Transport Workers' Union of Australia v Qantas Airways Limited & QF Cabin Crew Australia Pty Ltd and Flight Attendants' Association of Australia

[2015] FWC 1839

[2015] FWC 1839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Qantas Airways Limited & QF Cabin Crew Australia Pty Ltd

And

Flight Attendants’ Association of Australia

(C2014/5196)

COMMISSIONER JOHNS MELBOURNE, 17 MARCH 2015

Alleged dispute concerning decision to reduce the cash allowance paid to cabin crew while on operating flight duty paid to them in lieu of meals under the Flight Attendants’ Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012.

[1] From 1 July 2014 the Respondents made a decision to reduce, by 15%, the cash allowance paid to cabin crew while on operating flight duty paid to them in lieu of the Respondent itself providing meals (Allowance Cut). This decision is about whether the Allowance Cut accords with how the Flight Attendants’ Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012 (EBA9) operates.
[2] The application was lodged by the Transport Workers’ Union of Australia (TWU). Although the TWU is not otherwise mentioned in EBA9 nor named as a party to the agreement, EBA9 covers the TWU. This is because the Fair Work Commission (Commission) decided 1 on 13 June 2013 that:

a) the TWU, having given notice to the Commission that it wanted EBA9 to cover it and;
b) being satisfied that the TWU was a bargaining representatives for EBA9,

pursuant to subsection 201(2) of the Fair Work Act 2009 (FW Act), EBA9 could cover the TWU.
[3] The Respondents are Qantas Airways Limited and QF Cabin Crew Australia Pty Limited (Respondents).
[4] The Flight Attendants’ Association of Australia (FAAA) was given permission to intervene in the proceeding. The FAAA is also covered by EBA9 for the same reasons that the TWU are. It is not technically correct to say that the FAAA are a party to EBA9. Enterprise agreements made under the FW Act are made between an employer and its employees. However, in contrast to the TWU, EBA9 is expressly said to bind the FAAA. Elsewhere in EBA9 there are references to “the Association”. In clause 4 of EBA9 “Association” is a defined term. It means “the Flight Attendants’ Association of Australia, International Division.”
[5] The dispute arises out of the operation of clauses 8.2 and 8.3 of the Agreement; they deal with meals and consultation respectively as follows:

8.2 Meals
8.2.1 Employees on operating flight duty, including transits, will be provided with crew meals of an agreed standard. Employees who are deadheading will be provided with passenger meals appropriate to the class they are seated in.
8.2.2 Except as provided in subclause 8.2.1 above, employees away from home base in slip ports will be provided with first class meals.
8.2.3 The Company may pay the applicable agreed allowance in lieu of the provision of a meal.
8.2.4 The formula for calculating meal allowances outlined in subclause 8.2.7 below will not be departed from, except through consultation with the Association.
8.2.5 Meal allowances will be discussed jointly with the Association in October each year in accordance with subclause 8.2.7 and adjusted in November each year.
8.2.6 Allowances will be fixed in accordance with the actual menu costs at the place of accommodation as per the formula in subclause 8.2.7.
8.2.7 Items used in assessing published menu costs of meals:
Breakfast
• Fruit juice (medium priced)
• Cereal
• Two eggs and bacon
• Toast, butter and jam
• Tea or Coffee
• Compulsory service charge and Government Tax
Lunch
• Soup (medium priced)
• Main course - including such meats as lamb, veal, pork, chicken, fish and three vegetables or most types of salad
• Dessert - medium prices such as apple pie, peach melba or fruit salad
• Tea or Coffee
• Compulsory service charge and Government Tax
Dinner
• Soup (medium priced)
• Main course - including medium priced steak and three vegetables (or as provided)
• Dessert - medium priced such as apple pie, peach melba or fruit salad
• Tea or Coffee
• Compulsory service charge or Government Tax
Snacks
• Coffee or Tea
• Toasted sandwiches; or
• Club Sandwich or Hamburger providing they do not constitute a main course item
• Compulsory service charge and Government Tax

....

8.2.9 Where a hotel reduces the menu costs which formed the original basis for the fixation of the allowances any such reduction will only occur at the next review.

8.2.10 If a change of hotels occur that indicate a decrease in allowances the existing allowances will be held until the next review which indicates an upward movement. Notwithstanding the foregoing the meal components of a daily allowance may be adjusted provided that there is no overall reduction in the total daily allowances. Any such reductions are to be in accordance with subclause 8.2.7.

8.2.11 Where it can be shown that the menu prices for a particular meal at any time during the period of 12 months increased by a total of 15% (cumulative) or more the allowance will be immediately reviewed and if necessary adjusted as soon as practicable after the time of the increase in accordance with subclause 8.2.7.

8.2.12 In this clause standard includes a reference to quality and quantity.

8.3 Consultation

Following consultation with the Association, reasonable special arrangements for meals and accommodation may be implemented to meet changing operational and business needs.

(emphasis added)

The hearing

[6] The application was listed for hearing on 17 November 2014.
[7] The TWU was represented by Bill Baarini, General Counsel for the TWU who called:

a) Jason Smith, a Flight Attendant employed by Qantas Cabin Crew Australia Pty Ltd; and

b) Terry O’Toole, a cabin crew member employed by Qantas Airways Ltd,

to each give evidence.

[8] The Respondents was represented (for the avoidance of doubt, with permission, pursuant to section 596(2)(a) of the FW Act, by Helen McKenzie of Ashurst Australia. Ms McKenzie called Ian Stuart, Head of One Service Team at Qantas Airways, to give evidence.
[9] The FAAA was represented (with permission pursuant to section 596(2)(a) of the FW Act) by Jim Nolan of counsel. The FAAA did not lead any evidence.

Further submissions

[10] In October 2014 a Full Bench of the Commission heard an appeal in The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited (Golden Cockerel). 2 In summary the appeal concerned the principles relevant to the interpretation of an agreement. Consequently, a decision in this matter was held over pending the handing down of the decision in Golden Cockerel; that occurred on 27 November 2014. In the interests of ensuring that the parties were afforded procedural fairness, the Commission then invited the parties to make further submissions concerning the application of Golden Cockerel. All parties filed further supplementary submissions on 11 December 2014. The Respondents then filed a reply submission on 18 December 2014.

Background

[11] The following matters were either common ground between the parties or not otherwise contested:

a) Flight Attendants employed by the Respondents receive a meal allowance when on operating flight duty (including when in transit). The allowance is paid to flight attendants in local currency at the time of check in. 3

b) Meal allowances are set having regard to a formula set out in EBA9.

c) The cost of the meal allowance is a significant cost to the Respondents in the vicinity of $28 million in FY2013-14. 4

d) On 6 December 2013 the rating agency Standards & Poors downgraded Qantas’ credit rating. 5

e) On 9 January 2014 the Moodys Investor Service downgraded Qantas credit rating. 6

f) On 27 February 2014, an announcement was made by Qantas to the Australian Stock Exchange regarding a $2 billion cost reduction program to be implemented.

g) Most if not all hotels used by the Respondents offer discounts to crew on meals purchased in the hotel. At some hotels the discount is 35% off the published menu price. 7

h) Historically, hotel discounts have not been taken into account when setting meal allowances. The consequence is that if a flight attendant eats in the hotel, the allowance they received (calculated having regard to the formula in EBA9 and without any discounting provided for) exceeds the actual cost of the meal paid by the flight attendant.
i) Not all flight attendants eat in the hotel.
j) The Respondents identified meal allowances as providing an opportunity to reduce costs. Several options were identified as follows:

i. the partial replacement of cash allowances with the provision of meals and/or room credits; or

ii. a percentage reduction in meal allowances to take into account the average Qantas-specific discount applied at hotel restaurants. 8

k) On 14 March 2014, the FAAA issued an update to all Long Haul Cabin Crew to notify that they had met with Senior Cabin Crew Managers and Senior Qantas IR representatives on 13 March 2014 where they received a detailed briefing about the repercussions relevant to cabin crew following from the Qantas half-year financial results announcement on 27 February 2014. The correspondence noted that the Company presented a range of cost savings measures that it intended to pursue in relation to cabin crew, which included:

