//
[2022] FWCFB 205
General information, not legal advice.
Fair Work Commission (Full Bench)
2022-11-15
Original judgment source is linked above.
s.604 - Appeal of decision
Ricegrowers Limited T/A SunRice, CopRice Feeds and Australian Grain Storage Pty Ltd
DEPUTY PRESIDENT CLANCY DEPUTY PRESIDENT MILLHOUSE COMMISSIONER WILSON
Appeal against decision [2022] FWC 1588 of Deputy President Easton at Sydney on 22 June 2022 in matter number C2021/8418.
[1] Ricegrowers Limited trading as SunRice, CopRice Feeds and Australian Grain Storage Pty Ltd has filed an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision of Deputy President Easton issued on 22 June 2022[1] (Decision) in which the Deputy President determined a dispute that had been referred to the Commission for determination under clause 25 of the SunRice, AGS and CopRice Employees Enterprise Agreement 2017-2020[2] (the Agreement).
[2] On 15 July 2022, Vice President Hatcher granted a stay order by consent
until the hearing and determination of the appeal or until further order of the Commission.[3]
[3] Clause 5 of the Agreement outlines its coverage, which is across multiple sites and classifications (as defined).
[4] Clause 6 of the Agreement deals with the terms of the Food, Beverage and Tobacco Manufacturing Award 2010 (Food Award) and the Manufacturing and Associated Industries and Occupations Award 2010 (Metals Award), as varied from time to time, in the following way:
The terms of the Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010 ("the Award"), as varied from time to time, are incorporated into this Agreement. If an incorporated Award term is inconsistent with an express term of this Agreement, the express term in the Agreement prevails over the incorporated Award term to the extent of the inconsistency.
[5] Clause 11.1 of the Agreement states:
(a) The wage rates and allowances during the term of this Agreement are set out in Schedule A.
(b) The classification structure is set out in Schedule B.
(c) For the avoidance of doubt, Schedules A and B form part of this Agreement."
[6] The subject of the dispute concerned the operation of the Agreement and whether any of the allowances in the incorporated awards apply. The parties submitted the following question for determination:
"Does the Agreement require the Employer to pay the Award Allowances where these apply to work performed by employees covered by the Agreement and are not otherwise provided for in Schedule A of the Agreement?"
[7] The Appellant contends that the Deputy President erred in his construction of clause 11 of the Agreement in finding the Agreement incorporated the heavy vehicle driving allowance, first-aid allowance and fumigation gas allowance from the Food Award (Award Allowances) to the extent that any of them are not inconsistent with the specific terms of Schedule A. The Appellant submits that based on a proper construction of clauses 6 and 11 and Schedule A of the Agreement, the Deputy President should have found that the allowances payable to employees covered by the Agreement were only those set out in Schedule A of the Agreement.
[8] The position of the Appellant is that the Deputy President should have answered the question in the negative.
[9] Having noted that a dispute had arisen regarding whether allowances in the Food Award and Metals Award applied, the Deputy President outlined clauses 6 and 11.1 of the Agreement and observed that while the parties agreed that clause 11.1 contains a limitation, there was dispute as to what that limitation is.
