1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australasian Meat Industry Employees Union, The
v
Brismeat Queensland (Woolworths Limited) T/A Brismeat
(C2014/3153)
DEPUTY PRESIDENT ASBURY BRISBANE, 1 DECEMBER 2014
Application to deal with a dispute.
BACKGROUND
[1] The Australasian Meat Industry Employees Union (AMIEU) applies under s.739 of
the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute under
a procedure for dealing with disputes in clause 2.2 of the Woolworths Limited – Brismeat,
Queensland and the Australasian Meat Industry Employees’ Union Agreement 2011 (the
2011 Agreement). The Respondent is Woolworths Limited Trading as Brismeat (Brismeat).
[2] The issue in dispute is whether, on a proper construction of the 2011 Agreement, an
allowance in clause 3.1.1 of the 2011 Agreement payable to Table Butchers boning beef on
the rail (the rail allowance) should be included in calculating entitlements to leave. Table
Butchers boning beef on the rail are also referred to by the AMIEU as Rail Butchers. This
matter (and a number of other issues in relation to RDOs, shift allowance and long service
leave) was also agitated by way of an application by the AMIEU for a variation of the 2011
Agreement on the basis that it was asserted that the variation was necessary to correct an
ambiguity.1
[3] Both applications were dealt with by the Commission as presently constituted.
Following conciliation conferences, the issue of whether Table Butchers should be paid the
rail allowance on all forms of leave remained outstanding. I expressed a view to the AMIEU
that it should consider electing to pursue one of the applications on the basis that there was
some tension in the assertion on the one hand that the Agreement is ambiguous and should be
varied and on the other hand that the Agreement as it stands should be interpreted in the way
contended for by the Union. The AMIEU elected to pursue the application under s.739 of the
Act.
[4] It is contended by the AMIEU that the Agreement was negotiated between the
AMIEU and Brismeat with a common understanding (impliedly or reasonably contemplated)
that stand up Rail Butchers would be paid the rail allowance on all forms of paid leave.
Accordingly, the rail allowance is paid to Rail Butchers for performing their normal duties, so
[2014] FWC 8620 [Note: An appeal pursuant to s.604 (C2014/8319) was
lodged against this decision - refer to Full Bench decision dated 4 March
2015 [[2015] FWCFB 1004] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB1004.htm
[2014] FWC 8620
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that the ordinary rate of pay for a Rail Butcher includes the rail allowance for the purposes of
all forms of paid leave.
[5] The AMIEU contends that this common understanding is reflected in minutes of an
enterprise bargaining meeting held on 27 October 2010. Those minutes are said to indicate
that an item in a log of claims advanced by the AMIEU seeking the payment of the rail
allowance on all paid leave was accepted by Brismeat.
[6] That the Agreement does not explicitly record this common understanding, is said to
be an oversight by both Brismeat and the AMIEU. It is contended that Brismeat:
“…is seeking to continue to capitalise on the situation by construing the Agreement in
an unmeritorious manner, thereby securing an outcome in relation to rail butchers
allowance that it could not and/or did not secure through the bargaining process.”
[7] It is further contended that the Agreement should be interpreted so that the relevant
clauses are read as intended between the parties and Brismeat is held to the bargain to which
the Company truly agreed.
[8] Brismeat contends that there is no proper basis for the Commission to find that any
common intention or understanding was reached and that it is not possible to imply or infer an
understanding which did not exist. Brismeat also submits that the expression “ordinary pay
rates” as used in the disputed provision of the Agreement does not, on its proper construction,
encompass payments made by way of rail butchers allowance and that the AMIEU has not
explained how annual leave entitlements ought to be calculated for employees who have spent
only part of the period over which the leave accrued performing rail butcher functions or who
might only perform those functions for part of the period over which the leave is taken.
RELEVANT PROVISIONS OF THE 2011 AGREEMENT
[9] Clause 1.6.6 of the 2011 Agreement defines “Table Butcher” in the following terms:
“Table Butcher means any person employed as a butcher working at the table
positions on the boning chain. Classified as a Brismeat Level 9 Employee. A rail
allowance is paid for duties performed on the rail.
[10] Clause 3.1.1 provides as follows:
“Table Butchers shall receive an allowance for each day they are employed boning
beef on the rail as outlined in Section 3.5 Wages. This allowance is to proportionally
increase with wage increase.”
[11] In relation to leave, clause 5.1.8 is in the following terms.
“With the exception of night shift workers, employees are to be paid annual leave on
the basis of their ordinary pay rates.”
[12] In addition to those clauses, other forms of leave provided for in the Agreement are
found in clause 5.2 Compassionate leave, clause 5.5 Personal leave and clause 5.7 Defence
Force Leave. Those clauses provide that full and part time employees are entitled to those
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forms of leave in accordance with the National Employment Standards. The provisions in
relation to Defence Force leave also stipulate that full time and part time employees who are
required to attend defence force approved training will be paid an amount equal to the
difference between the payment received for their attendance at camp in respect of that
training and the amount of ordinary time earnings they would have received for working
ordinary time during that period.
[13] Clause 5.3 provides that long service leave shall be granted in accordance with the
Queensland Industrial Relations Act 1999 and that all employees shall be entitled to long
service leave on full pay in accordance with the provisions of that Act.
[14] Clause 5.7.2 provides for two days paid leave for employees with children, in the
event of a State of Emergency resulting in children being sent home from school.
EVIDENCE AND SUBMISSIONS
AMIEU
[15] Mr Brian Crawford, Branch Secretary of the AMIEU, attended two meetings for the
negotiation of the Agreement – meeting number 10 on 7 December 2010 and meeting number
18 on 28 March 2011. Mr Crawford stated that the process he observed at those meetings is
that staff of Brismeat were taking detailed notes of the discussions. After the meetings,
Brismeat representatives would compile minutes of the meetings and forward them to
participants. The minutes were prepared in a tabular form with a list of items subject of
negotiations on the left side and a record of discussions and/or the final position at each
meeting with respect to those items. Mr Crawford tendered minutes of meeting number 7
held on 27 October 2010. Item 16 of those minutes is as follows:
Weekly Wage Rates
3.5
Stand up rail butchers to be paid
allowance on all paid leave
inclusive of leave loading
10/08/10 Similar to the shift allowance for annual
leave and personal leave.
24/08/10 Employees to clarify claim.
