Ground 1(a): Had Qube Ports agreed to recognise the Employees' previous industrial service?
121 Qube Ports submitted that the Industrial Magistrate should have found that, on the proper interpretation of cl 18.4(d)(i) of the 2011 Enterprise Agreement, there was no previous industry service, prior to 3 April 2000, which had been "agreed" between it and the Employees. This sub-ground focused on the second event on which the MUA had relied. It requires attention to the construction of cl 18.4(d)(i) and of the letters of 16 April 2008.
122 At the commencement of these reasons, I set out in full the terms of cl 18.4(d) of the 2011 Enterprise Agreement. It is also appropriate to note the full terms of cl 18.3, to which the terms elaborated in cl 18.4 refer:
18.3 Redundancy Payments
a) Redundancy payments shall be calculated on the basis of three (3) weeks pay for each completed year of continuous service, or part thereof, to a maximum payment, exclusive of notice [in] lieu of notice, of 52 weeks' pay.
b) Permanent, VSE & GWE employees employed from 1 July 2012 will be entitled to redundancy calculated on the basis of Three (3) weeks' pay for each completed year of continuous service to a maximum payment including payment in lieu of notice, of 52 weeks' pay.
c) Permanent, VSE & GWE employees employed as at 1 July 2012 will be entitled to redundancy calculated on the basis of Three (3) weeks' pay for each completed year of continuous service to a maximum payment including payment in lieu of notice, of 70 weeks' pay.
123 Neither of the Employees was a "VSE" or a "GWE". It was common ground that each was a permanent employee to whom cl 18.3(c) applied. As previously noted, it was also common ground that each was an FSE for the purposes of cl 18.4(d)(i).
124 It is pertinent to note at the outset that the 2011 Enterprise Agreement related only to employees of Qube Ports at Port Pirie.
125 Qube Ports submitted that cl 18.4(d)(i) referred to two forms of service of (relevantly) the permanent FSEs who were in employment at 1 March 2006: prior continuous service with it as a Guaranteed Wage Employee (GWE) or as a permanent employee; and previous industry service which it had agreed to be included. It submitted that the Industrial Magistrate had been wrong to conclude that its letters of 16 April 2008 contained such an agreement and, because this was the only evidence of such an agreement upon which the MUA relied, that its claim should for this reason alone have failed.
126 There are some matters to note about cl 18.4(d)(i). It commences by indicating that its subject is the FSEs and Variable Salary Employees (VSEs) who were employed as "permanent employees" as at 1 March 2006. Neither the evidence at trial nor the submissions indicated the significance of the specification of that date. It appears that it may well have resulted from the unthinking use of a clause in another enterprise agreement to which the MUA and Qube Ports were parties, namely, the P&O Automotive & General Stevedoring Pty Ltd and Maritime Union of Australia Union Collective Agreement (South Australian Outports) 2008 (the Outports Agreement). It was common ground that the Outports Agreement did not have any application to Port Pirie. Plainly, Qube Ports could not itself have employed FSEs and VSEs as permanent employees at 1 March 2006 because, as indicated earlier, it was established only in 2008 as the vehicle by which the TasPorts - POAGS joint venture was to be conducted. This suggests that the clause is to be understood as indicating that service by the defined employees with others would be regarded as prior continuous service with Qube Ports and, further, service as a GWE or a permanent employee. It is possible that the first part of the clause is to be understood as though it read "service with the Company shall be regarded as all prior continuous service as a GWE or Permanent Employee …".
127 There is also ambiguity in the description of the "industry service" contemplated by the parenthetical clause. It is apparent that this clause was intended to extend the services which may be included in the computation of continuous service. Necessarily, the earlier service had to have been with an entity other than Qube Ports. That being so, it seems appropriate to understand the parenthetical clause to be referring to previous industry service, that is, service in the stevedoring industry with a different employer which occurred before the service to which the first limb of cl 18.4(d)(i) refers, providing that there had been agreement for the inclusion of that service. On a strict construction of the parenthetical clause, the previous industry service is not necessarily service which was continuous with that to which the first limb of cl 18.4(d)(i) refers, but it is reasonable to suppose that, in practice, agreement would be given only in respect of previous industry service which was so continuous.
128 Counsel for Qube Ports submitted that the parenthetical clause should be understood as referring only to an agreement made between 2008 (when the previously applicable certified agreement had been made) and 2011. As I understood it, this was because the enterprise agreement which replaced the 2004 Enterprise Agreement (the 2008 Enterprise Agreement) contained in its cl 5.3 a counterpart of cl 5.5 in the 2004 Enterprise Agreement. That had, so Qube Ports submitted, "wiped the slate clean" by negating any individual agreements which antedated it. For the same reasons as given in relation to cl 5.5 of the 2004 Enterprise Agreement, that submission cannot be accepted. Further, cl 18.4(d)(i) does not include any temporal limitation. It seems to contemplate an agreement made at any time with respect to the recognition of prior industrial service.