[10] The Deputy President admitted evidence led by both parties comprising documents and recollections from earlier bargaining processes but concluded the extraneous materials provided by both parties did not assist him to resolve the dispute and the viva voce evidence from the witnesses was of limited value.[4] The Deputy President then summarised the submissions of the parties.[5]
[11] The Deputy President expressed the view that if the terms in the Food Award and Metals Award dealing with allowances were inconsistent with clause 11.1(a) and Schedule A of the Agreement, they were to be read down, but only to the extent of the inconsistency.[6]
[12] The Deputy President then proffered that with the exception of the meal and dust allowances, the allowances in Schedule A applied to maintenance employees and since maintenance employees were only a small minority of the employees covered by the Agreement, there were only two allowances in Schedule A payable for most employees covered.[7]
[13] The Deputy President characterised the Appellant's case as relying on the words of clause 11 to exclude any and all allowances that might otherwise be payable because clause 11 outlines that the only allowances payable were those contained in Schedule A.[8] The Deputy President opined that, generally speaking, the more comprehensive or detailed the provisions in Schedule A, the more likely it was that the intention of the Agreement was for Schedule A to provide an exhaustive set of conditions.[9] The Deputy President stated that while he accepted the Appellant's submission that the terms of Schedule A were consistent with the parties having taken a deliberate and comprehensive approach to setting out the terms and conditions of the allowances therein, he had "great difficulty" accepting that the intention of the Agreement was to provide allowances to only a small minority of employees and to intentionally exclude any other allowances.[10]
[14] The Deputy President proceeded to make the following findings:
a) The terms of clause 11.1(a), measured against the incorporation terms of clause 6, did not have the effect the Appellant said they did. The terms needed to have clearly revealed the intention to exclude any and all allowances that might otherwise have been payable; [11]
b) The ordinary meaning of the words of clause 11.1(a), read as a whole and in context, did not mean that any and every allowance in the Food Award and the Metals Award were of no effect; [12]
c) The Appellant did not provide sufficient evidence of any common understanding between the parties that the only allowances payable were those in Schedule A;[13]
d) Some allowances in the incorporated awards were inconsistent with the allowances contained in Schedule A; and[14]
e) Allowances in the incorporated awards that related to the same categories of employees, locations and circumstances as those described in Schedule A were displaced.[15]
[15] The Deputy President therefore concluded that the answer to the agreed question was 'yes', but only to the extent that any of the Award Allowances were not inconsistent with the specific terms of Schedule A.[16]
[16] In its notice of appeal, the Appellant advanced the following grounds of appeal:
The Deputy President erred in failing to find that clause 11 of the Agreement was an express term of the Agreement which was inconsistent with the incorporation of the allowances contained in the Food Award.
The Deputy President erred because, based on a proper construction of clauses 6 and 11 and Schedule A of the Agreement, he should have found that the allowances payable to employees covered by the Agreement were only those set out in Schedule A of the Agreement and as such, should have answered the agreed question for determination in the negative.
Further, the Deputy President:
a. Erred in that he did not correctly apply the principles of construction of enterprise agreements (including as outlined in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union v Berri Pty Ltd[17] (Berri));
[17] The Appellant also outlined the following matters it says make it in the public interest for the Commission to grant the appeal:
The Decision incorrectly construed the Agreement.
It is in the public interest that the Commission, in determining disputes concerning the application of enterprise agreements, construe such agreements correctly.
The Decision failed to have proper regard to the principles of construction of enterprise agreements.
It is in the public interest to ensure that the Commission exercises its jurisdiction consistently with established principles to ensure the preservation of public confidence in the administration of justice.
The appeal raises issues of general importance and broader application regarding the Commission's approach to the interpretation of enterprise agreements.
The Decision creates a situation of uncertainty and scope for continued disputation as to the applicable allowances and the manner in which such allowances are to be calculated, including in respect of antecedent agreements which contain identical provisions relating to the payment of allowances as the Agreement.
[18] The Appellant's primary position is that the allowances to be received by employees while the Agreement was in operation are outlined in Schedule A of the Agreement. The Appellant submits that clause 11.1 had a substantive role because by directing the parties to the Schedule, clause 11.1 identified the wage rates and allowances payable.
[19] Appeal grounds 1 and 2 characterise clause 11 of the Agreement as an identifier of the wage rates and allowances that are payable during the term of the Agreement and further, as an express term which is inconsistent with the incorporation of other allowances that are contained within the Food Award or the Metals Award. The Appellant submitted that in failing to make such a finding, and a finding that the only allowances payable to employees covered by the Agreement were those set out in Schedule A of the Agreement, the Deputy President was in error.
