Association of Professional Engineers, Scientists and Managers, Australia v... [2015] FCA 11 | Case summary

The facts 5 The evidence was uncontroversial. The evidence was given by affidavit. No deponent was required for cross-examination. The relevant facts were either agreed or not contested. 6 The Agreement replaced the Dendrobium Mine Mining Supervisors Enterprise Agreement 2010 ("the former agreement"). The reference to "the Company" is a reference to Dendrobium. 7 In the former agreement cl 9, entitled "Consultation", read: The Company will consult with any affected Employees and their nominated representative about major workplace changes that are likely to have a significant effect on those Employees. 8 Clause 10 of the former agreement, entitled "Termination of Employment", relevantly stated: If your position is made redundant by the Company then you will receive three (3) weeks redundancy pay for each completed year of service with a minimum of three (3) weeks pay. If the Company, no later than seven (7) days after the date of termination of employment, obtains or causes to be made available for you, work which: • is at another mine operated by the Company, or its related bodies corporate and is in the same general locality; • is in a permanent full-time role of a Mining Supervisor; and • that recognises your service with the Company; then the Company will not be liable for payment to you of redundancy pay. To the extent permitted by law, any payment made to you by the Company in respect of the cessation of your employment, satisfies (in whole or in part) any statutory entitlements under the FW Act of payments to you in lieu of notice and redundancy pay. 9 During the bargaining period for the Agreement, Catherine Bolger, a director of APESMA, sent a letter to Wayne Price, operations manager for Dendrobium, regarding the matters that had been agreed and the matters that were not yet agreed. 10 On 13 July 2013 there was a bargaining meeting. Mr Price, who represented Dendrobium at that meeting, asked Ms Bolger what the union was asking for. She told him that the union was asking for what was in the Appin Mine Mining Supervisors (Deputies) Enterprise Agreement 2013 ("the Appin agreement"). Mr Price agreed to the union's request. Consequently, the following two changes were made to the draft agreement. 11 First, the following words were inserted into cl 9 of the draft of the Agreement which deals with "Termination of Employment": If your position is made redundant the Company will take steps to avert or mitigate the effect upon your employment. The Company may take such measures as introducing a Voluntary Redundancy Scheme or consider alternative employment as a Mining Supervisor within Illawarra Coal, if available. 12 This is identical to the corresponding clause in the Appin agreement. 13 Second, the consultation clause (cl 8) was also amended. It now reads: The Company will consult with any affected Employees and their nominated representative about major workplace changes that are likely to have a significant effect on those Employees prior to those changes taking place. The Company will give prompt and genuine consideration to matters raised by Employees and/or their Employee Representatives and consider measures to avert or mitigate the effect of such changes. The Company will meet and discuss issues of concern that arise from time to time with Employees and their Employee representatives. 14 The first paragraph of this clause also appears, in similar form, in cl 2 of the Appin agreement. 15 The Agreement was approved by the Fair Work Commission on 18 July 2013 and came into operation on 25 July 2013. Its nominal expiry date is 24 July 2016. 16 Mr MacBain began working for Dendrobium as a mine technician on or around 5 January 2009. He became a mining supervisor on 15 July 2012. 17 On 7 April 2014 Troy McDonald, Asset President of Illawarra Coal, announced that by 30 June 2014 a review would be undertaken of the operational areas of Illawarra Coal's business. 18 In around early to mid-June 2014, Kristin Wall, a human resources manager for Dendrobium, discussed with her colleagues in the human resources lead team whether there were any vacant mining supervisor positions at the mine or at any other mine within the Illawarra Coal business. As a result of those discussions she determined that there were no such positions. Ms Wall deposed that it was neither practical nor reasonable to expect other mines to create vacancies, for example, by making their employees redundant in order to transfer redundant employees of Dendrobium into those positions. 