[2019] FWCFB 102
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union
v
Wagstaff Piling Pty Ltd
(C2018/6537)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ANDERSON
DEPUTY PRESIDENT SAUNDERS



SYDNEY, 17 JANUARY 2019

Appeal against decision [2018] FWC 6626 of Deputy President Masson at Melbourne on 16 November 2018 in matter number C2018/4283.

Introduction and background

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Masson issued on 16 November 2018 1 (Decision). The Decision concerned an application by Wagstaff Piling Pty Ltd (Wagstaff) made pursuant to s 739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute pursuant to the dispute settlement procedure in clause 10 of the Wagstaff Piling Pty Ltd and the CFMEU (Victorian Construction and General Division) Piling Agreement 2016 – 2018 (Agreement).2 The dispute in question concerned a site allowance to be paid to employees of Wagstaff engaged on the West Gate Tunnel Project (Project) in Melbourne. The Victorian Building Industry Disputes Panel (Panel) had earlier determined, pursuant to Appendix C of the Agreement, that the amount of the site allowance should be $8.90 per hour. Wagstaff’s application sought that the Commission conduct a full review (in the nature of a hearing de novo) of the Panel’s determination. Before the Deputy President, the CFMMEU contended that clause 10 of the Agreement did not confer upon the Commission jurisdiction to deal with the dispute. In the alternative, it contended that if the Commission could deal with the dispute, it could only deal with it as an appeal stricto sensu from the Panel’s determination. The Deputy President rejected both contentions: he found that the Commission had the power under clause 10 of the Agreement to deal with the dispute and review the Panel’s determination, and it was required to do so by conducting a hearing de novo concerning the quantum of the site allowance. In its appeal, the CFMMEU contends that the Deputy President erred in respect of each of these conclusions.

[2] Under s 739(4) of FW Act, the Commission may arbitrate a dispute where empowered to do so by the disputes settlement procedure in an enterprise agreement. Section 739(3) provides that the Commission must not exercise any powers limited by the dispute settlement procedure. In the proceedings before the Deputy President, Wagstaff contended that clause 10 of the Agreement provided the requisite source of power. Clause 10 provides:

“10 Disputes Settlement Procedure

10.1 A major objective of this Agreement is to eliminate lost time and/or production arising out of disputes or grievances. Disputes over any work related or industrial matter or any matters arising out of the operation of the Agreement or incidental to the operation of the Agreement should be dealt with as close to its source as possible. Disputes over matters arising from this Agreement (or any other dispute related to the employment relationship or the NES, including subsections 65(5) or 76(4) of the Fair Work Act) shall be dealt with according to the following procedure.

10.2 Work shall continue without interruption from industrial stoppages, bans and/or limitations while these procedures are being followed. The pre-dispute status quo shall prevail while the matter is being dealt with in accordance with this procedure.

10.3 All Employees have the right to appoint a representative in relation to a dispute. It is the express priority of all Parties to attempt to settle a dispute at the workplace level at first instance.

10.4 In the event of any work related grievance arising between the Employer and an Employee or Employees, the matter shall be dealt with in the following

manner:

(a) The matter shall be first submitted by the Employee/s or his/her job delegate/Employee representative or other representative, to the site foreperson/supervisor or the other appropriate site representative of the Employer, and if not settled, to a more senior Employer representative.

(b) Alternatively, the Employer may submit an issue to the Employee/s who may seek the assistance and involvement of the job delegate/ Employee representative or other representative.

(c) If still not resolved, there may be discussions between the relevant Union official (if requested by the Employee/s), or other representative of the Employee, and senior Employer representative.

(d) Should the matter remain unresolved, either of the parties or their representative shall refer the dispute at first instance to the Victorian Building Industry Disputes Panel (which shall deal with the dispute in accordance with the Panel Charter).

(e) Either party or their representative may, within 14 days of a decision of the Panel, refer that decision to FWC for review. FWC may exercise conciliation and/or arbitration powers in such review.

10.5 This procedure shall be followed in good faith without unreasonable delay.

10.6 If any party fails or refuses to follow any step of this procedure the non-breaching party will not be obligated to continue through the remaining steps of the procedure, and may immediately seek relief by application to FWC.

10.7 All Parties will cooperate with the requests of the Disputes Panel including requests to provide substantiating information or undertaking an independent audit of matters arising from this Agreement. For the avoidance of doubt, an affected Employee may appoint a representative in relation to such matters.

10.8 Any resolution of a dispute under this clause by the Panel or FWC will not be inconsistent with legislative obligations or any other applicable Codes or Regulations.”

[3] The CFMMEU contended that the subject matter of the quantification of site allowances was specifically dealt with by discrete provisions in the Agreement which operated to limit the scope of the Commission’s role under clause 10. It firstly pointed to clause 24.1 as follows:

“24.1 Site allowances shall be paid in accordance with the formula which appears in Appendix C (Only in limited circumstances as prescribed by Appendix K Clause 1).”

