Van Minh Nguyen v Linfox Australia Pty Ltd t/a Linfox Australia
[2020] FWCFB 1553
•23 MARCH 2020
| [2020] FWCFB 1553 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Alan Paull; Alex Chau; Ante Buble; Chris Speed; Derek Haycock; Ender Dogu; Esho Sefou; Frank Pisano; Glen Broughton; Glen Smith; Kim San Bui; Loc Tran; Mario D’Andrea; Matko Ilicic; Paul Humay; Peter Sikaleski; Peter Whitney; Phat Huynh; Rob Morrow; Steve Peterson; Tam Thanh Vo; Tho Au; Thomas Avram; Thuy Dang; Trent Murphy; Van Minh Nguyen
v
Linfox Australia Pty Ltd t/a Linfox Australia
(C2019/7825)
VICE PRESIDENT HATCHER | SYDNEY, 23 MARCH 2020 |
Appeal against decision [[2019] FWC 7345] of Commissioner Lee at Melbourne on 2 December 2019 in matter number C2018/5552.
Introduction
[1] This is an appeal by 26 employees (appellants) of Linfox Australia Pty Ltd t/a Linfox Australia (Linfox) against a decision of Commissioner Lee of 2 December 2019 1 (decision). The decision was made in the exercise of arbitral powers conferred on the Commission by the dispute resolution procedure in clause 33 of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2018 (2018 Agreement), and determined an application made pursuant to s 739 of the Fair Work Act 2009 (FW Act) by 30 employees of Linfox (of whom the appellants are a sub-set) for the Commission to resolve a dispute pursuant to clause 33. The dispute concerned whether Linfox could direct the applicant employees to perform picking work as part of their duties in ordinary time at Linfox’s Regional Distribution Centre in Truganina, Victoria (RDC). The employees contended that they could not be directed to perform picking work because there existed an “industrial custom and practice” that they would not be required to perform such work. Arising from this contention, the parties asked the Commissioner to determine the following questions:
“Is there an ‘industrial’ rather than a ‘contractual’ custom and practice for the purposes of clause 5 of the Agreement, to the effect that the 30 Applicants do not perform picking work as part of their ordinary duties?
If the answer to the question is ‘no’ the dispute is resolved.
If the answer to the question is ‘yes’, is Linfox Australia Pty Ltd prevented from discontinuing that custom and practice?”
[2] The Commissioner answered “no” to the first question and, in the alternative, “no” to the second question. The appellants contend that the Commissioner erred in a number of respects in stating these answers.
[3] Permission to appeal is not required because clause 33 of the Agreement provides a right of appeal so long as this right is exercised within 21 days of the decision being appealed. The notice of appeal was lodged within this timeframe, and therefore the task of the Full Bench is confined to determining whether the appeal should be upheld or not.
Background
[4] The RDC operated by Linfox supplies groceries to Coles stores in Victoria. It was operated by Westgate Logistics Pty Ltd (Westgate) until about 2007. A large number of Westgate employees transferred their employment to Linfox when Linfox took over the operation of the RDC. Approximately half of the workforce at the RDC, and all of the appellants, are ex-Westgate employees.
[5] Linfox has on various occasions attempted to require RDC employees, including forklift drivers who are ex-Westgate employees, to perform picking duties at the RDC, but this has been resisted by elements of the workforce. In 2015, the (then) National Union of Workers (NUW) applied for the Commission to deal with a dispute pursuant to the dispute resolution procedure in the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 (2014 Agreement). The dispute the subject of that application concerned eight employees who had been directed to perform picking duties. Five of them were ex-Westgate employees on behalf of whom it was claimed by the NUW that their original contract of employment with Westgate provided that they would be employed in specific positions such that it would be unlawful to direct them to perform picking duties. In respect of the other three, it was said that there was a custom and practice they not be required to perform picking duties, and reliance was placed upon clause 5 of the 2014 Agreement, which provided:
5. CUSTOM AND PRACTICE
5.1 This Agreement is not intended to, nor shall it, alter a custom and practice applicable to the parties.
5.2 It is the intention of the parties to this Agreement to, during the Term, attempt to reduce to writing any custom and practice applicable to Linfox and the Employees.
