[2017] FWCFB 3005
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604—appeal of a decision

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU)
v
Berri Pty Limited
(C2017/857)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER HUNT

MELBOURNE, 9 JUNE 2017

Appeal against decision [2017] FWC 514 of Deputy President Lawrence at Sydney on 27 January 2017 in matter number C2016/5808 – errors in decision making process –- permission to appeal granted – appeal upheld and decision set aside – remitted for rehearing.

1. Introduction

[1] The matter before us is an appeal from a decision of Deputy President Lawrence (the Decision) 1 which dealt with a dispute arising under the Berri Pty Limited (Leeton) Enterprise Agreement 2014 – 2017 (the 2014 Agreement). The dispute in question was about whether there is an entitlement to a ‘laundry allowance’ under the 2014 Agreement and was characterised by the Deputy President in the following terms:2

‘It is about whether or not Laundry Allowance which is contained in Attachment 3 of the Agreement is properly payable to employees at the Leeton plant who are required to wear and keep clean, as required by clause 26, their protective clothing which is provided by Berri.’

[2] It was common ground that the Commission had jurisdiction to hear and determine the dispute.

[3] The Deputy President decided that ‘there is no entitlement to the payment of Laundry Allowance to employees of Berri at the Leeton factory pursuant to the Agreement.’ 3 The AMWU has appealed that decision.

[4] We propose to say something about the 2014 Agreement and the proceedings at first instance before turning to the appeal.

2. The 2014 Agreement

[5] The 2014 Agreement was approved on 17 November 2014 and commenced operation on 24 November 2014, with a nominal expiry date of 1 February 2017. 4 The 2014 Agreement applies to Berri Pty Limited (Berri) and all employees covered by the classifications set out in the Agreement. The AMWU is covered by the 2014 Agreement.

[6] Clauses 4.3 and 26 and Attachment 3 of the 2014 Agreement are relevant to the determination of the dispute. These terms provide as follows:

4.3 Interaction with awards

26 Protective Clothing

[7] As set out above, clause 4.3 of the 2014 Agreement incorporates the terms of the Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010 into the agreement. Relevantly for present purposes, clause 26.2(e) of the Food, Beverage and Tobacco Manufacturing Award 2010 provides:

[8] Attachment 3 of the 2014 Agreement is titled ‘Allowance Structure’ and sets out the quantum to be paid in respect of 10 nominated allowances, one of which is a ‘laundry allowance’. The quantum of each allowance is subject to annual increases over the life of the 2014 Agreement. There is no other direct reference to the laundry allowance in any other term of the 2014 Agreement.

3. The Proceedings at First Instance

[9] Proceedings at first instance were initiated by an application (C2016/5808) filed by the AMWU pursuant to s.739 of the Fair Work Act 2009 (Cth) (the FW Act) for the Commission to deal with a dispute arising under the 2014 Agreement. As mentioned earlier, the dispute concerned the entitlement to a laundry allowance under the agreement and it was common ground that the Commission had jurisdiction to hear and determine the dispute. In response to the AMWU application, Berri filed an application under s.217 of the FW Act to vary the 2014 Agreement to remove an ambiguity or uncertainty. The variation sought the removal of the reference to the laundry allowance in Attachment 3 of the 2014 Agreement. The Deputy President decided to hear both applications in the one proceeding.

[10] It was common ground that all production and maintenance employees are required to wear protective clothing supplied by Berri and that there are no laundry facilities on site. It was also uncontested that since sometime in the 1990’s two employees (Stephen Alexander and Stephen Smith) have been paid a laundry allowance. These two employees no longer work for Berri. We deal later with the predecessor agreements to the 2014 Agreement and to the fact that at an earlier point in time (in the 1996 Agreement) there was an express term setting out the circumstances in which (and to whom) a laundry allowance was payable – but that term was deleted from the 1999 Agreement and subsequent agreements.

[11] We also note that during the course of the proceedings at first instance, Berri’s representative informed the Commission that there were 4 Berri employees (including Messrs Alexander and Smith) who had been employed prior to the commencement of the 1999 Agreement. Of those 4, Messrs Alexander and Smith have recently left, the other 2 are still employed by Berri and are not paid a laundry allowance. 5

[12] The AMWU contended that the ‘Allowance Structure’ has a plain meaning, namely, that a laundry allowance is payable weekly to employees who are required to launder their work clothes. The AMWU called two witnesses:

[13] Mr Olrick was involved in the negotiation of the 2014 Agreement. He was not aware of any document exchanged between the parties which talked about the laundry allowance and, to his knowledge, no one mentioned the laundry allowance specifically in any of the negotiations for the 2014 Agreement. 8 Mr Hattenfels was also involved in the negotiation of the 2014 Agreement and his evidence was in essentially the same terms as Mr Olrick.

[14] Berri contended that the 2014 Agreement does not provide an entitlement to a laundry allowance and that the reference to laundry allowance in Attachment 3 was ‘an inadvertent error’. Berri relied on the fact that while Attachment 3 refers to a laundry allowance and identifies a monetary amount, no other term of the 2014 Agreement makes any reference to the circumstances in which a laundry allowance would be paid. The essence of the submission advanced by Berri is set out in the following extract from its written submission in the proceedings at first instance:

‘… there is no clause anywhere within the substantive body of the current EA which provides that employees are entitled to a Laundry Allowance…

In the absence of any clause stating that employees should be paid a Laundry Allowance … no entitlement to a laundry allowance can arise…

Attachment 3 causes a level of confusion because the Attachment refers to a Laundry Allowance and identifies a rate of payment.