07/09/10 In the last agreement negotiations, this
increase was granted but the rail butchers rejected
the offer and asked for the difference to be applied
across the board to all Brismeat employees. If the
butchers who receive the rail allowance with it to
be applied all the time, it must be taken back out
from the “general pot” (as it was applied last EBA)
and this allowance will decrease amount applied
across the board to all employees.
14/9/10 PG communicated our position is still no,
indicated that we have already paid last EBA.
Employees to respond.
29/09/10 Accepted
[16] Mr Crawford said that the minutes were formatted so that unshaded sections outlined
claims still in contention and shaded sections outlined claims that had been resolved. Item 16
of the minutes for meeting number 7 conducted on 27 October 2010 deals with the payment
of the rail allowance on all forms of leave. Mr Crawford pointed to the fact that the minutes
record this item as “Accepted”. Mr Crawford further maintained that at the meetings he
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attended, no representative of Brismeat ever indicated that there was going to be a distinction
in the negotiations between a discussion summary being “accepted” and an item in a log of
claims being “accepted”. Mr Crawford also stated that in his twenty years in bargaining for
hundreds of negotiated agreements, he had never heard of any party to any negotiations
indicate that a discussion summary can be “accepted” but that this does not result in a log of
claims being “accepted”.
[17] Mr Crawford tendered an email from Brismeat to the AMIEU attaching minutes of a
meeting (number 3 held on Tuesday 7 September) and requesting that the Union review and
confirm the minutes. Mr Crawford said that this was another process that occurred during
negotiations and AMIEU officials involved in negotiating the Agreement would confirm their
concurrence or suggest changes to the minutes. Representatives of the Union also conducted
meetings with members after negotiating meetings, to report on the progress of negotiations.
According to Mr Crawford, employees would have relied upon those minutes in deciding
whether or not to approve the Agreement.
[18] The matter of non-payment of rail allowance on all forms of paid leave was brought to
Mr Crawford’s attention by an Organiser on or about January 2014, when a dispute arose in
relation to long service leave entitlements of a member.
[19] Under cross-examination Mr Crawford agreed that he had first looked at the minutes
of meeting number 7 in connection with the present dispute and that the minutes of Brismeat
negotiations were not generally circulated to him. Mr Crawford also agreed that he was
aware, before the Agreement was negotiated, that the Company was not paying the rail
allowance on leave and that this had been the case for many years. In relation to the minutes
of meeting 7 held on 27 October 2010, Mr Crawford said that he had not examined the entire
document to determine what had been recorded in relation to other shaded items.
[20] Mr Crawford was taken to the minutes of that meeting and the subsequent agreement,
and accepted that with respect to items 8, 15 and 40 the term “Accepted” referred to the
compromise position recorded immediately above and not to the original claim. Mr Crawford
also agreed that a number of employees classified as rail butchers who were at the meetings
where the 2011 Agreement was negotiated, are still employed by the Company.
[21] The AMIEU submitted that the evidence establishes a mutual understanding that the
rail allowance would be paid to Table Butchers for performing their normal duties and would
be included in their ordinary rate of pay for the purposes of all forms of leave. This is said to
be reflected in the minutes of Meeting 7 held on 27 October 2010 with respect to item 16.
The fact that the 2011 Agreement does not reflect this mutual agreement is said to be an
oversight by both the Company and the Union. Nothing was raised formally by the
representatives of the Union or Brismeat following this meeting to disturb the common
understanding.
[22] The AMIEU also submitted that the text and context of the 2011 Agreement, including
the fact that the minutes of meeting 7, establish that the claim for Table Butchers to be paid
the rail allowance on all paid leave was accepted by the Company. There is an ambiguity
with respect to the meaning of the term “ordinary rate” for a rail butcher and the allowance for
this work has the character of an all purpose allowance. In this regard the language of the
extrinsic material is clear and can be used to resolve the ambiguity.
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[23] In oral submissions, the AMIEU addressed a submission of Brismeat about the
difficulty in calculating annual leave and other leave payments, if the interpretation contended
for by the AMIEU was found to be correct. In relation to this submission Mr Dalgleish for
the AMIEU said that this issue was dealt with in clause 5.1.9 of the Agreement, which
provides as follows:
“Employees working in a higher classification rate than their normal classification
shall be paid for the proportionate annual leave accrued at that higher rate. For the
purpose of the correct annual leave payment rate an employee must work a minimum
of 13 weeks (and increments of 13 weeks) in a higher “rate of pay” position to accrue
one week’s holiday pay at the higher rate providing the 13 weeks falls within any 12
month period and thereafter in each year which shall be calculated separately.”
[24] After reserving Decision in relation to this matter, I requested clarification of this
submission and gave the AMIEU two opportunities to provide that clarification. In its second
response to my request, the AMIEU submitted that its case does not rest on that question.
The response went on to state that the Commission needed to follow the “cardinal rule of
interpretation” of a beneficial approach to construing agreements, and apply the maxim “ut
res magis valeat quam pereat” (that the thing may rather have effect than be destroyed or be
construed in a way that makes sense rather than voids the relevant instrument).
Brismeat
[25] Ms Romero said that the negotiations for the 2011 Agreement started with a
preliminary meeting on 14 July 2010. The first substantive negotiating meeting was held on
10 August 2010 and a further meeting was held on 24 August 2010. Ms Romero attended the
third and fourth meetings on 7 and 14 September 2010 and took up the Role of Human
Resource Specialist at Brismeat on 20 September, thereafter attending all meetings in that
capacity, apart from some in December 2010 and January and February 2011.
[26] Ms Romero’s understanding was that at each meeting a Brismeat representative was
responsible for taking notes and preparing minutes which were circulated to representatives
including those from the AMIEU, prior to the commencement of the next meeting. To
manage the large number of claims put forward by both sides, each claim was set out in a
table for discussion, in the following format:
In the first column each claim was given an identifying number;
In the second column short details about the nature of the claim were set out;
In the third column a summary was included of the position each party had taken in
relation to the specific claim, with this column being updated after each meeting to
include a reference to what a party might have said about the claim.
[27] Where the parties were able to resolve a particular claim the row for that claim in the
table was shaded in grey and moved to the back, with the identifying number being retained.
Ms Romero said that to the best of her recollection, claims which were resolved often had the
word “Accepted” included in the table. Ms Romero did not understand that this always meant
that the original position put in the log of claims had been accepted. Instead, her
understanding was that the inclusion of the term “Accepted” could also mean that one party
had accepted the last recorded position put forward by the other party.