• Cabin crew agreeing to meal allowance reductions based on hotel discounts. If agreement is not possible the Company indicated it would introduce breakfast meal vouchers.
• The Company indicated that it is looking at removing taxi transport and introducing train transport between home addresses and the relevant international terminal. If a person lives in an area where there is no train transport, then, it was said, the cabin crew member would be able to use a cab to the nearest train station and then catch a train to the international terminal.
• The Company indicated that it would be actively sourcing less expensive hotels. 9

 l)  On 14 May 2014, the TWU wrote to Qantas with regard to the QAL and QCCA Flight Attendants meetings. The correspondence noted that the TWU represents QCCA and QAL flights attendants employed by the Qantas Group. The correspondence raised a concern that the Company was meeting with the FAAA without extending an invitation to the TWU and its delegates. The TWU asserted that they were a party to EBA9 and are to be consulted over all matters pertaining to the agreement. The TWU requested to participate in regular meetings with the company as agreed in EBA9. 10

 m) On 27 May 2014, Qantas wrote to the TWU. The purpose of the correspondence was to seek the TWU’s views in relation to the Allowance Cut.11 

 n) On 30 May 2014, following a meeting that had been held between the parties, Qantas provided the TWU with further detail on the proposed Allowance Cut.12

o) On 4 June 2014, the FAAA issued an update to all QAL and QCCA Cabin Crew updating them on the proposed Allowance Cut. The FAAA issued the update to “ensure members have accurate and complete information before each of you are asked to make an informed decision in the upcoming FAAA ballot on this matter.” 13 In summary, the newsletter outlined the relevant clauses of EBA9, that the FAAA’s industrial and legal advice on the matter advise it would most probably be unsuccessful if the matter were determined by the Commission, and that it would shortly announce a ballot on the issue. 14

p) On 5 June 2014, the Qantas ‘One Service Team’ issued a Meal Allowance FAQ to Qantas Airlines and QF Cabin Crew. In summary, Qantas noted that meal allowances were a sensitive topic and that prior to implementing the Allowance Cut they had discussed alternatives with both the FAAA and TWU. 15 The FAQ provided information on how the proposed meal allowance would operate.

q) On 10 June 2014, the FAAA issued another update to all QAL and QCCA Cabin Crew updating them on the Allowance Cut. In summary, the update noted that its members were going to be given the opportunity to consider an alternative to the Company plan, that it understood that its members were unhappy with the proposal, but to take into account the legal and industrial advice it had received when casting a vote in the ballot. 16

r) On 11 June 2014, the FAAA issued the details of the FAAA ballot on the Allowance Cut to all QAL and QCCA Cabin Crew. In summary, the details were that the ballot would be done online and that it would be open from 9am Thursday 12 June 2014 till 5pm Saturday 21 June 2014. The notice noted that there would be two ballot alternatives, being:

The First Alternative Is:

I agree to a reduction to cash meal allowances by 15% and, as a result, I understand that the company will continue to pay meal allowances in cash to crew.

The Second Alternative Is:

I disagree to a reduction to cash meal allowances by 15% and, as a result, I understand that the company will introduce hotel meals or room credits for breakfast and lunch. I want the FAAA to challenge any move by the company to remove payment of cash meal allowances in the Fair Work Commission and I understand that a decision by the Fair Work Commission is final.  17

 s)  On 13 June 2014, the TWU notified Qantas that TWU members had rejected the Allowance Cut and introduction of meal vouchers or room credits instead of a cash allowance being paid. The TWU argued that the introduction of the Allowance Cut or the provision of meal vouchers or room credits would be a variation to the terms of EBA9. The TWU requested Qantas to withdraw its proposed changes and noted that a failure to do so would result in an application being lodged at the Fair Work Commission. 18

 t) On 19 June 2014, Qantas responded to TWU’s correspondence dated 13 June 2014. Referring to the TWU’s assertion that the proposed changes constituted a variation of the terms of EB9, Qantas argued that there was no grounds for such an assertion.19

 u) On 22 June 2014, the results of the FAAA ballot were issued. In summary, the results were that of the QAL and QCCA Cabin Crew that voted, 60.6% voted for the first alternative, while 39.4% voted for the second alternative. The notice indicated that the Company had been informed of the results.20

 v) On 25 June 2014, the Qantas ‘One Service Team’ issued an update on the Allowance Cut. The update noted that it received information that there is a preference for a 15% reduction in the allowance, rather than the provision of room credits or meals. The update outlined that as part of this arrangement Qantas and QCCA have agreed that: 

• For as long as the 15% reduction is applied Qantas and QCCA will continue to pay cash allowances, and will not implement room credits or provide meals in hotels;
• The normal EBA process for annual review of cash allowances will continue.
• However, for as long as the 15% reduction applies the meal allowance rate as at the date of this Agreement will be the lowest rate to which the 15% reduction will apply.  21

w) Also on 25 June 2014, the TWU responded to Qantas correspondence dated 19 June 2014. The TWU reiterated why it considered the proposed Allowance Cut constituted a variation to the terms of EBA9. Further, the TWU requested that:

“Can you confirm by the close of business Friday 27 June 2014 that Qantas International has made a decision to reduce cash allowances by 15% from 1 July? If so, the Union will be left with no other option but to lodge proceedings in the Fair Work Commission. The TWU and its members have not been properly consulted over this matter and contrary to One Service Team Update TWU members have not shown a preference for a 15% reduction.”  22
 x)  On 27 June 2014, Qantas provided a response to the TWU’s correspondence dated 25 June 2014. In summary, Qantas again refuted the TWU’s claim that the proposed changes constituted a variation to the terms of EBA9 and that it would introduce the proposed changes from 1 July 2015. 23

[12] What is apparent from the above chronology is that:

a) The Respondents consulted more with the FAAA in respect of the options identified to reduce expenses. 24
b) Exchanges of correspondence and at least one telephone call and one meeting occurred between the Respondents and the TWU. 25
c) The Respondents came to understand that flight attendants had a strong preference for continuing to receive a meal allowance as opposed to being provided with meals or meal credits. 26
d) The Respondents and the FAAA reached agreement that the meal allowances would be reduced by 15% 27.
e) The change took effect from 1 July 2014.

Issue in dispute

[13] During the course of the hearing on 17 November 2014 the parties were able to narrow the issues in dispute between them. They then agreed 28 that the task for the Commission was to answer the following questions:

a) Can clause 8.2 be used to reduce the meal allowance by 15%?

b) Does either clause 8.2 or 8.3, require consultation with:

i. employees; and/or

ii. the TWU?

iii. Is the reduction of the meal allowance by 15% a “reasonable special arrangement” under clause 8.3?

(Agreed Questions)

[14] Agreement on the Agreed Questions ended the disagreement between the parties:

a) concerning the Commission’s jurisdiction in the matter; and
b) about whether, what the TWU was in fact inviting the Commission to do was the impermissible exercise some type of judicial power as opposed to arbitral power.

Evidence

[15] In this decision the Commission does not seek to set out in detail all of the evidence presented in the proceedings. In brief terms, the evidence was to the following effect.

