Alcoa of Australia Ltd v the Australian Workers' Union

Industrial Relations Commission (NSW)|2014-07-16|Before: Staff J

Mr A Herbert with Mr M Moy for the respondent File Number(s): IRC 952 of 2013

Judgment

This matter was subject to a dispute notification made pursuant to s 332 of the Industrial Relations Act 1996 (the Act) by the Transport Workers' Union of New South Wales (the Union). The respondent employer is Cement Australia Pty Ltd (the Company).
The dispute notification stated the Company engaged approximately 25 subcontract carriers (the contract carriers) who provide prime mover vehicles to transport cement within New South Wales using a single load company supplied tanker trailer. The Company was previously known as Australian Cement as named in the Agreement.
The relevant industrial instrument is the Cement Australia - TWU Contract Agreement (CA 05/1) (the Agreement) approved pursuant to s 323 of the Act.
The notification further stated:

the Agreement prohibits the contract carriers from performing work for other transport providers;
the Company "has increasingly adopted a practice of engaging casual carriers" (otherwise known as third party commercial contracting firms and outside hire) to perform the work that the casual carriers had traditionally performed, causing them to lose significant amounts of work and income. No specific remedy was outlined in the dispute notification. The dispute was subject to extensive conciliation before Staff J.

Mr Hendrik Van Spronssen

Mr Van Spronssen deposed he was aged 66 and had been a contract carrier with the Company for 26 years. He had also served as a delegate or co-delegate for much of the past 15 years. Despite "experiencing a bit of trouble with my memory", Mr Van Spronssen stated that in preparing his evidence, he had referred to the minutes of a certain meetings that dealt with the making of the Agreement in or around the time frame from 1999 to 2001.
Mr Van Spronssen said that in or around 1999, contract carriers commenced discussions concerning the making of a contract agreement with a Company representative by the name of Mr Sean Clarke, a person who at the time held himself out to have the authority to conduct negotiations. At that time, the contract carriers were concerned that they were losing work to company operated trucks operated by employee drivers and other subcontractors.
Mr Van Spronssen attended a meeting of contract carriers on 16 July 2000 at Auburn RSL Club. Mr Clarke also attended this meeting. Mr Van Spronssen referred to the minutes of that meeting set out under Attachment 'B' to his statement. Mr Van Spronssen's statement referred to a notation in the minutes that stated, "Agreement between the Company and lorry owner drivers will give all owners a definitive status." Mr Van Spronssen also observed that under "general business" the meeting also noted a concern regarding "the use of casuals when work was quiet".
Mr Van Spronssen also referred to the minutes of the meeting held at Auburn RSL Club on 1 March 2005 where reference was made the term, "Permanent Contractors" fleet in the context of negotiations between contract carriers and the Company concerning a reduction in carriage rates to ensure they remained competitive with company owned vehicles.
Mr Van Spronssen was not required for cross-examination.

Mr Grahame Hastings

Mr Hastings has been an official of the Union for approximately 8 years. His role with the Union involves the negotiation of contract agreements on behalf of contract carriers. A template contract agreement was set out under Attachment 'B' to his statement. It was Mr Hasting's evidence that the template agreements contained a preference of engagement provision in favour of the relevant contract carriers.
Mr Hastings deposed the Union sought to negotiate a "preference of engagement" clause in contract agreements to ensure that "as far as possible, full time workers are used to perform work…" In that regard, Mr Hastings referred to clause 17, Toll Commitment to Job Security, contained in a recently negotiated Federal enterprise agreement with Toll Transport Pty Ltd.
Mr Hastings deposed that in late 2013, Mr Mark Fransden, the Company's yard delegate contacted him concerning the fact that the contract carriers were being disadvantaged by the use of outside hire. Pittman Transport Pty Ltd was nominated by Mr Fransden as the prime culprit.
Mr Hastings deposed he was not involved in the negotiations concerning the Agreement. Notwithstanding that limitation, Mr Hastings referred to extrinsic materials that he had found within the file records of the Union concerning the making of the current Agreement. Those materials were set out under Annexures 'C' to 'G' of his statement. Mr Hastings did not explain the relevance of those Annexures.
Mr Hastings further asserted clause 9.2 of the Agreement was a "job security, preference of engagement" clause that should operate to ensure contract carriers were engaged before third party carriers.
Mr Hastings was not required for cross-examination.