19 At the same time Ms Wall considered whether there were any contractors at the mine or at any other mine within the Illawarra Coal business who were working as mining supervisors and whether it would be practical to terminate existing contractor arrangements to transfer redundant employees of Dendrobium into those positions. She determined that it would not be practical to do that. 20 Ms Wall said that a voluntary redundancy option was not offered on this occasion because: (a) the restructure with respect to mining supervisors was limited, in that only two mining supervisor positions were being made redundant; (b) given the difficulties the business was facing, they were concerned to ensure that the restructure was completed with the right mix of skills and experience for the future and with minimal disruption to the business; (c) the two employees whose positions were selected for redundancy had been identified as the most appropriate people for redundancy having regard to "the objective criteria"; and (d) there was concern that the process of managing expectations around a voluntary redundancy program was one which would lead to greater levels of potential disputation and disappointment than a process of selection for redundancy. 21 On 24 June 2014 Mr McDonald announced that, as part of the outcome of the organisational review, there would be a reduction of 85 roles across the business. At the time Dendrobium employed 34 mining supervisors at the Dendrobium mine. Following the organisational review, the positions of two mining supervisors employed by Dendrobium at the mine were made redundant, including Mr MacBain's. 22 At about 9 am that day Martin Aicken, a human resources manager for Illawarra Coal, called Kristy-Lea Harper, industrial officer/organiser for APESMA, to inform her of the redundancies. It seems that later in the morning Joel Plavecky, Acting General Manager of the mine, called Mr MacBain to ask him to come to a meeting. 23 A meeting was held that afternoon between Mr Plavecky, Ms Wall, Mr MacBain, his wife Cara, and Rod Parkinson (site delegate for APESMA). At the meeting, Mr MacBain was informed that his position had been made redundant. 24 No voluntary redundancy scheme was introduced and Mr MacBain was not offered alternative employment as a mining supervisor within Illawarra Coal. Rather, he was handed a "redundancy pack" and given the option of applying for the role of mine technician at the Dendrobium mine, a position of lower status, with fewer responsibilities, and attracting a lower salary than that paid to him as mining supervisor. 25 Mr MacBain was dissatisfied with the offer and APESMA filed an application with the Fair Work Commission for it to deal with the dispute. The application was referred for conciliation but the parties were unable to settle on a mutually acceptable arrangement. 26 On 27 June 2014, the day after the conciliation conference, Ms Bolger wrote to Mr Aicken, acknowledging that Dendrobium had indicated in correspondence that a decision had already been taken not to introduce a voluntary redundancy scheme and there were "no alternate positions as a Mining Supervisor vacant within Illawarra Coal". She asked Mr Aicken for particulars of the measures Dendrobium had considered "to avert or mitigate the effects of [the redundancies]". She also offered a number of suggestions: Redeployment of the two affected deputies into positions currently filled by deputies employed as contractors; Redeployment of the two affected deputies into deputy positions where the incumbents would like to take a voluntary redundancy (Ms Bolger indicated that APESMA was aware of more than two deputies who wished to pursue voluntary redundancy and would be happy to swap with the two affected deputies at Dendrobium); Allowing two deputies to share one permanent role as they transition to retirement, thereby freeing up the second role for one of the affected deputies; Allocation of all overtime shifts worked by others to the two affected deputies. 27 Ms Bolger said that APESMA believed that the proposed redundancies were not genuine and that she wished to explore whether they were necessary as other supervisors were working overtime and a "Step Up Deputy" (that is an operator acting in the position of deputy) was filling in for one of the supervisors who was slated for redundancy. I interpolate that APESMA called evidence which suggests that at this time there were other operators working on short-term contracts as "Step Ups" at Westcliff mine, a mine operated by Endeavour Coal Pty Limited, another Illawarra Coal subsidiary. 28 Mr Aicken responded to Ms Bolger's letter on 30 June 2014, advising that Dendrobium had considered the following measures "to avert or mitigate the effects of the decision to reduce employee numbers": • To have a voluntary redundancy scheme. This was considered by the Company and the Company determined that it would not pursue this option. The reasons that the Company decided not to pursue this option were: o The Company wished to retain the best performing staff. A voluntary redundancy process opens the possibility that good performing employees consider leaving our business. o Voluntary redundancy, when applied to a small number of roles also has the possibility of having to choose who to approve to leave, also creating further concerns for the business. • To transfer the employee to vacant Mining Supervisor roles. It was determined that no such roles were available in the business. • To offer alternate roles in the business. An alternate role has been identified and both employees have been given the opportunity to be considered for the role. • To reduce employees in casual and temporary roles prior. A casual employee in a Mining Supervisor role had their employment cease as one of the employees affected by the decision of the Company. (Original emphasis.) 