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[28] In taking up her role as Human Resource Specialist at Brismeat, Ms Romero reviewed
various claims put forward in respect of a new enterprise agreement. Ms Romero was aware
that the AMIEU was seeking that the rail butchers allowance be included in calculating
entitlements to annual leave (claim 16) and that morning and afternoon shift allowances be
included in calculating all accruals including Rostered Days Off as well as in calculating
annual leave entitlements (claim 23). Ms Romero’s understanding was that neither of these
payments had been included in calculating leave entitlements and that the Company’s view
was that acceptance of these claims would result in a significant cost to the business which
could not be justified.
[29] Ms Romero gave evidence about the discussions at a number of meetings on 7
September, 14 September, 29 September, 7 October and 9 November 2010. The minutes of
those meetings, appended to Ms Romero’s statement, indicate that the discussion canvassed
an increase to the rail butchers allowance under the 2007 Agreement, and that at the meeting
of 14 September 2010, the Company’s position in relation to this claim was “still no”. The
minutes of that meeting further state immediately below the Company’s position: “Employees
to respond”. In the minutes of the meeting of 29 September 2010 and meetings thereafter, the
term “Accepted” has been inserted after the words “Employees to respond” and the claim
numbered 16 has been shaded and moved to the back of the minutes where it appears to have
remained, in the same form, until the conclusion of negotiations.
[30] Ms Romero said that this item was not discussed at the next meeting of 7 October
2010 and this was because it had been resolved by employee representatives acceding to the
Company’s position. Further meetings were held on 27 October, 9, 18 and 18 November and
7 December, at which the parties exchanged package offers. A proposed agreement was put
to ballot by the Company on 22 December 2010 but was not accepted by employees. There
were further negotiations between 5 January and 19 April 2011 with agreement in principle
being reached on that date. Ms Romero maintained that at no time did she ever understand
the Company had agreed to the rail butcher’s allowance being included in calculating
entitlements to annual leave. Ms Romero also maintained that at no stage prior to January
2014, did any employee or their representative suggest to her or to any other Company
representative, that the Company was doing the wrong thing in not including the rail butcher
allowance in calculating annual leave entitlements.
[31] Present calculation arrangements are that rail butcher’s allowance is paid as a flat
amount, regardless of whether an employee works the day or afternoon shift and rail butcher’s
allowance is not increased by the afternoon shift allowance of 15%. Other allowances for
hard beef, manual printerm and training allowance are also paid as flat dollar amounts. These
allowances are not paid to employees on rostered days off, public holidays where employees
are rostered off or annual leave.
[32] Under cross-examination, Ms Romero agreed that there is no definition of “ordinary
rate of pay” or “ordinary rates” in the 2011 Agreement. In relation to the reference to night
shift in clause 5.1.8 Ms Romero stated that a night shift previously operated, but could not
explain why the reference had not been removed from the 2011 Agreement notwithstanding
that it is no longer worked. Ms Romero also said that this clause had been in various
iterations of the 2011 Agreement dating from 1999. Further, Ms Romero agreed that Table
Butchers work on day shift and afternoon shift.
[2014] FWC 8620
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[33] Ms Romero was taken to the minutes of a number of enterprise bargaining agreement
negotiation meetings. In relation to the minutes of meeting number 7 held on 27 October
2010, Ms Romero agreed that the notes with respect to item 11, salary sacrifice, did not set
out a last recorded statement above the term “Accepted”. Ms Romero said that some items
were simply agreed at the start of negotiations and that her evidence that the term “Accepted”
related to the last recorded position put by a party was in the context of claims where there
had been a discussion about the various positions. In some cases there was no discussion and
the claim as originally put was accepted.
[34] In relation to item 34 in the minutes of meeting 7 dealing with leave credits on pay
slips, Ms Romero agreed that the minutes state that the Company was not prepared to do this
and go on to state that the company rejected that item. In response to the proposition that if
her evidence was accepted, the Company would be rejecting its own position, Ms Romero
said that different people prepared the minutes and may not have adopted the same recording
system in all cases. Ms Romero maintained that it was obvious that item 34 in those minutes
recorded that the Company had rejected a claim that sick leave credits be included on
payslips, and that the rejection was of the original claim.
[35] Ms Romero also agreed that item 35, if interpreted in the manner contended would
result in the Company rejecting the position immediately above the term “Company rejects”
when the last recorded position was “TBA”. Ms Romero maintained that this item was
recorded in a way that made it clear that employees had put forward a proposal with respect to
an attendance bonus and the Company had indicated its position would be advised and had
then rejected the claim as originally advanced. Similarly, item 42 involved a word change
that was simply accepted. This was also the case with respect to item 10 where the claim had
been to replace the term “Rail” with “Table” and employees had indicated that they would
respond and then accepted the proposal.
[36] Ms Romero maintained that where there was no other comment after a notation that
employees were to respond, and the term “Accepted” was then inserted, the minutes indicated
that employees had dropped the particular matter and accepted the last position. Ms Romero
also said that with respect to item 3, the term “Accepted” had to be considered in light of the
overall discussion that was recorded above it. In relation to other alleged inconsistencies
between specific items in the minutes and the interpretation advanced with respect to item 16,
Ms Romero said that there was no inconsistency and that where items were discussed the
minutes referred back to the discussions relating to each item in the log of claims and not
directly to the particular claim.
[37] In response to the proposition that an average worker would interpret the word
“Accepted” in agreed minutes as acceptance of the claim under which that word appeared, Ms
Romero said that workers were represented on the Committee and no issue about lack of
understanding of the minutes or the process that was followed in the negotiations for the 2011
Agreement was indicated.
[38] Brismeat also tendered earlier iterations of the 2011 Agreement as follows:
The A.M.I.E.U. - Brismeat Enterprise Agreement 1994 (1994 Agreement);
The Woolworths - Brismeat Enterprise Agreement 1996 (1996 Agreement);
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The Woolworths - Brismeat Enterprise Agreement 2001 (2001 Agreement);
The Woolworths Limited - Brismeat, Queensland and the Australasian Meat Industry
Employees’ Union Agreement 2003 (2003 Agreement);
The Woolworths Limited Trading as Brismeat and the Australasian Meat Industry
Employees’ Union - Enterprise Agreement 2006 (2006 Agreement); and
The Woolworths Limited Trading as Brismeat and the Australasian Meat Industry
Employees’ Union - Agreement 2007 (2007 Agreement).