Mr Mark Fransden

Mr Fransden has been engaged as a carrier for the Company for approximately 9 years. He is also the Union delegate for the Company's Auburn facility.
Mr Fransden deposed he "bought into the contract with the Company in 2005" and paid a significant amount of money for that right. At that time, he was unaware that outside hire carriers would be engaged by the Company to work alongside the contract carriers. He contended that he would not have made the purchase if he had known the Company would engage other carriers, who he speculated, could "operate at a cheaper rate than contract carriers".
Mr Fransden attached a copy of the contract executed between the Company and Mark Fransden Carrying Pty Limited in 2005.
Mr Fransden deposed he had received complaints from contract carriers who were "sitting at home" at times when the Company allocated work to outside hire contractors. He further contended that Pittman located at Dubbo had taken over a substantial amount of work that would normally be undertaken by the Company's contract carriers. He understood Pittmans operated 8 vehicles and he had personally been disadvantaged by the allocation of work to that company.
Mr Fransden stated the contract carriers, rather than another outside hire contractor, Multiquip Pty Ltd (Multiquip), should be transporting cement based product from the Lithgow and Morriset Power Stations to the Company's Clyde storage facility. Mr Fransden also expressed a similar concern that Prezioso Transport Pty Ltd (Prezioso) was engaged to undertake cartage to and from Canberra.
It was Mr Fransden's recollection that historically, the Company had only engaged Pittman when the carriers were too busy to complete "all the work required" which he considered was consistent with clause 9.2 of the Agreement.
Mr Fransden referred to a meeting of carriers held at the Auburn RSL Club on 5 June 2011 where Mr David Penfold, the then Operations Manager for the Company informed the contract carriers present that "they could get preference over company drivers and that all third party drivers would be phased out in time". Minutes of that meeting were set out in Attachment 'C' to his statement.
Mr Fransden was not required for cross-examination.

Mr Paul Caunt

Mr Caunt was appointed Capability and Planning Manager for the Company in November 2010. He is responsible for ensuring the Company has "safe, cost effective and customer focused road capability to meet the customer delivery profile".
Mr Caunt deposed the Company utilised three methods of transport for its products: 1. Direct employees; 2. Lorry owner drivers (also known as contract carriers); and 3. Commercial third party contracting firms.
Mr Caunt stated that historically, the Company had used commercial contracting firms to meet customer demand requirements and a business relationship has existed with one contracting firm since 1952.
Mr Caunt deposed that as at 25 March 2014, the Company had 62 direct full time employee drivers. It also engaged 28 contract carriers and a further three casual contract carriers on a limited and "as required" basis. Mr Caunt said the contract carriers had earned an average of $301,000 per driver in the year ended 16 December 2013. The average annual payments made to casual contract carriers for the same period was $201,000. He noted the casual contract carriers were free to perform work for organisations other than the Company.
Mr Caunt stated the Company had entered into a number of non-exclusive carriage contracts with third parties including Pittman, Multiquip, Prezioso and Brim's Coastal Cement Pty Ltd. He recalled that in late 2012, following the earlier closure of the Company's Kandos cement plant, the CSA Cobar mine subsequently required a competitive cartage rate as part of the Company's tender to supply cement to the mine from Newcastle, otherwise the contract may have been lost. Following the closure of the Kandos plant, the Company commenced sourcing cement from the Port of Newcastle.
Previous contracts with the CSA Cobar mine were based on single load road cartage from the Kandos plant because it was not feasible to operate B-double loads. Accordingly, the Company used a combination of single load direct employee drivers and single load contract carriers to transport cement from Kandos to Cobar.
Following the closure of the Kandos plant in 2011, cement for the CSA Cobar Mine was initially supplied from Newcastle using single load deliveries. However, the cost of transporting cement from Newcastle to Cobar using single load deliveries became prohibitive and the Company became concerned that it might lose this particular contract.
The Company subsequently reviewed transport options and decided to rail cement from Newcastle to Dubbo and utilise Pittman for onward road transport. Mr Caunt deposed Pittman began to operate "skel trailers" rather than tankers to transport the required cement.
The Company was able to retain its Cobar mine contract using the Pittman skel trailer model. It was Mr Caunt's evidence that the Company did not have the capital available at that time to purchase skel trailers and provide them to the contract carriers to operate.
Rail operations abruptly ceased when the rail provider was placed into liquidation. To remain competitive, the Company began to utilise Pittman B-double tanker trailers to transport cement from Newcastle to Cobar. This decision enabled the Company to dedicate its own B-double fleet to existing work and alleviate the need for further capital investment to provide a Company B-double fleet to service the Cobar mine contract. However, it was Mr Caunt's evidence that the objective of the Company was to source an alternate rail provider so as to enable the previous rail/road model to be re-implemented.
Mr Caunt deposed Pittman was used in "the broader Western NSW region" when contract carriers and the Company's direct employees had been utilised or in circumstances where the requirements of the customer could not be "fully accommodated" by the contract carriers and direct employees. Pittman was also used to supplement fleet availability on "big days right across the NSW network". Multiquip, Brimms and Prezioso were also engaged when the contract carriers and direct employees had been utilised or in circumstances where customer deliveries times could not be met. Copies of the Pittman and Prezioso contracts were attached to Mr Caunt's statement and marked PC-1 and PC-2 respectively.
Mr Caunt stated the rates paid by the Company for third party commercial delivery services were significantly higher than those paid to contract carriers. Accordingly, the Company's preference was to use contract carriers unless operational reasons demand the use of a third party commercial contractor. Mr Caunt cited the following circumstances or reasons why third party contractors may be engaged instead of contract carriers:

the Company and contract carriers fleet is fully utilised and cannot meet customer demand or is unable to accommodate customer delivery times requirements, particularly morning deliveries;
a third party contractor has the resources, expertise and capability to fulfil a delivery task that the Company does not see as its core business strength;
the Company does not have the resources, capital or equipment to meet delivery requirements using the current contract carriers or the direct employee vehicle asset base, such as the skel trailer that Pittman was able to provide for the Cobar mine contract; and
a third party contractor offers the most cost effective and sustainable delivery option as was the case with the Cobar mine contract.

