[2020] FWC 5530

FAIR WORK COMMISSION

DECISION

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

United Workers' Union
v
KU Children’s Services
(C2020/2356)

COMMISSIONER JOHNS

SYDNEY, 16 OCTOBER 2020

Dispute about any matters arising under an enterprise agreement – KU Children’s Services - Teachers’ Enterprise Agreement 2019 – recognition of previous service – limits on recognition.

Introduction

[1] This decision is about the proper application of the clause 22 in the KU Children’s Services - Teachers’ Enterprise Agreement 2019 (2019 Agreement/Agreement). Clause 22 deals with the “recognition of previous service”. A dispute about the interpretation of clause 22 has arisen in the context of the correct classification of Ms Bronwyn Matthews. Ms Matthews is an Advanced Child Care Worker employed by KU Children’s Services (Respondent).

[2] Ms Matthews is represented by the United Workers’ Union (UWU). On 14 April 2020, the UWU applied to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (FW Act) with the Respondent.

[3] Schedule A of the 2019 Agreement contains the “Salary Tables and Allowances – Annual Rates” for employees.

[4] The UWU contends that Ms Matthews should be classified as a “Long Day Care Teacher – Four Year Trained – Step 5” (LDC T 4YR S5).

[5] The Respondent contends that Ms Matthews is properly classified as a “Long Day Care Teacher – Four Year Trained – Step 2” (LDC T 4YR S2).¹

Jurisdiction

[6] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.

[7] In the present matter the clause in the 2019 Agreement dealing with dispute settling procedures is clause 9. It applies to disputes relating to the National Employment Standards and “matter[s] arising under the Agreement.”.² After compliance with the steps set out in clause 9.1 – 9.5 of the 2019 Agreement, the 2019 Agreement confers jurisdiction on the Commission to resolve disputes, first by “meditation, conciliation, expressing an opinion or making a recommendation.”³

[8] If the “Commission is unable to resolve the dispute at the first stage, the … Commission may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.”⁴

[9] It is common ground between the parties that the Commission has jurisdiction to arbitrate the dispute.

The Agreement

[10] The 2019 Agreement was approved on 9 May 2019.⁵ It commenced operation on 16 May 2019. It has a nominal expiry date of 31 December 2021.⁶

[11] The 2019 Agreement covers the Respondent and is said to bind:

• “… United Voice and

• All employees of KU Children’s Services engaged as Early Childhood Teachers whose employment is subject to [the] Agreement.”⁷

[12] In accordance with section 202(2) of the FW Act the 2019 Agreement also covers the UWU.⁸

[13] The dispute is about whether the Respondent has correctly applied clause 22 to Ms Matthews.

[14] The relevant clause provides that,

“22. Recognition of previous service

22.1. On appointment and production of evidence, an employee will be classified and placed on the appropriate level on the salary scale, in Schedule A, to their qualifications and teaching experience.

22.2. Service as a part-time teacher will normally accrue on a pro rata basis according to the percentage of a full-time teaching load undertaken in any year; provided that where the hours are more than 90% of a full-time load, service will count as a full-time year.

22.3. The following experience counts as service for the purposes of this Agreement:

(i). teaching experience in preschools, kindergartens, multi-purpose centres, early intervention services, long day care and other similar services;

(ii). teaching experience of children from four to eight years of a school registered and/or accredited under the relevant authority in each state or territory;

(iii). service as a lecturer in early childhood education or child development;

(iv). service as a child development officer or equivalent; and

(v). service as a diploma qualified childcare worker, at the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression.

22.4. An employee shall commence on the step in the appropriate classification commensurate with the number of years of employment in early childhood education and care services.

22.5. Progression through the steps of each classification in this clause for all employees shall be based on full-time equivalent service;

• Long Day Care- 1976 hours is equivalent to one year of full-time service (including RDO and Annual Leave).

• Preschools- 1550.4 hours is equivalent to one year of full-time service (204 days).

22.6. Any dispute in relation to the implementation of the classification structure shall be dealt with in accordance with the Dispute Resolution Procedure of this Agreement.”

[15] The gravamen of the current dispute concerns the interpretation of clause 22.3(v),

“22.3. The following experience counts as service for the purposes of this Agreement:

….

(v). service as a diploma qualified childcare worker, at the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression.”

Substantive hearing

[16] At the substantive hearing on 18 June 2020,

a) the UWU was represented by Mr Justin Davis, Lead Industrial Officer NSW/ACT, and

b) the Respondent was represented by Ms Anna Perigo of counsel, instructed by Ms M Doyle of Nexus Law Solicitors.⁹

[17] In advance of the substantive hearing the parties filed material. For completeness I set out below the documents relied upon by the parties. I have had regard to all of this material in coming to this decision.

Exhibit number	Description
1	Form F10 – Application
2	Annexures to the Form F10
3	UWU Outline of Submissions dated 20 May 2020
4	Witness Statement of Bronwyn Matthews
5	KU Children’s Services - Teachers’ Enterprise Agreement 2019
6	Respondent’s Outline of Submissions dated 4 June 2020
7	Witness Statement of Jane Robinson, General Manager, People Services and IT dated 4 June 2020
8	Witness Statement of Verena Heron, Industrial Officer, Independent Education Union, dated 12 June 2020
9	Supplementary Witness Statement of Bronwyn Matthews dated 12 June 2020
10	Letter from Sue White dated 10 January 2004
11	Extract from KU Children’s Services - Teachers’ Enterprise Agreement 2012
12	Table of IR Instruments

[18] At the conclusion of the hearing on 18 June 2020 the matter was programmed for the filing and service of final submissions as follows:

a) 3 July 2020, the UWU’s Final Submissions;

b) 16 July 2020, the Respondent’s Final Submissions; and

c) 24 July 2020, the UWU’s Reply submissions.

[19] In coming to this decision, I have also had regard to the transcript of 18 June 2020 and the post hearing submissions.

Uncontested facts

[20] The following matters were either agreed between the parties or not substantially contested. Consequently, I make the following findings of fact:

Facts relevant to Ms Matthews

a) Ms Matthews has worked in early childhood education and the care sector for various employers since 1980.¹⁰

b) Ms Matthews commenced studies in 1981.¹¹

c) Ms Matthews obtained a “Child Care Certificate Course No. 1959” in 1983.¹² I am satisfied that this certificate is the equivalent of a Diploma in Children’s Services.¹³

d) Between June 1983 – December 1997 (14 years and 6 months) Ms Matthews was employed as the Authorised Supervisor (i.e. the Director) of the Leppington Childcare Centre.¹⁴ I am satisfied that in the position of a Director Ms Matthews was rendering service in a position that made use of her Diploma qualification.¹⁵ It was a directly relevant qualification. The duties listed by Ms Matthews, and the seniority of her role, are entirely consistent with the need to hold at least a Diploma qualification. The Respondent led no evidence to the contrary. As such I am left with the uncontested evidence of Ms Matthews.

e) Between December 1997 – November 2001 Ms Matthews was not in paid employment.¹⁶

f) Between November 2001 and March 2013 Ms Matthews worked for the Respondent on a casual, but regular basis. She also performed other roles for the Respondent.

i. In November 2001 Ms Matthews commenced employment with the Respondent.¹⁷ She was employed as a “Casual Crib Break and Casual Care Worker”.¹⁸ Although Ms Matthews was an Advanced Child Care Worker Qualified person, she was not being employed in that role. I am satisfied that in this casual employment Ms Matthews’ Diploma qualification was not relevant. Ms Matthews continued in this role (alongside other roles) until March 2013.¹⁹

^ii. Between June and July 2003 Ms Matthews was employed by the Respondent in a temporary role supporting children with disabilities. Ms Matthews was classified as a Child Care Worker, Step 3.²⁰

iii. Between July 2006 and September 2006 Ms Matthews was employed by the Respondent in a temporary role supporting children with disabilities. Ms Matthews was classified as a Child Care Worker, Step 4.²¹

iv. Between February 2013 and April 2013 Ms Matthews was employed by the Respondent in a temporary role supporting children with disabilities. Ms Matthews was classified as a Child Care Worker, Step 4.²²

g) In July 2012 Ms Matthews obtained a “CHC50908 Diploma of Children’s Services (Early Childhood Education and Care).²³

h) In March 2013 Ms Matthews commenced working for the Respondent as a permanent part-time “Accredited Child Care Educator Qualified”.²⁴ Ms Matthews was also on the Respondent’s casual list as a “Diploma Qualified Educator”.²⁵ Ms Matthews also worked for another employer during this time.

i) On 4 March 2013 Ms Matthews commenced work with the Respondent as a “Diploma Qualified Educator – Step 4.”²⁶ Between then and July 2019 Ms Matthews also held other roles. Ms Matthew’s Diploma qualification was relevant to her employment.

j) On 16 May 2019 the 2019 Agreement commenced operating

k) On 13 July 2019 Ms Matthews was employed with the Respondent on a full-time basis as an “Early Childhood Teacher.” Ms Matthews was placed on a “Step 2” pay rate. She queried the same.²⁷

l) The present dispute ensued.²⁸

m) From October 2019 and without prejudice to its position that Ms Matthews was correctly classified as Step 2, the Respondent started paying Ms Matthews the Step 3 rate.

