1
Fair Work Act 2009
s.604—Appeal of decision
Sydney International Container Terminals Pty Limited T/A Hutchison
Ports
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2023/481)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
COMMISSIONER MCKINNON
SYDNEY, 8 MAY 2023
Appeal against decision [2023] FWC 88 of Deputy President Easton at Sydney on 12 January
2023 in matter number C2022/1521 – permission to appeal granted – appeal upheld.
Background
[1] Sydney International Container Terminals PTY Limited T/A Hutchison Ports (the
Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act), for which
permission to appeal is required, against a decision of Deputy President Easton issued on 12
January 2023 (the Decision).1
[2] In the Decision, the Deputy President determined that the Appellant was required under
Clause 8.1.4 of Part B – Schedule 5 (the Disputed Clause) of the Hutchinson Ports Australia
(HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (the Agreement)
to allocate a Senior Rail Clerk when there are over 54 containers to be exchanged in a shift.2
[3] This matter was listed for hearing on permission to appeal and the merits of the appeal
on 20 March 2023. On 1 February 2023, directions were set for the filing of material by both
the Appellant and Respondent. Both parties did so, and on 16 March 2023, both parties
consented for the matter to be determined on the papers without the need for a formal hearing
or oral submissions, and the listing was subsequently vacated. We are satisfied this matter can
be adequately determined based on the materials before the Commission, pursuant to s.607(1)
of the Act.
[4] For the reasons that follow, permission to appeal is granted, the Decision is quashed,
and the appeal is upheld.
The Decision under appeal
[2023] FWCFB 87
DECISION
AUSTRALIA FairWork Commission
[2023] FWCFB 87
2
[5] The primary question in the Decision concerned the meaning of the Disputed Clause,
which is reproduced below:
“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]
[6] The Appellant contended at first instance that the ordinary meaning of the Disputed
Clause is that Senior Rail Clerk would be allocated only when there were three or more trains
expected within a single shift and, simultaneously, the combined container exchange was
greater than 54 containers. The Maritime Union of Australia Division of Construction, Forestry,
Maritime, Mining and Energy Union (the Respondent), contrastingly, advanced the argument
that when taken in the context of the bargaining history and the Agreement as a whole, the
Clause should be taken to mean that in any situation where there is an exchange of over 54
containers, a Senior Rail Clerk would be allocated, irrespective of the number of trains.
[7] The Respondent gave evidence at first instance that, during enterprise bargaining for the
Agreement with the Appellant, it had repeatedly emphasised that its position was that the
number of containers, and not the number of trains, was the trigger of the Senior Rail Clerk
allocation. The Respondent also detailed the multiple revisions of the Disputed Clause. In cross-
examination, the Respondent claimed that although the words of the ultimate form of the
Disputed Clause were “entirely incorrect and somewhat misleading”,3 it did not make any
attempts to correct it to avoid further disputation in a protracted 3-year negotiation process, and
because they considered the Agreement an employer document that was not directly relied on
by employees of the Appellant.
[8] The Appellant gave a similar account of the negotiations as the Respondent and clarified
that its intention was to save headcount when there were only one or two trains but did not want
a situation where a Senior Rail Clerk would be allocated to a shift with more than two trains
but with a relatively low number of containers. The Appellant further clarified that it at no point
negotiated an outcome where the number of containers was the sole trigger for a Senior Rail
Clerk allocation. Moreover, the Appellant claimed that in the course of putting the negotiated
proposal to a vote, it issued a memorandum to all employees that described the Disputed Clause
as containing only the term “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.”4
[2023] FWCFB 87
3
[9] The Respondent submitted at first instance that the two sentences in the Disputed
Clause, when read together, are contradictory. As such, the Clause is ambiguous and therefore
demands consideration of the intentions of the parties to determine the correct construction and
interpretation of the Disputed Clause. Moreover, the Respondent submitted that Clause 8.1.2 of
the Agreement, that a Rail Team would be allocated where there are more than 54 containers,
also stands in tension with the Disputed Clause since the historical meaning of a Rail Team
includes a Senior Rail Clerk.
[10] The Appellant submitted at first instance that there is no ambiguity in the Disputed
Clause and no regard can be had to the subjective intentions of the parties, as the second
sentence does not contradict the content of the first sentence. Therefore, the ordinary meaning
of the Disputed Clause supports the Appellant’s construction. In the alternative, the Appellant
submitted that the history of the negotiations could not provide an objective basis for informing
the construction of the Disputed Clause.
