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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052363
COMMISSIONER CAMBRIDGE
C2015/301
s.739 - Application to deal with a dispute
Maritime Union of Australia, The
and
Skilled Group Limited T/A ATIVO Maintenance & Project Services
(C2015/301)
Stevedoring Industry Award 2010
Sydney
10.03 AM, THURSDAY, 27 AUGUST 2015
PN1
THE COMMISSIONER: We're on record so I'll take the appearances please.
PN2
MS L DOUST: Please the Commissioner, my name is MS DOUST, that's D-o-u-s-t, initial L. Commissioner, I'm not familiar with what happened on the last occasion, whether or not permission was granted but I do seek permission to appear pursuant to section 596 of the Act, in the event that a direction or order to that effect hasn't already been made in this matter.
PN3
THE COMMISSIONER: I think I actually granted permission to the other side on an earlier occasion. If my memory serves me correct but gee, there's so many of these things, they all might get muddled together but I think there was a - Mr Latham raised this and then Mr Jacka said he had no objection and I decided there was sufficient complexity and 596 was satisfied and - - -
PN4
MS DOUST: Yes.
PN5
THE COMMISSIONER: If I didn't do that before I'll do it again now.
PN6
MS DOUST: I rely in that event also upon subsection (c) about fairness if permission's already been given to the respondent.
PN7
THE COMMISSIONER: Yes. I think there's no difficulty there and when I look at the material and we're going back to some old - - -
PN8
MR LATHAM: Commissioner, we don't have any difficulty with Ms Doust.
PN9
THE COMMISSIONER: Yes, so I think that if there - for abundant caution I can indicate that I'm satisfied the requirements of section 596 of the Act have been met and both sides are entitled to be granted permission for lawyers or paid agents.
PN10
MS DOUST: Thank you, Commissioner. Commissioner, can I just deal at the outset just with some basic housekeeping matters. Is that convenient?
PN11
THE COMMISSIONER: We might just take Mr Latham's appearance formally.
PN12
MS DOUST: I'm sorry, I'm sorry.
PN13
MR I LATHAM: If it please the Commission, my name's LATHAM, initial I. I appear for the respondent in this matter.
PN14
THE COMMISSIONER: Thank you.
PN15
MS DOUST: Sorry, I should have mentioned also the appearance of MR JACKA with me, that's J-a-c-k-a, initial A.
PN16
THE COMMISSIONER: So housekeeping, I think we're up to.
PN17
MS DOUST: Turning to the housekeeping matters. Commissioner, I think you should have on your file a copy of the application which has brought this matter to the Commission, the form F10. Do you have a copy of that, Commissioner, or should we supplement the record.
PN18
THE COMMISSIONER: We should have the application on file. I don't know how we got here if we didn't. Yes, we've got that.
PN19
MS DOUST: Yes, thank you. Commissioner, this is a dispute which arises under the skilled Port Botany and Fisherman Island Patrick Site Maintenance Enterprise Agreement 2012. It arises in circumstances where the respondent terminated the employment of a number of employees by reason of redundancy on 31 December 2014, and paid redundancy benefits pursuant to clause 15.4 of that agreement at around that time. The dispute really calls into question the entitlements of five employees, and I'll get to the material that deals with them shortly. The dispute essentially involves a couple of areas of entitlement which arise in the circumstances of redundancy. That is the question or the entitlement to accrued sick leave in the event of redundancy and whether or not that entitlement is conditioned by reference to a criterion of 10 years' service, and what indeed service means. In these proceedings we have a deal of evidence going to predecessor agreements, awards and indeed oral evidence concerning that issue.
PN20
The second issue is whether service as a casual employee is to be counted in the calculation for the purpose of redundancy benefits, payable under clause 15.4 and that's a matter where really the argument is confined to the terms of that clause. I should withdraw confined, it's focused more closely on the - just on the precise terms of that clause. Commissioner, you should have in the Commission's file the applicant's outline of submissions dated 5 June 2015.
PN21
THE COMMISSIONER: Dated 5 June, yes.
PN22
MS DOUST: 2015. There's also an agreed statement of facts prepared by the parties of that same date.
PN23
THE COMMISSIONER: Yes.
PN24
MS DOUST: Do you have that, Commissioner?
PN25
THE COMMISSIONER: Yes.
PN26
MS DOUST: There is a witness statement of William Giddins dated 5 June 2015.
PN27
THE COMMISSIONER: Yes, I have that.
PN28
MS DOUST: There's a tender bundle of documents and that has documents which bear the description on their first page, tab 1 through to tab 8, with tab 8 being the Stevedoring Industry Award 2010. I think - - -
PN29
THE COMMISSIONER: Which is actually behind tab 9.
PN30
MS DOUST: I have a replacement index, and I wonder whether it's convenient, Commissioner, if you'd like to hand the folder back down and Mr Jacka can re-organise the - - -
PN31
THE COMMISSIONER: Look, I've managed to deal with it, I've already marked a few pieces of it so I'm probably best to keep the version I've got.
PN32
MS DOUST: Can I apologise for the way in which that was provided to you, Commissioner. It's probably less than desirable. I think it may have been the case that in the folder of material that was received by your chambers, Commissioner, that an unsigned copy of Mr Giddins statement appears at the front of that folder, and I have an additional copy of that statement if that assists the Commissioner. I know that a signed copy was - - -
PN33
THE COMMISSIONER: I've got a signed copy and I'm not sure it's an original. It looks like a photocopy but it's signed.
PN34
MS DOUST: Yes, I think it was filed by way of a pdf sent by email. But that's convenient, Commissioner. If it's the case that you actually received the signed copy then I'm content. Commissioner, I wonder whether, subject to my friend's - he has some objections in relation to Mr Giddins' statement, I wonder whether those documents might be given a marking.
PN35
THE COMMISSIONER: Let's just confirm, I've got a supplementary witness statement from Mr Giddins as well.
PN36
MS DOUST: Yes.
PN37
THE COMMISSIONER: That's dated 9 July.
PN38
MS DOUST: Yes.
PN39
THE COMMISSIONER: And I've also got another witness statement of a Paul Keating.
PN40
MS DOUST: Paul Keating. Can I indicate this about that material, Commissioner. My friend tells me that Mr Dixon is not to be called by the respondent and so the evidence of Mr Keating was solely in response to Mr Dixon, so we don't rely upon Mr Keating in that event, so that won't form part of the - - -
PN41
THE COMMISSIONER: You'd better tell someone in Perth because we've been tee-ing up a video link to Perth for you.
PN42
MS DOUST: I appreciate that, it's only come to light recently, the situation with Mr Dixon. So far as Mr Giddins' supplementary
witness statement is concerned, in the circumstances which have arisen with Mr Dixon not being called, the applicant seeks only to
rely upon the third sentence of paragraph 5 and following from the words;
"I refer to paragraph 33 of my first statement", down to the end of that paragraph and the attached email.
PN43
THE COMMISSIONER: In terms of the supplementary statement - - -
PN44
MS DOUST: Yes.
PN45
THE COMMISSIONER: - - - that's all that's being sought to be - - -
PN46
MS DOUST: That's all that's being sought to be relied upon.
PN47
THE COMMISSIONER: "I refer to paragraph 33" et cetera, through to the end?
PN48
MS DOUST: Yes.
PN49
THE COMMISSIONER: Well perhaps the best way to deal with this might be to - I'll give Mr Latham obviously an opportunity but perhaps we could - we might be able to have the agreed statement of facts admitted, marked.
PN50
MR LATHAM: Yes.
PN51
THE COMMISSIONER: Then we might turn out attention to the witness statement of Mr Giddins and see what objections there are and I'll deal with that, and now that we've got an abbreviated supplementary witness statement of Mr Giddins, we'll hear whether there's any objection to any of that. Then looking at the material that's in this bundle of documents, it appears to be uncontroversial, it appears to be a whole variety of former awards and agreements.
PN52
MR LATHAM: Yes. We don't have any difficulty with any of those being put before the Commission.
PN53
THE COMMISSIONER: Right.
PN54
MR LATHAM: Commissioner, if there are people busy organising things in Perth perhaps - we don't have any objection to the Commissioner having - - -
PN55
THE COMMISSIONER: They're not awake there yet, just yet.
PN56
MR LATHAM: I see. I was just going to say if the Commission needs some time to contact them, we don't have any difficulty with that.
PN57
THE COMMISSIONER: We may have to break to do that at some point.
PN58
MR LATHAM: Certainly.
PN59
THE COMMISSIONER: Just to let them know not to worry but they might not be there just yet because it's two hours behind at the moment so it's just about 8 o'clock there. So we'll give them until say a bit before nine. That will be a bit before 11 our time and we might have to take a break then to make sure.
PN60
MR LATHAM: That's fine, Commissioner.
PN61
THE COMMISSIONER: I take it Mr Keating's not on his way to the Commission premises in Perth.
PN62
MR LATHAM: He's already in Perth, he's actually in - sorry - - -
PN63
MS DOUST: No, go ahead.
PN64
MR LATHAM: He's in Fremantle so we will - - -
PN65
THE COMMISSIONER: You can communicate with him and tell him what's happened.
PN66
MR LATHAM: Yes, that's okay.
PN67
THE COMMISSIONER: We'll communicate with the Commission staff.
PN68
MR LATHAM: Yes.
PN69
THE COMMISSIONER: Could we then - can we just - - -
PN70
MS DOUST: Can I - I'm sorry, just there's before moving onto the issue of objections, there's a couple of further documents I think that are relevant to the Commission's consideration of the matter and they are the form F16 and the form F17 that are taken off the Commission's records in relation to the agreement, the 2012/2015 agreement. They arise because the issue was - the issue of whether or not the Stevedoring Industry Award 2010 had application or covered the work carried out by the respondent and its employees is raised by the respondent in its submissions in this matter.
PN71
Now difficult to see how that can be advanced in the absence of evidence but in any event these are matters that should form part of the record I say going to that issue. It identifies the underlying award that was identified by the parties in the process for seeking approval for the purpose of the application of the better off overall test.
PN72
THE COMMISSIONER: Well I might get around to that if we need to, if there's a contest about those documents. They form part of the public record if they're documents which have been used for the purposes of application for approval of an enterprise agreement.
PN73
MS DOUST: Yes. Is it - - -
PN74
THE COMMISSIONER: But anyway, I mean, I'll give Mr Latham an opportunity to consider that but - - -
PN75
MS DOUST: Yes.
PN76
MR LATHAM: Commissioner, I can probably deal with it right now. If it was to be tendered I'd just require some time to read it. Can we just say about the application of the award. The position of the respondent is that it's clear on its face that the award itself does not apply but we don't dispute the fact that the enterprise agreement picks up provisions of the award, and those provisions are the subject of this application. So it's not really an issue unless the Commission was going to make some finding that the award applied, which it doesn't need to do for the purposes of these proceedings.
PN77
THE COMMISSIONER: But you don't take issue that the clauses of the award that have been referred to in the agreement - - -
PN78
MR LATHAM: That's correct.
PN79
THE COMMISSIONER: - - - are to be interpreted and then the subject of a contest in the matter.
PN80
MR LATHAM: That's correct.
PN81
THE COMMISSIONER: And capable of being determined.
PN82
MR LATHAM: Yes.
PN83
THE COMMISSIONER: Yes. The construction question isn't - - -
PN84
MR LATHAM: It doesn't require the award - the Commission to find that the award applies.
PN85
THE COMMISSIONER: Yes. That's what I - yes, all right. Well that might help.
PN86
MS DOUST: If that's not being contended by the respondent then that probably doesn't arise.
PN87
THE COMMISSIONER: It doesn't scuttle the jurisdiction of the Commission to give a determination in the matter. I think that's the important thing.
PN88
MR LATHAM: Yes.
PN89
MS DOUST: Well yes, we'd say it wouldn't have any impact. The question whether or not the award had coverage or application isn't something that would be taken into account then by the Commission in the task of interpretation.
PN90
THE COMMISSIONER: It's not relevant to - in terms of an argument that the Commission is deprived of jurisdiction or something in respect of the contested question so we'll deal with that.
PN91
MS DOUST: Yes.
PN92
MR LATHAM: Yes.
THE COMMISSIONER: Well can I just try and do some housekeeping then. If we take some of these documents. The first one's the agreed statement of facts which is dated 5 June 2015. We'll mark that as exhibit 1 in the proceedings. Exhibit 1 is the agreed statement of facts dated 5 June 2015. Exhibit 1.
EXHIBIT #1 AGREED STATEMENT OF FACTS DATED 05/06/2015
PN94
Perhaps I should deal with the witness statement of Mr Giddins next. There are objections to some points in that, Mr Latham.
PN95
MR LATHAM: Yes, Commissioner. I sent through or hopefully sent through a copy of the objections last night or yesterday afternoon. Did your Honour get them?
PN96
THE COMMISSIONER: You probably did but I haven't read them yet.
PN97
MR LATHAM: Sorry, can I just hand them up? They're essentially - - -
PN98
THE COMMISSIONER: I've got them somewhere, I'm sure, because I was alerted to them but I'm sorry I didn't get around to looking at them.
PN99
MR LATHAM: No, no, that's all right.
PN100
THE COMMISSIONER: Here we are.
PN101
MR LATHAM: Could I - we don't need to deal with the objections to the witness statement of Mr Keating. In relation to the statements of Mr Giddins, the point's just a very simple one. It is clear that the background to the making of an instrument may be relevant to determine the meaning of the words in the instrument. There's no question about that. We are looking here at - in relation to the award provisions an instrument that was essentially made in 1991.
PN102
What the Commission and the courts have made clear and I'll take the Commission to this in just a moment, is that what the parties or others since that time think or have done is not relevant to the meaning of those words. It's just that simple point. On that basis, we say all of the objections made in the sheet that's been given are objections really that that evidence is irrelevant and it is.
PN103
Can I just say this; the Commission is not bound by the rules of evidence, that's clear, but what is also clear too is that the Commission cannot take into account irrelevant material because if it did it would fall into jurisdictional error. The argument's simply that if that material is irrelevant then the Commission can't have regard to it and should not do so.
PN104
There are three much small objections in relation to a question of hearsay or the understanding of Mr Giddins. The Commission has also made clear, while the rules of evidence do not apply, that the Commission should be very reluctant to take into account material that is clearly hearsay, and the material here is definitely of that order.
PN105
Can I just go to just one decision. I've bought a bundle of cases up, if I could just hand that up. These are referred to in the written submissions but if I could just take the Commission to this precise point. In the second document which is a decision of the Commission, DP World v Maritime Union of Australia which you'll see at tab 2, and that's [2014] FWCFB 7889 at 245 IR 384. At paragraph 34 the Full Bench there has really summarised the authorities in relation to the interpretation of agreements. Do you have that, Commissioner?
PN106
THE COMMISSIONER: Yes.
PN107
MR LATHAM: You'll see at 34 it goes through the - this is a very good summary of the process - goes through the process of interpretation but specifically you'll see at paragraph 3:
PN108
Regard should not be had to the subjective beliefs or understandings of the parties about their rights and liabilities.
PN109
That's also referred to in Brambles which is referred to in the submissions. But the point is this simply, what Mr Giddins may or may not think about the meaning of the agreement is really irrelevant, and any transactions after the creation of these instruments is irrelevant. On that basis we say that material's just simply not admissible at all. Even in a tribunal it doesn't deal with the laws of evidence.
PN110
THE COMMISSIONER: Is there a slightly different approach to the interpretation of an award as opposed to an agreement?