Facts relevant to the making of the 2019 Agreement

n) The underlying modern award is the Educational Services (Teachers) Award 2020 (Modern Award). Relevantly, for present purposes, the Modern Award contains the following term,

“14.2 Recognition of previous service

….

(d) In the case of an early childhood/preschool teacher, the following will count as service:

….

(iv) service as a diploma qualified childcare worker, at the rate of one year for every 3 years’ service up to a maximum of 4 years.”

o) The predecessor enterprise agreement to the 2019 Agreement was the KU Children’s Services - Teachers’ Enterprise Agreement 2012 (2012 Agreement).

p) The 2012 Agreement contained the following term,

“22.3 The following experience counts as service for the purposes of this Agreement:

….

(d) service as a diploma qualified childcare worker, at the rate of one year for every three years’ service up to a maximum of four years.”

q) Bargaining for the 2019 Agreement commenced in around September 2018.²⁹

r) The Respondent had a goal in bargaining “to provide additional clarity in some of the provisions through wording changes or expanded descriptors. This included consolidating clause 22 Recognition of Previous Service and 23 Incremental Progression.”³⁰

s) The first bargaining meeting (to replace the 2012 Agreement) occurred on 20 November 2017.³¹ Recognition of prior service was not discussed.

t) Meeting number 2 occurred on 5 February 2018.³² Recognition of prior service was not discussed.

u) Meeting number 3 occurred on 19 February 2018.³³ There was some discussion about “recognising a 5^th year of qualifications”.

v) Meeting number 4 occurred on 9 April 2018.³⁴ It is not apparent that recognition of prior service was discussed.

w) Meeting number 8 occurred on 13 August 2018.³⁵ It is not apparent that recognition of prior service was discussed.

x) On 31 October 2018 the Respondent proposed an amendment to clause 22.3. This draft was emailed to bargaining representatives on 2 November 2018 (2 November Draft). It was proposed that clause 22.3 read,

“22.3 The following experience counts as service for the purposes of this Agreement:

….

(d) service as a diploma qualified childcare worker, at the rate of one year for every three years’ service up to a maximum of four years for stepping purposes.”

y) Meeting number 11 occurred on 8 November 2018. Clause 23.3 was discussed. There is a dispute about what was said at the meeting.³⁶

z) On 30 November 2018 the Independent Education Union of Australia (IEU) proposed an amendment to the 2 November Draft (30 November Draft). It was proposed that clause 22.3 read,

“22.3 The following experience counts as service for the purposes of this Agreement:

….

(d) service as a diploma qualified childcare worker, at the rate of one year for every three years’ service up to a maximum of four years for ~~stepping~~ purposes of incremental progression.”

aa) There were no further amendments to clause 22.3 after 30 November 2020.

bb) Voting on the proposed enterprise agreement occurred between 27 March 2019 – 3 April 2019. In the memorandum to staff explaining the changes arising out of the 2019 Agreement. The wording change to clause 22.3 was not highlighted to staff.

Principles of interpretation

[21] The principles relevant to the task of construing an enterprise agreement were distilled in The Australasian Meat Industry Employees Union v Golden Cockerel³⁷ as follows:

“1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] 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;

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;

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.”³⁸

[22] In 2017 a Full Bench of the Commission modified the above summary in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited (‘Berri’).³⁹ The Full Bench made the following observations:

“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,40 Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.41 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’.42

…

[44] There is considerable force in the Appellant’s contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect. It would seem to follow that the inclusion of a laundry allowance in Appendix 3 of the 2014 Agreement should not be regarded as superfluous or insignificant. Such an approach accords with the principles of statutory construction,⁴³ and, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to the interpretation of enterprise agreements. As the Full Bench observed in Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union:⁴⁴

‘Australian Paper made the submission that no principle of statutory construction has any application to the interpretation of enterprise agreements, and relied upon the proposition stated in Golden Cockerel that the Acts Interpretation Act 1901 (Cth) does not apply to the construction of enterprise agreements in support of that submission. The submission is rejected. It does not follow from the fact that enterprise agreements are not instruments to which the Acts Interpretation Act applies that modes of textual analysis developed in the general law in the context of the interpretation of statutes are incapable of application to enterprise agreements. While it undoubtedly remains necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument, it is equally the case that there has been a convergence in the approach taken to the interpretation of statutes, agreements and other types of instruments - in particular, in the emphasis on the objective ascertainment of the instrument’s purpose and the move from textual to contextual interpretation. Additionally, many of the grammatical aides to the interpretation of statutes are equally applicable to other types of instruments. In the High Court decision in Royal Botanic Gardens and Domain Trust v South Sydney City Council, Kirby J said “... it would be indefensible for this Court, without good reason, to adopt a different approach in the ascertainment of the meaning of contested language in a contract from the approach observed in respect of legislation”. We therefore do not consider that Golden Cockerel should be taken as an exhaustive statement of the means by which the text of an enterprise agreement might be construed.’ (references omitted)

….

[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided,⁴⁵ and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.⁴⁶ A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement. For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited,⁴⁷Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:

‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’⁴⁸

[47] We acknowledge that the fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. But it is also relevant that the instrument being interpreted in these proceedings is an enterprise agreement made pursuant to Part 2-4 of the FW Act and, as observed by White J in National Tertiary Education Union v La Trobe Respondent,⁴⁹it may be inferred that such agreements are intended to establish binding obligations:

‘The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of [the disputed clause in the agreement]’.⁵⁰

[48] Of course his Honour’s observation does not mean that an enterprise agreement may not include ‘matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements’⁵¹ – so much is clear from Reeves v MaxiTRANS Australia Pty Ltd.⁵² The fact that the 2014 Agreement is an enterprise agreement made pursuant to Part 2-4 of the FW Act is also relevant to the weight to be given to evidence of prior negotiations, a point to which we shall return shortly.

….

[60] It seems to us that there is an ambiguity in the 2014 Agreement regarding the laundry allowance referred to in Attachment 3. In particular, it is unclear in what circumstances the amount specified is to be paid and to whom. The frequency with which any such payment is to be made is also unclear.

[61] Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa):⁵³

‘… 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 where it has a plain meaning.’⁵⁴

[62] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:

‘… 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 contract, except insofar 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.’⁵⁵

[63] As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

[64] As to category (i), evidence of prior negotiations will be admissible – but only for a defined purpose. As Mason J observed in Codelfa:

‘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 parole 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.’⁵⁶

[65] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Limited:⁵⁷

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly 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.’

….

[88] The diversity of interests involved in the negotiation and making of enterprise agreements warrants the adoption of a cautious approach to the admission and reliance upon evidence of positions advanced during the negotiation process. As Rares J recently observed, in Australian International Air Pilots Association v Qantas Airways Limited:⁵⁸

‘Substantially, the Act provided that the agreement was a tripartite document between a body of employees, a corporation with numerous officers and an industrial association. The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity. It is important, in doing so, to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who had sought to protect their differing interests by various formulations of words in it. Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79], Gray J said:

• “In the days when an award might be negotiated between a union and an employer, and made by consent, the existence of a common understanding between the union and the employer as to the meaning of terms might have had some role to play in their construction. Whatever were the terms of such an agreement, and whatever their meaning was, those terms were imposed upon the employees who became bound by the award. In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past.”’

….

[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged.

[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction.⁵⁹ But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.⁶⁰

[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner,⁶¹a majority of the High Court adopted the ‘general principle’ that ‘it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made’. Of course, the expression ‘general principle’ is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):⁶²

‘It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.’

[104] As Allsop P observed in Metcash (at [6]), ‘much ink has been spilt over the last 30 years on this topic’. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct,⁶³ but no clear consensus appears to have emerged.