Applicant

[16] Mr Smith filed a witness statement 29 and gave evidence at the hearing. He is a member of the TWU. Mr Smith’s evidence was to the effect that:

a) He is employed under EBA9;  30

b) The TWU opposes the Allowance Cut and believes it to be a breach of EBA9;  31

c) Only 28.4% of employees covered by EBA9 voted in favour of the Allowance Cut;  32

d) The FAAA advised that the poll was for FAAA members only that at no time did the company or the FAAA explain that the outcome of the FAAA poll would dictate the company’s decision regarding the Allowance Cut;  33

e) The company did not consult with the TWU in the detailed way it initiated meetings with the FAAA;  34 and

f) He supports the proposed Orders the TWU seeks in this matter.  35

[17] Ms O’Toole filed a witness statement 36 and gave evidence at the hearing. She is a member of the FAAA. Ms O’Toole’s evidence was to the effect that:

a) She is employed under EBA9;  37

b) She supports the proposed Orders the TWU seeks in this matter;  38 and

c) She was concerned as to the manner in which the FAAA informed its members about the Allowance Cut and the explanation and terms of the member’s ballot.  39

Respondent
[18] Mr Stuart Jackson filed a witness statement 40 and gave evidence at the hearing. Mr Stuart Jackson’s evidence was to the effect that:

a) He is employed by Qantas as Head of One Service Team;  41

b) He is responsible for managing industrial relations between Qantas and unions covering employees within the business segments he is responsible for;  42

c) Those employees who are cabin crew are covered by EBA9;  43

d) Cabin crew were provided with updates relating to the Allowance Cut;  44 and

e) It is his view, Qantas and QCCA are not required to engage in consultation with the TWU and FAAA about the proposed Allowance Cut;  45and

f) Despite this view, Qantas did engage in consultation with the TWU and FAAA.  46

Principles of construction of agreements

[19] A recent Full Bench of the Commission has gone to great lengths to set out the relevant principles. In Golden Cockeral, the Full Bench set out the relevant authorities,

General approach
[19] The general approach to the construction of instruments of the kind at issue here is set out in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union 47 (Wanneroo):

“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).” 48

[20] To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited  49 that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:

“. . . the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some interiorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 50

[21] Although their Honours were each dealing with the proper interpretation of an award, the same principles are apt to apply to the interpretation of enterprise agreements 51.  For example, similar observations were made in Amcor Limited v CFMEU52 (Amcor):

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.” 53

[22] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.” 54

Use of extrinsic material as an aide to interpretation
[23] As is often the case in disputes that involve the construction of an enterprise agreement, parties will seek to place reliance of a variety of extrinsic material as an aide to interpreting the provisions of an agreement in issue. The use to which extrinsic material of the surrounding circumstances may be put to assist in the interpretation of an instrument is set out in the judgement of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales  55 (Codelfa). In Codelfa his Honour said:

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.” 56

[24] Although Justice Mason’s reasoning in Codelfa has commonly been applied as meaning that ambiguity in an instrument must first be identified before extrinsic material may be admitted as an aide to interpretation, this has not been universally accepted. So much is apparent from the following discussion of Codelfa by Nicholson J in BP Australia Pty Limited v Nyran Pty Limited: 57

“In Ray Brooks Pty Ltd v NSW Grains Board[2002] NSWSC 1049 Palmer J said the effect of dicta from the majority in Royal Botanic is to leave it to inferior Courts to puzzle out whether the decision in Codelfa is consistent or inconsistent with the contextual approach adopted in West Bromwich. Palmer J had earlier drawn a distinction between `the two competing schools of thought’ as to the point in time at which the Court may look at extrinsic evidence in order to construe a contract. One, `the literal approach’, gives primacy to the words of the document so that the starting point in the task of construction is always the text. The competing approach he described as `the contextual approach’ which holds that the words of a document, being no more than symbols of language, can never be reliably understood in isolation from the context in which the words were used. After analysing the reasoning of Mason J in Codelfa , Palmer J concluded that the approach of Mason J would be in complete sympathy with the contextual approach promoted by Lord Hoffman in West Bromwich. He said at par [59]:

`His Honour is not saying: evidence of surrounding circumstances is admissible only if it first appears that the language of the contract is ambiguous. His Honour is saying: evidence of surrounding circumstances is admissible only for the purpose of explaining ambiguous language in the contract and not for the purpose of changing the meaning of clear words.’

On the issue of the point of time in the exercise of construction at which reference to extrinsic evidence is permissible, Palmer J was of the view that Mason J agreed with Lord Wilberforce’s approach in Prenn v Simmonds [1971] 1 WLR 1381 and in Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The Diana Prosperity) [1976] 1 WLR 51, the pith of which he considered was that the time has passed when contracts are isolated from the matrix of facts in which they were set and interpreted purely on internal linguistic considerations. Palmer J also referred to the trend of authority on the issue in New Zealand which he considered showed an endorsement and application of the approach in West Bromwich: cf. DW McLauchlan, `A contract contradiction’, Victoria University of Wellington Law Review, vol 30, 1999, p 175.
I am unable to agree with Palmer J that Codelfa and the passages in West Bromwich can be viewed as entirely consistent. That is not the way in which I understand the relevant portions of Codelfa have been understood and applied in relation to the issue of whether ambiguity is not to be found until the contract in issue has been considered in the matrix of facts in which it is set. In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74 the New South Wales Court of Appeal accepted that Australia had kept while England had discarded the concept that ambiguity is necessary to be shown before one looks at the surrounding circumstances: per Young CJ in Eq, Meagher JA and Hodgson JA agreeing. Academic writing has regarded Codelfa as falling far short of Lord Wilberforce’s apparent position in Prenn on the issue of admission of surrounding circumstances to determine ambiguity: H King, `The admissibility of extrinsic evidence as an aid to contract interpretation: pushing objectivity to absurd limits’, Corporate and Business Law Journal, vol. 6(2), 1994, p 187. Yet the law on this is arguably not clear-cut given that in Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 185 ALR 152 at 155 at par [11] Gleeson CJ, Gummow and Hayne JJ relied upon the statement by Lord Hoffman in Investors Compensation at 912 that the interpretation of a written contract involves `the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract’ and referring by footnote in that context to the reasons of Mason J in Codelfa at 350-352 and Lord Bingham in Bank Credit at 739. Furthermore, it has been said by one Australian text author that `the practice of the courts is to have regard to surrounding circumstances in the form of the factual matrix in virtually all cases’ on the ground that most English words are susceptible of more than one meaning so that difficulty of interpretation is sufficient for that reference to be made: JW Carter, Carter on Contract, Butterworths looseleaf, 2002 at p 28,096 at 12-050.
In LMI the Court of Appeal accepted, however, that the Codelfa doctrine appeared `to be not only that a court uses the surrounding circumstances to aid its interpretation and to put itself in the armchair of the parties to look to see what each knew when it was making the contract, but also that inferences can be drawn from the surrounding circumstances virtually to add terms’: at par [45] citing Codelfa at 353. Of such circumstances the Court of Appeal stated at [44] that `the approach in the Royal Botanic Gardens case itself shows that there is, in fact, a tendency to glean much more from negotiations as surrounding circumstances in Australia than would be permitted in England.’ It may be that there is good reason for the approach in Codelfa to be re-examined both in terms of the appropriateness of the approach and in the light of developments in other common law jurisdictions on the issue. However, given the unequivocal statement by the majority in the High Court in Royal Botanic and the factors I have just referred to, I consider I should proceed on the basis there is not consistency between Codelfa and West Bromwich.” 58

[25] His Honour then summed up the relevant principles to be distilled from Codelfa as follows:

“At the risk of repeating what is said in Codelfa, it follows that the issues arising in this matter should be approached in the following manner. It is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity. If the contract has a plain meaning, evidence of `surrounding circumstances’ will not be admissible to contradict the language of the contract. If the language of the contract is `ambiguous or susceptible of more than one meaning’ evidence of `surrounding circumstances’ is admissible to assist in the interpretation of the contract. The concept of `surrounding circumstances’ is to be understood to be a reference to `the objective framework of facts’. It will include evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract. It will also include facts so notorious that knowledge of them is to be presumed. Additionally it will include evidence of a matter in common contemplation and constituting a common assumption. From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible.” 59