[11] In the Decision, the Deputy President considered the relevantly applicable legal
principles to interpreting enterprise agreements, citing [114] of AMWU v Berri Pty Limited
(“Berri”).5 In summary, the construction of an enterprise agreement begins with a consideration
of the ordinary meaning of the relevant words. If the agreement has a plain meaning, evidence
of surrounding circumstances will not be admitted to contradict the plain language of the
agreement. However, if the language of the agreement is ambiguous or susceptible of more than
one meaning, then surrounding circumstances will be admissible to aide in interpretation.
Moreover, the only admissible evidence is that which can establish objective background facts,
such as matters constituting a common assumption. The Deputy President also outlined the
approach of the Federal Court in James Cook University v Ridd (“Ridd”),6 which he noted was
“substantially the same” as the principles distilled above.7
[12] Subsequently, in applying the cited principles, the Deputy President found that the
“ordinary meaning [of the Disputed Clause] is far from clear.”8 The Deputy President noted
that an obvious problem with the Clause was that either its first sentence contains a superfluous
condition that is not actually a precondition, or the second sentence contains an incomplete
restatement of the first sentence.
[13] Having been satisfied that the language of the Disputed Clause was ambiguous or
susceptible of more than one meaning, the Deputy President turned to consider whether any
evidence of surrounding circumstances aides the interpretation of the Disputed Clause. In so
doing, he looked to the correspondence evidence during the bargaining process with relation to
the introduction of the Disputed Clause as well as the memorandum provided to employees of
the Appellant prior to the making of the Agreement.
[14] The Deputy President examined the representations made by the Appellant and
Respondent during negotiation and concluded that:
“[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
[2023] FWCFB 87
4
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.”
[15] Contrastingly, the Deputy President noted that the memorandum issued by the Appellant
provided some support to its interpretation of the Disputed Clause, insofar as “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.”9 However, he noted that “the support [the memorandum] provides is not strong.”10
[16] The Deputy President also turned to the other sub-provisions within Clause 8.1 of the
Agreement to aide in construction. Specifically, Clause 8.1.2 deals with Rail Teams which,
though not specifically defined in the Agreement, was supported by evidence from the
Respondent that suggests that Rail Teams always historically included a Senior Rail Clerk. The
Deputy President therefore concluded that:
“[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.”
[17] Finally, citing Ridd, the Deputy President noted that a generous construction is preferred
over a strictly literal approach due to the threat of pecuniary penalty that would apply to the
Appellant upon breach. As such, “the most cautious approach to resolving the ambiguity is to
apply the lower, single trigger (being more than 54 containers).”11
[18] The Deputy President therefore concluded at [89] of the Decision that “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.”
Grounds of appeal and submissions
[2023] FWCFB 87
5
Permission to appeal
[19] Given the fact that the Deputy President arbitrated a dispute under Clause 14.4.2 of the
Agreement, the Appellant submits that it is not necessary for it to seek permission to appeal in
this instance owing to Clause 14.6.2 of the Agreement. In the alternative, the Appellant seeks
permission to appeal on the grounds that the appeal concerns principles of construction and
relates to an important waterfront industry, which renders it in the public interest that
permission be allowed.
[20] The Respondent contrastingly submits that the Appellant’s submission is plainly wrong
as Clause 14.6.2 uses the wording of “an appeal may be made against the decision”, rather than
granting a right to appeal, citing the Full Bench decision of Maersk Crewing Australia Pty Ltd
v Construction, Forestry, Maritime, Mining and Energy Union (“Maersk”)12 in support. The
Respondent additionally submits that the Decision deals with no issue of general importance
and concerns a narrow question, and as such permission to appeal should be refused.
Ambiguity and interpretation of the Disputed Clause
Appellant’s submissions
[21] The Appellant’s primary ground of appeal is that the Deputy President made an error of
law by finding that the Disputed Clause was ambiguous or susceptible of more than one
meaning, and therefore had recourse to surrounding circumstances to aide interpretation. As a
result, the Deputy President incorrectly found that the Clause required the Appellant to allocate
a Senior Rail Clerk where there are over 54 containers in an expected exchange.