[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd⁶⁴gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:

‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’⁶⁵

[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties.

[107] We also note that in Spunwill⁶⁶ Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd ⁶⁷:

‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’

[23] The Full Bench in Berri then modified the summary set out in Golden Cockerel in light of the observations made in the course of their decision.

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”⁶⁸

[24] I adopt the Berri principles. Consequently, it is necessary to,

a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,

b) determine whether the Agreement has a plain meaning,

c) review the text of the Agreement as a whole,

d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,

e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,

f) not adopt an overly technical approach to the interpretation of the Agreement, and

g) not contradict the plain language of the Agreement.

Final Submissions – UWU

[25] On 3 July 2020 the UWU submitted that,

Article I. “The Dispute

1. It is common ground the question for the Commission is whether Ms Matthews is correctly classified as a Long Day Care Teacher – 4 Year Trained Step 2 under the KU Children’s Services – Teacher’s Agreement 2019 (‘the 2019 Agreement’).

2. This dispute turns on the meaning of two subordinate clauses within clause 22.3(v) of the 2019 Agreement, being:

i. “Service as a diploma qualified childcare worker” and;

ii. “At the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression”

Article II. Interpretation of an Agreement

3. The principles relevant to the task of construing a single enterprise agreement are set out by the Full Bench of the Fair Work Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd (‘Berri Principles’).⁶⁹

4. The relevant Berri principles are addressed within the submissions below.

Article III. ‘Service as a diploma qualified childcare worker’

5. The applicant submits that ‘service as a diploma qualified childcare worker’ has an ordinary meaning and simply means years an employee has been employed in the early childhood sector while also holding a diploma qualification (or its equivalent as recognised by ACECQA).

6. The respondent submits this subordinate clause has a more specific meaning, in that to have “service as a diploma qualified childcare worker” the employee has to have held a position where they have been required to have a diploma for the purposes of their role. Therefore, the respondent submits that an employee who has such qualifications but does not utilise those qualifications in the performance of their work does not have service recognised.

7. The respondent’s submission on this issue appears to rely entirely on the proposition that “it is a fundamental principle that employees are only paid for the work they perform, not the qualifications they posses”. No authority is provided for this position, and it also ignores the industrial history of the “competency based” classification system introduced to Australia in the 1980s through the Award Restructuring process.

8. Rather than relying on the respondent’s baseless assertion of “fundamental principles”, the Commission should instead look to the 2019 Agreement as a whole. The 2019 Agreement contains no such qualifier or caveat consistent with the respondent’s submission. On this basis it should be rejected.

9. Even if the respondent’s submissions on this issue are accepted, Ms Matthews has given evidence she was in fact utilising her diploma-equivalent qualifications as a requirement of her position prior to taking up an official “Diploma Qualified Childcare Worker” with the respondent in 2013, in both her work as a Director at Leppington between 1983 and 1997 and in her various roles with the respondent between 2001 and 2013.

10. Clause 19 states, “an employee shall commence on the step in the appropriate classification commensurate with the number of years of employment in early childhood education and care services for children aged Birth to 12 years whether conducted by KU or not and shall progress thereafter in accordance with the Agreement”. Clause 20 of the 2019 Agreement builds on clause 19, stating that “upon engagement, KU shall establish the employee’s employment history in early childhood education and care services for the purposes of determining the appropriate step applicable under this Agreement”. Clauses 19 and 20 therefore appear to contradict the respondent’s submission that “the role Ms Matthews had from 1983 to 1997 is not relevant for the purposes of which step she should receive now”.

11. In summary, the applicant submits Ms Matthews’ service between 1983 and 1997 and 2001 to 2019 constitutes ‘service as a diploma qualified childcare worker’ under clause 22.3(v) of the 2019 Agreement.

Article IV. “At the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression”

Context and Purpose

12. In considering the ordinary meaning of these dispute words, construction will turn on the language in the agreement having regard to its context and purpose, looking to the text of the agreement viewed as a whole, the provisions place and arrangement, and the legislative context.

13. Clause 22.3(v) sits within Part 5 – Minimum Wages and Related Entitlements of the 2019 Agreement. At clause 19, the 2019 Agreement sets out a process by which the respondent will take steps to determine a commencing employee’s appropriate classification by reference to the needs of the Centre, regulatory and compliance requirements, required duties, length of service. Clause 19.3 explicitly states, “an employee shall commence on the step in the appropriate classification commensurate with the number of years of employment in early childhood education and care services for children aged Birth to 12 years whether conducted by KU or not and shall progress thereafter…”.

14. Similarly, clauses 20 and 21 explain the process by which the respondent will determine and confirm an employee’s previous experience in the industry. Clause 22 then sets out which particular types of previous service will be recognised within the pay scale. A common theme or purpose is apparent throughout Part 5, that is to recognise the experience and skills an employee brings to the service through previous service in the early childhood sector, and thus a corresponding commitment is set out to ensure this experience and previous service is reflected in classification and pay.

15. While the respondent submits clause 22.3(v) should be read in such a way which recognises only four years total service and therefore severely limits progression to “1 step and 1 third of a step” , the text of agreement viewed as a whole and clause 22.3’s place and arrangement within the 2019 Agreement does not support this interpretation.

Article V. Common intention of the parties viewed objectively

16. While it is clear the respondent and the IEU had differing subjective intentions behind the addition of the words, “for purposes of incremental progression”, the test for the Commission is to look for the “common intention of the parties” by reference to that which a reasonable person would understand by the language the parties used to express their agreement.

17. Written as it is, with the words “four years” positioned directly before the words “for purposes of incremental progression”, the applicant submits that a reasonable person would objectively take these words to be synonymous with “four steps for purposes of incremental progression”. This is further supported by the fact that at clause 22.5 progression through each “step” is based on a year of full-time service with the respondent, and so a “step” is equivalent to a “year”.

18. In contrast, the interpretation put forward by the respondent would be counter-intuitive to a reasonable third party, given the there are no words to expressly state the “four years” expressly refer to four years of total service within the early childhood sector and seems to rely on giving the word ”years” two different meanings. It is also significant that where the clause refers to years of actual service in the sector – “one year for every three years of service” - the words “of service” follow the word “years” to make this explicit. This is not the case where the words “maximum of four years” are used. For these two reasons, the respondent’s interpretation should be rejected.

Article VI. Covered employees

19. It is clear from the evidence that the effect the revised clause 22.3(d)/(v), or the fact the clause had even be revised, was not communicated by the respondent to the covered employees as having any particular importance prior to the commencement of voting for the new Agreement on 26 March 2019.

Article VII. Ambiguity and evidence of surrounding circumstances

20. The applicant submits that the operation and intent of clause 22.3(v) is ambiguous and susceptible of more than one meaning. “Years” can be taken to refer to the “years” or “steps” within the classification schedule (“the progression itself”) or it can be taken to refer to a year actually worked in a diploma qualified childcare worker in early childhood education. The very fact this dispute is before the Commission should support this submission. That the respondent believed clause 22.3 – albeit in in its pre-2019 form - was susceptible to differing interpretations was also put by Ms Robinson in her oral evidence.

21. Where the language is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances will be admissible to aid the interpretation of the agreement. In this dispute, the relevant surround circumstances are the various communications which took place between the respondent and the IEU during the 2017-2019 enterprise bargaining.

22. It is clear from the evidence of Ms Robinson and Ms Heron that there is a contest as to what was discussed at the bargaining meeting on 8 November 2018. Mr Robinson says a discussion about additional wording for clause 22.3(d)/(v) occurred. Ms Heron does not recall this conversation occurring, and does not believe it occurred.

23. It is the applicant’s submission this conversation on 8 November 2018 did not occur as described by Ms Robinson, if at all. We say this on the basis of Mr Heron’s statement, the IEU overall conduct throughout the bargaining process, and the fact the meeting minutes directly contradict the assertion there was “no objection or concerns” raised with “respect to the interpretation [of clause 22.3(d)/(v)”. Rather than confirming “agreement” on this issue, the meeting minutes (marked JR2) suggest the respondent in fact came away from the meeting understanding further consideration of clause 22.3 was required

24. Further, this lack of concern does not appear to be consistent with similar objections raised by the IEU in relation to the respondent’s proposed limitations in relation to the recognition of previous service in “the school sector and for lecturers”. This conduct of the IEU is affirmed by Ms Robinson in statement at paragraph 15 and Ms Heron in her statement at paragraph 9.

