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[2013] FWCFB 2814
DECISION
Fair Work Act 2009
s.604 - Appeal of decisions
Shop, Distributive and Allied Employees Association (Queensland Branch)
Union of Employees
v
Woolworths Limited T/A Woolworths
(C2013/3859)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
COMMISSIONER SIMPSON SYDNEY, 17 MAY 2013
Appeal against decision [2013] FWC 1335 of Commissioner Bissett at Melbourne on 19
March 2013 in matter number C2012/3322.
[1] The question raised by this appeal concerns the proper interpretation to be given to
clause 7.2.5 of the Woolworths Limited Brisbane Regional Distribution Centre Collective
Agreement 2011 (the 2011 Agreement). In the decision under appeal1, Commissioner Bissett
determined that clause 7.2.5 limited the number of public holidays to which permanent
employees under the 2011 Agreement were entitled to ten per year.2 The appellant (SDA)
challenges that conclusion in its appeal.
Background
[2] The background to this matter may be stated briefly. In 2011 the Queensland
Parliament amended the Holidays Act 1983 (Qld) to provide for an additional public holiday
in 2012. This was the Queen’s Diamond Jubilee holiday, to be observed on 11 June 2012. The
Queensland Government Gazette published on 16 December 2011 identified the Queen’s
Diamond Jubilee holiday as one of ten public holidays falling on a weekday to be observed in
1 Shop Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited
[2013] FWC 1335 (Decision).
2 Decision at [72].
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 2814
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Queensland in 2012. A further public holiday for the Brisbane area only, the Royal
Queensland Show day (colloquially known as “Exhibition Day”) on Wednesday 15 August
2012, was separately gazetted.
[3] A dispute then arose between the SDA and the respondent (Woolworths) as to whether
the Queen’s Diamond Jubilee holiday gave rise to an additional day’s public holiday
entitlement under either the National Employment Standards in the Fair Work Act 2009 or the
terms of the 2011 Agreement. Woolworths contended, among other things, that the effect of
clause 7.2.5 of the 2011 Agreement was that, notwithstanding the provision for the additional
Queen’s Diamond Jubilee holiday, permanent employees were not entitled to more than ten
public holidays (that is, paid days off work) in a year. The SDA disagreed.
[4] In an endeavour to resolve this dispute (as well as other matters concerning public
holidays which are not presently relevant), the SDA made an application to the Fair Work
Commission for it to exercise the dispute resolution powers provided for in clause 3.1 of the
2011 Agreement. Those powers included the power of arbitration, exercisable by agreement
between the parties to the particular dispute.3 Initially, the SDA formulated four questions
about the issue to be the subject of the arbitration4:
“(1) Whether the Queen’s Diamond Jubilee holiday which occurred in Queensland
on 11 June 2012 was a public holiday and recognised as such for the purposes of the
NES under the Fair Work Act?
(2) Whether the Queen’s Diamond Jubilee was a public holiday and recognised as
such for the purposes of the Woolworths BRDC Agreement 2011?
(3) Whether clause 7.2.5 of the Woolworths BRDC Agreement 2011exlcudes
Monday to Friday staff from receiving the benefit of the Diamond Jubilee public
holiday?
(4) Whether clause 7.2.5 of the Woolworths BRDC Agreement 2011 limits all
staff to a maximum of 10 public holidays?”
[5] It subsequently emerged that Woolworths accepted that the Queen’s Diamond Jubilee
holiday in 2012 was a public holiday for the purpose of the National Employment Standard
3 Clause 3.1.8.
4 Set out in the Decision at [4].
[2013] FWCFB 2814
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concerning public holidays set out in Ch 2 Pt 2-2 Div 10 of the Fair Work Act, and in that
connection had allowed employees ordinarily rostered to work on that day to take the day off
on ordinary pay. Additionally, Woolworths had paid public holiday penalty rates to those
employees who were rostered on that day and who had chosen chose to remain at work.5 In
the light of this development, the SDA only pressed questions (2) and (4) as set out above. In
practical terms, as was clarified by the SDA’s counsel at the hearing of this appeal, what the
SDA was pursuing was a claim that employees who were not rostered to work on the day
upon which the Queen’s Diamond Jubilee holiday fell should have been paid a day’s ordinary
pay for the holiday nonetheless.