[39] In relation to each of those Agreements, Brismeat pointed to provisions in Agreements
since 1996 which entitled Table Butchers performing functions in boning beef on the rail to a
daily allowance for such work known variously as the “rail skill allowance” or the “rail
butchers allowance”. It was contended that those allowances have never been included in
calculating annual leave payments, as stated by Ms Romero, and that this must have been
known to the AMIEU by at least 2010, as evidenced by the fact that the Union made a claim
in relation to this issue as part of the negotiations which resulted in the 2011 Agreement.
[40] Brismeat also pointed to the fact that the provisions of the relevant industrial
instruments in relation to payment for annual leave, from the 1996 Agreement onwards, were
in identical terms to clause 5.1.8 in the 2011 Agreement. Brismeat submitted that:
“Since at least the introduction of the Brismeat Agreement 1996, Table Butchers
performing functions in boning beef on the rail have been entitled to a daily allowance
for such work (known variously as the “rail skill allowance” or the “rail butcher
allowance”).
It appears, however, that payments by way of rail butcher allowance have never
previously been included in calculating a relevant employee’s payment when absent
on annual leave. This must have been known to the AMIEU by at least mid 2010
(when claims were raised as part of negotiations for a new enterprise agreement), and
most likely at a much earlier date.
Importantly, the provisions of the relevant industrial agreements dealing with annual
leave were in identical terms to current clause 5.1.8 of the Brismeat Agreement 2011:
(a) clause 5.1.9 of the Brismeat Agreement 1996 stated that, with the exception of
night shift workers, “employees are to be paid annual leave on the basis of
their ordinary pay rates”;
(b) clause 5.1.9 of the Brismeat Agreement 2001 stated that, with the exception of
night shift workers, “employees are to be paid annual leave on the basis of
their ordinary pay rates”;
(c) clause 5.1.9 of the Brismeat Agreement 2003 stated that, with the exception of
night shift workers, “employees are to be paid annual leave on the basis of
their ordinary pay rates”;
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(d) clause 5.1.9 of the Brismeat Agreement 2006 stated that, with the exception of
night shift workers, “employees are to be paid annual leave on the basis of
their ordinary pay rates”; and
(e) clause 5.1.8 of the Brismeat Agreement 2007 also stated that, with the
exception of night shift workers, “employees are to be paid annual leave on
the basis of their ordinary pay rates”.
Again, all parties, including the AMIEU, must have been aware of this history in
negotiating the Brismeat Agreement 2011. All parties, including the AMIEU, must
also have been aware that these provisions had been applied in a manner such that the
rail butcher allowance was not included in employees’ “ordinary pay rates” for the
purpose of calculating annual leave entitlements. Nevertheless, the parties, including
the AMIEU, determined not to change the terminology used in clause 5.1.8 of the
Brismeat Agreement 2011.”
[41] Further, Brismeat submitted that the AMIEU fails to explain how annual leave loading
entitlements ought to be calculated for employees who might have received payment of rail
butcher allowance. In this regard it is said to be unclear whether the AMIEU asserts that:
(a) the rail butcher allowance should simply be added to annual leave loading (ie
[117.5% x Base Ordinary Rate] + Rail Butcher Allowance); or
(b) the rail butcher allowance should be compounded by the annual leave loading
(ie 117.5% x [Base Ordinary Rate + Rail Butcher Allowance]).
Secondly, the AMIEU fails to explain how annual leave entitlements ought to be
calculated for employees who might only have performed rail boning functions for
some part of the period over which the annual leave accrued (or might only perform
rail butcher functions for some part of the period over which annual leave is taken).
Thirdly, the AMIEU does not seem to assert that the respondent is obliged to have
regard to any other allowance (such as hard beef allowance, manual printerm
allowance, or morning or afternoon shift allowance) in determining any particular
employee’s “ordinary rate of pay” under clause 5.1.8 of the Brismeat Agreement
2011. No real rationale can be discerned as to why the AMIEU seems to assert that
rail butcher allowance should be included as part of the “ordinary rate of pay”, but
that other allowances should be excluded. Indeed, the approach of the AMIEU
smacks of retrofitting the argument to achieve a desired state of affairs, rather than an
approach to interpretation basis upon a consistent application of principle.
Fourthly, the AMIEU entirely ignores the fact that clause 5.1.8 of the Brismeat
Agreement 2011 remained in exactly the same terms as the equivalent clauses in the
previous five industrial agreements going back to the late 1990s. It follows that the
AMIEU is effectively asserting that the words used in clause 5.1.8 of the Brismeat
Agreement 2011 should be given a different meaning from identical words used in
previous agreements. This is despite the fact that all sides must have known that a
particular practice had been adopted for many years in the interpretation of previous
agreements.
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[42] Brismeat asserts that reduced to its most basic, the AMIEU submission is that during
the negotiations for the 2011 Agreement a mutual or common understanding was reached that
stand up rail butchers are to be paid an allowance on all paid leave inclusive of leave loading,
and that the terms of the 2011 Agreement should be read as requiring Brismeat to include that
allowance in calculating annual leave and other paid leave entitlements, despite the fact that
no changes were made to the relevant provisions of the 2011 Agreement.
[43] Brismeat further asserts that there is no basis to find that such an understanding was
ever reached and that the evidence of Ms Romero, who was present at the relevant negotiation
meetings on 7, 14 and 29 September is to the contrary. Mr Crawford was not present when
the alleged understanding was reached and his evidence is nothing more than subsequent
speculation based on his interpretation of a document summarising a meeting in which he was
not involved. Either an understanding existed or it did not and it is not possible to reasonably
contemplate or infer an understanding that did not exist. That Mr Crawford may hold a
subjective belief that an understanding was reached, is entirely irrelevant to the objective
construction of the 2011 Agreement.
CONSTRUCTION OF ENTERPRISE AGREEMENTS
[44] The parties set out authorities said to be relevant to the construction of enterprise
agreements in their submissions. The AMIEU referred to a line of authority in the Federal
Court suggesting that the interpretation of certified agreements is one in which the objectively
determined intention of the parties is based on their character as consensual documents rather
than statutory instruments2 or alternatively submitted that there is authority for the proposition
that the interpretation of statutes and contracts is essentially similar.3 The AMIEU also
referred to a decision of a Full Bench of the Commission in Cape Australia Holdings Pty Ltd
T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union4
where it was stated that by virtue of s.46 of the Acts Interpretation Act 1901, that Act is
applicable to the construction of enterprise agreements as if that agreement was an Act.
