The QR Agreements
33 There are, in all, 20 union collective agreements referred to in the statement of claim. A table which lists those agreements and identifies both the consultation clause concerned and which of the QR employers is a party to that agreement is Annexure 1.
34 Each of these agreements is federally registered. They are what might be termed "stand alone" agreements in the sense that they do not specifically refer to an underlying award. The industrial instrument which applied in the absence of the QR agreements was the Queensland Rail Award - State 2003 (State Award). At the time when the QR agreements were registered federally, this award took effect as what was known as a "Notional Agreement Preserving a State Award".
35 Because the consultation clause in each of the QR agreements was identical and because other clauses also regarded as material in the agreements were in substantially similar form the parties chose to focus their attention on one particular agreement on the understanding that conclusions reached as to its construction would have application across the whole range of the QR agreements. I agree that this is a convenient way to approach that subject.
36 The agreement selected was the QR Limited Traincrew Union Collective Workplace Agreement 2009 (the Traincrew Agreement). Such provision as that agreement makes in respect of consultation is found in cl 36.
37 The clause which makes provision in respect of consultation is cl 36, which is in these terms:
36 Consultation
36.1 For the purposes of this Agreement, consultation is a process:
s Aimed at getting individuals or groups to suggest or response to proposals to be implemented without at the same time giving up management's rights to make the final decision in these matters. It provides an opportunity to present a point of view or state an objection; and
s involves the timely exchange of relevant information so that the parties have the actual and genuine opportunity to influence the outcome.
The Company will not be obliged to disclose confidential information if that disclosure is contrary to the Company's interests.
36.2 The Company will consult with affected employees and, at the employees' election, their nominated representatives, over any proposed changes that will have an impact on employees' terms and conditions of employment. The matters over which the Company will consult include, but are not limited to:
s termination of employment
s changes in the composition, operation or size of the Company's workforce, or in the skills required
s the elimination or reduction of promotion opportunities, job opportunity or job tenure
s the alteration of hours of work
s the need for retraining or transfer of employees to other work or locations
s the restructuring of jobs.
36.3 However, the Company is not required to consult over individual workplace/performance issues (see Clause 38).
36.4 The Company will consult:
s At the local level, if the proposed change is not expected to affect any other part of the Company
s At the business group or Company level where the change is expected to impact on employees more broadly.
36.5 The process of consultation will include:
s The timely provision in writing of all relevant information, including details of the change, the likely effects on employees, the reasons for the proposed change and, where relevant, a proposed implementation date
s Discussion on measure to avert or mitigate any adverse effects on employees
s Provision of reasonable resources, including work time, for employees to fully participate in the consultation process
s Genuine consideration of employees', and at the employee's election, their representatives' suggestions, ideas and contributions
s Genuine opportunity for employees and, at the employee's election, their representatives to affect the outcome.
36.6 Where the Company makes a final decision in relation to the matter subject to consultation, the Company will notify the affected employees and, at the employee's election, their representatives in writing. This notification will include final details of the proposed change and an implementation date. The implementation date will not be earlier than 5 working days from the date of the notification, unless safety concerns demand otherwise. In such cases, the notification will be signed by senior Company management.
36.7 If, however, at the conclusion of this consultative process, concerns continue to exist regarding the matter subject to consultation, the employees, and at the employee's election, their representatives will have 5 working days in which to issue a notice of dispute. This notice of dispute will be issued in accordance with Step 3 of the Dispute Resolution Procedure.
36.8 Traincrew Agreement Consultative Committee
A Freight Traincrew Agreement Consultative Committee will be established to review the implementation of the Agreement at regular intervals.
38 In the course of submissions, reference was made to two other clauses in the Traincrew Agreement, cl 41 and cl 42:
41 Managing Surplus Employees
41.1 The Company is committed to maximising permanent employees' security of employment, but it operates in a rapidly changing, competitive environment where security of employment is increasingly linked to winning and retaining work.
41.2 This requires a continuous review and re-alignment of how we deliver products and services to our customers. The objective is to maximise the application of available resources including staffing and infrastructure, while considering changing customer needs or organisational priorities.
