Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v
Sydney International Container Terminals Pty Limited T/A Hutchison Ports
(C2022/1521)

Alleged dispute about any matters arising under the enterprise agreement and the NES;[186(6)] – terms of agreement – ambiguity – disputed clause contains two sentences with unambiguous meaning when read separately – ambiguity when reading the sentences together – evidence of surrounding circumstances – representations made by the employer’s CEO during negotiations- interpreting provisions harmoniously – generous rather than overly literal approach to interpretation of agreements.

[1] The Maritime Union of Australia Division of Construction, Forestry, Maritime, Mining and Energy Union (MUA) referred a matter in dispute to the Fair Work Commission regarding an alleged breach of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (Agreement).

[2] Conciliation was not successful and the Commission has jurisdiction to resolve the dispute by way of arbitration in accordance with clause 14.4.2 of the Agreement.

[3] The stevedore business of Hutchison Ports in Australia (Hutchison) involves two separate but related corporate entities that employ persons at two separate sites. The Port Botany Site in Sydney operates through the employing entity Sydney International Container Terminals Pty Ltd (SICTL). The Port of Brisbane facility operates through the employing entity Brisbane Container Terminals Pty Limited (BCT). SICTL and BCT are both parties to the Agreement and SICTL is the respondent to the present proceeding. In this decision I refer to SICTL and BCT collectively as Hutchison, particularly in relation to the negotiation and making of the Agreement.

[4] The dispute centres upon the meaning of Clause 8.1.4, Part B - Schedule 5 of the Agreement. For convenience Clause 8.1 1 is as follows:

“Allocation Requirements

8.1 The parties agree that from the commencement of this Agreement:

8.1.1 One primary Reefer Monitor will be allocated on each shift where reefer duties are required. Another appropriate and trained operational employee from within the existing allocation will assist with Reefer duties.

8.1.2 A Rail Team allocated on a shift only when train(s) exchange(s) are greater than 54 containers.

8.1.3 Two Reachstacker Operators may be allocated on a shift by the Company when there are more than 36 containers to ensure Landside continuity.

8.1.4 Rail Senior Clerk allocated on a shift only when there are more than two trains with a combined exchange greater than 54 containers. For clarity when there is over 54 containers, a Senior Rail Clerk will be allocated.”

[emphasis added]

[5] The MUA maintains that the bargaining history and the Agreement, read as a whole, mandates a conclusion that the Agreement requires the company to allocate a Rail Senior Clerk if more than 54 containers arrive at the port – regardless of the number of trains that transport those containers.

[6] SICTL contends that the ordinary meaning of Subclause 8.1.4 provides that a Rail Senior Clerk must be allocated to as shift at the Port Botany Terminal only when:

(a) three or more trains are expected within a single shift; and
(b) the combined "exchange” is greater than 54 containers.

[7] The MUA and Hutchison were parties to the Sydney International Container Terminals Pty Limited (SICTL) and Brisbane Container Terminals Pty Limited (BCT) and Maritime Union of Australia (MUA) Enterprise Agreement 2015 (2015 Agreement). The 2015 Agreement had a nominal expiry date of 25 November 2018.

[8] In parallel with the negotiations for the 2015 Agreement, the MUA, SICTL and BCT negotiated and agreed upon a Deed of Agreement dated 17 November 2015 (2015 Deed). Clause 12 of the 2015 Deed provided:

“SENIOR CLERK/SHIFT LEADER

A Shift Leader will be allocated to every shift in Maintenance and another in Operations.

Under operational circumstances at the time of signing this document, the Parties recognise the operational requirements for Senior Clerks are minimised compared with a higher volume environment. As such where a Yard is operating alone there will be no requirement for a Senior Clerk; where either Ship or Rail (above 26 containers) is operating there will be a Senior Clerk picked up in the role for the Shift. Where there is less than 26 containers in the Rail, no Senior Clerk will be allocated however there will be a Rail Gang allocated for the Shift in addition to Yard and Ship.

At any one time, the Senior Clerk will be responsible for one area at one time. Where the Senior Clerk is responsible for an area of work, no other area will operate without a Senior Clerk.”

[9] SICTL submitted:

“The practices of SICTL with respect to Rail Senior Clerk allocation at the Port Botany Site prior to the 2021 Enterprise Agreement were as follows:

(a) if, on any shift, the expected number of container "exchanges" was less than 26 (irrespective of the number of trains) no Rail Team was allocated and the "yard team" working on the shift, temporarily attended to the "exchanges" of containers as part of their normal duties; and

(b) if the expected "exchanges" of containers was 26 and above for the shift (irrespective of the number of trains) SICTL would allocate:

(i) a Senior Rail Clerk;

(ii) a Team Leader; and

(iii) one (or possibly two) Reach Stacker Operators to perform the "exchanges" of containers on the shift.”

The Evidence

[10] Mr Warren Smith gave evidence on behalf of the MUA. Mr Smith is the Divisional Deputy National Secretary of the MUA. Mr Smith was appointed to the position of Deputy National Secretary on 25 January 2021. In his role as Deputy National Secretary, Mr Smith is responsible for the industrial interests of the MUA members at a national level, which includes representing members employed by SICTL and BCT in Sydney and Brisbane.

[11] Mr Smith participated in the negotiations for the Agreement, which began in September 2018.