129 One thing is apparent. Both limbs of cl 18.4(d)(i) contemplated that service before an employee's commencement of employment with Qube Ports may be included in the computation of continuous service for the purpose of cl 18.3(3)(c). There are other indications to the same effect. The very fact that the parties agreed on a cap of 70 weeks' redundancy pay (66 weeks if allowance is made for four weeks' pay in lieu of notice) is one. An employee could have such an entitlement only after 22 years of continuous service, a period well out of reach, during the currency of the 2011 Enterprise Agreement, of any employee who commenced with Qube Ports on 16 April 2008 or for that matter, with Hobart Ports on 3 April 2000. Neither the evidence nor the submissions indicated any persons, other than the Employees, to whom such a cap could be applicable.
130 Qube Ports contended that a number of matters separately and in combination indicated that the letters of 16 April 2008 should not have been held by the Industrial Magistrate to constitute the requisite agreement for the purposes of cl 18.4(d)(i):
(1) clause 18.4(d)(i) contemplated a specific agreement for the recognition of previous industry service. The statement in the letters of 16 April 2008 that CPOL offered employment "in the same position and on terms and conditions that are generally no less favourable than those to which you are entitled as an employee of TasPorts" could not be regarded as encompassing an agreement of that kind: at best, the asserted agreement was indirect and it should not be readily supposed that Qube Ports intended the statement to encompass a term or condition contained in undocumented oral agreement made with an unrelated entity some eight years previously;
(2) the letters of 16 April 2008 had addressed the topic of continuous service, but only with respect to annual leave, personal leave and long service leave. Counsel submitted that in this circumstance, the maxim generalia specialibus non derogant (when in conflict, provisions of general application do not override specific provisions) is applicable, referring to Charben Haulage Pty Ltd v Environmental & Earth Sciences Pty Ltd [2004] FCA 403 at [171]; and
(3) the Industrial Magistrate had failed, when construing the letters, to have regard to two features of the surrounding circumstances, namely, the 2000 Redundancy Agreement and the 2004 Enterprise Agreement. The latter part of this contention was the subject of Ground 3(b) in the amended notice of appeal, but is convenient to address it in relation to Qube Ports' Ground 1.
131 In relation to the first of these matters, it is to be noted that cl 18.4(d)(i) does not contain any specification as to the manner and form of the agreement. Given its context, it seems appropriate to regard the clause as contemplating agreements of diverse kinds, for example, individual and collective agreements, agreements which may encompass more than one subject matter, and agreements with persons other than employees or their union as, for example, an agreement with the entity which had transmitted to Qube Ports the business in which the employees were employed. It would be inappropriate for the Court to read into cl 18.4(d)(i) limitations which the parties themselves did not choose to incorporate, in particular, to read in the word "specifically" before the word "agreed". In my opinion, there is no reason to construe cl 18.4(d)(i) as confined to agreements which address specifically (as opposed to indirectly) the topic of recognition of previous industrial service.
132 The second and third matters on which Qube Ports relied concerned the construction of the letters of 16 April 2008. The terms of the offers in those letters are to be construed objectively, that is, by consideration of the meaning which they conveyed to a reasonable person in the position of the Employees in April 2008.
133 One matter can be put aside immediately. That is the 2000 Redundancy Agreement. Given that it had been superseded by the 2004 Enterprise Agreement, it could not reasonably be regarded as part of the factual matrix in which Qube Ports' offers were to be understood.
134 The position with respect to the 2004 Enterprise Agreement is similar, although for a different reason. The letters of 16 April 2008 told the Employees that the 2004 Enterprise Agreement would continue to apply to their employment for a maximum period of one year after the transmission of business to CPOL. Qube Ports' submission, as I understood it, was that this meant that the content of cll 5.1 and 5.5 of the 2004 Enterprise Agreement was relevant to an understanding of what had been conveyed, objectively, by the terms of its offers. In particular, it meant that, considered reasonably, the Employees should have understood that any terms and conditions applicable to their employment before the commencement of the 2004 Enterprise Agreement had been superseded and, accordingly, not within the terms of the offer made in the second paragraph of the letter. Given that I would reject Qube Ports' submissions as to the effect of cl 5.5 of the 2004 Enterprise Agreement, this submission must fail.