In a supplementary statement, Mr Caunt noted the contract carrier's single load tanker trailer had a capacity of 26 tonnes and a third party supplied B-double trailer capacity was approximately 35 tonnes.
Mr Caunt also referred to two examples of contract carrier agreements set out as attachments PC-3 and PC-4 to his statement. Mr Caunt stated the cost modelling for all of the Company's contract carrier agreements was based on criteria relevant to a single prime mover and had no application whatsoever to B-double configuration. In the event the Company decided to purchase and supply B-double trailers to the contract carriers, the Agreement and the underlying cost models would require revision.
In cross-examination, Mr Caunt stated he was familiar with the operation of the Agreement. He also stated that as a general principle, the Company used its own trucks first, the contract carriers second and casual contract carriers third. He further confirmed that casual contract carriers were free to work for other companies and when engaged by the Company, they were provided with power pack trailers. Contractual arrangements for casual carriers differed from those applicable to contract carriers under the Agreement. He considered the Company's culture was "to allocate work to those 28 (contract carriers) as part of our daily planning routine".
Mr Caunt stated the various contracts in place between the Company and the contract carriers did not state that the carriers were afforded any preference for work.
Mr Caunt contended the Company allocated work to the contract carriers or a third party commercial provider based on volume, delivery time and customer requirements. However, he conceded that pursuant to the various contracts, the Company had discretion to determine the class of carrier to be used for a particular delivery.
In re-examination, Mr Caunt confirmed the Company engaged the Pittman B-double delivery model following the closure of the Kandos cement plant "to remain competitive" following the decision to supply cement from Newcastle. However, the Company's ultimate objective was to introduce its own B-double vehicles and "get that volume back across the company trucks" when sufficient capital becomes available. Mr Caunt also confirmed that the Company's use of third party carriers was necessary in regional New South Wales as a competitor was offering its customers B-doubles and double road trains. Without the option of B-double transport, "we would have lost the business".

Union Submissions

The Union considers the Company is operating unfairly by offering work to third party outside hire contractors such as Pittman to the detriment of the contract carriers who, in accordance with clause 7.1 of the Agreement, are unable to perform work for other principal contractors.
It was the Union's case that clause 9.2 of the Agreement operates to ensure the contract carriers obtain first preference to work that is required to be performed in the transport of cement product for the Company. In that regard, the Union contends clause 9.2 operates as a preference of engagement clause and restricts the Company's use of outside hire to those times when the carriers are unable to meet the workload "because of high volumes of work". The Union further contends the Company's position is that reference to the term "casual carriers" in clause 9.2 "only applies to contract carriers within the meaning of s 309 of the Act" and not third party outside transport providers.
The Union argued preference of engagement provisions were common amongst contract agreements and determinations particularly in circumstances where the carriers were bound to perform work for one principal contractor as was the case with the Company. In support of that proposition, the Union sought to rely on the evidence of Mr Hastings concerning the TWU "template agreements" which conferred preference of engagement to ensure full utilisation of contract carriers before the use of "outside hire" or "other carriers".
The Union submitted clause 9.2 contained no ambiguity and limited the Company's ability to engage "casual carriers" to those times the contract carriers are unable to meet the workload. In that regard, the Union referred to the common dictionary definition of the wording contained in clause 9.2: "Casual" means "employed only irregularly"; "Irregular", according to the Union, describes a carrier engaged outside of the Agreement. At the time the Agreement was made, the use of such outside carriers was deemed to be an exception to the norm and accordingly, they were described as being casual. "Carrier" is defined as "a person, company, etc., that undertakes to convey goods or persons. The ordinary meaning of the term, "casual carrier" can be reasonably held to describe a company that carries goods on an irregular basis.
The Union contended the intention of the parties at the time the Agreement was negotiated was that consistent with clause 3.1: 3.1 The Contract Carrier's service is integral and an essential part of the total service provided by Australian Cement.
The provisions of clauses 7.1 and 7.2, Contract Carriers provide the main source of carriage for the Company. Accordingly, a "casual carrier" therefore means a company that carries goods on an irregular basis. The term must be construed consistently with its ordinary meaning and the entirety of the Agreement.
The Union submitted the Commission may reasonably draw an inference that without "a qualifying clause such as clause 9.2", the Agreement may be held to be an unfair contract pursuant to s 106 of the Act. On the Company's construction, clause 9.2 provides no guarantee to a set amount of scheduled work nor does it provide an obligation to provide the carriers with available work. Conversely, the carriers are required to make their vehicles available 7 days per week with no opportunity to pursue alternative work in periods of down time.
The Union contended that in circumstances where the carriers stand idle without remuneration at times when available work is allocated to third party contracting firms amounts to unconscionable conduct by the Company.
The Union submitted that in the absence of the Agreement, the work of the carriers would be covered by the Transport Industry - General Carriers Contract Determination which does not hold an individual contract carrier to any particular principal contractor.
The Union further contended the reference to "casual carriers" in clause 9.2 needs to be considered in the context of the Agreement as a whole. It argued the contract carriers are able to "enforce as an obligation on the Company to provide them with available work before engaging outside hire". Moreover, the fact that clause 2.3 provides that a contract carrier has an obligation to provide a vehicle to "meet the operational needs" of the Company and clause 7.2 "requires a sufficient number of contract carriers to make their vehicles available for deliveries to meet operations requirements" strongly suggests the carriers are the primary source of transportation services for the Company.
The Union contended that if the Agreement comprehended that there was no obligation on the Company to provide the contract carriers with work, then clause 24, Termination was an unnecessary provision of the Agreement.
Clause 9.2 is ambiguous and the Commission should have regard to the intention of the parties at the time the Agreement was negotiated, that is, the parties' intention to maximise the engagement of contract carriers. In that regard, the Union relied on the template agreement used by the Union officers when negotiating agreements or enterprise agreements in the Federal jurisdiction.
The template agreement and the evidence of Mr Hastings underpin the importance accorded by the Union to the inclusion of a preference of engagement provision in an industrial instrument. Moreover, the Union's intention and practice when negotiating agreements was to include a preference of engagement provision and promote the security of engagement of contact carriers generally as identified in the evidence of Mr Fransden and Mr Van Spronssen.
The Union contended the Company shares its view about the meaning of "casual carriers" under clause 9.2, that is, "infrequently and episodically to cover short term occasional circumstances":

