THE DEED AND ITS CONSTRUCTION
10 The starting point is the terms of the Deed. The Deed begins by reciting much of the factual and procedural background just adverted to and states that the parties have reached agreement in relation to the implementation of the BGS. Notably, nowhere in the Deed is the BGS defined. The operative part of the Deed is divided into six sections: (1) definitions; (2) obligations of Bovis; (3) obligations of the Unions; (4) release; (5) other matters (i.e. steps to be taken by each side to give effect to the Deed); and (6) general (i.e. boilerplate provisions such as choice of law, merger, severance, and so forth).
11 The heart of the Deed for present purposes is the second section detailing the obligations of Bovis. Although somewhat lengthy, a full recitation of that section is necessary to understand the disputed provisions in context. The section lists 13 obligations of Bovis in clauses numbered 2.1(a) through (m) as follows:
[Bovis] must:
(a) Within four weeks from the date of this Deed, remove all turnstiles on the exterior fences at Victoria Harbour.
(b) Within four weeks from the date of this Deed, remove the internal turnstiles currently in place at the Projects.
(c) Notify the Unions in advance of the date the BGS will be turned on.
(d) Subject to (e), replace the external fence turnstiles with gates which will require use of an Induction Card [ie swipe card] for entry.
(e) Subject to (f), replace internal turnstiles with "bat wing" or similar style turnstiles which will require the use of an Induction Card for entry.
(f) Leave the external gates unlocked between 6am and 8am each working day. That is, they will open without the use of the Induction Card. However, it will be a requirement of entry to site during this time for Workers to swipe their Induction Card upon entry.
(g) Leave the internal turnstiles in free-spin from 6am-8am each working day. Workers will be required to use their Induction Cards upon entry through the internal turnstiles at all times to ensure [Bovis] is aware of the number of Workers on site for occupational health and safety purposes.
(h) Not undertake "spot checks" of Induction Cards using a PDA except in circumstances where there is a serious safety or security concern. For example, in the event of a medical emergency or where someone is acting suspiciously and is unable to be identified through other means.
(i) Ensure that BG on the Projects will not record the times Workers swipe in and out of site. If any information on entry and egress times can be retrieved from BG this will not be used by [Bovis] for disciplinary purposes.
(j) Ensure that the Induction Card will only display an identifying number on its face. The card itself will not hold any personal information regarding the worker. That is, there will not be any information embedded in the Induction Card which pertains to the worker other than the induction number. The card will be linked to a database which holds the induction information. Only authorised [Bovis] personnel will have access to the database via an individual password.
(k) Not take disciplinary action against any worker for losing an Induction Card. However possession of a card will be a requirement of entry to site. [Bovis] will ask Subcontractors to take appropriate steps with Workers who persistently lose their cards.
(l) Authorise a half hour meeting at the Projects (one meeting at Victoria Harbour and one at the New Royal Children's Hospital) for the Unions to communicate this agreement to the Workers.
(m) Maintain the current access arrangements at the Projects until the new gates and turnstiles are installed.
(Emphasis added.)
12 The obligation which is primarily the subject of dispute is cl 2.1(j). Although there is no mention of photographs in the clause (or indeed anywhere in the Deed), the Unions contend that, understood in the context in which the Deed was made, it is implicit within the provision of cl 2.1(j) that no "personal information" (which both sides agree includes photographs) be displayed on the swipe card that no photographs of the workers can be required at all. Bovis, on the other hand, submitted that whether photographs could be displayed on the cards does not answer or even address the entirely distinct question whether photographs may be taken and stored separately. Bovis submitted that the clause (and, in particular, that part of the clause that I have underlined), which permits the collection and linking of "induction information," also includes the collection and linking of photographs. However, "induction information," like the BGS itself, is not a term defined or otherwise explained in the Deed.
13 Both sides sought to make much of the fact that there was no express language dealing with the disputed subject of photographs. They submitted that, particularly where the issue of photographs was of central concern, it would have been a simple and expected thing to have said, for example, that "induction information" does or does not include photographs. The Unions submitted that it is reasonable to infer from the failure to expressly allow for photographs in those circumstances that they must be prohibited. Bovis, on the other hand, submitted that it was reasonable to infer from the failure to expressly prohibit photographs that they are allowed.
14 As I recently noted in a statutory interpretation case, it is always possible in hindsight to think of contractual or statutory language that would have more clearly addressed the issue now in dispute: Asciano Services Pty Ltd (formerly Pacific National (ACT) Limited) v Commissioner of Taxation [2008] FCA 1401 at [22]-[23]. As a general matter, however, hindsight arguments only highlight what is already apparent - in this case, that the Deed was not artfully drafted and cl 2.1(j) did not deal expressly with taking photographs. But I greatly doubt the Deed is properly described as ambiguous. Moreover, even if it is, in the absence of a presumption in favour of either side as to how the ambiguity should be resolved (and neither side sought to argue contra proferentem, likely because that would have required going behind the forbidden veil of the mediation: see [15] below), I do not find such hindsight arguments useful.