PN111
MR LATHAM: That's a very interesting point, Commissioner. There is a decision of Finkelstein J that deals with that point and in fact I've attached it. He says that as a matter of logic there should be, but he says the authorities actually say that there isn't. The argument really goes to this sort of debate. He says that an award is really a piece of delegated legislation and therefore should be looked at in terms of sort of statutory construction. He says an enterprise agreement has similarities with that course as well but he says the authorities do say that an enterprise agreement should be really looked at similarly to an award.
PN112
I'll just take your Honour to them - - -
PN113
THE COMMISSIONER: I'll just raise this, in terms of the point you raise here about the subjective beliefs. "The subjective beliefs of the parties to an agreement", how does that have application to an award?
PN114
MR LATHAM: We say the subjective beliefs of the parties to an agreement, except so far as it goes to the actual creation of the award in the first place, as no relevance at all.
PN115
THE COMMISSIONER: Right.
PN116
MR LATHAM: Could I just - perhaps we might go to the point. Could I take the Commission to the last tab which is - I always get this confused - AFMEPKIU v Skilled. This was a surprisingly overlooked decision but in it Finkelstein J in the Federal Court actually goes through the principles of interpretation and you'll see at paragraph 13 of that - sorry, I just should mention the citation. That's - it doesn't seem to have one - sorry, [2003] FCA 260. You'll see at paragraph 12 his Honour says:
PN117
On one view -
PN118
This is in the third sentence -
PN119
On one view a certified agreement is no different from a private contract.
PN120
Then his Honour goes onto say:
PN121
On this view the ordinary rules according to which a term can be implied into a contract will apply to a certified agreement.
PN122
You'll see at paragraph 13, his Honour goes onto say:
PN123
At alternate view is that a certified agreement is not a mere contract but an instrument which seeks in a way to legislate for the terms and conditions in much the same way as an award.
PN124
So they're the two sort of alternate views and then he says at paragraph 14, in the first sentence, which we don't really need to go to:
PN125
A third possibility which derives from the fact that we are dealing with an agreement which has been certified by the Australian Industrial Relations Commission is to apply by analogy the approach taken to the construction of court orders.
PN126
Then his Honour concludes with some scepticism I think, at paragraph 15, that:
PN127
The prevailing view seems to be that the rules applicable to the construction of contracts should be applied to both awards and certified agreements.
PN128
Then he sets out what that means in the context of that case. Now if the Commission then goes on to paragraph 20, he says:
PN129
Surrounding circumstances are admissible in all cases in order to place the contract in its correct setting -
PN130
then goes through a number of English authorities in relation to that and you'll see that those authorities say that one looks at the words of the instrument but also the surrounding circumstances as at the time that those words were drafted. That's specifically clear in the case of Pren you'll see there. Particularly his Honour goes onto say:
PN131
Evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract.
PN132
So in award terms or enterprise agreement terms one can go back to the original wording of the award or enterprise agreement, and one can look at the circumstances that took place at that moment but after that time, whatever the parties say or think really is irrelevant. You will see that's specifically made clear at paragraph 21. You'll see at paragraph 22 or sorry at paragraph 21 his Honour says:
PN133
That intention can manifest itself not only from words used but from words considered in light of the circumstances surrounding the transaction.
PN134
By the word "transaction" his Honour means the making of the contract in the first place. He states in this case:
PN135
The circumstances to which the employer wishes to refer do not surround the transaction, they cast no light on the genesis of the certified agreement and are so far removed from the agreement that they could not on any view speak of the genesis or aim of the transaction.
PN136
His Honour states:
PN137
While the evidence was received I pay it not attention.
PN138
So his Honour is saying that that material is just irrelevant, and his Honour's view is correct. I didn't have anything further, Commissioner.
PN139
THE COMMISSIONER: So these various paragraphs which involve evidence about conduct not of the - well, this is where it becomes a little bit difficult because here we have a circumstance where the parties to the contract, if that's the agreement - - -
PN140
MR LATHAM: Yes, yes.
PN141
THE COMMISSIONER: - - - simply say well for these purposes look elsewhere.
PN142
MR LATHAM: Yes.
PN143
THE COMMISSIONER: We have to interpret the elsewhere. How then would the conduct of the parties elsewhere, I suppose, in respect of what we're looking at and looking at the award because the parties have said, and I think there's no dispute, on this question look at the award.
PN144
MR LATHAM: Yes.
PN145
THE COMMISSIONER: Whatever that might contain. It's a leap of faith to some extent because what if the award changes, you've lost complete control over it. The parties are effectively conceding control of this question to whatever the award says.
PN146
MR LATHAM: Yes.
PN147
THE COMMISSIONER: So then we look at well, what's relevant to the interpretation of the award.
PN148
MR LATHAM: Yes.
PN149
THE COMMISSIONER: The award is not a contract.
PN150
MR LATHAM: Well the award is to be interpreted as a contract and that's what his Honour says. Could I just explain how the relevant evidence might have been adduced. The way it might have happened is the union could have put on evidence as to what happened in the negotiations in 1991 or in 1990 that led to this award provision and that evidence would be relevant, we accept that. So they could, for example, call the negotiators to that award who could give evidence as to what the purpose of this particular clause was. They could do that. But they cannot say we have evidence that shows this is the way that the parties have interpreted this clause since that day because that evidence would not be relevant. They don't even seek really to do that.
PN151
What they say is we seek to adduce evidence as to what other parties have done in relation to this and on that basis, we say as the applicant that that should affect the definition of the award clause and that is just clearly not correct. Now could I just say, and this is no secret, it's set out in our submissions relatively clearly. None of the evidence that the union has put forward goes to what happened in the negotiations in 1991 except in the most obscure and hearsay way.
PN152
Frankly, almost all of the evidence of Mr Giddins, apart from where he refers of course to documents that are non-controversial, almost all of the evidence of Mr Giddins was just irrelevant. Perhaps in the scale of irrelevancy, references to what other parties might have done is even more irrelevant if one can be more irrelevant than irrelevant.
PN153
THE COMMISSIONER: Yes. I suppose here what - because we've not been bound by the rules of evidence, the general approach has been to admit material even if it was identified as being of marginal relevance.
PN154
MR LATHAM: Yes.
PN155
THE COMMISSIONER: But if it is completely irrelevant of course - - -
PN156
MR LATHAM: Yes, that's correct, Commissioner.
PN157
THE COMMISSIONER: It has to be disregarded and there is a problem if it appears that irrelevant material has been used to determine the outcome.
PN158
MR LATHAM: Yes, Commissioner. I think that's a fair approach. Could I just say this, these are quite complex issues. The tribunal certainly has aspects of an inquisitorial body as opposed to an adversarial body like a court and an inquisitorial body has got very large discretion to accept evidence. So even the most marginally relevant evidence should probably be accepted, although it may be given no or little weight. But we say this is beyond that, we say this evidence is utterly irrelevant and could not be taken into account at all.
PN159
The course that Finkelstein J seems to have taken in the case referred to there was that the evidence seems to have been admitted but he says even though it has been admitted I will not take it into account at all, and if the Commission took that view it would be difficult to argue that position. But the Commission would need to be very careful that it didn't take any of that material into account.
PN160
THE COMMISSIONER: This irrelevant material is most potentially troubling in respect of what we might describe as subsequent conduct of the parties or others that are covered by the award, even though they might not be parties to the agreement here. It's the other provisions and the people that are covered by it and effectively applying it in a practical sense, their conduct is irrelevant to the task of interpreting and properly construing the provisions that - - -
PN161
MR LATHAM: That's correct, Commissioner, yes.
PN162
THE COMMISSIONER: Ms Doust.
PN163
MS DOUST: Yes, if I can deal with the objections as they proceed paragraph by paragraph. Can I say this at the outset, it will be the applicant's contention in this case that the source of 23.2 of the current award is 28F of the 1991 award. That's how the applicant's argument progresses.
PN164
Can I just ask you, Commissioner, to turn up that award in the bundle, it's under tab 1, and just turn up 28F. Now it's the contention of the applicant that the terms of 28F show clearly that the entitlement that was prescribed by the 1991 award did not involve the application of this 10 year limitation on the payment of accrued sick leave in the event of redundancy.
PN165
So we say that that's something that the Commission would take simply from a plain reading of that clause, and that the Commission wouldn't need to have regard to any other evidence in order to form that conclusion. What follows thereafter following the making of that award is the history throughout the 1990s, which we say supports the conclusion that the industry award was interpreted by parties within the industry as - consistent with how the applicant contends the counterpart clause currently applies. That is there was no 10 year limitation. So that's what we say the history is in the 1990s.
PN166
If we then go to the point of award simplification in 1999 and you have behind tab 2 the decision of Marsh SDP dated 3 August 1999, we say and I'll address this in detail in my final submissions, that what's happened here has been a redrafting of the award by consent. So even if there is an interesting issue as to the - whether or not one would apply the same interpretation principles to an award as one would to an enterprise agreement, in the current circumstances a great deal of the award has been produced by consent of the parties. So that similar principles apply for that reason.
PN167
The ultimate question that the Commission will need to answer is what is the meaning of clause 24.6.4 and where it refers to clause 23.2 of the Stevedoring Industry Award, what's being adopted there - now one of the contentions that we say about all of this material is that the operation of these clauses, the interpretation of these clauses, was a notorious fact if you like of which the knowledge of each of the parties would be presumed. Can I hand up to the Commission a copy of the decision of the Full Bench in Australasian Meat Industry Employees Union v Golden Cockerel which has dealt recently with or relatively recently with the question of the sort of extrinsic evidence that may be considered in the interpretation of an enterprise agreement.
PN168
The principles are set out at paragraph 41 of that decision, Commissioner. So their one has the principles about the Acts Interpretation Act doesn't apply to construction of an enterprise agreement. The first step is determining whether an agreement has a plain meaning or contains an ambiguity and we say that in the process that you will undertake in these proceedings, Commissioner, you may well conclude having regard to clause 24.6 and what it provides shall apply under this agreement, you may consider that there is an ambiguity in the meaning there. In those circumstances, you may have regard, consistent with paragraph 5 of the summary at paragraph 41 of the decision, to evidence of the surrounding circumstances. That includes:
PN169
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.
PN170
Subject matter of the agreement being an important element there. Secondly:
PN171
Notorious facts of which knowledge is presumed.
PN172
Third:
PN173
Evidence of matters in common contemplation and constituting a common assumption.
PN174
Can I say it's important to note in relation to paragraph 6 that evidence as to the surrounding circumstances, the examples there are not exhaustive. They are part of an inclusive list if you like and it's that objective framework of fact that may be had regard to.
PN175
So having regard to those principles, can I turn to the paragraphs of Mr Giddins' statement and address that in turn, address them in turn. My friend's first objection is to paragraph 41 - I'm sorry paragraph 14, the second sentence onwards. There Mr Giddins' evidence goes to the way in which clause 28F, that is the predecessor clause in the 1991 award was interpreted within the industry. Of course Mr Giddins says that from a position where given his role and given his knowledge of the industry, he's a person who's in a position to know.
PN176
We say that how the clause operated is part of the objective framework of fact and we say it demonstrates a notorious fact of a matter that constituted a common assumption in the negotiation of the 2012 agreement. That is that the relevant clause and its predecessors had always operated in the way that's contended for by the applicant. So one looks at the question at the point at which the agreement is being negotiated and asks the question what were the matters that must have been in the mind of those parties, and one can have regard to the history of that award clause as being something that inevitably those parties must have had in mind when they incorporated the clause across. So that's one way to look at the matter in these proceedings.
PN177
The second way is to focus specifically on the point in time at which the award is being made and so one can look at the point at which the award changed in the award simplification process in 2000 and can apply the same approach. But that's what we say about the relevance of paragraph 14, those two sentences. I don't know whether you wish to rule piecemeal Commissioner, or you wish to hear me in relation to the rest of the paragraphs.
PN178
THE COMMISSIONER: Don't I run the risk here of being influenced by the conduct of the parties after the agreement - well it's actually in the - it's conduct which precedes the making of the agreement.
PN179
MS DOUST: Yes.
PN180
THE COMMISSIONER: But is after the making of the award in its original - well, so far as we can its original manifestation, 28F.
PN181
MS DOUST: Yes.
PN182
THE COMMISSIONER: How does that fit into the scheme of this because when you look at - there's a more recent decision after Golden Cockerel that's from March of this year, I think, Endeavour Energy - it's not Endeavour, it's one of - anyway - - -
PN183
MS DOUST: Essential.
PN184
THE COMMISSIONER: Essential Energy, that's the one.
PN185
MS DOUST: Yes.
PN186
THE COMMISSIONER: That makes it quite clear that this is very dangerous territory to look at this conduct of parties after the terms have been established.
PN187
MS DOUST: Well we're saying - we're not asking you to look at that conduct for the purpose of construing the 1991 award. We say the 1991 award is clear on its face.
PN188
MR LATHAM: Well then none of this material is irrelevant. If that's my friend's position - - -
PN189
MS DOUST: I think I was extremely quiet while my friend made his submissions and so I'd thank him if I might be allowed to just complete mine without interruption.
PN190
We say the 1991 award is clear on its face but as part of the history of the objective facts in the minds of the negotiators at 2012, the history of that provision in the industry was a relevant matter. So in effect we say it was the notorious fact that the predecessor provisions had a particular application. There are no examples of the contrary view - - -
PN191
THE COMMISSIONER: But I don't need to know about what actually occurred. It's sufficient to say re 28F, how could it be interpreted in any other fashion than there are a series of qualifications to get this. They're all separate.
PN192
MS DOUST: Yes, yes.
PN193
THE COMMISSIONER: The 10 years doesn't apply to all of them, it only applies to resignation.
PN194
MS DOUST: Yes.
PN195
THE COMMISSIONER: Now if that's the case and you say on its face that's how it looks - - -
PN196
MS DOUST: Yes.
PN197
THE COMMISSIONER: - - - I don't need evidence of what happens after that.
PN198
MS DOUST: Well what it does it forms a part of a chain of evidence leading up to 2012. It might be that that - it's not a test of relevance whether or not you need the evidence to form a conclusion. It's a test of relevance whether or not that evidence might rationally support a particular fact ultimately being established and the fact that we ultimately seek to establish in these proceedings is that as at 2012, nobody in this industry could have taken the contrary view about the operation of clause 23.2, having regard to the history.
PN199
That is one of these notorious facts that's referred to in paragraph 6. Now a fact doesn't become notorious by reason that something has happened once, it becomes that way because of a history. So it is the history that goes back to the 1990s, the history that continues after 2000 that is relevant to reaching that conclusion, Commissioner.
PN200
THE COMMISSIONER: Well in respect of that sentence I'm being - I'm prepared to admit it but I can indicate to you that I think that I'm likely to have no regard for it.
PN201
MS DOUST: I appreciate the view that you - - -
PN202
THE COMMISSIONER: I'm just being very cautious about this idea. It sort of - it flies in the fact of a lot of what's happened with agreement interpretation.
PN203
MS DOUST: I appreciate what you're saying, Commissioner. What this is, is a somewhat different situation.
PN204
THE COMMISSIONER: It's slightly different. The configuration of agreement, the award and the timing is all a little bit different, I accept that.
PN205
MS DOUST: Yes, it's different - - -
PN206
THE COMMISSIONER: For that reason only I think I'm prepared to leave it in there, but I'll look at this very, very carefully and I'm just conscious of this idea that well, who's to say that at any stage people that were interpreting this and applying it were doing it correctly.
PN207
MS DOUST: No, I - - -
PN208
THE COMMISSIONER: That's the dilemma you face.