[12] The MUA provided the following summary of the negotiations between Mr Smith and Mr John Willy, CEO of Hutchisons, drawn from Mr Smith’s evidence:

“Enterprise bargaining for a successor Agreement commenced on approximately 26 September 2018, and concluded in July 2021. During bargaining SICTL proposed to increase the threshold for allocating a Senior Clerk to the Rail Gang from 27 to 55 containers. The original proposal from SICTL was as follows:

8.1.4 Rail Senior Clerk allocated only when there are multiples trains with a combined exchange greater than 55 containers.

The MUA consistently communicated to SICTL during negotiations that, from its perspective, the number of trains carrying the containers was irrelevant to a determination of when the company had to allocate a Rail Senior Clerk. Whether the 55 containers arrived on one, five or 50 trains – the MUA made clear to the company that it was the number of containers that determined whether SICTL was required to allocate a Rail Senior Clerk – not the number of trains.

As the negotiations for a new enterprise agreement neared an end, the MUA negotiating committee nominated Warren Smith, then-Divisional Assistant National Secretary of the MUA, to have one-on-one discussions with John Willy, HPA’s CEO, in an attempt to finalise the few remaining issues upon which the parties had not reached an agreement.

Warren Smith had numerous conversations with John Willy on 26 and 27 June 2021 in an attempt to fully and finally settle the Agreement. Mr Smith and Mr Willy also exchanged multiple text messages and emails on those days.

On 27 June 2021, Mr Willy sent an email to Mr Smith at 10:54am stating:

“Just for my peace of mind can I request the change to the following:

8.1.4 Rail Senior Rail Clerk only when there are more than two trains and if the combined exchanges of no greater than 55 containers.

Previous version:

8.1.4 Rail Senior Clerk only when there are more than two trains multiples trains with a combined exchange of no greater than 55 containers.”

One minute later, Mr Willy sent a text message to Mr Smith stating, “I’ve just sent an email for yr consideration with minor change to the rail clause. For my peace of mind to cover what we requested. Many thanks.” At 10:58am Mr Willy followed up with another text, stating:

Its only a small change with doesnt change our understanding. If I can please ask for yr help with it. Much appreciated. Apologies i didnt pick it up yesterday during our final draft.

At 11:13am, Mr Willy explained the purpose of his proposed changes, texting the following to Mr Smith:

I’ve run it past a few people and as it reads i would need to allocate if less than 55 boxes but over two trains. For example if i had three trains with a combined load of 3 containers i’d need to allocate. Can i please request the wording change as per my email for clarity. Sorry for the hassles. My mistake. I should have picked it up last night when we were discussing. Thanks

Mr Smith responded by text message 5 minutes later, writing:

That isn’t our intent. It just makes it hard. That’s why you should have your team there mate. I’ve got to live with what I fuck up but you don’t. How’s that fair. Now I’ve go to go back to everyone. It wrong mate.

At 12:53pm, Mr Willy sent an email to Mr Smith in which he wrote:

Hi Warren – Further to you call, I’m prepared to include the additional wording to cap the exchange. This additional sentence will be added to Schedule 5 of Clause 8.1.4.

8.1.4 Rail Senior Clerk allocated when there are more than two trains with a combined exchange greater than 54 containers. This means that once the total exchange reaches 55 containers a Rail Senior Clerk must be allocated

(emphasis added).

At 12:54, Mr Willy texted the following to Mr Smith:

Done warren. Have added a sentence that says for 55 boxes a rail senior clerk must be allocated (emphasis added).

At 2:06pm, Mr Smith insisted that the following language be included:

For clarity when there is over 54 boxes a senior rail clerk will be allocated.

Mr Smith agreed to Mr Smith’s proposed language. As such, the parties agreed to the following language as the finalised version of clause 8.1.4:

8.1.4 Rail Senior Clerk allocated only when there are more than two trains with a combined exchange greater than 54 containers. For clarity when there is over 54 containers, a Rail Senior Clerks will be allocated.”

[13] Mr Smith is adamant that he reached an agreement with Mr Willy that a Senior Rail Clerk would be allocated after more than 54 containers are scheduled to be on the rail. Mr Smith said:

“Mr Willy had concerns that he would have to allocate a Senior Rail Clerk in instances where there may be minimal containers on the exchange, but multiple trains. I assured him that that wasn’t our position and that our trigger was the negotiated “more than 54 containers”. Mr Willy assured me with words to the effect that he “wasn’t trying to dud us on the 54” rail allocation and that he was concerned about having to pick up the Senior Rail Clerk if boxes were under 54 and there were multiple trains.”

[14] Mr Smith also said:

“The intention of clause 8.1.4 was to ensure that a Senior Rail Clerk was allocated upon a trigger being the number of boxes, not the number of trains. The second sentence of clause 8.1.4 was added to settle the agreement negotiations process.”

[15] In cross-examination, Mr Smith was taken to Hutchison’s pre-ballot summary that would be made available to employees during the access period prior to the making of the Agreement (see paragraph [22] below). Mr Smith suggested that clause 8.1.4 was “incompletely reflected” in the document. Mr Smith said that neither he nor the MUA took any steps to correct or complete the description of clause 8.1.4 because:

“… the words were entirely incorrect and somewhat misleading but we were in the position that we had agreement on the document and we’d had disputation for three years and weren’t really interested in having any more … It’s an employer document. We dealt with this on our own with our members and don’t rely on the employer to tell our members what’s in an agreement … It’s not something we’d rely on quite clearly because of its incorrect nature.”