5.3 The parties will review and where agreed create a local agreement arising from the custom and practice in accordance with Clause 34.
5.4 Any dispute about the operation of this clause is to be dealt with in accordance with the disputes procedure in this Agreement.
[6] The above provision is reproduced in the 2018 Agreement.
[7] In a decision issued on 1 June 2016, 2 Commissioner Gregory rejected the contentions advanced by the NUW. In respect of the five employees who relied upon their contracts of employment, the Commissioner determined that the requirement to perform picking work was consistent with and not prohibited by the terms of their contracts of employment. In respect of the three employees who relied on an alleged custom and practice, the Commissioner determined that it was not appropriate to deal with the matter further; instead, the NUW should establish the existence of the alleged custom and practice and then have it dealt with pursuant to clauses 5.2 and 5.4 of the 2014 Agreement.
[8] Shortly after this decision was published, 34 employees made applications under s 739 of the FW Act for the Commission to deal with a dispute under the dispute resolution procedure in the 2014 Agreement. The subject matter of the dispute was essentially the same as that which had been the subject of the NUW’s application in 2015, namely a requirement by Linfox that they together with all other employees perform picking work. The applicants were, with one exception, ex-Westgate employees, and a number of them are appellants in the matter before us. They claimed the existence of a custom and practice protected by clause 5 of the 2014 Agreement to the effect that employees such as forklift drivers performed defined roles which could not be changed by Linfox. In a decision issued on 3 November 2017, 3 Commissioner Gregory determined that he was not satisfied that the alleged custom and practice existed such that it could be implied into the employees’ contracts of employment on the basis of the criteria determined by the High Court in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd4 (noting that the employees had advanced their case on the basis of the Con-Stan principles).
[9] There was then an appeal of this decision by 33 of the employees. In a decision issued on 16 March 2018, 5 a Full Bench of the Commission dismissed the appeal on the basis that Commissioner Gregory had correctly applied the principles in Con-Stan in response to the case advanced by the employees. In doing so, however, it made some observations about the construction to be given to clause 5 of the 2014 Agreement. So far as relevant to the current proceedings, these may be summarised as follows:
• clause 5 of the 2014 Agreement was not necessarily concerned with any custom and practice which might be implied into an employee’s contract of employment on the basis of the criteria stated in Con-Stan; it was rather concerned with “industrial” custom and practice”;
• an “industrial” custom and practice will have emerged from an industrial arrangement or settlement and acknowledged by those involved in it;
• but in the context of an enterprise agreement the alleged arrangement must be so well-known and acquiesced in that everyone voting upon the agreement knew that it was encompassed by any reference to custom and practice in the agreement;
• a custom and practice is something more than what has been done, or not done, in the past, and the mere fact that employees have never been required to perform a task before is not likely to be sufficient to establish a custom and practice in that respect;
• clause 22 of the 2014 Agreement, which requires employees to comply with lawful and reasonable directions, cannot be said to be a provision of the 2014 Agreement to which clause 5.1 could apply because it was contained in the previous three enterprise agreements;
• given that clauses 15 and 17 of the 2014 Agreement emphasised Linfox’s requirement for a workforce that could be flexibly deployed and was not subject to outdated work practices, and clause 32 allowed for the introduction of workplace change by Linfox after consultation with employees, it was unlikely that clause 5 was intended to preserve the type of practice which the employees contended existed;
• there had been no equivalent to clause 5 in previous agreements, which raised a question how the alleged custom and practice could have existed at the time the 2014 Agreement was made given the pre-existing requirement under the earlier equivalents of clause 22 to comply with lawful and reasonable directions; and
• when the new “custom and practice” provision appeared as clause 5 of the 2014 Agreement, it did so against a background of industrial regulation that afforded Linfox the right to direct employees to follow lawful and reasonable instructions and, at least from 2008 to 2011, additional discretion to have employees carry out such duties as were within the limits of their “skill, competence and training”.