[45] To that authority might be added the observation of the Full Court of the Federal Court
in Toyota Motor Corporation Australia Limited v Marmara5 that the construction of
agreements should not be diverted by any assumption that they should be treated as a form of
bargain between agreeing parties. The Court went on to observe that an enterprise agreement
is an agreement in name only; the employer and employees are not parties to it; and that once
approved an enterprise agreement applies to all employees in the relevant group even those
that did not agree. Further, in Transport Workers’ Union of Australia v Coles Supermarkets
Australia Pty Ltd6 the Full Court of the Federal Court observed that it is not difficult to share
the perception that an enterprise agreement approved under the Fair Work Act has a
legislative character. These cases were decided after the submissions in the present matter
were filed.
[46] The relevance of this point, according to the AMIEU submission, is the application of
ss.15 AA and 15 AB of the Acts Interpretation Act 1901 and in particular, the consideration of
extrinsic materials in construing an Act. Section 15 AA provides that in construing a
provision of an Act, the interpretation that would best achieve the purpose or object of the Act
is to be preferred. Subsection 15 AB(1) provides:
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“Subject to subsection (3), in the interpretation of a provision of an Act, if any
material not forming part of the Act is capable of assisting in the ascertainment
of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning
conveyed by the text of the provision taking into account its context in
the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision
taking into account its context in the Act and the purpose or
object underlying the Act leads to a result that is manifestly
absurd or is unreasonable.”
[47] Subsection 15AB(2) sets out a (non-exhaustive) list of extrinsic materials that may be
considered. Subsection 15AB(3) then provides as follows:
“In determining whether consideration should be given to any material in
accordance with subsection (1), or in considering the weight to be given to any
such material, regard shall be had, in addition to any other relevant matters,
to:
(a) the desirability of persons being able to rely on the ordinary meaning
conveyed by the text or the provision taking into account its context in
the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without
compensating advantage.”
[48] The submission for Brismeat on this point, with which I agree, is that there are no
separate paths of interpretation and the proper approach to construction requires a set of
mutually consistent principles. I also agree with Brismeat’s submission that whether the Acts
Interpretation Act applies to an enterprise agreement by virtue of s.46 of that Act is a moot
point, because the principles set out in ss. 15 AA and 15 AB of the Acts Interpretation Act are
not inconsistent with those relating to commercial contracts.
[49] The principles of construction that have been applied to the interpretation of industrial
instruments such as awards and agreements, and which relevant in the present case, are well
established. In Kucks v CSR Madgwick J made the following observation:
“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 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,
[2014] FWC 8620
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despite mere infelicities of expression which might lead 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.”7
[50] Other relevant principles of construction of enterprise agreements are:
The process of interpretation must focus on the language of the agreement
itself;8
If the terms of an enterprise agreement are clear and unambiguous, then the
industrial instrument must be interpreted in accordance with that clear and
unambiguous meaning;9
The words used in an enterprise agreement should not be interpreted in a strict
technical fashion, because those who framed the industrial instrument are often
non-lawyers drafting words in the context of custom and practice in an
industry or particular enterprise;10
The words used in an enterprise agreement should be interpreted within its
context, that is, the meaning of particular words should be read in the context
of the agreement as a whole11 and in the context of the clause/section in which
they fall;12
The process of construction is an objective task and it is not appropriate to
have regard to the subjective beliefs or expectations held by one party. The
task is to identify the common intention of the parties as they have expressed it
in the terms of their agreement; 13
Recourse by the court or Tribunal to extrinsic material in the interpretation of
an industrial instrument is not dependent on the existence of ambiguity and
may be allowed in to expose or to resolve an ambiguity.14
[51] Evidence about the negotiations for an agreement is relevant to the extent that it
establishes objective background facts that go to the context or subject matter of the
negotiations. Evidence about the actual intentions and expectations of negotiating parties is
not admissible as an aid to the construction of agreements on the basis that it reveals the terms
of the agreement they hoped to make, and those intentions and expectations are merged into
the final agreement.15
[52] In relation to the context of expressions used in industrial instruments, Justice
Burchett, sitting with the Full Court of the Federal Court, said in Short v Hercus:16
“The context of an expression may thus be much more than the words that are its
immediate neighbours. Context may extend to the entire document of which it is a
part, or to other documents with which there is an association. Context may also
include, in some cases, ideas that gave rise to an expression in a document from which
[2014] FWC 8620
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it has been taken. When the expression was transplanted it may have brought with it
some of the soil in which it once grew, retaining a special strength and colour in its
new environment. There is no inherent necessity to read it as uprooted and stripped of
every trace of its former significance, standing bare in alien ground. True, sometimes
it does stand as if alone. But that should not be just assumed, in the case of an
expression with a known source, without looking at its creation, understanding its
original meaning, and then seeing how it is now used.”17
CONSIDERATION
The text of the Agreement
[53] The AMIEU submits that the words of clause 5.1.8 of the 2011 Agreement should not
be interpreted in a strict technical fashion, and that regard should be had to their ordinary
meaning, context, custom and practice of the industry and the extrinsic material relating to the
making of the 2011 Agreement. The AMIEU further contends that the Commission should
give effect to the mutual intention of the parties who made the agreement provided that the
words can reasonably be interpreted to mean what was intended.
[54] According to the AMIEU, the parties to the 2011 Agreement, as a matter of common
understanding, contemplated that stand up Rail Butchers are to be paid an allowance on all
paid leave inclusive of leave loading. There is ambiguity in relation to what is the ordinary
rate of pay for Rail Butchers and an uncertainty arises as to whether it is an all-purpose rate of
pay. The AMIEU contends that the allowance has the characteristic of an all-purpose
allowance and is included in the ordinary rate of pay for Rail Butchers for the purpose of all
paid leave.
[55] The rationale for this conclusion is said to be compelling. It is also contended that:
“The language of the extrinsic material in relation to the stand up Rail Butchers
allowance has a clear meaning and may be used to solve the interpretation of the
agreement and the relevant paid leave clauses. The bargain struck between the
parties should not be disregarded. That is, stand up rail butchers are to be paid an
allowance on all paid leave inclusive of leave loading was “Accepted”. The legal
proposition, is closed, exceptionless and has an attributed consequence”.
[56] It should be noted that there is no classification of Rail Butcher in the 2011
Agreement. Rather there is an allowance for Table Butchers for each day they are
“employed” boning beef on the rail.