[4] Secondly, it relied on Appendix C, which relevantly provides:

“APPENDIX C- Site Allowance Procedure

1. This procedure shall apply to construction work in the commercial/industrial sector of the building industry in the State of Victoria. Further, it is expressly agreed by the parties to this procedure that Site Allowances will not be claimed on any project where the Project Value is below $3 million.

2. In addition to the wage rates and allowances prescribed, the Employer shall pay to Employees extra rates as set out in the special rates clause of the Award for the period when individual employees incur those disabilities prescribed by the said clauses, except those special rates which are specifically included in the Site Allowance applicable to a Project.

3. The payment of Insulation Allowance shall be paid to individual employees only who are affected (as defined in the Award) by the use of such material.

4. Subject to the foregoing, where the Union on behalf of its members, requests an Employer to consider a claim for payment of a Site Allowance, such Site Allowance shall be determined either by:

(a) Geographic location if the project is contained within the City of Melbourne as defined in clause 15 of this appendix; or

(b) The amount contained in clause 7 or clause 14 of this appendix.

5. A Site Allowance shall be paid at the appropriate rate per hour flat for hours worked, to compensate for all special factors and/or disabilities on a project and in lieu of the following Award special rates - confined space, wet work, dirty work, second-hand timber and fumes. Award special rates and disability payments (other than mentioned above) shall be applied as and when incurred, in accordance with the Award conditions. Site allowance and Award special rates are part of Ordinary Time Earnings as defined in the Agreement.

6. It is agreed by the parties that all new projects will be covered by the Site Allowance rates contained in this Agreement.

7. Site Allowances as at 1 October 2015:

(a) The minimum project value, below which NO Site Allowance is payable, is $3m as at 1 October 2015 and will remain at this figure for the life of the Agreement.

(b) On sites which do not attract this Site Allowance, Employees are entitled to be paid the relevant disability payments as the disability may arise in accordance with the Award.

7.1 City of Melbourne (as defined in Clause 15 of this Appendix):

(a) New Projects

(b) Renovations, Restoration &/or

The Site Allowance on Projects which are a combination of new and renovation work, shall be governed by the majority of work involved. For example, where the majority of work is new work, then the Site Allowance appropriate to new work shall be paid for all Employees on the Project.

7.2 New Projects Victoria

(c) All new Docklands projects are to be in accordance with the new scale of Site Allowances. Existing projects at Docklands are to remain unchanged regarding site allowance and working hours.

8. The Rates shall be reviewed no later than 30 September 2016 and thereafter for each subsequent year of the Agreement taking account of the CPI movement and the economic circumstances prevailing in the industry at that time.

9. The Site Allowance values and project values in this Clause shall be adjusted by the CPI (All Groups, Melbourne), effective from 1 October 2016 and for each year thereafter according to the above CPI movement for the preceding period July to June in each year.

The Site Allowance shall be adjusted up or down to the nearest 5 cents, and Project Value to the nearest $100,000.

10. It is agreed by the parties that no allowance shall be claimed on any Project, regardless of its location, where the project value is below $3 million.

11. The appropriate Site Allowance shall be based on the Total Project Value, as defined by Clause 2 of this Agreement.

(d) In all cases where the parties fail to reach agreement on the Project Site Allowance to apply to a particular site or project, then such disagreement shall be referred to the Victorian Building Industry Disputes Panel for determination.

12. In determining the rate, the Panel shall have regard to the Appendix C, and shall not deviate from Appendix C unless there are special and exceptional circumstances.

(e) Special and exceptional circumstances may include working on projects where disabilities not comprehended in the Site Allowance procedure described herein exist. This may include where predominately contract metal trades construction/maintenance work is being carried out. Where the procedures prescribed by this Clause are being followed, work shall continue normally. In the event of employees taking industrial action in pursuance of a claim the date of operation of the Project Site Allowance shall not commence before the date on which the employees cease industrial action.

13. Any site allowance that is determined in accordance with 11 and 12 above shall be incorporated into the Agreement in accordance with the Fair Work Act 2009.

14. Shopping Centre and Airport Projects

All new construction and extension/refurbishment work of shopping centres, airports, retail strip shops and stand alone retail facilities having a project value in excess of $3m will attract the then current City of Melbourne Site Allowance.

Where the project is of a mixed purpose, City of Melbourne site allowance rates will apply only where the retail component is at least $3m and occupies at least 51% of the area of the project.

15. City of Melbourne Definition

[5] The Panel referred to in clause 10.4(d) and clauses 11 and 12 of Appendix C was established in 1984 and consists of three independent persons, of whom one is the Chairperson, nominated through and endorsed by the Building Industry Consultative Council. A Charter has been developed to apply to the functions of the Panel. The Charter provides in clause 2.1(iii) that its purpose is “to hear and determine all matters referred to it arising out of, and having regard to, the disputes procedures in the Enterprise Agreement”. The expression “the Enterprise Agreement” is not defined in the Charter, but there was no dispute between the parties that the expression was to be read as inclusive of the Agreement here. Clauses 1.7, 6.4 and 6.8 of the Charter provide:

“1.7 The Disputes Panel’s decision will be accepted as final and binding by all parties subject to any right of either party to refer the dispute to the Fair Work Commission (FWC) within 14 days of the Panel’s decision.”