41.3 This may mean changes to employment arrangements. Where this occurs it is the parties' intent to pursue security of employment for permanent employees through re-skilling and/or retraining and/or redeployment opportunities. The intent is to provide long-term sustainable employment for employees whilst acknowledging that the flexibility the Company requires may often require changes to people's jobs.
41.4 To support these commitments the parties agree that where there is a reduction in staffing requirements not associated with natural attrition, then there will be no forced redundancies and no forced relocation.
41.5 An employee will not unreasonably reject retraining, transfer and/or redeployment. Transfer will apply as defined in the relevant Company policies as amended from time to time.
41.6 Where a fixed-term engagement extends for more than 2 years or involves more than 5 consecutive fixed-term engagements at the same location, the employee is to be engaged/converted to permanent employment with the condition that the employee will be subject to involuntary redundancy and termination payments as provided in the relevant Comp any policies as amended from time to time.
41.7 Where an engagement as set out above extends more than 4 years the employee is to be engaged/converted to permanent employment without involuntary redundancy.
42 Transmission Of Business
42.1 The parties acknowledge that Part 11 - Transmission of Business Rules, of the WRA sets out the legislative framework with respect to how this Agreement will be bind a successor, assignee or transmittee of the Company's business.
42.2 Where a business is transmitted from the Company to another employer, as contemplated by the WRA (in this clause called the "transmittee") and an employee who:
(a) At the time of such transmission was an employee of the Company in the business transmitted; and
(b) Was covered by the provisions of this Agreement; and
(c) Who immediately becomes an employee of the transmittee;
Then where:
(d) The employee's service and accrued and unused leave entitlements with the Company are assumed by the transmittee; and
(e) The employee is offered employment on terms and conditions no less favourable than the employee currently enjoys;
the employee will not be entitled to payment on account of any leave, severance, redundancy, period of notice or any other entitlement on termination of their employment with the Company.
39 There was no disagreement between the parties as to the principles which attend the construction of an industrial agreement. The following observation made by Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184, which is frequently cited with approval, encapsulates those principles:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. (Emphasis added)
Though Madgwick J had made these observations in relation to the construction of an award, Northrop J in Australian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212, having cited them with approval, considered that they applied even more strongly in the case of the construction certified agreements. Why this remark of Northrop J is so apt in the case of an industrial agreement is, in my opinion, underscored by the passage which I have emphasised in the observations made by Madgwick J. The starting point must always be the language employed by the parties to an industrial agreement but industrial context and purpose are always relevant when construing that language, as Gleeson CJ and McHugh J highlighted in their joint judgement in Amcor Ltd v Construction, Mining, Forestry and Energy Union (2005) 222 CLR 241 at [2].
40 I commence first with the text of cl 36 and the ordinary meaning of the word "consult".
41 The Oxford Dictionary gives the primary meaning of "consult" when, as the agreement does, used as a verb as, "[t]o take counsel together, deliberate, confer; also said of a person deliberating with himself" (Oxford English Dictionary, 2nd Edition, Online version). No different meaning for the word is supplied by Australian idiom, (q.v. the definition in Macquarie Dictionary Online). The word is plainly not used in cl 36 in the sense of deliberating with one's self.
42 The imposition of a requirement for one party to consult with another is hardly unique to industrial instruments. I have already made passing reference to coincidental examples of requirements to "consult" in the course of setting out the history of legislative provision in Queensland with respect to railways. A search of current Commonwealth legislation discloses no less than 572 provisions imposing a requirement on a Minister or other official or agency to "consult". In turn, as a study of reported cases discloses, these are but Australian exemplars of a requirement widely employed in a range of public administration applications by the parliaments of the United Kingdom and elsewhere in the Commonwealth of Nations.