[57] There is no definition in the Agreement of the term “ordinary pay rates” for the
purposes of clause 5.1.8 of the Agreement. It is also the case that notwithstanding the
reference to night shift in clause 5.1.8, the Agreement does not provide for night shift. There
is a provision for night shift in the 2002 agreement and a penalty rate of 25% for night shift
and 30% for fixed night shift. The 2002 Agreement has a clause 5.1.9 that is in identical
terms to clause 5.1.8 of the 2011 Agreement the subject of these proceedings.
[58] The loading for night shift in the 2002 Agreement is higher than the annual leave
loading. In the subsequent 2004 Agreement there is no reference to night shift in the shift
work clause but the reference to employees other than night shift workers being paid for
[2014] FWC 8620
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annual leave at their ordinary pay rates, is found in clause 5.1.9. In my view the reference to
night shift in clause 5.1.8 of the 2011 Agreement is of no significance and it is probable that
the parties simply overlooked the fact that there was a reference in that clause to night shift
after they removed night shift provisions from the other parts of the earlier versions of the
Agreement because night shifts are no longer worked.
[59] The reference to night shift in clause 5.1.8 of the 2011 Agreement is simply a
“hangover” to a time when the earlier iterations of the Agreement prior to 2004 provided for
night shift with a penalty that exceeded annual leave loading, so that the annual leave clause
needed to specify that the higher amount would be paid and that annual leave loading would
not be paid in addition to night shift loading. When the various iterations of the Agreement
are considered, it is more probable than not that the parties have simply neglected to delete
that reference when other references to night shift were deleted from the 2004 and 2006
versions of the Agreement.
[60] It is clear from the language of the Agreement that the allowance for table butchers
boning beef on the rail in clause 3.1.1 that is the subject of these proceedings is a daily
allowance. The manner in which it is expressed is not distinguishable from the allowances in
clauses 3.1.2 and 3.1.3 which respectively apply to follow on labourers operating boning
room beef input scales and the boning room carton printerm. None of these allowances are
specifically designated as all-purpose allowances and there is no basis, on the plain words of
the clauses which provide for those allowances for the rail allowance to be paid on a different
basis to the allowances applicable to employees operating beef input scales or the carton
printerm.
[61] That the rail allowance is a daily allowance is also indicated by the terms of clause 3.5
wages, where the table setting out wages and allowances shows that the dollar value of the
allowance for Table Butchers boning beef on the rail on a daily basis, varies depending on the
hours worked. The allowance is higher when an eight hour day is worked than it is when a
7.6 hour day is worked. This is indicative of the allowance being a flat amount that is capped
on a daily basis depending on the hours worked.
[62] If the allowance was intended to be an all-purpose allowance, there would be no
reason to express it as a daily amount which varies on the basis of ordinary hours worked. If
more is needed there is a further indication that the allowance is payable while the work to
which it relates is being performed in clause 1.6.6, which defines “Table Butcher” and
provides that a rail allowance is paid for duties performed on the rail. There is no indication
that any of the allowances in clauses 3.1.1, 3.1.2 and 3.1.3 of the 2011 Agreement, all of
which are expressed in virtually identical terms, are all-purpose allowances.
[63] The terms in which the rail allowance in clause 3.1.1 of the Agreement and the
allowances in clauses 3.1.2 and 3.1.3 are expressed can be contrasted with the terms of clause
4.7.4 of the Agreement which makes it clear that employees on morning or afternoon shift
receive a shift allowance which becomes the ordinary rate for the purposes of public holidays,
personal leave, compassionate leave and long service leave. Notably shift allowances are not
included in the ordinary rate for annual leave, by virtue of clause 5.1.8. Given that shift
allowances are 15% and annual leave loading is 17.5% this is consistent with the general
principle that employees who are shift workers are paid for annual leave their ordinary rate
plus shift allowance or annual leave loading, whichever amount is greater. As previously
noted, the reference to night shift in clause 5.1.8 in circumstances where the 2011 Agreement
[2014] FWC 8620
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does not provide for night shift, is probably a “hangover” from previous iterations of the
Agreement which prescribed a night shift allowance that exceeded the 17.5% annual leave
loading, so that night shift workers got the higher night shift allowance while on annual leave
rather than the 17.5% leave loading.
[64] This principle is reflected in clause 37.4(b) of the Award which provides that
employees absent on annual leave, who would have worked shift work, will be paid the
greater amount of shift allowance or leave loading but not both. Under the Award there are
allowances specified for night shift and fixed night shift that exceed the 17.5% loading,
necessitating the inclusion of clause 37.4(b).
[65] Similarly under the terms of the 2011 Agreement, the rate of pay for employees on
rostered days off includes shift allowances. There is no reference to allowances being payable
to employees while on personal leave or compassionate leave.
[66] Thus in the context of the 2011 Agreement read as a whole, where an allowance is
considered to be part of the ordinary rate for the purposes of leave, and therefore payable to
an employee while on leave, there is a specific provision to that effect. There is no such
provision with respect to the rail allowance in clause 3.1.1, or the allowances in 3.1.2 or 3.1.3
with respect to operation of the beef input scales or the boning room carton printerm.
Context of the Agreement
[67] The context in which the 2011 Agreement was made includes its earlier iterations.
The provision of the 2011 Agreement dealing with payment for annual leave is in identical
terms to the provisions in six earlier versions of the Agreement. The AMIEU did not
challenge the submission of Brismeat that the allowance for Table Butchers boning beef on
the rail had not previously been paid on annual leave. It almost goes without saying that there
would have been no need for the AMIEU to have made a claim that the allowance should be
paid to employees on annual leave, if that had been Brismeat’s practice.
[68] I am of the view that when the provisions of the earlier iterations of the 2011
Agreement are considered, the context in which the 2011 Agreement was made does not
support the interpretation contended for by the AMIEU. The 1994 Agreement does not
contain any allowances. That Agreement contains classifications and wage rates for both Rail
Butchers and Table Butchers with the weekly wage rate for Rail Butchers being $20 per week
higher than the weekly wage rate for Table Butchers.
[69] The 1996 version of the Agreement, approved with effect from 4 December 1997,
provided as follows at clause 3.1.1:
“Rail Butchers shall receive an all purpose allowance of $4.80 per day for each day
they are employed boning beef on the rail.”