[22] The Appellant submits that the Deputy President ignored the words ‘only when there
are more than two trains with’ in the first sentence of the Disputed Clause and ‘for clarity’ in
the second sentence of the Disputed Clause, and thus did not undertake construction in a way
that attempted to make all words useful and pertinent. The Appellant further submits that, as a
result, the Deputy President misconstrued the second sentence of the Disputed Clause by
reading it in isolation rather than in the context of the whole Clause. The Appellant submits that
the words ‘for clarity’ indicate that the second sentence cannot be construed as providing a
standalone condition, nor to provide qualification or contradiction of the first sentence. Rather,
the Disputed Clause’s two sentences should be taken to be a leading and sub-ordinate sentence,
respectively, citing Project Blue Sky v Australian Broadcasting Authority.13 The Appellant
submits that the meaning of the Disputed Clause is plain, and that evidence of surrounding
circumstances should not be admissible to contradict its plain language.
[23] The Appellant submits that the Deputy President also erred in various aspects of his
consideration of the evidence by failing to identify which communications between the
Appellant and Respondent applied to which particular sentences of the Disputed Clause and
failing to give adequate weight to the memorandum issued by the Appellant to employees
during the access period.
[24] Finally, the Appellant submits that the Deputy President’s consideration of other
provisions under Clause 8.1 are flawed, insofar as there was no basis for him to conclude that
[2023] FWCFB 87
6
that a Rail Team will include a Senior Rail Clerk from the plain language of the Clause, or to
assume that the content of Clause 8.1 was not different from previous agreements. The
Appellant contends that Clause 8.1.2 and Clause 8.1.4 merely provide different conditions for
the allocation of a Rail Team and Senior Rail Clerk.
Respondent’s submissions
[25] The Respondent submits that the meaning of the Disputed Clause is not plain from a
mere reading of the text, as the second sentence completely contradicts the first. As such, the
second sentence creates ambiguity since it purports to offer clarity while not doing so.
[26] The Respondent also submits that the Appellant’s contentions that the Deputy
President’s erred in his consideration of evidence are without merit. Concerning his
examination of representations made by the Appellant and Respondent during negotiations, the
Respondent submits that the Deputy President was correct in determining that the bargaining
history, when viewed objectively, supported its interpretation. The Respondent further submits
that the Appellant has provided no authority or reasoning for its contention that the Deputy
President failed to give adequate weight to the memorandum issued by the Appellant, nor for
its contention that the Deputy President should have come to the opposite conclusion on the
relationship between Clauses 8.1.2 and 8.1.4 of the Agreement.
Principles on appeal
[27] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the primary
decision maker.14 There is no right to appeal under the Act and unless an enterprise agreement
provides to the contrary, an appeal may only be made with the permission of the Commission.
[28] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied
that it is “in the public interest to do so.” The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.15 The public interest is not
satisfied simply by the identification of error,16 or a preference for a different result.17 In
GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some
of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive or that the legal principles applied
appear disharmonious when compared with other recent decisions dealing with similar
matters...”18
[29] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of
appealable error.19 However, that the Member at first instance made an error is not necessarily
a sufficient basis for the grant of permission to appeal.
[2023] FWCFB 87
7
[30] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.20
However, it is necessary to engage with the appeal grounds to consider whether they raise an
arguable case of appealable error.
Consideration
Permission to appeal
[31] On the question of whether the Appellant requires permission to appeal, we reproduce
Clause 14.6 of the Agreement in its entirety below:
“14.6 If the FWC arbitrates the dispute:
14.6.1 It may also use the powers that are available to it under the Act, and
14.6.2 An appeal may be made against the decision.”
[32] We do not agree that Clause 14.6.2 provides an automatic right of appeal to the
Appellant, despite the Deputy President having arbitrated the dispute. The wording of Clause
14.6.2, that an appeal ‘may be made against the decision’, does no more than reflect the default
position of there being conditional capacity to appeal to a Full Bench of the Fair Work
Commission as found in s 604 of the Act, and as was the case in Maersk.21
[33] Nevertheless, we grant permission to appeal. We consider that there is public interest in
further consideration of what the Appellant has established is an arguable case of legal error in
the application of established legal principles to the provisions of the Agreement in dispute.
Was the Deputy President’s interpretation of Clause 8.1.4 correct?
[34] The dispute determined by the Deputy President involved a question of construction of
the Agreement. The correctness standard therefore applies to this appeal.22 Accordingly, we
must determine whether the Deputy President’s answer to the question for arbitration was
correct.