43 Thus, in Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at 1124 the Judicial Committee observed of a consultation obligation in an ordinance in respect of measures to alter local government boundaries that: "[t]he nature and object of consultation must be related to the circumstances which call for it" and "The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed; they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties; they must be free to say what they think." These observations as to what was entailed in a requirement to consult commended themselves, in the different context of their use in broadcasting legislation, to Toohey J when a judge of this Court in TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172. His Honour pithily remarked (at 178), "Consultation is no empty term." That same sentiment is evident in the following passage from the judgement of Sachs LJ in Sinfield v London Transport Executive [1970] 1 Ch 550 at 558 concerning a consultation obligation which attended a power to alter bus routes:
It is apposite first to mention that Mr Francis emphasised not once but several times that whatever be the true construction of section 22(3) [which contained the consultation requirement] and whatever order this court might make, it was in the end the executive and no one else who made the decision. If that was intended to intimate that the executive merely looked on consultations as being an opportunity for those consulted to make ineffective representations, it would represent an approach that, to put it mildly, cannot be supported. Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start form the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at a formative stage of proposals - before the mind of the executive becomes unduly fixed.
44 Such cases have proved influential in the Australian Industrial Relations Commission (industrial commission) for the guidance they offer as to what a requirement to "consult" entails: Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (C2758 Dec 1533/98 S Print R0234) (Full Bench); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (C2001/5770 PR911257) (Cmr Smith); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Ltd AW791910 Print L4596) (Cmr Smith). The apprehension in the industrial commission that these cases were of assistance was not, with respect, misplaced. They serve to confirm an impression as to the content of an obligation to "consult" evident from the dictionary meaning of the word. A key element of that content is that the party to be consulted be given notice of the subject upon which that party's views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to "consultation" has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.
45 To elaborate further on the ordinary meaning and import of a requirement to "consult" may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, "this is what is going to be done" and saying to that person "I'm thinking of doing this; what have you got to say about that ?". Only in the latter case is there "consultation". That this is the sense in which "consultation" is used in the QR Agreements is evident from cl 36.1 of the Traincrew Agreement.
46 On the authorities in relation to the construction of industrial instruments, the context in which a word is used, whatever may be its ordinary meaning, is an important consideration. As to that, the QR employers submitted that, "the vast, geographically spread nature of [their] workforce and the fact of its government ownership and implications of that ownership - can be taken to be well known to all of the negotiating parties when the QR agreements were negotiated, and is therefore part of the 'industrial context' which can be taken into account". I agree. Yet even though these factors were well known, the Traincrew Agreement provided for consultation.
47 For the applicant trade unions the submission was made that the "industrial context" against which cl 36 fell to be construed also included that it was a clause addressing the subject of change in the workplace. So it is. Such clauses, it was submitted, had a heritage in Australian industrial law which could be traced to the Termination, Change and Redundancy Cases (TCR Cases) in the industrial commission - Termination, Change and Redundancy Case (1984) 294 CAR 175 and Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673 (TCR Case (No 2).
48 The applicants did not submit that this heritage meant that the clause should be construed as if its wording was the same as commended itself to the industrial commission in the TCR Cases. Rather, recalling that the concept about consultation about change was at the heart of cl 36, the origins of such clauses in Australian industrial law assisted, they submitted, in deciding whether the clause has a narrow or a broad scope. The applicant unions' submission was that it would be antithetical to the heritage of a clause of this type to afford it a narrow scope of operation.
49 As to this submission, the QR employers acknowledged that the Queensland Industrial Commission had, in 1987, declared a policy of supporting the introduction into State awards of the same TCR clause as had been settled federally in the TCR Cases. In conformity with that Queensland Industrial Commission policy decision the State Award had included a standard TCR clause (cl 4.10). However, the QR employers drew attention not only to the stand alone nature of the QR agreements but also to differences in the wording as between that standard TCR clause and cl 36.
50 These differences were summarized in the following way:
(a) a difference in the quality of the proposed change which is required before the obligation is triggered:
(i) under the standard TCR clause, what is required is a proposal for major change in production, program, organisation, structure or technology which is likely to have a significant effect on employees;
(ii) under the QR agreements the obligation is triggered when there is a proposed change that will have an impact on employees' terms and conditions of employment.
