AC309500  PR550766[Note: An appeal pursuant to s.604 (C2014/1183) was lodged against this decision - refer to Full Bench decision dated 25 November 2014 [[2014] FWCFB 8199] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity - agreement

Qantas Airways Limited
(AG2013/9555)

QANTAS AIRWAYS LIMITED FLIGHT CREW (SHORT HAUL) WORKPLACE AGREEMENT 2007
(ODN )  [AC309500]

Airline operations
VICE PRESIDENT WATSON	MELBOURNE, 16 JUNE 2014

Application for the variation of the Qantas Airways Limited Flight (Short Haul) Workplace agreement 2007 principles of interpretation of enterprise agreements - ambiguity or uncertainty - Superannuable salary - proper meaning of the provisions - mutual intention of the parties - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Introduction

[1] This decision concerns an application by Qantas Airways Limited (Qantas) to vary the Qantas Airways Limited Flight Crew (Short Haul) Workplace Agreement 2007 (which is known to the parties as “EBA 6”). The variation seeks to resolve an ambiguity concerning the inclusion of an allowance paid to Training Captains under EBA 6 known as the “240 hours pa allowance” in the definition of “Superannuation Salary” in the Qantas Airways Limited Staff Superannuation Plan Trust Deed and Rules (the Trust Deed).

[2] At the hearing of this matter on 18, 19 and 20 March 2014 Mr R Kenzie, QC with Mr R Dalton represented Qantas. Mr H Borenstein QC with Mr C Dowling represented the Australian and International Pilots Association.

Background

[3] From the late 1980’s, under various instruments commencing with the Australian Airlines Pilots Award 1989, relevant Training Captains have been paid an annual salary comprising a base salary (based on a minimum number of guaranteed hours), a supervisory allowance of 10%, an allowance of hours to match the planning divisor (since the mid 1990s - 240 hours per annum)(the 240 hours pa allowance), and (since the mid 1990s) a “top up” allowance to match the prevailing hours of other Captains doing line flying.

[4] Qantas and its predecessor, Australian Airlines, have made superannuation contributions with respect to the first two elements of the annual salary but not the latter two. In mid 2012, AIPA claimed that the 240 hours pa allowance was superannuable. After Qantas rejected the claim AIPA commenced Federal Court proceedings alleging a breach of the relevant instruments. The matter has also been the subject of claims in recent enterprise bargaining negotiations. Qantas has made this application in order to resolve the dispute between the parties by resolving the alleged ambiguity or uncertainty through the variation to EBA 6 that reflects the interpretation Qantas has applied. The variation it seeks is as follows:

1. Clause 21.1.8.2(c)(iii), 21.2.6.2(c), 21.4.6.2(c):

Delete the word “training allowance” and replace it with “supplementary allowance”

2. At the end of clause 21.1.11, insert the words:

“For the avoidance of doubt, the allowances specified in sub-clauses 21.1.8.2(c)(iii), 21.2.6.2(c), 21.4.6.2(c) are not training allowances within the meaning of the Qantas Superannuation Plan Trust Deed and Rules.”

3. The effective date for the operation of orders 1 and 2 is 14 September 2007.

[5] Evidence was given by the following persons:

1. Captain G Tyrrell, Senior Training Captain

2. Captain S. Rivett, Fleet Safety Captain Domestic

3. Mr. M Wagner, Manager Flight Operations Policy and Performance In-Flight Operations - International.

4. Mr.D Richardson, Head of Express Freighters Australia Pty Ltd

5. Mr. A. Dickinson, Manager Industrial Relations and Projects

6. Mr B Hodson, Airline Pilot

7. Mr K Sargeant, former Senior Check Captain, and

8. Captain M Kreiger, Category B Senior Check Captain (SCC).

[6] The evidence covered the history of various agreements and the negotiations leading to the development of EBA 6 and its predecessors.

The Legislative Basis for the Application

[7] EBA 6 is a workplace agreement made under the Workplace Relations Act 1996. It became a “transitional instrument” under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Item 10 (1)(a) of Schedule 3 to the Transitional Act provides:

“10 All kinds of transitional instrument: variation to remove ambiguities etc.

(1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the instrument:

(a) to remove an ambiguity or uncertainty in the instrument;”

[8] A variation can operate from a day before the determination is made: Item 10(2).