135 The expression "on terms and conditions that are generally no less favourable than those to which you are entitled as an employee of TasPorts" involves some imprecision. It seemed to contemplate that the terms and conditions of employment with Qube Ports may not match exactly the terms and conditions of the Employees' employment with TasPorts but would have a close equivalence. It may be pertinent that the term "no less favourable" appeared twice in cl 32 of the 2004 Enterprise Agreement.
[32.2] Where a business or part of a business of the Hobart Ports Corporation Pty Ltd (the transmitter) is transmitted from Hobart Ports to another employer (transmittee) and the employee who at the time of such transmission was an employee of Hobart Ports, elects to become an employee of the transmittee, Hobart Ports will ensure that the terms and conditions of employment paid by the transmittee are no less favourable than those applied to the employment with Hobart Ports Corporation. …
…
[32.4] Hobart Ports Corporation shall include as part of tender specifications, and within the contractual arrangements with the transmittee, the obligation for the transmittee to apply terms and conditions of employment, including the employer contribution to superannuation, that are no less favourable than those which applied to each transmitted employee by Hobart Ports immediately prior to the transmission of business occurring.
(Emphasis added)
136 The evidence did not disclose the terms of the agreement which Qube Ports had made with TasPorts in 2008. However, as Qube Ports referred in para 4 of the letter of 16 April 2008 to the "transmission" of the business from TasPorts to CPOL, it may be that it drafted the offers so as to recognise the obligations which it had accepted to TasPorts under cll 32.2 and 32.4. Those clauses concerned the terms and conditions of employment of the Employees generally, and not just the terms and conditions under the 2004 Enterprise Agreement itself and/or the Employees' entitlements with respect to annual leave, personal leave and long service leave.
137 Despite the imprecision, the letters of 16 April 2008 should be construed having regard to all of their terms. They should not be construed as though they contained (relevantly) only paras 4 and 5. Effect has also to be given to para 2.
138 In my view, Qube Ports' letters of 16 April 2008 were to be understood, objectively, as conveying the following. First, by para 2, Qube Ports offered each of the Employees employment. It expressed the offer in general terms, by telling each employee that his employment would be in the same position he held at that time and that it would be on terms and conditions generally no less favourable to him than those to which he was presently entitled as an employee of TasPorts. Paragraphs 4 and 5 the letter elaborated that offer by identifying particular terms and conditions which would apply: para 4 by telling the Employees that their employment would continue to be governed by (relevantly) the same certified agreement applicable to their employment by TasPorts; and para 5 addressed the Employees' entitlements to annual leave, personal leave and long service leave. Paragraph 5 can be understood as identifying three of the terms and conditions which would be no less favourable to the Employees than the terms applicable to their employment by TasPorts.
139 In my opinion, a reasonable reader would not have understood paras 4 and 5 as exhausting the extent to which the offered terms and conditions would be no less favourable than those applicable to their employment by TasPorts. Put slightly differently, I do not consider that a reasonable reader of the letters would have understood the letters as conveying that the offered employment would be on terms generally no less favourable to them than their existing terms, but only in the respects identified in paras 4 and 5. Were it otherwise, para 2 would have been unnecessary.
140 The matter may be tested as follows. Suppose that there had been an express written agreement between Hobart Ports and the Employees that their previous industry service would be recognised in the event of redundancy. In that circumstance, I doubt that it could reasonably be concluded that the terms of the 16 April 2008 letters did not include that term, and that is so whether or not Qube Ports had been aware at the time of the offer of the express agreement.
141 Contrary to the submissions of Qube Ports, I do not consider that there is any inconsistency between paras 2 and 5 which attracts the application of the maximum generalia specialibus non derogant. Paragraph 5 is instead one particular of the way by which Qube Ports proposed to give effect to the more generally expressed offer.
142 I mention one further matter. Neither the evidence nor the submissions indicated why Qube Ports regarded itself as bound to recognise the Employees' service with Hobart Ports from 3 April 2000. Perhaps it took the view that that service was within the first limb of cl 18.4(d)(i) pursuant to a construction of the clause along the lines outlined earlier. If so, it did not indicate the construction of the clause upon which it had proceeded, let alone indicate the basis on which it had distinguished employment before and after 3 April 2000. Alternatively, Qube Ports may have proceeded on the basis that there had been an agreement of the kind to which the parenthetical clause referred. Again, if so, the basis for a distinction between employment before and after 3 April 2000 was not shown. However, it is not necessary to pursue these considerations because the MUA did not submit that Hobart Ports' conduct in recognising the Employees' service from 3 April 2000 constituted a form of admission on which it could rely: cf Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216 at 237; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9,251 at 9,255; County Securities v Challenger Group at [162]-[165].
143 For these reasons, I consider that Ground 1 in the amended notice of appeal fails.