitlement to the higher payment because it only applied to employees who worked only at the International terminal.

[33] Mr Warren further submitted that as a result of the geographical reorganisation which occurred with the introduction of the SLM, there was no longer any group of workers that were engaged full-time at the International terminal. Consequently, according to the submissions made by Mr Warren, there was no longer any entitlement for payment of the higher early morning shift B allowance to any of the workgroups because there was no longer any group that worked exclusively at the International terminal. However, Mr Warren submitted that Qantas had made a discretionary determination to continue the payment of the higher early morning shift B allowance to those individuals who had previously worked exclusively at the International terminal in the SIO workgroup, and it similarly made a discretionary determination to continue the higher payments to only existing employees in the AESS workgroup despite there being no entitlement for the higher payment to be made to any employees.

[34] In summary, Mr Warren submitted that an examination of the historical development which underpinned the terminology of “at Mascot” appearing in subclause 25.4.7(a) of EA10, established that the entitlement to receive payment of the higher 17.5% early morning shift B payment was linked to the geographical location of starting and finishing at the International terminal. Consequently, the reorganisation undertaken by Qantas which has established the SLM, has meant that there is no longer any workgroup starting and finishing at the International terminal, therefore, there is no longer any entitlement to receive the higher payment. Mr Warren submitted that Qantas has made a discretionary determination to continue the higher payment under what is referred to as “grandfathering” arrangements. However, according to the submissions of Mr Warren, the discretionary “grandfathering” of the higher payments does not provide for any entitlement to the higher 17.5% early morning shift B allowance. Therefore, according to the submissions made on behalf of Qantas, there were no employees who work in the SLM or elsewhere at Mascot airport, who have an entitlement to the higher early morning shift B allowance.

Consideration

[35] The dispute in this instance has arisen from the decision of Qantas to not pay an early morning shift allowance of 17.5% to all employees who commence a shift at Mascot airport between 4:00 am and 5:59 am. The decision to not make this payment has arisen from the meaning that Qantas has given to the words “at Mascot” appearing in subclause 25.4.7(a) of EA10. The Commission is empowered to determine the dispute about the correct construction to be given to the terms appearing in subclause 25.4.7(a) by virtue of the Dispute Settlement Procedure (DSP) found at clause 12 of EA10 which is in the following terms:

“12. DISPUTE SETTLING PROCEDURE

12.1 In the event of a dispute arising in the workplace about matters arising under this Agreement or in relation to the National Employment Standards the procedure to resolve the matter will be as follows:

12.1.1 The employee and the employee's supervisor meeting and conferring

on the matter.

12.1.2 If the matter is not resolved at this meeting, the parties must arrange

for further discussions between the employee and more senior levels

of management.

12.1.3 The processes contained in clauses 12.1.1 and 12.2.2 should be

completed within 7-10 working days of the receipt of notification of the

dispute at each stage. Provided that at either stage, the parties may

agree on a longer period of time to allow completion of the process at

that level. Where either party to the dispute requests additional time

(such as to prepare or collate information) such a request to extend

the timeframe beyond 7-10 working days will not be unreasonably

refused.

12.1.4 If the matter cannot be resolved it may be referred by either party to

the Commission for resolution. This does not affect the right of either

party to a dispute to take other action to resolve the dispute.

12.2 An employee may choose to have an employee representative of their choice,

including a Union representative, to represent and support them at any stage of the dispute resolution procedure. Any representative nominated by the employee pursuant to this dispute resolution procedure will be allowed, at a place designated by Qantas, the necessary time during working hours to represent and support the employee.

12.3 While the parties attempt to resolve a dispute employees must continue to work

as normal in accordance with this Agreement and their contracts of employment unless an employee has a reasonable concern about imminent risk to safety or health. In this case, an employee must not unreasonably fail to comply with a direction of Qantas to perform other available work, whether at the same or another workplace that was safe and appropriate for the employee to perform.

12.4 If a dispute is referred to the Commission for resolution, the Commission can take any or all of the following actions as it considers appropriate to resolve the dispute:

● convene conciliation conferences of the parties or their representatives at which the Commission is present;

● require the parties or their representatives to confer among themselves at conferences at which the Commission is not present;

● request, but not compel, a person to attend proceedings;

● request, but not compel, a person to produce documents;

● where either party requests, make recommendations about particular aspects of a matter about which they are unable to reach agreement;

● where the matter, or matters, in dispute cannot be resolved (including by conciliation) and one party or both request, arbitrate or otherwise determine the matter, or matters, in dispute.

12.5 The Commission must follow due process and allow each party a fair and

adequate opportunity to present their case.

12.6 Any determination by the Commission under clause 12.4 must be in writing if

either party so requests, and must give reasons for the determination.