The 2011 Agreement and the Commissioner’s Decision
[6] Clause 7.2 of the 2011 Agreement contains a scheme of provisions concerning
employees’ entitlements with respect to public holidays. The parts of clause 7.2 relevant to
the Commissioner’s determination of the two questions she was asked to answer are set out
below:
“7.2. Public holidays
7.2.1. All weekly employees will be entitled to a day off without deduction of pay,
where the employee would ordinarily be rostered to work one of the following public
holidays and does not work on that public holiday:
— New Years Day
— Australia Day
— Good Friday
— Easter Saturday
— Easter Monday
— ANZAC Day
— Queens Birthday
— Labour Day
— Christmas Day
— Boxing Day
— Exhibition Day
— Any additional days gazetted as public holidays which have not already been listed
above.
7.2.2. Part time employees will receive a pro rata entitlement of non-rostered public
holidays to a maximum of ten (10) days based on hours worked including ordinary and
flexed-up hours.
5 Decision at [10].
[2013] FWCFB 2814
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For example:
If a part-time employee works 24 (twenty four) hours per week and their roster
incorporates five (5) public holidays in a year, the benefit for the remaining five (5)
days will be 24 (twenty four)/38 (thirty eight) x 5 (five) days = 25.2632 hours. (In this
example, a day equals 8 (eight) hours of work).
Voluntary work
7.2.3. All work performed on a public holiday is voluntary.
Order
7.2.4. When work is performed on a Public Holiday, the Company will seek
volunteers firstly from:
a. Full time employees, then
b. Part time employees, then
c. Fixed term employees, then
d. Casual employees.
Maximum number of public holidays
7.2.5. Weekly employees rostered to work on shifts, other than Monday to Friday will
be compensated for the Gazetted Public Holidays which fall on days Monday to
Friday, on which work has not been rostered. All permanent employees will be
entitled to ten (10) public holidays only.
7.2.6. No employee on non Monday to Friday rosters will be entitled to more public
holidays in any one year than is applicable to Monday to Friday full time employees.”
[7] In relation to question (2) as earlier set out, the issue was whether the words “Any
additional days gazetted as public holidays which have not already been listed above”, in
clause 7.2.1, had the effect of picking up the Queen’s Diamond Jubilee holiday. Woolworths
submitted that the Queen’s Diamond Jubilee holiday was not “gazetted” for the purpose of
clause 7.2.1 because it was brought into being by a substantive amendment to the Holidays
Act (the addition of s.11) rather than by the relevant Minister appointing a special holiday by
way of a notice published in the Gazette (under s.4). The Commissioner rejected this
submission, and concluded6:
“I am satisfied that, in including the term ‘any additional days gazetted as public
holidays which have not already been listed above’ the parties intended that any
additional public holiday, however legitimately determined or declared pursuant to the
relevant legislation, would be considered as a public holiday for the purpose of clause
6 Decision at [62].
[2013] FWCFB 2814
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7.2.1 of the 2011 Agreement. As such, the Queen’s Diamond Jubilee holiday is a
public holiday for the purpose of clause 7.2.1 of the 2011 Agreement.”
[8] However, in relation to question (4), the Commissioner found in favour of
Woolworths and against the SDA. The gravamen of her reasoning and conclusions on this
score is set out in paragraphs [68]-[72] of her decision as follows:
“[68] It is apparent from the evidence that neither party considered what would happen
if an additional public holiday was gazetted or declared in some way.
[69] I agree with the submission that the fact that the possibility of additional public
holidays was not discussed does not allow me to reach any positive conclusion about
what the outcome may have been if such a matter was considered. To reach any
conclusion as to intent would require me to make decisions about what was in the
minds of people in 2008 about a matter that they all agree was not discussed and did
not come to mind. It is an unrealistic proposition to suggest that I could do so.
[70] Whilst Mr Merrell says that it was the intention of the parties to maintain the
status quo from the 2004 Agreement (which would have delivered 11 public holidays
in that year had an additional day been gazetted or declared a public holiday) I agree
with the submission on behalf of the Respondent that I cannot know what the intention
of parties was with respect to additional days when this was not a matter discussed by
them.
[71] It is not for the Commission in the circumstances of this case to determine
whether the benefit of the additional public holiday should be extended to employees.