[10] The Full Bench concluded by saying:
“[45] Any fresh dispute that might be brought to the Commission seeking to establish that there exists an ‘industrial’, rather than ‘contractual’, custom and practice for the purposes of clause 5 of the Agreement, to the effect that the employees in question do not do pick work as part of their ordinary duties, would need to explain how the alleged custom and practice developed or survived in the context of the industrial instruments discussed above, including in particular, the Agreement itself.”
[11] One might have thought that the employees, properly advised, would have been deterred by the Full Bench’s decision from any further agitation of the issue unless compelling answers were available to each of the Full Bench’s observations summarised above. However, the employees appear to have regarded paragraph [45] as an encouragement to press on at full speed and thus, only ten days after the Full Bench decision was issued, some 30 employees lodged new s 739 applications seeking that the same dispute be resolved on the basis that there was an “industrial” custom and practice protected by clause 5 of the 2014 Agreement which prevented the employees from being directed to perform picking work. This matter had proceeded to arbitration and was part-heard when the 2018 Agreement came into effect and replaced the 2014 Agreement. That caused new applications to be made for the dispute to be resolved pursuant to the dispute resolution procedure in the 2018 Agreement, with reliance now placed on clause 5 of that Agreement. These were the applications which were the subject of the decision under appeal.
The decision
[12] Near the outset of the decision, the Commissioner noted that he had given the applicant employees permission for legal representation under s 596 of the FW Act, but that their counsel proved to be an “erratic representative”. The Commissioner, after reviewing the history of the matter and summarising the evidence given by the various witnesses, made the following significant findings of fact:
• a number of the applicant employees had previously undertaken picking duties as part of their ordinary duties to some extent, but not to a significant degree;
• he was not satisfied that there was an industrial agreement, arrangement or settlement that the applicant employees were not required to perform picking work as part of their ordinary duties either prior to the 2014 or 2018 Agreements coming into force or after; and
• on each attempt which Linfox had made to have the applicant employees perform picking duties, this had been met with a refusal to do so, disputation and a reliance on the status quo provision in the disputes resolution procedure.
[13] Significantly, in the course of making the above findings, the Commissioner made adverse credit findings concerning the persons the applicant employees called to give evidence.
[14] The Commissioner noted that the applicant employees continued to rely on their original contracts of employment with Westgate notwithstanding that this issue had already been disposed of by Commissioner Gregory in his 2017 decision, and agreed with the conclusion reached about that matter in that decision. The Commissioner found that, under the classification structure in the Road Transport and Distribution Award 2010 which is incorporated into the 2018 Agreement, employees in any classification could be required to perform duties in a lower classification, including picking duties. He dismissed as misconceived the employees’ reliance on the Federal Court decision in Lacson v Australian Postal Corporation. 6 He then referred to the observations made in the Full Bench decision (summarised above) and on the basis of what the Full Bench said stated the following conclusions (footnote omitted):
“[139] I agree with the observation of the Full Bench and in particular that which has been emphasised above. Having regard to the facts determined in this matter, it apparent that the majority of the Applicants have in fact performed picking work during their ordinary duties. While the Full Bench observed that the mere fact that employees have never previously performed a task is not likely to be sufficient to establish that there is a custom and practice, the facts are that the Applicants do not even meet that threshold of having never performed the picking task as part of their ordinary duties. I have found consistent with the earlier finding of Commissioner Gregory that the Applicants do not regularly perform picking work as part of their ordinary duties. The reason this is the case is the continual refusal of the Applicants to pick as a part of their ordinary duties, despite the efforts over the years of the Respondent to have them do so.
[140] This has led in turn to numerous disputes over a number of years and application of the status quo provisions of the various enterprise agreements applying to the Applicants over the period of time. The evidence shows the true state of affairs is ongoing disputation over this matter, not the application of a custom and practice. Thus, applying the first of the observations of the Full Bench to the facts of this matter, it is apparent that the claimed industrial custom and practice of the Applicants not picking as part of their ordinary duties has not been established.