[20] Appeal grounds 3(a) and (b) are directed at what the Appellant says was the failure of the Deputy President to have sufficient regard to the ordinary meaning of the words used in clause 11.1. The Appellant submitted that when regard is had to the use of the word "the" in clause 11.1, as opposed to some other phrase, such as "some of", or "additional", the word "the" effectively means "the only" and that it is palpably clear that clause 11.1 directs the reader's attention to what allowances are to be payable during the term of the Agreement. The Appellant relied on Project Blue Sky v ABA[18] to assert there is a need to give words effect and submitted that the Deputy President's construction of clause 11.1 departed from the ordinary meaning of the words used in the clause and failed to give effect to the word "the".
[21] The Appellant submitted the Deputy President's conclusion that the ordinary meaning of the words of clause 11.1(a) did not operate to exclude every allowance in the incorporated modern awards is difficult to reconcile with the language used. The Appellant suggested that the Deputy President's reasoning for this conclusion appeared to be his difficulty in accepting that the intention of the Agreement was to provide allowances to only a small minority of employees and intentionally exclude other allowances, together with the failure of the Agreement to expressly state that it wholly replaces the terms of the Food Award and Metals Award. The Appellant submitted that neither of these considerations were a sufficient reason to depart from the ordinary meaning of the wording used in clause 11.1.
[22] In this regard, the Appellant relied on the first two principles outlined by the Full Bench in Berri.[19] Specifically, the Appellant said that the construction of an enterprise agreement begins with the consideration of the ordinary meaning of the relevant words and the interpretation task does not involve rewriting it to advance what might be regarded as a "fair or just outcome."[20] The Appellant submitted that it is not apparent that there was any unfairness in any event. The Appellant further submitted there was no basis for the Deputy President to find that the Award Allowances were not compensated for by the wage rates and classifications in the Agreement (and its predecessors). In addition, the Appellant submitted there was no basis for concluding that giving effect to the ordinary meaning of the words used gave rise to an outcome that was absurd, capricious or irrational in the sense articulated in Cooper Brookes (Wollongong) Pty. Ltd. v Federal Commissioner of Taxation,[21] when regard was had to the nature of the allowances under consideration and the fact that the wage rates in the Agreement are greater than those provided for in the Food Award.
[23] The Appellant submitted that while it was apparent that the Deputy President considered the Agreement required an express exclusionary statement before the ordinary meaning of the words of clause 11.1(a) could mean that any and every allowance in the incorporated awards was of no effect, such a construction would leave clause 11.1(a) no work to do beyond directing the reader to Schedule A. The Appellant submitted applying this requirement would result in the adoption of an "excessively narrow and artificially restricted construction" and would require words of limitation to be read into the sub-clause conveying that any allowances contained in the incorporated awards continue to apply, notwithstanding the express reference to "The wage rates and allowances during the term of this Agreement ...". The Appellant submitted there was no proper basis for reading these words into clause 11.1(a).
[24] To the extent there was any doubt about its primary position, the Appellant advanced a secondary line of argument that there was a practice of only paying the allowances in Schedule A that commenced with the 2011 Agreement and then employees were subsequently told in advance of voting for both the 2014 Agreement and the Agreement that there were no changes to the clauses governing that practice. The Appellant submitted that these circumstances could weigh in favour of the construction it advanced.