The Attachment does not, however, indicate who is to be paid this Laundry Allowance, the circumstances in which the Allowance is payable or the period over which the Allowance is to be paid (ie hourly, weekly, monthly, etc).

In summary, the Attachment does not confer any right to the Laundry Allowance as it does not indicate who is entitled to receive payment or when they are to receive it.

In such circumstances, the Attachment could not be said to confer any rights or entitlements. It simply identifies a rate of pay.’

[15] Berri advanced two other points in support of its contention:

[16] Berri called four witnesses:

[17] Ms Smith was the payroll officer for Berri between 1994 and 2001. She had no involvement in any enterprise agreement negotiations. Ms Smith’s evidence is that the laundry allowance stopped being paid to team members in the late 1990’s. 13 Ms Smith was not sure about when the payment was stopped, nor did she know if it was immediately stopped for all team members.14

[18] Mr Burton was the site operations manager at Berri’s Leeton site from 1991 to 2002, he ceased working for Berri some 5 or 6 years ago. Mr Burton was involved in various enterprise bargaining negotiations while he was site operations manager.

[19] At paragraph [6] of his statement Mr Burton says:

‘I recall that one of our claims during these EA negotiations was for the laundry allowance to be removed, as a trade off we would make a one off pay out of all employees sick leave down to four weeks.’

[20] Mr Burton clarified this aspect of his statement during his oral evidence:

 

‘Is that paragraph correct?---In most words, yes.  Except the I made a blue here when I've written it, and it's been put down here as the laundry allowance and the sick leave were different items.  The sick leave was a   to reduce the premium   the moneys that we had sitting owing to the employees, it would give them the option to have the sick leave paid out down to four weeks, so if you had 16 weeks and we paid it down to four weeks.  They didn't have to take that but that was just part of the things in the negotiations at the time.  The laundry allowance was just a trade-off, it's probably the wrong word, of the negotiation where you give and take; you give a little bit, and we'll give a little bit.  And I can't remember what the figure was but the laundry allowance was to be taken out of the EBA and say four and a half or five per cent whatever it was at the period of time, for the increase to go through.

And you say that that's what took place?---Yes.

Who were those discussions with?---With Ray Warne who was the union organiser at the time, myself and the union delegates, Ian Collins, who happened to be the factory delegate at the time.’

…

To be clear, your evidence is that as part of those negotiations there was a - is this a true description - there was a package of matters that were agreed and one of them was that employees gave up their laundry allowance, that's your evidence?---That's correct.

But we now know that not all employees gave up their laundry allowance?---I was unaware that those two were still receiving laundry allowance.

But your evidence is that all employees gave up their laundry allowance; not, for example, that laundry allowance only continued to be paid to existing employees and new-starters didn't get it - in other words it was grandfathered?  That's not your evidence?---No.

That wasn't the agreement?---Definitely not.

You're very clear about that?---100 per cent.’ 15

[21] We deal with Mr Burton’s evidence in more detail later.

[22] Mr Westcombe was involved in the negotiation of the 2014 Agreement, 16 in a support role.17 His recollection of the negotiations was quite limited:

‘But it's on this company interest page?---As I said in the statement, basically all I can recall is that the 3 per cent was - well at that time, whatever was negotiated as a wage increase - was going to go straight onto the allowances.

…

You don't remember much about bargaining, do you?---No.  Yes, I'm not - as I've said, the only thing I can recall, it was just basically being whatever the pay increase was they would have increased accordingly.  That's my understanding.’ 18

[23] Mr Harrison was not involved in enterprise bargaining negotiations, he supervised five employees in the laboratory. None of the employees he supervised received a laundry allowance. 19 Mr Harrison gave the following evidence concerning Stephen Alexander and Stephen Smith:

‘Prior to my leaving in 1999 I was aware that two employees, Stephen Alexander and Stephen Smith were employed initially to prepare drums for our processing work.

The work these two employees were performing was especially dirty, as they were continually in contact with drums stored outside over a lengthy period. They both became dusty very quickly from blowing the dirt off with high pressure air or brushing it off with a hand brush. Once the drums were cleaned and gross rust removed the drums were then spray painted by these two individuals, and the colour of the paint was jet black. This was all performed outside, so they were continually affected by spray drift and wind blowing the dirt and dust around.

Cleaning in other parts of the factory generally involves copious quantities of water and automatic cleaning, so people are not exposed to dirt and grime anywhere near as much as Steven Alexander and Stephen Smith at that time. Even the maintenance people are not exposed to this level of grime as predominantly there work involves touching equipment and gaskets, which can rub off on your hands, but not usually over your entire clothes on such a regular basis.’ 20

[24] Mr Kerry Davy also gave evidence in the proceeding. 21 Berri had initially proposed to call Mr Davy but ultimately chose not to do so and he was, in effect, a Commission witness. Mr Davy had been a supervisor at the Leeton site from 1985 to 1998 and from 2000 to 2010. Mr Davy was not involved in the negotiations for the 1999 Agreement,22 but gave evidence as to his understanding of what had been agreed at that time:

‘But your understanding was that there was some bargain agreed whereby the laundry allowance was to stop being paid, and that was part of a deal that had been done with the union, is that right?---The laundry allowance was to stop being paid to new employees from the date of the signed agreement.  So any new employees coming on board were not to receive the allowance.

