Consideration
30 In Energy Australia Yallourn Pty Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers Union) (2018) 363 ALR 60 at 75-76 [56]-[58] (cited with approval in Treasury Wine Estates Vintners Limited v Pearson [2019] FCAFC 21 per Rares, Perry and Charlesworth JJ), Rares and Barker JJ summarised the principles of construction of industrial awards. They held (363 ALR 81-82 [85]):
Mason A-CJ, Murphy and Deane JJ explained the significance of the difference between the subjective and objective theories of contractual assent and why the latter was the law of Australia [151 CLR at 429], as Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ affirmed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40], where they said (see too at 179-181 [41]-[45]):
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. 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. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction (Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]). (emphasis added)
31 In my opinion, cl 35, in its context and in light of its industrial history, operates to ensure that Qantas maintains control over the recognition, for pay purposes, of LAMEs within its employ who have attained particular qualifications. Clause 35.2 sets out three mandatory criteria that a LAME, who has obtained an external qualification at his or her own expense, must satisfy if Qantas were to recognise that external qualification. Those criteria were, first, that a relevant Qantas manager gave the LAME prior approval, for pay recognition purposes, to undertake that training. Secondly, the training fell within that LAME's existing trade stream (which both parties accepted could, in the case of a B1, or mechanical, LAME, now include the new electrical engineering qualifications that a holder of a full B1 licence could utilise since the Pt 66 manual commenced operation on 27 June 2011). Thirdly, the LAME undertook the training at his or own expense and time. Thus, a LAME who satisfied each of the three criteria could insist that Qantas treat the external training, and the obtaining of the qualifications consequent upon it, as equivalent to other training that Qantas conducted internally to qualify LAMEs for the purposes of receiving or accruing points under cl 16 of Agreement 10.
32 Importantly, cl 35.1 did not preclude Qantas, for example, forming the view that, for its operational requirements and the needs of its enterprise, it would provide internal training to one or more LAMEs to enable him or her to qualify in a different trade stream than the one in which the LAMEs already held a licence. Moreover, cl 44 expressly contemplated that LAMEs could hold, and study or train to hold, both a B1 and a B2 licence.
33 An agreement, including an enterprise agreement like Agreement 10, must be read as a whole having regard to the objective background, including its industrial context, and facts mutually known to the parties at the time it is entered into, and it must be construed as a reasonable person in the position of the parties would have understood it to mean when agreeing to its provisions (Energy Australia Yallourn 363 ALR at 81-82 [85]).
34 Here, it is necessary to read cl 35 together with cl 44 in the context of Agreement 10 as a whole. Importantly, cl 44.3.5 allows Qantas, at its absolute discretion, to require a LAME to exercise the privileges and authorities under his or her full B1 licence despite Qantas not having nominated that person to convert his or her existing licence to an initial full B1 licence in circumstances where the employee, of his or her own volition, had undertaken the conversion training to obtain that B1 licence. Moreover, as table 6, to which cl 44 related, made clear, Qantas would have to pay the LAME the amounts under table 6 if he or she had qualified to hold both B1 and B2 licences, but only if Qantas required that LAME, under cl 44.3.5, to exercise the privileges and authorities under his or her full B1 licence.
35 There could be no industrial purpose for having the future classification of "Full B1/B2" in table 6, if the Association's argument were correct. That argument would require cl 44.3.5 to be read to mean both that an avionic, or B2, licensee, could never undertake at his or her own volition, conversion training to be able to perform the work of a full B1 licensee and that thereafter Qantas could never require him or her to exercise the privileges and authorities under that new licence, because to do so necessarily would contravene cl 35.2 in Agreement 10. That result is in the teeth of the express terms of cl 44.3.5 and cannot have been what the parties intended, since they included cl 44.3.5 to deal with the new industrial context: Treasury Wines [2019] FCAFC 21 at [75]-[77]. Likewise, in cl 44.3.4, the parties had already accepted that a LAME could become a dual licensee, that is, the holder of both a full B1 and B2 licence, for the same aircraft type and that, if this occurred, he or she would be remunerated by Qantas for that qualification if utilised.
36 Clause 44.3.5 operated on the basis that (otherwise than under, or despite, cl 35.2) a LAME will have obtained a qualification from external training that is outside his or her previous trade stream, namely by reason of his or her own volition to undertake conversion training. When that occurred, cl 44.3.5 required Qantas to pay that LAME a conversion allowance under table 6 if it required him or her to exercise the privileges and authorities under his or her full B1 licence.
37 In this context, it makes no sense that, if by requiring under cl 44.3.5 a LAME, such as Mr Richardson, to act under his new B1.1 licence, Agreement 10 operated to produce the result that Qantas would contravene cl 35.2. The very circumstance that the chapeau to cl 44.3.5 described, namely, that a LAME can undertake, of his or her own volition, conversion training, demonstrated that the parties turned their minds to a situation in which such an engineer would gain his or her new external qualification in a trade stream other than his or her existing trade stream. In a situation that cl 44.3.5 covered, cl 35.2 had no work to do.
38 Moreover, it was the common understanding of the parties that the LAME would not need Qantas' permission to undertake the conversion training, because cl 44.3.5.1 provided that he or she would have no benefit, in terms of pay or otherwise unless Qantas later required the LAME to act under the new trade stream qualification. That is because, as table 6 made pellucid, he or she would not be paid in respect of that external training unless and until Qantas, in its absolute discretion, required the engineer to act under his or her newly gained full B1 licence in addition, or as opposed to, acting on the basis of a previously held B2 licence.