[16] Mr Nathan Donato also provided evidence on behalf of the MUA. Mr Donato is an Assistant Branch Secretary and is responsible for the industrial interests of MUA members employed by Hutchison at both its Sydney operations in Port Botany.

[17] Mr Donato gave the following evidence about the work of the Senior Rail Clerks:

“A Team Leader is in charge of ensuring that the right boxes go on and off the trains and maintaining the safety of the entire team. Team Leaders have to walk alongside the trains in and out of the site and have to unlock and lock the gates upon entering and egress. With an increase in containers comes an increase in the inherent risk to safety as the site is busier and requires greater monitoring which sometimes includes the integration of shuttle operations in the area.

A Senior Rail Clerk operates a computer to provide information flow to the Team Leader to ensure safe and efficient operations are carried out.

An Allocator allocates Rail Team labour after receiving confirmation from a manager of the required labour the day before and on Fridays for both Saturday and Sunday as they are needed. Allocations, under clauses 26.5 and 26.6 of Part A of the Agreement, dictate the notification times required for allocating Rail Team labour. Allocators receive information on the labour requirements earlier in the day to ensure work allocations are sent by 2pm the day prior to the shift.”

[18] Mr Donato provided the following analysis of the agreement reached in 2021 in relation to clause 8.1.3 and the allocation of Reachstacker Operators (noting that prior to the 2021 Agreement Reachstacker Operators were allocated as part of the Rail Team if the expected "exchanges" of containers was 26 or more – see paragraph [9] above):

“The compromise reached in the new Agreement was for Reachstackers at clause 8.1.3 Part B Schedule 5, whereby:

8.1.3 Two Reachstacker Operators may be allocated on a shift by the Company when there are more than 36 containers to ensure Landside continuity.

The allocation of these reachstackers did not form a part of the Rail Team and were agreed to in order to take pressure off the yard operations should there be more than 36 containers in the rail – that is, the allocation of the two reachstackers did not act as a trigger for the allocation of the Rail Team.

The discussions were around the impact on safety and on efficiency throughout the terminal whilst other operations such as ship and road were not affected. Without the allocation of the additional reachstackers, employees would be spread too thin and would be taken from the yard to cover rail operations.

It was always explained by the company that their concern, for staffing purposes, was with the number of boxes, not the number of trains.”

[19] Mr John Willy is the Chief Executive Officer of Hutchison based at the Port Botany Site. Mr Willy made a written statement in the proceedings and attended the Commission to give evidence on behalf of SICTL.

[20] Mr Willy observed that “a senior rail Clerk is not a role under the 2021 Enterprise Agreement. Rather it is a temporary allocation of duties that only comes into being when the requirements of subclause 8.1.4 of Part B Schedule 5 of the 2021 Agreement are met.

[21] In relation to the bargaining process, Mr Willy gave a similar account of the negotiations between himself and Mr Smith, and added the following:

“In conducting these negotiations, it was my objective to save headcount when there was one or two trains (irrespective of the number of exchanges). By inserting the proposed words in the draft Enterprise Agreement:

"Rail Senior Clerk allocated on a shift only where there are more than two trains with a combined exchange greater than 54 containers"

these words were consistent with my intention to save headcount by not having to allocate a Rail Senior Clerk until such time there were more than two trains with a combined exchange greater than 54 containers.

At the same time, I did not want to have a situation where there could be more than two trains but with relatively small numbers of exchanges planned. It was for this reason, and again to effect a saving on headcount, that I was keen to ensure that there needed to be a minimum number of combined exchanges as well as more than two trains. For example, it was never envisaged by me that if there were, say, four trains with ten exchanges on each of the four trains (a total of 40 exchanges), that a Rail Senior Clerk could or would be allocated. It was for this reason that when Mr Smith sent me the text message at 1306 on 27 June 2021, the words:

"For clarity, when there is over 54 boxes, a Senior Rail Clerk will be allocated."

I was prepared to have this sentence, as proposed by Warren Smith, follow the sentence:

"Rail Senior Clerk allocated only where there are more than two trains with a combined exchange greater than 54 containers."”

[22] In the course of putting the negotiated proposal to a vote, Mr Willy issued a memorandum to all employees on 4 July 2021 that included the following in relation to clauses 8.1.2 and 8.1.4:

[23] Mr Willy’s conclusory assessment of the bargaining process in relation to Senior Rail Clerks was as follows:

“…I state that at no time did I negotiate an outcome that could or would result in a situation where 54 or more exchanges could or would “trigger” the appointment of a Senior Rail Clerk irrespective of the number of trains expected on the shift. I was concerned that there could be a situation where in a shift multiple trains arrived with each train having a small number of expected exchanges. It was for this reason that my position was and remained that there need to be both:

(a) three or more trains expected for the shift; and

(b) a combined total of more than 54 containers.

I did not agree, nor would I have agreed to, a provision that resulted in:

(i) one or two trains with a combined exchange of 54; or

(ii) more than two trains with less than 54 container exchanges;

resulting in the requirement to allocate a Rail Senior Clerk for the shift.”

[24] In cross-examination, Mr Willy agreed that he and Mr Smith were the two representatives authorised to finalise the agreement in June 2021, and that he and Mr Smith did so over the course of a weekend by telephone, SMS and email.