To do so would be to give effect to ‘some anteriorly derived notion of what is fair and
just, regardless of what has been written’ in the Agreement itself.
[72] On this basis I must conclude that clause 7.2.5 of the 2011 Agreement limits the
number of public holidays an employee is entitled to at ten.”
Submissions
[9] In this appeal, the SDA submitted that the conclusion reached by the Commissioner as
to question (4) as set out earlier was wrong, having regard to extrinsic material concerning the
origin of clause 7.2.5. The SDA made the following points:
(1) Clause 7.2.5 was a reproduction of a provision which appeared in a predecessor
agreement reached in 2008 (2008 Agreement). The agreement before that, in
2004 (2004 Agreement), did not contain a provision in the same terms. The
terms of clause 7.2.5 should therefore be interpreted in the light of the intention
[2013] FWCFB 2814
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of the parties as disclosed by the circumstances of the negotiation of the 2008
Agreement.
(2) The evidence concerning those negotiations disclosed that the purpose of
clause 7.2.5 was to resolve a very specific issue that arose under the 2004
Agreement, namely that some employees were, depending upon the days of the
week that they were rostered to work, claiming that they were entitled to be
paid the public holiday benefit of a day’s pay for holidays falling on days that
did not fall within their weekly roster pattern. So, for example, employees
rostered on a Thursday to Monday basis were claiming the benefit of the
Exhibition Day holiday falling on a Wednesday.
(3) Clause 7.2.5 was never intended or contemplated to operate so as to deprive
employees generally of the benefit of any additional “gazetted” holidays.
[10] Woolworths submitted that:
(1) Clause 7.2.5 was clear and unambiguous in its terms, and limited the public
holiday entitlement for employees to a maximum of ten days per year in total.
The ten days also operated as a minimum as well as a maximum entitlement.
(2) In the alternative, even if clause 7.2.5 was not to be interpreted this way, it did
not lead to the result that employees who were not rostered to work on the
Queen’s Diamond Jubilee holiday should receive a day’s ordinary pay for that
holiday, for two reasons. The first (raised by way of a notice of contention) was
that the Queen’s Diamond Jubilee holiday was not a “gazetted” holiday for the
purpose of clause 7.2.1, and that the Commissioner’s conclusion to the contrary
was wrong. The second was that the Queen’s Diamond Jubilee holiday did not
constitute an eleventh public holiday for 2012 for which there was any
additional entitlement, because the additional public holiday on 2 January 2012
which arose under the Holidays Act because New Year’s Day 2012 fell on a
Sunday was not a public holiday for the purpose of the 2011 Agreement.
[2013] FWCFB 2814
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Consideration
[11] The SDA’s case, both before the Commissioner and on appeal, essentially called for
the second sentence in clause 7.2.5 to be read in the following way: “All permanent
employees will be entitled to ten (10) public holidays only, but any additional days gazetted
as public holidays under clause 7.2.1 shall not be counted for this purpose”. The SDA’s case
also required the subheading to clause 7.2.5, “Maximum number of public holidays”, to
effectively be disregarded. The SDA did not point to any textual considerations internal to the
2011 Agreement which required the interpretational outcome for which it contended. Rather,
it relied entirely on extrinsic materials to demonstrate what it contended was the common
intention of the parties’ underlying clause 7.2.5. Those materials included not only the
“industrial heritage” of the 2011 Agreement as demonstrated by the texts of the earlier 2004
and 2008 agreements, but also communications exchanged between the parties during the
course of the negotiation of the 2008 Agreement.
[12] It is undoubtedly the case that, in resolving a dispute as to the interpretation of a
provision of an enterprise agreement approved under the Fair Work Act 2009, it is permissible
to take into account the industrial context and purpose of the agreement. However, there are
two important limitations upon this approach relevant to the determination of this appeal. The
first is that the process of interpretative analysis must focus, first and foremost, upon the
language of the agreement itself. For example, in Amcor Limited v CFMEU, the process was
described by Gleeson CJ and McHugh J in the following terms: “The resolution of the issue
turns upon the language of the particular agreement, understood in the light of its industrial
context and purpose ...”.7 Or, as Kirby J put it in the same case, “Interpretation is always a
text-based activity”.8 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 re-write the provision in order to give effect to an externally derived conception
of what the parties’ intention or purpose was. The oft-quoted statement of Madgwick J in
Kucks v CSR Limited makes this clear9:
7 (2005) 222 CLR 241 at 246 [2].