. . .

6.4 Decisions of the Disputed Panel will be final and binding on all parties, subject to the parties’ rights as prescribed by the provisions of the Disputes Resolution Procedure.

. . .

6.8 Notwithstanding any other term, any party may apply to the FWC, as specified in the procedure. In such instances, an application must be lodged within fourteen (14) days of the Disputes Panel decision.”

[6] The factual background to the matter may briefly be summarised. On 10 May 2018 the CFMMEU notified a dispute with four identified employers, one of which was Wagstaff, to the Panel. Each of the four employers was bound by an enterprise agreement which conferred on the Panel a role in the settlement of disputes. The CFMMEU’s dispute notification form identified the subject matter of the dispute as follows: “The West Gate Tunnel Project has commenced, the value being undetermined for the purpose of the site allowance. The parties request the assistance of the Panel to help resolve the issue of what is the correct site allowance”. The Panel initially attempted to resolve the dispute by conciliation, but this was unsuccessful and, consequently, the Panel conducted a hearing in respect of the matter on 4 July 2018. In written submissions lodged with the Panel by Wagstaff pursuant to directions made by the Panel, Wagstaff submitted among other things that Appendix C of the Agreement did not apply to the Project because it did not involve “construction work in the commercial/industrial sector of the building industry in the State of Victoria” as required by clause 1 of Appendix C.

[7] On 20 July 2018 the Panel issued, by majority decision, its determination in relation to the dispute. This determination applied to Wagstaff and two other identified employers. It is sufficient for present purposes to say that the majority decision of the Panel determined that the Project was one to which Appendix C of the Agreement applied, that the value of the Project was $4.99 billion, and that the quantum of the site allowance would be $8.90 per hour effective (in Wagstaff’s case) from 18 May 2018.

[8] On 3 August 2018 Wagstaff filed its application under s 739 for the Commission to deal with the dispute concerning the site allowance for the Project. In its application, Wagstaff contended that in making its determination, the Panel “erred in deciding that it had jurisdiction”, and alternatively contended that the Panel erred in ten identified respects in its quantification of the site allowance.

[9] At the outset of the proceedings before the Deputy President, the only preliminary question initially raised concerned the nature of the review of the Panel’s determination sought by Wagstaff, and the parties pursuant to directions made by the Deputy President filed written submissions concerning this issue. However in supplementary submissions filed on 18 September 2018 the CFMMEU raised for the first time its contention that the Commission did not have jurisdiction to conduct a review of the Panel’s determination, and accordingly applied for Wagstaff’s s 739 application to be dismissed pursuant to s 587 of the FW Act.

[10] The Deputy President conducted a hearing in relation to the preliminary issues on 3 October 2018. At the hearing Wagstaff placed into evidence a witness statement made by Lawrie Cross, the General Manager, Member Services for the Master Builders Association Victoria (MBAV). Mr Cross gave evidence, in summary, as to the following matters:

The Decision

[11] In the Decision the Deputy President first addressed the CFMMEU’s jurisdictional objection to Wagstaff’s application. In doing so, the Deputy President began by analysing clause 10 of the Agreement, and concluded that on a plain reading of the clause the parties intended the scope of the procedure to be so broad as to allow disputes over any matter arising under the Agreement, the employment relationship and the NES to be dealt with, and that such disputes could be escalated progressively to the Panel and then to the Commission for a review of any decision made by the Panel. 4 The Deputy President also concluded that site allowances were specifically dealt with by clause 24 with the calculation methodology provided for in Appendix C, and then stated that the question to be answered was whether clauses 11 and 13 of Appendix C limited the scope and operation of clause 10 in respect of site allowance determinations by the Panel.5 Analysing the text of Appendix C, the Deputy President then made the following observations:

(1) unlike clause 10, Appendix C provided for the raising of a site allowance claim by the CFMMEU on behalf of its members; 6

(2) there was no reference in Appendix C to the Panel having to follow its own Charter, unlike clause 10; 7

(3) there was no reference in Appendix C to a party aggrieved by a site allowance determination of the Panel having a right to seek a review by the Commission, but the Charter provided for such a review subject to it being available under the relevant industrial instrument dispute settlement procedure; 8 and

(4) clause 13 of Appendix C provided for the Panel’s determination to be incorporated into the Agreement, but this was not possible absent a variation being made to the Agreement in accordance with the FW Act. 9