PN209
MS DOUST: I accept that and ultimately there's a question about what the 1991 award meant. But this is, we say, slightly different to your normal situation where you're talking about - - -
PN210
THE COMMISSIONER: See this is happening in an arena that you say the parties to the 2012 agreement are conscious of.
PN211
MS DOUST: Yes.
PN212
THE COMMISSIONER: You say that's a notorious factor. This is what's going on out there.
PN213
MS DOUST: Absolutely.
PN214
THE COMMISSIONER: It's not treated in the same way as the parties then after 2012 operating the - I can see the chronology being - - -
PN215
MS DOUST: This is not the very agreement that we called to be interpreted we're asking you to take into account subsequent conduct. This is not like that example.
PN216
THE COMMISSIONER: It is still subsequent conduct in respect of the award.
PN217
MS DOUST: In respect of the 1991 award.
PN218
THE COMMISSIONER: Yes.
PN219
MS DOUST: But it also provides, Commissioner, it's also relevant. It's difficult when one looks at these paragraphs in isolation because if we go to - I'm sorry, I think the next - my submissions are the same in respect of the next objection, which is paragraph 21 and again we say this goes to the existence of that notorious fact about the award provision providing for the payment of accrued sick leave without any 10 year limitation, in the event of redundancy.
PN220
THE COMMISSIONER: This is the subjective view of this individual as to the - and apparently the understanding of the union.
PN221
MS DOUST: It's not simply that. It goes to the absence of any contention by parties within the industry that clause 28F was to be read in the more limited way, which is contended for by the respondent.
PN222
THE COMMISSIONER: I think there has to be a difference here when you look at whether this is able to be considered as a concept of a notorious fact as opposed to evidence which supports an interpretation that is consistent with the construction that you advance.
PN223
MS DOUST: Yes. Well - - -
PN224
THE COMMISSIONER: I think there's two slightly different things here.
PN225
MS DOUST: Well we are not putting this forward as evidence of these parties operating in a way consistent with the particular interpretation of clause 24(6) of the 2012 agreement. That's not how this is advanced. It's not subsequent conduct, it is conduct in relation to the 1991 award and the fact that that award was consistently applied in a particular way, across the industry in the event of redundancy, and that there was an absence of contention for the contrary view establishes, we say, the notorious fact that this is the award standard. All of that is knowledge that leads up to the point in 2012 at which the agreement's made.
PN226
THE COMMISSIONER: But this goes beyond notorious fact, this goes to a subjective view of the deponent. I'm not sure whether that's really - - -
PN227
MS DOUST: No, it's going to the question - I'm sorry, at the outset Mr Giddins narrates his understanding at the time and we don't say that the fact that he understood something is relevant except to the extent that he - it only really becomes relevant once one adds the balance of the paragraph, which is about the absence of any employer contending for the contrary view during the process of widespread redundancies at Patrick, P&O Ports and other waterfront companies.
PN228
So the way in which his understanding is relevant is this; he took a particular view therefore you would conclude, Commissioner, that if someone had have been taking, advancing the contrary view in the process of redundancies that that is something that Mr Giddins would have become aware of because he was alive to the issues at that time. So one doesn't give weight to his understanding in support purely of the question of the interpretation that should be adopted. One gives weight to it as demonstrating that he is a reliable witness as to what was the industry practice and approach at that time.
PN229
THE COMMISSIONER: Mr Latham, do you want to add anything further in respect of this part? There's two slightly different things at work here.
PN230
MR LATHAM: There are.
PN231
THE COMMISSIONER: That's because of the unusual situation here where we've got the agreement.
PN232
MR LATHAM: Correct.
PN233
THE COMMISSIONER: The agreement being made some considerable time after the award originally established the changes in terms of its terminology with the award simplification, and then this is evidence about - that's been put here, not about conduct of the parties after the agreement was made but in a period before they make the agreement, about how they treated the award term.
PN234
MR LATHAM: Yes.
PN235
THE COMMISSIONER: So it's a slightly different and more complex factual scenario.
PN236
MR LATHAM: It is. It is, Commissioner. It's more complex but can I just put it like this. It's exactly the same as if a statute had been amended on a number of different occasions or even repealed and remade, but the wording was essentially the same as the statute in 1910. Now if there's extraneous material as to the meaning of the statute in 1910, that material would be relevant, or may be relevant. If there is no extraneous material as to any of the amendments that shows that the meaning has changed, one still has to go back to the statute in 1910 and that material. Anything since then is irrelevant.
PN237
Just to take that analogy a bit further, if the Full Federal Court had said in 1911 this is what the statute means, and everyone had worked on that basis or if there had been no decision in 1911 and everyone worked on a particular basis, and then the High Court came out in 1999 and said well, you're all wrong, the original meaning - sorry, the original meaning ascribed by various people for that 100 year period would be entirely irrelevant. That's where we're at here.
PN238
See the point is this, my friend's case is that there was wording agreed in the 1991 award and that that wording hasn't really changed. There are some marginal changes to the order of words and to some punctuation. My friend doesn't say that any of that has any particular effect. My friend still has to go back to what is the meaning of the 1991 award and if my friend had evidence in relation to those negotiations and those discussions, that material might well be relevant. But none of that material is before the Commission.
PN239
It's surprising given that the applicant or at least a predecessor to the applicant was involved in those negotiations. It seems astonishing that that material is not before the Commission.
PN240
THE COMMISSIONER: I think I'll treat the sentences appearing in paragraph 21 of the witness statement of Mr Giddins in the same as I did with the earlier objection; that is that I'm going to with a great degree of hesitation permit that material, but I stress that I see it as being material which is irrelevant to the construction that should be given to the terms of the 1991 agreement, clause 28F.
PN241
MR LATHAM: Yes.
PN242
MS DOUST: Commissioner, the next paragraph is paragraph 23 and my friend refers to the last two sentences. I've already touched on this already. This deals with the award simplification process that was undertaken pursuant to the Workplace Relations Act, under the auspices of the Commission in 1999/2000. What this evidence shows about the agreement between the parties, about not making any new or different claims in respect of the award shows the subject matter of the agreement that was reached between the parties in that process.
PN243
Ultimately, I'll have some submissions to make once the Commission or when the Commission reads through the decision of Marsh SDP in relation to the making of that simplified award, that what one discerns from the senior deputy president's decision is an absence of any determination in relation to this issue, and what we have here is evidence as to the absence of any claim or counterclaim or agreement between the parties that any change was to be affected to clause 28F effectively.
PN244
What this shows really is the subject matter of the agreement and you're entitled to have regard to that in considering the construction of the award as it was promulgated at that time, because as we say Marsh SDP's decision shows much of it was done by consent between the parties. So similar principles about agreement construction apply.
PN245
MR LATHAM: Commissioner, I might be able to resolve this bit. If all that's being said is that these changes were made by consent, and I think that's now all that's being put, I don't think I've got a difficulty providing that my friend shows the part of the decision of the senior deputy president that refers to that, we could probably move on.
PN246
MS DOUST: Well - - -
PN247
THE COMMISSIONER: Well you don't quarrel with that do you? You say these changes were made by consent.
PN248
MS DOUST: The changes were made by consent but the evidence - I do press the evidence at the end of that paragraph because it shows the content of the parties' agreement, if you like. What was the subject matter.
PN249
THE COMMISSIONER: It's a question of what you imply from all that.
PN250
MR LATHAM: Yes.
PN251
MS DOUST: That's ultimately a matter for final submissions, in my submission.
PN252
THE COMMISSIONER: It's been described as hearsay. I supposed to some extent it is, isn't it?
PN253
MS DOUST: No, I say it's evidence of a mutuality of purpose because if that's the stated position in the negotiations - - -
PN254
THE COMMISSIONER: We don't know what the purpose is. The purpose is almost unknown because it's just a case where the parties say we're not changing anything.
PN255
MS DOUST: It's an absence of purpose that is the relevant matter to be taken from that.
PN256
THE COMMISSIONER: Yes. Perhaps there's something that can be implied by that but yes, all right, well look I think in the circumstances although I note the objection I'm not going to rule those last sentences out.
PN257
MS DOUST: Yes. I note that it's just after 11, Commissioner, and I wonder - - -
PN258
THE COMMISSIONER: We'd better break and try to - - -
PN259
MR LATHAM: Yes, Commissioner.
PN260
MS DOUST: Yes.
PN261
THE COMMISSIONER: We'll take 10 minutes, perhaps we'll take the morning break now.
PN262
MR LATHAM: Yes, Commissioner.
PN263
THE COMMISSIONER: We'll resume again in 10 or 15 minutes.
SHORT ADJOURNMENT [11.05 AM]
RESUMED [11.23 AM]
PN264
THE COMMISSIONER: All right, well Perth's been advised of the absence of any requirement to do what they were scurrying around doing, so that's all fixed. I think, Ms Doust, you were part way through dealing with one of the objections here.
PN265
MS DOUST: Yes, I'm not sure where you'd ruled, Commissioner, on paragraph 23, but I think the last words might have been, it was the absence of any identification of that matter as being an issue which was being addressed. That is the matter that we contend.
PN266
MR LATHAM: I thought they'd been admitted.
PN267
THE COMMISSIONER: I've admitted it, yes.
PN268
MS DOUST: I'm sorry. Well then, can I move on to paragraph 24? The basis of the objection to that is hearsay. Can I say- - -
PN269
MR LATHAM: Commissioner, it's the same argument. We're happy for the same ruling, if that helps.
PN270
THE COMMISSIONER: Yes, well I think we'll deal with it in the same fashion then. I'll admit it.
PN271
MS DOUST: And 25 is in the same category, in my submission, your Honour.
PN272
THE COMMISSIONER: Once again, I'll admit it, but I do so having identified the nature of this material and how it's going to be treated. I don't think I need to keep repeating it.
PN273
MR LATHAM: No.
PN274
MS DOUST: No, your Honour I'm sorry, Commissioner. Commissioner, the next objection was paragraph 33, the seventh sentence onwards. This is a further relevance objection. That's pressed, again on the basis that we say it shows the, if you like, the notoriety of the operation of clause 23, that it was notorious in the industry that this was how clause 23.3 operated, which must have been something that was known to the parties at the time of entering into the 2012 agreement.
PN275
THE COMMISSIONER: I can't go to saying then that clause 23.3.6(a) or the predecessor, 28.4, was necessarily to be interpreted or the construction question should be resolved in favour of the way in which people were doing it. That's the critical point, I think.
PN276
MS DOUST: Yes.
PN277
THE COMMISSIONER: Yes.
PN278
MS DOUST: It comes into play for a different purpose.
PN279
THE COMMISSIONER: Different reason.
PN280
MS DOUST: It goes to that question of notoriety as to what the parties at 2012 understood.
PN281
THE COMMISSIONER: I'm sure you'll give me some submissions on this, but I'm not really sure what I understand to be a notorious fact, but I'm sure I'll get to that later in the matter.
PN282
MS DOUST: Well, paragraph 34 falls into the same category then, if that's admitted on the same basis.
PN283
THE COMMISSIONER: Yes, well once again, I'm going to admit it on the same basis here, that it's not being treated in any way as material that goes to the question of the correct construction that should be given to the provision. It's going to the question of what you say is a notorious fact that would have been known to the parties when they made the agreement in 2012.
PN284
MS DOUST: Yes, yes.
PN285
THE COMMISSIONER: And that's a different question but, as I say, just whether I can whether I ultimately say well, that is a notorious fact, is something that I'm quite interested to hear about.
PN286
MS DOUST: And I'll ultimately address that by way of submission.
PN287
THE COMMISSIONER: Yes.
PN288
MS DOUST: That is then that's the objections, I think.
PN289
THE COMMISSIONER: All right.
PN290
MS DOUST: Save, I think, my friend still object to paragraph 5 of Mr Giddins' supplementary statement, but that, of course- - -
PN291
THE COMMISSIONER: Let's get to that in a minute. Now, let's deal with the first one. This is just a witness statement of Mr Giddins, which is dated on 5 June.
PN292
MS DOUST: 5 June 2015.
PN293
THE COMMISSIONER: And the objections having been dealt with, the statement will be admitted and marked well, sorry, is Mr Giddins going to be called or is that- - -
PN294
MS DOUST: Yes, Mr Giddins is present, Commissioner.
PN295
THE COMMISSIONER: All right, well I guess we'll deal with it once he's been sworn or affirmed. And in other words, the objections that have been raised have been noted and dealt with and then, in terms of the supplementary witness statement- - -
PN296
MS DOUST: Yes.
PN297
THE COMMISSIONER: - - -which is not just confined to- - -
PN298
MS DOUST: That part of paragraph 5.
PN299
THE COMMISSIONER: Which starts, "I refer to paragraph"- - -
PN300
MS DOUST: Refer to paragraph 33, yes.
PN301
MR LATHAM: Commissioner, we're happy for the same ruling to be made in relation to that paragraph, so we don't have to have the same debate.
PN302
THE COMMISSIONER: All right, very well. Okay, so we'll do exactly the same in respect of that. All right, so we're up tot calling Mr Giddins, is that where we're about to get to?
PN303
MS DOUST: Yes, I call Mr Giddins. Can I indicate, Commissioner, at the outset, in relation to Mr Giddins giving his evidence that it would be appreciated and I've spoken with Mr Latham about this, that because Mr Giddins has some difficulties with hearing, if you Commissioner, could bear that in mind in addressing any questions to Mr Giddins, to keep your voice up, if you like.
PN304
THE COMMISSIONER: My wife tells me I've got a loud voice and I should try and keep it lower.
PN305
MS DOUST: I'm fearful to wade into the territory of contradicting your wife.
PN306
THE COMMISSIONER: Yes, don't do that.
PN307
MS DOUST: But perhaps just for the purposes of this morning, Commissioner.
PN308
THE COMMISSIONER: All right.
MS DOUST: Thank you, I call William Giddins.
<WILLIAM JOHN GIDDINS, SWORN [11.29 AM]
EXAMINATION-IN-CHIEF BY MS DOUST [11.29 AM]
PN310
MS DOUST: Thank you. Mr Giddins, is your name William John Giddins?‑‑‑That's correct.
PN311
And you're currently retired, but prior to your retirement, were you a National Legal Officer for the Maritime Union of Australia?‑‑‑That's correct.
PN312
And can you just tell the Commission when exactly you retired?‑‑‑I took a long period of long service leave and annual leave, but I retired about 12 months ago.
PN313
Yes, thank you?‑‑‑Approximately.
PN314
And have you prepared a statement for the purpose of these proceedings dated 5 June 2015?‑‑‑I have.
PN315
And do you have a copy of that with you in the witness box?‑‑‑I do.
*** WILLIAM JOHN GIDDINS XN MS DOUST
PN316
And do you say that that statement is true and correct to the best of your belief and knowledge?‑‑‑It is.
PN317
I tender that.
THE COMMISSIONER: Yes, the document is tendered, the objections having been noted and dealt with earlier, this will be marked as Exhibit 2. And Exhibit 2 is described as the witness statement of William Giddins dated 5 June 2015 Exhibit 2.
EXHIBIT #2 WITNESS STATEMENT OF WILLIAM GIDDINS DATED 5 JUNE 2015
PN319
MS DOUST: Yes. And Mr Giddins, did you also prepare what's described as a supplementary witness statement of William Giddins dated 9 July 2015?‑‑‑I did.
PN320
Do you say that that statement is true and correct to the best of your belief and knowledge?‑‑‑It is.
PN321
I tender that along with the annexure.
THE COMMISSIONER: Yes. That statement, which has now been amended so that it commences and contains only that part which is commencing at the second sentence at paragraph 5, is the document which is tendered and admitted and is marked as Exhibit 3. And Exhibit 3 is described as the supplementary statement of William Giddins which is dated 9 July 2015 that's Exhibit 3.