[25] Mr Willy was asked about the details of the proposed terms of clause 8.1.4 and was adamant that Hutchison wanted one of the preconditions to be that more than two trains are scheduled. For example, on one occasion Mr Willy proposed that the expression “multiple trains” be amended to “more than two trains” because two trains was not an acceptable trigger.

[26] Mr Willy agreed that if SICTL’s interpretation is correct then it would not have to allocate a Senior Rail Clerk if two trains were scheduled for a total of 110 containers but it would have to allocate a Senior Rail Clerk if three trains were scheduled for a total of 55 containers. Mr Willy rejected the suggestion that this would be an absurd result and said “setting up a third train involves a bit more work and I guess that’s what we had to bear in mind in negotiations” and that three shorter trains involves more work than two longer trains “in regards to the clerk’s job.”

Submissions
[27] The MUA’s submissions can be summarised as follows:

(a) under the 2015 Deed, when at least 27 containers arrived at Port Botany by train, SICTL agreed to allocate a Senior Clerk as part of the Rail Gang. Conversely, when fewer than 27 containers arrived by rail, there was no obligation for SICTL to allocate a Senior Clerk to the Rail Team;
(b) during bargaining, Hutchison proposed to increase the threshold for allocating a Senior Clerk to the Rail Team from 27 to 55 containers;
(c) whether the 55 containers arrived on one, five or 50 trains – the MUA made clear to the company that it was the number of containers that determined whether SICTL was required to allocate a Rail Senior Clerk – not the number of trains;
(d) the bargaining history and the Agreement, read as a whole, mandates a conclusion that the Agreement requires the company to allocate a Rail Senior Clerk if more than 54 containers arrive at the port – regardless of the number of trains that transport those containers;
(e) while the Agreement is to be read in its plain, ordinary language, where there is ambiguity, the intentions of the parties are relevant in determining the correct construction and interpretation of the Agreement;
(f) when the two sentences are read together, the clause is “mystifying” and “the contradictory sentences present a glaring ambiguity that makes it impossible from simply reading the clause to determine what the parties intended”;
(g) clause 8.1.4 presents two conflicting and, therefore, ambiguous sentences regarding the number of containers and trains;
(h) if the parties intended for the first sentence to govern the clause, they would not have added the second sentence;
(i) when the second sentence is read separately from the first, it unambiguously states that the trigger for the allocation is 54 containers regardless of the number of trains that transport those containers;
(j) it is necessary to consider the communications between Warren Smith and John Willy during negotiations to make sense of the clause;
(k) when Mr Willy proposed substituting the words “more than two trains” for “multiple trains”, his proposal was intended to cure language that he perceived as obligating SICTL to allocate a Rail Senior Clerk if multiple trains carried fewer than 55 containers;
(l) noting that a Rail Team needs to be allocated on a shift when more than 54 containers are transported to the port via rail – regardless of whether the containers are carried by a single train or multiple trains, it would be nonsensical to conclude that the parties intended that the arrival of more than 54 containers during a shift would trigger SICTL’s obligation to allocate a Rail Team, but that the Rail Team would not include a Rail Senior Clerk unless those 55 or more containers arrived on three or more trains;
(m) clause 8.1.4, read in conjunction with clause 8.1.2, “captures the historical meaning of what a Rail Team means” and a Rail Team includes a Senior Rail Clerk;
(n) the only evidence relied upon by SICTL to support its case is a self-serving memorandum issued to the employees during the access period; and
(o) the only plausible interpretation of clause 8.1.4 is that the trigger for the allocation is 54 containers regardless of the number of trains that transport those containers.

[28] SICTL’s submissions can be summarised as follows:

(a) neither of the enterprise agreements made between the parties prior to the 2021 Agreement included provisions with respect to the allocation of a Rail Senior Clerk and/or made reference to the title/role or function of a Rail Senior Clerk at the Port Botany Terminal;
(b) the Commission can consider the intentions of the employer in making the agreement, including when and how those intentions were communicated to employees. The Commission can see the intention of the employer from its memorandum to employees dated 4 July 2021 that described the changes to clause 8.1.4 as follows: “A Rail Senior Clerk will only be allocated on a shift when there are more than two trains with a combined exchange greater than 54 containers.”
(c) this summary of clause 8.1.4 was referred to in Hutchison’s supporting documentation for the application to approve the Agreement and was not ever contested by the MUA;
(d) an industrial instrument should be interpreted on the basis that it is intended to make sense. The consequence of the MUA’s interpretation is that the second sentence of clause 8.1.4 would (if accepted) contradict the first sentence;
(e) the actual words of the clause 8.1.4 do not bend to the MUA’s construction. To the contrary, they point to a contradiction within the content of clause 8.1.4. The text points firmly in the direction advanced by SICTL. The Commission should apply what the Agreement actually says, not what the MUA contends it was meant to say or would otherwise have said;
(f) there is no ambiguity and no regard may be had to the subjective intentions of the parties in the enterprise bargaining negotiations;
(g) the second sentence is “for clarity”, and does not and cannot contradict the content of the first sentence;
(h) the MUA’s attempt to unshackle the first sentence from the second “is just not possible”;
(i) to the extent that the MUA points to the subjective belief that Mr Willy made any compromise (which is denied), the “compromise” suggested by the MUA is not reflected in the document that was put before the employees for a ballot in July 2021. The evidence as to what Mr Willy and Mr Smith were texting is at best ambiguous and does not assist the Commission;
(j) in this case, there is no objective history that could or would inform the construction of this Subclause;
(k) the ordinary meaning of the relevant words of clause 8.1.4, viewed with reference to the text of the 2021 Enterprise Agreement as a whole, supports the construction adopted and implemented by SICTL;
(l) in truth, the MUA seeks to re-write the Agreement to achieve what it may regard as a fair or just outcome;
(m) the MUA’s interpretation is inherently implausible and requires a contorted reading of clause 8.1.4. SICTL contends that the Commission should not depart from the ordinary words which do not support the construction advanced by the MUA; and
(n) at its highest, the MUA’s evidence simply supports the submission that the subjective intentions and expectations of the parties (in the negotiations) differed and, in part, have not been met.