[12] In relation to the last observation, the Deputy President concluded that because the Panel’s determination could not be incorporated into the Agreement, clause 13 of Appendix C could not support the proposition that the determination was immune from review by the Commission. 10 The Deputy President further concluded that because clause 10 was capable of encompassing disputes about site allowances, there was ambiguity in construing Appendix C and its interaction with clause 10 that made it necessary to consider the surrounding circumstances.11 The Deputy President then considered the evidence of Mr Cross, and concluded that the changes made to clause 13 of Appendix C in the 2011-2015 industry pattern agreement removed the jurisdictional hurdle to the referral of a disputed Panel decision to the Commission that was identified in Dodd,12 and that there was no evidence that the parties had since acted other than in the belief that those changes required site allowance disputes to be dealt with in accordance with the Panel’s Charter.13 He noted that the Charter contemplated the conduct of a review by the Commission, and also took into account the Panel’s view, expressed in paragraph [5] of its determination, that parties were bound to comply with determinations of the Panel pursuant to applicable enterprise agreements “subject only to the exercise of rights of review”.14 The Deputy President concluded that there was a power to review Panel determinations concerning site allowances under clause 10.4, and accordingly that there was jurisdiction to deal with Wagstaff’s s 739 application.

[13] In relation to the nature of the review to be conducted, the Deputy President said that the word “review” as used in clause 10.4 did not, on its ordinary meaning, refer to a strict appeal, and there was nothing else in the text of the provision which could operate to confine it to a strict appeal. 15 The Deputy President did not derive assistance from the other provisions of clause 10.4, and then referred to the High Court decision in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd16 to aid the conclusion that the nature of the hearing before the Panel as provided for in the Charter “weigh[ed] in favour of the Commission exercising original jurisdiction or that of a hearing de novo”.17 He then concluded the second preliminary issue on the basis that the review to be conducted by the Commission was by way of a hearing de novo as contended by Wagstaff.

Appeal submissions

[14] The CFMMEU submitted, in relation to the jurisdictional question, that:

[15] The CFMMEU submitted, in the alternative, that if there was a capacity to review the Panel’s determination under clause 10.4(e), that review related to the Panel’s decision. This required, as a matter of ordinary English, the scrutiny, inspection and assessment of the Panel’s decision. It submitted that because arbitral awards are, as a matter of general law, taken to be final, this together with the allocation of the “dispute” to the Panel suggested that the Commission’s role was limited to scrutinising the Panel’s decision. This function was more akin to a strict appeal rather than a de novo hearing. It was further submitted that the Deputy President failed to take into account that clause 10.2 preserved the status quo while the dispute settlement procedure was followed, that clause 10.5 requires the procedure to be followed without unreasonable delay, that clause 10.6. allows a disputant not in breach of the procedure to seek immediate relief from the Commission, and that clause 10.7 requires parties to cooperate with requests by the Panel for information. These matters indicated, it was submitted, that the Panel had the primary dispute resolution role, the Commission’s role was limited, and that the prolonged process that would be required by the Commission conducting de novo hearings was not intended by the parties. Therefore the Commission’s role under clause 10.4(e) was limited to scrutinising the Panel’s decision for legal and factual error.

[16] Wagstaff submitted that the Deputy President’s conclusion in respect of the jurisdictional question was correct for the following reasons:

[17] In relation to the question of the nature of the review to be conducted by the Commission pursuant to clause 10.4 of the Agreement, Wagstaff submitted that:

Consideration

Permission to appeal

[18] There was no dispute between the parties that the CFMMEU requires permission to appeal. We consider that permission to appeal should be granted, for two reasons. First, because the Agreement is substantially modelled on an industry pattern enterprise agreement negotiated between MBAV and the CFMMEU, its provisions are likely to be the same as or similar to those in a number of other enterprise agreements applying in the building and construction industry in Victoria. This means that the questions raised by this appeal are likely to have general application and importance beyond Wagstaff and its employees. Second, the CFMMEU’s appeal raises questions going to the scope of the Commission’s jurisdiction which, for the reasons which follow, have at least in part substantial merit.

The jurisdictional question

[19] We agree with the Deputy President that, if considered in isolation, the disputes settlement procedure in clause 10 of the Agreement may be read as encompassing disputes about the quantification of site allowances. Clause 10.1 identifies that the procedure specified in the clause is required to be applied to disputes “over matters arising from this Agreement (or any other disputes related to the employment relationship or the NES …”. Insofar as the specific procedure for which clause 10.4 provides is expressed as referable to “any work related grievance arising between the Employer and an Employee or Employees”, that is to be understood as meaning grievances relating to the matters identified in clause 10.1 to which the procedure is applicable. Clause 10.1 is expressed in very broad terms, and a dispute concerning site allowances would be, at the least, one that related to the employment relationship (because it concerns an element of the remuneration of employees) and, to the extent that the Agreement otherwise dealt with the subject matter of site allowances, it would also be a dispute over a matter arising from the Agreement. There is nothing in the text of clause 10 itself which would exclude its application to a dispute concerning the quantification of site allowances.