the use of Pittman to assist with deliveries in Western NSW; and
engaging Multiquip, Brimms and Prezisio during times of high work or where the Company fleet is unable to undertake the work.

The Union urged the Commission to consider the evidence of Mr Van Spronssen and the various minutes of meetings that took place prior to the Agreement being approved by the Commission which indicate the relevant intentions of the contract carriers and the Company at the time Agreement was under negotiation.
The Union submitted the Company had drafted the Agreement that was subsequently approved by the Commission and, in light of that fact, it was entitled to the protection of the contra proferentum rule, such that to the extent of any perceived ambiguity in wording, the Agreement should be construed in favour of the Union. The Union urged the Commission to apply the rule generally and specifically in respect to the interpretation of clause 9.2.

Company Submissions

At the outset, the Company submitted there was no indication in the dispute notification or written submissions concerning the precise form of relief sought by the Union. The Company also dismissed the Union's contention that the Agreement was an unfair contract on the grounds that it was validly made pursuant to s 322 of the Act and subsequently approved by the Commission.
The Company submitted the Union's contention was that clause 9.2 operates so as to obligate the Company to provide all of its transport work to the contract carriers before being in a position to offer any of that work to third party outside hire. Accordingly, on the Union's interpretation, a breach of the Agreement would occur in circumstances where a contract carrier is available and not working and outside hire has been utilised.
The Company submitted a cardinal rule of interpretation of an agreement was that the words in question are to be read in context and the contractual document is to be read as a whole. The Union's interpretation of clause 9.2: 9.2 Australian Cement may engage casual carriers when Australian Cement determines the Contract Carrier is unable to meet customer delivery requirements because of high volumes of work. requires the word "only" to be read into clause 9.2 where it currently does not exist, thereby inverting the meaning of the provision.
The Company considers the Union's interpretation also requires the expression "casual carrier(s)" in clause 9.2 to be changed to read "outside hire". These words and expressions do not form part of the Agreement as currently drafted. Moreover, in the event the word "only" was incorporated into clause 9.2, the Agreement would become an exclusive dealing contract, which it is demonstrably not.
The Company referred the Commission to clause 9.1 of the Agreement to support the proposition that the particular clause confers an unrestricted discretion upon the Company to determine the allocation of products to the contract carrier for delivery. The Company submitted that to construe the Agreement as operating otherwise would dramatically restrict the discretion conferred on the Company by clause 9.2 and further would import terms and concepts that do not currently appear in the Agreement. Moreover, contrary to the clear intent of clause 9.2 as presently drafted, the qualification sought by the Union would, if permitted, severely limit its discretion to allocate product for delivery.
Clause 9.2 is a "permissive provision which confers upon the Company a right to engage casual carriers in vaguely defined but limited circumstances". It is silent as to the Company's right to engage short or long term carriers or any other type of contractor not identified within the clause itself. Put alternatively, clause 9.2 is unnecessary other than to explain that in the event a particular delivery requirement Is not being met by the contract carriers, the Company can utilise casual contract carriers to promptly meet those delivery requirements.
Clause 9.2 is incapable of the interpretation sought by the Union that the Company must provide all available work exclusively to the contract carriers and only in circumstances where the carriers are determined to be unable to meet customer delivery requirements can the Company make alternate arrangements. Further clause 9.2 cannot be interpreted to infer that the parties contemplated the existence of an exclusive dealing arrangement where the Company can only engage alternative sources of transport when the capacity of the contract carriers has been exhausted.