. . . .
[142] I agree with this observation of the Full Bench and in particular that which is emphasised above. I have determined in the consideration above, that the evidence does not demonstrate that there is any industrial arrangement or settlement in existence. The custom and practice held to exist by the Applicants is, having regard to the facts nowhere near being notorious or so well-known and acquiesced in that everyone could be presumed to have imported that term into an enterprise agreement. In that context, employees voting for the agreement could not have understood it to embrace the alleged custom and practice.
. . . .
[148] As discussed, the 2018 Agreement, the subject of this dispute, contains an analogous provision to the custom and practice provision in clause 5 of the 2014 Agreement that the Full Bench considered and therefore their observations continue to be relevant to the consideration here. That is, there needs to be an explanation of how the alleged custom and practice developed or survived in the context of the industrial instruments that preceded the 2014 Agreement including the 2014 Agreement itself. The short point is that there is no acceptable explanation forthcoming from the Applicants to address this matter. The evidence shows that prior to the coming into the effect of the 2014 Agreement, the Applicants performed some picking work as part of their ordinary duties. The evidence also shows that the reason this was the case was that the Applicants and the Respondent were in frequent dispute over the matter with the Applicants refusing to undertake requests of the Respondent that they perform picking work as part of their ordinary duties. Further, the evidence does not support a finding that there was any industrial agreement, arrangement or settlement of the type alluded to by the Applicants.
[149] Moreover, leading up to the time that the 2014 Agreement commenced operation, the Respondent had the discretion, pursuant to the relevant industrial instruments and the Applicants’ contracts of employment, to direct the Applicants to perform picking work as part of their ordinary duties and also had the discretion to alter the employees roles and duties subject to the de-skilling issue and general reasonableness. Neither of those limitations, in my view, inhibited the right of the Respondent to have the Applicants perform the picking task as part of their ordinary duties. This fresh dispute that the Full Bench contemplated might be brought has manifestly failed to explain how the alleged custom and practice developed or survived in the context of the industrial instruments that applied to the Applicants since 2008, including the 2014 Agreement and the 2018 Agreement.”
[15] As earlier stated, the Commissioner answered “no” to both the first and second questions posed for determination. In respect of the second answer, the Commissioner gave the following reasons (footnote omitted):
“[154] The reason for reaching that conclusion should be clear from the foregoing consideration of the proper construction of the terms of the agreement set out above. That is, those that made the Agreement cannot have really intended clause 5.1 to preserve the alleged non-practice of not performing picking work as part of the Applicants’ ordinary duties given the other provisions referred to. The reading of those provisions referred to together compel that conclusion. Also, pursuant to the 2018 Agreement, the Applicants are remunerated in accordance with their respective classification levels rate of pay. The entitlement to these rates of pay arises from clause 90.2(c) of the 2018 Agreement. When clause 90.2 (c) and clause 90.2 (f) (which incorporates the Road Transport and Distribution Award 2010, including its classification structure) and clause 90.4 and clause 22.1(b) are read together, then the Respondent can instruct employees in accordance with their classification level to comply with reasonable and lawful instructions of management which they must follow at all times.
[155] Further, the express terms of the Applicants’ employment contracts provide that their “...duties and responsibilities...may change from time to time point” and “...you may be required to work...in an alternative warehousing and distribution position.” It follows that even if there is a custom and practice, the terms of the 2018 Agreement and the Applicants’ contracts of employment do not prevent the Respondent from discontinuing that custom and practice.”
Consideration of the “appeal grounds”
[16] The appellants advanced their appeal not by stating grounds of appealable error in the conventional manner, but rather by posing twelve questions. It may be noted that in the Full Bench’s 2018 decision, in which the employees had the same legal representation as the appellants here, it was pejoratively observed that the notice of appeal contained “a series of questions” and “did not contain appeal grounds or allege error on the part of the Commissioner”. This is but one of many instances where little attention appears to have been paid by the appellants and their legal representatives to what was said by the Full Bench in its decision.