15 A settlement agreement is simply a species of contract, and the parties did not dispute that the proper approach to be taken in construing the terms of the Deed is an objective one based on text, purpose and context: Golf Australia Holdings Ltd v Buxton Construction Pty Ltd [2007] VSCA 200; Commissioner of Taxation v Hadidi (1994) 51 FCR 453. Ultimately, the meaning of the Deed must be determined by what a reasonable person would have understood the language to mean, notwithstanding the subjective beliefs or intentions of the parties. Equally important, "[i]t is impermissible to construe a [settlement Deed] by looking at what the parties said or did during the course of the negotiations": Golf Australia at [28]. Indeed, as the parties acknowledged, they and the Court are precluded by statute from inquiring into what was said and done in the course of the mediation: Federal Court of Australia Act 1976 (Cth) s 53B. The upshot is that, while the Court may consider extrinsic evidence to construe the Deed, it may only do so to establish the mutual understandings of the parties forming the background to the transaction, not the back-and-forth of the parties in concluding the transaction.
16 Despite the general agreement of the parties as to the proper approach, there was a great deal of dispute as to whether and to what extent various extrinsic evidence was relevant to the task at hand and to the case as pleaded by the Unions. As I indicated at the start of the hearing, the Court cannot inquire into the whole history of the parties' dispute and genesis of the Deed; rather, the only extrinsic evidence that may be considered in construing the Deed in its application in this matter is evidence that goes to objectively demonstrating the common understanding of the parties as to the relevant features of BGS prior to the execution of the Deed, including the type of "induction information" collected by Bovis and how that information was stored.
17 Moreover, I indicated that to the extent the Unions wished to adduce evidence of particular representations or conduct of Bovis said to form a part of the circumstances and understandings common to the parties, they would be limited to such instances as had been clearly pleaded and particularised by the Unions. Quite properly, the Unions then abandoned the general and non-specific allegation that:
from its discussions with the [unions, Bovis] knew or ought to have known that the [unions] were opposed to the keeping of any photographs of the workers, but [Bovis] nonetheless failed to inform the [unions] that the Blue Glue system involved the keeping of a photograph of the workers on a database as well as on the induction cards.
In the absence of any identification of when, where, to whom, and by whom such representations or omissions were allegedly made, allowing evidence to be led in support of that paragraph of the pleading would have constituted a trial by ambush.
18 Notwithstanding the matters identified in paras [16] and [17], the evidentiary case for each side did not proceed smoothly. The Unions called three witnesses: Noel Washington, the Senior Vice President of the Victoria Branch of the Construction and General Division of the CFMEU, William Oliver, the Assistant Secretary of the same branch, and Troy Gray, an organiser with the Victoria Branch of the Electrical Trades Union Division of the CEPU. Bovis called one witness, Peter Marix-Evans, its Head of Health and Safety with overall responsibility for the implementation of the BGS.
19 Very little of the oral evidence given by these witnesses was of direct assistance. For example, the witnesses were shown various documents, such as correspondence, Power Point presentations regarding the BGS, and even the Deed itself, and then asked what they understood those documents to mean. When objections were raised by the other side or questions asked by the Court as to how the subjective understandings of the witnesses could assist in resolving the objective construction of the Deed, the questions were not pressed and the examinations ended shortly thereafter.
20 Bovis also attempted to lead evidence about the BGS as it operates in States other than Victoria, which was said to be relevant because the Unions are national organisations and thus the knowledge and understandings of branches outside Victoria should be imputed to the Victorian branches. Bovis also sought to lead this evidence to establish that the BGS, prior to any modification under the Deed, involved: (1) the taking of worker photographs (2) which were both displayed on the swipe cards and stored in an electronic database. The Unions objected to the evidence on the basis that evidence of out-of-State practices was irrelevant unless it could be connected to the personal knowledge of the Victoria Branch officials responsible for negotiating and executing the Deed. I need not resolve any question of imputed knowledge, however, because the evidence of how Bovis has implemented the BGS outside of Victoria was unnecessary.
21 The out-of-State evidence was unnecessary because there was evidence that the Victorian branches of the Unions themselves had direct knowledge of the relevant features of the BGS. The Unions accepted in their points of claim that on 5 July 2008, a letter was sent by Bovis' Operations Manager in Victoria to all subcontractors regarding the proposed implementation of the BGS. In relevant part, the letter stated:
In order to obtain a security pass, all that needs to be done is to have a photograph taken. A photograph is required to identify the holder of the pass for security purposes. From now, photographs will be taken every day in the induction shed on site and passes will be issued. The other details attached to the pass will be obtained form the induction sheets already completed and held on site.