Interpretation Principles (General)

[29] In AMWU v Berri Pty Limited   (2017) 268 IR 285 at 310, [2017] FWCFB 3005 at [114] (“Berri”) the Full Bench distilled principles for interpreting enterprise agreements. Those principles are often quoted and are not controversial:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

i. the text of the agreement viewed as a whole;

ii. the disputed provision’s place and arrangement in the agreement;

iii. the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement, it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning, then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:

i. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

ii. notorious facts of which knowledge is to be presumed; and

iii. evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

[30] The Federal Court applies substantially the same approach. In James Cook University v Ridd (2020) 278 FCR 566, (2020) 298 IR 50, [2020] FCAFC 123 at [65] (Ridd), the Full Court of the Federal Court summarised the relevant principles applicable to the interpretation of an enterprise agreement:

•  The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

•  A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).

•  Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).

•  Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

•  Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

•  A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).

•  Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

[31] On review in Ridd v James Cook University (2021) 310 IR 109, [2021] HCA 32 at [17] the High Court observed:

“… Both parties sought to resolve any tension between the Enterprise Agreement and the Code of Conduct by interpretation of the Enterprise Agreement itself, particularly cl 14. In that process of interpretation, an important matter of context is the industrial nature of the instrument. Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests.”

[32] The principles in Berri provide a helpful order for analysing the matters at hand. I will first consider the ordinary meaning of relevant words in the context in which they appear (Principles 1-6) and consider whether the disputed terms are ambiguous and susceptible of more than one meaning (Principle 7). If there is ambiguity, I will then consider certain surrounding circumstances to hopefully aid the interpretation of the agreement (Principles 8-14).

Consideration
[33] The clause in dispute is not well drafted. The clause itself purports to set a trigger for the allocation of a Senior Rail Clerk to a particular shift.

[34] The ordinary meaning of the words in each sentence of clause 8.1.4 are clear and in fact are not really in dispute.

[35] The parties essentially agree on the meaning of the first sentence if it was to be read in isolation. There are two preconditions that apply before a Senior Rail Clerk is allocated:

(a) three or trains are expected within a single shift; and
(b) the combined exchange is greater than 54 containers.

[36] Similarly, there does not seem to be any disagreement about the meaning of the second sentence if it were to be read in isolation. The second sentence requires a Rail Senior Clerk to be allocated if there are over 54 containers, regardless of how many trains are expected.

[37] The problem is that the first sentence sets two preconditions for the allocation of a Senior Rail Clerk, and the second sentence sets only one precondition.

[38] When the words of each sentence are considered in context, specifically in the context that both sentences together form the whole of clause 8.1.4, the ordinary meaning is far from clear.

Ambiguity

[39] The MUA submits that clause 8.1.4 is ambiguous. The MUA says that when the two sentences are considered together the whole clause becomes “mystifying.”

[40] SICTL argues that the clause is not ambiguous and that the parties cannot go past the ordinary meaning of the clause. In SICTL’s case, the ordinary meaning of the clause is found in the first sentence only. SICTL argues that the only work for the second sentence is repeat one of the preconditions contained in the first sentence “for clarity”.

[41] It is somewhat obvious that there is a problem with the clause:

(a) either the first sentence contains a superfluous condition that is not actually a precondition; or
(b) the second sentence contains an incomplete restatement of the first sentence, “for clarity”.

[42] The “clarity” provided by the second sentence is opaque. The only difference between the two sentences, insofar as they refer to the number of containers, is that the first sentence uses the phrase “greater than 54 containers” and the second sentences says “over 54 containers.”

Surrounding circumstances

[43] I am satisfied that the language of the agreement is ambiguous or susceptible of more than one meaning.

[44] The next step in the analysis is to consider whether any evidence of the surrounding circumstances aides the interpretation of the Agreement.

[45] There are two particular categories of evidence that arise for consideration. The first category is evidence of the bargaining for the 2021 Agreement in relation to the introduction of clause 8.1.4. The second category is evidence of the material provided to employees by Hutchisons prior to the making of the Agreement.

[46] Like many provisions in enterprise agreements, clause 8.1.4 is the product of negotiation and compromise between bargaining representatives. The insertion of the second sentence was proposed by Mr Smith, who said in evidence: “this was negotiated as one of the last points, largely between Mr Willy and myself … to mop the thing up and get it out to a vote.”

[47] The insertion of the additional sentence was important to Mr Smith and the MUA and presumably made sense to Mr Willy and his advisors (otherwise he would not have proposed it).