12.7 Any determination made by the Commission under clause 12.4 must be

consistent with applicable law and must not require a party to act in contravention of an applicable industrial instrument or law.

12.8 Where relevant, and circumstances warrant, the Commission will consider

previous relevant decisions of the Commission and the Courts

12.9 The Commission must not issue interim orders, 'status quo' orders or interim

determinations.

12.10 The parties are entitled to be represented including by legal representatives, in

proceedings pursuant to this dispute resolution procedure.”

[36] The Parties agreed that the relevant procedural steps contained in the DSP had been followed. Therefore, the jurisdiction of the Commission to exercise the powers of private arbitration contained in the DSP was properly established.

[37] The Parties also confirmed that the determination of the dispute involved an analysis of the words “at Mascot” appearing in subclause 25.4.7(a) of EA10 so as to provide the correct construction or interpretation that should be given to those terms. The specific construction contest was whether the terms “at Mascot” should be interpreted to confine any entitlement to the higher 17.5 % early morning shift B payment to employees who work from the geographical location of the International terminal at Mascot.

[38] The Parties could not agree on the wording of the question or questions proposed for determination of the dispute. The question proposed by Qantas was in the following terms:

“Are any of the employees who are covered by the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 10 and who work in the new Sydney Line Maintenance engineering business, eligible to be paid the 17.5% shift allowance provided for in the definition of “early morning shift” at Clause 25.4.7(a) of The Agreement? If the answer is yes, what are the circumstances that must be enlivened for the higher allowance to apply?”

[39] The question that was proposed by Qantas appeared to limit the scope of the determination of any entitlement to the higher 17.5% early morning shift B payment to employees in the SLM workgroup. The position advanced by Qantas clearly asserted that the higher 17.5% early morning shift B allowance was applicable only to work undertaken at the International terminal, and as a result of the restructure that established the SLM, there were no longer any employees of any workgroup who had an entitlement to the higher allowance.

[40] Consequently, if the position as advanced by Qantas was correct, there was no discernible reason to provide any limitation to the scope of the determination to an examination of just the SLM workgroup. Further, as the Alliance Unions identified, the limitation of any determination to the SLM workgroup would leave the question of any entitlement to the higher allowance for the AESS workgroup unanswered.

[41] Despite the slightly different wording of the respective questions proposed for determination, the task for the Commission has involved a reasonably straightforward contested construction determination. Any determination of a contested construction question should appropriately attract, with necessary modification, the application of the principles relevant to the task of construing the terms of an enterprise agreement. Those principles are conveniently set out at paragraph [114] of the Full Bench Decision in AMWU v Berri  2 (the Berri principles) and are in the following terms:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

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

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

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

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

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

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform 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.”

Plain and Ordinary Meaning Which a Reasonable Person Would Understand

[42] Consideration of the contested construction for subclause 25.4.7(a) of EA10 has involved the application of the Berri principles and therefore, the approach commences with a consideration of the ordinary meaning of the relevant words, involving what is primarily a text-based analysis. In order to undertake the approach contemplated by the Berri principles involving an initial analysis of the ordinary meaning to be given to the relevant text, it is helpful to again reproduce subclause 25.4.7(a) of EA10, and then, having guarded against any potential rewriting of the terms to achieve what might be regarded as a fair and just outcome, identification is made of any objectively determined common intention of the Parties. This approach is assisted by examination of the key operative words “at Mascot” contained within subclause 25.4.7(a) of EA10, and when the detailed examination of the text is considered in context, any objective common intention can be properly discerned.

[43] To assist with this analysis, it is helpful to repeat the text of subclause 25.4.7(a) of EA10, which is in the following terms:

“25.4.7 Shift work between midnight Sunday and midnight Friday

25.4.7(a) Early morning shifts

“Early Morning Shift A - Employees must be paid ordinary rates plus 22.5% for all shifts which commence between midnight and no later than 0359.

Early Morning Shift B” - Employees must be paid ordinary rates plus 15% for all shifts which commence at 0400 and no later than 0559. Provided that at Mascot, for an early morning shift that commences no later than 0559 the allowance shall be 17.5%.”.”

[44] The words “at Mascot” are the critical text under examination. The word “Mascot” appearing in subclause 25.4.7(a) is the only occasion that the word is used in EA10. Mascot is of course the name of the suburb in which the Sydney (Kingsford Smith) airport is located, and the Sydney airport comprises international and domestic terminals. The use of the word “Mascot” should properly be considered in the context of the geographical scope of EA10. Clause 6.1.3 excludes Brisbane from any application of the EA10. Other than this exclusion, EA10 has geographical application throughout Australia. Consequently, the first unambiguous construction for the words “at Mascot” appearing in subclause 25.4.7(a) confines its operations to activities at the Sydney (Mascot) airport as opposed to any other Australian airport.