(b) the clause require consultation with different classes of employees:
(i) under the TCR clause, the obligation requires the employer to notify the employees who may be affected by the proposed changes and the union or unions);
(ii) under the QR agreements the obligation is to consult with affected employees (and, if they elect, their nominated representatives).
[Emphasis by the QR employers in their submissions]
51 The QR employers acknowledged that there were also similarities between cl 36 and the TCR clause in the State Award such that it was likely that the parties to the Traincrew Agreement had consulted that award when negotiating the terms of cl 36 (eg the definition of "significant effects" as defined in the TCR clause seems to have provided the inspiration for the various dot point items which appear in cl 36.2).
52 It is not necessary for the purpose of construing cl 36 of the Traincrew Agreement to engage in comparative linguistic analysis as between that clause and a standard TCR clause to the end of determining whether the reach of each clause is identical. Especially that is so having regard to the level of abstraction at which the applicant trade unions put their submission in relation to the utility of the TCR Cases. That there were differences in language as between a standard TCR clause and cl 36 was a given in that submission. The point made was that the TCR Cases represented a watershed in Australian industrial law.
53 Prior to the TCR cases, there had not been any general, formal provision in respect of the management of change in the workplace in Australian industrial instruments, as opposed to isolated examples (TCR Case at 194-195). The final form of what became the standard TCR clause was settled following further submissions to the industrial commission and reflected an acceptance by the commission that there should be an express obligation for employers to discuss with employees and their union or unions measures to avert or mitigate the adverse effects of the employer's decision: TCR Case (No 2) at 688.
54 Now, such kind of provision, in one way or another, is routine. In that routine and with the passage of time there is a risk that the reasons why it was considered both necessary and desirable that there should be general provision in modern times in industrial instruments with respect to the management of change in the workplace may be forgotten. The applicant trade unions' submission was that a recollection of these reasons was important in understanding the industrial context in which cl 36 fell for consideration and hence in construing that clause. As I understood it, a further and not unrelated reason for the reference to the TCR Cases was that they assisted also in understanding the purpose of clauses making provision with respect to the introduction of change in the workplace.
55 The claim advanced by the Australian Council of Trade Unions (ACTU) in the TCR Case, as the name by which that case is popularly known indicates, extended beyond the question as to whether there should be general provision in Federal awards in respect of the introduction of change in the workplace. It also addressed the subjects of provision in respect of termination of employment and redundancy. One of the authorities upon which the ACTU relied, which the industrial commission chose to cite (TCR Case at 177) in describing the general background to the claim as a whole, was Food Preservers' Union v Wattie Pict Ltd (1975) 172 CAR 227 (Wattie Pict Case) in which Gaudron J, then a presidential member of the commission, had made the following statement:
Primarily employment is the chief source of income for Australian families. Its interruption must be attended either by financial hardship or the fear of it. Employment is also part of a worker's daily routine and society; disruption of that routine and social contact necessitates a reorganization of an important aspect of a person's life. Long term employees may also find themselves with a competitive disability as a result of opportunities foregone in the continuous service of their employers.
56 In the TCR case the industrial commission made further reference to the Wattie Pict Case when addressing the subject of whether there should be general provision in awards in relation to unfair dismissals. That is only to be expected for the Wattie Pict Case was decided in that context. What is significant for present purposes in understanding the industrial context in which a clause like cl 36 falls for consideration and also its purpose is that the sentiments evident in her Honour's statement were regarded by the industrial commission as desirably noted as part of the general background to all of the claims made in TCR Case. While, in the TCR Case, the ACTU did not succeed in the detailed breadth of its claims, it did succeed, materially, in securing acceptance by the industrial commission that there should be some general provision, against the background which the commission had noted, in respect of the introduction of change in the workplace.