[48] Conversely the first sentence, and the inclusion of the words “more than two trains” was important to Mr Willy and Hutchison, and posed a problem for Mr Smith that he thought was solved by the insertion of the second sentence.

[49] Evidence of negotiations and communications, and even common understandings reached between bargaining representatives, has only limited forensic value in interpreting enterprise agreements. As Justice Gray said in Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79] 2:

“The second need for care arises in the context of the manner in which industrial instruments are now created. In the days when an award might be negotiated between a union and an employer, and made by consent, the existence of a common understanding between the union and the employer as to the meaning of terms might have had some role to play in their construction. Whatever were the terms of such an agreement, and whatever was their meaning, those terms were imposed upon the employees who became bound by the award. In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past.”

[50] According to the Form F17 filed by Hutchisons in 2021, which was in evidence in these proceedings, 391 employees were eligible to vote on the proposed agreement, 327 actually voted and 299 voted to approve the agreement.

[51] All of the leading authorities express caution about placing undue weight on representations made during the bargaining process. That is not to say that no weight at all can be placed on such evidence.

[52] Over the weekend of 25-26 June 2021, both Mr Smith and Mr Willy had authority to negotiate the terms of a package that Hutchison would in turn put to a vote. By then the MUA negotiating committee had nominated Mr Smith to have one-on-one discussions with Mr Willy, who of course is Hutchison’s CEO. In the bargaining context, there was considerable authority and gravity attached to the representations made by each of them.

[53] In the Commission’s assessment of the surrounding circumstances of the making of an Agreement, the weight that can be placed on representations made by the CEO of an employer during bargaining is greater than the weight that can be placed on representations made by employer bargaining representatives of lesser seniority. Recognising of course that an enterprise agreement is made between an employer and its employees, representations made by a CEO are significantly more likely to reflect the corporate mind of the employer party to the agreement than those of the CEO’s subordinates.

[54] Both parties submitted that I can and should have regard to the intention of each party as found in the evidence given by their respective witnesses. To do so would be contrary to all of the authorities. As stated in principle 11 in Berri: “evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.” On the notion of the “intention” of an instrument, Wheelahan J made the following observation in King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [133], albeit in relation to interpreting awards:

“At times, the parties’ submissions had a tendency to stray into submissions that sought to identify the subjective intention of the Commission in making the Fitness Industry Award. The parties referred to the “framers” of the Award, and sought to identify the framers’ intentions in drafting the Award, and to rely upon that putative intention in support of their own constructions of the Award. This was understandable in a sense, because in Kucks v CSR Ltd at 184, Madgwick J referred to “the search for meaning intended by the framer(s) of the document”. However, this must be understood as describing an inquiry as to the objective meaning of the Award, to which I referred at [122] above. There was also a tendency to seek to impute to the Commission the subjective intention of others, such as ASCTA and Swimming Australia, as disclosed by their joint submission to the Commission as part of the award modernisation process. As I have explained above, that is not the correct approach to the construction of the Award: the process of construction is not a search for the subjective intention of the makers of the instrument.”

[55] In considering the evidence from Mr Smith and Mr Willy, I have not placed any weight on their subjective views of the meaning or intention of their communications or the proposed agreement terms. Rather, I have objectively considered the representations made by each of them to consider whether any of those representations assist in the task of giving to the Agreement “a meaning consistent with the general intention of the parties to be gathered from the whole [instrument]” (per Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503).

[56] The inclusion of a second sentence in clause 8.1.14 was proposed by Mr Willy. His email at 12:53 on Sunday 27 June 2021 said:

“Hi Warren – Further to you call, I’m prepared to include the additional wording to cap the exchange. This additional sentence will be added to Schedule 5 of Clause 8.1.4.

8.1.4 Rail Senior Clerk allocated when there are more than two trains with a combined exchange greater than 54 containers. This means that once the total exchange reaches 55 containers a Rail Senior Clerk must be allocated.”

(emphasis added).

[57] The email was followed by an SMS at 12:54:

“Done warren. Have added a sentence that says for 55 boxes a rail senior clerk must be allocated.”

[58] The context in which these communications were made can be found in the MUA’s summary reproduced at paragraph [11] above.

[59] The final wording of the second sentence was suggested by Mr Smith an hour later and is not relevantly different to the words suggested by Mr Willy.

[60] Mr Willy’s reference to capping “the exchange” in his email must be understood to refer to the exchange of containers in a shift, as opposed to any exchange of positions or ideas between Mr Willy and Mr Smith. The “cap” that Mr Willy said the additional words insert, if those words add anything to the effect of clause 8.1.4, is a cap on the number of containers that is not referrable to the number of trains.

[61] There is no evidence that anyone other than Mr Smith received the email sent by Mr Willy, and certainly no evidence that any of the employees who were eligible to vote received the email. I have assumed therefore that the representations made by Mr Willy were only made to Mr Smith.

[62] Mr Willy’s representations, in the context in which they were made, were very different to the kinds of representations considered in Berri at [80]-[89] and [114(13)]. The Full Bench in Berri described the employer’s evidence as follows:

“[82] Properly analysed, Mr Burton’s evidence only supports a finding that during the negotiation of the 1999 Agreement, Berri advanced a negotiation position proposing the removal of the laundry allowance in exchange for a wage increase. There is no probative evidence of the AMWU’s response to the position put by Berri. Nor is there admissible evidence of the ultimate agreement. Mr Burton’s evidence that there was a package of matters that were agreed and one of them was that employees gave up their laundry allowance, is simply his subjective opinion of the ultimate result.