[45] Although the word “Mascot” is not used anywhere else in EA10, the word “Sydney” appears in four instances. The word “Sydney” appears in; subclause 17.9.6(b) which deals with redeployment; clause 45.1 which deals with rosters for the dedicated A380 team; and it appears twice in clause 6A of appendix A which deals with team-based work. A consideration of the use of the word “Mascot” in the broader context of the terminology used throughout EA10, has not provided any identifiable basis for providing anything other than the ordinary, plain meaning for the word “Mascot”. In this context, there is no identifiable basis to establish a restricted meaning for the word “Mascot” to connote application only at the International terminal. A contextual examination provides for a practical interchangeability of the words “Mascot” and “Sydney” such that the purpose of the use of these words is to delineate an activity occurring at the Sydney (aka Mascot) airport as opposed to any other Australian airport.

[46] An initial contextual examination has provided for a plain and unambiguous meaning to be given to the words “at Mascot” appearing in subclause 25.4.7(a) of EA10. The absence of ambiguity is supported by evidence of surrounding circumstances. It is particularly significant to compare and contrast what might be described as the counterpart provisions found in the LAME EA10 document which at subclause 24.4.1 stated:

“Early morning shifts ‘B’ 15% more than the ordinary rates for such shifts. Provided that at Mascot for an early morning shift that commences before 0600 such allowance shall be 17-1/2% (International only)”

[47] The inclusion of the words “International only” in the LAME EA10 provides for a limitation of the higher 17.5% early morning shift B allowance. There was no evidence provided as to how the limitation arising from the words “International only” in the LAME EA10 had been applied. Presumably, prior to the establishment of the SLM, the limitation operated for Licensed Aircraft Maintenance Engineers (LAMEs) such that only those LAMEs actually working at the International terminal in the SIO workgroup and those LAMEs working in the AESS workgroup received the higher shift allowance. Importantly, the inclusion of the words “International only” supports that the preceding words “at Mascot” required additional words to permit any restriction or limitation.

[48] In these circumstances, Qantas had consciously established words which provide a limitation on the payment of the higher 17.5% early morning shift B allowance in respect to LAMEs and it had presumably applied that limitation over many years and during the life of various enterprise agreements. During the time that the “International only” limitation had operated for LAMEs, Qantas had engaged in a number of rounds of enterprise bargaining which involved the making of EA10 and its predecessor instruments. Qantas has a highly skilled, well-resourced human resources management team which is renowned for developing and implementing innovative and sophisticated employment practices which extend to engagement in multifaceted enterprise bargaining processes. It is almost inconceivable that Qantas human resources management professionals would not have been aware of the absence of the “International only” limitation in the terms of subclause 25.4.7(a) of EA10 and its predecessor instruments.

[49] However, there was no evidence that Qantas attempted to negotiate the inclusion of an “International only” limitation in EA10 or any of its predecessor instruments. The decision of Qantas to apply the terms of subclause 25.4.7(a) as if it included the “International only” limitation represents a fundamental contradiction to what any reasonable person would identify as the objective common intention derived from the plain and ordinary meaning of the words “at Mascot” particularly in the absence of any attempt to include the “International only” limitation in EA10.

[50] Although there is no basis to provide for any ambiguity such that the words “at Mascot” appearing in subclause 25.4.7(a) of EA10 should be given other than their ordinary and plain meaning, for abundant caution, the evidence regarding the historical basis upon which ambiguity or uncertainty was said to arise has been further considered.

Evidence of Historical Foundation

[51] An analysis of the detailed evidence of the history of the development of the higher 17.5% early morning shift B allowance which is now reflected in the terminology found in subclause 25.4.7(a) of EA10, has not produced a clear reason for the initial establishment of the higher payment. However, the historical analysis has established that the higher early morning shift B allowance was confined to the international operations conducted at Mascot airport.

[52] The confined origins of the higher payment were in this instance, asserted by Qantas to relate to the geographical location at which the employment was performed, specifically, the International terminal. However, the evidence has not supported the proposition that the higher allowance was founded upon the geographical factor of engagement at the International terminal, but instead it was linked to engagement in work that met three pre-requisites. The evidence strongly supports that the relevant pre-requisites for the higher early morning shift B allowance were, (a) a start time between 4:00 am and 5:59 am, (b) engagement in work that involved maintenance on international as opposed to domestic aircraft, and (c) the work was undertaken at various locations at the Mascot (Sydney) airport.