[20] However it is necessary for clause 10 to be construed having regard to the relevant context and purpose of the Agreement, and the context in that regard includes the text of the Agreement viewed as a whole. 18 In this case that will require attention to be paid to those provisions of the Agreement which deal specifically with the subject matter of site allowances, namely clause 24.1 and Appendix C, and how those provisions are to be related to clause 10. We therefore also agree with the Deputy President that the question to be answered is “whether clauses 11 and 13 of Appendix C limit the scope and operation of clause 10 of the Agreement in respect of site allowance determinations of the Panel”.19

[21] The analysis must start with clause 24.1. Clause 24 as a whole deals with the subject matter of allowances, and in respect of MultiˇStorey Allowance (clauses 24.2-24.3), Daily Fares and Travel Pattern Allowance (clauses 24.4-24.7), Living Away From Home Allowance (clauses 24.8-24.9), Expense-Related & Other Award Prescribed Allowances (clause 24.10), Geographic Area and Sector Specific Allowances (clauses 24.11-24.12), Major Event allowances (clause 24.13), Demolition work allowance (clause 24.14) and other amounts payable in addition to site allowance (clause 24.15) provision is made for the quantum of the allowance, either by (in most cases) specifying the dollar amounts or by referring to another part of the Agreement or to an exterior document. In this context, it is reasonably apparent that the purpose of clause 24.1 is to specify the quantum of the site allowance that is to be paid by Wagstaff to its employees on any particular project. It does this by requiring site allowances to be paid in accordance with “the formula which appears in Appendix C” (and, in limited circumstances which are not relevant here, in accordance with clause 1 of Appendix K).

[22] That “formula” may reasonably be identified as being contained in clause 7 of Appendix C, which operates in conjunction with the definition of the City of Melbourne in clause 15. Clause 7.1 sets out the quantum of allowances for City of Melbourne Projects, which varies depending on the value of the project. 20 For new projects, clause 7.2 sets out in tabular form the site allowance amounts payable dependent upon the value of the project in question, but the table ends at a value of “1350.0 - 1700.0 Million”. Clauses 8 and 9 provide for the indexation of the prescribed amounts.

[23] This “formula” is embedded in Appendix C which prescribes a procedure for dealing with site allowance issues. The Appendix itself is entitled “Site Allowance Procedure”, and as earlier stated clause 1 of Appendix C provides that the procedure is to apply to “construction work in the commercial/industrial sector of the building industry in the State of Victoria”. Under clause 4, the procedure is initiated by “the Union” (which clause 2 makes clear is intended to refer to the CFMMEU) on behalf of its members requesting the employer to consider a claim for payment of a site allowance, which is then to be determined based on geographic location and the amounts prescribed by clauses 7 and 14. There is no other mechanism prescribed by which a site allowance may be claimed. Clause 11(d) provides that where the parties (that is, the CFMMEU and the employer) fail to reach agreement on the site allowance for a particular project, the disagreement “shall” be referred to the Panel “for determination”. Clause 12 requires the Panel to have regard to Appendix C (which we read as reference to the “formula” in clause 7) and not deviate from Appendix C in determining the rate unless special and exceptional circumstances exist. Examples of such special and exceptional circumstances are identified in clause 12(e).

[24] It is apparent to this point in the Appendix C procedure that there are significant differences between it and the disputes settlement procedure in clause 10.4 to the extent that simultaneous compliance with both procedures is impossible. Clause 10.4 proceeds on the basis that, on the employees’ side, a workplace grievance is to be raised by the affected employee(s) or their representative and discussed initially at the site level. The grievance, if not resolved, is escalated through to more senior employer representatives, and the relevant union official will be involved in discussions if requested by employees. It is only after these steps have been taken that, subject to clause 10.6, either of the parties or their representatives are to refer the dispute to the Panel. By contrast, Appendix C provides that only the Union can raise a claim for a site allowance, and if this is not agreed the matter is required to be referred directly to the Panel. There is no capacity under Appendix C for employees themselves or alternative representatives to be involved, as is the case with clause 10.4, nor does Appendix C permit any “disagreement” about site allowances to be dealt with in the escalating steps provided for in clause 10.4 before it is required to be referred to the Panel. Once a matter is referred to the Panel, markedly different requirements apply: clause 10.4(d) requires the Panel to deal with a dispute in accordance with the Panel Charter, while clause 12 of Appendix C requires the Panel to determine a disagreement about site allowances in accordance with Appendix C unless there are special and exceptional circumstances.