[83] Mr Burton’s evidence establishes that during the negotiation of the 1999 Agreement Berri proposed that the laundry allowance be removed in exchange for a wage increase and it may be inferred that the proposition advanced was discussed by the parties to that agreement. Even if we accept that such evidence goes to establish the objective background facts (a proposition not free from doubt) the fact that such a proposal was discussed does not mean it was agreed. Plainly, not every claim advanced during the negotiation of an enterprise agreement necessarily results in an agreement, so much is clear from Mr Hattenfels evidence about the negotiations for the 2014 Agreement. During the course of those negotiations, Berri sought to ‘roll the Cool Room rates into the base rate of pay’. The proposal was discussed and rejected.”

[Emphasis added, footnotes omitted]

[63] In this matter, the evidence does establish that Mr Willy’s specific proposal in relation to clause 8.1.4 led to agreement on that point (albeit with slightly different wording). The insertion of a second sentence containing a “cap on exchanges” was discussed and agreed between Mr Willy and Mr Smith and ultimately was not merely a negotiating position.

[64] At the risk of stating the obvious, what was agreed between Mr Willy and Mr Smith was that Hutchison would request its employees to approve an agreement (per s.181) that included clause 8.1.4 in a certain form, and that the MUA and bargaining representatives would endorse or support the approval of the agreement in the subsequent vote by employees.

[65] Overall, and taking into account all the limitations of evidence of this kind, the representations made by Mr Smith and Mr Willie during the bargaining process support the MUA’s interpretation of clause 8.1.4.

[66] If the second sentence has any work to do, it applies a “cap” that has some separate effect to the cap in the first sentence - the cap being the number of containers irrespective of the number of trains.

[67] The second category of evidence to consider is the summary information provided to employees by Hutchisons prior to the vote (see paragraph [22] above). Principle 13 in Berri includes the following observation:

“…. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.”

[68] At the root of the Full Bench’s observation in Berri is the notion that evidence of what the employees were told, as opposed to evidence of what bargaining representatives were told, may be of more assistance because ultimately it is the employees who vote to approve or reject an agreement.

[69] SICTL relies on this observation in Berri to bolster the significance of its summary published during the access period. In cross-examination, Mr Smith sought to diminish the significance of Hutchison’s document, suggesting it was not something the MUA relied on to tell its members what was in the agreement.

[70] Hutchison’s summary of clause 8.1.4 almost correctly reproduces the first sentence of the clause. Almost. The summary gives no indication that the second sentence has any relevance, which is consistent with Hutchison’s position in the present dispute.

[71] The summary was provided to voting employees at the same time as a full copy of the Agreement itself was provided. Any voting employee who had the opportunity to read the summary also had the opportunity to read clause 8.1.4 in full in the Agreement.

[72] The immediate task is to consider what a reasonable person might understand the two sentences of clause 8.1.4 mean when read together. I accept the possibility that this same reasonable person would be more likely to adhere to SICTL’s interpretation of the clause if they read Hutchison’s summary before voting. Put crudely, the fact that the employer ignored the second sentence of clause 8.1.4 in its summary increased the likelihood that a reasonable voting employee would interpret clause 8.1.4 in a way that ignores the second sentence.

[73] The fact that the summary document was provided to employees does support SICTL’s interpretation of the words of clause 8.1.4. That said, the support it provides is not strong.

Surrounding provisions of the Agreement – clause 8.1

[74] The other provisions within clause 8.1 help to understand clause 8.1.4.

[75] Clause 8.1.2 deals with Rail Teams. Although the term “Rail Team” is capitalised in clause 8.1.2, it is not defined in the 2021 Agreement at all. Those who gave evidence on the meaning of a Rail Team, including Mr Willy, said that prior to the 2021 Agreement a rail team always included a Senior Rail Clerk.

[76] Under the previous arrangement, a Rail Team also included one or possibly two Reachstacker Operators and a Rail Team was only deployed if the expected exchanges of containers were 26 and above for the shift (irrespective of the number of trains). Clause 8.1.2 more than doubled the threshold number of containers to trigger the allocation of a Rail Team.

[77] Clause 8.1.3 deals with the allocation of Reachstacker Operators and gives SICTL the option of allocating Reachstacker Operators at the lower threshold of 36 containers without needing to deploy the whole Rail Team.

[78] In cross-examination, Mr Willy agreed that in more than two years of bargaining Hutchison did not ever propose a definition of Rail Team. However, so far as he was concerned, Hutchison did propose a different trigger for the allocation of a Senior Rail Clerk which had the consequence of changing the meaning of Rail Team (by defining circumstances in which a Rail Team would be allocated without a Senior Rail Clerk being allocated). Mr Willy said “throughout the [bargaining process] we said that we did not want a senior clerk under certain situations and we defined when a senior clerk would be allocated.”

[79] SICTL says that the combined effect of clauses 8.1.2, 8.1.3 and 8.1.4 on the allocation of Rail Teams is that:

(a) Reachstacker operators can be deployed without allocating a whole Rail Team (if more than 36 and less than 55 containers are expected); and
(b) A whole Rail Team can be allocated without a Senior Rail Clerk (if more than 54 containers are expected but less than three trains).