29 Presumably the casual employee mentioned in the last dot point is a "Step Up Deputy". 30 The same day there was also a meeting where the various options were canvassed. Ms Bolger, Ms Harper, Mr Aicken, Mr Plavecky and Ms Wall attended. The evidence is silent as to whether the meeting occurred before or after the letter was sent. 31 All attempts to reach an agreement failed and Mr MacBain's employment with Dendrobium was terminated on 7 July 2014 by reason of redundancy. Upon termination Mr MacBain was given the following gross payments: (a) $55,650 severance payment, which included four weeks' pay in lieu of notice and redundancy pay, consisting of three weeks' pay for each year of service; (b) $13,460.30 pro rata incentive bonus for the 2013/14 financial year; and (c) $35,702.33 accrued annual and long service leave. 32 About three months later, on 13 October 2014, Mr MacBain commenced employment as a mine worker at the Appin Mine. He was employed there by Delta Coal Pty Ltd, a company which is not a member of the Illawarra Coal group but which contracts with Illawarra Coal.

What is the proper construction of cl 9 of the Agreement? 34 It is common ground that the contentious part of cl 9 (extracted above at [11]) imposes an obligation on Dendrobium. The dispute concerns the nature or extent of the obligation. 35 In substance APESMA's case is that cl 9 of the Agreement imposes a legal obligation on Dendrobium to take steps to avert, and only if such steps were not available to take steps to mitigate, the effect of a redundancy. Alternatively, APESMA argued that cl 9 required Dendrobium to introduce a voluntary redundancy scheme and to consider alternative employment as a mining supervisor within Illawarra Coal (unless the effect of a redundancy were averted by one of these or another means) - a construction that, in effect, requires one to read cl 9 so that "may" means "shall" and "or" means "and". APESMA made the following submissions. 36 First, it submitted that the words in contention should be construed as requiring Dendrobium to take the identified steps, rather than reposing in the company a discretion to do so. It contended that, as Dendrobium always had a discretion to take those steps, the purpose of inserting the additional words must have been to introduce an obligation. The obligation was put in these terms: Where an available step to avert redundancies exists, [Dendrobium] must implement that step, unless another step has already achieved the purpose of the provision to avert redundancies. 37 APESMA submitted that any other reading would render the insertion of the additional words otiose. 38 Secondly, APESMA submitted that the first sentence of the new provision should not be interpreted as giving Dendrobium a choice between taking steps to avert the effect of a redundancy and taking steps to mitigate that effect. Rather, APESMA contended that the clear purpose was to require that Dendrobium take all available steps to avert the effect of the redundancy and, only if such steps were not available, to mitigate the effect of the redundancy. Otherwise, APESMA argued, there would have been no need to include the provision relating to steps to avert the effect of the redundancy. 39 Thirdly, APESMA submitted that a construction that gives Dendrobium a choice or a discretion without averting the redundancy would be inconsistent with the intention of the provision, which is to avert redundancies. The history of the provision shows that the words were not designed to confer such a discretion on the employer. 40 Fourthly, and in the alternative, APESMA submitted that the second sentence of the new provision created a legal obligation on Dendrobium both to introduce a voluntary redundancy scheme and to consider alternative employment as a mining supervisor with Illawarra Coal, if available - unless redundancy had already been averted by the taking of one of these steps or another step. 41 The Court's task is to interpret the meaning of the text. Nonetheless, the text of this Agreement, like any enterprise agreement, must be understood in the light of its industrial context and purpose: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 ("Amcor") at [2] (Gleeson CJ and McHugh J); [96] (Kirby J). As Mason J said in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 ("Codelfa") at 348, "there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning". 