25. Even if Ms Robinson’s evidence is accepted, it is clear any conversation which Ms Robinson says occurred pertained to how the respondent believed the clause 22.3(d) already operated and how her proposed wording of “for stepping purposes” confirmed this interpretation.

26. Further, the evidence is clear that this discussion – if it did occur – did not pertain to the additional words eventually adopted, being “for the purposes of incremental progression”, which were put forward by Ms Heron via email in a marked-up draft Agreement on 30 November 2018. On this basis, the discussion Ms Robinson says occurred on 8 November 2018 is of little probative value in interpreting clause 22.3(v) in its final form.

27. While it is Ms Robinson’s (and presumably the respondent’s) position that her proposed words, “for stepping purposes” and “for the purposes of incremental progression” had the exact same meaning and effect, the objective evidence of the surrounding circumstances cannot support this proposition, and instead directly contradicts it. Rather, it is clear from the conduct of Ms Heron, in objecting to the use of “for stepping purposes” with relation to similar proposed limitations of the service elsewhere, and then suggesting the different wording of “for the purposes of incremental progression”, the words cannot objectively have been understood by either the respondent, nor the IEU, to have an equivalent meaning and this must have been in common contemplation.

28. Further, it is common ground clause 22.3(d) - now 22.3(v) - of the 2012 Agreement was identical to clause 13.2(d)(iv) of the Award. While one would think it would naturally follow clause 22.3(d)/(v) should have been interpreted and applied consistently with its Modern Award equivalent, it is apparent from the respondent’s submission and Ms Robinson’s evidence that this was not the case. Ms Robinson gave evidence that prior to 2019 clause 22.3(d) – despite its identical wording - was being applied by the respondent altogether differently to the industry-wide interpretation of clause 12.2(d)(iv) of the Award. It is also the respondent’s submission that the words “for the purposes of incremental progression” “did not change the meaning or the effect of the clause”. This appears to explain the respondent’s confused evidence as to whether the additional wording added to clause 22.3 constituted what it considered to be a “significant change” between the 2012 and 2019 Agreements.

29. On this point, the applicant submits that prior to 2019 the respondent appears to have been incorrectly interpreting and applying clause 22.3(d). The additional words added to the clause not do render the respondent’s earlier incorrect interpretation any more acceptable. It is also clear post-agreement conduct (in this case to the 2012 Agreement) cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

30. Ultimately, the Commission is left in a curious position, with both the applicant and the respondent putting forward submissions that the words added to clause 22.3(v) did not change the meaning of the clause from its previous - Award identical - wording. However, at the same time as submitting the new words did not constitute a significant change, the respondent also seeks to argue its additional words do in fact give the clause 22.3(v) a radically different meaning. Both positions cannot be true.

31. In closing, if the respondent does not believe the words “for purposes of stepping purposes” altered the meaning of clause 22.3(d) of the 2012 Agreement, then the words must have the same meaning as clause 13.2(d)(iv) of the Educational Services (Teachers) Award 2010, regardless of whether clause 22.3(d) was applied correctly by the respondent in the past.

32. This position is also supported by an objective reading of the ordinary meaning of the words, whereby “years” in “years for purposes of incremental progression” quite plainly is synonymous with “steps” within Schedule A.

Article VIII. Conclusion

33. Clause 22.3(v) carries the same meaning as clause 13.2(d)(iv) of the Educational Services (Teachers) Award 2010.

34. Ms Matthews is incorrectly classified as a Long Day Care teacher – 4 Year Trained at Step 2.

35. Ms Matthews’ correct classification is Long Day Care teacher – 4 Year Trained at Step 5.

Submissions – Respondent

[26] On 17 July 2020 the Respondent submitted that,

1. This is a dispute concerning the application of clause 22 of the KU Children’s Services – Teachers Enterprise Agreement 2019 (the 2019 Agreement) and in particular, the recognition of previous service as provided for in clause 22.3(v) of the 2019 Agreement.

2. The question for the Commission is whether Ms Matthews is correctly classified as a Long Day Care Teacher Year 4 Trained Step 2 as determined by the Respondent, KU Children’s Services (KU).

3. Ms Matthews was advised by KU of her appointment, effective 22 July 2019, to the full time position of Early Childhood Teacher, 4 year trained, Step 2 on 15 July 2019.⁷⁰ Ms Matthews commenced on Step 2 in recognition of her service as a diploma qualified child care worker from 7 February 2013.⁷¹ This reflects the correct rate of pay for Ms Matthews.

4. Through her representative, Ms Matthews queried her rate of pay. In recognition of Ms Matthews service, KU moved Ms Matthews to the classification of Early Childhood Teacher, 4 year trained, Step 3, effective 22 July 2019.⁷²

Article IX. Interpretation of an Agreement

5. The general principles of interpretation of enterprise agreements are set out in the Full Bench decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd.⁷³

6. The principles include the following, in summary form:

(a) The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words;

(b) 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 the parties;

(d) In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning;

(e) Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists;

(f) If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement;

(g) The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement.⁷⁴

7. In short, agreements should be construed in a practical manner.⁷⁵

8. The High Court decision in Amcor v CFMEU,⁷⁶ also recognised that agreements lack the precise drafting of legislation and that “the nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the agreement”.⁷⁷

Article X. The 2019 Agreement

9. The relevant classification, Long Day Care Teacher – 4 year trained, is not in dispute. That classification has 9 steps with increased rates of pay. Progression through the steps is based on the attainment of 1976 hours of work which is the equivalent of one year of full time service.

10. Clause 22 of the 2019 Agreement deals with recognition of previous service. The relevant part is as follows:

22.3 The following experience counts as services for the purposes of this Agreement:

(v) service as a diploma qualified childcare worker, at the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression.

11. The consideration of this part of clause 22 requires:

(a) The determination of whether the employee had service as a diploma qualified childcare worker; and if so;

(b) Consideration of the service that counts for the purposes of the Agreement, which is “at the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression”.

Article XI. Service as a diploma qualified childcare worker

12. Service as a diploma qualified childcare worker is to be given its ordinary meaning. The phrase is not ambiguous.

13. It requires the employee to have held a position where they have been required to have a diploma for the purposes of performing their role. An employee who has such qualifications but does not utilise those qualifications in the performance of their work would not have their qualifications recognised.

14. It is a fundamental principle that employees are only paid for the work they perform, not the qualifications they possess. Similarly, service as a diploma qualified childcare worker is service where the employee is exercising the skills required of a diploma qualified childcare worker. The purpose of the provision is to provide employees who have relevant experience and skills to have those recognised. It is not the purpose of the clause to allow an employee who has a qualification but has not used that qualification, to achieve a higher rate of pay.

15. The Australian Industrial Relations Commission, in the National Wage Case decision of 1989,⁷⁸ in considering the result of the structural efficiency exercises will involve new classification structures, stated:

When the structural efficiency exercise involves reducing the number of award classification by broadbanding and multi-skilling, it is important that the intent of the broadbanding and multi-skilling be effectively implemented. Hence, workers should not be placed in a classification unless they have the training and experience necessary to perform the full range of the functions comprehended by the new classification and are actually required to perform those functions.

Consequently the parties should ensure that sufficient time is provided for immediate training needs, and where necessary, on the job experience before finalising the translation of existing employees to the new classification structure. (my emphasis)

16. Contrary to the Applicant’s (UWU) submission at paragraph 8 of their final submissions dated 3 July 2020, the proposition that an employee not just possess the skills and/or qualification but utilise them does not ignore the “competency based” classification system and is in line with the principles set out as early as the 1989 National Wage Case. It is a fundamental principle that still exists in employment relationships.

17. The answer is also to be found in the words themselves. “Service” as a “diploma qualified childcare worker”. That is, service in a position that requires a diploma and as such, utilises that qualification.

18. The UWU state that Ms Matthews utilised her diploma equivalent qualifications as a “Director at Leppington between 1983 and 1997” and “in her various roles with the respondent between 2001 and 2013”.⁷⁹

19. Ms Matthews gave evidence that during June 1983 and December 1997 she was employed by Leppington Childcare Centre as the Authorised Supervisor (Director).⁸⁰ Ms Matthews set out her duties at Leppington Childcare Centre.⁸¹ There is no evidence that the duties involved or required diploma qualifications.