[9] The power in item 10 is similar to powers that existed in the Australian Workplace Relations Act 1996 and currently exist in the Fair Work Act 2009. The established approach adopted by this Commission and its predecessors to similar provisions provides guidance for the approach to be applied in this case. The first step is to identify whether there is an ambiguity or uncertainty and this is a jurisdictional fact. 1 If there are rival contentions advanced and an arguable case can be made out for more than one contention a finding of ambiguity or uncertainty will generally be made.2 The Agreement must be construed in context having regard to the words used by the parties to the agreement and their mutual intention at the time the agreement was made.3 The decision of Senior Deputy President Marsh in Beltana Highway Mining Pty Ltd4 sets out a useful summary of the relevant principles to be applied under provisions such as Item 10. Those principles were expressed by her Honour as follows:

“[23] The following guidance can be discerned from authorities which have dealt with s.170MD(6) applications:

• before exercising its discretion to vary an agreement pursuant to s.170MD(6)(a) the Commission must first identify the ambiguity or uncertainty (PR917548 at para.28, Print M2454 at p.3, Print 2431 at para.8);



• the Commission may then exercise the discretion to remove the ambiguity or uncertainty by varying the agreement (PR917548 at para.28, PR903843 at para.7, Print M2454 at p.4);



• the first step i.e. identification of an ambiguity or uncertainty requires the determination of a "jurisdictional fact" (PR917548 at para.33, 199 CLR 135 at 148);



• the correct approach to identifying an ambiguity or uncertainty requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning (PR917548 at para.49, PR903843 at para.7, Print M2454 at p.3);



• the words used in the provision are construed in their context including where appropriate the relevant parts of the parent award with which a complementary provision is to be read (Print Q2603 at para.30 per Munro J);



• s.170MD(6)(a) is not confined to the identification of which words of a clause give rise to an ambiguity or uncertainty. A combination of clauses may have that effect (Print R2431 at para.12);



• the Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention (Print M2454 at p.4, Print R2431 at para.14);



• the Commission's task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. It must avoid contentions that are "self serving" (PR924146 at para.20 and PR903843 at para. 7);



• the second step in the process is the exercise of discretion as to whether or not an agreement should be varied to remove the ambiguity or uncertainty (PR917548 at para.54);



• the Commission may not appropriately use its power to rewrite an agreement to install something that was not inherent to the agreement when it was made (Print Q2603 at para.29);



• the Commission is to have regard to the mutual intention of the parties at the time the agreement was made (PR917548 at para.54) and subsequent conduct of the parties;



• the Commission is empowered to remove an ambiguity or uncertainty by varying an agreement to remove it in a manner which gives effect to the mutual intentions of the parties at the time the agreement was made. The Commission is not limited by the form of the application before it (PR917548 at para.56);



• in looking at the context of a provision the Commission is entitled to consider (46 IR 128 at p.134):



• the effect of a prefatory statement made by the parties at the time when it was introduced into the award;



• the circumstances of the origin and use of the clause;



• the time when and the circumstances under which the instrument is made;



• the entire document of which the contentious provision is part or other documents with which there is an association;



• ideas that give rise to an expression in a document.

[24] In summary, the task is to make an objective judgment as to whether the wording of a provision(s) is susceptible to more than one meaning. If that judgment is in the affirmative then the Commission may exercise its discretion to decide whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.”

[10] The principles of interpretation of enterprise agreements were considered by the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union 5 (Amcor). Gummow, Hayne and Heydon JJ stated:

“30. Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[11] Kirby J said:

“94. ...However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.

....

96. The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.’” (references omitted)

[12] Callinan J stated that there was substance in the abovementioned observations of Madgwick J in Kucks v CSR Limited 6 (Kucks). Callinan J said:

“131. An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties. …”

[13] In Kucks, following the passage quoted above, Madgwick J went on to say:

“But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[14] A leading case in relation to the interpretation of agreements is Codelfa Construction Pty Ltd v State Rail Authority of NSW. 7 The dicta of Justice Mason, as he then was, (with whom Stephen, Aickin and Wilson JJ agreed) has frequently been adopted and applied in matters concerning the interpretation of enterprise agreements. In Codelfa His Honour said (at 352):

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

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

Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”

[15] More recent contract interpretation cases have suggested that the need for ambiguity before considering evidence of surrounding circumstances, may have been overstated by Mason J. The legislation governing the application in this case requires a preliminary finding of ambiguity or uncertainty before the power to vary an agreement arises. It is therefore not necessary to consider these later authorities.

[16] The parties accepted that the primary authorities on the interpretation of enterprise agreements do not support the notion that enterprise agreements are to be construed in accordance with the Acts Interpretation Act 1901.

Relevant Clauses

[17] Clause 21.1 of EBA 6 is headed “Conditions Governing Training Captains Category A/B”. Sub-clause 21.1.8 is headed “Salary”. It provides:

“21.1.8 Salary

21.1.8.1. The hourly pay rate for a Training Captain A/B will be prescribed in this Agreement. The salary package may be further enhanced by a performance-based payment at the sole discretion of the Company.

21.1.8.2. A Training Captain A/B’s annual salary, paid in twelve (12) monthly amounts, will consist of the following elements;

a) Six-hundred and ninety six (696) hours at the Captain’s applicable hourly rate in this Agreement;

b) An additional sixty-six (66) hours (calculated at the Captain’s applicable hourly rate in this Agreement) as a supervisory allowance;

c) (iii) a training allowance of two hundred and forty (240) hours each year at the Captain’s applicable hourly rate;

d) A monthly “top up” amount will also be paid, equivalent to the average of the top 50% of active Training Captains Category D’ hours earned in excess of seventy eight (78) hours for the bid period by the Training Captain A/B’s whichever is the greater, at the applicable hourly rate in this Agreement.