8 Ibid at 262 [67].
9 (1996) 66 IR 182 at 184.
[2013] FWCFB 2814
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“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.”
[13] The second limitation is that regard cannot be had to the respective subjective
intentions and expectations of the parties as demonstrated by their “statements and actions” in
negotiating the agreement.10 Rather, the task is to identify the common intention of the parties
as they have expressed it in the terms of their agreement. In the context of commercial
contracts, this task was described by the High Court in Toll (FGCT) Pty Ltd v Alphapharm
Pty Ltd11 in the following way:
“It is not the subjective beliefs or understandings of the parties about their rights and
liabilities that govern their contractual relations. What matters is what each party by
words and conduct would have led a reasonable person in the position of the other
party to believe. References to the common intention of the parties to a contract are to
be understood as referring to what a reasonable person would understand by the
language in which the parties have expressed their agreement. The meaning of the
terms of a contractual document is to be determined by what a reasonable person
would have understood them to mean. That, normally, requires consideration not only
of the text, but also of the surrounding circumstances known to the parties, and the
purpose and object of the transaction.”
[14] The above passage was treated as part of a “practical approach” according with the
established approach to the construction of industrial agreements in Construction, Forestry,
Mining and Energy Union v HWE Mining Pty Limited.12
[15] We consider that the SDA’s case transgressed both of these limitations. The crucial
sentence in clause 7.2.5 is: “All permanent employees will be entitled to ten (10) public
holidays only”. On the ordinary meaning of the language used in that sentence (there being no
issue as to what a “permanent employee” was), it is to be read as meaning that the public
holiday entitlement described in clause 7.2.1 is limited to ten days per year. There are
10 See Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352 per Mason J and BP Australia
Pty Ltd v Nyran Pty Ltd (2003) 198 ALR 442 at 453 [34], which was applied to the interpretation of collective industrial
agreements in Community and Public Sector Union v Telstra Corporation Ltd (2005) 139 IR 141 at 152 [38].
11 (2004) 219 CLR 165 at 179 [40].
12 [2011] FWA 8288 at [21]; see also Van Efferen v CMA Corporation Limited (2009) 183 IR 319 at [37].
[2013] FWCFB 2814
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circumstances in which it is permissible to depart from the ordinary meaning of the words
used in an agreement in order to correctly interpret them: “there is more to the construction of
the words of written instruments than merely assigning to them their plain and ordinary
meaning”.13 However, the words in an agreement should not be given other than their
ordinary meaning unless there is some well founded basis to do so.14 Examples of a proper
basis to depart from the ordinary meaning of a provision in an agreement include where the
application of the ordinary meaning would lead to a result that is patently absurd15 or leave
the provision with no practical work to do16 or render it illusory17, or where the agreement
read as a whole dictates that a different interpretation is required.18 However, any alternative
interpretation adopted must be one which is reasonably available on the language used in the
particular provision read in the context of the agreement as a whole (unless it is a case of
actual drafting error).
[16] The SDA did not advance an alternate interpretation of clause 7.2.5 that had any
proper foundation in the text of the 2011 Agreement. It effectively sought that the provision
be re-written to insert a major limitation which cannot otherwise be found there either in
express words or by way of a contextual inference. To that extent, its approach was not text-
based. Further, the extrinsic material relied upon by the SDA concerned to a large extent the
subjective expectations and intentions of the parties as demonstrated by their communications
to each other in the course of the negotiations. That material was simply not admissible to
controvert the plain language of clause 7.2.5, or indeed of clause 7.2 as a whole.
[17] It may be accepted that the evidence demonstrates that the negotiations for the 2008
Agreement began against the background of a controversy concerning the number of public
holidays per year to which employees, particularly employees rostered on other than a
Monday to Friday basis, should be entitled. The resolution of that controversy is readily
13 Codelfa Construction Pty Ltd v State Rail Authority of NSW at 348 per Mason J.
14 Amezdroz & Son Pty Ltd trading as Wettenhalls Group v Transport Workers' Union of Australia [2012] FWAFB 8951 at
[31].
15 See Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [11].
16 See CPSU, the Community and Public Sector Union v University of New South Wales [2007] AIRCFB 892 at [25].
17 NTEIU v University of Wollongong [2002] FCA 31 at [27]-[31].
18 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294 at [16]-[27].