[25] The Appellant next characterised appeal grounds 3(a), 3(c), 3(d), 3(e) and 3(f) as being focussed on the industrial context in which clauses 6, 11.1 and Schedule A in the Agreement were to be construed. It submitted this context includes the way that identical clauses were applied in the predecessor 2011 Agreement and 2014 Agreement and what employees were told about clauses 6, 11.1 and Schedule A when they made the Agreement. The Appellant also argued through these appeal grounds that the construction adopted by the Deputy President did not give rise to a "sensible and practical industrial result".[22]
[26] The Appellant submitted there was no dispute that there had been three successive agreements negotiated and agreed that contained materially the same provisions to those outlined in the Agreement, and including no references to any allowances, other than those set out in Schedule A of each agreement. Further, the Appellant argued that the Award Allowances had never been paid by the Appellant during the term of the Agreement, or under any of the other agreements and that when the Agreement was "made", employees were informed through the explanation provided pursuant to the Act that the employer intended "no change" in the operation of these provisions. The Appellant argued that the evidence of Ms Parslow went to what employees had been told in relation to each successive agreement and was not simply evidence of her understanding, as had been concluded by the Deputy President. The Appellant argued that Ms Parslow's evidence went not to what she understood the clause to mean but, when read in conjunction with the Statement of Agreed Facts, to the fact that the clause:
had been present in identical terms for over 6 years;
in a number of iterations of the Agreement;
in circumstances where it was agreed that the Appellant had paid employees the allowances contained in Schedule A and not those contained in the Food Award; and
• in circumstances where those who voted to make the Agreement were told that this position was to continue.[23]
[27] The Appellant submitted such evidence fell squarely in the description contained in Principle 13 of Berri and argued, relying on what it said was explained by Burchett J in Short v Hercus,[24] it would take a "form of judicial blindness" not to have regard to this context. Further, the Appellant argued that subject to the factors identified by Wheelahan J in Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams, [25] there was no prohibition on having regard to such material.
[28] The Appellant submitted that the Deputy President's construction introduced uncertainty and unworkability.
[29] The Appellant submitted it was inherently unlikely that the parties would have intended to enshrine two different methods for the calculation of allowances, such that some allowances but not others would be fixed by reference to the rates contained in the Agreement and others by reference to a percentage of a classification rate contained in the Food Award as varied from time to time. Relying on Kucks v CSR Limited (Kucks),[26] the Appellant argued that a meaning that avoids such an inconvenient outcome may be reasonably strained for.[27]
[30] The Appellant submitted that the Deputy President should have strained to avoid a further "inconvenience" that flows from his determination that the Agreement incorporated Award Allowances "but only to the extent that any of the Award Allowances are not otherwise provided for in Schedule A of the Agreement". The Appellant argued that such an approach creates a position of uncertainty and potential for continued disputation in relation to the Agreement as to which allowances applied to which employees and when; and the basis on which each of those allowances was to be calculated. The Appellant submitted that the parties should not lightly be taken to have intended this and such an outcome is avoided by giving effect to the ordinary meaning of the words used in the Agreement.
[31] As to appeal grounds 1 and 2, the Respondent submitted that the Deputy President properly construed clauses 6 and 11 and Schedule A of the Agreement in finding that the ordinary meaning of the words of clause 11.1(a), read as a whole and in context, did not mean that any and every allowance in the Food Award were of no effect.
[32] In response to appeal grounds 3(a) and 3(b), the Respondent submitted that clause 11 and Schedule A are not, on their terms, inconsistent with certain award allowances and do not, on their terms, exclude those allowances with which they are not inconsistent. The Respondent submitted the starting point is that, by virtue of clause 6 of the Agreement, every single term of the Food Award (including each separate allowance provided for) is incorporated into the Agreement, effectively as separate and distinct terms and that only if an incorporated award term is inconsistent with an "express term" of the Agreement, will the "express term" prevail over the incorporated award term.
[33] The Respondent raised clause 15.2 of the Agreement, in which an entitlement to a disturbance allowance is outlined, to challenge the Appellant's construction of clause 11.1(a) by arguing that Schedule A does not contain all allowances. In particular, the Respondent proffered that the interpretation of clause 11.1(a) cannot be that the only applicable allowances are those in Schedule A when regard is had to the disturbance allowance in clause 15.2.
