AREEA examines a recent Fair Work Commission Full Bench decision which considered the principles of agreement interpretation.
In a recent decision, a Full Bench of the Fair Work Commission (FWC) has upheld a decision of Deputy President Sams concerning the correct classification of a small group of Qantas Ground Services Pty Ltd (Qantas) employees.
The decision has highlighted the importance of careful drafting of an enterprise agreement to ensure the text clearly and unambiguously reflects the bargain struck.
The Transport Workers Union (TWU) lodged a dispute application with the FWC in which it sought to have a small group of Qantas employees, known as Commissionaires, reclassified as Ground Crew Level 3 (GC3) Year 2, under the Qantas Ground Services Pty Ltd Ground Handling Agreement 2015 (the 2015 Agreement).
These employees are engaged by Qantas to transport elderly, disabled and less mobile passengers between check-in areas and aircraft, and around and between terminals.
The TWU argued the Commissionaires performed ‘passenger handling’ duties, so should be classified as GC3 Year 2, rather than level 2. Qantas disputed the proposition, and maintained the employees are, and have always been, correctly classified at level 2.
Decision at first instance
Deputy President Sams framed the issue for determination as follows:
“In short, the Commission’s task is to ascertain the objective intention of the contested words, based upon the language and terms of the 2015 Agreement, when read as a whole, having regard to its context and purpose,” he said in his decision.
“At the risk of oversimplifying the eloquent submissions of both parties, it seems to me that the gravamen of this case, is really to answer one question – what is the ordinary meaning of the term ‘passenger handling’?.”
The Deputy President found the expression ‘passenger handling’ in the 2015 Agreement’s context was not ambiguous, uncertain or capable of more than one meaning. Based on the case authorities, he therefore considered it ‘impermissible’ to call in aid of interpretation evidence of surrounding circumstances to give the words a different meaning to their plain, ordinary meaning.
The Deputy President determined that the Commissionaires did perform ‘passenger handling’ duties. Accordingly, they should be classified as GC3 Year 2 under the 2015 Agreement, he found.
Grounds of Appeal
Qantas appealed the decision on three grounds. Qantas contended that the Deputy President:
- erred in determining that the role of the Commissionaires employed by Qantas should be classified as GC3 under the 2015 Agreement;
- erred in that he did not correctly apply the principles of construction of enterprise agreements and
- failed to consider, or properly consider, the language of the relevant provisions having regard to their context and purpose.
The Full Bench determined that there was no appealable error in the original decision, and dismissed the appeal.
The Full Bench agreed that the expression ‘passenger handling’ in the classification descriptor had a plain meaning, even though it was not a defined term or phrase.
This was despite Qantas’ argument that the following would provide assistance in either establishing ambiguity as to the meaning of ‘passenger handling’ or in resolving the meaning of that phrase in the context of the 2015 Agreement:
- the evidence on which Qantas sought to rely to establish the purpose for including the reference to ‘passenger handling’ in the descriptors for the GC2 and GC3 classifications in the 2009 agreement;
- its reasons for not employing persons to undertake ‘passenger handling’ under the agreement;
- the reasons for removing the reference to ‘passenger handling’ from the descriptors of the GC2 classification in the 2013 agreement; and
- that ‘passenger handling’ has a particular industry meaning and usage.
The Full Bench said: “the evidence about the first three of the matters amounts to no more than evidence about the subjective intentions of Qantas.
“There is no evidence that these matters were discussed with bargaining representatives for the various agreements, the representative union or with the employees who voted to approve the various agreements, much less that these matters were acknowledged or agreed.
“As to the fourth matter, we are not persuaded that the evidence establishes the existence of any particular industry meaning and usage that is to be ascribed to ’passenger handling’.”
Having concluded that the expression ‘passenger handling’ has an ordinary and unambiguous meaning, the dispute was resolved by applying Appendix B (which contains classification descriptors), as so interpreted, to the facts concerning the work of the Commissionaires.
The Full Bench agreed with the Deputy President’s conclusion that the most appropriate classification from the range of classifications in the 2015 Agreement for a Commissionaire is GC3.
Implications for employers
This matter provides a number of important lessons for employers and workplace relations practitioners when it comes to agreement making and interpretation.
Firstly, it is vital to ensure any enterprise agreement terms clearly reflect what the parties agree in the bargaining process, or are specifically defined as an additional risk mitigation strategy. This involves making sure any terms are clear on their face value and not reliant on ‘industry meanings’ or ‘understandings’ that can be strategically challenged by other parties.
This decision makes clear, as per previous authorities, that the intentions of the parties including ‘surrounding circumstances’ does not displace the ordinary meaning of the words, where there is no ambiguity or uncertainty.
Secondly, this matter demonstrates the importance of proper record keeping of bargaining discussions throughout the entire process, in case evidence of surrounding circumstances may be brought into play.
The ability to produce clear evidence of matters acknowledged or agreed, rather than simply the employer’s intention or informal agreement of a term’s meaning, may end up being the key determinant in the success or otherwise of defending this type of challenge.
AREEA’s Workplace Relations Consultants are experienced bargaining representatives, appointed under the Fair Work Act, and are regularly engaged to support employer bargaining teams with expert knowledge on agreement making and negotiation in practice.
To speak with an AREEA Consultant, or for further information on the implications of this matter, contact your local AREEA Office.