20. It is not in dispute that Ms Matthews’ obtained a qualification in 1983 which is now recognised as a diploma. However, the position put forward by the UWU asks the Commission to require KU to recognise service with another employer, of which there is little evidence as to the tasks Ms Matthews performed and no evidence that those tasks required diploma qualifications, in the period 1983 to 1997, for the purposes of a rate of pay in 2019. Any work Ms Matthews’ performed for another employer so long ago cannot be taken into account when determining her current rate of pay. The focus of the clause is to recognise previous, relevant service. The role Ms Matthews’ had from 1983 to 1997 is not relevant for the purposes of which step she should receive now and to recognise such service does not provide a sensible industrial outcome.

21. Ms Matthews did not work between December 1997 and November 2001.⁸²

22. Regarding Ms Matthews employment with KU between 2001 and 2013, during this time Ms Matthews was employed as a Child Care worker, an entry level position. She did not work in a role that required diploma qualifications.⁸³

23. It is not until KU offered her a temporary part time appointment as an Advanced Child Care worker Qualified Step 4 that Ms Matthews worked in a role that required diploma qualifications.⁸⁴ It was from that point in 2013 that KU recognised her service for the purposes of determining her rate of pay.

24. Clause 19 and 20 of the 2019 Agreement do not assist the UWU’s argument. Those provisions are of general application. The specific issue is recognition of previous service for the purpose of appointment to a position. Ms Matthew gained a teachers’ position. In doing so, KU was required to determine the appropriate step in the wage scale. That step is determined by the provisions of clause 22.3.

Article XII. At the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression.

25. The 2019 Agreement covers KU’s Early Childhood Teachers. The classifications include Long Day Care Teacher – 3 year trained, Long Day Care Teacher – 4 year trained, Preschool Teacher – 3 year trained, Preschool Teacher – 4 year trained, Casual Long Day Care – 3 year trained, Casual Long Day Care – 4 year trained, Casual Preschool – 3 year trained and Casual Preschool – 4 year trained.

26. An employee commencing work as a Long Day Care Teacher with 4 years of training, who has the relevant qualification when they commence, will have their service recognised in accordance with the provisions of clause 19.2 of the 2019 Agreement.

27. Ms Matthews is not in that position. The general provisions of clauses 19 and 20 are not applicable when considering Ms Matthews’ previous service. Ms Matthews obtained her Bachelor of Education in December 2018. She subsequently applied and obtained a teaching position with KU which commenced on 22 July 2019. In determining the correct rate of pay for Ms Matthews, as she did not have any previous experience in a teaching role as a qualified teacher, KU applied the specific provisions of clause 22 and in particular 22.3(v) which recognises service, not in a teaching position like clauses 19 and 20, but previous service in a lower level position.

28. The UWU submissions regarding context and purpose ignore the specific work clause 22 has to do.

29. In applying the principles from AMWU v Berri, the UWU contend that the Commission should consider the common intention of the parties viewed objectively and then make separate submissions on whether there is ambiguity in the wording.

30. The Commissions first step is to determine whether there is a plain meaning to the text in question or whether it is ambiguous or susceptible of more than one meaning.

31. Taking the phrase in parts, “at the rate of one year for every three years of service” is capable of a plain meaning. For every three years of service, the employee receives one year on the salary scale. That is, an employee with three years’ service recognised under clause 22.3(v), moves from Long Day Care Teacher – 4 year trained Step 1 to Long Day Care Teacher – 4 year trained Step 2.

32. The next part of the phrase “up to a maximum of four years for the purposes of incremental progression” is also capable of a plain meaning. That is, an employee can only have four years recognised for the purposes of moving through the progression in the wage scale.

33. This is consistent with the approach taken by KU, which is of long standing.

34. The submission by the UWU that “there are no words to expressly state the ‘four years’ expressly refer to four years of total service within the early childhood sector and seems to rely on giving the word years two different meanings”⁸⁵ ignores the word “maximum” in the phrase. A maximum of four years of previous service is recognised. It is the recognition of previous service that is the focus of the clause.

35. Should the Commission find, contrary to these submissions, that the phrase “at the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression” is ambiguous or susceptible of more than one meaning, then regard may be had to the surrounding circumstances. Such evidence is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement.

36. Objectively, the evidence shows that:

(a) The 2019 Agreement was in the process of being negotiated;⁸⁶

(b) One of the goals in negotiating the agreement was to provide additional clarity in some of the provisions through wording changes including the consolidation of clauses 22 Recognition of Previous Service and 23 Incremental Progression from the previous agreement;⁸⁷

(d) Ms Heron, Industrial Officer with the Independent Education Union (IEU), substituted the words “for the purposes of incremental progression” for “for stepping purposes”.⁸⁹

37. From this, it can be inferred that neither party was “bargaining” or attempting to alter the provision in a substantial way. This is consistent with Ms Robinson’s evidence that the change in wording was not communicated to the employees at the time the 2019 Agreement was put to KU employees for the purposes of a vote.

38. Ms Robinson gave evidence of the discussion she had at the bargaining meeting on 8 November 2018 where the proposed change was discussed. Ms Robinson told the bargaining meeting that “KU recognises up to 4 years prior service in a diploma position. So, an employee with 4 years’ service in a diploma qualified childcare worker role will move from step 1 to step 2 in recognition of the first three years and then receive 658 hours credit towards the next step”.⁹⁰ Her evidence was not shaken on cross examination.

39. Ms Heron’s evidence is that she has no recollection of Ms Robinson making this statement.⁹¹ Ms Heron also gave evidence that she did not believe the comment was made.⁹² Ms Heron’s belief is not relevant. It is relevant that she has no recollection. In these circumstances, it is open to the Commission to accept Ms Robinson’s evidence.

40. The minutes of the bargaining meeting on 8 November 2018 required “KU to review stepping”.⁹³ This is not indicative of an objection by the IEU, or any other party, with respect to KU’s proposed wording.⁹⁴

41. The UWU also rely on objections raised by the IEU in respect to provisions relevant to the school sector and lecturers.⁹⁵ Ms Robinson gave evidence that KU considered a change to these provisions, which, following objection from the IEU, did not proceed.⁹⁶ There was no change suggested to clause 22.3(v) by KU which would involve a change to the existing application of the clause.

42. The UWU’s submission⁹⁷ that the Commission should consider the IEU’s objection to a proposed change to a different part of the provision as a basis for the words “for incremental purposes” to mean something different to the words “for stepping purposes” for the provisions of clause 22.3(v) should not be accepted.

43. Ms Robinson gave evidence that Ms Heron’s change to the wording of clause 22.3(v) did not change the application of the provision.⁹⁸ The change in wording occurred in the context and background of the discussion in the bargaining meeting held on 8 November 2018 and the statement made by Ms Robinson.

44. The UWU also invite the Commission to consider the “industry wide interpretation of clause 12.2(d)(iv)” of the Education Services (Teachers) Award 2010 (the Award) as they assert the Agreement provisions should be consistent with the Award provisions.⁹⁹ There are two issues that arise with respect to this submission. First, the Commission is not interpreting the Award. Secondly, if it was relevant, there is no evidence of how that relevant clause of the Award is applied.

45. KU does not submit that the additional words “for incremental purposes” give clause 22.3(v) a radical different meaning.¹⁰⁰ In negotiating the 2019 Agreement, KU sought to provide clarity to its long held application of the provision.

46. From this the Commission can find that:

(a) There was no change to the effect of the provision;

(b) KU had interpreted the provision consistently in the manner described by Ms Robinson;

47. Therefore, the phrase at the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression, should be given the meaning as contended for by KU, that is, to find that the words “maximum of four years” limits the years of previous service that can be recognised for the purposes of the employee’s rate of pay. “So, an employee with 4 years’ service in a diploma qualified childcare worker role will move from step 1 to step 2 in recognition of the first three years and then receive 658 hours credit towards the next step”.

Article XIII. Conclusion

48. For the reasons set out above, the correct rate of pay for Ms Mathews is Early Childhood Teacher, 4 year trained, Step 2.

49. KU seeks that the application be dismissed.

Reply submissions – UWU

[27] In reply, on 24 July 2020, the UWU submitted that,

1. These are the applicant’s final written submissions in reply made in accordance with the directions issued by the Fair Work Commission on 18 June 2020.

2. This is a dispute concerning the application of clause 22 of the KU Children’s Services - Teachers Enterprise Agreement 2019 (‘the 2019 Agreement’).

3. The applicant agrees with the respondent that consideration of clause 22.3(v) of the 2019 Agreement requires:

a. The determination of whether the employee had service as a diploma qualified childcare worker and if so

b. Consideration of service that counts for the purposes of the Agreement, which is “at the rate of one year for every three years of service up to a maximum of four years for purposes incremental progression”.