[34] The Respondent submitted that the Deputy President was correct in assessing that it would have been possible, through clear words, for the Agreement to exclude certain allowances which were otherwise incorporated by clause 6 and asserted the Agreement contains no such words. The Respondent argued that the Deputy President's construction does not require words to be read into clause 11 to enable the Award Allowances to apply because this is done by the award incorporation clause. The Respondent submitted that in pointing the reader to Schedule A, clause 11.1 was fulfilling a common purpose of clauses of enterprise agreements which contain Schedules and further, it also makes clear that the wages and allowances contained in Schedule A are those which apply for the "life of the agreement". The Respondent argued that such a phrase clearly has work to do in light of the minimum wages provisions of the Act and the better off overall test. The Respondent argued that the effect of the words "during the term of this Agreement" in clause 11.1(a) is to refer the reader to the pay rates they can expect, as opposed to the allowances which are payable.
[35] The Respondent rejected the suggestion that the only reason for the Deputy President's conclusion in respect of clause 11, was a concern regarding fairness. The Respondent submitted the Deputy President expressly disavowed such an approach at paragraph [30] of the Decision.
[36] The position of the Respondent in relation to appeal grounds 3(a), 3(c), 3(d), 3(e) and 3(f) is that the Deputy President did not fail to have regard to the industrial context in which clauses 6 and 11.1 and Schedule A are to be construed in coming to his preferred construction of the words of the various clauses. The Respondent argued it is clear the Deputy President found that the extrinsic material, including the industrial context, did not assist in the construction and maintained the Deputy President did not err in his construction of the relevant clauses when regard is had to the full industrial history in respect of the relevant agreements.
[37] The Respondent submitted there was no "common understanding" that allowances provided for in the Food Award were not payable. The Respondent submitted it is clear that the Deputy President had regard to the documents and statements put to the employees in the course of each of the 2011, 2014 and 2017 agreements. It argued that the Deputy President's view that none of that material expressly indicated to the employees that Award Allowances were not payable is correct. Further, the Respondent submitted it was clear that the Deputy President was cognisant that the same issue as to the interaction between the award incorporation clause and the allowances payable under the Food Award has been extant since 2011 and that the allowances have not been paid since then.
[38] The Respondent submitted that it is relevant to consider the entire history of the relevant agreements and their legislative context, and that this included the agreements made before the commencement of the Act. In particular:
The SunRice Workplace Improvement Agreement 2003-2006 (2003 WIA), which was made when the Workplace Relations Act 1996 (Cth) permitted certified agreements and awards to operate side-by-side with the certified agreements prevailing over awards to the extent of any inconsistency while in operation;
The SunRice Workplace Improvement Agreement 2006-2009 (2006 WIA), which was made when the legislative context for agreement-making had been changed by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), such that an award had no effect while a workplace agreement operated and allowances which were not expressly included ceased to be payable;
On 1 January 2010, the Food Award commenced operation and on 9 May 2011, the 2011 Agreement commenced operation, at which time the Act operated such that the Food Award did not apply to the Appellant or any employee unless incorporated by the applicable agreement.
[39] Having regard to this legislative context, the Respondent submitted the wholesale incorporation of the Food Award was a departure from the past practice and with the commencement of the 2011 Agreement, a significant number of Food Award clauses applied to the Appellant's employees. The Respondent submitted the effect of the award incorporation clause was not thoroughly examined by the parties and merely because the Appellant provided its employees with the explanatory material annexed to Ms Parslow's statement and thereafter did not pay to them the Award Allowances, it does not follow that the "common understanding" of the parties was that only the allowances contained in Schedule A would apply.
[40] The Respondent argued that the question of any "common understanding" ought only relate to whether there was a common understanding as to the interaction between clause 6 on the one hand, and clause 11 and Schedule A on the other and in this matter there was clearly no such understanding. The Respondent submitted that there was "common inadvertence" as opposed to a "common understanding".
[41] The Respondent did not accept the Appellant's assertions regarding uncertainty and future disputation arising from the Decision and considers that the Decision is clear, such that the parties, armed with the Decision and the Food Award can readily enough come to an agreement as to the amounts payable to the Appellant's employees.