22 The second part of the proposition advanced by Bovis (i.e. that the photograph was not simply a hard copy picture on the card but was also stored and retrievable electronically) was also established in a slide presentation that was conveyed to the Unions at various times and in various iterations, the earliest of which appears to have been July 2007. Mr Washington testified that he first became aware of the implementation of a new swipe card security system at Bovis sites outside Victoria in 2007. In July 2007, he attended a meeting in Sydney with senior Bovis personnel where a Power Point presentation on the BGS was given. Mr Washington was given a paper copy of the slides, which he took back with him and later gave to the Victoria Branch Executive of the Union. During the meeting in Sydney, Eric Hensley, the National Employee Relations Manager for Bovis, arranged that Mr Washington and another union representative, Mr Spernovasilis, be taken to a site to see the BGS in operation.
23 The two Victoria officers then visited a Bovis site at Rouse Hill in Sydney, where they met a local CFMEU delegate. The delegate showed them his swipe card, which did not have a photograph. The delegate informed them that although there had once been a photograph on the card, he, like many other workers, had peeled his off.
24 Mr Washington and his companion were also taken to an induction room, where they saw data from induction sheets being entered into a computer. (A copy of a standard induction sheet used in Victoria, which contains entries for emergency contact information and medical details, was tendered by consent.) Although Mr Washington testified that he did not see any photographs being taken, he conceded during cross-examination that he did see a facility for the taking of photographs. Upon his return to Victoria, Mr Washington reported what he had seen to the Victoria Branch Executive of the CFMEU, a fact which Mr Oliver confirmed in his evidence.
25 As indicated earlier, Bovis made much of the slide presentation given to Mr Washington and later circulated to Mr Oliver and other high-level Victoria Branch Union officials. A version of the slides was also enclosed with the 5 July 2008 letter. In particular, Counsel for Bovis focused on a slide which featured a picture of a PDA captioned "Rugged PDA for In-Field Capture." On the screen of the PDA was a photograph of a worker next to his name and other details from the induction sheet. Bovis thus submitted that it was commonly understood by the parties (or should reasonably have been understood), that as part of the BGS, photographs would exist not only on the face of the swipe cards but would also be stored electronically and could be remotely accessed and displayed on a PDA. Therefore, they submitted, the background to the transaction in which the parties to the Deed were operating was one where a requirement that a photograph not be displayed on a swipe card was not to be, and could not be, taken without more to include a requirement that no photograph be taken or retained at all.
26 The only other extrinsic evidence relied on by the parties as contextual background informing the common understandings of the parties prior to entering the Deed was excerpts of the transcripts of the proceedings before the AIRC in August 2008. This evidence was proffered and admitted on the basis that it could shed light on the common understandings of the parties before embarking on the negotiations and mediation in September 2008 that resulted in the Deed. The Unions relied on the testimony of Bovis' Industrial Relations Manager, Stephen Broadhead. He deposed in the AIRC that the BGS swipe card "only contains the information currently obtained through the induction process, nothing more." He added in cross-examination that the swipe card would not "store any information [other] than [what] is presently contained on the current induction sheet" and that the induction sheet did not contain photographs.
27 I am satisfied that not much weight should be given to this portion of Mr Broadhead's testimony. First, as he admitted, he did not fully understand the BGS himself. Secondly, the evidence referred to by the Unions is taken out of context - although he stated that the swipe card would not contain any information other than what was on the induction sheet, that evidence must be qualified by what he said earlier in his cross-examination in the AIRC proceedings, when he stated both that the swipe cards would display a photograph and that that was one of the features that was opposed. The only way to reconcile these statements is to infer that by "information" Mr Broadhead was referring only to text data. However that may be, given his admittedly less than full understanding of the BGS and the fact that the question was never put to him directly as to whether the photograph on the card would also be stored and accessible electronically, I am not satisfied that the part of his evidence relied on by the Unions reflects any mutual or common understanding of the parties prior to entering into the Deed.
28 For its part, Bovis relied on the testimony of Robert McGregor, who deposed that when a swipe card is passed through a PDA:
What comes up on the PDA is the [worker's] name, who they work for and a photograph of them and then there's a second box that you can go to, there's four modes, if you go to an evacuation mode all it does is bring up a list of names of people on site. You go to the first aid mode it will bring you up that person's - any health requirements that they're volunteered to giving and in - there's another mode on it where you can manually have somebody swipe on site without actually having their card if you need to have it that way.
(Emphasis added.)