Article XIV. “Service as a Diploma Qualified Childcare Worker”

4. Service as a diploma qualified childcare worker has an ordinary meaning. Contrary to the respondent’s submission, all that is required is that employee hold a diploma qualification while working as a childcare worker. The are no additional words which require the childcare worker to utilise those qualifications. Indeed, this analysis would betray the competency- based classification structure which is built on an analysis set out in Clause 19 as follows:

4.1 The employer determines the appropriate classification for each position (19.1) then

4.2 The employee is appointed to the appropriate position and classification, having regard to the duties required by KU to be undertaken by the employee, the qualifications of the employee and the employee's length of service (19.2) then

4.3 An employee shall commence on the step in the appropriate classification commensurate with the number of years of employment in early childhood education and care services for children aged Birth to 12 years whether conducted by KU or not and shall progress thereafter in accordance with the Agreement (19.3). (My emphasis)

5. The analysis of the duties sits at the start of the process, not the end (as asserted by the Respondent). This makes practical sense because how is any early childhood service to really know what duties the employee carried out, let’s say five years earlier in another service? How is an employee to prove they used the knowledge given to them through the training they completed years earlier? The qualification is industry based. Once the qualification is awarded, it is accepted as relevant or not relevant. If it is a relevant qualification, Clause 19 considers where it sits for the classification structure. No other proof of knowledge used or duties performed is required.

6. However, even if the Commission accepts the respondent’s submissions that an employee who has such qualifications but does not utilise those qualifications in the performance of their work would not have their qualifications recognised, Ms Matthews’ service also clearly meets this test.

7. Ms Matthews has given consistent evidence that she utilised her diploma qualifications in her work while working as a ‘Qualified Authorised Supervisor’ at Leppington Childcare Centre and in her role as a Casual Crib Break and Casual Child Care Worker with KU Children’s Services between November 2001 and March 2013.

8. Both periods of service should be recognised a previous service as a diploma qualified childcare worker when applying clause 22.3(v) of the 2019 Agreement.

Article XV. Ms Matthews’ Service at Leppington 1983 to 1997

9. It is not in dispute that Ms Matthews worked as an Authorised Supervisor (equivalent to the current classification of ‘director’) while also holding a diploma equivalent qualification while employed at Leppington. Ms Matthews gave evidence that relevant information outlining her service and duties was provided to the respondent when Ms Matthews commenced in a casual role with the respondent in November 2001 and this evidence was not shaken.¹⁰¹

10. It also a matter of fact that the director classification is a higher classification than a diploma-qualified childcare worker and that directors are expected to exercise skills and expertise above and beyond those of a diploma-qualified childcare worker. This is not controversial.

11. Rather than directly challenging Ms Matthews’ evidence of a previous service as a diploma- qualified childcare worker, the respondent has up until this point simply dismissed this service as being too far back in time to be on any relevance to her current classification.¹⁰²

Now, however, the respondent seeks to make the submission that Ms Matthews’ has failed to provide any evidence she in fact utilised her diploma-qualification while a Director at Leppington.¹⁰³ It is an absurd proposition which should be dismissed.

12. The respondent is correct in submitting clauses 19 and 20 of the 2019 Agreement are provisions of general application. It is for this very reason the respondent is not able to overcome the fact that clause 20 of the 2019 Agreement could not be more explicit in its recognition of an employee’s employment history in early childhood education and care services when assessing an employee’s appropriate classification when commencing in a role. It is for this reason that Ms Matthews’ service at Leppington remains relevant when applying clause 22.3(v).

Article XVI. Ms Matthews’ Service Between November 2001 and March 2013

13. Ms Matthews’ diploma equivalent qualification was explicitly acknowledged and recognised by the respondent when Ms Matthews commenced employment with the respondent as a Casual Crib Break and Casual Child Care Worker with the respondent in November 2001.

14. In fact, the respondent recognised Mrs Matthews was overqualified for the position she was accepting and made this clear in a letter to Ms Matthews.¹⁰⁴ The respondent also took steps to ensure Ms Matthews was aware she would be paid the unqualified rate of pay by having her sign a letter to this effect.¹⁰⁵ However, it is hard to accept the respondent’s apparent proposition that Ms Matthews was never again called upon to utilise her qualifications until March 2013.

15. Ms Matthews in fact gave evidence that she was required to – and regularly did - utilise her diploma skills and expertise while working in the unqualified casual role and outlined these duties in detail. While Ms Matthews clarified aspects of her witness statement within her oral evidence, giving minor concessions where necessary, her evidence on this issue was not fundamentally shaken in cross examination.¹⁰⁶

16. Ms Matthews service between 2001 and 2013 should also be recognised for the purposes of clause 22.3(v).

Article XVII. “At the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression”.

17. The UWU submits the words “At the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression” are susceptible of more than one meaning and for this reason the Commission should look to the surrounding circumstances of the words’ gestation to determine whether a common intention over the meaning can be found.

18. It is not disputed that the words “for purposes of incremental progression” were added to clause 22 during the bargaining negotiations which took place between November 2017 and March 2019. What is in dispute is whether these five additional words gave the clause a meaning fundamentally different to clause 13.2(d)(iv) of the Educational Services (Teachers) Award 2010 (‘the Award’) and also whether these words amounted to a significant change to the 2012 Agreement.

Article XVIII. The Modern Award

19. The operation of clause 13.2(d)(iv) the Award was outlined in the applicant’s original outline of submissions.¹⁰⁷ The interpretation and operation put forward by the applicant is not controversial and is widely accepted across the industry. Indeed, it is the interpretation put forward and accepted by the early childhood industry body. Further, at no point in this dispute has the interpretation of the Award put forward by the applicant been challenged by the respondent.

Article XIX. The Enterprise Bargaining

20. An analysis of discussions which took place between the IEU and respondent during the bargaining of the 2019 Agreement are of some assistance to the Commission in deciding whether there was a common meaning or intention shared by the parties as to the alteration of the clause.

21. The evidence shows there is a factual contest between Ms Robinson and Ms Heron of the IEU as to whether the respondent’s interpretation of clause 22.3 was discussed and agreed upon (or rather no concerns were raised) at a bargaining meeting on 8 November 2018. While the respondent submits Ms Robinson’s account of the discussions it to be accepted, the question of who is ultimately believed is not fundamental to the applicant’s case as the discussion on 8 November 2018 concerned words that were never adopted into the 2019 Agreement. The words ultimately adopted were put forward by Ms Heron.

22. The respondent submits that an objective analysis of evidence shows neither the IEU nor the respondent was attempting to alter the provision in a substantial way and that this is why the change was not communicated to employees prior to voting opening.¹⁰⁸ While the evidence of Ms Heron and meeting minutes suggests there was not a common position of how clause 22.3(v) in its altered form might apply, the Commission can accept Ms Robinson did not believe the words “for purposes of incremental progression” altered the provision in a substantial way to how he provision had long been applied, while also accepting this interpretation was fundamentally incorrect and inconsistent with industry practice.

23. The Berri Principles establish that ‘post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding’.¹⁰⁹

24. It is simply not possible Ms Robinson’s words

“KU recognises up to 4 years prior service in a diploma position. So, an employee with 4 years’ service in a diploma qualified childcare worker role will move from step 1 to step 2 in recognition of the first three years and then receive 658 hours credit towards the next step”.

could apply to the final EA wording because it was changed after this by the IEU’s redrafting. The Commission should therefore give little weight to her comment. There is simply no evidence that what she believed the IEU redrafting to mean was a common understanding of the parties. It was her interpretation, after the fact. Therefore, the idea that there was a consensus of the parties to the EA of what the clause meant is simple speculation. After the IEU redrafting was released, no further meetings or correspondence were exchanged and the document went to the vote. Ms Robinson’s words at the meeting (and now) became irrelevant.

25. The Commission may accept Ms Robinson’s evidence she did not believe the additional words ‘for purposes of incremental progression’ changed the application of clause 22 of the 2012 Agreement, while also accepting the words have an objectively different meaning to what the respondent had long understood them to mean.

26. To put it another way, it would appear the respondent had a long-standing practice of misconstruing clause 22 of the 2012 Agreement – mirroring as it did clause 13.2(d)(iv) of the Award – and no employees raised a complaint under Ms Matthews did in July 2019. This long-standing practice however does not mean the respondent’s application of clause 22.3 is correct or should be accepted.