[17] We will deal with each question, and the submissions advanced by the appellants in respect of each question, in turn. However it is necessary to state at the outset that the case advanced on behalf of the employees before the Commissioner was hopeless. The appellants contended the existence of a custom and practice that they would not be required to perform picking duties which was preserved by clause 5 of each of the 2014 and 2018 Agreements notwithstanding that:
• Linfox had attempted to require them to perform such duties on a number of occasions prior to 2014, but they had simply refused and placed the issue in dispute;
• most of the rest of the workforce, including ex-Westgate employees, complied with directions that they perform picking duties; and
• many of the appellants had performed picking duties on occasion in ordinary time, and they had frequently done so in overtime.
[18] The above matters demonstrate in a straightforward fashion that the alleged custom and practice was neither notorious nor ever acknowledged by Linfox. The appellants’ response that Linfox in some sense acquiesced in or settled upon the existence of the custom and practice because it tolerated for many years the appellants’ refusal to comply with directions to perform picking work without taking the matter further verges on the risible. The appellants did not even attempt to address before the Commissioner the difficulties in their case identified in the Full Bench decision, including how the alleged custom and practice could have survived to the commencement of the 2014 Agreement when there was no equivalent to clause 5 in the preceding Linfox agreements in the face of other provisions in those agreements pointing to the requirement for a flexible workforce, the removal of restrictive work practices and compliance with lawful and reasonable directions. Their case for the existence of the alleged custom and practice did not in substance rise any higher than the fact that (for the most part) they had not performed picking duties before, despite the warning in the Full Bench decision that this would be unlikely to be sufficient to establish the existence of any custom and practice. For those reasons, we consider the Commissioner’s decision was correct.
[19] We now turn to the questions posed in the appellants’ notice of appeal.
1. Was the Commissioner so biased as against the Applicants, the Applicants’ witnesses and/or their legal representative that he was incapable of making an impartial decision?
[20] As framed, this question implies actual bias on the part of the Commissioner. However counsel for the appellants sought to reframe this as a contention of apprehended bias. The contention was advanced on the basis that the Commissioner’s “uncalled for” criticism of counsel as “erratic”, together with his adverse credit findings concerning the appellants’ witnesses, gave rise to a reasonable apprehension of bias. We reject this. Credit findings which are necessary to be made because of conflicts in the evidence cannot, without more, give rise to a reasonable apprehension of bias. There was no actual challenge to the credit findings in the notice of appeal, and having reviewed the transcript it is evident to us that the findings made by the Commissioner were wholly justified. And, because the issue has been raised in the appellants’ submissions, it is also necessary to say that we consider that the Commissioner’s criticism of the appellants’ counsel was open to be made.
2. Did the Commissioner err by failing to define how there could be a finding of “industrial” custom and practice before finding that there was no “industrial” custom and practice?
[21] The appellants submitted that the Commissioner decided that there was no “industrial” custom and practice, contrary to the appellants’ case, without first determining what the criteria were for establishing such a custom and practice.
[22] We reject the premise of the questions and the submission. As earlier set out, the Commissioner referred to and adopted what the Full Bench had said about what was necessary to establish an “industrial” custom and practice, and determined that the minimal criteria referred to by the Full Bench had not been made out by the appellants. Nor in any event did the appellants ever advance their own “definition” of what constitutes an “industrial” custom and practice; when pressed on the issue in the appeal their counsel simply said:
“Well, my response to you is that the best definition that we've got is this - the fact that there's a series of industrial disputes and resolutions of the disputes and the custom and practice continues after the end of those disputes. That's what I've said in paragraph 102.” 7
3. Did the Commissioner err by failing to define how there could be a finding that there was evidence of written “industrial” custom and practice of codified “industrial” custom and practice before finding whether there was an existence of “industrial” custom and practice?
[23] The submission made in relation to this question is that “The Commissioner appears to have accepted that any industrial custom and practice must necessarily have been written or codified”. However it is clear in the decision that he did no such thing. The parts of the decision referred to by the appellants in respect of this question are simply not demonstrative of this proposition.