The Company submitted the proper and sensible meaning to be attributed to the words "casual carrier" set out in clause 9.2 is a carrier "who is engaged infrequently or episodically to cover short term or occasional circumstances", that is, the occasional and irregular circumstances where the carriers are otherwise found to be overborne by the amount of work the Company has allocated them. Moreover, clause 9.2 cannot be read to indicate an intention that all forms of outside hire are forbidden.
The Company submitted that clause 15 of the Statutory Declaration applicable to assignee contract carriers and annexed to the Agreement requires an assignee contract carrier to formally acknowledge the intent of clause 23.2 was that the Company will allocate work as it sees fit and the applicant contract carrier is not entitled to any specific route or specific customers.
The Company contended that given the significant limitations on the allocation of transport work that would be imposed if the Union's interpretation of clause 9.2 was adopted, it was more likely than not that the Union's view would have been expressed directly in some form elsewhere in the Agreement.
The contract carriers are afforded, as a matter of practicality, preference in relation to the distribution of work over occasional or other carriers - but not preference in relation to all work where the engagement of other contractors can be regarded as the best or only practical business solution.
The Company also submitted the Union's evidence before the Commission in support of its interpretation of clause 9.2 and, the subjective intention of the parties in relation to the making of the Agreement was inadmissible. In that regard, none of the Union's witnesses sought to be relied upon were present or participated in the actual negotiations that preceded the making of the Agreement.
The Company contended that is was incumbent upon the Union to identify which provisions of the Agreement were open to more than one meaning. In that regard, the Company submitted the decision of the High Court in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 has confirmed that it is essential to identify ambiguity in the language of a contract before a court may have regard to the surrounding circumstances and object of the transaction. That principle was established by the High Court in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337.
The High Court in Codelfa also held it is not admissible to contradict the language of the contract when it has plain meaning and, where an agreement is unambiguous on its face, no regard can be had to extrinsic materials.
The Company also submitted the principles concerning reference to extrinsic materials were accepted by the Commission in Alcoa of Australia Ltd v the Australian Workers' Union [2012] FWA 9172 at [88].
The Union has not, either in submissions or evidence identified which parts of the Agreement are capable of more than one meaning. Accordingly, the Commission is unable to consider extrinsic evidence or evidence of surrounding circumstances to aid the interpretation of the Agreement. However, in the event the Commission decides otherwise, the Commission should rule the Statement of Mr Frandsen inadmissible on the grounds that it does not purport to deal with any matter concerning the negotiations or background to the making of the Agreement. Similarly, the Statement of Mr Hastings does not deal with the negotiations or any background facts relative to the making of the Agreement. Mr Hastings has no firsthand knowledge of such matters.
The facsimiles sent between two former union officials as set out in Attachment "C" and "D" to Mr Hastings' statement should also be determined inadmissible on the basis that there is no evidence that the contents of the exchanged facsimiles were made known to the parties at the time the Agreement was made. Moreover, the Statement of Mr Van Spronssen does not aid the construction of the Agreement nor does his statement deal with matters concerning the negotiations or background facts that lead to the making of the Agreement.
The Union's position concerning interpretation can only succeed if the word "only" is inserted by implication into clause 9.2 thereby inverting the present expressed meaning of the clause. Accordingly, the Union must satisfy the Commission that such an implication is reasonable and equitable and, is necessary to give business efficacy to the Agreement so that no term will be implied if the Agreement is effective without it.
The Company denied that the allocation of work to third party contracting firms amounted to unconscionable conduct. It considered the contra proferentum rule had no application to this matter.