And that's because you think that was the agreement that the parties reached in bargaining?---Correct.

So you stopped getting a laundry allowance?---No.  I stopped getting a laundry allowance when I left them in '98, and when I re-started in 2000 I didn't get the allowance.

You didn't have a problem with that because that was part of the deal as you understood it?---That's correct, yes.’ 23

[25] We comment on this aspect of Mr Davy’s evidence later.

[26] As mentioned earlier, the Deputy President decided that the 2014 Agreement did not provide an entitlement to a laundry allowance and he dismissed the AMWU’s application.

[27] The Deputy President first confirmed the Commission’s jurisdiction to deal with the dispute by arbitration, 24 and then characterised the dispute as we have set out earlier at [1]. The Deputy President then turned to the interpretation of the 2014 Agreement and set out the relevant principles, by reference to the Full Bench decision in Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd25 (Golden Cockerel). In accordance with Golden Cockerel, the Deputy President first considered whether the 2014 Agreement had a plain meaning or contained an ambiguity.

[28] The Deputy President was satisfied that the 2014 Agreement was ambiguous in that it did not specify how the laundry allowance referenced in Attachment 3 ‘is to be paid’ and nor did it ‘explain the basis of the payment’ or ‘who is entitled to it’. 26 Having identified ambiguity, the Deputy President turned to the evidence of surrounding circumstances as an aid to the interpretation of the 2014 Agreement, noting that ‘the evidence is sparse and confused’.27

[29] The Deputy President made a number of findings on the basis of the evidence we have referred to earlier, relevantly for present purposes he found that:

[30] It is also evident from the Deputy President’s decision that he took into account the conduct of the AMWU and its officials post the 1999 Agreement. At [62] of his decision, the Deputy President says:

‘Crucially, neither the AMWU officials nor delegates then raised the non-payment of the allowance for some 16 years. It is clear that it was not mentioned in the 2014 negotiations’.

[31] The gravamen of the Deputy President’s conclusion is set out at paragraphs [65] to [67]:

‘On the balance of probabilities, I accept Michael Burton’s evidence that the Laundry Allowance was bought out by the Company as part of a wages package for the 1999 EBA. Mr Davy’s evidence, although confused about dates, is supportive of a trade-off arrangement.

The 2014 Agreement needs to be read in the context of what went before it. This is especially so because the evidence is that there was no consideration of the Laundry Allowance during the negotiations for the 2014 Agreement. I cannot therefore accept the AMWU submission that the 2014 Agreement should be considered on its own merits.

I am therefore satisfied that the correct interpretation of the Agreement is that there is no entitlement for employees to be paid the Laundry Allowance.’29

[32] We now turn to the grounds of appeal advanced by the AMWU.

4. The Appeal

[33] An appeal of a decision is not as of right and permission to appeal must first be obtained. 30 Subsection 604(2) of the FW Act 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.31

[34] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 32

[35] It is common ground that the decision subject to appeal relates to the proper construction of the 2014 Agreement and accordingly the issue for us is whether the interpretation adopted by the Deputy President was correct. 33

[36] The AMWU advances three grounds of appeal:

1. The Deputy President erred in making the following findings of fact:

(a) that the laundry allowance was ‘bought off’ by Berri in 1999 ‘as part of a wages package’;

(b) that the allowance was ‘not phased out for new starters’;

(c) that the two employees who continued to receive the allowance did so because their jobs were ‘dirtier than the others’; and

(d) that the allowance was not raised in bargaining for the Berri Pty Ltd (Leeton) Enterprise Agreement 2014-2017 (the Agreement).

2. The Deputy President erred in determining that the correct interpretation of the words ‘laundry allowance’ and associated yearly rates in Appendix 6 of the Agreement was that they did not give rise to any entitlement for any employee to be paid a laundry allowance under any circumstances.

(a) The Deputy President’s determination involved interpreting a term of the Agreement. Accordingly, the decision under appeal was non-discretionary. The question for the Full Bench to determine is whether the Deputy President’s determination was correct, not whether it was reasonably open to his Honour.

(b) The Deputy President’s interpretation is incorrect as:

(i) It is not consistent with the correct principles of enterprise agreement interpretation; and

(ii) It is premised on the findings of fact the subject of appeal ground one. Even if this ground fails, it is error to give primacy to these factors over the text of the Agreement.

3. The Deputy President acted outside power in determining that no laundry allowance was payable and dismissing the AMWU’s application, as this decision was inconsistent with a term of a fair work instrument that applied to the parties and thus prohibited by s.739(5).

[37] It is convenient to deal first with Grounds 2 and 3 which go to the question of whether the Deputy President’s construction of the 2014 Agreement was correct.