[26] That the view of Nicholson J about the proper application of Codelfa and its binding of authority was correct seemed to be confirmed by the High Court of Australia in its refusal to grant special leave to appeal in Western Export Services Inc v Jireh International Pty Ltd 60 (Jireh). The decision in Jireh concerned an application for special leave to appeal. In refusing special leave the High Court said:

“The primary judge had referred to what he described as "the summary of principles" in Franklins Pty Ltd v Metcash Trading Ltd. The applicant in this Court refers to that decision and to MBF Investments Pty Ltd v Nolan as authority rejecting the requirement that it is essential to identify ambiguity in the language of the contract before the court may have regard to the surrounding circumstances and object of the transaction. The applicant also refers to statements in England said to be to the same effect, including that by Lord Steyn in R (Westminster City Council) v National Asylum Support Service.
Acceptance of the applicant's submission, clearly would require reconsideration by this Court of what was said in Codelfa Construction Pty Ltd v State Rail Authority of NSW by Mason J, with the concurrence of Stephen J and Wilson J, to be the "true rule" as to the admission of evidence of surrounding circumstances. Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.
The position of Codelfa, as a binding authority, was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council and it should not have been necessary to reiterate the point here.” [Endnotes omitted] 61

[27] However, more recently in Electricity Generation Corporation (trading as Verve Energy) v Woodside Energy Ltd 62 (Woodside) the High Court made the following observation in relation to the construction issue before the Court:

“Both Verve and the Sellers recognised that this Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding ‘of the genesis of the transaction, the background, the context [and] the market in which the parties are operating’. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption ‘that the parties ... intended to produce a commercial result’. A commercial contract is to be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’.” 63 [Endnotes omitted]

[28] A Full Court of the Federal Court of Australia in Stratton Finance Pty Limited v Webb 64 (Stratton) very recently considered whether there was any inconsistency between Jireh and Woodside. In so doing the Full Court said:

“The above reasons are presupposed upon legitimate contextual surrounding circumstances being available for consideration in the process of contractual construction and interpretation before ambiguity is demonstrated from the words of the agreement alone. That proposition was denied as legally permissible by three justices of the High Court in remarks in the disposition of an application for special leave in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; 86 ALJR 1. In those remarks, criticism was made of the reasons in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603, and in particular the reasons at [14]-[18] concerning the lack of need for ambiguity before resort to legitimate surrounding circumstances in the above-mentioned task. The articulated criticism was that the Court in Franklins (and the courts in the other intermediate appellate decisions referred to at [16] in Franklins) had failed to follow the judgment of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337, especially at 352.

As the reasons in Franklins stated, the conclusion that ambiguity need not be discovered before any resort to legitimate surrounding circumstances in the relevant task was drawn only from existing High Court authority: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; 210 CLR 181 at 188 [11]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at 461 [22]; Zhu v Treasurer of the State of New South Wales [2004] HCA 56; 218 CLR 530 at 559 [82]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at 179 [40] and International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3; 234 CLR 151 at 160 [8] and 174 [53]. The Court’s view was reached in the light of the totality of Sir Anthony Mason’s judgment in Codelfa, and considering the clear words of those later binding High Court authorities. After Jireh, and until this year and the publishing by the High Court of reasons in Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 306 ALR 25; 88 ALJR 447, there was a degree of uncertainty as to whether courts (trial courts and intermediate appellate courts) should follow a clearly articulated position expressed by a number of intermediate courts of appeal around the country as to the proper content and significance of binding High Court authorities, or the view of three justices of the High Court in remarks on a special leave application. In 2013, McLure P called it a “heated controversy” in Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66; 298 ALR 666 at [107]; and see also the remarks of Pullin JA in McCourt v Cranston [2012] WASCA 60 at [14]- [22], and the article by the Hon K Lindgren: ‘The ambiguity of “ambiguity” in the construction of contracts’ (2014) 38 Australian Bar Review 153. In the notice of appeal, Stratton relied, in effect, on the essential proposition from Jireh: see para 3. This was confirmed at a directions hearing. Jireh however, played no substantive part of the argument, because the question, by the time of submissions being filed, had been settled by the High Court in Woodside. This most recent statement by French CJ, Hayne, Crennan and Kiefel JJ of the principles of contractual construction and interpretation was as follows at [35]:

Both Verve and the Sellers recognised that this Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding ‘of the genesis of the transaction, the background, the context [and] the market in which the parties are operating’. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties ... intended to produce a commercial result’. A commercial contract is to be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’. (Footnotes omitted)
Recently, in Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184, the New South Wales Court of Appeal (Leeming JA, with whom Ward JA and Emmett JA agreed) expressed the view (at [71]) that [35] of Woodside was inconsistent with Jireh. We agree with that conclusion, and with the reasons in elaboration at [72]-[86], and in particular with the comments concerning Codelfa at [78]-[80].
The resolution of this issue, in the terms of [35] of Woodside, may not, however, resolve all issues as to what are legitimate surrounding circumstances: see, for example, the argument dealt with in QBE Insurance Australia Ltd v Vasic [2010] NSWCA 166 at [20]- [35]; and the comments in Kimberley Securities Ltd v Esber [2008] NSWCA 301 at [4]- [5].” 65

[29] As is apparent from the above, the Full Court in Stratton concluded that Woodside was inconsistent with Jireh at least to the extent that Jirah supports the proposition that ambiguity can be evaluated without regard to the surrounding circumstances and the commercial purpose or objects of the instrument being constructed. In doing so, the Full Court expressly endorsed the explanation of Codelfa by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA. 66 It is worthwhile therefore to set out that explanation below:

“To the extent that what was said in Jireh supports a proposition that ‘ambiguity’ can be evaluated without regard to surrounding circumstances and commercial purpose or objects, it is clear that it is inconsistent with what was said in Woodside at [35]. The judgment confirms that not only will the language used “require consideration” but so too will the surrounding circumstances and the commercial purpose or objects. Although the High Court in Woodside did not expressly identify a divergence of approach, Jireh was notoriously controversial in precisely this respect. In Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66; 298 ALR 666 at [107] McLure P referred to the “heated controversy” created by Jireh; see further Kevin Lindgren’s analysis in ‘The ambiguity of “ambiguity” in the construction of contracts’ (2014) 38 Aust Bar Rev 153 at 161-167. It cannot be that the mandatory words ‘will require consideration’ used by four Justices of the High Court were chosen lightly, or should be ‘understood as being some incautious or inaccurate use of language’: cf Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 at [45].

The general issue is important, such that it may be useful to state the position in some little detail. First, in principle, every legal text requires legal interpretation, in order to ascertain its legal meaning, although there is no real scope for dispute about the interpretation of many legal texts. Professor Wigmore long ago wrote that ‘the process of interpretation, then, though it is commonly simple and often unobserved, is always present, being inherently indispensable’: JH Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (3rd ed 1940, Little Brown & Co, Boston), Vol 9 p 180; see now §2459 Chardourne Revision, 1981. Lord Steyn said, in the first John Lehane Memorial Lecture, that ‘it is a universal truth that words can only be understood in relation to the circumstances in which they are used’: J Steyn, ‘The Intractable Problem of The Interpretation of Legal Texts’ [2003] SydLawRw 1; (2003) 25 Syd L Rev 5 at 5. His Lordship regarded this as a ‘fundamental principle of linguistic jurisprudence and legal logic’. I do not think there is any understatement in that statement. McHugh J made substantially the same point in Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343:
‘Until a word, phrase or sentence is understood in the light of the surrounding circumstances, it is rarely possible to know what it means.’