[25] Further radical differences arise between the provisions at the point where the Panel has dealt with the matter referred to it. Clause 10.4(d) makes it clear that the Panel deals with a dispute only “at first instance”, and clause 10.4(e) expressly provides for a review of the Panel’s decision by the Commission. Appendix C provides for none of these things, nor does its text contain any cross-reference back to clause 10.4(e). Instead (and unlike clause 10.4) it contains clause 13, which provides that “Any site allowance that is determined in accordance with 11 and 12 above shall be incorporated into the Agreement in accordance with the Fair Work Act 2009”. This provision cannot be read other than as a conclusive indication that the Panel’s determination (where the site allowance is not agreed between the parties) concerning site allowances is intended to be final. As the Deputy President concluded, clause 13, if read literally as intending a self-executing variation of the Agreement, cannot be effective since an enterprise agreement can only be varied by the addition of a new term in accordance with the variation procedure prescribed by Subdiv A of Div 7 of Pt 2-4 of the FW Act. However that does not mean that clause 13 can be overlooked or that no attempt should be made to assign to it a workable alternative meaning. In construing an industrial instrument (as with a statute or contract), the proper approach is to strive to give all words meaning and effect and to avoid any provision being rendered otiose, 21 and the usual inference is that provisions in enterprise agreements are intended to establish binding obligations.22 In our view, having regard to the lack of sophistication in the overall drafting of the Agreement and the likelihood of the framers of the Agreement being “of a practical bent of mind” and having 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”,23 we consider that clause 13 of Appendix C is best to be understood as imposing upon the parties bound by the Agreement an obligation to comply with and give effect to a determination of the Panel made pursuant to Appendix 3. In this way, a failure to comply with the Panel’s determination concerning a site allowance would constitute a contravention of the Agreement in the same way as would a failure to comply with an arbitration conducted pursuant to a disputes resolution procedure in an enterprise agreement. Thus the notion of incorporation into the Agreement does not mean literal incorporation as a term of the Agreement but rather conveys an intention to give legal effect to the Panel’s determination as if it were a term of the Agreement.

[26] The considerations we have identified above lead us to conclude that matters which are the subject of Appendix C (and clause 24.1) of the Agreement are excluded from the operation of the disputes settlement procedure. Appendix C is the mechanism by which the quantum of one of the range of allowance types in clause 24, namely site allowances, is to be determined. Although Appendix C provides for the resolution of “disagreements” concerning site allowances, this is a subordinate feature of its primary purpose of quantifying site allowances on a project-by-project basis. Its special subject matter accordingly distinguishes it from the general dispute settlement procedure in clause 10. Applying established maxims of interpretation, the provisions of clause 24.1 and Appendix C which specifically deal with the quantification of site allowances would presumptively be construed as excluding that subject matter from the operation of the general disputes settlement procedure in clause 10. 24 This construction is affirmed by the fact that, for the reasons earlier stated, the procedures in clause 10.4 and Appendix C are inconsistent to the extent that simultaneous compliance is not possible and by clause 13 of Appendix C, which renders untenable the proposition that a site allowance determination by the Panel made in accordance with Appendix C is reviewable by the Commission on application by either party.

[27] Our conclusion is also supported by the contrast between the procedure in Appendix C and other provisions in the Agreement which expressly provide for particular types of disputes to be referred to the Panel “under clause 10.4(d) of the Agreement”. For example, the Agreement provides that disputes about sham contracting (clause 14.4(e)), visa compliance (clause 15.2) and alteration of start and finish times (clause 32.5) may be referred directly to the Panel for resolution “under clause 10.4(d) of this Agreement”. The link back to clause 10.4(d) of the Agreement indicates a clear objective intention that such disputes are to be dealt with “at first instance” by the Panel, but the Commission has the power to review such decisions by the Panel under clause 10.4(e) of the Agreement. In contrast, Appendix C does not include any express link back to clause 10.4(d) and, instead, provides (at [13]) that “Any site allowance that is determined in accordance with 11 and 12 above shall be incorporated into the Agreement…” This indicates that the parties objectively intended for the procedure in Appendix C to be a stand-alone procedure, and not one subject to review by the Commission under clause 10.4(e) of the Agreement.

[28] The AIRC Full Bench decision in Dodd 25 and the subsequent events provide further extrinsic contextual support for this construction. Dodd involved a building and construction industry agreement which contained a dispute settlement procedure (clause 10.2) that was the same in all relevant respects as the procedure in clause 10.4 of the Agreement here (save of course that it referred to the AIRC instead of this Commission). It also contained a provision (clause 23) concerning site allowances which required them to be paid in accordance with the formula which appears in Appendix C. The version of Appendix C in the agreement considered in Dodd relevantly provided:

“11. In all cases where the parties fail to reach agreement on the Project Site Allowance to apply to a particular site or project, then such disagreement shall be referred to the Chairperson of the Victorian Building Industry Disputes Panel for determination.

12. In determining the rate, the Panel Chairperson shall have regard to the Site Allowance Guidelines, and shall not deviate from these Guidelines unless there are special and exceptional circumstances. Special and exceptional circumstances may include working on projects where disabilities not comprehended in the Site Allowance procedure described herein exist. This may include where predominately contract metal trades construction/maintenance work is being carried out. Where the procedures prescribed by this Clause are being followed, work shall continue normally. In the event of employees taking industrial action in pursuance of a claim the date of operation of the Project Site Allowance shall not commence before the date on which the employees cease industrial action.

13. Any site allowance that is determined in accordance with 11 and 12 above shall be incorporated into the Agreement in accordance with the Workplace Relations Act.”