57 What I take from this is that, in construing any clause in an industrial instrument which addresses the subject of change in the workplace, the industrial context, having regard to their heritage of such clauses in the TCR Case, necessarily includes an understanding of the central importance of employment as a source of income for most Australian families. It is not just in the interruption of employment that at least the fear of financial hardship and loss of settled daily routine and the society of the workplace described by Gaudron J may arise. The introduction of change in a workplace, be it occasioned by advances in technology, restructuring, reorganisation or otherwise can also engender such fears in workers.
58 It is evident from that part of the TCR case in which the industrial commission expressly addressed the subject of "Introduction of Change" (TCR Case at 194 -196) that the commission regarded provision for consultation and the resultant exchange of views between employer and employees or their representatives as a way of ensuring that such fears were not held in ignorance and that such changes, if introduced, took into account the views of employees as to how this might be done, including done with the minimum possible disruption to their lives. In this fashion, the purpose of such clauses is also exposed.
59 Then National Labour Advisory Council (NLAC) Guidelines played an influential role in persuading the industrial commission that there was a need to make some general provision in respect of consultation in the event of decisions to implement change in the workplace. Those guidelines had been formulated with particular reference to technological change but the industrial commission cited them with approval in support of the decision it made to introduce a clause which, "covers not only technological change, but any change in an enterprise which is likely to significantly affect employment, irrespective of the cause of that change" (TCR Case at 194). Included in the passages from the NLAC guidelines which the industrial commission chose to quote was this (TCR Case at 196):
As to consultation, those same Guidelines state:
The arrangements for consultation may vary with regard to the type and extent of the change being made, or the needs of particular situations, but the employer should always seek to afford the appropriate trade union officials and/or other recognized employees' representatives an opportunity to express their views on the employment effects associated with a technological change.
These consultations might include proposals for the possible transfer of employees, training and retraining arrangements, methods and conditions of restructuring jobs. It will also be necessary to discuss the best method of informing employees of the results of the discussions.
The point of setting out this passage is not that it can in any way serve as a substitute for the language employed in cl 36 of the Traincrew Agreement for it plainly cannot. Rather, having regard to the ordinary meaning of the word "consult", already discussed, it serves to demonstrate that the industrial commission was not, in the TCR case, adopting an idiosyncratic meaning of that word. Nor, having regard to cl 36.1 especially, did the parties to the Traincrew Agreement use the word "consult" in any idiosyncratic way.
60 Neither the applicant trade unions nor the QR employers submitted that separate assistance was to be gained in the construction of cl 36 of the Traincrew Agreement by reference either to Article 13 of the International Labour Organisation (ILO) Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer (Australian Treaty Series 1994, No 4 - ILO Convention No 158) or to the related ILO Termination of Employment Recommendation, 1982 (No 166 - ILO Recommendation No 166). ILO Recommendation No 166 was adopted by the ILO at the same conference which adopted ILO Convention No 158.
61 Article 13 of ILO Convention No 158 is directed to the situation where an employer contemplates terminations for reasons of an economic, technological, structural or similar nature. In that situation, it provides, inter alia, that the employer is to "give, in accordance with national law and practice, the workers' representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimise the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment" (emphasis added).
62 Regard to the TCR Case discloses that ILO Convention No 158 and ILO Recommendation No 166 formed part of the material upon which the ACTU generally relied as supporting its claim for the introduction generally into Federal awards of provisions in respect of termination, change and redundancy. Further, in reciting the particular submissions made by the ACTU in support of a clause in respect of the introduction of change in the workplace, the industrial commission noted (TCR Case at 195) that one of the indicia relied upon by the ACTU as to a need to introduce such a clause in Federal awards in Australia was "ILO standards". However, it was from the NLAC guidelines, rather than from any ILO standard, that the industrial commission chose to quote in explaining why it proposed to approve the introduction of the standard TCR clause with respect to the introduction of change in the workplace.
63 At the times when the TCR cases were decided ILO Convention No 158 had not entered into force in Australia. That did not occur until 26 February 1994. Thereafter, it has been variously taken up into Federal industrial legislation prevailing from time to time q.v. s 170GA and Schedule 10, Industrial Relations Act 1988 (Cth): s 668 and Schedule 4, Workplace Relations Act 1996 (Cth) and ss 784 and 786, Fair Work Act 2009 (Cth). ILO Convention 158 had also been taken up in Queensland industrial legislation in relation to termination of employment at the time when the QR agreements were made: Div 2 of Pt 4 of ch 3 of the Industrial Relations Act 1999 (Qld).