Lord Hoffmann, in a passage adopted by the joint judgment in Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213 at [20], had said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64] that:

‘No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.’ Secondly, very often, language when considered in its context will have a single, clear meaning. Very often, there is no dispute as to the ordinary grammatical or literal meaning of a sentence, and no dispute that that is the legal meaning. Very often, nothing in the context will come close to displacing the ordinary grammatical meaning of the legal text. ‘But not always’: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]; Taylor v Owners - Strata Plan No 11564 [2014] HCA 9 at [65]. The legal meaning may diverge from its literal or grammatical meaning, especially in the (self-selectingly contestable) cases that reach courts. Words do not have a ‘natural’ meaning that can be determined in isolation. As Lord Hoffmann said in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spigelman CJ, Weinberg AJA and Simpson J agreeing) and Dale v The Queen [2012] VSCA 324 at [73] (Weinberg, Harper and Whelan JJA):
‘[I]n some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts, their meaning will be different but no less natural.’ What is the legal meaning of a promise to sell ‘my Dürer drawing’, if the vendor’s wife owns a Dürer drawing which is on display in their home, and the vendor keeps another secretly in his study? What is the meaning of a gift ‘to my niece Eliza Woodhouse during her life’ in a will, if the testator had no such niece, but a grandniece of that name, and another grandniece, who was illegitimate, who lived with him: cf In re Fish; Ingham v Rayner [1894] 2 Ch 83? What is the meaning of cl 7 of the Wild Dog Destruction Regulation 1999, which provided ‘The Wild Dog Destruction Regulation 1994 is repealed’? Contracts, wills and statutes are very different legal texts, to the process of ascertaining whose legal meaning different rules apply, yet all are based on language, and language is unavoidably contextual. If I may repeat what I wrote of the uncertain meaning of the Wild Dog Destruction Regulation in Resolving Conflicts of Laws (Federation Press 2011), p 13, ‘The meaning of even the seemingly clearest legal text can be unclear, hence the importance of attending to context in the first instance.’ For those reasons, to say that a legal text is “clear” reflects the outcome of that process of interpretation. It means that there is nothing in the context which detracts from the ordinary literal meaning. It cannot mean that context can be put to one side; otherwise the three legal texts mentioned in the previous paragraph would be “clear”. Thirdly, I would not regard anything in the foregoing as inconsistent with the passage in Mason J’s reasons in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 at 352 (which was the focus of Jireh):‘The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.’ There is no inconsistency because whether contractual language has a ‘plain meaning’ is (a) a conclusion and (b) a conclusion which cannot be reached until one has had regard to the context. That accords with what was said by Allsop P in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17]: ‘the phrase used by Mason J in Codelfa Construction (at 352) ‘if the language is ambiguous or susceptible of more than one meaning’ does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances ...’ Mason J was indicating that there are very real limits to the extent to which grammatical meaning can be displaced by contextual considerations. However, in order to determine whether more than one meaning is available, it may be necessary first to turn to the context. Fourthly, what I have called “context” was formerly described as the ‘surrounding circumstances’, and then, influenced by Lord Wilberforce in decisions such as Prenn v Simmonds [1971] 1 WLR 1381 at 1384 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 997, as the ‘matrix of facts’. See Byrnes v Kendle [2011] HCA 26; 243 CLR 253 at [98]- [100] (Heydon and Crennan JJ) and J Carter, The Construction of Commercial Contracts (Hart Publishing, 2013), pp 8-9. Although Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28; [1998] 1 All ER 98 at 114 referred to a ‘fundamental change’ in the approach espoused by Lord Wilberforce, the “modern” contextual approach had nineteenth century precursors, at least in relation to commercial contracts. Without seeking to be exhaustive, the Earl of Selborne had deprecated and rejected the ‘extreme literalism’ in the mercantile contract construed in McGowan v Baine [1891] AC 401 at 403 (contrast the (dissenting) speech of Lord Bramwell, who had required ‘necessity, or [something] approaching to it’ in order to displace the ‘primary and natural meaning of the words’: see at 409). To the same effect was Lord Herschell’s rejection of a process of construction by reference to dictionary meaning, and insistence that contractual language must be ‘construed in a business fashion’ and “interpreted in the way in which business men would interpret them” in Southland Frozen Meat and Produce Export Company Ltd v Nelson Brothers Ltd [1898] AC 442 at 444. The approach adopted by Lords Selborne and Herschell anticipated what was popularised by Lord Wilberforce in the following century. Professor Carter has examined the evolutionary process at pp 17-20 of his book referred to in the previous paragraph. 
Fifthly, the approach endorsed in Woodside avoids the difficulty of identifying what is meant by ‘ambiguity’, itself an ambiguous term, whose perception ‘differs from one judicial eye to the other’: B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 at 234. The various meanings of ‘ambiguity’ in this context are described by M Walton, ‘Where now ambiguity?’ (2011) 35 Aust Bar Rev 176 and D Wong and B Michael, ‘Western Export Services v Jireh International: Ambiguity as the gateway to surrounding circumstances?’ (2012) 86 ALJ 57 at 67-69. Sixthly, the approach to construction of written commercial contracts reflected in Woodside at [35] accords with what had been said in familiar passages in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22] (construction “requires consideration, not only of the text of the documents, but also the surrounding circumstances known to Pacific and BNP, and the purpose and object of the transaction”); Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40] (‘The meaning of the terms ... normally requires consideration not only of the text but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction’); and the endorsement in Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522 at [15] of the proposition that ‘Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure’. It means also that the Australian approach mirrors that adopted in England, New Zealand, Singapore and Hong Kong: Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101; Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5; [2010] 2 NZLR 444; Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] SGCA 27; 3 SLR(R) 1029 (where the Court’s reasons delivered by V K Rajah JA for the Court survey much of the English decisions and academic literature); Fully Profit (Asia) Ltd v Secretary for Justice [2013] HKCFA 40; 6 HKC 374. Seventhly, although evidence of context and purpose expands the scope of the litigation, none of the foregoing should be seen as opening the door to lengthy litigation in commercial causes. As will be seen below, the evidence of ‘surrounding circumstances’ sought to be relied on by Mainteck was lengthy, contested, vague, and divorced - by many months in time, and a markedly different commercial position - from the execution of the Second Consortial Agreement. This makes it quite distinct from evidence which is apt to assist the process of construction. Indeed, I would infer that the primary reason for adducing the evidence was to support Mainteck’s (now abandoned) misrepresentation case, rather than so as to assist in construction. 67

[30] Regard may therefore be had to evidence of the surrounding circumstances before the existence of ambiguity in an agreement is identified as an aide to interpreting the agreement for the purposes of determining whether an ambiguity exists. If thereafter ambiguity is not identified extrinsic material cannot be used to contradict the language of the instrument. If ambiguity is identified the material may be used as contextual material to aide in the interpretation of the instrument. In this context we would make the observation that the law in relation to the interpretation of commercial contracts (Codelfa; Metcash and Stratton) has now aligned with the approach to the construction of awards and enterprise agreements as espoused by Burchett J in Short v FW Hercus Pty Ltd 68 and confirmed by French J, as he then was, in Wanneroo.
Application of the Acts Interpretation Act 1901 to enterprise agreements approved under the Act
[31] Both at first instance and before us the Appellant maintained that the Agreement must be interpreted in accordance with the Acts Interpretation Act 1901 (AI Act). That proposition is made on the basis that an enterprise agreement is an agreement that is made by the Commission pursuant to a power conferred by the Act to make the agreement. 69 To make good the proposition the Appellant at first instance relied on the following passage from the judgement of French J in Wanneroo:

“The interpretation of legislative instruments is dealt with in the Legislative Instruments Act 2003 (Cth). Awards and agreements made under the Act are declared, by s 7(1) of the Legislative Instruments Act, not to be legislative instruments – see Item 18 in the table set out in s 7(1). This leaves such awards and agreements within s 46 of the Acts Interpretation Act 1901 (Cth) which provides, inter alia:

‘(1) If a provision confers on an authority the power to make an instrument that is neither a legislative instrument within the meaning of the Legislative Instruments Act 2003 nor a rule of court, then, unless the contrary intention appears:
(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and
(b) expressions used in any instrument so made have the same meaning as in the enabling legislation; and
(c) any instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the authority.