[38] The principles relevant to the task of construing an enterprise agreement were recently summarised in Golden Cockerel 34 as follows:

‘1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

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

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.’

[39] Later we modify the above summary in light of the observations made in the course of our decision.

[40] The AMWU contends that, on its face, the ‘Allowance Structure’ in Attachment 3 of the 2014 Agreement reflects the intention of the parties that a laundry allowance be paid, at least in some circumstances, and that this intention is not displaced by the absence of an express reference to the allowance being payable elsewhere in the agreement. In support of this contention the AMWU submits that not all of the allowances in the Allowance Schedule have a corresponding clause expressly requiring them to be paid and that the Allowance Schedule is not subservient to the text of the agreement, but is itself a substantive term.

[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,35 Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.36 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’. 37

[42] As we have mentioned, Appendix 3 of the 2014 Agreement is titled ‘Allowance Structure’ and sets out the quantum to be paid in respect of the 10 nominated allowances. The text of direct relevance to these proceedings is set out below:

‘Attachment 3 – Allowance structure

Allowances

  

1/02/2013

1/02/2014

1/02/2015

1/02/2016

67

Laundry Allowance

8.64

8.89

9.16

9.44

The allowances set out in this attachment will be reviewed by the parties subject to this agreement within 6 months of the variation of this document.’

[43] The number on the left (67) is a payroll code and the quantum of the laundry allowance is subject to a number of increases over the term of the 2014 Agreement, as are all of the other allowances in Attachment 3.

[44] There is considerable force in the Appellant’s contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect. It would seem to follow that the inclusion of a laundry allowance in Appendix 3 of the 2014 Agreement should not be regarded as superfluous or insignificant. Such an approach accords with the principles of statutory construction, 38 and, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to the interpretation of enterprise agreements. As the Full Bench observed in Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union:39

‘Australian Paper made the submission that no principle of statutory construction has any application to the interpretation of enterprise agreements, and relied upon the proposition stated in Golden Cockerel  that the Acts Interpretation Act 1901 (Cth) does not apply to the construction of enterprise agreements in support of that submission. The submission is rejected. It does not follow from the fact that enterprise agreements are not instruments to which the Acts Interpretation Act applies that modes of textual analysis developed in the general law in the context of the interpretation of statutes are incapable of application to enterprise agreements. While it undoubtedly remains necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument, it is equally the case that there has been a convergence in the approach taken to the interpretation of statutes, agreements and other types of instruments - in particular, in the emphasis on the objective ascertainment of the instrument’s purpose and the move from textual to contextual interpretation. Additionally, many of the grammatical aides to the interpretation of statutes are equally applicable to other types of instruments. In the High Court decision in Royal Botanic Gardens and Domain Trust v South Sydney City Council, Kirby J said “... it would be indefensible for this Court, without good reason, to adopt a different approach in the ascertainment of the meaning of contested language in a contract from the approach observed in respect of legislation”. We therefore do not consider that Golden Cockerel should be taken as an exhaustive statement of the means by which the text of an enterprise agreement might be construed.’ (references omitted)

[45] Berri does not dispute the proposition that the principles of statutory construction can assist in the interpreting enterprise agreements, but submits that an overly technical approach to interpreting industrial instruments, divorced from industrial realities, should be avoided.

[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided, 40 and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.41 A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement. For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited,42 Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:

‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’ 43

[47] We acknowledge that the fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. But it is also relevant that the instrument being interpreted in these proceedings is an enterprise agreement made pursuant to Part 2-4 of the FW Act and, as observed by White J in National Tertiary Education Union v La Trobe University, 44 it may be inferred that such agreements are intended to establish binding obligations:

‘The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of [the disputed clause in the agreement]’. 45

[48] Of course his Honour’s observation does not mean that an enterprise agreement may not include ‘matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements’ 46 – so much is clear from Reeves v MaxiTRANS Australia Pty Ltd.47 The fact that the 2014 Agreement is an enterprise agreement made pursuant to Part 2-4 of the FW Act is also relevant to the weight to be given to evidence of prior negotiations, a point to which we shall return shortly.

[49] There are other relevant contextual considerations in the 2014 Agreement.

[50] The first is that for the most of the other allowances in Attachment 3 there is a term elsewhere in the 2014 Agreement which sets out the circumstances in which the particular allowance is payable. 48

[51] At first instance, and on appeal, Berri relied on the absence of any such term stating that employees should be paid a laundry allowance (and the circumstances in which such a payment would arise) in support of its contention that the reference to a laundry allowance in Attachment 3 was ‘an inadvertent error’.

[52] If it were the case that the laundry allowance was the only allowance in Attachment 3 which was not referred to elsewhere in the 2014 Agreement, then there would be considerable force in Berri’s submission. In such circumstances, the laundry allowance would be an outlier. Its inclusion in Attachment 3 would seem anomalous. But that is not the case. The laundry allowance is not the only allowance in Attachment 3 which is unaccompanied by terms elsewhere in the 2014 Agreement, which explains the circumstances in which (and to whom) the allowance is payable.