[29] The decision in Dodd concerned whether a site allowance determination made by the Chairperson of the Panel pursuant to the provisions of Appendix C above was reviewable by the AIRC under the disputes settlement procedure in clause 10.2. The Full Bench made two critical conclusions in this respect. First, it concluded that a determination made under Appendix C was made by the Chairperson alone, not by the whole Panel in accordance with the Charter as under clause 10.2. In this respect, the Full Bench said:

“[26] The first thing to note is the contrast between cl 10(2)(f) of the Agreement and cl 11 of Appendix C. While cl 10.2(f) confers power on the Disputes Panel, cl 11 of Appendix C confers power on the Chairperson alone. While the Disputes Panel is to exercise powers in accordance with the Charter, Appendix C does not refer to the Charter at all. These are strong indications that the Chairperson is not required to act in accordance with the Charter under Appendix C.”

[30] Secondly the Full Bench dealt with the issue of whether the AIRC review power in clause 10.2 was applicable to a determination of the Chairperson of the Panel under Appendix C, and concluded in this respect:

“[27] Further, cl 10.2(g) provides that a party may refer a decision of the Disputes Panel to the Commission for review. Appendix C has no such provision. In addition, the fact that cl 13 provides that the Chairperson’s determination shall be incorporated into the Agreement negatives the potential for an implication that the Chairperson’s decision could be referred to the Commission for review...” 

[31] As the evidence of Mr Cross at first instance demonstrated, in negotiations in 2011 for a subsequent industry pattern agreement, it was agreed in light of the decision in Dodd that Appendix C should be altered to require site allowance disagreements to be dealt with by the entire Panel rather than just the Chairperson. This alteration to the industry pattern agreement eventually found its way into the Agreement here as clause 11(d) of Appendix C. However there was no alteration in respect of the matters referred to in paragraph [27] of Dodd - that is, Appendix C was not altered to provide for review by the Commission, and clause 13 remained in place. That position is reflected in Appendix C of the Agreement here. This demonstrates that, objectively speaking, there was no common intention to depart from the interpretative conclusion stated in paragraph [27] of Dodd. What Mr Cross subjectively hoped to achieve in the 2011 negotiations, or what he thought had been achieved by the MBAV, is not admissible in aid of the interpretation of the Agreement.

[32] We do not accept Wagstaff’s submission that the Charter has any bearing on the jurisdictional question raised by the CFMMEU. The Charter cannot itself confer jurisdiction on the Commission and, insofar as clauses 1.7, 6.4 and 6.8 of the Charter contemplate that there might be a right to refer a matter determined by the Panel to the Commission, that is subject to whether such a right is conferred by the relevant enterprise agreement. We also do not accept Wagstaff’s submission that a conclusion that clause 10 does not apply to disagreements concerning the quantification of site allowances would render the Agreement not compliant with s 186(6). Section 186(6)(a) requires an enterprise agreement, in order to be capable of approval, to provide for a procedure that requires or allows the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes about “any matters arising under the agreement”. To the extent that a disagreement about the quantification of a site allowance may be characterised as a matter arising under the Agreement, Appendix C is a procedure which requires the independent Panel to settle such a dispute. The only dispute of that nature to which Appendix C applies is one initiated by the union on behalf of its members, and in that connection representation of those employees by the Union is provided for by Appendix C as required by s 186(6)(b).

[33] For these reasons, we conclude that, with respect, the Deputy President erred insofar as he determined that clause 10.4 conferred on the Commission the power to review the merits of the Panel’s determination. However a different conclusion applies with respect to Wagstaff’s contention that, because the Project does not involve Wagstaff undertaking “construction work in the commercial/industrial sector of the building industry in the State of Victoria”, Appendix C was inapplicable and the Panel had no power to determine a site allowance for the Project. Insofar as there is a dispute about that issue, that is a dispute about the application of the Agreement to which clause 10 applies. While the Panel had to form a view concerning whether Wagstaff’s work on the Project was covered by Appendix C as an incident of its function of quantifying the site allowance, the final resolution of a dispute of that nature is not a function conferred on the Panel by Appendix C. Clause 13 of Appendix C is not applicable to any conclusion on that question because it only applies to the site allowance where quantified in accordance with clauses 11 and 12, which provisions are not applicable if the work in question does not fall within the scope of Appendix C as set out in clause 1. That the Commission had jurisdiction to deal with Wagstaff’s contention on this score was properly conceded by the CFMMEU at the hearing of the appeal.

[34] Accordingly the CFMMEU’s appeal must be upheld in part for the reasons we have given. The Decision will be quashed to the extent that it determined that the Commission was conferred with power to conduct a merits review of the site allowance awarded by the Panel. It will be necessary to remit the matter to the Deputy President to conduct the necessary review of the Panel’s decision that it had jurisdiction under Appendix C to determine a site allowance for the Project. This will require the Deputy President to determine whether the work of Wagstaff and its employees on the Project constitutes “construction work in the commercial/industrial sector of the building industry in the State of Victoria” within the meaning of clause 1 of Appendix C of the Agreement.