[80] The addition of the second sentence in 8.1.4 confounds the work of the first sentence (to the extent that the first sentence imposes a different trigger for allocating a Senior Rail Clerk to the trigger for allocating a Rail Team) by essentially repeating the terms of clause 8.1.2.

[81] The more consistent and harmonious way to read clauses 8.1.2 and both sentences of 8.1.4 together is to apply the same trigger point of 54 containers without reference to the number of trains. To do otherwise would lead to confusion if the trigger is reached under clause 8.1.2 to allocate a Rail Team (54 containers) but the trigger under clause 8.1.4 (more than 2 trains) is not reached.

Generous construction

[82] As the Full Court of the Federal Court summarised in Ridd at [65(vi)]:

“A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).”

[83] The reference above to binding the parties on pain of pecuniary penalties is important. The full passage in City of Wanneroo v Holmes is as follows:

“The definition of Social Welfare Officer being in form a description of a class of persons by reference to the range of their responsibilities goes on to include "without limiting the foregoing...one or more of the following: care for the family, children, the aged and supportive counselling". This fractured and illogical prose may be met by a generous and liberal approach to interpretation. That does not put it beyond criticism. Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties. While that fact has been seen as supporting a rule of strict construction - Cranford-Webster v McFarlane [1947] SAStRp 3; (1947) SASR 162, 166 (Mayo J.) - it must not be forgotten that proceedings for breach of an award are not criminal in character - Gapes v Commercial Bank of Australia [1979] FCA 9; (1979) 38 FLR 415 disapproving Vehicle Builders' Employees Federation of Australia v General Motors-Holdens Pty Ltd (1977) 32 FLR 100. Accepting the serious and binding nature of industrial awards, a strict approach is not in my opinion appropriate and would be inconsistent with the general principles of interpretation to which I have already referred. Where there is, as in this case, a drafting error embodying logical absurdity which goes beyond the merely typographical, the Court should proceed cautiously before effectively re-writing it in an intelligible form - see generally Pearce - Statutory Interpretation in Australia 2nd Ed. paras. 19-21. Exercising all due caution, I am satisfied that the reference to "care for the family, children, the aged and supportive counselling" is intended to set out specific examples of the "social welfare activities" to which the award relates. If a person can be said to have been appointed by the Council to initiate, co-ordinate and promote child care activities within the District, that person will answer the description of a Social Welfare Officer. It is not sufficient that a person be appointed to only one of those tasks, all three elements must be present to a greater or lesser degree. And if that means that the coverage of the award is deficient in certain cases, then the remedy may lie in its further variation.”

[emphasis added].

[84] Clause 8.1.4 imposes an enforceable obligation on SICTL to take certain steps in certain circumstances under pain of pecuniary penalty. The first sentence of clause 8.1.4 sets two triggers for the allocation of a Senior Rail Clerk, the second sentence sets only one trigger. The sentences combined are ambiguous as to which trigger(s) apply. The most cautious approach to resolving the ambiguity is to apply the lower, single trigger (being more than 54 containers).

Conclusion

[85] Clause 8.1.4 of Part B - Schedule 5 of the Agreement is as follows:

“Allocation Requirements

8.1 The parties agree that from the commencement of this Agreement:

…

8.1.4 Rail Senior Clerk allocated on a shift only when there are more than two trains with a combined exchange greater than 54 containers. For clarity when there is over 54 containers, a Senior Rail Clerk will be allocated.”

[86] The ordinary meaning of the words in each sentence of clause 8.1.4 are clear and are not in dispute. Combined, the two sentences are ambiguous and cannot be resolved without reading down some part of the clause. The clarity that the second sentence purports to provide is opaque.

[87] The second sentence was inserted following a proposal from the employer. The employer’s CEO represented in the bargaining process that the additional wording of the second sentence would “cap the exchange”. The additional words (after some tweaking by consent) directly led to agreement between the bargaining representatives and Hutchisons on the form of words that were put to a vote and approved by the employees. If the second sentence does have work to do, it has the effect of imposing a trigger or a “cap” set by reference to only the number of containers.

[88] Understanding clause 8.1.4 to apply a single trigger/cap fits more harmoniously with the surrounding provisions in clause 8.1, particularly the allocation of Rail Teams in clause 8.1.2, and provides a more cautiously generous (as opposed to overly literal), interpretation of clause 8.1.4.

[89] For all of these reasons, I have determined that SICTL is required under clause 8.1.4 of Part B - Schedule 5 of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 to allocate a Senior Rail Clerk when there is over 54 containers expected to be exchanged in a shift.

DEPUTY PRESIDENT

Appearances:

Mr K Bond with Mr S O’Sullivan for the Construction, Forestry, Maritime, Mining and Energy Union

Mr P Brown of Baker & McKenzie instructed by Ms H Mihalopoulos

Hearing details:

2022.

Sydney.

August 24.

Printed by authority of the Commonwealth Government Printer

<PR749615>

 1   Unfortunately there are three clauses in the 2021 Agreement numbered 8.1: in Part A, in Part B Schedule 5 and in Part B Schedule 6. For convenience and readability, I will refer in this decision to clause 8.1 of Part B Schedule 5, and its sub-clauses, as “clause 8.1” or “clause 8.1.4” and so on.

 2   Cited indirectly in Berri at [88].