EXHIBIT #3 SUPPLEMENTARY WITNESS STATEMENT OF WILLIAM GIDDINS DATED 9 JULY 2015
PN323
MS DOUST: Thank you, Commissioner.
THE COMMISSIONER: Nothing further in-chief. Cross-examination Mr Latham?
CROSS-EXAMINATION BY MR LATHAM [11.32 AM]
PN325
MR LATHAM: Mr Giddins, just tell me if I'm not speaking loud enough?‑‑‑I can hear you.
*** WILLIAM JOHN GIDDINS XXN MR LATHAM
PN326
Okay, and I won't be very long. Mr Giddins, you talk in your statement about an award made in 1991, the Stevedoring Award?‑‑‑I do.
PN327
You weren't involved in the negotiations that led to the making of that award, were you?‑‑‑No, I was not.
PN328
Okay. And you also talk about an award made in 2001. Were you involved in the negotiations for that award?‑‑‑I was.
PN329
And your evidence is, is that there was no claim made by either side for increased benefits as part of that award?‑‑‑Either increased benefits or concession by either side, and that's correct.
PN330
Now, you also talk about the EBA provisions, or sorry, the EBA negotiations in 2008?‑‑‑Correct.
PN331
And you were involved in those negotiations, were you?‑‑‑I led those negotiations on behalf of the union.
PN332
Okay. And there had previously been an EBA with Transfield, who was the former employer?‑‑‑There'd been an EBA with Transfield and a predecessor to Transfield, a company called Fluor Daniel.
PN333
Okay, but you weren't involved in those negotiations?‑‑‑Not directly. In relation to the Transfield agreement, I gave some advice to the Deputy National Secretary as to the agreement involved, but I was not directly involved in the negotiations.
PN334
Right, but the essence of those negotiations in 2008, was also that there was essentially no change to the provisions sorry, I withdraw that. Neither side sought concessions or benefits under those agreements?‑‑‑In the 2008 agreement?
PN335
Yes?‑‑‑There were significant changes.
PN336
Sorry, I withdraw the question. Changes in relation to this particular clause we're talking?‑‑‑That's correct.
PN337
Okay?‑‑‑No changes in relation to the way sick leave was applied.
*** WILLIAM JOHN GIDDINS XXN MR LATHAM
PN338
Can I just ask you three questions? The proposal by the union in relation to sick leave would allow the cashing out of the sick leave upon termination, wouldn't it?‑‑‑I wouldn't call it cashing out, it would form part of the termination payment.
PN339
Yes, okay. But let's use a phrase like that. It would mean that accrued sick leave would be paid out as part of the termination payment?‑‑‑Correct.
PN340
Is that correct? Okay. And in relation to sick leave, in your experience, what is the purpose of sick leave?‑‑‑Sick leave is a payment when you're absent from work as a result of illness or injury, to compensate you for payment during that absence.
PN341
I see. I don't have any further questions, Commissioner.
PN342
THE COMMISSIONER: Anything further?
PN343
MS DOUST: Nothing arising.
THE COMMISSIONER: Very good. Thank you for giving your evidence. You're released and discharged. Thank you?‑‑‑Thank you, Commissioner.
<THE WITNESS WITHDREW [11.36 AM]
PN345
THE COMMISSIONER: Any further evidence that the applicant wishes to lead?
PN346
MS DOUST: No, that's the applicant's case.
PN347
THE COMMISSIONER: That's the evidentiary case. The evidence for the respondent?
PN348
MR LATHAM: No, there's- - -
PN349
THE COMMISSIONER: No?
PN350
MR LATHAM: There's nothing.
*** WILLIAM JOHN GIDDINS XXN MR LATHAM
PN351
THE COMMISSIONER: No, all right. So as I anticipated, this matter's going to be largely about the submissions that are about to be made.
PN352
MR LATHAM: Yes, Commissioner.
PN353
THE COMMISSIONER: I wonder whether, should I mark the bundle of documents for these purposes? Is that- - -
PN354
MS DOUST: Yes.
PN355
MR LATHAM: Yes, I think so, Commissioner.
PN356
THE COMMISSIONER: There's no trouble with any of that, it's all historical material, I think, which is pretty uncontroversial, so what I might- - -
PN357
MR LATHAM: Commissioner, could I just raise one point?
PN358
THE COMMISSIONER: Yes.
PN359
MR LATHAM: And I don't think it's an issue at all. The agreement set out at tab 4.
PN360
MS DOUST: Which agreement?
PN361
MR LATHAM: Sorry, this is the agreement of 16 March 2005 approved by Raffaelli C. It seems that the document inside has got some minor amendments to it. Yet you'll see specifically on page 25 of 40 - I'm not sure if it's a draft or whether it's the actual agreement that was approved, but - - -
PN362
THE COMMISSIONER: I see, the little thing - - -
PN363
MR LATHAM: I'm not trying to make an issue of it. Could we just say that this is tendered on the basis that this is the final agreement approved and if it's not, that the final agreement could be substituted for it?
PN364
MS DOUST: Can I - - -
PN365
THE COMMISSIONER: That could be something that you might have stumbled upon as an error within the Commission's processing, I think, rather than anywhere else.
PN366
MR LATHAM: Possibly.
PN367
THE COMMISSIONER: Sometimes we get these documents in a version that, when if they're not subject to a degree of scrutiny, they get published as agreement documents but there are all sorts of strange things in them that really shouldn't be there, like a little bubble on the side, or some alteration. Some of them are track documents and you see the track changes popping up and all sorts of things happen. But I think that's probably the explanation for that, that it's just been a document that was actually sent in and no one had sort of given it any greater scrutiny than saying, "Well, if that's your document, that's what we'll approved for you".
PN368
MR LATHAM: Yes.
PN369
MS DOUST: Can I indicate this? I think we sourced that from the Commission's website and took a download directly from the website. But Mr Jacka might be able to make some inquiries and let those on the respondent's side know if the document that's included is not the document that there appears.
PN370
MR LATHAM: That's fine, Commissioner, we're happy with that course.
PN371
MS DOUST: Yes.
THE COMMISSIONER: What I might do then is just mark this so that it's clear. We'll mark this as Exhibit 4 and Exhibit 4 is described as MUA bundle of documents Exhibit 4.
EXHIBIT #4 MUA BUNDLE OF DOCUMENTS
PN373
THE COMMISSIONER: So I think that's tidied all of that up. Ms Doust?
PN374
MS DOUST: Thank you, Commissioner. Commissioner, I've already done an outline of the application's submissions in this matter and I've tried to confine myself in the submissions that I've prepared for today to anything additional to that, so I hope I don't spend too much time re‑hashing.
PN375
The issues in the current matter are identified at paragraph 6 of those submissions. There's, of course, the three issues there. The first is this question of whether or not there's an entitlement to the payout of the cumulated sick leave where there's less than 10 years' service. The second is whether or not service as a casual employee counts in the reckoning of the 10 year qualifying period. And the third is whether completed year of service, for the purpose of calculation of redundancy benefits under clause 15.4 of the agreement, refers to service of any type as an employee, including as a casual.
PN376
Now, of course, although the first two questions involve reference to clause 23.2 of the Stevedoring Industry Award 2010, each of these questions arises under the terms of the 2012 agreement and I don't apprehend it to be the case that there's any argument by the respondent that there's any question as to the Commission's jurisdiction to exercise its dispute settling powers in this matter.
PN377
THE COMMISSIONER: If one is answered in your favour, two falls away, doesn't it?
PN378
MS DOUST: Yes, it does.
PN379
THE COMMISSIONER: But the third point still needs determination, doesn't it?
PN380
MS DOUST: Yes, yes.
PN381
The first question that arises is in relation to the construction to be given to clause 24.6.4 of the agreement. And of course, that clause contains reference to clause 23.2 and clause 23.3 of the award which is, of course, defined in the agreement as the Stevedoring Industry Award 2010, so there can be no issue, I'd say, as to what is, in fact, being referred to or picked up by the clause. But it is, we say, instructive to consider, in the first instance, the words of clause 24.6.4, these words:
PN382
That those clauses shall apply for the purposes of this agreement.
PN383
The respondent has contended in its submissions, without the support of evidence in these proceedings, that the award has no application to the employer. It seems to have walked away from that contention by what Mr Latham has said- - -
PN384
MR LATHAM: No, we haven't.
PN385
MS DOUST: - - -earlier on this morning. Well, can I deal with that then? The applicant resists the contention that the award has no application to the employer. We say that that contention is one which hasn't been made out by the respondent in these proceedings by reference to any evidence and it is a contention which is contrary, Commissioner, to clause 8 of the agreement.
PN386
Do you have a copy of that, Commissioner, or do you have- - -
PN387
THE COMMISSIONER: No, I think I'm looking at it.
PN388
MS DOUST: Sorry?
PN389
THE COMMISSIONER: I think I'm looking at it.
PN390
MS DOUST: Yes. So clause 8 of the agreement provides that:
PN391
The agreement shall be read in conjunction with the Stevedoring Industry Award 2010.
PN392
So we say that the respondent's contention not being supported by evidence and being contrary to what appears on the face of the agreement, there's not a basis for the Commission to reach a conclusion that the award does not cover the work that is performed by the respondent or its employees, or was performed by the respondent or its employees.
PN393
But we say, in any event, that question is unnecessary for the Commission to answer finally, because even if the Commission had found that the award did not cover the respondent and its employees, that would not be the end of the applicant's case because the entitlement arises by reason of the operation of clause 24. Clause 24, of course, picks up clause 23.3 and gives it application to the employees by the use of the words:
PN394
Shall apply for the purposes of this agreement.
PN395
So it is the agreement itself which does the work of causing the terms of clause 23.3 and 23.2 to have application to the employees.
PN396
The parties could just as well have referred to a clause in any other award of the Commission or any other document, thinking laterally, but it is the agreement- - -
PN397
MR LATHAM: Commissioner, we accept this. We've made this concession.
PN398
MS DOUST: It is the agreement provision which operates to give that clause life. So we say that the respondent's submission at paragraphs 9, 10 and 11, should be rejected by the Commission.
PN399
Commissioner, can I just turn to the evidence which is before the Commission in these proceedings? That is set out at paragraph 5 of the outline of submissions and it's also these are matters where there's been no real challenge and, indeed, the respondent has advanced no evidential case at all in the proceeding. So the Commission can be satisfied, I say, by reason of the evidence of Mr Giddins and also the Agreed Statement of Facts of those matters which are recited at paragraph 5 of the outline of submissions.
PN400
In particular, what has occurred here is that the five employees named in the Agreed Statement of Facts were terminated by reason of redundancy on 31 December 2014 and each of the employees had the periods of service that are set out in the Agreed Statement of Facts. So there's no question that a redundancy situation arises, in my submission, and that the redundancy provisions in the agreement have some application to the employees in question.
PN401
While I'm on the question of the evidence in the proceedings, can I say something further about the applicant's evidential case, and that is the evidence of Mr Giddins? As might have been apparent from the submissions that were made in relation to the objections, Mr Giddins' evidence becomes relevant at the point at which the Commission takes the view that clause 24 is ambiguous in some way.
PN402
Having regard to those principles of construction, it's at the point that that conclusion is reached that the evidence of the surrounding circumstances becomes relevant. The applicant's principle contention is that clause 24.6, which imports the application of clause 23.2, can be construed according with the normal principles of construction. One gives those clauses a basic literal construction consistent with what the applicant contends.
PN403
And so that evidence comes into play at the point at which the Commission regards it as, or regards it in effect, as that there is a competing construction available to it such as the construction which is contended for by the applicant. So it has that confined scope.
PN404
Can I say something further about Mr Giddins' evidence, and that is this. His evidence as to the history of the award and the industry was uncontradicted by the respondent in these proceedings, and his involvement in the Stevedoring Industry in the reform process that was carried out from 1989, in the award restructuring process of 1990, makes him and his involvement in the industry throughout the 1990s, makes him uniquely qualified to assist the Commission as to the history of the operation of the 1991 Stevedoring Industry Award. And that, of course, is the source of the current award and the source of what we say is the industry practice or understanding.
PN405
Mr Giddins' involvement with the union in the redrafting of the award in the award simplification process in about 1999 and 2000 means he's a person qualified to give evidence to the Commission as to the matters that were in issue between the parties in that process, that is, the subject matter of the negotiations that took place in that award simplification process. And the subject matter of the negotiations is, as I've indicated, a proper matter for the Commission to receive evidence about when it looks to the surrounding circumstances relevant to the making of an enterprise agreement, we say by analogy, the award in this case.
PN406
And what Mr Giddins' evidence shows is that clause 23.3 and that entitlement to payment of accrued sick leave on redundancy, were not matters in issue in contest in that process. That is, there was no claim by either party to make any change to the clause, to make any concession, nor was there any discussion as to how any such change might be affected.
PN407
Going to the decision of Marsh SDP in relation to the making of the simplified award, at the decision which is behind tab 2 of the bundle, which is Exhibit 4, Commissioner one can see, in paragraph 1, the Senior Deputy President there says:
PN408
Suffice to say that the negotiations under the final construction and content of the award have been protracted and time consuming for all parties. The Commission, on a number of occasions, has sought to assist the parties pursuant to its conciliation role.
PN409
The Senior Deputy President goes on in the following paragraph to say:
PN410
On 11 May 1999, the parties were in a position to produce a draft award subject to final drafting and formatting changes, which subject to detailed checking represented the consent position of the parties.
PN411
So the starting point that the Senior Deputy President was dealing with was the consent position of the parties. So really, this award was analogous, if you like, to an enterprise agreement.
PN412
One can see at paragraph 4, that the Senior Deputy President says:
PN413
Subject to the determination of particular provisions which I will deal with shortly, I am satisfied that the provisions in the award fall within the statutory scheme of section 89(a) of the Act and item 51 of the WROLA Act. I am also satisfied that the award simplification principles have been complied with.
PN414
And the Senior Deputy President then goes on to list, at paragraph 5 of her decision, the matters in relation to which specific determination was made. And what is significant, we say, is that there was no specific determination in relation to clause 28(f) of the predecessor award, which became subsequently 23.3.6. And it's clear from the subject matter of the clauses that the Commission sorry, that the Senior Deputy President was dealing with, that at no stage was any determination made as to the question of the payment of accrued sick leave in the event of redundancy. So this matter wasn't the subject of any arbitration, if you like, on the merits as at the award simplification period in 2000.
PN415
Now what Mr Giddins' evidence shows, I'd submit, and I understand there's some reservations about the height to which this evidence might rise, is that notwithstanding the change in the structure of the clause, clause 23.3.6, which is the which followed clause 28.5, dealt with the same subject matter and the like, was not applied within the industry in a manner contrary to the way in which the applicant contends that the relevant clause now should be applied.
PN416
In other words, we say that there has been a consistency of practice within the industry from the time of the making of the award in 1991 to date in relation to both 28(f) and the clauses which have followed it, dealing with the same subject matter. What one doesn't see is any evidence of any attempt by any of the parties to negotiate something differently to what was provided in clause 28(f) of the 1991 Award or different to how the applicant contents that award applies or any arbitration of that issue.
PN417
There is simply no evidence to contradict the view that is contended for by the applicant about the history of this provision. It's on that basis, the applicant says, the Commission may conclude, in the absence of any contrary evidence, that when the parties inserted clause 24 into the agreement, or 24.6.4, it was on the basis that the award clause was one which did not operate to impose the condition of 10 years' service on the entitlement to payment of accrued sick leave on termination. And put another way, it was a notorious fact which the Commission would conclude the parties were aware of, that that was how the award provision operated at the time of entering into the 2012 agreement.