64 It was submitted on behalf of the QR employers that there is no evidence that either ILO Convention 158 or ILO Recommendation 166 played any particular role in the negotiations that led to the Traincrew Agreement and, in particular, in the drafting of cl 36. That is true, although I doubt that it is just coincidence that resulted in "termination of employment" being the first of the circumstances instanced under cl 36.2 in which the parties to the Traincrew Agreement envisaged that such "consultation" for which that agreement provided would occur.
65 On 10 March 2009, the ILO published a document entitled Note on Convention No. 158 and Recommendation No. 166concerning termination of employment (ILO Note; copy available online at the ILO website: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/meetingdocument/wcms_100768.pdf). The ILO Note offers guidance with respect to the meaning and intended purpose of provisions of ILO Convention No 158 and ILO Recommendation 166. Included (at p 12) in the commentary in the ILO Note in respect of article 13 of ILO Convention 158 is the following statement:
In August 2005, the International Finance Corporation's Good Practice Note on Managing Retrenchment stressed the importance of consultations to both the development and the implementation of a retrenchment plan. The Good Practice Note states that "without consultation, companies run the risk of not only getting key decisions wrong, but also of breaching legal rules and collective agreements and alienating workers and the community. Workers can often provide important insights and propose alternative ways for carrying out the process to minimize impact on the workforce and the broader community"
[Footnote reference omitted, emphasis added]
66 In the result though, there is no direct link between cl 36 of the Traincrew Agreement and ILO Convention 158 and ILO Recommendation 166 such as would counsel construction of cl 36 in accordance with the interpretation of Art 13 of ILO Convention 158. Nonetheless, each is a provision with respect to consultation in the context of a contemplated or proposed termination of employment (although the consultation obligation in cl 36 ranges more widely than just proposed terminations). The observation which I have emphasised in the passage quoted from the ILO Note offers, by analogy, a compelling rationale in relation to the importance of consultation.
67 Having regard to that rationale, to the purpose of the clause and to the industrial context of cl 36, especially in light of its heritage in Australian industrial law, it would be inappropriate to construe that clause narrowly.
68 It was submitted on behalf of the QR employers that a feature of cl 36 was that consultation was not required unless the employer had made a definite decision to bring about change.
69 There is a distinct difference between a "proposal" to bring about change and a "definite decision" to bring about change. The former has about it a provisional quality; the latter does not. Regard to dictionary definitions of the word "proposal" bears this out. As used as a noun and in the context of cl 36, the definitions which are most apt for "proposal" are "a suggested or intended plan, scheme, or course of action; spec. one submitted formally for consideration" (Oxford English Dictionary, Online Edition) and "a plan or scheme proposed" (Macquarie Dictionary, Online edition). Insofar as "proposed" is an element of the latter definition, it carries with it the meaning of "put forward or suggested as something to be done" (Macquarie Dictionary, Online edition). So understood, the use of the word "proposal" is in complete accord with a clause directed to the subject of "consultation". The construction for which the QR employers contend is not. A definite decision of one sort or another should follow consultation, not precede it (as to this, see also cl 36.6).
70 Further, a "proposal" is not to be equated with a detailed plan. A detailed plan may certainly amount to a proposal but something well short of that, as the dictionary definitions of the word bear out, may constitute a proposal. The word admits of a level of generality, of a strategic concept, not just operational plans.
71 A definite quality is not, as the QR employers also submitted, supplied by the words "to be implemented" in cl 36.2. These form part of a composite phrase "proposals to be implemented". I readily accept that the word "proposal" must not be read in isolation. The words "to be implemented" distinguish the class of proposal with which cl 36 is concerned from "proposals" which have not progressed, and may never have progressed, to the point of being proposed for implementation. Further, "to be implemented" introduces an element of futurity, not finality. One of the purposes of consultation is to receive suggestions not only about how to implement a proposal but also whether, on reflection, it should be implemented at all.