[53] There is no reference elsewhere in the 2014 Agreement to the PLC allowance. In a submission filed on 12 May 2017, the Respondent submits that the PLC allowance was paid to maintenance team employees who were electricians performing duties associated with the operation and maintenance of ‘programmable logic controls’ attached to various pieces of machinery and equipment. The Respondent also submits that save for one exception (an employee who negotiated payment of a PLC allowance as a term of his contract of employment) the PLC ‘has not been paid to any employee in recent memory’. The Respondent attached two affidavits (the Oakman and Harrison Affidavits) in its 12 May 2017 submissions.

[54] In a reply submission filed in 29 May 2017 the AMWU opposed the admission of the Oakman and Harrison Affidavits on the basis that while the Commission has a discretion to admit new evidence that discretion should not be exercised lightly and should not be exercised in this case.

[55] We do not propose to admit the Oakman and Harrison Affidavits; nor do we propose to seek further evidence from Mr Burton to clarify any ambiguity in relation to his evidence (as proposed by the Respondent in its submission of 12 May 2017 at para 2.15).

[56] As will be seen, we have decided to uphold the appeal and remit the AMWU’s s.739 application to Deputy President Gostencnik for hearing and determination. The parties will have an opportunity to lead whatever evidence they deem appropriate in such a rehearing. We are also conscious of the fact that the admission of the new evidence – even if it was accepted – would not alter the outcome of the appeal and would not provide a complete evidentiary picture such as would enable us to resolve the ambiguity in the 2014 Agreement and determine the AMWU’s s.739 application.

[57] Returning to the terms of the 2014 Agreement we also note that, while the ‘coolroom’ and ‘freezer’ allowances in Attachment 3 are referenced elsewhere in the 2014 Agreement – in clause 13 – that reference does not, in explicit terms, establish an entitlement to the payment of the specified allowances. Rather, clause 13 simply states:

13 COLD ROOM RATES

[58] A further contextual consideration is clause 26 – Protective Clothing (see [6] above). Clause 26 provides, relevantly, that:

[59] As we have mentioned, it is common ground that all production and maintenance employees are required to wear protective clothing supplied by Berri and that there are no laundry facilities on site. Given the terms of clause 26 and the absence of onsite laundry facilities, it would be understandable if the agreement made provision for the payment of a laundry allowance to cover the costs incurred by employees in keeping their protective clothing clean. Of course it may also be the case that employees are compensated for such costs by the minimum wage rates specified in the 2014 Agreement. But if that were the case, why does Attachment 3 make reference to a laundry allowance?

[60] It seems to us that there is an ambiguity in the 2014 Agreement regarding the laundry allowance referred to in Attachment 3. In particular, it is unclear in what circumstances the amount specified is to be paid and to whom. The frequency with which any such payment is to be made is also unclear.

[61] Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa): 49

‘… evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract where it has a plain meaning.’ 50

[62] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:

‘… when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting.’ 51

[63] As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:

[64] As to category (i), evidence of prior negotiations will be admissible – but only for a defined purpose. As Mason J observed in Codelfa:

‘Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.’ 52

[65] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Limited: 53

‘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.’

[66] In resolving the ambiguity in relation to the laundry allowance, the AMWU submits that the following contextual factors indicate that the allowance is payable to production and maintenance employees:

[67] Contrary to the AMWU’s submission, we are not persuaded that the contextual matters identified necessarily lead to the conclusion that there is an entitlement to be paid a laundry allowance.

[68] As to points (i) and (ii), the AMWU’s reliance on the incorporation of the clothing reimbursement clause in the Food, Beverage and Tobacco Manufacturing Award 2010 is misconceived. The award clause provides a right to seek reimbursement of the costs of laundering ‘special clothing and equipment’, which is entirely different in character to an entitlement to the payment of an allowance. Further, not all employees covered by the 2014 Agreement are covered by the Food, Beverage and Tobacco Manufacturing Award 2010. Some employees are covered by the Manufacturing and Associated Industries and Occupations Award 2010, which does not contain any right to a reimbursement of the cost of laundering special clothing and equipment.

[69] As to point (iii), the fact that employees bear the cost of laundering their uniforms is a relevant consideration which is suggestive of an entitlement to an allowance but, as mentioned earlier, it is not determinative. The laundry allowance may have been ‘rolled into’ the minimum wage rate. If that were the case then the absence of a laundry allowance being payable to employees who are required to launder uniforms supplied by Berri would be unremarkable.

[70] As to point (iv), the fact that two employees continued to receive the laundry allowance post-1999 is of little relevance to the proper construction of the 2014 Agreement. No party was able to provide a definitive explanation as to why two employees continued to receive the allowance 54 and in such circumstances the fact that a laundry allowance was paid to those employees supports neither party’s case.

[71] Nor are we persuaded that the argument advanced in point (v) assists the AMWU’s case.

[72] Berri points to the antecedent industrial instruments and to the evidence of Mr Burton to support its contention that the reference to a laundry allowance in the 2014 Agreement was ‘an inadvertent mistake’. Berri submits that there was an agreement (initially reflected in the 1999 Agreement) on a package of measures, part of which was that employees traded their laundry allowance entitlement for a wage increase.

[73] We propose to refer briefly to the antecedent industrial instruments before turning to Mr Burton’s evidence.