PN418
Now, I've set out in the applicant's outline, why I say, on a literal construction of clause 23.2, the applicant's contention would be accepted and just going to that clause, which is behind tab 8 of the bundle, if we look at that clause, what one can see is that at subparagraph (a) of 23.2, three circumstances sorry, four circumstances are there identified.
PN419
What one has is death, the death of an employee, the retirement of an employee, the employee being made redundant and, we say, the fourth circumstance is an employee resigning their employment after 10 years' service. So we say that when one reads clause (a), one doesn't give the 10 years, which appears at the end of that clause, any distributive effect in relation to that subparagraph.
PN420
If that were the case, we say, one could have achieved that outcome by using the words, "After 10 years' service", as a preamble, and then following that with a semi colon and listing the circumstances which are set out in 23.2(a), that is the death, the retirement, the redundancy and the resignation. If one wanted the 10 years' condition to apply to all of those circumstances, that's how one would have proceeded.
PN421
THE COMMISSIONER: When you retire, don't you resign?
PN422
MR LATHAM: Yes.
PN423
MS DOUST: Well, I think that's technically correct, but it has always been regarded as, you know, a separate category of its own really, theoretically distinct from the notion of resignation because it comes at the end of a working life. So it's a career end moment rather than just the cessation of the relationship with that particular employer.
PN424
THE COMMISSIONER: There was a time when you couldn't keep working past the retirement age, wasn't there?
PN425
MS DOUST: Yes.
PN426
THE COMMISSIONER: Yes.
PN427
MS DOUST: Yes.
PN428
THE COMMISSIONER: So that would have been I'm just thinking here, because I know you talk about this question of who's the initiator of the termination of employment, really?
PN429
MS DOUST: Yes.
PN430
THE COMMISSIONER: Is it something that the employee is actually doing themselves or is it something that's been visited upon them?
PN431
MS DOUST: Yes.
PN432
THE COMMISSIONER: Whether it be death or redundancy or retirement, if it is in that old context of it being visited upon you, rather than your voluntary resignation upon reaching a particular age.
PN433
MS DOUST: Yes. And those and one must look at the term, "retired" and think about where it came from. It initially appeared in the 1991 Award, back in the days prior to the Age Discrimination Act. That only came into effect in 2004. So back in those days, it was, in fact, you know, correct- - -
PN434
THE COMMISSIONER: Obligatory.
PN435
MS DOUST: I'm sorry?
PN436
THE COMMISSIONER: It was obligatory.
PN437
MS DOUST: Yes, and theoretically, retirement did fall within that category of events that occurred beyond your will, if you like. And that's the natural distinction, we say, is made between those categories. And to an extent, apart from the example of the happy, self-funded retiree, for many people retirement can involve a marking of the cessation of their capacity to continue on in a particular industry or in the workforce as a whole. So we do think it falls into a different conceptual category to a resignation of employment, which can be done by will by an employee at any time.
PN438
THE COMMISSIONER: What's put against you is that the qualification for all of those events is 10 years' service.
PN439
MS DOUST: I accept that.
PN440
THE COMMISSIONER: Yes.
PN441
MS DOUST: What I say is, about that, is this. It seems odd that one would have a clause which provides that you won't get your accrued personal or carer's leave, and if I use the word "sick leave", by mistake, I mean it interchangeably, one doesn't get that paid out if one dies within 10 years of commencing service, but one will get that paid out if you're accepted as totally and permanently disabled. So there's a more favourable arrangement for disability than there is for death. That seems, I would say, very counter intuitive.
PN442
So we say that, on a literal reading of subparagraph (a), that limitation of 10 years' service applies only to the circumstance of resignation, which unlike the other circumstances, involves without question, the simple election by an employee, something entirely within their discretion, if you like.
PN443
In my submission, there's no natural equivalence, if you like, between the circumstance of redundancy and resignation that would make one think that the 10 year qualification applied to both of them. One doesn't see those two as two circumstances that naturally reside together in contra distinction to the circumstance of death or retirement which appear earlier on in (a) or the total and permanent disablement, which is referred to in paragraph (b).
PN444
So one doesn't see redundancy and resignation as naturally going together. When one looks at all of those circumstances, one sees that resignation is in a category all of its own, really, and it is consistent, we say, with a purposive construction to read that clause as applying the 10 year limitation, only in relation to that circumstance of resignation and not to the others preceding it in (a).
PN445
And that's supported you'll be aware Commissioner, no doubt, I've referred in my outline to other awards that take similar approaches and also to the Stevedoring Industry (Long Service) Award. My friend takes issue, in his submissions, with the relevance of that instrument. I say that that relevance remains, notwithstanding any conclusion that might be invited about the application of the industry award to the current employer. It is an instrument which is relevant to an understanding of the award called up for in clause 24 of the agreement. And indeed, the Stevedoring Industry (Long Service) Award is referred to within the agreement itself at clause 8.
PN446
So that clause of the agreement refers to both the Stevedoring Industry Award 2010, which appears to have been assumed to be the underlying award, and the Stevedoring Industry (Long Service Leave) Award. So this is not something, in my submission, the Commission would regard as completely irrelevant.
PN447
What is relevant about that award is that death, total and permanent disability and redundancy are treated in the same fashion in that award along with domestic or pressing necessity. But one was required, under that award, to accrue 10 years' service in order to be entitled to the payment of accrued pro-rata entitlements, in the event of mere resignation. If you like, what underlies all of these provisions is the notion that one doesn't get access to this beneficial entitlement through circumstances that are entirely within your control, unless one has done some deserving service in order to get there on the way.
PN448
Can I just take the Commission to the predecessor provisions, because I think it's instructive to have a look at those? First of all, if we go to these 1991 Stevedoring Industry Award to clause 28(f), one can see in that clause that the circumstances which are referred to in clause 23.2, all appear. First we have retirement, which appears in clause 23.2(a). We have redundancy next, we have resignation after 10 years' service. We have death, we have leaving under circumstances where the total and permanent disability has been accepted by the employees' superannuation fund.
PN449
What I'd ask the Commission to observe here is that, on any view of this clause well, first of all, can I go back? My submission about this clause is that it is clear from a literal reading of this clause that the 10 year qualification applies only to the question of resignation. That the circumstances entitling an employee to the payment of accrued sick leave are these:
PN450
Retirement, regardless of service; redundancy, regardless of service; death, regardless of service; total and permanent disability, regardless of service or length of service and resignation, but only where there's been 10 years' service.
PN451
Now, there's a couple of points to be made about this particular clause. First of all, when you look at it, we say there can be no argument that the criterion of 10 years' service is distributive in relation to retirement and redundancy which go before it. And that's clear from the way in which the clause is constructed, because after "redundant", we see a comma and then we see, "Or resigns his or her employment after 10 years' service, or dies or leaves under circumstances", and so on.
PN452
What we say is, there's been a clause created there which concerns resignation after 10 years' service and that is one circumstance that entitles the employee to the payment of the accumulated sick leave. The 10 years' service doesn't apply to what goes before. But what is particular instructive about this clause is this. It could not be argued that death, which comes after the 10 years' service reference there, is caught by the 10 years. Even if one was accepting that the 10 years operated distributively there, it couldn't be argued to operate in relation to death. So the entitlement in the event of death clearly, demonstratively I'm sorry, I withdraw that.
PN453
The entitlement in the even to death, clearly unconditioned by length of service, and that's significant because when one sees when one compares that with 23.2(a), Commissioner, one can see death, retirement, being made redundant or resignation, all appearing together. And my friend says that clause (a) should be read so that the 10 years applies to all of those things, so the 10 years applies to death.
PN454
In my submission, that drafting of 28(f) demonstrates that it was clearly the case in 1991, that the words, "10 years' service", were not to be read distributively in relation to any circumstance other than resignation. And there's no rationale that is either demonstrated by the evidence or argument or that one can imagine as to why death would change from being something that gave you an entitlement to the payment of your accrued sick leave in 1991 and that was then conditioned by 10 years' service in 2000.
PN455
And it is equally the case with the other matters, I say, there's nothing that my friend can point to in logic or in the evidence as to why it would be the case that in 2000 the award would change and impose a 10 year requirement on the other circumstances, that is redundancy and retirement. So we do say it is as clear as could be that the 10 year requirement never applied as at 1991.
PN456
Can I move forward then in the chronology, and I've already dealt with, Commissioner, the decision of Marsh SDP and said that nothing in that decision indicates any intention on the part of the parties to change clause 28(f). So there's nothing to indicate that that was a matter arbitrated by the Commission, or agreed with the consent of the parties.
PN457
Can I go to clause 23.3.6 of the simplified award, if I might, and that appears behind tab 3? And it might be, if I could just confine my remarks to these, and that is, pointing out the differences between clause 23.3.6 and clause 23.2 as it appears in the 2010 iteration of the award. One will notice immediately, Commissioner, that the heading from 23.3.6 changed in the 2010 Award from "Sick", to "Personal Carers' Leave" that's changed.
PN458
The practice of using the words "his or her" to refer to an employee's employment changes to the use of "their" and that appears both in (a) and (b) of the subclause. The other difference is this, although I'm not sure anything follows from it, is that in the earlier award, the so‑called 1999 Award, the 10 years' service referred to in subparagraph (a) has no apostrophe after years, but that appears in 23.2(a).
PN459
THE COMMISSIONER: Why would there need to be an apostrophe?
PN460
MS DOUST: I don't want to get into an apostrophe argument.
PN461
THE COMMISSIONER: No.
PN462
MS DOUST: Can I just say, we don't make anything of that difference. I simply thought it useful to highlight to the Commission that this clause is, for all intents and purposes, identical to clause 23.3.6 of the predecessor award, that is the 1999 Award.
PN463
THE COMMISSIONER: Right. But it looks like someone's tried to tidy up some of the specific terms and it surprises me, that in doing that, you'd put a possessive comma in respect of years when it's a numeral. But anyway, I suppose that's just in passing really, it doesn't- - -
PN464
MS DOUST: I can only say, young people these days, Commissioner. The nuns and the brothers who, talking about these things, would be howling in disbelief, perhaps.
PN465
THE COMMISSIONER: But all the other changes seem to they're the sort of changes you'd anticipate from someone that was going through and saying, "Well look, we've got some words here that we can use a better expression. Sick leave's now not called sick leave", although I still call it sick leave.
PN466
MS DOUST: It's called personal carer.
PN467
THE COMMISSIONER: I mean, things like that and then "their" instead of "his or her" and so forth.
PN468
MS DOUST: Yes, yes.
PN469
THE COMMISSIONER: But then it's strange that they had a possessive comma. Anyway, okay.
PN470
MS DOUST: I can't assist to understand that, but the point to be made about all of this is what the applicant submits is there is, in our submission, consistency from 1991 through to the current day in terms of the industrial instrument and there is no indication at all at any stage of any intention to change how the entitlement operated as at the time of the making of the 1991 award. The only changes the word "cosmetic" might be disrespectful to the changes that are made to 23.2, but they're certainly not substantive to the entitlement that appears in the 1999 award.
PN471
THE COMMISSIONER: Yes.
PN472
MS DOUST: And there's certainly a change in structure between 1991 and 1999, but at best at best what we say is that that raises what's really a theoretical argument about the 10 years. When we see it put down at (a) and (b), we could potentially read the 10 years as qualifying what goes before it if we take a particular view of how that clause falls. In my submission, that is supported by absolutely nothing before the Commission. At best at best the respondent's case is there are a couple of competing ways in which one might pass the grammar of clause 23.2 or clause 23.3.6. That's the highest the respondent's case goes.
PN473
THE COMMISSIONER: Yes. There's a significant change between the 1991 award and the 1999 award.
PN474
MS DOUST: Yes.
PN475
THE COMMISSIONER: There's a less significant change between 1999 and the present manifestation.
PN476
MS DOUST: Yes, yes.
PN477
THE COMMISSIONER: But is it conceivable that in this change from 1991 to 1999 ‑ ‑ ‑
PN478
MS DOUST: Yes.
PN479
THE COMMISSIONER: ‑ ‑ ‑ that death was being put into the right spot?
PN480
MS DOUST: There's certainly no basis for the Commission to form that conclusion.
PN481
THE COMMISSIONER: One would think that there'd be, well ‑ ‑ ‑
PN482
MS DOUST: In fact, probably everything that you know, Commissioner, would tell you that that's not what's happened because if someone was coming for a moment after an entitlement of someone who worked in the stevedoring industry in this country, you would expect from your knowledge of that industry for there to be a great deal of noise and movement in relation to that. You would expect that to be reflected in the decision. You would expect it to have been a contested matter. There's nothing to indicate that that is the case.
PN483
In fact, the contrary is indicated to you by evidence from Mr Giddins' evidence about those negotiations and that was there are no additional claims. No one is seeking anything more out of this process. So there's no warrant on the evidence for constructing some explanation as to what purpose ‑ ‑ ‑
PN484
THE COMMISSIONER: Yes. You say there's no conscious change here, that if the change has come about it's by inadvertence or reframing without people considering what the consequences of the reframing might be.
PN485
MS DOUST: That's, I think, the highest it could go because there's certainly no evidence of any intent to change any of the entitlements that existed as at 1991 and we say the position as at 1991 is clear. At best at best the respondent has a case that one possible reading of the way this clause is put together is that the 10 years is distributive. In my submission, the Commission would not form the view that a significant entitlement has been changed in that way in the absence of some sort of evidence and explanation as to how that came about.
PN486
If that was the case, if people who died whilst still employed were only going to be entitled to their accrued sick leave in more limited circumstances, one would expect a decision of the Commission dealing with the arguments and the evidence for and against. So really we say the entitlement in 1991 is established and the history subsequently is one of continuity and that's what informs the choice that the Commission is to make in response to the respondent's invitation to now take a view of this provision contrary to 20-odd years of history.
PN487
My friend has criticised the applicant's case and said that it's bereft of evidence about the negotiations as at 2012. We say that given the evidence before the Commission, that's not a surprising circumstance at all because we say that the meaning of clause 23.2 and its predecessors was well understood at the time of entry into the 2012 agreement. One wouldn't expect to see the parties going back and forth about the way in which that clause was to operate in the context of this agreement or how did it operate in accordance with the award. One would expect that, we say, on the evidence that is before the Commission. So that is not a matter we say that tells against the respondent's case, nor is it something that the applicant has any obligation to bring to the Commission.
PN488
I'm sorry to jump about, but just to complete the history in terms of the enterprise agreements, can I take you, Commissioner, through the respective enterprise agreements to the relevant provisions? Just going to tab 4 to the 2004 to 2007 agreement, can I just draw the Commission's attention to these clauses, first of all clause 6, where the parties refer there to the Stevedoring Industry Award as the award? Over the page to clause 8, where the parties refer to the agreement being read in conjunction with the Stevedoring Industry Award 1999 and the Stevedoring Industry (Long Service Leave) Award 1992.
PN489
So it's clear that the relationship between this and I use the term relationship broadly the relationship between - the agreements between this employer and the union parties was one which had a long history. So there was familiarity and advertence to the 1999 award in respect of the 2004 agreement. In fact, it proceeds on the basis that the Stevedoring Industry Award is the underlying award, if you like. If we go to clause 24.6.4 if that agreement, one can see reference there to clause 23.3.6 of the award relating to payment of accumulated sick leave applying for the purposes of the agreement, so a relevantly identical provision there at 24.6.4 to the current provision, save that it's referring to the earlier iteration of the award.