42 Here, context includes the legislative background against which the agreement was made and in which it was to operate: Amcor at [30] (Gummow, Hayne and Heydon JJ). In the present case, however, neither party pointed to anything in the legislative background which sheds light on the issue. In some circumstances, it is also permissible to look at surrounding circumstances. As Spigelman CJ explained in South Sydney Council v Royal Botanic Gardens (1999) 10 BPR 18,961; [1999] NSWCA 478 at [35] in relation to contracts: It is permissible to look at surrounding circumstances for purposes of interpretation of a contract "if the language is ambiguous or susceptible of more than one meaning": Codelfa above at CLR 352; ALR 375 per Mason J. As this passage indicates, in this context the word "ambiguity" - ironically a word not without its own difficulties - does not refer only to a situation in which the words used have more than one meaning. A broader concept of ambiguity is involved: reference to surrounding circumstances is permissible whenever the intention of the parties is, for whatever reason, doubtful: cf with reference to a similar issue in the context of statutory interpretation ... 43 The question of purpose must be determined objectively, not by reference to what might have been in the mind of one or the other party. In contract law, statements of the parties about their actual intentions, aspirations and expectations are inadmissible because they are "superseded by, and merged in, the contract itself": Codelfa at 352. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 ("Toll") at [40]. An enterprise agreement, however, is not the same as a contract. Unlike contracts, enterprise agreements bind people who are not parties to it (the employees will be covered by it, regardless of whether they were engaged before or after the time the agreement was entered into). Unlike contracts, enterprise agreements require the approval of the Fair Work Commission before they come into effect and they are only enforceable under the Act. Indeed, the Full Court has described an enterprise agreement as "an agreement in name only" - "a statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down, by the FW Act": Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84 at [88], [90]. Nevertheless, the parties accepted that the principles to which I have referred above apply equally to enterprise agreements. 44 Clause 9 does impose an obligation on Dendrobium but not the obligation for which APESMA contends. Looking at the text alone, read literally, indeed, naturally, it requires the company to take one of two alternatives at the option of the company, that is to say, to take steps either to avert or to mitigate the effect of the redundancy. I accept that there are other possible interpretations and that the interpretation proposed is one of them. A more plausible interpretation is to read the clause as signifying that Dendrobium was obliged take steps to avert the effect of a redundancy and only if there were no steps which it was reasonably practicable for the company to take to avert the effect of the redundancy, was it obliged to take steps to mitigate those effects. But in view of Ms Wall's evidence and APESMA's decision not to require her for cross-examination, this alternative interpretation would probably not have assisted APESMA's case. 45 It is true that "meanings which avoid inconvenience and injustice may reasonably be strained for": Kucks v CSR Ltd (1996) 66 IR 182 ("Kucks") at 184. Yet, the task remains one of interpreting the document. The Court "is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the [agreement]": Kucks at 184. 46 APESMA pointed to nothing in the text to support its interpretation. Rather, it relied on the context. But the context to which it referred does not detract from the literal meaning or provide any assistance in divining a purpose beyond the words. The only matter of context upon which APESMA relied was the fact that the two sentences in the new provision did not appear in the 2010 agreement. Otherwise, as senior counsel conceded, the context is neutral. Yet all that can be gleaned from a comparison of the text of the two agreements is that the parties intended, by the Agreement, to introduce an obligation on Dendrobium to take steps either to avert or to mitigate the effect of the redundancy upon an employee's employment. Provided it did so in good faith, it could not be said to have contravened the Agreement. I do not doubt that Ms Bolger genuinely believed at the time the Agreement was made that the new provision carried the meaning which the union now urges on the Court. Ms Wall deposed that at the meeting on 30 June 2014 Ms Bolger asserted as much to Mr Aicken. On Ms Wall's evidence that assertion was not disputed. But silence in the face of the assertion is too tenuous a basis for inferring a common understanding and APESMA did not submit that there was any such understanding. 47 APESMA's alternative argument that there was a legal obligation arising from the second sentence of the new provision to introduce a voluntary redundancy scheme and to consider alternative employment as a mining supervisor with Illawarra Coal, if available, must also be rejected. 48 There was certainly no evidence of a common understanding to this effect. What evidence there is (albeit after the Agreement came into force and therefore of dubious relevance) points in the opposite direction. Ms Wall said that at the meeting on 30 June 2014 Ms Bolger asserted that the union believed the company was obligated to provide voluntary redundancy and there were more than two other deputies at other sites who wanted it. But Mr Aicken said that "[u]nder the Agreement we may consider VR and we have considered it. We have just decided not to offer it on this occasion". Of course, the Agreement did not provide that the company may "consider" voluntary redundancies. The Agreement provides that the company may introduce a voluntary redundancy scheme. For present purposes, however, the distinction is of no moment. 