27. Nevertheless, KU’s proposed wording never made it into the final EA.

Article XX. Conclusion

28. For the Commission to accept the respondent’s submission as to the interpretation of clause 22.3(4) of the 2012 Agreement – which the respondent argues has the same meaning as clause 22.3(v) of the 2019 Agreement - while ignoring its all but identical wording to clause 13.2(d)(iv) of the Award will produce an absurd result and will likely result in a dramatic reinterpretation of the Award to the severe detriment of Award-covered early childhood teachers.

29. Clause 22.3(v) carries the same meaning as clause 13.2(d)(iv) of the Educational Services (Teachers) Award 2010.

30. Ms Matthews is incorrectly classified as a Long Day Care teacher – 4 Year Trained at Step 2.

31. Ms Matthews’ correct classification is Long Day Care teacher – 4 Year Trained at Step 5.

Consideration

[28] I accept that in applying the 2019 Agreement I should not approach the task in a narrow or pedantic way.¹¹⁰

Berri Principle 1 – ordinary meaning of the relevant words

[29] Because it is necessary to start with a consideration of the ordinary meaning of the relevant words it is appropriate to again set out the relevant clause.

“22.3. The following experience counts as service for the purposes of this Agreement:

….

(v). service as a diploma qualified childcare worker, at the rate of one year for every three years of service up to a maximum of four years for purposes of incremental progression.”

[30] I first start with the meaning of “service as a diploma qualified childcare worker”. There are two alternative meanings:

a) any service as an employee who holds a diploma qualification (Scenario 1); or

b) service that requires (at least) a diploma qualification (Scenario 2).

[31] The import of the distinction can be explained as follows. If an employee was employed (and thus rendering service) in a position that did not require any qualification, but they held a diploma qualification, under Scenario 1 that service would be counted. It would not under Scenario 2. Under Scenario 1 service totally unrelated to the position in which the employee is being classified would be counted just because the employee also holds a diploma qualification. I reject that construction.

[32] In this sense the ordinary meaning of “service” means “the performance of”. Therefore, in order for the service to count, it must be in the performance of a role that requires a diploma qualification. Scenario 2 is the proper construction. Consequently, Ms Matthews’ service with the Respondent between 2001 and 2013 does not appear to qualify.

[33] The next question to be determined is whether the “maximum of four years” attaches to:

a) the years of service (i.e. a maximum of 4) (Option A – the Respondent); or

b) the grouping of every 3 years (i.e. a maximum of 12) (Option B – the UWU).

[34] Depending on the construction the following would occur:

Years of service in a role requiring a Diploma qualification	Option A – service credit	Option B – service credit
1	0	0
2	0	0
3	1 (i.e. step 2) + carryover towards next step	1 (i.e. step 2)
4	1 + carryover towards next step	1
5	1 + carryover towards next step	1
6	1 + carryover towards next step	2 (i.e. step 3)
7	1 + carryover towards next step	2
8	1 + carryover towards next step	2
9	1 + carryover towards next step	3 (i.e. step 4)
10	1 + carryover towards next step	3
11	1 + carryover towards next step	3
12	1 + carryover towards next step	4 (i.e. step 5)
12+	1 + carryover towards next step	4

[35] First, I am not satisfied that the 2 November and 30 November Drafts of the 2019 Agreement intended to change the operation of clause 22.3. At all times it seems that the Respondent and the Unions were at cross-purposes about the meaning of the same. Both sides thought they were maintaining the status quo (although they did not know that they did not agree on what the status quo was).

[36] Because there are different alternate interpretations of clause 22.3 it is the case that the clause is invested with a measure of ambiguity and uncertainty. Thus, it is permissible for me to consider evidence of the surrounding circumstances as an aid to the task of interpreting the 2019 Agreement. In considering the context I regard it as relevant that clause 22.3 appears in the 2019 Agreement within a framework for recognising service. Clause 19 deals with classifications of positions. Clause 20 deals with employment history on engagement. Clause 21 deals with evidence of qualifications on engagement. Clause 22 then deals with recognition of previous service.

[37] In this context Option A does not conform with the intended operation of the scheme of the 2019 Agreement. The notion that there is some “carry-over” is not an available interpretation. It is an interpretation that frustrates the scheme of recognition inherent in the drafting of the 2019 Agreement taken as a whole. There is no basis for attaching the “maximum four years” in a way that “caps” the benefit at 3 years with a carry-over. It does not give meaning to a ratio of 1 year for every 3 years. I reject the construction advanced by the Respondent.

[38] A proper consideration of the 2019 Agreement when taken as whole, results in the conclusion that the “maximum of 4 years’ attaches to the grouping of every three years (such that it maxes out at 12 years). The construction contended for by the UWU is correct.

Berri Principle 2 – do not rewrite the 2019 Agreement

[39] The task I have performed does not involve a rewriting of the 2019 Agreement to achieve what might be regarded as a fair or just outcome. That is not the role of the Commission in interpreting agreements. The Agreement before me is that which was produced by the parties. An ordinary reading of the words in clause 22.3 does not result in the contortion that otherwise arises out of the Respondent’s interpretation.

Berri Principle 3 – determine the common intention of the parties

[40] It is very clear from the evidence that the subjective intention of the parties during the bargaining for the 2019 Agreement was different. Although both the Respondent and the IEU wanted to confirm the operation of clause 22.3(v), both parties came from different starting positions. There was no shared understanding about how clause 22.3(v) operated. Yet, both parties thought that they were clarifying their respective interpretations.

[41] Considering the matter objectively there was no intention to alter the meaning of clause 22.3 as from the 2012 Agreement to the 2019 Agreement.

[42] Much of the evidence centred around what was said at the bargaining meeting on 8 November 2018. I accept that Ms Robinson explained how the Respondent applied clause 22.3. Ms Heron does not recall the conversation. Nothing turns on this. It is not evidence that the parties agreed about how clause 22.3 operated. It does not assist me in the interpretation of the 2019 Agreement. It does not evidence a common intention of the parties.

[43] The only common intention of the parties that can be discerned arises from the scheme of classification and recognition contemplated by the 2019 Agreement read as a whole. It cannot be that the common intention was for a clause 22.3 that operates in such a limited way as contended by the Respondent.

Berri Principle 4 – Part 2-4 of the FW Act

[44] To paraphrase the Full Bench held in Berri it may be inferred that [the Agreement was] was intended to establish binding obligations. This is an important contextual consideration. The interpretation contended for by the Respondent is inconsistent with there being a binding obligation about how prior service is properly recognised.

Berri Principle 5 – parties vs persons covered

[45] This principle is not relevant to the interpretation of the Agreement in the present matter.

Berri Principle 6 – modes of textual analysis

[46] In the present matter I have not applied an overly technical approach to the interpretation of the Agreement.

Berri Principle 7 – Plain meaning

[47] I have dealt with the plain meaning above.

Berri Principle 8 – surrounding circumstances

[48] I have explained above that it is apparent that there is ambiguity or uncertainty in the operation of clause 22.3.

Berri Principle 9 – Do not contradict plain language.

[49] In the present matter the interpretation I have adopted does not contradict the plain language of clause 22.3 or the Agreement as a whole.

Berri Principle 10 – consider surrounding circumstances to resolve ambiguity

[50] As I have explained above, I have considered the surrounding circumstances to resolve the ambiguity in clause 22.3.

Berri Principle 11 – establish objective facts

[51] In the present matter I have not relied upon evidence that only supported the subjective facts or intention of the parties.

Berri Principle 12 – evidence of objective background

[52] In the present matter I was not assisted by the evidence about the negotiations for the Agreement. The evidence did not tend to establish objective background facts known to all parties.

Berri Principle 13 – cautious approach to certain evidence

[53] Noting that there was a diversity of interests between the Respondent and the Unions in bargaining for the Agreement I have adopted a cautious approach to evidence about the negotiations. The better course has been not to rely upon it as an aid to interpreting the Agreement.

Berri Principle 14 – extrinsic material

[54] In the present matter I have not relied upon extrinsic material.

Berri Principle 15 – subsequent conduct

[55] In the present matter I have not relied upon subsequent conduct in interpreting the Agreement.

Application to Ms Matthews

[56] In the present matter the relevant classification, Long Day Care Teacher – 4 years trained, is not in dispute. The classification has 9 steps with increased rates of pay. Progression through the steps is based on the attainment of certain hours that comprise a fully year of service. As explained above the Agreement then provides for a system of recognising prior service.

