The Notice of Contention
38 As we earlier recorded, the primary judge rejected arguments by Coles that either the 2008 EBA or the 2011 EBA applied to the employment. By its Notice of Contention, Coles sought to challenge those findings.
39 In Kucks v CSR Ltd (1996) 66 IR 182 ("Kucks"), Madgwick J said (in a passage, the first part of which is frequently quoted, but the second part less so):
Legal 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.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
40 Although those observations were made in relation to the construction of awards they have been treated as a useful statement about the construction also of industrial agreements. They remain relevant in that context provided that the construction of "agreements" made and certified under the FW Act does not become diverted by any assumption (which might once have been justified when industrial agreements were entirely consensual - and made between employers and unions) that they should be treated as a form of bargain between agreeing parties. As a Full Court pointed out recently in Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84:
88 … Under the FW Act, an enterprise agreement is an agreement in name only. Those who, by s 172(2), are empowered to "make" an enterprise agreement are the employer and "the employees who are employed at the time the agreement is made and who will be covered by the agreement". A contract lawyer would assume that those persons would be parties to the agreement, and that the assent of all of them would be necessary for the agreement to be "made". But the lawyer would be wrong on both counts. The FW Act does not identify the employer, or any employee, as a "party" to an enterprise agreement. Further, notwithstanding the specific empowering terms of s 172, it is not necessary for all the employees who are employed at the time an agreement is made and who will be covered by the agreement to assent to the terms of the agreement. Once a majority of those employees have agreed by voting, the agreement must be sent to the Commission for approval and, if approved, thenceforth applies to all the employees in the relevant group, even those who did not agree, and even those, subsequently taken into employment, who were not part of the relevant group at the time the vote was taken under s 182.
89 In his reasons, the primary Judge said that "Toyota contended and it was not disputed, that an enterprise agreement made under the FW Act is a form of delegated legislation". … However, although the FW Act provides that an enterprise agreement is "made" otherwise than by the Commission, the Act does more than merely impose conditions upon, and give additional legal effect to, an agreement made between private parties. The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and, as mentioned above, will be felt also by those who did not agree to them. Someone, such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.
41 It is in accordance with those circumstances, and authority binding on this Court, to bear steadily in mind the second element of the passage quoted above from Kucks.
42 In Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, the High Court dealt with the proper approach to the construction of an industrial agreement, made under the previous statutory arrangements, between an employer and two unions. Gleeson CJ and McHugh J said:
2 The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, …
43 Gummow, Hayne and Heydon JJ emphasised that a contentious provision of the agreement could be properly construed only if:
50 … due account is taken of each of the matters we have mentioned: the other provisions found in cl 55 and elsewhere in the Agreement, and the matters of legislative background to which we have referred.
44 Kirby J said:
66 … In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements . Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law's operation.
67 In the present case, the Union's submission was that these generalities were all very well, but that in the end, the Court had to give effect to the language of the Agreement. Clearly, this is correct. Interpretation is always a text-based activity. …
(Footnotes omitted.)
45 In the search for an objective intention arising from the language used in an instrument of the present kind (i.e. 2008 EBA and 2011 EBA) it is relevant to bear in mind the context in which the instrument came into existence. In some cases that context might show that a particular construction or operation was unlikely to have been intended.
46 In the present case, Coles stressed that industrial agreements and other instruments may legitimately extend and apply to new fact situations, relying on observations of Gibbs CJ in R v Isaac; Ex parte Transport Workers' Union of Australia (1985) 159 CLR 323 ("Isaac") at 331. In the passage from Isaac upon which Coles relied, (which canvassed the proper construction of a union rule) Gibbs CJ emphasised the primacy of "the ordinary meaning of the words of the rule". However, giving primacy to the text does not deny the importance of understanding the context in which an instrument is made, and which it is intended to address, nor the utility of bearing in mind the facts as they are known at the time the instrument is drafted.
47 The 2008 EBA was made between Coles and two unions. It provided in cl 1.6.1:
1.6.1 This Agreement shall be binding upon Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited, ("the Company") and the Shop, Distributive and Allied Employees' Association ("the Union") in respect of all classifications in this Agreement whether members of the Union or not.
48 The classification claimed by Coles to embrace the work of CSAs was "Service Assistant" which was defined as follows:
(o) "Service Assistant" shall mean a permanent team member engaged to perform a range of duties associated with operation of a store, including:
- customer service and assistance;
- trolley collection;
- operation of "Point of Sale" terminals;
- preparation for sale of fresh foods and merchandise;
- stock replenishment;
- general cleaning in accordance with normal position requirements but not including cleaning of toilets, window exteriors, or washing of floors, except for the removal of occasional spillages;
- receipt and storage of stock and produce;
- other general store duties;
- incidental clerical and administrative duties on a needs basis;
- merchandising, point of sale duties;
- floor walking;
- food preparation/cooking;
- preparation, presentation and maintenance of floral arrangements.