[2013] FWCFB 2814
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identified in the text of clause 7.2.5 of the 2008 Agreement, as compared to the text of clause
7.2.6 of the 2004 Agreement. Clause 7.2.6 of the 2004 Agreement provided:
“7.2.6 Full-time employees rostered to work on shifts, other than Monday to Friday,
will be compensated for the Gazetted Public Holidays which fall on days Monday to
Friday, on which work has not been rostered.
No employee on such rosters will be entitled to more Public Holidays in any one (1)
year, than is applicable to Monday to Friday full time employees.”
[18] It can be seen that clause 7.2.6 of the 2004 was modified in clause 7.2.5 of the 2008
Agreement in three ways. Firstly, the subheading “Maximum number of public holidays” was
added. Secondly, the sentence “All permanent employees will be entitled to ten (10) public
holidays only” was included after the first sentence. Thirdly, what was the second sentence in
clause 7.2.6 of the 2004 Agreement was moved into a separate provision in the 2008
Agreement (clause 7.2.6). The inescapable conclusion to be drawn from these textual
modifications is that the common intention of the parties was to resolve the controversy
earlier identified by placing a maximum limit upon the number of public holidays to which
permanent employees were annually entitled. These modifications were preserved in the 2011
Agreement without further controversy, and accordingly the same common intention can be
identified in that agreement.
[19] The SDA’s submission that the parties did not contemplate that the ten-day “cap”
could apply to any additional public holidays that might be promulgated cannot be accepted.
Clause 7.2.1 makes express reference to the possibility of there being such additional public
holidays, and draws such holidays into the entitlement conferred by that clause. Because the
“cap” in clause 7.2.5 necessarily operates as a limitation upon that entitlement, it is clearly the
case that the “cap” was imposed in contemplation of the possibility of additional holidays
being promulgated. The intention is clear from the text; there is no basis to go beyond this to
explore the thought processes of the parties at the time of the negotiation of the 2008
Agreement.
[20] For the above reasons, we consider that the Commissioner was correct in concluding
that clause 7.2.5 of the 2011 Agreement limits permanent staff to a maximum of 10 public
holidays per year under clause 7.2.1 and that accordingly the SDA’s appeal must fail.
[2013] FWCFB 2814
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[21] We observe at this point that this appeal did not concern any question of the
entitlements of employees covered by the 2011 Agreement under the National Employment
Standard concerning public holidays set out in Ch 2 Pt 2-2 Div 10 of the Fair Work Act. For
the reasons earlier stated, this issue became non-controversial with respect to the Queen’s
Diamond Jubilee holiday. We further note that, given the nature of the industrial grievance on
the part of the SDA that gave rise to these proceedings, the determination of this appeal did
not require consideration to be given to entitlements under the 2011 Agreement to penalty
rates whenever employees choose to work on any given public holiday, including on any
additional “gazetted” holidays recognised for the purpose of clause 7.2.1. Nor, because of the
conclusion we have reached, is it necessary for us to consider Woolworths’ alternative
arguments identified in paragraph [10] above.
Disposition of the Appeal
[22] Both parties proceeded on the basis that permission to appeal was required under s.604
of the Fair Work Act. We do not consider that this approach was correct. Clause 3.1.9 of the
2011 Agreement provides: “The decision of FWA will bind the parties, subject to either party
exercising a right of appeal against the decision”. In Australian Manufacturing Workers’
Union v Silcar Pty Ltd a Full Bench determined that an enterprise agreement provision in
terms virtually identical to clause 3.1.9 “creates an independent right of appeal for which
permission to appeal is not required”.19 Notwithstanding the joint position of the parties, we
cannot identify any reason to reach a different conclusion here. Therefore it is sufficient for us
to order that the SDA’s appeal is dismissed.
VICE PRESIDENT
19 [2011] FWAFB 2555 at [15]-[28].
WORK COMMISSION -- AUSTRALIA THE SEAL OF FA
[2013] FWCFB 2814
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Appearances:
J. W. Merrell of counsel for the Shop, Distributive and Allied Employees Association
(Queensland Branch) Union of Employees
S. Jauncey, solicitor, for Woolworths Limited
Hearing details:
2013.
Brisbane:
May, 10.
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