Principles relevant to the interpretation of industrial instruments

A contract determination made pursuant to s 316 of the Act is an industrial instrument and consequently must be interpreted in the light of the rules applicable to such instruments. The Commission's power to interpret the provisions of an industrial instrument is found at s 175 of the Act: 175 Powers of Interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).
Section 8 of the Act defines an industrial instrument in the following terms: In this Act, industrial instrument means an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement.
The Commission's approach to the determination of the proper construction of a provision of an industrial instrument is both settled and longstanding. The starting point of interpretation therefore is to examine the terms of the industrial instrument, which in this case is the Cement Australia - TWU Contract Agreement (CA05/1), to find what the words mean in their ordinary and natural significance or, their clear common sense English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley (1988) 82 IR 448 at 452.
In New South Wales Fire Brigade Employees Union and New South Wales Brigades [2003] NSWIRComm 55, Boland J observed: In approaching the task of interpreting an award the starting point is the actual words of the award itself and their plain, ordinary English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley (1998) 82 IR 448 at 452. If the language of the award provision is clear and unambiguous and is consistent and harmonious with the other provisions of the award and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning even if it leads to a result that may seem inconvenient or unjust (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 305 per Gibbs CJ). Although he was concerned with statutory provisions, the observations of the Chief Justice apply with equal force to an award: Bryce v Apperley at 453. However, as French J observed in City of Wanneroo, "That is not to say the words (of an award) must be interpreted in a vacuum divorced from industrial realities." French J referred to the decision of Street J in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 where his Honour said: [I]n construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.
The Full Bench of the Commission in Bryce at 452 adopted the following approach: In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops (1961) AR (NSW) 312 at 314: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light.
The principles in Bryce were reaffirmed by the Full Bench in Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales (2004) 135 IR 56 where, at [43] the Commission held: The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used.
The Full Bench then went on to consider the ability of the Commission to consider the history of the relevant instrument in conjunction with an analysis of the plain and ordinary meaning of the words used stating at [44]: The construction of an award may include the history of the instrument in some circumstances. The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all. We note, in this respect, the observations of Walton J, Vice-President in Fox v GIO Australia Ltd (2002) 56 NSWLR 512, 120 IR 401 at [46] as follows: The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
Approaching interpretation from that premise, the primary factor the Commission must take into account is the plain and ordinary meaning of the words used in the industrial instrument, its history and surrounding circumstances. In Zoological Parks Board of New South Wales, the Full Bench made reference to the decision in Codelfa at 348 per Mason J as follows: On the other hand, it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning - see, for example, the remarks of Knox C.J. in Life Insurance Co. of Australia Ltd. v. Phillips (1925) 36 CLR 60, at p 69. This has led to a recognition that evidence of surrounding circumstances is admissible in aid of the construction of a contract. So Lord Wilberforce in L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. [1974] AC 235, at p 261 was able to state the broad thrust of the rule in this way: The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive. Further, at 352 Mason J said: The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious, knowledge of them will be presumed.
A Full Bench of the Commission considered the principles surrounding the approach to statutory interpretation in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 at [101] to [144]. It is unnecessary to restate that analysis. Moreover, the comments of the Chief Justice in Rail Corporation New South Wales v Brown [2012] NSWCA 296 at 39 further confirms the proper approach to the construction of an industrial instrument: As has recently been pointed out by the High Court on a number of occasions, the process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26]; Roadshow Films Pty Limited v iiNet [2012] HCA 16 at [22]; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [41], [45]-[48].
The 'true rule' expounded in Codelfa remains binding authority in Australia. The High Court has reaffirmed the Codelfa requirement for ambiguity in interpreting contracts. In a special leave application, Justices Gummow, Heydon and Bell have affirmed that unless and until the High Court reconsidered Codelfa, evidence of surrounding circumstances was not admissible unless the contract was ambiguous: Western Export Services. Accordingly, the ambiguity gateway remains a precondition to the admissibility of evidence of surrounding circumstances to assist in the interpretation of the contract where the language is ambiguous or is capable of more than one meaning.
Codelfa is authority for the proposition that extrinsic material may only be relied upon as an aid to interpretation when applying the ordinary and natural meaning of the language if any ambiguity remains. Extrinsic material may be considered to resolve an ambiguity or expose it. Evidence about the negotiations for an industrial instrument is relevant to the extent that it establishes objective background facts that go to the context or subject matter of the negotiations. However, evidence concerning the actual intentions and expectations of negotiating parties is not admissible as an aid to the construction of the instrument on the basis that it reveals the terms of the agreement the parties had sought to make and those intentions and expectations have been merged into the final agreement.
To interpret clause 9.2 in the manner pressed by the Union is not supported by the evidence. There is, in my opinion, no ambiguity and as such, the extrinsic materials relied upon by the Union are not admissible.
The dispute notification relevantly states in part at paragraph 3: Further, clause 9.2 has the effect that the Company shall only engage casual carriers (Outside Hire) when the Carriers are unable to meet customer delivery requirements because of high volumes of work. (emphasis added)
However, clause 9.2 does not contain the words "shall only". Rather, the word "may" is used. The standard dictionary meaning of the word "may", including the definition contained in the Macquarie Online Dictionary, suggests it is a permissive term - it requires permission or it is possible to do something in a particular way.