4. Did the Commissioner err by failing to properly consider and give the appropriate weight to the Applicants’ evidence simply because he found it “difficult to follow”?
[24] This question appears to have arisen from a comment made by the Commissioner in paragraph [44] of the decision that “The Applicants’ evidence as to the alleged agreements that they not pick as part of their ordinary duties was for the most part, rather scrambled and often difficult to follow…”. We agree with the comment, insofar as the evidence given by the appellants to support the contention that Linfox in some sense “agreed” to them not performing picking work was generally incoherent and made little sense. We consider that the Commissioner appropriately considered this evidence in this connection and gave it the weight which it deserved.
5. Did the Commissioner err by failing to accept certain viva voce and/or written evidence of the Applicants in circumstances where that evidence was either unchallenged or there was no evidence before the Commission to suggest that the evidence of the Applicants was untrue?
6. Did the Commissioner err by failing to give the appropriate weight to certain viva voce evidence of the Applicants in circumstances where that evidence was either unchallenged or there was no evidence before the Commission to suggest that the evidence of the Applicants was untrue?
[25] We will deal with these questions together. In summary the appellants contend that the Commissioner did not properly consider a document (Exhibit MB5) relied upon by the appellants prepared in response to the evidence of Linfox in which they identified and explained the circumstances in which they had previously performed picking work. However this document was expressly referred to in paragraph [37] of the decision, and the Commissioner concluded in relation to the appellants’ evidence in this respect as follows:
“[41] The evidence clearly demonstrates that many of the Applicants have been involved in picking during their ordinary hours of duty, at least to some extent. I am not satisfied as to the evidence that they did so as a form of punishment or that they ‘volunteered’ to do so. The evidence led to that effect was rather self-serving and not credible. However, it makes little difference to the outcome. The fact remains that many of the Applicants have been involved in some picking work as part of their ordinary duties. It is not in contest that they perform picking work when they are engaged to perform overtime. It is also apparent that the Applicants have been trained in how to perform the task.”
[26] Moreover there was no challenge to the Commissioner’s overall finding, which if anything favoured the appellants, that they had not undertaken a significant amount of picking work as part of their ordinary duties prior to the 2014 Agreement.
7. Did the Commissioner err by failing to properly apply and consider the application of the rule in Jones v Dunkel?
[27] The appellants contend that that the failure of Linfox to call Mr Batsakis, a former employee who had been a manager at the RDC in 2008, to give evidence should have been the subject of an inference that the evidence would not have supported Linfox’s case. The submission advanced in this respect by counsel for the appellants was:
“… Mr Batsakis told Mel Bailey, who was a union representative, that Linfox wanted him to perform picking work and Mr Bailey said he wouldn't, and he pointed to his letter of offer and Linfox said it was going to honour it.” 8
[28] That evidence given by Mr Bailey referred to in the above submission, taken at its highest, does not support the existence of any “agreement” on the part of Linfox that the employees would not be required to perform picking duties. It rather demonstrates that for many years before the 2014 Agreement came into effect, Linfox was attempting to have the employees perform picking work, and the evidence was that this continued after the purported conversation referred to. There was no credible evidence which required rebuttal, and accordingly the rule in Jones v Dunkel had no application. We consider that the Commissioner correctly appreciated the situation when he said in paragraph [59] of the decision:
“Having regard to that consideration, the rule only applies where a party is required to explain or contradict something, and this depends on the issues thrown up by the evidence in a particular case. In this matter, while the Applicants claim that there was an agreement, this claim is itself was contradicted by numerous of the Applicants who accept that the matter has been the subject of disputation for many years since 2008.”
8. Did the Commissioner err by finding that the status quo was maintained by the Respondent for the period of 2007 to 2015 in circumstances where there was no evidence before the Commission to support such a conclusion?