[53] The practical position that had been applied by Qantas did not support its assertion that the higher early morning shift B allowance required satisfaction of the geographical factor of the performance of work at the International terminal. Qantas had historically paid the higher early morning shift B allowance to the SIO workgroup, which was located at the International terminal, and it had, for a considerable period, also paid the higher allowance to the AESS workgroup which was not located at the International terminal. There appeared to be little, if any, early morning shift work required for other workgroups such as SIM, MSS and SDO. The common distinguishing factor for both the SIO and AESS workgroups was that they were required to perform early morning shift B work on passenger and freight aircraft that operated on international routes. The AESS workgroup performed and continues to perform, maintenance on aircraft that operate on both international and domestic routes and this mix of work on both international and domestic aircraft now applies to the SLM workgroup.

[54] Consequently, even if the historical foundations of the higher early morning shift B allowance were considered to provide basis to give the words “at Mascot” a meaning other than their plain and ordinary connotation, such meaning could not provide for a geographical application or qualification requiring performance of work at the International terminal. Instead, if an alternative interpretation could be provided, the only qualification would be a requirement that the work performed included either, exclusively maintenance on aircraft that operated on an international route (as in the case of the SIO workgroup at the International terminal), or some mix of maintenance on both international and domestic aircraft (as in the case of the AESS workgroup at the building North from the hangars adjacent to the Domestic terminal).

[55] The evidence has not supported that the foundational basis for the higher 17.5% early morning shift B allowance was the geographical location of the International terminal, but instead, the allowance was confined to Mascot airport and connected to work performed on international aircraft, and this has subsequently extended to include a mix of work on both international and domestic aircraft. The key foundational element for the higher payment was that work was performed either exclusively or in part, on international aircraft, something that will apply to, inter alia, the SLM. Therefore, even if the plain and ordinary meaning for the words “at Mascot” was to be supplanted by a restricted meaning arising by virtue of the historical origins of the higher payment, the restriction could have only operated for individuals who did not perform any work on aircraft that operated on an international route.

[56] Finally, in respect to the application of other aspects of the Berri principles, the construction that has emerged from the identification of the objective common intention of the Parties does not lead to an interpretation made by way of an overly technical approach. Indeed, the outcome could be described as an approach that involved clear identification of a common sense industrial purpose established upon the plain and ordinary meaning that would be objectively understood by reading the contested terminology. Further, the other aspects identified in the Berri principles have, to the extent that they are applicable, provided further support for the contested construction question to be resolved in accordance with the objective common intention that has been identified in respect to the construction provided for subclause 25.4.7(a) of EA10.

Conclusion

[57] In this case, the Commission has been required to determine a contested construction question regarding the terms contained in subclause 25.4.7(a) of EA10. Specifically, the Parties have recognised that the primary question for determination was whether the words “at Mascot” should be interpreted to restrict the operation of the higher payment prescribed by the subclause to work performed at the International terminal at Mascot airport.

[58] In respect to this primary question, having regard for all of the evidence that was presented, and by application of the principles relevant to the task of construing contested terms such as those under examination in this instance, the Commission has determined that the terms “at Mascot” appearing in subclause 25.4.7(a) of EA10 should be given their plain and ordinary meaning. Therefore the higher 17.5% early morning shift B allowance is not confined to work performed at the International terminal at Mascot. It follows that the plain and ordinary meaning of the words “at Mascot” establishes that all employees covered by EA10 who perform an early morning shift B at Mascot airport from midnight Sunday to midnight Friday, are entitled to a 17.5% shift allowance pursuant to subclause 25.4.7(a) of EA10.

[59] The determination of the contested construction question has resulted from an analysis that identified that the contested terminology should be given its plain and ordinary meaning. The objective common intention of subclause 25.4.7(a) of EA10 has been established as there has been no identified basis to depart from an interpretation 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. In any event, if some restrictive construction could be given to the terms “at Mascot” because of the historical foundation of those terms, such restriction would not provide for the geographical restriction to the International terminal as was proposed by Qantas.

[60] Consequently, the dispute has been determined in accordance with the position advanced on behalf of the Alliance Unions and contrary to the case that was promulgated by Qantas. Therefore, the application is granted to the extent that the first question for determination proposed by the Alliance Unions is answered in the affirmative.

[61] In the event that the Parties require Orders to reflect this determination any request for such Orders should be made within 21 days from the date of this Decision and any such request should include draft proposed Orders.

COMMISSIONER

Appearances:

Mr S Crawford appeared for the Australian Workers' Union.

Mr J Martin appeared for the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union.

Mr M Murphy appeared for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Mr R Warren, Counsel instructed by Ashurst Australiaappeared for the employer.

Hearing details:

2021.

Sydney:

September, 7 (video hearing).

Printed by authority of the Commonwealth Government Printer

<PR734744>

 1   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005, Ross P, Gooley DP and Hunt C.

 2 Ibid @ para [114].