On the material before the Commission, the sole means by which clause 9.2 could possibly confer a degree of preference is if, as the Company asserts, clause 9.2 contained the phrase, "… may only engage" rather than the present wording, "… may engage" and, the term "casual carrier" was changed to read "outside hire". In that regard, the term "outside hire" is not expressed elsewhere in the Agreement.
In the present case, the extrinsic materials the Union sought to rely upon relate to the minutes of meetings held on 16 July 2000, 1 March 2001 and 5 June 2011 together with various Union historical records attached to Mr Hasting's statement dealing with the making of the Agreement
Annexure 'C' to Mr Hasting's statement was a copy of an undated facsimile message sent to Mr Michael Kaine from "Slick" on NSW Branch letterhead which set out a proposed change to the Agreement: Purpose: The purpose of this Agreement is to: 1. Enhance the productivity and efficiency of the companies (sic) operations. 2. Promote security for contractors and provide a just measure of remuneration and entitlements protection. There is no reference to preference of engagement.
Annexure 'D' was a copy of a facsimile from Mr Kaine to Mr Greg Solig dated 18 June 2004 concerning what purports to be a draft Agreement prepared in or around June 2004. The terms set out in Annexure 'C' above are reflected in Clause 1, Title and Purpose. There is no reference to preference of engagement.
Annexure 'E' to Mr Hasting's statement concerns a facsimile message from Mr Mick Conroy, a contract carrier, to Mr Kaine dated 10 August 2005 setting out "points for discussion, as requested." The discussion points dealt with a range of subject matters including good will and a concern that good will was being eroded by the Company's decision to increase its own fleet. The document acknowledged that a "no allocations hierarchy" position had been "included in agreement of 16/04/05." There is no reference to preference of engagement.
Annexure 'F' is a copy the application seeking approval of the current Agreement pursuant to s 332 of the Act in IRC 5881 of 2004. The application was filed on 10 October 2004. The Agreement commenced operation on 1 January 2003 with a nominal term of three years. The Agreement submitted for approval did not refer to preference of engagement. The "grounds and reasons" in support of the Commission approving the application stated in part: (i) An agreement has been entered into between the parties, Cement Australia Pty Limited and the Transport Workers' Union of New South Wales which has been endorsed and agreed to between the parties to the agreement. … (vi) The parties understand the effect of the agreement. (vii) The parties did not enter the agreement under duress.
Annexure 'G' sets out an extract from the Register of Contract Agreements setting out the Agreement subject to these proceedings.
Mr Hasting's statement does not deal directly with matters related to the negotiation of the Agreement. There is no evidence that he was aware of the negotiations at the time the Agreement was negotiated. Nor was Mr Hastings an officer of the Union at that time.
Moreover, the facsimile messages set out under Annexures 'C' and 'D' are no more than a communication between Union officers and a member. Shortly stated, Annexures 'C' and 'D' can be described as evidence concerning the actual intentions or expectations held by the Union during negotiations. As such, the annexures are not admissible as an aid to the construction of the Agreement. Rather, the annexures essentially reflect the terms of agreement the Union sought to make at the time. There is no evidence before the Commission to suggest the annexed materials were made known to the Company at the time the Agreement was being negotiated: Codelfa per Mason J at 352.
Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales at [128]. When interpreting an industrial instrument, the process of construction is therefore an objective task and it is not appropriate to have regard to the subjective beliefs or expectations held by one party. Rather, the task is to identify the common intention of the parties as they have expressed it in the terms of their agreement: Toll (FGCT) Pty Limited v Alphapham Pty Ltd (2004) 219 CLR 165 at 179.
Mr Van Spronssen's statement largely deals with circumstances and events that occurred prior to the approval of the Agreement. Those events and circumstances do not deal with the construction of clause 9.2.
The fact that Mr Van Spronssen recently formed a view that the minutes of the two meetings conducted in 2000 and 2001 should be interpreted in the manner contended for by the Union is not sufficient to establish that there was an understanding or agreement between the parties that the contract carriers should be afforded a preference of engagement.
The reference by Mr Hastings to historical records and the Union's template agreement for federal enterprise agreements (and presumably NSW contract determinations) which contained a preference of engagement styled clause, however genuinely held, is not a sound basis to support the proposition that the Agreement confers a preference of engagement as contended by the Union.
If the intention of the parties was to include a preference of employment clause, it would have been explicit, as is the case with a number of transport industry agreements approved by the Commission.
Mr Hastings was not involved in the negotiations for the Agreement and his evidence that clause 9.2 was a Job Security, preference of engagement clause is simply speculation based on his industrial experience with the Union.
The fact that Mr Hastings may hold a subjective belief that the Agreement confers some form of preference to the carriers over other classes of transport providers utilised by the Company in the course of its business is entirely irrelevant to the objective construction of the Agreement subject to this dispute notification. Similarly, Mr Van Spronsssen's evidence that the minutes of the meetings conducted at Auburn RSL Club in 2000 and 2001 confer some notion of preference is similarly speculative and irrelevant.
Moreover, Mr Fransden's evidence that he attended a meeting at Auburn RSL Club on 5 June 2011 where Mr David Penfold, the Company's Operations Manager, told a meeting that the carriers would get preference over company drivers and over time, all third party drivers would be phased out, does not support the proposition that the Agreement generally and, clause 9.2, specifically confers the preference of engagement claimed by the Union.
The statement of Mr Fransden is inadmissible for the purpose of examining the construction of the Agreement on the grounds that it does not deal with the negotiations that lead to the Agreement. Mr Fransden does not confirm or state that he had any first hand involvement or knowledge concerning those negotiations. Rather, the statement reflects a concern that his investment may not have been a wise choice and a number of complaints where he asserts third party outside hire transport providers have taken work previously made available to him, particularly in western New South Wales. These assertions were not evidenced based.
I have given consideration to these materials and I do not accept that the minutes or the historical records relied upon by the Union support the proposition that the parties agreed at the time when the Agreement was made that the intention of clause 9.2 was to confer preference of engagement to the carriers, the interpretation sought by the Union in this matter.