[57] The facts in this matter establish that:

a) Between 1983 and 1997 (14 years) Ms Matthews worked in a role where her Diploma qualification was relevant to the same.

b) Between 2013 and 2019 (six years) Ms Matthews worked in roles with the Respondent where her Diploma qualification was relevant to the same.

c) Since July 2019 ((15 months) Ms Matthews has worked for the Respondent in a role where her Diploma qualification is relevant to the same.

[58] Where this is a dispute about whether periods of Ms Matthews’ service counts, that is not a dispute that needs to be resolved. This is because Ms Matthews’ 14 years of service with Leppington “caps-out” at 12 years for the purpose of the operation of clause 22.3.

Conclusion

[59] For the reasons set out above, the Commission, as presently constituted, is satisfied that Ms Matthews should be classified as a “Long Day Care Teacher – Four Year Trained – Step 5” (LDC T 4YR S5). That classification should have been applied since 13 July 2019.

COMMISSIONER

Appearances:

J Davis, Lead Industrial Officer (NSW/ACT) for United Workers' Union.

A Perigo of Counsel, assisted by M Doyle, Nexus Law for KU Children’s Services.

Hearing details:

2020.
Sydney (by video).
18 June.

Final written submissions:

Applicant, 3 July 2020
Respondent 16 July 2020
Applicant reply 24 July 2020

Printed by authority of the Commonwealth Government Printer

1 However, the Respondent is paying Ms Matthews as a “Preschool Teacher – Four Year Trained – Step 2” (P/SCH T 4YR S3).

2 Clause 9 of the Agreement

3 Clause 9.6(a) of the Agreement

4 Clause 9.6(b) of the Agreement

5 [2019] FWCA 3215

6 Ibid, 4.

7 Clause 3.1 of the Agreement.

8 [2019] FWCA 3215, 3.

⁹ The Respondent sort permission to be represented by a lawyer. The UWU did not oppose the application. I was satisfied that (1) the matter was invested with complexity, and (2) that I would be assisted in the efficient conduct of the matter if permission to be represented was granted to the Respondent. I granted permission pursuant to s.596 of the FW Act (Transcript PN17).

10 Exhibit 4, para 1

11 Exhibit 4, para 3

12 Exhibit 4, para 4

13 See letter from ACECQA at BM-2 to Exhibit 4

14 Exhibit 4, para 7

15 The Respondent led no evidence that the Diploma qualification was not useful in the performance of a Director role.

16 Exhibit 4, para 10

17 Exhibit 4, para 12

18 BM-4 to Exhibit 4

19 Exhibit 4, para 16

20 JR-7 to Exhibit 7

21 JR-8 to Exhibit 7

22 JR-9 to Exhibit 7

23 Exhibit 4, para 22

24 Exhibit 4, para 18

25 Exhibit 4, para 19

26 Exhibit 4, para 23

27 Exhibit 4, para 47

28 Exhibit 4, para 49

29 Exhibit 7, para 5

30 Exhibit 7, para 8

31 BM-16 to Exhibit 4

32 BM-16 to Exhibit 4

33 BM-16 to Exhibit 4

34 BM-16 to Exhibit 4

35 BM-16 to Exhibit 4

36 I accept that that Ms Robinson explained how the Respondent applied clause 22.3. Ms Heron does not recall the conversation. Nothing turns on this. It is not evidence that the parties agreed about how clause 22.3 operated. It does not assist me in the interpretation of the 2019 Agreement.

37 [2014] FWCFB 7447 (‘Golden Cockerel’).

38 Ibid 41.

39 [2017] FWCFB 3005 (‘Berri’).

40 (2005) 222 CLR 241.

41 Ibid 246.

42 Berri (n 23) 10, [41] quoting Amcor Limited v CFMEU (2005) CLR 241, 246 (Gleeson CJ, McHugh J); 262 (Kirby J) 262.

43 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355,382 per (McHugh, Gummow, Kirby and Jayne JJ).

44 [2017] FWCFB 1621 at [21].

45 Kucks v CSR Limited (1996) 66 IR 182 at 184.

46 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440; See in general Golden Cockerel at [19]–[22].

47 [2006] FCA 616.

48 Ibid at 26.

49 [2015] FCAFC 142.

50 Ibid at 108.

51 UWU v La Trobe Respondent [2015] FCAFC 142 at [109] per White J.

52 (2009) 188 IR 297 at [19]-[22].

53 (1982) 149 CLR 337.

54 Ibid at 352.

55 Ibid.

56 Ibid.

57 (1996) 66 IR 182 at 184.

58 [2017] FCA 346 at 29.

59 See Howard Smith and Co Ltd v Verawa (1907) 5 CLR 68 at 78; Farmer v Hanon (1919) 26 CLR 183 at 197 and White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 at 275 and 281.

60 Administration of Papua New Guinea v Daera (1973) 130 CLR 353 at 446; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348.

61 (2008) 251 ALR 322 at [35] per Gummow, Hayne and Kiefel JJ, and at [163] per Heydon J.

62 [2009] NSWCA 407 at [319] per Allsop P.

63 Metcash at [330].

64 (1994) 36 NSWLR 290 at 304.

65 Ibid at 312.

66 Ibid.

67 (1978) 95 DLR (3d) 242 at 262.

68 Berri (n 23) 22–23 [114].

69 (2017) 268 IR 285

70 Exhibit 7, Statement of Jan Robinson dated 4 June 2020 at [27]

71 Exhibit 7, Statement of Jan Robinson dated 4 June 2020 at [28]

72 Exhibit 7, Statement of Jan Robinson dated 4 June 2020 at [29]

73 (2017) 268 IR 285

74 (2017) 268 IR 285 at 114

75 See Kucks v CSR Limited (1996) 66 IR 182 at 184

76 (2005) 222 CLR 241

77 (2005) 222 CLR 241 at 96

78 H9100, 4 August 1989

79 UWU Final Submissions dated 3 July 2020 at [10]

80 Exhibit 4, Statement of Bronwyn Matthews dated 20 May 2020 at [7]

81 Exhibit 4, Statement of Bronwyn Matthews dated 20 May 2020 at [8]

82 Exhibit 4, Statement of Bronwyn Matthews dated 20 May 2020 at [10]

83 Transcript 18 June 2020 at PN134 – PN138, PN163, PN164, PN223

84 Exhibit 7, Statement of Jane Robinson dated 4 June 2020 at [25], [28]

85 UWU Final Submissions dated 3 July 2020 at [19]

86 Exhibit 7, Statement of Jane Robinson dated 4 June 2020 at [5]

87 Exhibit 7, Statement of Jane Robinson dated 4 June 2020 at [8]

88 Exhibit 7, Statement of Jane Robinson dated 4 June 2020 at [10]

89 Exhibit 7, Statement of Jane Robinson dated 4 June 2020 at [16]

90 Exhibit 7, Statement of Jane Robinson dated 4 June 2020 at [13]

91 Exhibit 8, Statement of Verena Heron dated 12 June 2020 at [6]

92 Exhibit 8, Statement of Verena Heron dated 12 June 2020 at [8]

93 Exhibit 7, Statement of Jane Robinson dated 4 June 2020 at [12], Annexure JR2

94 UWU Final Submissions dated 3 July 2020 at [24]

95 UWU Final Submissions dated 3 July 2020 at [25]

96 Exhibit 7, Statement of Jane Robinson dated 4 June 2020 at [15]

97 UWU Final Submissions dated 3 July 2020 at [28]

98 Exhibit 7, Statement of Jane Robinson dated 4 June 2020 at [16], transcript 18 June 2020 at PN434 – PN438

99 UWU Final Submissions dated 3 July 2020 at [29]

100 UWU Final Submissions dated 3 July 2020 at [31]

101 Transcript of Proceedings, Bronwyn Matthews at PN 127 – PN 136

102 Respondent’s Outline of Submissions at [36]

103 Respondent’s Final Submissions at [19]

104 Annexure BM-4, Statement of Bronwyn Matthews dated 20 May 2020

105 Transcript of Proceedings, Bronwyn Matthews at PN 173

106 Transcript of Proceedings, Bronwyn Matthews at PN197 – PN 214

107 Applicant’s Outline of Submissions at [26] – [28] and [34]

108 Respondent’s Final Submissions at [37]

109 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (2017) 268 IR 285, Full Bench at [114]

110 Kucks v CSR Limited [1996] IR 166, 182.

United Workers' Union v Ku Children's Services

[2020] FWC 5530

16 OCTOBER 2020

DECISION