An award is an instrument made by an authority, in this case the Australian Industrial Relations Commission, and so attracts the application of the Acts Interpretation Act for the purposes of its interpretation.” 70
[32] The decision in Wanneroo does not support the proposition contended by the Appellant. In Wanneroo Justice French was concerned with the construction of an award under the Workplace Relations Act 1996 (WR Act) and not an enterprise agreement made under the Act. Relevantly, the award in question was an instrument that was not a legislative instrument but was an instrument made by the Australian Industrial Relations Commission pursuant to a power under the WR Act to make the instrument. Consequently French J concluded that the award was “an instrument made by an authority, in this case the Australian Industrial Relations Commission, and so attracts the application of the Acts Interpretation Act (AI Act) for the purposes of its interpretation”. 71
[33] The Appellant also relied on a decision in Cape Australia Holdings Pty Ltd v Construction, Forestry, Mining and Energy Union 72 (Cape Australia). In Cape Australia the issue whether the AI Act applied was not in contention and the parties proceeded on the basis that the AI Act applied.73
[34] Similarly in DP World Brisbane Pty Ltd v Maritime Union of Australia 74 a Full Bench of the Commission made obiter observations based on the parties’ acceptance that the AI Act applied to the relevant agreement. The Full bench observed that if the AI Act applied it would allow the consideration of particular extrinsic material, but ultimately proceeded to decide the construction question without regard to the AI Act as no relevant extrinsic material had been identified.75
[35] It follows that the question of whether the AI Act applies to the interpretation of enterprise agreements has not been the subject of a previous Full Bench decision in which the issue has been contested and determined. It is also relevant to observe that the two Full Bench decisions to which we have referred were decided prior to the recent decision of the Full Court of the Federal Court in Toyota Motor Corporation Australia Limited v Marmara 76. We refer to that decision later.
[36] It seems to us that the Act does not confer a power on the Commission to make an enterprise agreement. An enterprise agreement is made in the circumstances described in sections 172 and 182, which are reproduced below;

172 Making an enterprise agreement
Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a)  matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;
(b)  matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;
(c)  deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

(d)  how the agreement will operate.
Note 1:       For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.
Note 2:       An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies the FWC under section 183 that it wants to be covered.

Single-enterprise agreements
(2)  An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a)  with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
(b)  with one or more relevant employee organisations if:
(i)  the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and
(ii)  the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note:          The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).
Multi-enterprise agreements
(3)  Two or more employers that are not all single interest employers may make an enterprise agreement (a multi-enterprise agreement):

(a)  with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
(b)  with one or more relevant employee organisations if:
(i)  the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and
(ii)  the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note:          The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).
Greenfields agreements
(4)  A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.
Single interest employers
(5)  Two or more employers are single interest employers if:

(a) the employers are engaged in a joint venture or common enterprise;
or
(b) the employers are related bodies corporate; or
(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

Requirement that there be at least 2 employees
(6)  An enterprise agreement cannot be made with a single employee.
182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Multi-enterprise agreement that is not a greenfields agreement

(2) If:
(a) a proposed enterprise agreement is a multi-enterprise agreement; and
(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and
(c) those employees have voted on whether or not to approve the agreement; and
(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;
the agreement is made immediately after the end of the voting process referred to in subsection 181(1).
Greenfields agreement
(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

[37] An application to the Commission for the approval of an enterprise agreement must be made within the period specified in section 185(3) or (4) of the Act. The period within which an application is made is reckoned only after the agreement is made. The Commission’s role is in approving, subject to satisfaction of the statutory criteria, the enterprise agreement already made but there is no power conferred on the Commission by the Act to make an enterprise agreement.
[38] Where the statute intends to confer power on Commission to make an instrument it expressly so provides. 77 The power conferred on the Commission by the Act is limited to approval of agreements that have already been made. Although enterprise agreements made under the Act rely for their legal enforceability on the Commission’s approval, this is not the same as the Commission having power to make the enterprise agreement. An enterprise agreement is therefore not an instrument of a kind described in s.46 of the AI Act.
[39] As mentioned earlier this issue was recently considered by a Full Court in Toyota. Relevantly the Full Court said the following:

“Toyota’s final argument on the construction of cl 4 of the Agreement (ie aside from those that were interwoven with its case on the repugnancy point) was based on the provision of the Agreement that made it an objective to attain cost structures similar to those of other members of the Toyota group worldwide. It was contended that, pursuant to ss 46 and 15AA of the Acts Interpretation Act 1901 (Cth) (“the AI Act”), an interpretation of the Agreement which would best achieve that objective is to be preferred to each other interpretation. We do not, however, accept the premise from which this argument proceeds. Section 46 of the AI Act applies where ‘a provision confers on an authority the power to make an instrument’. There is no provision of the FW Act which confers on the Commission the power to make an enterprise agreement. Such an agreement is made by the employer and the relevant employees under ss 172(2) and 182(1). We consider, therefore, that the constructional questions which arise for resolution in this appeal must be addressed without assistance from the AI Act.” 78

[40] It follows that an enterprise agreement approved by the Commission must be interpreted without recourse to the AI Act.
Summary
[41] From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) 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;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:

(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.
10. 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.

[20] The Commission, as presently constituted, adopts the reasoning of the Full Bench in Golden Cockerel and the authorities it refers to.

Submissions

[21] As stated above the parties agreed that the task for the Commission was to answer the following questions:

a) Can clause 8.2 be used to reduce the meal allowance by 15%?

b) Does either clause 8.2 or 8.3, require consultation with:

i. employees; and/or

ii. the TWU?

iii. Is the reduction of the meal allowance by 15% a “reasonable special arrangement” under clause 8.3?

[22] The Final Submissions of the parties were as follows.

Applicant

[23] The Applicant submitted that:

a) Clause 8.2 cannot be used to reduce the meal allowance by 15% on the basis that clause 8.2 provides an entitlement to crew being provided with first class meals when away from home base in slip ports, 79 and in lieu of the provision of a meal the company may pay the applicable meal allowance.80

b) How the applicable agreed allowance is determined by reference to the formula in sub clause 8.2.7, which will not be departed from except through consultation. Therefore, the amount of allowance derived from the formula cannot be departed from even with consultation. The Applicant relies upon the evidence of Mr Jackson, where he conceded that there was no opportunity to bring a 15% reduction under clause 8.2 of EBA9. 81
c) In this case and on the evidence, in particular evidence given by Mr Jackson in cross examination that Qantas did not depart from the formula but in fact used the formula to derive the allowance amount. 82
d) Clause 8.2 and 8.3 require the company to consult with employees and/or the TWU. They submit that it is not sufficient for genuine consultation for Qantas to merely meet with and reach agreement with the Secretary of the FAAA. The Applicant notes that Mr Jackson accepted that he doesn’t need to agree with the FAAA but just to consult. 83 Further, the agreement between Mr Jackson and the Secretary of the FAAA was approximately two pages in length and that Mr Jackson doesn’t know if the document was made public for viewing by the FAAA to its members.84
e) The reduction of the meal allowance by 15% is not a reasonable special arrangement under clause 8.3. The Applicant submits that there was no consultation under clause 8.3, but rather whatever discussion that occurred between Qantas and the FAAA was pursuant to clause 8.2. The Applicant notes the evidence of Mr Jackson where he concedes that there is no acknowledgement of consultation with the FAAA for a reasonable special arrangement under clause 8.3 in the letter marked Exhibit Q-2 85