[74] There are a number of predecessor agreements to the 2014 Agreement and an attachment in similar terms to Attachment 3 to the 2014 Agreement has been included in the following predecessor enterprise/collective agreements:

[75] None of the above agreements contain an express term setting out the circumstances in which (and to whom) the Laundry Allowance is payable.

[76] There was an explicit reference to an entitlement to a Laundry Allowance in an earlier predecessor agreement - the Sunburst Foods Limited - Leeton Certified Agreement 1996 (the 1996 Agreement). Clause 16 – Protective Clothing – of the 1996 Agreement included the following provision:

‘A laundry allowance refer attachment per week will be paid to all permanent employees issued with Company uniforms.’

[77] Although the Protective Clothing Clause in the 1996 Agreement was largely replicated in later agreements (including at clause 26 of the 2014 Agreement), the specific reference to a laundry allowance was removed following the 1996 Agreement and was not reinserted into any subsequent industrial instrument.

[78] As to the antecedent enterprise agreements, the AMWU acknowledges that the protective clothing clause in the 1999 Agreement does not contain an express reference to the laundry allowance being payable but submits that the change is not significant:

‘There are a number of other changes to the protective clothing clause, including the deletion of an express requirement to maintain adequate personal hygiene standards. In these circumstances a deletion is not itself sufficient to indicate a change to a previously agreed position.

In any event, and more significantly, the 1999 Agreement still contains a laundry allowance at Allowance Schedule, including changes in rates. This is wholly inconsistent with the abolition of the allowance.’

[79] The AMWU submits that if the laundry allowance was ‘bought out’ by a wage increase as part of the negotiations associated with the 1999 Agreement then that arrangement was a ‘side deal’ which was not reflected in the 1999 Agreement. The AMWU also submits that the non-payment of the laundry allowance (to all but two employees) is insufficient to establish a common intention.

[80] The deletion of the express reference to the payment of a laundry allowance to ‘all permanent employees issued with Company uniforms’ from the 1999 Agreement provides some support for the contention that at that time there was an agreement to ‘trade off’ that entitlement for a wage increase. Berri contends that there was such an agreement and relies on Mr Burton’s evidence regarding the negotiations for the 1999 Agreement.

[81] There are two fundamental flaws in the argument advanced on behalf of Berri. The first concerns the limitations to Mr Burton’s evidence. In short, that evidence does not carry Berri the required distance.

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

[83] Mr Burton’s evidence establishes that during the negotiation of the 1999 Agreement Berri proposed that the laundry allowance be removed in exchange for a wage increase and it may be inferred that the proposition advanced was discussed by the parties to that agreement. Even if we accept that such evidence goes to establish the objective background facts (a proposition not free from doubt 55) the fact that such a proposal was discussed does not mean it was agreed. Plainly, not every claim advanced during the negotiation of an enterprise agreement necessarily results in an agreement, so much is clear from Mr Hattenfels evidence about the negotiations for the 2014 Agreement. During the course of those negotiations, Berri sought to ‘roll the Cool Room rates into the base rate of pay’. The proposal was discussed and rejected.56

[84] The second flaw in the argument put is that – at its highest – it may explain the contextual background to the 1999 Agreement and assist in the construction of that agreement, but it is of very little assistance in ascertaining the proper construction of the 2014 Agreement. The parties to the 1999 and 2014 Agreements are quite different.

[85] It is important to bear in mind that while the 2014 Agreement (and indeed the antecedent agreements) may have been negotiated by Berri and the AMWU, the agreement itself is ‘made’ when a majority of the employees that will be covered by it cast a valid vote to approve it.

[86] The 2014 Agreement is a single enterprise agreement made pursuant to Part 2-4 of the FW Act. Unlike times past, the ‘parties’ to such agreements are not an employer and an employee organisation. Indeed the FW Act does not speak in terms of the ‘parties’ to such agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’.

[87] It is also relevant to observe that an employee organisation that was a bargaining representative for a proposed agreement may be covered by the agreement once it has been made (see ss.183 and 201(3)).

[88] The diversity of interests involved in the negotiation and making of enterprise agreements warrants the adoption of a cautious approach to the admission and reliance upon evidence of positions advanced during the negotiation process. As Rares J recently observed, in Australian International Air Pilots Association v Qantas Airways Limited: 57

‘Substantially, the Act provided that the agreement was a tripartite document between a body of employees, a corporation with numerous officers and an industrial association. The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity. It is important, in doing so, to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who had sought to protect their differing interests by various formulations of words in it. Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79], Gray J said:

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

[89] We accept that different considerations arise in respect of ‘greenfields’ agreements as such agreements are ‘made’ between an employer(s) and a relevant employee organisation(s) (see s.182(3)).

[90] In any event the objective background facts which are of most relevance are those which pertain directly to the 2014 Agreement. As mentioned earlier, the Deputy President found (at [66]) that there was no consideration of the laundry allowance during the negotiations for the 2014 Agreement. The AMWU challenges this finding of fact, contending that it is correct ‘in only a limited sense’. It is conceded that the laundry allowance was not separately discussed, but submitted that Mr Hattenfels’ evidence is that the Allowance Schedule as a whole was discussed (primarily in the context of increases to the allowances). In these circumstances it is submitted that it cannot be said that there was no consideration of the laundry allowance whatsoever in the negotiation of the 2014 Agreement.