[35] The principles of interpretation of enterprise agreements are well established.23 The task
of construing an industrial instrument begins with a consideration of the ordinary meaning of
the words, read in context, and taking into account the evident purpose of the provisions or
expressions being construed. Relevant context will include the provisions of the industrial
instrument as a whole and the place and arrangement of disputed terms in the instrument. The
underlying statutory framework may also provide relevant context, as might prior instrument(s)
from which a particular term has been derived. Regard may also be had to relevant surrounding
circumstances, for the purpose of determining whether there is any ambiguity in a provision of
an industrial instrument.
[36] The language of an industrial instrument is to be understood in the light of its industrial
context and purpose, and not in a vacuum or divorced from industrial realities. Context is not
itself an end. While a purposive approach to interpretation, and not a narrow or pedantic
[2023] FWCFB 87
8
approach, is appropriate, consideration of the language contained in the text of the instrument
remains the starting point and the end point in the task of construction.
[37] The Deputy President cited relevant legal principles on the question of agreement
interpretation from Berri and Ridd in the context of his consideration of the terms of the
Agreement in dispute. However, in our view, he reached the wrong conclusion in the
application of those principles to the language of Clause 8.1 of the Agreement.
[38] Clause 8.1.4 has a plain meaning and must be read as a whole. We consider that the
second sentence of the Disputed Clause is intended to operate together with the first sentence,
as is made clear by the introductory words “For clarity”. Further, the purpose of the second
sentence is not to exclude the first sentence but to provide clarity in relation to how the first
sentence will be applied. When read in light of their context and purpose, the two sentences of
Clause 8.1.4 are not contradictory and are capable of operating harmoniously.
[39] On our construction, the second sentence of Clause 8.1.4 supplements the first sentence,
to emphasise the minimum trigger of 55 containers in addition to there being more than two
trains, as required by the first sentence. To read the clause otherwise would involve an
impermissible rewriting of the provision in dispute, by effectively removing the two-train
requirement. There is no textual support for such an approach found in the Agreement when
the language of the Agreement is considered as a whole.
[40] We also do not consider that the other sub-provisions in Clause 8.1, particularly Clause
8.1.2, have any bearing on the meaning of the Disputed Clause. Clause 8.1.2 provides that a
Rail Team will be allocated when there are more than 54 planned container exchanges in a shift.
This is a separate and distinct obligation to that found in Clause 8.1.4 in relation to the allocation
of a Senior Rail Clerk.
[41] For these reasons, the correct construction is that advanced by the Appellant: A Senior
Rail Clerk will be allocated when there are more than two trains with a combined exchange
greater than 54 containers on a shift.
Conclusion
[42] For the reasons set out above, we order as follows:
1. Permission to appeal is granted.
2. The appeal is upheld.
3. The decision of Deputy President Easton in [2023] FWC 88 is quashed.
4. The Appellant is required under Clause 8.1.4 of Part B – Schedule 5 of the
Hutchinson Ports (HPA) and Maritime Union of Australia (MUA) Enterprise
Agreement 2021 to allocate a Senior Rail Clerk where there are more than two trains
with a combined exchange of more than 54 containers on a shift.
[2023] FWCFB 87
9
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
22 February 2023, for the Appellant.
15 March 2023, for the Respondent.
Printed by authority of the Commonwealth Government Printer
PR761697
1 [2023] FWC 88 (the Decision).
2 Ibid at [89].
3 Ibid at [15].
4 Ibid at [22].
5 [2017] FWCFB 3005 (“Berri”).
6 (2020) 278 FCR 566.
7 The Decision at [30].
8 Ibid at [38].
9 Ibid at [72].
10 Ibid at [73].
11 Ibid at [84].
12 [2019] FWCFB 7163.
13 [1998] HCA 28.
14 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ. (Coal and
Allied Operations Pty Ltd).
15 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v
Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
16 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
17 Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB
10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663, 241 IR 177 at [28].
18 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
19 Wan v AIRC (2001) 116 FCR 481 at [30].
THE FAIR WORK VOISSIN THE SEA
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3005.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7163.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb10089.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb10089.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
[2023] FWCFB 87
10
20 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
21 [2019] FWCFB 7163.
22 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 at [46]-[49] per Gageler J; Rail
Commissioner v Rogers [2021] FWCFB 371 at [61]
23 See for example James Cook University v Ridd [2020] FCAFC 123, 298 IR 50 at [65] and the authorities referred to
therein; WorkPac Pty Ltd v Skene [2018] FCAFC 131 264 FCR 536 at [197]; Australian Workers’ Union v Orica
Australia Pty Ltd [2022] FWCFB 90 at [18] and the authorities referred to therein
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7163.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb371.htm