49 It will be noted that there is no reference to driving or delivery. At the time the 2008 EBA was made Coles contracted drivers and delivery work to Linfox. CSAs were not employed until 2010.
50 The primary judge analysed Coles' contention, that the 2008 EBA applied in terms to the employment and work of CSAs, as follows:
182. The classifications are outlined in clause 4.1, and the classification relied upon by Coles is that of "Service Assistant". The key to the classification is the description of "a team member engaged to perform a range of duties associated with operation of a store", including a list of activities then set out including floor walking, stock replenishment, preparation, presentation and maintenance of floral arrangements, preparation for sale of fresh foods and merchandise, and otherwise customer service and assistance, operation of "Point of Sales" terminals, and other general store duties.
183. It strains the language of the instrument to bring the work of CSAs within the classification. While there is ambiguity, I am inclined to the view from the language used that the intention of the classification of "Service Assistant" is to capture employees performing duties within a store, not someone working outside a store undertaking deliveries. However, the primary function of CSAs is in a general sense to undertake duties "associated with the operation of a store". The primary function and major and substantial employment of CSAs is to load and drive a truck and deliver goods to customers who have placed orders through the Coles Online website. It is possible but unattractive to construe the classification of "Service Assistant" in the 2008 EBA as applying to persons subsequently employed as CSAs.
184. It is useful to examine the indicative tasks listed for the "Service Assistant" classification in clause 4.1.1(o) of the 2008 EBA. There is no reference to any delivery function, driving or transport function. The duties of "customer service and assistance", "operation of 'Point of Sale' terminals", "preparation for sale of fresh foods and merchandise" or "receipt and storage of stock and produce" do not describe duties performed by CSAs and are, on their ordinary meaning, referrable to work undertaken entirely within the retail store and the sale of goods to customers present in the retail store.
185. The objective background facts at the time when the 2008 EBA was negotiated were that CSAs were not employed by Coles. The delivery functions of the Coles Online business were being performed by truck drivers engaged by external contractors. In those circumstances, it is unsurprising that the indicative tasks of the classification of "Service Assistant" do not refer to the delivery or transport duties. It cannot have been the intention of the parties that the "Service Assistant" classification apply to the work of the CSAs, that is, the performance of delivery functions.
(Footnote omitted.)
51 We see no error in this analysis and we would not have been prepared to interfere with it if we had been required to decide this issue.
52 The position about the 2011 EBA is even clearer, even though by the time it was made the employment of CSAs had commenced.
53 The 2011 EBA was negotiated between Coles and three unions. Clause 1.4.1 provided:
1.4.1 This Agreement shall be binding upon Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited, ("the Company") and the Shop, Distributive and Allied Employees' Association ("the Union") in respect of all classifications in this Agreement whether members of the Union or not.
54 The 2011 EBA was expressed to substitute for the 2008 EBA because cl 1.4.3 provided:
1.4.3 This Agreement shall operate in complete substitution of any Award or Agreement, whether State or Federal, previously covering such team members as are provided for within the classifications contained herein.
55 However, under the FW Act the terms of the 2011 EBA were required to be notified to employees who would be covered by it (FW Act, ss 173, 180) - those employees were entitled to vote and a majority of valid approving votes were required (FW Act, ss 181, 182).
56 Owing to disagreement with the TWU about whether CSAs should be covered by the 2011 EBA, Coles did not initially intend that they should be covered by it and they were given no chance to vote for (or against) its approval. Later, Coles came to the view that the terms of the 2011 EBA applied to CSAs but it was accepted in argument on the appeal that, if that belief was correct, the CSAs were denied their right to vote. The 2011 EBA would be invalid in that circumstance. That would leave the 2008 EBA in operation. We do not need to explore this issue further because we do not accept that the terms of the 2011 EBA apply to the employment or work of CSAs.
57 The classification in the 2011 EBA which was said by Coles to apply to CSAs was "Store Team Member". That position is defined in identical terms to "Service Assistant" under the 2008 EBA as follows:
(i) "Store Team Member" shall mean a team member engaged to perform a range of duties associated with operation of a store, including:
- Customer service and assistance;
- Trolley collection;
- Operation of "Point of Sale" terminals;
- Preparation for sale of fresh foods and merchandise;
- Stock replenishment;
- General cleaning in accordance with normal position requirements but not including cleaning of toilets, window exteriors, or washing of floors, except for the removal of occasional spillages;
- Receipt and storage of stock and produce;
- Other general store duties;
- Incidental clerical and administrative duties on a needs basis;
- Merchandising, point of sale duties;
- Floor walking;
- Food preparation/cooking;
- Preparation, presentation and maintenance of floral arrangements.
58 Leaving aside that element of the reasoning of the primary judge set out earlier which brought to account the fact that CSAs were not employed by Coles in 2008, the reasons given by the primary judge for finding that the 2008 EBA did not cover the employment and work of CSAs apply with equal force to the terms of the 2011 EBA, although an opposite conclusion would take the matter nowhere.
59 If it was necessary to do so we would dismiss the Notice of Contention.