[91] Contrary to the AMWU’s submission, it was plainly open to the Deputy President to conclude that the laundry allowance was not the subject of discussions during bargaining.

[92] The AMWU’s assertion Mr Hattenfels considered the laundry allowance to have been discussed during bargaining is inconsistent with Mr Hattenfels’ evidence under cross examination. In particular:

(i) Mr Hattenfels conceded that the laundry allowance was not raised in any documentation or discussions; 58 and

(ii) Mr Hattenfels conceded that he only turned his mind to the existence of a possible laundry allowance in December 2015. 59

[93] We also note that Mr Olrick’s evidence corroborates this aspect of Mr Hattenfels evidence. 60

[94] No evidence was tendered in the proceedings at first instance to suggest that during the negotiations for the 2014 Agreement any party specifically turned their mind to whether a laundry allowance should be payable to employees. The evidence in relation to the negotiations for the 2014 Agreement was that:

[95] In circumstances where the parties to the 1999 and 2014 Agreements are quite different, and where the laundry allowance (and its payment or non-payment) was not discussed during the negotiation of the 2014 Agreement, it is difficult to see how an earlier agreement to forego the laundry allowance as part of the 1999 Agreement (assuming there was such an agreement) can reliably inform the interpretation of the 2014 Agreement.

[96] Further, even if there had been evidence that the laundry allowance had been discussed during the negotiations of the 2014 Agreement, such evidence would need to be approached with a degree of caution. As mentioned above, while the 2014 Agreement was negotiated by Berri and the AMWU, it was ultimately a ‘tripartite document between a body of employees, a corporation with numerous officers and an industrial association’. In these circumstances evidence as to what, if anything, the employees covered by the 2014 Agreement were told about the laundry allowance (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

[97] So where does that leave us?

[98] We agree with the Deputy President’s finding that the 2014 Agreement is ambiguous (see [28] above). However, the Deputy President’s reasons for his ultimate conclusion (that there is no entitlement to a laundry allowance) reveal two clear errors.

[99] First, the Deputy President erroneously relies on Mr Burton’s evidence of the agreement reached in 1999 and, in particular, relies on Mr Burton’s subjective opinion as to what was agreed. Such evidence does not go to establishing the objective framework of surrounding circumstances. Further, Mr Burton’s evidence relates to what was agreed in the 1999 Agreement and, as we have mentioned, the parties to the 1999 and 2014 Agreements are quite different.

[100] In addition to the Deputy President’s reliance on those aspects of Mr Burton’s evidence which dealt with his subjective belief, the Deputy President also erred in his reliance on the post agreement conduct of the AMWU officials and delegates.

[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged.

[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction. 66 But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.67

[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, 68 a majority of the High Court adopted the ‘general principle’ that ‘it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made’. Of course, the expression ‘general principle’ is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):69

‘It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.’

[104] As Allsop P observed in Metcash (at [6]), ‘much ink has been spilt over the last 30 years on this topic’. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct, 70 but no clear consensus appears to have emerged.

[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd 71 gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:

‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’ 72

[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties.

[107] We also note that in Spunwill 73 Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd 74:

‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’

[108] In the present case, one of the parties to the 2014 Agreement is a corporation and, further, the post-agreement conduct amounted to little more than the absence of a complaint about the non-payment of a laundry allowance. Such evidence is insufficient to establish a common understanding. 75 As Gray J observed in ALHMWU v Prestige Property Services Pty Ltd76:

‘Care must be taken … to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.’

[109] We note that in the appeal proceedings Berri did not advance a submission to the contrary, and during the course of oral argument eschewed any suggestion that it was contending that there had been a course of conduct or common understanding based on the non-payment of the laundry allowance since 1999 and the absence of complaint. 77

[110] Based on the errors in the Deputy President’s reasoning process, we have decided to grant permission to appeal, uphold the appeal and quash the Decision.

[111] We have given consideration to the resolution of the ambiguity in the 2014 Agreement, having regard to the evidence before us. We have not been persuaded by the arguments advanced by either the AMWU or Berri. The admissible extrinsic evidence of the surrounding circumstances is of limited assistance. There is a paucity of evidence regarding the negotiation of the 2014 Agreement and what, if anything, the employees covered by the agreement were told about the laundry allowance. In particular, there is no evidence of the explanation provided to the relevant employees, (pursuant to s.180(5)), of the terms of the 2014 Agreement and the effect of those terms.

[112] In the circumstances we think the appropriate course is for the matter to be remitted to a single member for further hearing.

[113] As mentioned earlier we propose to modify the summary set out in Golden Cockerel in light of the observations made in the course of our decision.

[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

(i) the text of the agreement viewed as a whole;

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

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

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

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

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

5. Conclusion

[115] The Appellant has established an arguable case of error in relation to the decision subject to appeal such as to warrant the granting of permission to appeal. Accordingly, permission to appeal is granted. An examination of the Deputy President’s reasoning process discloses error and on that basis we have decided to uphold the appeal and quash the Decision. We remit the AMWU’s s.739 application to Deputy President Gostencnik for hearing and determination.