[29] This question is based on a misrepresentation of the decision. The reference to the “status quo” in paragraph [140] of the decision, which we have earlier set out, was to the application of the status quo provision in the dispute resolution procedure found in the various agreements that operated over that period. Those status quo provisions were engaged because employees placed in dispute directions made by Linfox that they perform picking work.
9. Did the Commissioner err in finding whether there was “industrial” custom and practice insofar as he wrongly applied contractual legal concepts instead?
[30] This question misrepresents what occurred. It was the appellants who reverted to reliance on the existence of a purported contractual requirement, despite the rejection of this proposition in Commissioner Gregory’s decision of 2017. Because it was raised again, the Commissioner was obliged to respond by saying in paragraph [122] of the decision:
“I agree with the reasoning of the Commissioner on that point. Whether or not the principles in Con-Stan apply or not, the fact is that the terms of the contracts relied on by the Applicants expressly allow their duties and responsibilities to change.”
10. Did the Commissioner err by failing to properly apply and consider the matter of Lacson v Australian Postal Corporation [2019] FCA 51 (“Lacson”)?
[31] Lacson concerned the proper construction of s 52(2) of the FW Act. That provision had no relevance to the matter before the Commissioner, as he correctly found.
11. Did the Commissioner err by failing to properly apply and consider the matter of TWU v Linfox Australia Pty Ltd [2016] FWC 908?
[32] This question refers to a 2016 decision of Commissioner Roberts in which it was determined that there was a practice at a Linfox site covered by the 2014 Agreement relating to work on public holidays to which clause 5 applied. This determination was made on the basis of an acceptance of the evidence of witnesses called by the union in that case. The appellants have not advanced any coherent submission as to why that decision, which turned on its own facts, needed to be considered and applied by the Commissioner. We note that in this case, by comparison, the evidence given by the appellants’ witnesses was not regarded as credible.
12. Did the Commissioner err by failing to properly apply and consider the decision of the Full Bench in the matter of AMWU v Berri Pty Ltd of 9 June 2017 (C2017/857) (the “Berri decision”)?
[33] The appellants contended that there was an “inherent ambiguity” between clauses 5 and 22.1(b) of the 2018 Agreement which necessarily required resolution in accordance with the principles stated in the Full Bench decision in AMWU v Berri. 9 Counsel for the appellants described the purported “inherent ambiguity” in the following way:
“Yes, well, we say that if it was the position that there is a custom and practice applicable to the parties - I mean, this is, we say, the inherent conflict - there is a custom and practice applicable to the parties, and we've got this managerial prerogative to direct employees to do other duties, it's inherently going to conflict.” 10
[34] The ambiguity described is not between clause 5 and clause 22.1(b) of the 2018 Agreement, but between the purported custom and practice and clause 22.1(b). The Commissioner found that the asserted custom and practice did not exist, and one of his reasons for doing so (in paragraph [144] of the decision) was that earlier equivalents of clause 22 existed in the agreements applying before the 2014 Agreement and were inconsistent with the existence of the custom and practice as at the commencement of the 2014 Agreement. In the circumstances described, the decision in Berri did not arise for consideration.
Conclusion
[35] For the reasons set out above, the twelve questions stated by the appellants in their notice of appeal and the submissions made in connection thereto do not identify any appealable error in the decision. We are wholly satisfied that the Commissioner correctly answered the questions posed to him for determination. Accordingly, the appeal is dismissed.
VICE PRESIDENT
Appearances:
Ms G Jardine of counsel with A Murdoch for the Appellants.
Mr D Jones for the Respondent.
Hearing details:
2020.
Sydney:
20 February.
Printed by authority of the Commonwealth Government Printer
<PR717732>
1 [2019] FWC 7345
2 [2016] FWC 3039
3 [2017] FWC 5751
4 [1986] HCA 14, 160 CLR 226, 64 ALR 481
5 [2018] FWCFB 1563
6 [2019] FCA 51, 284 IR 449
7 Transcript, 20 February 2020, PN152
8 Transcript, 20 February 2020, PN446
9 [2017] FWCFB 3005, 268 IR 285
10 Transcript, 20 February 2020, PN676
2