Transport Workers' Union of Australia v Qantas Airways Limited

[2014] FWC 8362

[2014] FWC 8362

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Qantas Airways Limited
(C2014/6659)

VICE PRESIDENT WATSON MELBOURNE, 28 NOVEMBER 2014

Dispute concerning cashing out of annual leave - Provisions of workplace determination - Fair Work Act 2009, ss. 739, 92, 93, 279.

[1] This decision is an amended version of a decision given in transcript on 18 November 2014 in relation to an application to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act) made by the Transport Workers’ Union of Australia. The application is made in relation to the provisions of the Qantas Airways Limited and QCatering Limited - Transport Workers Workplace Determination 2012 (the workplace determination).

[2] The dispute comes to the Commission by way of the dispute settlement procedure - clause 12 of the workplace determination. That clause requires the Commission, after giving the parties an opportunity to be heard, to do all things necessary for the just resolution of the dispute. Under clause 12.8, any determination must be consistent with applicable law.

[3] The particular dispute in this matter involves the interpretation of clause 31 of the workplace determination. As it is accepted by the parties, the resolution of the dispute involves the interpretation of the clause to determine its true and proper meaning. The parties have accepted that the particular dispute involves the question of whether Qantas is bound to cash out annual leave at the election of an employee or, put another way, whether Qantas has the right to decline such a request on whatever grounds and in particular as the context revels by application of its policy in relation to the cashing out of annual leave.

[4] The context of clause 31 of the workplace agreement includes ss. 92 and 93 of the Fair Work Act 2009 (the Act). That context is important because s. 92 precludes the cashing out of annual leave except in accordance with cashing out terms included in an award or enterprise agreement, and for relevant purposes and by virtue of s. 279 of the Act, the workplace determination. Those terms are required to be included in such instruments by virtue of s. 93. Importantly s. 93(2)(b) contains a provision which is worded in very similar terms to the disputed clause of the workplace determination, clause 31.10.1.

[5] There are relevant facts and circumstances underpinning this dispute and its origins before coming to the Commission for determination. It is clear on that evidence and I find that Qantas has a policy regarding the cashing out of annual leave. That policy is communicated to its employees via the intranet. It allows cashing out in certain circumstances. It confines the availability of cashing out to be in conjunction with the taking of an equivalent or greater amount of leave. The evidence establishes that Qantas provides its consent if a request is consistent with its policy. If the request is not consistent with its policy, it does not consent and denies a request for the cashing out of leave.

[6] As I have said, the resolution of the dispute essentially involves determining the meaning of the relevant clause of the workplace determination. There is no dispute in this matter as to the approach to the interpretation of enterprise agreements or workplace determinations which are also to be construed in accordance with similar principles. Those principles include the need for the construction task to begin with the ordinary meaning of the words having regard to their context and purpose. Ordinary or well understood words should generally be accorded their ordinary or usual meaning. The meaning of the provision is to be determined with regard to what a reasonable person would have understood it to mean and this usually requires consideration not only of the text, but also the surrounding circumstances known to the parties. It is not the role of a court or tribunal to give some broad interpretation or view as to what would be fair or just regardless of what has been written in the industrial instrument.

[7] I apply that general approach to the clause in question. It appears to me that the key provision is clause 31.10.1. It provides for annual leave to be cashed out subject to a proviso. In my view, the key task in resolving the dispute is to determine what that proviso actually requires. As I say that involves looking at the words in that clause and identifying the particular elements that form part of that proviso.

[8] In my view, there are three elements of the proviso. First, there must be agreement of the employee. Secondly, there must be agreement of the employer. Thirdly, the agreement must be made by way of a separate agreement in writing. Unless all three of those elements are present then, in my view, the proviso does not operate. If general agreement exists in some way, that would not satisfy the requirement of the clause because there needs to be a separate agreement in writing. If the employee does not agree to the cashing out then the proviso would not be satisfied. Equally if the employer does not agree to the cashing out then the proviso would not be satisfied. In my view, that is the plain meaning of the clause and it is not affected by other provisions of the clause. Clause 31.10.1 is not to be read down by the use of the word, “election,” in sub clause 3 which is essentially a clause relating to the amount of payment to be made in the case of cashing out.

[9] For those reasons and based on what I consider to be the ordinary meaning of the words of the clause, I consider that this dispute should be determined by answering the question, as follows: Is Qantas bound to cash out annual leave at the election of the employee? The question should be answered in the negative. Qantas has the right to decline a request.

VICE PRESIDENT WATSON

Appearances:

Mr A. Guy for the Transport Workers’ Union.

Mr S. Woodbury for Qantas Airways Limited.

Hearing details:

2014.

Sydney.

18 November.

Final written submissions:

The Transport Workers’ Union on 4 November 2014.

Qantas Airways Limited on 13 November 2014.

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