72 It is evident from the first sentence in cl 36.2 that the obligation to consult arises in respect of "proposed changes that will have an impact on employees' terms and conditions of employment". In the first sentence is to be found the general consultation obligation to which the employer is subject.
73 The second sentence of cl 36.2 appears to have been inserted to alert the reader in a non-exhaustive way to types of proposed changes which might give rise to the consultation obligation for which the first sentence of cl 36.2 provides. However, the mere existence of a proposal in respect of one of those examples will not give rise to a consultation obligation unless the other elements of that obligation, as specified in the first sentence are present, ie the proposal must be one "to be implemented" and also one which "will have an impact on employees' terms and conditions of employment".
74 The use of the possessive plural "employees'" in cl 36.1 in relation to "election" and "terms and conditions" ought also to be noted. So far as drafting practice is concerned, the general contemporary position in respect of deeds, contracts and other instruments is that, subject to any contrary intention, the singular includes the plural and vice versa: s 48 Property Law Act 1974 (Qld). A contrary intention is evident in cl 36, in my opinion. Clause 36.3 expressly excludes from the scope of the consultation obligation "individual workplace/performance issues", referring the reader to cl 38. Clause 38 is concerned with individual workplace issues. There is a consistent use of the plural elsewhere in cl 36 (the references to "employee's" in cll 36.5, 36.6 and 36.7 are each, in context, typographic errors). Further, the references to consultation at "local level" or, as the case may be, "business group" or "Company" level in cl 36.4 suggest an ascending order of plurality, not an obligation that commences with an individual.
75 It is envisaged in cl 36.6 that the process of consultation will be brought to an end when the employer has made a final decision with respect to the matter which was the subject for consultation. Inferentially, another way in which consultation would be brought to an end is if, having been invited to consult, either the employees concerned or, at their election, their representatives either notify that they do not wish to express any view or, having done so and the employer wishes to consult further, signify that they do not wish further to be heard. Another way in which, inferentially, the process of consultation for which the clause provides would end would be if, having provided information and provided reasonably for consultative discussions (or some other means of consultation), neither the employees nor, if they so elected, their representatives attended those discussions.
76 It is clear from the way the clause is cast that cl 36 is concerned only with proposals to be implemented which emerge from the employer, not with any which are instigated by an employee or an industrial organisation representing that employee.
77 It was common ground between the parties that the expression "terms and conditions of employment" should be read broadly. I agree. Having regard to the purpose and to the industrial context, that is consistent with the beneficial ends, discussed above, to which this clause and those of its type are directed.
78 In support of their submission that the expression should be broadly construed, the QR employers referred to a decision of the New South Wales Administrative Decisions Tribunal, Bonella v Wollongong City Council [2001] NSWADT 194 in which it fell to that tribunal to construe the expression as it appeared in s 25(2)(a) of the Anti-Discrimination Act 1977 (NSW). The use of the expression in that Act and in cl 36 is similar in the sense that each is used in provisions directed to beneficial ends. The case does therefore provide assistance by analogy. The tribunal (at [39] - [41]) made the following observations with respect to the expression "terms and conditions of employment":
39 It is necessary to determine what is meant by the words "terms or conditions of employment" in section 25(2)(a). Employment relationships are legally complex. Whilst the core of every employment relationship is a contract of employment, it is rare for that contract alone to be the source of all legal rights and obligations possessed by an employer and an employee (see ConcutPty Ltd v Worrell (2001) 75 ALJR 312 at 315). As Professors McCallum and Pittard indicate: "The sources of legal obligation in an employment relationship in Australia can include express and implied terms under a contract of employment, collective agreements, statutes, industrial awards and even custom and practice" (R McCallum and M Pittard, Australian Labour Law: Cases and materials3rd ed, Sydney: Butterworths, 1995 at page 15).