[24] Following the decision in Golden Cockerel the Applicant further submitted that:

a) The language of EBA9 is ambiguous or susceptible to more than one meaning; 86
b) The Commission should receive and consider evidence given at the hearing as to the prior EBA negotiations which tend to establish objective facts know to all parties that there would be no reduction to the meal allowance and no further claims or negotiations over it; 87
c) The Commission should apply paragraph 74 of the Golden Cockerel decision. 88

Respondents

[25] The Respondents submitted that the Agreed Questions should be answered as follows:

a) Can clause 8.2 be used to reduce the meal allowance by 15%? [Yes]

b) Does either clause 8.2 or 8.3, require consultation with:

iv. employees; and/or [No]

v. the TWU? [No]

c) Is the reduction of the meal allowance by 15% a “reasonable special arrangement” under clause 8.3? [Yes]

[26] The Respondents reach the above conclusions by submitting that:

a) EBA9 gives rise to a primary obligation to provide “first class meals” (clause 8.2.2);
b) an applicable agreed allowance may be paid in lieu of the provision of a meal (clause 8.2.3);
c) ordinary and well understood words in EBA9 should be accorded their ordinary and usual meaning;
d) “agreed allowance” means and allowance “in respect of which agreement has been reached”; 89
e) in determining between whom the agreement needs to be reached regard should be had to context; 90
f) the phrase “agreed allowance” in EBA9 dates back to the 1974 predecessor award; 91
g) EBA9 was negotiated with the FAAA;
h) the Allowance Cut was agreed between the Respondents and the FAAA; 92
i) the fact that the TWU is covered by EBA9 does not have the effect of altering either the content or meaning of any term in EBA9. The references to the “Association” do not include the TWU; 93
j) Nothing in EBA9 requires the Respondents to consult with the TWU; 94
k) The Commission should be satisfied that the Allowance Cut is a reasonable special arrangement having regard to the evidence of Mr Jackson about the financial circumstances that the Respondents found themselves in. 95

[27] Following the decision in Golden Cockerel the Respondent submitted that:

a) The principles distilled by the Full Bench in Golden Cockerel support the Respondents submissions; in particular principles 2, 4, 7, 9 and 10; 96
b) There is no ambiguity in EBA9; 97
c) In determining the proper application of the agreement the Commission should take into account the following:
i. The relevant provisions (sub-clauses 8.2 and 8.3) of EBA 9 have appeared in predecessor agreements and awards, reflecting the long standing, settled and common understanding of the meaning and effect of the provisions;
ii. The Respondents reached agreement with the FAAA on the applicable allowance pursuant to sub-clause 8.2 and, although only obliged to consult, also reached agreement with the FAAA on the implementation of a special arrangement pursuant to sub-clause 8.3.
iii. There is therefore no dispute as to the construction of the relevant provisions as between Respondents and the FAAA.
iv. In particular, there is no dispute that consultation occurred between the Respondents and the FAAA or that agreement was reached between the Respondents and the FAAA as to the appropriate rate of allowance. 98

[28] In their Reply Submissions to the TWU’s submissions in respect of Golden Cockerel, the Respondents submitted that:

a) The right of the Respondents to agree an allowance with the Association and/or to introduce special arrangements does not derive from its status as a 'party' to the agreement. It derives from the express words of the relevant provisions of the agreement. The agreement in its terms, confers a right on the Respondents and, in certain circumstances, the FAAA to consult and/or reach agreement on certain matters. EBA 9 was approved by a valid majority of employees to whom it applied after they had been provided with the agreement and an explanation of its effects.
b) The words "consultation with the Association" are unambiguous and clear. There is no room for any doubt that those who voted to approve the agreement wished the Respondents to consult with the FAAA about certain matters.
c) There is no inherent right for employees to be consulted by the employer in relation to every decision or operational issue that may arise. EBA 9 could have contained provisions giving the Respondents the right to unilaterally vary allowances. Many agreements contain provisions that authorise the employer to make certain decisions unilaterally. The Act does not prohibit such provisions and there is nothing objectionable about such provisions. The Act places very few restrictions on the matters that employers and employees can agree upon and include in enterprise agreements.
d) Section 205(1) of the Act requires an enterprise agreement to include a consultation term requiring the employer to consult employees about major work place change that is likely to have a significant effect or a change to regular roster or ordinary hours of work and also to allow for representation of those employers for the purposes of a consultation. Clause 20 of EBA 9 satisfies this requirement. There is no other legal consultation with either employees or a union about matters generally. 99

Intervener

[29] Other than submitting that “in all the circumstances it is not necessary, and would not serve any practical purpose for the Commission to answer the [Agreed Questions]”, 100 the submissions of the Intervener were in lockstep with those of the Respondents. This is not surprising. Having been involved in a greater level of consultation with the Respondents (than the TWU) and having reached agreement with the Respondents in relation to the Allowance Cut, the FAAA played the part of Qantas’ supporter, barracking from the sidelines. In this regard their intervention was of no assistance to the Commission. Nothing they said added to the defence capably advanced by the Respondents.
[30] Following the decision in Golden Cockerel the Intervener made submissions consistent with those made by the Respondents.

Consideration

[31] It is necessary therefore to apply the Golden Cockerel principles.
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
[32] The AI Act is not to be and has not been applied to the Commission’s interpretation of the Agreement.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
[33] The TWU asserts that EBA9 is “ambiguous and susceptible to more than one meaning”. The Respondents (supported by the FAAA) assert that the phrases used in EBA9 involve no ambiguity.
[34] The evidence put forward by the TWU to maintain its assertion of ambiguity is that of the witnesses it called. It is said they have a different understanding about how the relevant clauses would operate following representations made during the negotiation of EBA9.
[35] Notwithstanding that evidence, it is difficult to accept a submission that any of the phrases:

a) “provided with first class meals”,
b) “the applicable agreed allowance”,
c) “in lieu of the provision of a meal”,
d) “the Association”,
e) “consultation with the Association”, or
f) “reasonable special arrangements”,

have any meaning other than a plain and ordinary one.
[36] To the extent that any of them have a defined meaning in EBA9, only “the Association” falls into that category. It means the FAAA. That is beyond doubt. The fact that TWU is covered by the Agreement does not mean that the definition of “the Association” changes to refer also to the TWU. The operation of clauses 8.2 and 8.3 are not enlarged because the TWU is covered by EBA9. Obligations to consult with the TWU as a representative of an employee under clause 20 would exist, but the language of clauses 8.2 and 8.3 are clear and specific. It is a right reposed in the FAAA.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
[37] As stated above, the evidence put forward by the TWU to maintain its assertion of ambiguity is that of the witnesses it called. It is said they have a different understanding about how the relevant clauses would operate following representations made during the negotiation of EBA9.
[38] The Commission, as presently constituted, has had regard to all the evidence before it. However, it cannot be the case that the understanding of the TWU witnesses can displace the very clear meaning of the words in EBA9. To the extent that they have a different understanding of the relevant clauses, they are incorrect in that understanding.
[39] There is no evidence before the Commission which would have it decide that the surrounding circumstances assist and lead to a conclusion that the relevant clauses in EBA9 dealing with meals and meal allowances are invested with ambiguity.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
[40] Because the Commission has found that the relevant clauses in EBA9 have a plain meaning, evidence of the surrounding circumstances cannot be admitted to contradict the plain language of EBA9.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
[41] Because the Commission has found that the relevant clauses in EBA9 have a plain meaning this principle of Golden Cockerel is not relevant.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

a. 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;
b. notorious facts of which knowledge is to be presumed;
c. evidence of matters in common contemplation and constituting a common assumption.