[42] The Appellant responded to the construction argument of the Respondent in relation to clause 11 by submitting that it would require words to be read into the clause when there was no warrant for doing so because clause 6 identifies that award terms that are inconsistent with an express term of the Agreement will not be incorporated. In this regard, the Appellant characterised the effect of the Respondent's construction argument on clause 11 as requiring wording such as:
"The wage rates and some of the allowances during the term of this Agreement are set out in Schedule A"; or
"The wage rates and the additional allowances during the term of this Agreement are set out in Schedule A".
[43] The Appellant dealt with clause 15.2 of the Agreement by characterising it as a clause outlining a regime for call back work, within which a disturbance allowance is included. The Appellant submitted that no great weight should be placed upon the fact that the drafters of the Agreement considered it appropriate to place the disturbance allowance in clause 15. The Appellant accepted there was a tension between its characterisation of clause 11.1(a) and the existence of clause 15.2 but submitted the tension is explicable by the following two factors:
The fact of the disturbance allowance being part of a broader regime, in respect of call back, which itself is a matter dealt with, in substance, in the body of the Agreement. As such, the Appellant submitted it was understandable that there was a desire to incorporate the disturbance allowance within the call back regime in clause 15, rather than placing it in Schedule A; and
A temporal explanation, in that the words in clauses 6 and 11.1(a) were adopted prior to the existence of the disturbance allowance and when the disturbance allowance was subsequently introduced, no thought was given to placing it within Schedule A. The Appellant submitted this drafting outcome was capable of being accommodated by applying the principles set out in Kucks.
[44] The Respondent also made the supplementary submission that the disturbance allowance was qualitatively different from the other types of matters dealt with in the allowances in Schedule A, and in respect of or in comparison with the allowances that the Respondent was seeking to import into the Agreement through its interpretation of clause 6.
[45] In relation to the Respondent's submissions concerning the 2003 WIA and 2006 WIA, the Appellant submitted those agreements did not contain a clause 11, such that they can be contrasted with the Agreement (and before it both the 2011 and 2014 Agreements) which had identical terms in respect of clause 6 and clause 11.1 (or its equivalent) and provide a surer guide.
[46] Clause 25(e) of the Agreement relevantly outlines that "the decision of the FWC will bind the parties, subject to either party exercising a right of appeal against a decision to the Full Bench..." The Appellant submitted that where a dispute resolution procedure contemplates there being a right of appeal then that necessarily displaces the requirement for permission. The Respondent did not ultimately object to the Appellant relying on the terms of clause 25(e) of the Agreement to appeal without the specific requirement to obtain the permission of the Commission.
[47] Generally, s.604 of the Act provides for an appeal by an aggrieved person to the Full Bench of the Commission, but only with the permission of the Full Bench. In this case, however, clause 25(e) provides for either party to have a "right of appeal" and therefore, no issue of permission to appeal arises.[28]
[48] The approach of a Full Bench to the determination of an appeal depends on the nature of the decision below. In the present case, the Decision was concerned with determining the question of whether the Agreement requires the Appellant to pay the Award Allowances where these apply to work performed by employees covered by the Agreement and are not otherwise provided for in Schedule A. The Deputy President's determination in this respect was not discretionary in nature, and accordingly the correctness standard applies in respect of the appeal. We must determine whether the Deputy President's answer to the question was right and if we conclude that it was wrong, the appeal must be upheld and our duty becomes one of substituting our own conclusion concerning the proper construction of the Agreement.[29]
[49] For the reasons that follow, it is necessary only to deal with appeal grounds 1, 2, 3(a) and 3(b).
[50] The principles of interpretation of enterprise agreements are well-established.[30] In WorkPac Pty Ltd v Skene (Skene), the correct approach was expressed as follows:
"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced."