PN490
The same goes for the successor. This is the 2008-2009 so‑called extension and variation of the earlier agreement. That's in the following tab. That should be behind tab 5 of your bundle, Commissioner.
PN491
THE COMMISSIONER: Yes.
PN492
MS DOUST: Again, if one traces through, at clause 6 one can see again the Stevedoring Industry Award is called up as the award to which reference is made in the agreement. Over the page at clause 8, again, the agreement is said to be read in conjunction with the Stevedoring Industry Award 1999 and the Stevedoring Industry (Long Service Leave) Award 1992 and just tracing further on to the relevant provision, again, clause 23.3.6 of the award, that is being the 1999 Stevedoring Industry Award, is said to apply for the purposes of this agreement. So the same method of calling up the industry award as at that time.
PN493
The next agreement, Commissioner, is this: the 2010 agreement, that's behind tab 6, and again clause 6 includes reference to the award is the Stevedoring Industry Award 1999 and again at clause 8, that same award is described as the award which this agreement will be read in conjunction with and clause 24.6.4 makes the same reference to clause 23.3.6 of the award applying for the purpose of the agreement and there's a provision there about the rate to be employed.
PN494
So those are relevantly identical to terms. So there's nothing that would support the view that my friend appears to posit that one would expect to see discussion of this issue at the time of entry to the agreement in 2012. This was a provision which harked right back to 2004-2005, which coincided, as Mr Giddins says in his evidence, with the commencement of the respondents winning the contract to perform this work for Patrick.
PN495
Just quickly going to the existing current award at tab 7 of the bundle and one can see there that the again, in definitions the term award is defined, but it's defined there as the Stevedoring Industry Award 2010. So that's the modern award that has now been substituted for the 1999 award. Again, at clause 8, the agreement is to be read in conjunction with the industry award, but now described as the modern award, being the 2010 award, and clause 24.6.4 has a slightly different format, but we say the differences don't tell us anything about this question because what's called up there is both clause 23.2 and clause 23.3 of the award relating to payment of accumulated sick leave.
PN496
Can I just depart from that instrument briefly and say when one looks at the 2010 award, one can see that clause 23.2 is the provision that we've been discussing already about payment on retirement. Clause 23.3 is a cashing out provision. That's the payment for excess accrued sick leave:
PN497
Where an employee has accumulated more than 28 days' unused sick leave, the employee may elect to receive an amount equivalent to all or part of the accumulated sick leave in excess of 28 days at the ordinary rate of pay instead of actual leave.
PN498
So that's what might be characterised as the cashing out provision in this award and by extension in the agreement. I'll come back to that cashing out question because it's one that arises, but both those provisions have now been picked up by clause 24.6.4 and again there's reference to the payment being made at the rate referred to in clause 16.1.3:
PN499
Subject to this, an employee who resigns, retires and/or is made redundant shall be paid at the respective salary rate as contained in the appendix.
PN500
So that refers to the appendix at the end of the agreement. That's at appendix A. And that refers to the roster based salary rates which are set out in that appendix. So there's a series of annualised salary rates relevant to roster. So in the event of redundancy, payment is made at those rates. I note the absence there of any reference to this condition about length of service in that clause, but we don't say that anything major can be made of that.
PN501
So what we say the position is as at 2012 when the parties entered into this term that included the words, "Shall apply for the purposes of this agreement," there are two contentions that we make and the first is this that if that clause is apt to simply pick up the award, however the award is to be interpreted, we say in any event that the correct interpretation of clause 23.2 of the award is consistent with what the applicant contends and that is that this 10-year qualification doesn't apply to the circumstance of redundancy.
PN502
In short, that properly construed, clause 23.2(a) should be interpreted such that an employee is entitled to payment of their accrued personal or carers' leave in the event of redundancy without qualification by reference to their length of service. So we say that's the proper interpretation of the award, but in any event we say what must have been understood by the parties when they purported to pick up that clause was what was understood by that clause within the industry and that is that it applies consistent with the applicant's interpretation of clause 23.2; there being nothing to indicate anything to the contrary.
PN503
At the end of 2014, as the evidence shows, the respondent terminated the employment of a number of its employees, including the five who are referred to in the agreed statement of facts. There's no issue that those terminations are properly regarded as redundancies and that clause 24 had application in those circumstances. The question is what did that clause require by way of payment to the employees made redundant. In the applicant's submission what it required was payment upon redundancy of the accrued amounts of sick leave which appear in the right‑hand side of the names, which are set out at the start of the agreed statement of facts, payment of those amounts to the employees.
PN504
It's averred in the application which is before the Commission, and there doesn't appear to be any real dispute, and indeed the company's position in this matter indicates that the company has in fact declined to pay the redundant employees their accrued personal carers' leave on the basis that it takes the view that that 10-year service qualification applies to each of the employees.
PN505
One can see, having a look at the employees in question, that unless one takes the broader view of service if one confines oneself to services of a weekly employee, none of the employees had that 10-year service as a weekly employee and that is the basis upon which the respondent had proceeded in this dispute.
PN506
So the applicant says that the Commission should determine that matter on the basis that under the agreement employees the five employees were entitled to be paid the accrued amounts of personal carers' leave set out in the agreed statement of facts. In other words, that the 10-year qualification doesn't operate to deprive them of those amounts.
PN507
THE COMMISSIONER: Can I just ask ‑ ‑ ‑
PN508
MS DOUST: Yes.
PN509
THE COMMISSIONER: ‑ ‑ ‑ how would a person with only two years of service as a weekly employee, them being entitled to sick leave, obtain 252 hours of sick leave?
PN510
MS DOUST: This is Mr Davies?
PN511
THE COMMISSIONER: Yes.
PN512
MS DOUST: Well, it may well have been one can see that it could be possible via a number of circumstances and that is there might have been some accrued leave carried over from previous employment.
PN513
THE COMMISSIONER: Anyway, if that's the right figure, that's the right figure. I don't ‑ ‑ ‑
PN514
MS DOUST: That certainly was the figure that was agreed between the parties.
PN515
MR LATHAM: It is the right figure, Commissioner.
PN516
MS DOUST: Yes.
PN517
THE COMMISSIONER: Okay.
PN518
MS DOUST: I must say, I was curious about it myself, but I was assured that that was ‑ ‑ ‑
PN519
THE COMMISSIONER: Anyway, all right.
PN520
MS DOUST: Yes.
PN521
THE COMMISSIONER: But the effect is that what you say is if there's no 10-year qualification then these people should have been paid an additional amount equivalent to those hours that you've got there in addition to their severance payment of leave.
PN522
MS DOUST: Yes. There's no question that they were made redundant, that they were paid a redundancy benefit otherwise in respect of that employment. The question is whether or not they got that accrued sick leave. They didn't, and we say if you're with us, Commissioner, on the proper construction to be given to 24.6.4 then what should follow is a determination to that effect and an entitlement following.
PN523
I've made submissions at paragraph 24 and following of the outline to the effect that one would regard the service which is referred to in clause 23.2 of the award as service of any type, such that an employee might if you're against us on the first argument, Commissioner, an employer might satisfy any 10-year requirement by their service, including service as a casual employee. So I've made that argument and I don't think there's a great deal to be added to the submissions, which simply point to the breadth of the term service. That is a term which is apt to refer to service in any way, be it casual, part‑time, full‑time. We say one would read that in that fashion, but that only really arises to determine as a secondary argument and that only has application to Mr Edgar and Mr Davies, who have service dating back to 2004 and 2003 respectively.
PN524
Unless there were any questions about that submission, I'll move on to the final argument, which is on this question about service for the purpose of a redundancy payment under clause 15.4 of the agreement, including service as a casual, and again, in my submission, service is a term which is apt to refer to service of any type, whether as a permanent employee or otherwise and, as I've indicated, at 10.3 of the agreement, elsewhere service as a casual is referred to simply by the term "service". So service there at 10.3 the term "service" in 10.3 of the agreement is used to apply to service as a casual.
PN525
So we say that the same approach would be taken in interpreting that term as it appears in clause 15.4 and, of course, when one looks at made the point that clause 22 supports the applicant's position because it conditions entitlement to annual leave upon each completed year of service. What's required is the provision in clause 10.3 which specifically exempts casuals from annual leave. So when one looks at the term "service", that is something which is apt to denote all sorts of service and a specific provision is required to countermand that presumption, if you like.
PN526
Can I just say finally in respect of clause 15.4, when one looks at its very terms, one can see that it uses the terminology, a reference to service as in:
PN527
Three weeks' pay for each completed year of service.
PN528
That's referred to in the first instance and then there's a reference to:
PN529
Pro rata for any incomplete year as a weekly employee at the weekly salary rate to a maximum payment
PN530
et cetera, et cetera. So what appears to have been introduced in clause 15.4 is two concepts in relation to employment. There's service generally and then secondarily, a year is a weekly employee. So where there's been a desire to confine something as having application only to weekly employees compared to other sorts of employees, that has been made clear and that is telling, we say, in the construction of clause 15.4; that 15.4, the use of "service" there would be used in the general sense. Those are the applicant's submissions, subject to just one matter, if you'll excuse me for a second, Commissioner. No. Subject to any questions you have, Commissioner, those are the applicant's submissions.
PN531
THE COMMISSIONER: Mr Latham, do you want to do this now or do you want a break for lunch?
PN532
MR LATHAM: Look, I'm happy to press on, Commissioner, if you want. I'm not going to be very long. I'll certainly be finished before the end of lunch. If you wish, I'm happy to finish it before lunch. If you don't, I'm happy to come back at 2.00.
PN533
THE COMMISSIONER: I think we might have to break and come back in an hour. It's just that we've got a few other contingencies we've got to deal with during the course of the day.
PN534
MR LATHAM: I see.
PN535
THE COMMISSIONER: Yes.
PN536
MR LATHAM: I'm in your hands, Commissioner. If you want me to press on, I can do so, otherwise I can come back at 2.00.
PN537
THE COMMISSIONER: I think we might come back at 2.00, if that's all right.
PN538
MR LATHAM: Certainly.
PN539
THE COMMISSIONER: So we'll resume again at 2 o'clock.
LUNCHEON ADJOURNMENT [12.52 PM]
RESUMED [2.00 PM]
PN540
MS DOUST: Commissioner, I'm sorry to do this to you, there was one thing I neglected to include in my submissions before lunch, I've raised it with Mr Latham. Might I hand up a copy of an extract from the explanatory memorandum for the Fair Work Bill 2008. This goes to the argument which appears in my friend's submissions about cashing out provisions, if you like. Just excuse me for a second, Commissioner.
PN541
The arguments put by my friend in his submissions that in effect the clause which provides for the payment of accrued sick leave on redundancy is, in effect, a cashing out provision and is subject to the limitation which is contained in section 101 of the Act. You might have seen that in my friend's written submissions, Commissioner. What we say about that is this: a clause such as this is not a cashing out provision. A cashing out provision is by its nature something along the lines of what appears at 23.3 of the modern award. That is something which allows a person to trade in an existing sick leave entitlement for cash whilst they are still employed.
PN542
What section 101 is directed to is an arrangement that occurs during the course of an employee's employment and not which occurs as a consequence of the termination of their employment. Can I refer you, Commissioner, in that extract to the page which is marked 65 on the bottom to paragraph 398 which says this:
PN543
Subclauses 101(1) and (2) permit a modern award or enterprise agreement to include terms providing for the cashing out of paid personal carers' leave. To ensure that employees retain access to paid leave in the event of illness or injury, the cashing out terms in a modern award or enterprise agreement must require that.
PN544
And it refers there to the conditions which are set out at subsection 101(2):
PN545
Which must be included in any term providing for cashing out.
PN546
THE COMMISSIONER: So to the extent that it doesn't, that is clause 23.3 of the modern award, the Stevedoring Industry Award, doesn't contain all those prescriptions that are required by subclauses 101(1) and (2) of the Act, it seems to be contrary to the Act.
PN547
MS DOUST: That is a question which we say doesn't arise in the context of these proceedings, so I don't wish to be heard in relation to that issue. I'm dealing with the submission that seems to be made in my friend's written submissions that clause 23.2, which provides for the payment of accrued leave in the event of redundancy is a cashing out provision of the type sought to be caught by section 101.
PN548
We say a pay out of accrued leave on termination is not a cashing out and that it's clear when one looks at paragraph 398 that the cashing out provision has been inserted to ensure that ongoing employees still have a certain minimum number of accrued sick days in their bank, if you like, in the event they need to call on them for purposes of illness or injury.
PN549
THE COMMISSIONER: I wonder if this was looked at in the review of this modern award?
PN550
MS DOUST: It may not have been, but that's a we say it's a separate issue to these proceedings. What's put against the applicant's case is that paragraph 23.2 of the modern award, and by extension paragraph 24.4.6 or is it 24.6.4? 24.6.4 offend against section 101. So that's in the respondent's written submissions or outline at - I'll take your Honour to it - paragraph 24. So it's said that payment of accrued leave on termination is a cashing out. We say it's not a cashing out. It's clear from the explanatory memorandum what sort of provisions are caught by section 101 and they are only provisions which refer to a trading off during the course of employment. Unless there's anything arising from that submission, Commissioner, that is the conclusion of the applicant's submissions.
PN551
THE COMMISSIONER: All right, thank you.
PN552
MS DOUST: Thank you.
PN553
THE COMMISSIONER: Mr Latham?
PN554
MR LATHAM: Commissioner, this case is really a case about English words and what they mean and how we derive that meaning or how the Commission should derive that meaning. The words in question exist both obviously in an award and an EBA and a lot of the principles in relation to interpretation are well settled. It's clear that the meaning of words can often be ambiguous; that words may have more than one meaning and it is also clear, too, that meaning may be changed by reference to context, whether it be context within a sentence or within a phrase or within the history and it also is clear that words may mean different things to different audiences and may mean different things in different documents.
PN555
Perhaps a good example actually is the Fair Work Commission. The word "commission" can mean a number of different things. It can mean, for example, an officer's commission in the military. It can mean payment for a particular transaction or it can mean an institution or it can mean to commit to do things. The way the meaning of that word within the phrase Fair Work Commission, while the word itself is very ambiguous, the meaning within the phrase becomes unambiguous and becomes clear.
PN556
The process by which the Commission is to determine the meaning of these sorts of words is firstly to determine the intention of the parties. That's the most important thing. To do that the Commission starts with the text itself or the words themselves and in cases of ambiguity can go to extraneous material. The extraneous material can involve, of course, the historical context of the drafting. What the Commission cannot do, though, is firstly reinterpret the words to achieve some sort of policy outcome that it considers desirable. The second thing it cannot do, it cannot determine the meaning of words by reference to what other people have thought since those words were draft; and the third thing it can't do is to lead to a conclusion that is absurd.
PN557
The criticism made by the respondent of the applicant's submissions in this case go to each of those three prohibitions upon the Commission acting because what is being proposed here really is in relation to the three matters before the Commission, the applicant is seeking that the clear meaning of the words be changed. In relation to a number of those options, the meaning being proposed by my friend would lead to an utterly absurd result.
PN558
But to give the applicant the benefit of the doubt just for the purposes of this argument, even if all of the arguments of the applicant were correct there is still a yawning vacuum of evidence that is needed to prove the case and that's already been adverted to. Perhaps the most important evidence that could have been brought to the Commission would have been evidence as to the negotiations as to the 1991 award.