40 At common law, the terms of a contract are "the components of obligation assumed by the parties" under, and to, the contract (N Sneddon and M Ellinghaus, Cheshire and Fifoot's law of contract, 7th Australian ed, Sydney: Butterworths 1997 at page 324). There can, of course, be express and implied terms. There are two sub-categories of terms: conditions and warranties. A condition is an essential term (a breach of which justifies termination), whereas a warranty is a non-essential or subsidiary term (see Sneddon and Ellinghaus at page 743). Thus, it appears that the phrase "terms or conditions of employment", as used in section 25(2)(a), should be given its everyday meaning, rather than its technical meaning in contract law, for if these words are to be given their technical legal meaning it does not appear to make a lot of sense to refer, in the alternative, to all of the components of obligation under a contract (the terms), and then only to those components of obligation which are essential (the conditions). This construction is supported by observations made by Lee J in Allders International Pty Limited v Anstee [1986] 5 NSWLR 47 at 55 when considering the breadth of an earlier, and slightly differently worded, form of section 25(2)(a). He stated:
In my view the Tribunal was correct in its finding, the expression "terms and conditions of employment which he affords him" being not restricted to the matter of the terms of contract of employment, but being designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be.
41 What is intended, we believe, by the words "the terms or conditions of employment which the employer affords the employee" is all of the legal rights given to an employee, and all of the legal obligations cast upon employer, by the various sources identified by Professors McCallum and Pittard in the quotation reproduced in paragraph 39. To limit the operation of section 25(2)(a) to the actual contract which underpins every employment relationship would be to ignore the reality that the contract alone is rarely (if ever) the source of all rights and obligations possessed by an employer and an employee. As the High Court decision in Byrne v Australian AirlinesLimited; (1995) 185 CLR 410 reveals, the provisions of an industrial instrument, which by force of statute may govern a particular employment relationship, do not automatically become terms of the individual contract of employment which also governs that relationship. Consequently, to limit the words "the terms or conditions of employment" to the actual contract which exists between an employer and an employee would be to exclude most of the provisions of relevant awards and enterprise agreements from the ambit of section 25(2)(a). We do not believe that was the intention of the legislature, for section 25(2) as a whole appears designed to extend to all instances of the employment relationship where the parties have legal rights and obligations.
79 "Terms and conditions of employment" in cl 36.2 of the Traincrew Agreement is, in my opinion, to be similarly construed. I am particularly attracted to the observation made by Lee J in Allders International Pty Limited v Anstee (1986) 5 NSWLR 47 at 55, quoted by the tribunal. His Honour observed of the expression that, apart from the terms of the contract, it was "designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be". To this I would add that the source of those "demands and requirements, and benefits and concessions" may be nothing more than custom and practice, rather than a term of a contract or applicable industrial instrument but it would nonetheless fall within the expression "terms and conditions of employment", given that the clause is not to be construed narrowly. Further, inherent features of the employment to which the Traincrew Agreement relates would likewise and for the same reason fall within the expression. Materially, those features presently include that the employment is with an employer within the public sector, an employer wholly owned by the State and managed by a board ultimately subject to political direction is an inherent feature of that employment.
80 Reference needs also to be made to the phrase "will impact on" which appears in cl 36.2. "Impact" when used as a verb can have the meaning "to have a (pronounced) effect on" (Oxford English Dictionary, Online Edition). This, in context, is the sense in which the word is used in cl 36.2. That the obligation is to consult with "affected employees" confirms this. Part of the context in which "impact" appears is that it is juxtaposed between "will" and "upon" in cl 36.2. The word "will" lends both a definite element and an element of futurity, the latter already present from the fact that the clause is concerned with a "proposal". Insofar as there is a definite quality in the phrase, derived from the use of the word "will", it carries with it a requirement for a correspondingly greater likelihood of effect on employees' terms and conditions than if the word "may" had been used.
81 "Will" is separately used in conjunction with "consult" in cl 36.2. When so used it is used in an imperative sense. The first sentence of cl 36.2 is cast in the language of obligation, not aspiration.