[116] We note that the parties are in the process of renegotiating the 2014 Agreement. We would encourage them to seek a resolution of the matter raised in the AMWU’s s.739 application as part of those negotiations. The Commission is available to assist the parties in that regard, if they wish.

Appearances:

L. Saunders for The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU)

L. Izzo for Berri Limited

Hearing details

2017.
Melbourne, Sydney (via video conference)
19 April.

Final written submissions

Berri Limited: 12 May 2017

AMWU: 29 May 2017

 1   [2017] FWC 514

 2   Ibid at [49]

 3   Ibid at [70]

 4   [2014] FWCA 8113

 5   Transcript 8 November 2016 at [1019]-[1027] (Appeal Book 112)

 6   Exhibit S2, Transcript 8 November 2016 at [101]-[160]

 7   Exhibit S3, Transcript 8 November 2016 at [166]-[203]

 8   Transcript 8 November 2016 at [148]-[151]

 9   Exhibit I2, Transcript 8 November 2016 at [208]-[270]

 10   Exhibit I3, Transcript 8 November 2016 at [274]-[505]

 11   Exhibit I4, Transcript 8 November 2016 at [512]-[609]

 12   Exhibit I5, Transcript 8 November 2016 at [679]-[725]

 13   Exhibit I2 at [3]

 14   Transcript 8 November 2016 at [229]-[240]

 15   Ibid at [308]-[310] and [473]-[477]

 16   Ibid at [527]-[528]

 17   Ibid at [544]

 18   Ibid at [567] and [605]

 19   Ibid at [718]

 20   Exhibit I5, at [5]-[7]

 21   Exhibit Commission 1, Transcript at [627]-[672]

 22   Transcript 8 November 2016 at [640]-[641]

 23   Transcript 8 November 2016 at [642]-[645]

 24   [2017] FWC 514 at [44]–[49]

 25   [2014] FWCFB 7447

 26   [2017] FWC 514 at [57]

 27   Ibid at [58]

 28   Ibid at [59]

29 Ibid at [65]-[67]

 30   Section 604(1) Fair Work Act 2009 (Cth)

 31   GlaxoSmithKline Australia Pty Ltd v Making [2010] FWAFB 5343 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] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663

 32   Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at paragraph 2328.

 33   Australian, Administrative, Clerical and Services Union v Australian Tax Office (ATO) [2013] FWCFB 4752

 34   [2014] FWCFB 7447 at [41]

35 (2005) 222 CLR 241

36 Ibid at 246

 37   Ibid at 262

 38   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Jayne JJ

 39   [2017] FWCFB 1621 at [21]

 40   Kucks v CSR Limited (1996) 66 IR 182 at 184

 41   City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440; See in general Golden Cockerel at [19]–[22]

 42   [2006] FCA 616

 43   Ibid at [26]

 44   [2015] FCAFC 142

 45   Ibid at [108]

 46   NTEU v La Trobe University [2015] FCAFC 142 at [109] per White J

 47   (2009) 188 IR 297 at [19]-[22]

 48   See clause 10.3: leading hand allowance; clause 10.6: boiler allowance; clause 13: cool room and freezer allowances: clause 15.8.1: meal allowance; clause 16: on call allowance; clause 17: tool allowance; and first aid allowance: clause 29.2

 49   (1982) 149 CLR 337

 50   Ibid at 352

 51   Ibid

 52   Ibid

 53   (1996) 66 IR 182 at 184.

 54   Transcript 8 November 2016 at [1028]–[1032]

 55   BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 520 at [33] – [34]

 56   Exhibit S3 at [8] and Attachment BH-2 to Exhibit S3

 57   [2017] FCA 346 at [29]

 58   Transcript 8 November 2016 at [186]–[191] (Appeal Book 34) and [194] (Appeal Book 35)

 59   Ibid at [199] (Appeal Book 35)

 60   Ibid at [148] and [151] (Appeal Book 31)

 61   See Annexure BH-1 at Appeal Book 170-172, Annexure BH-2 (Appeal Book 173-175)

 62   See Annexure BH-3 (Appeal Book 176)

 63   Transcript at [149] and [186] and [191]

 64   Ibid at [151] and [194]

 65   Statement of Alan Wescombe, 3 November 2016 at [3], at Appeal Book 195

 66   See Howard Smith and Co Ltd v Verawa (1907) 5 CLR 68 at 78; Farmer v Hanon (1919) 26 CLR 183 at 197 and White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 at 275 and 281

 67   Administration of Papua New Guinea v Daera (1973) 130 CLR 353 at 446; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348

 68   (2008) 251 ALR 322 at [35] per Gummow, Hayne and Kiefel JJ, and at [163] per Heydon J

 69   [2009] NSWCA 407 at [319] per Allsop P

 70   Metcash at [330]

 71   (1994) 36 NSWLR 290 at 304

 72   Ibid at 312

 73   Ibid

 74   (1978) 95 DLR (3d) 242 at 262

 75   See PKIU v Davies Bros Limited (1986) 18 IR 444 at 451

 76   [2006] FCA 11 at [44]

 77   Transcript 19 April 2017at [541]–[543]

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