[51] In our opinion, the Deputy President's interpretation of clause 11.1(a) was erroneous because it attached no significance on the use of the definitive article in the phrase "The wage rates and allowances during the term of this Agreement..." The particular use of the definitive article in clause 11.1(a) must be given meaning and work to do.[31] The Australian Concise Oxford Dictionary defines "the" as "placed before nouns to denote persons or things already mentioned or under discussion", while the Macquarie Dictionary defines "the" as "used with a specifying or particularising effect, opposed to a or an". The Deputy President determined that the words of clause 11.1(a) should have clearly revealed the intention to exclude any and all allowances that might otherwise be payable.[32] We do not agree that this was necessary. By virtue of its reference to "the" allowances during the term of the Agreement, we consider clause 11.1(a) has a plain meaning. It specifies that the allowances are set out in Schedule A and leaves no room for the allowances in either the Food Award or the Metals Award to be incorporated into the Agreement through the operation of clause 6. Further, we reject the Respondent's characterisation of the phrase "during the term of this Agreement" as being the indicator of the pay rates the employees covered by the Agreement can expect. We consider it is plain that phrase means while the Agreement is in operation. The result is that as far as the allowances incorporated by the Food Award and the Metals Award pursuant to clause 6 are inconsistent with clause 11.1(a), they are of no effect.
[52] We are unable to discern any other reasons given by the Deputy President for his conclusion in [31] of the Decision that the "ordinary meaning of the words of clause 11.1(a), read as a whole and in context, do not mean that any and every allowance in the incorporated modern awards is of no effect". Contrary to that which is stated in the Decision at [30], we consider the Deputy President's interpretation of clause 11.1(a) of the Agreement was likely informed, at least in part, by his "great difficulty" in accepting that the wording of the Agreement might provide allowances to "only a small minority of employees".[33] Respectfully, we find it difficult to conceive of there being any other reason for the Deputy President having alluded to discomfort. Holding this view led the Deputy President into error because, as he himself noted, it is well established the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.[34] The starting point for the Deputy President was to have regard to the ordinary meaning of the words read as a whole, and in context. We consider the Deputy President's "great difficulty" distracted him from this task.
[53] The Respondent raised the presence of the disturbance allowance in clause 15.2(c) and submitted the interpretation of clause 11.1(a) cannot be that the only applicable allowances are those in Schedule A. As to this, we observe:
The 2011 Agreement included a clause 6 and clause 10.1 in identical terms to clause 6 and clause 11.1 of the Agreement;
The 2011 Agreement also included clause 14.2, "Call back and work after shift has finished", which included sub-clause (a) and (b);
The 2014 Agreement included a clause 6 and clause 10.1 in identical terms to clause 6 and clause 11.1 of the Agreement;
The 2014 Agreement retained clause 14.2 from the 2011 Agreement, but it was renamed "Call back and work after shift has finished and Disturbance Allowance" and a new sub-clause (c) providing for a disturbance allowance consisting of two hours pay at double time rates in prescribed circumstances was added; and
The Agreement retained clause 6 and, by virtue of the insertion of the "Commitment to Anti-Discrimination" clause as clause 9, what had previously been clauses 10.1 and 14.2 in the 2014 Agreement were renumbered as clauses 11.1 and 15.2;
In terms of their text, each of the clauses were otherwise unchanged.
[54] The chronology we have outlined above is suggestive of the parties not having intended to change the effect of the interaction between clause 6 and clauses 10.1/11.1 but rather, having simply neglected to insert the disturbance allowance in Schedule A. In this regard, the well-known statement of Madwick J in Kucks, adopted as outlined above in cases such as Skene, is apposite:
"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."[35]
[55] We also regard the positioning of the disturbance allowance within the framework by which the parties to the Agreement regulate call back work as unremarkable.