PN559
The union was party to those negotiations, presumably it could have been brought people along who could have said, "This was what the background to these negotiations was. These are the documents that were passed between the parties. This is what we were trying to do in relation to these particular provisions." None of that evidence is before the Commission. In relation to particularly sorry, the second point in relation to evidence is in relation to the enterprise agreements. We have an enterprise agreement that essentially followed on in relation to these provisions from an early agreement in 2004. None of the evidence as to the creation of those conditions is before the Commission.
PN560
As my friend has put, there are a number of matters that are agreed. Both parties agree that the respondent had a contract to provide labour to Patricks. Both parties agree that the contract was lost and that there were employees who were retrenched. Both parties agree that the agreement applies and that it has incorporated into its specific clauses from the award. The parties obviously do not agree that the award applies, but that's not a point, as my friend has put, that the Commission needs to get into.
PN561
Moving to the clauses themselves, the first point put by my friend is that the 10-year qualifying period in the award applies to resignation, but not to retrenchment. Now, let's just see what that would mean if that was accepted by the Commission and we'll put reasons as to why it shouldn't be. It would mean that a person with one year of service who was made redundant would be paid out their personal leave.
PN562
If the Commission were to accept that sort of proposition, it would mean that employees would be encouraged to attend work when sick in order to accrue entitlements that would be paid out when they were retrenched. The whole purpose and this evidence was given by Mr Giddins, the whole purpose of, if we can call it sick leave, is to pay people while they are sick. It is not to give them a benefit that they can accrue for when they leave the employment of the employer.
PN563
The second issue is this: however it's put by my friend, this is really a process whereby people are allowed to cash out sick leave that they have accrued and there are provisions in the Act that apply in relation to pay out or cashing out of personal leave or sick leave, and that of course is set out in section 101, and the conditions set out in section 101 have not been complied with.
PN564
If my friend was correct in terms of the argument put, it would mean that personal leave would essentially become part of the wage of the employee and that employees would be entitled to accrue those payments and have them paid out and that is entirely contrary to the purpose of sick leave and it should not be accepted by the Commission. But if one moves back into the arguments as to how the applicant frames their case, it seems that these arguments are put forward.
PN565
If one just goes to the submissions of my friend, we have a number of different arguments. The first was put at paragraph 14 which involves essentially a rationale or a policy position for this interpretation in the last sentence about conditioning the employees' entitlement to the benefit of the provision to a long, and therefore deserving, period of service. Now, that sentence is not entirely clear, but what it's really saying I think is there is a policy provision here that if people work for long period of times that they should be given these benefits. That is really trying to shoehorn the wording of this clause into some pre-existing policy view and the Commission should not do that.
PN566
Then one moves on to paragraph 15 and one finds a reference to what is an irrelevant award that is not even in evidence, and at paragraph 20 and onwards, there are references to what has occurred since the creation of the 1991 award and how the parties, and people who are not parties, have treated those entitlements or lack of entitlements. For the reasons put forward already, the Commission could not, and certainly should not, accept what the parties have done or what they have thought since the creation of those words in the award since the early 1990s.
PN567
A further thing just in relation to these matters is there is a clear purpose to sick leave. It's already been put by Mr Giddins and the Commission has been given no explanation as to why that purpose should be ignored in these circumstances, but if one moves to the provisions themselves, perhaps if we could begin with paragraph 23.2, the argument - I'm sorry, this is at tab 8 of the bundle. The argument put by my friend seems to be this: we have wording that says:
PN568
Where an employee dies, retires, is made redundant or resigns their employment after 10 years' service these payments should be made.
PN569
But, of course, in my friend's submission the 10 years' qualification only applies to the resignation of employment. That is certainly not apparent from the reading of this text because the draftsman or drafts people of this provision set out two scenarios. One scenario is under (a) and one scenario is under (b) and it's quite clear just on a plain reading of it that (b) does not have a 10-year qualification period and that (a) does so.
PN570
My friend seeks to get around that difficulty by saying, "Well of course the resignation of employment is a matter that's entirely in the hands of the employee, whereas the death of the employee or their retirement or their redundancy is not. That's in the hands of the employer, so therefore somehow the qualification of 10 years' service does not apply."
PN571
With respect to that argument that is just simply fallacious. As you've said, Commissioner, death is clearly not a decision taken by the employer or the employee. The question of retirement in the modern world is a decision made by the employee themselves in the same way that resignation is, and in fact is exactly the same. Redundancy of course is, subject to whether it's a compulsory redundancy or a voluntary redundancy, may be to some extent in the hands of the employee or in some respects in the hands of the employer. But on my friend's position what we would have is a situation like this.
PN572
If a person who has less than 10 years' employment retires and in doing so writes to the employer and says, "I resign from the employment and I wish to spend the rest of my life on the Central Coast" but they had not got 10 years' service, they get paid out these benefits. If they resign their employment after 10 years - or sorry, before 10 years, they don't. That seems an absurd contradiction in this position. You have a person who is resigning for retirement purposes who gets the benefit and a person who resigns who otherwise does not. That is just not a sensible reading of this provision, and if retirement is to be qualified by the period of 10 years' service there's no reason why redundancy or resignation should not be either.
PN573
So just on a very straightforward reading of this provision it's clear that the 10 years' service qualifies all of those different aspects of 23.2(a). Now my friend - and this is clear - could have come along and said "Well, while that might be the ordinary meaning of the words if there is an ambiguity we have evidence to show that the parties in 1990 came up with this wording for a particular reason, and here is the evidence as to that reason and this is why the ordinary meaning of these words should not be accepted". But that evidence isn't before the Commission at all. Now the second point I think is this.
PN574
In understanding the meaning of words the Commission has to understand the purpose, and the purpose of sick leave as we have said is to protect people who are sick while they're employed. It is not to give them some windfall benefit after they retire or resign or are retrenched. I think what makes the question even more difficult for the applicant is this. We are talking about a situation where this provision has now been in place for some 20 years and - sorry, for some 25 years and there is not a single document or a single decision of the Commission or a single decision of the Court where this proposition has been accepted or even apparently put; and what is really being proposed by the applicant in this case - - -
PN575
THE COMMISSIONER: We had a provision recently that had a 40 year life that had never been tested. It's to do with the laundering of clothes or uniforms at Qantas.
PN576
MR LATHAM: Yes. Well, that may well be right.
PN577
THE COMMISSIONER: Sometimes these things, I describe them as dormant provisions and no one really bothers to invoke them or test them or anything like that, and then sometimes we all get caught by the words.
PN578
MR LATHAM: Yes. Yes, it certainly does happen and determining the meaning of words is, you know, not a science. There's no question about that. But if one looks at the two things which are most important, the purpose of the provision and the text of the provision, we say it's a very straightforward argument really that the Commission should just say "That qualification applies to all of those different provisions". There's then a subsidiary argument put up that even if the respondent's submission on that point is correct, that the Commission should then move to a position where it counts the period of casual service as service for the purposes of the 10 year qualification.
PN579
But that frankly is a vaguely ridiculous proposition because what it means essentially is that a person who starts as a casual employee in 2004 is deemed to have 10 years' service and therefore achieve these benefits, without any evidence that these people have actually worked any day or any week or any month or any year in that period, and there is just simply no evidence about that. The only evidence that we have in relation to these people's service is what is set out in the agreed statement of facts, which sets out their start date as a casual and then their start date as a weekly employee, and sets out the number of days of sick leave after that.
PN580
THE COMMISSIONER: So I'm not to imply from that that it's continuous?
PN581
MR LATHAM: Well, I don't see how the Commission could.
PN582
THE COMMISSIONER: Right.
PN583
MR LATHAM: And it's evidence that could have easily been put by the applicant and there's no explanation as to why it hasn't been.
PN584
THE COMMISSIONER: So this could have been a person that just worked the odd shift or two in that period of time.
PN585
MR LATHAM: Yes, exactly, and so even if the Commission were to accept the wording put forward or the interpretation of the wording put forward by my friend there's no evidence upon which the Commission could make that next step and say, "Well, on that basis therefore there was a period of 10 years' service".
PN586
THE COMMISSIONER: Because the Long Service Leave Act in New South Wales picks up proar(sic) continuous casual service.
PN587
MR LATHAM: Yes, and if there was evidence of continuous - sorry, I didn't meant to interrupt you, Commissioner.
PN588
THE COMMISSIONER: No, that's all right.
PN589
MR LATHAM: But if there was evidence of continuous casual service the Commission could say, assuming it accepted all the other arguments of the applicant, "Well, there is clear continuous service for that whole period". There's just none of that evidence in this case and it's surprising. Then finally put in as the last position, although pretty weakly put, and I'm not being critical of that, is a position that says that if a person works - just for example becomes a casual employee in 2004, becomes a weekly employee say in the year 2010 and is retrenched in the year 2014 they get redundancy on the basis of their 10 years' service.
PN590
Now there's the same evidentiary problem that my friend has in relation to that point as well of whether there's continuous service or not. But there are some far more serious issues in relation to that. The first issue is it's entirely contrary to common law notions of casual employment and it's also contrary to the EBA itself and it's contrary to the Act, and I might just go through those points, and they are set out in the written submissions but they are worth investigating. The first point is this, the whole notion of casual employment at common law is that it is casual. It is not regular, it is not system and it's not continuous, and it's clear too from industrial instruments that have existed for decades that casual employees are paid loadings that take into account the fact that they do not get benefits such as for example redundancy payments, and if one goes to the agreement itself at tab 8 one will find at clause 10.3 at page 11 a reference to casual employees.
PN591
THE COMMISSIONER: Sorry, at page 6 isn't it?
PN592
MR LATHAM: Sorry, your Honour. Sorry, I was looking at - sorry, I'm looking at the wrong document. I'll just start with tab 8, which is the award, for the moment.
PN593
THE COMMISSIONER: Sorry.
PN594
MR LATHAM: You'll see at clause 10.3 the casual employee is one engaged and paid as such, and there's no debate that these people are in that category. Sorry, it's at page 11 of tab 8.
PN595
THE COMMISSIONER: Yes, I've got it.
PN596
MR LATHAM: Then you'll see:
PN597
A casual employee will be paid the hourly rate of pay for the relevant classification plus a loading of 25 per cent. This loading is paid instead of entitlements which by virtue of the NES or this award do not apply to casual employees.
PN598
Now of course if one goes to the Act one finds at section 123 provisions that deal with the application of the Division which sets out the National Employment Standards as to termination and redundancy pay. Now Division 11 starts at 117 and it sets out the notice provisions at 117 and the redundancy provisions at 119, and you'll see specifically though at section 123:
PN599
Employees not covered by this Division -
PN600
And you'll see:
PN601
This Division does not apply to any of the following employees:
PN602
(1)(c) a casual employee.
PN603
So the Act makes it utterly clear that casual employees do not get paid redundancy pay and the reason for that of course is that redundancy is subsumed, to the extent that it applies at all to a casual employee is subsumed by the 25 per cent loading. Now if one then goes to the agreement itself, if one goes to clause 10.3 of the agreement which is set out at tab 7, sorry, and one will find at 10.3 a clause in relation to casual employment and it talks about the unpredictable nature of the industry in the first paragraph and then you'll see in the second paragraph:
PN604
Casual employees are not subject to any redundancy arrangements or severance. A casual employee shall be entitled to -
PN605
Sorry:
PN606
- engaged to meet the short term or temporary needs of the work.
PN607
And then you'll see two paragraphs further down:
PN608
Casual employees shall be given or shall give, as the case may be, one hour's notice of termination of employment.
PN609
And specifically:
PN610
No other termination payments will be made except for the notice period of one hour referred to herein.
PN611
And then you'll see again in the next paragraph:
PN612
The rates set out in clause 16 comprehend the 25 per cent casual loading referred to in the Stevedoring Industry Award 2010. Clauses in this agreement relating to overtime, annual leave, sick leave -
PN613
et cetera:
PN614
- do not apply to casual employees.
PN615
And that's just a classic recitation of the common law position and the position within the Act, and then of course if the Commission goes on to paragraph 15.4 at page 12 of the same agreement the Commission will find that there is there a definition of redundancy payments and it says that:
PN616
Redundancy payments shall be calculated on the basis of three weeks' pay for each completed year of service and pro rata for any incomplete year as a weekly employee.
PN617
So what this is saying is if a person is to gain a redundancy payment it is based on the years of service as a weekly employee, and that is entirely consistent with normal notions of redundancy and with the Fair Work Act itself. Now could I then go specifically to - sorry, could I just have one moment? Could I then go to the specific questions raised by my friend and one question raised by you. One is in relation to this notion of a notorious fact and what should be said in relation to that question is that there is a notorious fact in all of this and that is the fact that the Fair Work Act applies, and in relation to that, specifically going to the question of sick leave, it is clear that there is a prohibition upon the very cashing out sought by the applicant, and the applicant and the employer at the time must have realised that that was the case and acted in conformity with that provision.
PN618
My friend puts an argument that the notorious fact is the fact that nobody at any stage adopted a position inconsistent with that. That is just a very clever way of saying that the parties interpreted the award provision in a particular way and, for the reasons that we've already put that is not something the Commission should do or could do. So moving to the evidence, I think the evidence of Mr Giddins was this. His evidence goes to the subject matter of late negotiations where these particular clauses were never actually discussed.
PN619
His evidence does not go to the making of the award in 1991, which is the crucial time on my friend's case, and it does not go to the making of the EBA in 2004 where these provisions apparently were inserted, and importantly too his evidence as to the purpose of sick leave is that it is paid for a person who is sick, and that is not the position being put by the union in this case. The position being put by the union in this case is that the interpretation being sought is that personal leave be cashed out as part of the termination process and that, for the reasons that we've already put, should not be accepted by the Commission.
PN620
Now if I could just deal with one authority that I have here somewhere, which goes crucially to the question of the evidence or lack thereof in this case. If your Honour goes to the third decision which is a decision of Warramunda Village v Pryde 116 FCR 58 you'll see that there is a decision beginning at page 63 of Finkelstein J where he describes the process of interpretation, and we have dealt with this a little bit but it's just worth going to again. At paragraph 25 he sets out two introductory remarks. One is that in relation to the construction of an industrial award he states:
PN621
The rules that a court of construction will apply to determine the meaning that should be given to an award, or to a particular provision of an award, do not differ to any significant extent from the rules that are applied to discover the meaning of any other instrument, be it a statute, a subordinate instrument or a private contract. The task at hand is to discover the intention of the author, although in the case of legislation there is usually reference to the fiction, "the intention of parliament". Very often the legal meaning of an instrument is its grammatical meaning. Indeed "it is not unduly pedantic to begin with the assumption that words mean what they say...
PN622
So that's a fairly straightforward recitation of the cases in summary form and you'll see at pages 67 to 68 there is a discussion about the evidence before the trial Judge as to "the conduct of the parties prior to this hearing" and you'll see specifically at paragraph 42 at page 69 that his Honour says:
PN623
I can see no possible basis for finding that the 1993 award or, for that matter, the 1995 award, intended to preserve the provisions of an agreement which was no longer in operation, or "an industry practice" which, as a result, was uncertain.
PN624
And he goes on to say, importantly:
PN625
No such intention can be imputed to the author in the absence of some indication in the 1993 award or the 1995 award to this effect. Here the appellant is asking us to speculate about the intention of the draftsman. Questions of construction cannot be resolved by these means.
PN626
And what the applicant in this case is seeking the Commission to do is to speculate as to the intention of the drafters of the agreement - sorry, of the award in 1991 and the agreement in 2004, and there's just no evidence as to what occurred in those discussions and the Commission could not resolve questions of construction by speculating about their intent. Now if I could then move on to the submissions put by my friend today, and I'm not going to repeat the submissions that we have already made. Sorry, Commissioner.