Nature of the review

[35] Because we have concluded that the Commission has no power to review the merits of the Panel’s determination and may only consider the question of whether Appendix C was applicable to work performed on the Project, it is not clear the extent to which the question of the nature of any review to be conducted pursuant to clause 10.4(e) remains a live and relevant issue. However we shall express our views on the question in the event that it remains an issue in the limited review that is required to be conducted.

[36] At the outset we consider it highly unlikely that the industry participants historically involved in developing the model of clause 10 of the industry pattern agreements in Victoria, which has found its way into the Agreement here, had in mind in doing so the various types of appeals from decisions of courts and tribunals provided for in federal and State statutes such that the language used in clause 10.4(e) is to be analysed on the basis that a choice has been made between an appeal stricto sensu or an appeal by way of a hearing de novo. We prefer to approach clause 10.4(e) on the basis of endeavouring to give effect to the ordinary meaning of the language used, while bearing in mind the presumption that in conferring jurisdiction on the Commission the parties took the Commission as they found it. 26

[37] The function conferred on the Commission by clause 10.4(e) is to “review” the decision of the Panel in relation to the dispute in question. The ordinary meaning of “review” is to inspect, look over or re-examine something. What is being reviewed is the Panel’s decision, so the Commission is not starting afresh in resolving the dispute in question, but inspecting, looking over or re-examining the outcome which has been determined by the Panel. That necessarily involves, we think, a consideration of whether that outcome is the proper one to resolve the relevant dispute. Clause 10.4(e) provides that the Commission may exercise conciliation and arbitration powers in the conduct of the review, which means that the Commission is empowered to discharge its review function by facilitating agreement between the parties through conciliation or by making a decision by arbitration.

[38] Section 590(1) of the FW Act provides that the Commission may “inform itself in relation to any matter before it in such manner as it considers appropriate”, and s 590(2) identifies in a non-exhaustive fashion ways in which the Commission may so inform itself, including in s 590(2)(d) “by taking evidence under oath or affirmation…”. There is nothing in the language of clause 10.4(e) which would rebut the presumption that in conferring jurisdiction to conduct the review upon the Commission, the parties intended that the power in s 590 would be applicable to the review. This tells against the CFMMEU’s position that the review must be conducted on the basis of the evidence that was before the Panel only, but it also tells against the proposition (which appears to be the logical corollary of Wagstaff’s case) that a party seeking a review has a right to advance a new evidentiary case. Instead, it is a matter for the Commission to determine what evidence it will receive such as to permit it to discharge its review function. Thus the Commission may choose to admit evidence in the review because, for example, the evidence before the Panel was insufficient to permit the proper resolution of the dispute, or there is a lack of a proper record of the evidence before the Panel, or the decision of the Panel does not properly resolve the dispute in light of changed circumstances occurring since the decision was issued.

Conclusion

[39] We determine the appeal as follows:

scription: Seal of the Fair Work Commission with the member's signature.

VICE PRESIDENT

Appearances:

R. Reitano and P. Boncardo of Counsel on behalf of the Construction, Forestry, Maritime, Mining and Energy Union.

R. Dalton SC and B. Avallone of Counsel on behalf of Wagstaff Piling Pty Ltd.

Hearing details:

Melbourne.

2018:

18 December.

Printed by authority of the Commonwealth Government Printer

<PR703687>

 1   [2018] FWC 6626

 2   AE428334

 3   [2007] AIRCFB 989, 168 IR 129

 4   Decision at [40]

 5   Decision at [41]

 6   Decision at [48]

 7   Decision at [49]

 8   Decision at [51]

 9   Decision at [53]

 10   Decision at [56]

 11   Decision at [56]-[57]

 12   Decision at [61]

 13   Decision at [62]

 14   Decision at [62]-[64]

 15   Decision at [94]-[97]

 16   [1976] HCA 62, 135 CLR 616

 17   Decision at [115]-[116]

 18   See AMWU v Berri Pty Ltd [2017] FWCFB 3005, 268 IR 285 at [114](1)

 19   Decision at [41]

 20   Clause 14 of Appendix C applies the City of Melbourne site allowances to shopping centres and airport projects.

 21   Western Newspapers Pty Limited v Warren [1994] IRCA 117, 56 IR 340 at 356-357

 22   AMWU v Berri Pty Ltd [2017] FWCFB 3005, 268 IR 285 at [114](4)

 23   See Kucks v CSR Ltd [1996] IRCA 166, 66 IR 182 at 184

 24   Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9, 47 CLR 1 at 7, applied to the interpretation of enterprise agreements in United Voice v Foster's Australia Limited [2014] FWCFB 4104 at [32]

 25   [2007] AIRCFB 989

 26   DP World Brisbane Pty Ltd v Maritime Union of Australia  [2013] FWCFB 8557, 237 IR 180 at [47]-[48], quoted with approval in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123, 235 FCR 305 at [49]