[70] The usual meaning of the term “all purpose” when used in respect of an allowance, is
that the allowance is part of the base or ordinary rate for the purposes of calculating payments
for overtime and all forms of paid leave. The 1996 Agreement contains wage rates and
classifications for both Rail Butchers and Table Butchers and those wage rates are identical.
Further, the Rail Butchers allowance does not appear in the wages table in clause 3.4.1 of the
1996 agreement.
[2014] FWC 8620
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[71] In the 2002 Agreement clause 3.1.1 which continues to deal with the allowance for
Rail Butchers boning beef on the rail is in the following terms:
“Rail Butchers shall receive an allowance for each day they are employed boning beef
on the rail as outline in Section 3.4 Wages. This allowance is to proportionally
increase with wage increases.”
[72] There is also a new clause 3.1.2 which provides that:
“Rail Butcher skill allowance is included into workcover”.
[73] Instead of being specified in clause 3.1.1, the quantum of the rail allowance now
appears in the wages table in clause 3.4 as follows:
“SKILL ALLOWANCE (RAIL BUTCHERS) $8.26 per DAY in addition to base rate”.
[74] The 2002 Agreement also contains a classification for Rail Butcher and a classification
for Table Butcher and both classifications receive the same weekly wage rate.
[75] The terms of the 2004 Agreement are the same as those of the 2002 Agreement with
respect to the inclusion of clauses 3.1.1 and 3.1.2. With respect to classifications, 11 levels
have been introduced. The classification of Table Butcher is in the level for which the highest
weekly wage rate is specified - level 11. There is no classification for Rail Butcher. In the
wages table in clause 3.5, the following appears:
“Skill Allowance for Rail Butcher work $8.82 per day”.
[76] In the 2006 Agreement, clause 3.1.1 remains unchanged, but clause 3.1.2 has been
deleted. The skill allowance for Rail Butchers is still found in clause 3.5 weekly wage rates
except that the amount of the allowance differs depending on whether or not employees work
under an arrangement with a rostered day off. The 2007 Agreement has the same provision
with respect to the allowance for Rail Butchers and clause 3.5 weekly wage rates is also in
similar terms other than the quantum of the allowance has been increased.
[77] Clause 3.1.1 of the 2011 Agreement is in similar terms except the allowance is now
payable to “Table Butchers for each day they are employed boning beef on the rail”. The
quantum of the allowance is also included in the wages table set out clause 3.5 on the basis
that the quantum changes depending on whether employees work a 7.6 or 8 hour day. This is
consistent with item 10 of the minutes of the meeting of 27 October 2010 which is as follows:
Allowances
3.1
Replace “rail” with “table”
10/08/10 No classification of “Rail Butcher”, it is a
“Table Butcher” that gets a rail allowance.
24/08/10 Employees to respond.
07/09/10 Accepted.
[78] The reference in the 1996 Agreement to the rail allowance being an all purpose
allowance is not found in any of the subsequent iterations of the clause prescribing the
allowance. As previously noted, the AMIEU does not dispute the assertion made by Brismeat
[2014] FWC 8620
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that custom and practice has been that the allowance has not been paid to employees by
Brismeat while they are on leave.
[79] All indications are that in versions of the Agreement following the 1996 Agreement
the rail allowance cleared to be all purpose and was paid on a daily basis and the classification
for Rail Butchers was phased out. There is insufficient material before me to form any
conclusion about this matter. However regardless of any previous provisions, it is clear that
the rail allowance in the 2011 Agreement is not an all purpose allowance.
[80] It is improbable that a change of some significance was negotiated with respect to the
2011 Agreement and that the clauses dealing with both the allowance and the payment to
empoyees while on annual leave, were not amended to reflect that change. It is even more
improbable that in circumstances where the parties agreed on an amendment to clause 3.1.1 to
reflect the fact that there was no classification for Rail Butcher, that they did not amend the
clause to reflect what would have been a much more significant change to the practice that
Table Butchers were not paid the rail allowance while on leave.
[81] The Meat Industry Award 2010 (the Award) was cited in the application for approval
of the Agreement as the reference instrument that would cover or apply to the employer and
the whole or any portion of the employees to whom the Agreement would apply. That Award
is part of the context in which the 2011 Agreement was made. The provisions of the Award
in relation to payment for annual leave found in clause 37.3, specifically exclude monetary
allowances from being payable to employees on annual leave. Thus an interpretation that the
rail butchers allowance in clause 3.1.1 of the Agreement is not payable on annual leave is also
consistent with the provisions of the Award.
[82] For these reasons, the interpretation of the Agreement advanced by the AMIEU is
inconsistent with both the specific terms of the 2011 Agreement and the context in which it
was made, including the earlier iterations of the 2011 Agreement and the Award which
underpinned it for the purposes of the process by which the 2011 Agreement was approved by
the Commission.
[83] The interpretation advocated by the AMIEU would require that the text of the 2011
Agreement be strained and would result in rather than avoid inconvenience and injustice. I
agree with the submission of Brismeat that the AMIEU has failed to explain how payment to
employees for annual leave and other forms of leave would be calculated if the construction
of the 2011 Agreement advanced by the Union was accepted. Clause 5.1.9 of the Agreement
is not an answer to this problem. That clause deals with employees working at higher
classification levels and not with employees performing work for which an allowance is
prescribed. There is no classification for Rail Butcher as there was in previous versions of the
Agreement, and clause 5.1.9 cannot apply where a daily allowance is paid.
[84] Further, there is no rational basis for the allowance in clause 3.1.1 of the Agreement to
be paid to employees on annual and other forms of leave, and not the allowances in clause
3.1.2 and 3.1.3, which are expressed in identical terms to the allowance subject of these
proceedings.
[2014] FWC 8620
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Extrinsic Material
[85] I am also of the view that there is nothing ambiguous about the provisions of the 2011
Agreement under which the AMIEU asserts an entitlement on the part of Table Butchers to be
paid the allowance in clause 3.1.1 of the Agreement on all forms of leave. Quite simply, on
the plain meaning of the words in relevant provisions of the Agreement, the allowance in
clause 3.1.1 is not paid on all forms of leave. For the reasons set out above, this view is
consistent with the context in which the relevant provisions appear in the 2011 Agreement
and in earlier iterations of that Agreement. It is also consistent with the Award.
[86] The AMIEU asserts that notwithstanding the text of the Agreement, the extrinsic
material, in the form of minutes of negotiation meetings, and the belief of officials of the
AMIEU and its members that agreement was reached that the allowance in clause 3.1.1 would
be paid on all forms of leave, requires a construction of the Agreement to that effect.