PN627
There's just one point I think that needs to be raised. There was a reference by my friend to the cashing out provisions and the Explanatory Memorandum which was handed up, and I think it was put by my friend that the purpose of section 101 is to ensure that employees do not cash out access to paid personal carers' leave while they are employed. There are just a couple of things I'd like to say about that. The first is there is always a danger in relying upon some Explanatory Memorandum as opposed to the text of the section itself.
PN628
But the more important question is this, the use of the word "employee" in the Explanatory Memorandum and in the Act is not one that is confined to people who are employees at the time. It's quite clear that the meaning of employee in the Act is referable to people who are employees at the time or usually employees, and the authority for that arises out of a case called Bellandra by North J and I don't think it's contentious. But when one goes to the point, the real point is this, the cashing out provisions are a prohibition upon - as you'll see in section 101, and I know the Commission is familiar with the section.
PN629
It is designed to prohibit the payment out of paid personal or carers' leave unless particular conditions designed to protect the employee are carried out, and one of those particular provisions is section 101(2)(b) which refers to the recording of that agreement in writing, and none of that has occurred in this case. What my friend is really urging upon the Commission is that it should use this process to actually change or, sorry, to give an entitlement that is entirely contrary to section 101 of the Act. Now just very quickly if I could deal with a couple of points that were raised by my friend further.
PN630
One is in relation to the agreed statement of facts which is exhibit 1. It was put by my friend that the statement of facts sets out the period of service, and it does not do so. It simply sets out the date commenced as a casual employee, the date commenced as a weekly employee and the accumulated sick leave. So the Commission could not find expressly or even impliedly from that any notion of continuous service for that period and, as hopefully made already clear, there has been no specific evidence in relation to that point at all. Commissioner, just subject to one question that I just have to ask my instructor, they're the submissions that we would wish to make. Could I just have one moment?
PN631
THE COMMISSIONER: Yes.
PN632
MR LATHAM: I'm happy to answer any questions if the Commission has them, but they're the submissions that we'd make in addition to the written submissions already made.
PN633
THE COMMISSIONER: Do you say there's any ambiguity with the construction of the 1991 terms?
PN634
MR LATHAM: Sorry, the 1991 term of the award, no. No, we don't. Sorry, if the Commission just bears with me. We say in relation to that term a period of 10 years' service qualifies retirement, redundancy or resignation on its face, and that's the plain and ordinary meaning of those words. Now can I just say this, Commissioner. My friend does rely upon the movement of the word "dies" from that sentence or, sorry, from another sentence back to that sentence. We don't say that the Commission even needs to bother about the meaning of the word "dies". What the Commission needs to look at is the words "is made redundant" and whether that is qualified by the phrase "after 10 years' service". We say on an ordinary meaning of those words, redundancy is qualified by the 10 years' service qualification.
PN635
THE COMMISSIONER: I know what you say about that but you must say though that dying isn't - - -
PN636
MR LATHAM: Yes, I accept that. I do accept that, Commissioner, of course.
PN637
THE COMMISSIONER: Yes.
PN638
MR LATHAM: Yes, that dying is not qualified by the 10 year period.
PN639
THE COMMISSIONER: But then in terms of the current provision it is.
PN640
MR LATHAM: Yes, and this is referred to in the written submissions. It's a truism of statutory construction that if words are changed that there is a reason for the change and there is a change in meaning. But the Commission doesn't actually have to get involved in that discussion because it's not relevant to the debate between the parties.
PN641
THE COMMISSIONER: Thank you.
PN642
MR LATHAM: Is there any further questions, Commissioner?
PN643
THE COMMISSIONER: No.
PN644
MR LATHAM: Thank you, Commissioner.
PN645
THE COMMISSIONER: Thank you.
PN646
Ms Doust?
PN647
MS DOUST: Commissioner, can I pick up the last point first and start at clause 28(f) of the 1991 award? On my friend's contention the way we read that is this; retirement, redundancy and resignation is caught by that 10 year qualification. Death isn't. Now let's go to the 1991 award and the different construction of 28(f) there, go to clause 23.3.6. It seems to me there are two possible ways in which one might contend that the 10 years becomes distributive. It either becomes distributive in relation to everything in that paragraph, so dying, retirement, redundancy, resignation. So it distributes to all of those things in which case there is an unexplained and, one would think completely illogical and absurd, movement of death into the category of those things for which the 10 year qualifier applies.
PN648
So we've now raised the bar for this entitlement in the event of death. That's if the 10 years is distributive. If it's distributive only to the last two matters that are set out there, so if it's only distributive to redundancy and retirement then what we have is we have - sorry, redundancy or resignation, then what we have is changing from 28(f) is that retirement has been taken out of the category that my friend says in the earlier award was caught by this 10 year distributive rule. So there are two options if one is going to read that 10 years as distributive. We have either picked up death or we've dropped out retirement. I can see that the Commission might be grappling with that submission.
PN649
THE COMMISSIONER: The way it's said 28(f) is to be construed is that all of those particular circumstances other than death - - -
PN650
MS DOUST: Death.
PN651
THE COMMISSIONER: - - - are qualified by the 10 years.
PN652
MS DOUST: The 10 year rule.
PN653
THE COMMISSIONER: Yes.
PN654
MS DOUST: So retirement, redundancy, resignation all qualified by 10.
PN655
THE COMMISSIONER: Yes.
PN656
MS DOUST: Now in relation to the redraft of the clause 23.3.6 what my friend says in his submissions at paragraph 12 is this:
PN657
Payment is only made where a person has 10 years' service and has died, retired, is made redundant or resigns their employment.
PN658
In other words the 10 distributes to everything in that, in (a).
PN659
THE COMMISSIONER: Yes, this is the movement of death from previously not being qualified by 10 years.
PN660
MS DOUST: Yes.
PN661
THE COMMISSIONER: To moving into that category.
PN662
MS DOUST: If you accept my friend's argument about how the 1991 award reads.
PN663
THE COMMISSIONER: Yes.
PN664
MS DOUST: So if that's accepted, what is not explained is why it is you would move death into the - we had this 10 year qualifier for death.
PN665
THE COMMISSIONER: I understand you say this is seen as being something that would have been opposed at the time, it would have created difficulties, et cetera, et cetera.
PN666
MS DOUST: But there's no indication of this being any intended outcome - - -
PN667
THE COMMISSIONER: But I didn't follow what you were saying about retirement.
PN668
MS DOUST: Retirement. But the second point is this, on my friend's construction about the 1991 award retirement is caught by that 10 year qualification.
PN669
THE COMMISSIONER: Yes.
PN670
MS DOUST: He has advanced, as I understand it, two possible qualifications in answer to your question about death, Commissioner, earlier on. I thought I understood him to say it's only redundancy and resignation that are caught by that 10 year qualification here. That it's only the second half.
PN671
THE COMMISSIONER: No, I think - no, it's all of them. He says all of them, doesn't he?
PN672
Mr Latham, you say all of them are caught, don't you?
PN673
MR LATHAM: Sorry, in which document are we referring to?
PN674
MS DOUST: 23.3.6(a).
PN675
THE COMMISSIONER: Yes, the first - this is what you describe in your submissions as the significant change. In paragraph 23 - - -
PN676
MR LATHAM: Yes, that's right.
PN677
THE COMMISSIONER: You say the plain meaning of the old 28(f) is that you accept that death was the only thing that wasn't qualified.
PN678
MR LATHAM: That's correct. Yes.
PN679
THE COMMISSIONER: And then when you get to the first recasting of this under the 1999 proposition.
PN680
MR LATHAM: Yes.
PN681
THE COMMISSIONER: Death is moved in with everything else.
PN682
MR LATHAM: That's right. Yes.
PN683
THE COMMISSIONER: Retirement hasn't shifted. It has always been 10 year qualified.
PN684
MR LATHAM: Yes, that's our position.
PN685
THE COMMISSIONER: That's how they put it.
PN686
MS DOUST: Well, in that event what I say is this, that the respondent's case completely fails to grapple with that aspect of the process of drafting, and the fact that there is no explanation for that result powerfully indicates, in my submission, that the 10 years is not distributive to what goes before it.
PN687
THE COMMISSIONER: Yes, I follow your submissions on that. Yes.
PN688
MS DOUST: Yes, I'm sorry, I had understood that he had backed away from the written submission - - -
PN689
THE COMMISSIONER: Yes. No, that's why I was scratching my head a moment when you said, "Well, retirement has moved". Retirement has never moved, on their position. It has always been qualified by the 10 year according - - -
PN690
MS DOUST: Only if my friend was saying that the 10 years was only related to the last two, which was I thought fell from him earlier on.
PN691
THE COMMISSIONER: That's not what I understand.
PN692
MS DOUST: Can I just say this then. My submission is it is as clear as could be from 28(f) that the 10 years is not distributive because of the placement of commas around the phrase or around the clause referring to resignation. After "made redundant" there's a comma and then, "or resigns his or her employment after 10 years' service" comma. That is completely separated from what is on either side of it by the comma.
PN693
THE COMMISSIONER: Yes.
PN694
MS DOUST: And what one would expect to see if the 10 years was going to distribute to everything before it would be:
PN695
Where an employee retires -
PN696
Comma:
PN697
- is made redundant -
PN698
No comma:
PN699
- or resigns his or her employment after 10 years' service -
PN700
And then maybe a semi-colon or a comma, but one wouldn't see it put together in the way it is now with that comma after "redundant". That marks the break between those two. So we say that that's absolutely clear. There's nothing that my friend can point to in the way of evidence as to a contrary intention. So really what he contends about 28(f) is a reading which is contrary we say to the ordinary construction.
PN701
THE COMMISSIONER: Yes. I suppose if we were looking at your proposition for the way that you urge construction of this.
PN702
MS DOUST: Yes.
PN703
THE COMMISSIONER: It might have been better expressed then to have said:
PN704
Where an employee either retires -
PN705
Comma:
PN706
- or is made redundant -
PN707
Comma:
PN708
- or resigns his or her employment after 10 years' service.
PN709
MS DOUST: Yes.
PN710
THE COMMISSIONER: So each one of the things was clearly dysjunctive and of its own.
PN711
MS DOUST: Yes, one can think of a number of ways in which it might be made more dysjunctive than it currently is.
PN712
THE COMMISSIONER: Yes.
PN713
MS DOUST: I'd simply say that the better is not the enemy of the good.
PN714
THE COMMISSIONER: Yes.
PN715
MS DOUST: The fact that it could have done better doesn't mean that what currently indicates by the use of the commas, really picking up that phrase and separating it out from everything else - - -
PN716
THE COMMISSIONER: And the task here of course is understood that we're not dealing with skilled draftspersons that were probably framing this, and we have to be prepared to consider that it's not going to be put together with a degree of fashion that we might expect from the Parliamentary draftsperson.
PN717
MS DOUST: That's correct. That's one of the principles that should be applied. But starting from that, the union's starting point is that it's clear that that is a separate category, that's resignation after 10 years' service, and we've referred to the Long Service Leave Award and the other material that supports that notion about 10 years being a relevant time for qualification in the event of resignation. But the second point is - so the point is, the relevant point really is the point at which that goes from being set out in that way seriatim in 28(f) to being broken up into subparagraphs in 23.3.6.
PN718
What we say about that is this, the highest the respondent's case gets is that they say, "Oh, there is a way you could read this contrary to what the union contends". That it's possible in the way in which you construct this now to say that that 10 years applies to everything that goes before it, and what I say is that the fact that that's if you like one construction that can be contended for doesn't get it over the line as being the proper construction. In order to determine the proper construction you would look, we'd say, Commissioner, to the previous award and you see where the entitlement was based.
PN719
You'd look to see whether in the decision that issued this award there was any indication that there was a grappling with for example the change to death, and the reason I point out is because there can be no argument at all in relation to the 1991 award that death wasn't caught by that 10 year qualification. So one would expect to see it in relation to that. If you're with us on the question of construction of the 1991 award, one would expect to see some sort of explanation as to why the other matters would go into that basket and there is simply none.
PN720
So in weighing up between two competing constructions in a construction which has been put together in this award simplification process, what one doesn't see is anything to support my friend's construction but a great deal to support the applicant's construction. That's why we say it's the construction that should be preferred, and what supports it is the absence of any indication that any change in substantive entitlement was adverted to, was considered, was dealt with, was negotiated, was on the table. They simply weren't issues at that time and that's where Mr Giddins' evidence about how that process came about is very important.
PN721
This was simply not an issue that was on the table as between the parties and his evidence about that process is of course uncontradicted. So we say the respondent's complete failure to provide any sort of explanation as to why there would be a substantive change at that point in time is powerfully against the construction which is contended for. Can I just deal with my friend's argument about the purposive argument, what's the purpose of sick leave, that sick leave is to be there for people to access when they're sick. Well, that is an argument that applies to any provision for the payment of sick leave in any way, the payment at the end of employment, the payment under cashing out.
PN722
Now the principle that my friend contends is a principle which is already qualified by the Act itself because the Act says, "Look, there can be cashing out in certain particular circumstances" and we say that's only during the life of the employment. But I say this, if that principle was so important why was it that the respondent seeks to embrace and associate itself with that principle, was at pains in the agreement that it entered into when my friend said what was the notorious understanding was the operation of the Fair Work Act, why then pick up two provisions from the award which deal both with cashing out and with payment at the conclusion of employment?
PN723
The principle that sick leave is available in the event of sickness of course is no longer even accepted as limited to those circumstances. It's now regarded as personal carers' leave and also carer's leave, so it's available for use in circumstances other than the sickness of the person who has the entitlement. There are a number of limitations which are accepted in relation to that principle. But can I say my friend has suggested that there's danger in looking to an Explanatory Memorandum. Can I say that the principal argument that we have in relation to cashing out arises from these words, "cashing out". Now those are words which are apt to describe the exchange of a current existing entitlement for cash during the life of employment, and you can see that that's what is covered by looking at the terms in 101(2). So 101(2):
PN724
The terms must require that:
PN725
(a) paid personal carers' leave must not be cashed out if the cashing out would result in the employee's remaining accrued entitlement to paid personal carers' leave being less than 15 days.
PN726
So what my friend is suggests is that there should have been a provision in this agreement that said, "Yes you can get all of your accrued sick leave but you need to leave 15 days in the bank with this employer". For what purpose? For that future period during the period of after the termination of the relationship. That is, in my submission, simply an absurd proposition to put. It is, in my submission, an invitation to error to submit to the Commission that a pay out of accrued sick leave which is a standard provision across a number of agreements and awards is somehow caught by the cashing out provision in section 101 of the Act. Unless there's anything arising from that, Commissioner, those are the only submissions in reply.
PN727
THE COMMISSIONER: All right, thank you very much. The Commission will reserve decision in the matter and the proceedings are adjourned accordingly.
ADJOURNED INDEFINITELY [3.07 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #1 AGREED STATEMENT OF FACTS DATED 05/06/2015........ PN93
WILLIAM JOHN GIDDINS, SWORN.............................................................. PN309
EXAMINATION-IN-CHIEF BY MS DOUST................................................... PN309
EXHIBIT #2 WITNESS STATEMENT OF WILLIAM GIDDINS DATED 5 JUNE 2015 PN318
EXHIBIT #3 SUPPLEMENTARY WITNESS STATEMENT OF WILLIAM GIDDINS DATED 9 JULY 2015........................................................................................................... PN322
CROSS-EXAMINATION BY MR LATHAM................................................... PN324
THE WITNESS WITHDREW............................................................................ PN344
EXHIBIT #4 MUA BUNDLE OF DOCUMENTS............................................ PN372
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