When the Agreement was made by the Commission, the industrial instrument approved represented the parties' acceptance of what had been agreed during the course of negotiations at the time. The Commission's role in making the relevant contract determination serves a protective function for the parties.
Clause 9.2 states that the Company may engage casual carriers when it determines that contract carriers are unable to meet customer delivery requirements because of high volumes of work. For its part, the Union believes clause 9.2 restricts third party outside hire transport providers to those times when the contract carriers are unable to meet workload requirements "because of high volumes of work".
On the material before the Commission, the term "casual carrier" appearing in clause 9.2 is restricted to a carrier within the meaning of s 309 of the Act. Accordingly, the term "casual carrier" in clause 9.2 does not apply to third party outside transport providers. On the Union's interpretation, clause 9.2 operates so as to obligate the Company to provide all transport work to the contract carriers before offering any work to third party outside hire. That interpretation does not fall from an examination of the plain and ordinary meaning of the words set out and agreed to in clause 9.2.
Under clause 7.2, the Company provides no guarantees to any contract carrier conferring fixed delivery arrangements during the life of the Agreement. Clause 9.1 confers absolute discretion upon the Company to allocate work to the contract carriers. Moreover, the provisions of clause 23 make it clear that contract carriers are not afforded any specific route, run, specific customers, volume or remuneration by the Company.
Clause 15 of the statutory declaration required to be executed by the contract carrier and attached to the Agreement requires the contract carrier to acknowledge that the Company: …will allocate work as it sees fit and (the contract carrier) has no right to any particular customers or runs.
The process of interpretation must focus on the language of the Agreement itself: Amcor Ltd v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241. In my opinion, the language of clause 9.2 is clear and unambiguous. The reference to "casual carrier" is a reference to a contract carrier not engaged on a regular basis. Moreover, it must follow that clause 9.2 is silent with respect to the Company's rights to engage transport providers outside of the Agreement, that is, third party outside hire transport providers.
The process of construction is an objective task and as such, it is not permissible to have regard to the subjective beliefs or expectations held by one party.
Clause 9.2 operates to enable the Company to engage casual carriers (currently three) to suit the operational requirements of the business at times when the contract carriers are unable to meet customer delivery requirements because of high volumes of work. It is not possible to contradict the language of the Agreement when it has a plain meaning. In that regard, if the intention of the parties was to define "casual carrier" as a third party outside hire transport provider, it is industrially more probable than not, the clause would have reflected that intent. Nothing in the evidence of Messrs Van Spronssen, Hastings or Fransden supports such a proposition.
Rather, the evidence in this matter identifies that the intention of the parties when negotiating the Agreement was not to include or infer that clause 9.2 would operate so as to confer preference to the contract carriers over third party outside hire. Rather, clause 9.2 states the circumstances in which the Company can engage casual contract carriers.
Having considered the construction of the Agreement and the all the evidence and submissions put before the Commission by the parties, I am of the view that there is nothing ambiguous about the operation of clause 9.2. The plain and ordinary meaning of the words set out in clause 9.2 do not have a capacity or an intention to confer any preference of engagement to the contract carriers over the use of casual and outside carriers.
The Union sought to rely on the contra proferentum rule on the grounds that the Company had drafted the Agreement approved by the Commission and to the extent of any perceived ambiguity in wording, the Agreement should be construed in favour of the Union.
The Union considered clause 9.2 specifically should be interpreted restrictively against the Company and confer a preference of engagement in favour of the contract carriers to the detriment of third party outside hire transport providers.
For the reasons outlined, clause 9.2 of the Agreement is not ambiguous and has plain meaning. Accordingly, the contra proferentum rule of construction does not apply.
There is insufficient material before the Commission to support the Union's contention that without "a qualifying clause such as clause 9.2", the Agreement may be held to be an unfair contract pursuant to s 106 of the Act or, that in circumstances where the contract carriers stand idle without remuneration when available work is allocated to third party outside contracting firms, that conduct by the Company amounts to unconscionable conduct.
The Agreement ultimately approved by the Commission was a document agreed to by both parties. If the intention of the parties at the time was that clause 9.2 was essentially a preference of engagement clause, it is more probable than not that the carriers would have sought to exercise that preference with much vigour prior to the notification of this dispute. Moreover, the word "preference", or a phrase to that effect, would have been incorporated within the Agreement.
The trigger for this particular dispute lies with the closure of the Kandos plant, increased competitive pressures surrounding the Cobar mine contract and the requirement to service that contract using B-double trailers carrying cement from Newcastle to the mine. Prior to the closure of the Kandos plant in 2011, the carriers were engaged to transport cement to the mine using a single load trailer.
For a short period following the Kandos closure, the carriers were engaged from time to time to transport cement by single load trailer from Newcastle to the mine. However, the contract was losing money and single load trailer delivery was replaced by rail transport from Newcastle to Dubbo and subsequently to the mine using Pittman skel trailers. When the rail contractor was place in liquidation during 2012, Pittman was retained to transport cement from Newcastle to the Cobar mine using B-double or skel trailers. The contract carriers do not have access to B-double or skel trailers.
The carriers consider the Company is using Pittman to their financial detriment. No financial information was put to the Commission in that regard. For its part, the Company contends it does not have access to the capital required to provide B-double trailers to the carriers. Ultimately, the Company proposes to operate its own B-double fleet between Newcastle and Dubbo if an alternate rail provider cannot be found.
For the above reasons, the Union's application for interpretation pursuant to s 175 of the Act is dismissed and the matter is concluded. JD Stanton COMMISSIONER

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2015

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Judgment (10 paragraphs)

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Cases Cited (23)