[56] Appeal ground 2 outlines that the Deputy President erred because, based on a proper construction of clauses 6 and 11 and Schedule A of the Agreement, he should have found that the allowances payable to employees covered by the Agreement were only those set out in Schedule A of the Agreement and as such, should have answered the agreed question for determination in the negative. We reject appeal ground 2 because it did not engage with clause 15.2. Regardless, while the disturbance allowance in clause 15.2 is another allowance the Agreement provides for, it does not directly bear upon the relationship between clause 6 and clause 11.1(a). The terms of clause 15.2 are not compatible with a finding that the allowances payable to employees covered by the Agreement were only those set out in Schedule A of the Agreement.
[57] Notwithstanding our finding in relation to appeal ground 2, our ultimate conclusion is that the Deputy President's findings in relation to clause 11 were erroneous and appeal grounds 1, 3(a) and 3(b) have been made out.
[58] Given the foregoing it is not necessary to deal with appeal grounds 3(c), 3(d), 3(e) and 3(f) advanced by the Appellant.
[59] This appeal concerns the issue of whether the Deputy President reached the correct decision. We have concluded he did not. The Decision must therefore be quashed, and on a rehearing of the application, the correct answer should be substituted. That answer is "no".
[60] The appeal is determined as follows:
(2) The Decision ( [2022] FWC 1588]) is quashed.
(3) In substitution for the determination in the Decision, we determine that the answer to the question that was submitted by the parties is as follows:
"Does the Agreement require the Employer to pay the Award Allowances where these apply to work performed by employees covered by the Agreement and are not otherwise provided for in Schedule A of the Agreement?"
Mr C O'Grady QC and Mr B Rauf of counsel for the appellant.
[2] [2020] FWCA 5009, AE425738.
[4] [2022] FWC 1588 at [10]- [17].
[21] Cooper Brookes (Wollongong) Pty. Ltd. v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.1.
[22] King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [128] per Wheelahan J at [28] - [29].
[23] Cf the position in ALHMWU v Prestige Property Services (2005] [2006] FCA 11; 149 FCR 209, where the issue was whether the Victorian Arts Centre fell within the category of "premises of State Government and Instrumentalises " triggering an entitlement to additional rates of pay (at 210.5); Shop Distributive and Allied Employees Association v Woolworths Ltd [2006] FCA 616; (2006) 151 FCR 513 where the issue was the correct calculation of the rate of pay for a part-time employee entitled to long service leave (at [1]). But note the position in Health Services Union v Ballarat Health Services [2011] FCA 1256.
[25] Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams [2021] FCA 1377 at [63]; The Respondent relied also on the passages referred to and adopted in Shop Distributive and Allied Employees Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14] - [18].
[28] UGM Mining Services Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FWCFB 1639 at [8], citing Australian Manufacturing Workers' Union v Silcar Pty Ltd [2011] FWAFB2555, 208 IR 33 at [15]-[28];Shop, Distributive and Allied Employees Association (Qld Branch)Union of Employees v Woolworths Limited t/a Woolworths [2013] FWCFB 2814, 232 IR 255at [22]; to be distinguished from the provision in DP World Brisbane Pty Ltd v Maritime Union of Australia [2013] FWCFB 8557, 231 IR 167, which included the phrase "subject to any appeal rights".
[29] Rail Commissioner v Rogers [2021] FWCFB] 371 at [61].
[30] James Cook University v Ridd [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ; WorkPac Pty Ltd v Skene [2018] FCAFC 131 264 FCR 536 at [197]; AMWU v Berri (2017) 268 IR 25 at [114].
[31] Project Blue Sky v ABA (1998) 194 CLR 355 at [71].
[32] [2022] FWC 1588 at [27] and [31].
[34] AMWU v Berri (2017) 268 IR 25 at [114].
[35] [1996] IRCA 166; (1996) 66 IR 182 at 184.
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Ricegrowers Limited T/A SunRice, CopRice Feeds and Australian Grain Storage Pty Ltd
United Workers' Union [2022] FWCFB 205
(2017) 268 IR 285
(1981) 147 CLR 297
(2006) 151 FCR 513
(1998) 194 CLR 355
(1993) 40 FCR 511
(1996) 66 IR 182
(2017) 268 IR 25