I prefer this evidence to the evidence of Mr Broadhead on the basis that it is consistent with the documentary evidence in the slide presentation and answers directly to the question of whether the photograph would exist otherwise than as an analog image on the swipe card.
29 Based on the evidence to which I have referred, I am satisfied that the taking of a photograph, which would be displayed on the face of the swipe card as well as stored and accessible electronically on a database, was objectively a part of the BGS prior to the entry of the parties into the Deed and that this was a surrounding circumstance known to the parties.
30 The only question which remains to be determined, then, is whether cl 2.1 of the Deed, which does in cl 2.1(j) expressly eliminate the feature of the photograph being displayed on the swipe card while also expressly preserving the linked database feature, should be read to have retained the electronically stored and accessed photograph or instead to have modified the BGS so as to preclude the taking and retention of any photograph in any form. As I have already found, the plain text of the Deed itself does not directly answer the question. However, based on considerations of context (and the purpose that emerges from that context), that answer must in my view be the former.
31 It is helpful first to examine the provisions of cl 2.1 as a whole (leaving aside the transitional provisions). Broadly speaking, they reflect an attempt to compromise and balance the competing concerns of Bovis on the one hand (i.e. safety and security concerns such as the restriction of site access to authorised personnel only) and the Unions on the other (i.e. privacy concerns such as the freedom from excessive monitoring or disciplinary action). What is significant is the way in which the compromise has been struck; rather than imposing restrictions upon the collection of worker data, the clauses work to limit the circumstances in which that data may be accessed. For example, cl 2.1(j) protects worker privacy and restricts access by (1) limiting the people who can access the data and (2) ensuring that the information cannot be gleaned from the face of the card itself (i.e. the information can be accessed only by a portable or stationary swipe card reader). When it is observed that cl 2.1(j) deals only with what appears on the card it becomes clear that cl 2.1(j) is not intended to modify the collection of data under the BGS as it existed prior to entry into the Deed. The clause says nothing about the collection of data at all; instead, it says only that whatever data is collected, access must be restricted in the manner specified.
32 Reading cl 2.1 as designed in relevant part to limit access to data rather than collection of data is also consistent with the lack of any reference in the Deed to photographs, definition of induction information, or even any definition of the BGS itself. The clause does not set out or define the worker data to be collected because, again, it does not modify the BGS in that respect and thus no definition is required. Put another way, cl 2.1 does not define the entirety of BGS to be installed; it takes the existing BGS as a given and then proceeds to impose privacy safeguards.
33 Moving from the general to the specific context, it is also useful to consider cl 2.1(h). That clause restricts Bovis from using PDAs to read the swipe cards unless there is a serious safety or security concern and the person cannot be identified by other means. The two examples given are medical emergencies or suspicious conduct. A reasonable person would read this clause as allowing Bovis to use the swipe cards to identify workers in the limited circumstances where they are either: (1) unable to identify themselves (e.g. because they are unconscious or otherwise physically incapable due to a medical problem); or (2) unwilling to identify themselves (e.g. they refuse to identify themselves but there are reasonable grounds, based on their conduct, to require them to do so). Again, this clause reflects an attempt to balance the privacy concerns of the Unions with the safety and security concerns of Bovis by imposing a broad prima facie restriction on Bovis' access in the field to swipe card data, subject to the two safety and security exceptions mentioned.
34 I consider that both the purpose and text of this clause (cl 2.1(h)) would be frustrated if the database did not contain a picture of the worker to verify the person holding the card. For example, suppose the card were swiped and the name "Fred Smith" appeared on the PDA. Unless the photograph of Fred Smith also appeared, there would be no easy way of knowing whether the person holding the card was in fact Fred Smith or simply someone who had borrowed, stolen, or otherwise obtained Fred Smith's swipe card. In other words, implicit in cl 2.1(h), as in cl 2.1 generally, is the common understanding that the data that was to be collected and retained as part of the BGS prior to entry into the Deed (including a photograph) would continue to be collected and retained, but access to that data would be strictly limited.
35 Clause 2.1(i) is also consistent with an access-based rather than collection-based approach to the modification of BGS. Although it attempts in the first instance to restrict collection of entry and egress data, it accepts that such collection may nevertheless occur and relies principally on a purpose-based restriction (i.e. the information cannot be used to discipline workers for late arrival or early departure) on access to that data.
36 In short, I reject the Unions' submission that there is any express or implied limitation in the Deed on the ability of Bovis to collect and store data as part of the BGS that it would have collected and stored as part of the BGS as it existed prior to entry into the Deed. I conclude instead that a reasonable person would understand by the language in which the parties have expressed the Deed that the taking of worker photographs and retention of those photographs on an electronic database linked to the swipe cards is not a breach of the Deed.