[87] As previously noted, extrinsic material may be considered to resolve an ambiguity or
expose it. In the present case, the extrinsic material is the minutes of a meeting held on 27
October 2010, for the purpose of negotiating the 2011 Agreement. I do not accept that the
minutes of that meeting or of any other meeting establish that the parties agreed that the Rail
Butchers allowance would be paid on annual leave or any other form of leave. It is clear from
the evidence of Ms Romero and the minutes themselves that the claim was raised by
employees on 10 and 24 August 2010 and that on 7 and 14 September the Company provided
reasons why this claim was rejected. On 14 September employees indicated that they would
respond to the Company’s position, which was “still no” and on 29 September “Accepted” the
Company’s rejection of this claim.
[88] This is a more probable scenario than the one advanced by the AMIEU, which would
require the Commission to accept that after rejecting a claim at two previous meetings, the
Company changed its position and accepted it. This scenario advanced by Brismeat with
respect to the minutes is supported by the evidence of Ms Romero who was present at the
meetings where the claim was discussed. It is also supported by the fact that there was no
change to the clause prescribing the allowance, the wages clause or the annual leave clause, to
reflect this alleged agreement. This is despite the clause providing for the allowance being
amended to reflect the fact that the allowance was payable to Table Butchers and not Rail
Butchers – a classification which no longer appeared in the Agreement.
[89] I am also of the view that the term “Accepted” in the context of the minutes as a
whole, is used to indicate acceptance of the last substantive position. In relation to items
where there was negotiation, the term “Accepted” is generally used to indicate acceptance of
the final negotiating stance of the other party. In cases where the term “Accepted” relates to
the original claim, there is no negotiation and the substantive position to which the term
“Accepted” relates, is the original claim. This can be seen from the minutes of 7 October in
relation to items 10 and 16, both of which dealt with clause 3.1.1 the clause which provides
for the rail allowance. It is also apparent from other sections of the minutes highlighted in
cross-examination by both Mr Dalgleish and Mr Jauncey.
[90] This is illustrated by the following extracts from the minutes of meeting 7. With
respect to item 10, it is apparent that on 10 August 2010, the Company proposed the deletion
of the term “Rail Butcher” and the insertion in lieu of that term of the term “Table Butcher”.
On 24 August 2010 employees indicated that they would respond to this proposal. On 7
[2014] FWC 8620
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September 2010, the item is recorded as having been “Accepted”. Clearly, in this case there
was no substantive discussion about the proposal and the acceptance of the item relates to the
original claim.
[91] This can be contrasted with the minutes in relation to item 16. The minutes show that
on 10 August 2010, employees claimed that stand up rail butchers be paid allowance on all
paid leave inclusive of leave loading. On 24 August 2010 it was recorded that employees
were to clarify the claim. On 7 and 14 September the Company’s opposition to the claim is
outlined and the minutes record that employees are to respond to the Company’s position.
The response “Accepted” is clearly a response to the Company’s position of opposition. In
other words employees accepted that the claim was rejected and opted not to pursue it further.
This is consistent with the fact that the clause was not altered other than in the manner agreed
to in relation to item 10.
[92] The fact that Mr Crawford later formed a view that the minutes should be interpreted
in the manner contended for by the AMIEU is not sufficient to establish that there was an
understanding or agreement between the parties about this matter. Mr Crawford attended
only two meetings and was not at the meetings where this matter was discussed. His view is
based on minutes of meetings he did not attend, and however genuinely that view is held, it is
not a sufficient basis to establish that there was agreement on this matter. It is also the case
that there is no evidence that any employee who was employed as a Table Butcher at the
relevant time, believed that the Company had agreed to pay the rail allowance on annual leave
or other forms of leave. That there was no substantive change to the provision is also
evidenced by the fact that exactly the same wording was included in the 2011 Agreement with
respect to the clause providing for the allowance and the clause relating to payment for annual
leave.
[93] The extrinsic material relied on by the AMIEU does not support the construction
advanced by the Union. There is no basis for inferring that an understanding was reached,
and the evidence is to the contrary.
CONCLUSION
[94] The proper construction of the 2011 Agreement is that the rail allowance in clause
3.1.1 of the Agreement is not payable to employees on annual leave or other forms of paid
leave.
DEPUTY PRESIDENT
Appearances:
Mr E. Dalgleish on behalf of the AMIEU.
Mr S. Jauncey, Ms J. Do, Mr R. Usiam and Mr J. Smith on behalf of Woolworths Limited t/a
Brismeat.
[2014] FWC 8620
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Hearing details:
2014.
Brisbane:
March 10;
May 6.
Printed by authority of the Commonwealth Government Printer
Price code C, PR558431
1 AG2014/3423
2 Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 105 IR 172 at [175] (Gyles J); National
Tertiary Education Industry Union v University of Wollongong [2002] FCA 31 at [27 - 28] (Branson J); Automotive, Food,
Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 (Finkelstein J);
University of Western Australia v National Tertiary Education Industry Union [2003] FCA 1264 (Carr J); Construction,
Forestry, Mining and Energy Union v Amcor Ltd [2002] FCA 610; (2002) 113 IR at [18] (Finkelstein J); approved in
Commonwealth Bank of Australia v Finance Sector Union of Australia (2002) 125 FCR 9 at [29] (Full Court).
3 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 – 382 per Gummow, Kirby and
Hayne JJ.
4 [2012] FWAFB 3994 at [5] – [9].
5 [2014] FCAFC 84.
6 [2014] FCAFC 148 (3 November 2014).
7 (1996) 66 IR 182.
8 Amcor Limited v CFMEU (2005) 222 CLR 241.
9 Re Clothing Trades Award (1950) 68 CAR 597.
10 Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499.
11 Australian Workers’ Union v Abbey (1939) 40 CAR 494.
12 Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 44 ALJR 280 at 283.
13 Toll FGCT Pty Limited v Alphapham Pty Ltd (2004) 219 CLR 165 (at 179).
14 Short v Hercus (1993) 40 FCR 511 at 517 – 519 per Burchett J and 523 per Drummond J; Municipal, Administrative,
Clerical & Services Union v Commonwealth of Australia (1998) 82 FCR 175 at 177 – 178 per Marshall J.
15 Codelpha Construction v State Rail Authority (NSW) (1982) 149 CLR 337 at 347 – 353 per Mason J.
16 (1993) 40 FCR 511
17 Ibid at 518.