49 Prima facie, the auxiliary verb "may" reposes a discretion, not a duty, in a decision-maker. Of course, in some circumstances "may" can mean "shall" or vice versa: see, for example, Julius v Lord Bishop of Oxford (1885) 5 App Cas 214 and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 ("Finance Facilities"), which concerned respectively the use of the words "shall" and "may" in legislation. As Gleeson CJ and McHugh J said in Samad v District Court of New South Wales (2002) 209 CLR 140 at [32]: When a statutory power is conferred by the use of words of permission, there may arise a question whether the effect is to impose an obligation, or, at least, an obligation that must be performed in certain circumstances. Even where it is plain that the intention of the legislature was permissive, questions may arise as to the nature of the considerations that the person in whom the power is confided may be entitled or bound to take into account in the exercise of the discretion conferred. Issues of this kind are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation. (Citations omitted.) 50 As is apparent from the decision in Amcor, the position is no different when it comes to construing an enterprise agreement. 51 Here, however, there is nothing in the language of the Agreement, the context of the relevant provision or the legislative background which supports the conclusion that the effect of the new provision is to impose an obligation to take any particular steps. The immediate context points in the opposite direction. The words "such ... as" signify that the steps nominated in the clause are merely illustrative. The command "will" appears in first sentence but not the second. In my view it is unarguable that the two steps mentioned in the second sentence are examples of the steps that Dendrobium could choose, but was not bound, to take in order to discharge the obligation reposed in the company by the first sentence. It is true that Dendrobium always had those options but a reference to them in the agreement can operate as a reminder. 52 It is, of course, plainly desirable, if steps can be taken to avert, rather than merely to mitigate, the effect upon an employee's employment of his or her position being declared redundant, that they be taken. But there is nothing in either the text or context that would lead one to conclude that the intention of the parties was to put Dendrobium in breach of the Agreement if it took the option of trying to mitigate the effect of the redundancy, rather than adopting measures to avert it. The burden the union's case seeks to impose on the employer is a significant one. The evidence is insufficient to allow for such a construction. 53 APESMA also argued that the second sentence of the new provision in cl 9 of the Agreement confers rights or entitlements on employees. It referred to the following passage in Samad at [36] where Gleeson CJ and McHugh J observed: The statutory context may be crucial. Where a statute confers rights or entitlements, as in Finance Facilities, it may be easy to conclude that the legislature did not intend that they could be taken away by the exercise of a discretion reposed in an administrative authority. 54 But the second sentence of the new provision in cl 9 of the Agreement does not confer a right or entitlement on the employees. If anything, it confers an entitlement on the employer to decide on the kind of step. Furthermore, this case is nothing like Finance Facilities. That case was concerned with s 46(3) of the Income Tax Assessment Act 1936 (Cth), which relevantly provided that "[s]ubject to the succeeding provisions of this section, the Commissioner [of Taxation] may allow a shareholder … a further rebate … if the Commissioner is satisfied" of certain conditions. The Court held that the word "may" did not confer a discretion but a power, the exercise of which was obligatory if the relevant conditions were established to the satisfaction of the Commissioner. The Court reached that conclusion based on the wording of the particular subsection considered in its context. In contrast, in the present case, as APESMA, itself, submitted, Dendrobium always had the power to take steps to avert or mitigate the effect of a redundancy and neither on their face nor when read in context do the words in question here require the employer to take the steps referred to in the second sentence of the contentious passage in the Agreement. Unlike Finance Facilities, this is not a case where "may" should be interpreted as conferring a power which must be exercised in particular circumstances.

Association of Professional Engineers, Scientists and Managers, Australia v Dendrobium Coal Pty Ltd

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