[42] Because the Commission has found that the relevant clauses in EBA9 have a plain meaning this principle of Golden Cockerel is not relevant.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
[43] Because the Commission has found that the relevant clauses in EBA9 have a plain meaning this principle of Golden Cockerel is not relevant.
8. Context might appear from:

a. the text of the agreement viewed as a whole;
b. the disputed provision’s place and arrangement in the agreement;
c. the legislative context under which the agreement was made and in which it operates.

[44] Because the Commission has found that the relevant clauses in EBA9 have a plain meaning this principle of Golden Cockerel is not relevant.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.
[45] The Commission, as presently constituted, has not had regard to the subjective intentions or expectations of the parties. It is evident from all the surrounding circumstances that the objective of clauses 8.2 and 8.3 was to confer consultation rights on the FAAA.
10. 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.
[46] No rewriting of the Agreement has been undertaken in coming to the decision in this matter. The Commission, as presently constituted, has interpreted the agreement produced by the negotiation parties.

Conclusion

[47] Having considered all that has been submitted in these proceedings and the relevant authorities, for the reasons set out above, the Commission, as presently constituted, has determined that the answers to the Agreed Questions are as follows:

Question	Answer
a) Can clause 8.2 be used to reduce the meal allowance by 15%?	Yes
b) Does clause 8.2 require consultation with employees?	No
c) Does clause 8.2 require consultation with the TWU?	No
d) Does clause 8.3 require consultation with employees?	No
e) Does clause 8.3 require consultation with the TWU?	No
f) Is the reduction of the meal allowance by 15% a “reasonable special arrangement” under clause 8.3?	Yes

COMMISSIONER

Appearances:

Mr B Baarini, General Counsel for the Transport Workers’ Union of Australia

Ms H McKenzie, of Ashurst, for Qantas Airways Limited & QF Cabin Crew Australia Pty Limited

Mr J Nolan, of Counsel for the Flight Attendants’ Association of Australia

Hearing details:

2014

Sydney

November 17.

Final written submissions:

By the Respondent, 18 December 2014

 1   [2013] FWCA 3786.

 2   [2014] FWCFB 7447.

 3   Exhibit Q-1, [13].

 4   Exhibit Q-1, [12].

 5   Exhibit Q-1, [8].

 6   Exhibit Q-1, [9].

 7   Exhibit Q-1, [14].

 8   Exhibit Q-1, [16].

 9   Exhibit TWU-1, Annexure JS 15

 10   Exhibit TWU-1, Annexure JS 8

 11   Exhibit TWU-1, AAnnexure JS 6

 12   Exhibit TWU-1, Annexure JS 5

13 Exhibit TWU-1, Annexure JS 14

 14   Exhibit TWU-1, Annexure JS 14.

 15   Exhibit TWU-1, Annexure JS 13.

 16   Exhibit TWU-1, Annexure JS 12.

 17   Exhibit TWU-1, Annexure JS 11.

 18   Exhbiit TWU-1, Annexure JS 4

 19   Exhibit TWU-1, Annexure JS 3

 20   Exhibit TWU-1, Annexure JS 10.

 21   Exhibit TWU-1, Annexure JS 9

 22   Exhibit TWU-1, Annexure JS 2

 23   Exhibit TWU-1, Annexure JS 1

 24   Exhibit Q-1, [17].

 25   Exhibit Q-1, [26], and Exhibit TWU-1, [18].

 26   Exhibit Q-1, [18].

 27   Exhibit Q-1, [20].

 28   Transcript PN1037 - PN1058.

 29   Exhibit TWU-1.

 30   Exhibit TWU-1, [10]

 31   Exhibit TWU-1, [11](a)

 32   Exhibit TWU-1, [11](g)

 33   Exhibit TWU-1, [11](h)

 34   Exhibit TWU-1, [11](l)

 35   Exhibit TWU-1, [11](n)

 36   Exhibit TWU-2.

 37   Exhibit TWU-2, [4

 38   Exhibit TWU-2, [5](b)

 39   Exhibit TWU-2, [5](c)

 40   Exhibit Q-1.

 41   Exhibit Q-1, [1].

 42   Exhibit Q-1, [3]

 43   Exhibit Q-1, [6]

 44   Exhibit Q-1, [22]-[25]

 45   Exhibit Q-1, [26]

 46   Exhibit Q1, [26](a)-(k)

 47 (2006) 153 IR 426.

 48   Ibid at 438.

 49 (1966) 66 IR 182.

 50   Ibid at 184.

 51   See Swire Cold Storage Pty Ltd v TWU [2008] AIRCFB 397 at [29] and AMWU v Silcar Pty Ltd [2011] FWAFB 2555 at [11].

 52 (2005) 222 CLR 241.

 53   Ibid at 253 per Gummow, Hayne and Heydon JJ.

 54 (2006) 153 IR 426 at 440.

 55 (1982) 149 CLR 337.

 56   Ibid at 352.

 57 [2003] FCA 520.

 58   Ibid at [28]-[31].

 59   Ibid at [32]-[34].

 60 [2011] HCA 45 per Gummow, Heydon and Bell JJ.

 61   Ibid at [2]-[4].

 62 [2014] HCA 7.

 63 Ibid at [35].

 64 [2014] FCAFC 110.

 65   Ibid at [36]-[41].

 66 [2014] NSWCA 184.

 67   Ibid at [71]-[85].

 68 (1993) 40 FCR 511 at 518.

 69 See section 46 of the AI Act.

 70 (2006) 153 IR 426 at 438 [52].

 71   Ibid.

 72   [2012] FWAFB 3994.

 73   [2012] FWAFB 3994 at [10].

 74 (2013) 237 IR 180.

 75   Ibid at 191.

 76 [2014] FCAFC 84.

 77   See for example 157(1)(b) which provides that the Commission may make a modern award, s.243 which provides that the Commission must make a low-paid authorisation in particular circumstances and s.269(1) which provides that the Commission must make a bargaining related workplace determination in particular circumstances.

 78 [2014] FCAFC 84 at [58].

 79   EBA9, Cl.8.2.2

 80   EBA9, Cl. 8.2.3.

 81   Transcript PN704

 82   Transcript PN898.

 83   Transcript PN719

 84   Transcript PN728-732

 85   Transcript PN995

 86   Applicant’s Golden Cockerel Submissions, 11 December 2014, para 2.

 87   Applicant’s Golden Cockerel Submissions, 11 December 2014, para 3.

 88   “[74] That said, we would observe that consultation provisions in agreements create substantive and important rights. The approach to consultation is not mechanical or formulaic. These provisions give employees likely to be affected by a change the opportunity to influence the decision, to modify the outcome or its impact on affected employees. Consultation must be real. It involves more than just advising employees of a change and allowing for questions to be asked...”

 89   Respondents’ Final Submissions, 26 November 2014, para 20.

 90   Respondents’ Final Submissions, 26 November 2014, para 21.

 91   Respondents’ Final Submissions, 26 November 2014, para 23.

 92   Respondents’ Final Submissions, 26 November 2014, para 25.

 93   Respondents’ Final Submissions, 26 November 2014, para 28.

 94   Respondents’ Final Submissions, 26 November 2014, para 30 and 31.

 95   Respondents’ Final Submissions, 26 November 2014, para 35.

 96   Respondents’ Golden Cockerel Submissions, 11 December 2014, paras 2 and 3.

 97   Respondents’ Golden Cockerel Submissions, 11 December 2014, para 4.

 98   Respondents’ Golden Cockerel Submissions, 11 December 2014, para 7.

 99   Respondents Reply Submissions to the TWU’s submissions in respect of Golden Cockerel, 18 December 2014 para 13.

 100   FAAA Final Submissions, para [5.2].

Printed by authority of the Commonwealth Government Printer

<Price code G, PR562107>