21.1.8.3 The minimum guarantee pay for leave purposes is clauses 21.1.8.2 (a), (b) and (c) above, prorated for the applicable leave period.

[18] Similar provisions are contained in sub-clauses 21.2.6 and 21.4.6 with respect to Training Captains D and E respectively.

[19] Sub-clause 21.1.11 is headed “Superannuation”. It provides:

“21.1.11. Superannuation

Superannuation contributions and entitlements will be in accordance with the Trust Deed and Rules of the Qantas Airways Limited Staff Superannuation Plan, plus the 10% Supervisory Allowance”

[20] The definition of “Superannuation Salary” in the trust deed is as follows:

“Superannuation Salary

a) Subject to paragraph (f) below, the salary to be used for superannuation purposes for a Member in Division 1 or Division 2 who is:

i) A Member of Ground Staff, shall be base pay as determined by the Principal Company, but exclusive of overtime, shift penalties and allowances which are determined by the Principal Company not to be part of base pay;

ii) A Short Haul Flight Attendant, shall be base pay equivalent to 140 hours per calendar month in accordance with the Flight Attendants (Domestic Airlines) Award 1985, but exclusive of any allowances, overtime and shift penalties;

iii) A Long Haul Flight Attendant, shall be base pay equivalent to 149.6 hours per 56 days in accordance with the Airline Flight Attendants (Qantas) Award 1993, plus foreign language allowance but exclusive of overtime and any other allowances;

iv) A Short Haul Pilot, shall be base pay equivalent to 55 hours per calendar month in accordance with the Australian Airlines Pilots Award (1989), plus supervisory and training allowances, but exclusive of any other allowances;

v) A member of Long Haul Technical Aircrew, shall be base pay equivalent to 132 hours per 56 days in accordance with the International Airline Pilots Agreement (1986) or the International Airline Flight Engineer Officers Agreement (1988), as applicable, plus supervisory and training allowances, but exclusive of overseas pay and any other allowances.

b) Subject to paragraph (f) and paragraph (g) below, the salary to be used for superannuation purposes for a Member in Division 3, Division 3A, Division 4 or Division 6 who is:

i) A member of Ground Staff, shall be base pay as determined by the Principal Company, plus actual shift penalties, but exclusive of overtime and allowances which are determined by the Principal Company not to be part of base pay;

ii) A short Haul Flight Attendant, shall be base pay equivalent to 140 hours per calendar month in accordance with the Flight Attendants (Domestic Airlines) Award 1985, plus actual band payments, but exclusive of any allowances and overtime;

iii) A Long Haul Flight Attendant, shall be base pay equivalent to 187 hours per 56 days in accordance with the Airline Flight attendants (Qantas) Award 1993, plus a foreign language allowance but exclusive of overtime and any other allowances;

iv) A Short Haul Pilot, shall be base pay equivalent of 55 hours per calendar month in accordance with the Australian Airlines Pilot Award (1989), plus supervisory and training allowances, but exclusive of any other allowances;

v) A member of Long Haul Technical Aircrew, shall be base pay equivalent to 170 hours per 56 days in accordance with the International Airline Pilots Agreement (1986) or the International Airline Flight Engineer Officers Agreement (1988), as applicable, plus supervisory and training allowances, but exclusive of overseas pay and any other allowances.

c) Subject to paragraph (f) below, the salary to be used for superannuation purposes for a Member in Division 5 shall be an amount determined by the Company from time to time and advised to the Trustee as being the Member’s “fixed annual remuneration” as that term is used in the Company’s remuneration policy from time to time.

d) Subject to paragraph (f) below, the salary to be used for superannuation purposes for a Member in Division 7 shall be an amount determined by the Company from time to time and advised to the Trustee as being the Member’s Superannuation Salary.

e) Subject to paragraph (f) below, the salary to be used for superannuation purposes for a Member of Division 10 shall be the wage or salary at the date of determination (calculated as an annual wage or salary) or such other amount as advised by the Company to the Trustee from time to time excluding commission sums paid for overtime work or other special services or by way of bonus provided that from 1 July 2008 the salary to be used for superannuation purposes will be no less than Ordinary Time Earnings and provided further that during a period of absence from employment without wage or salary their salary shall be determined to continue unaltered until the cessation of such period of absence.

f) Notwithstanding the above definitions:

i) For a Member stationed outside Australia, Superannuation Salary shall be determined by the Company consistent with the above interpretation;

ii) In the case of a Contractor, Superannuation Salary shall be such amount as is advised by the Company from time to time, but not less than the earnings base which applies under the Superannuation Guarantee (Administration) Act 1992;

iii) The Principal Company may, for one or more purposes of the Rules, determine the amount of a Member’s Superannuation Salary to be a different amount if it decides that special circumstances warrant such determination;

iv) For a Member who is receiving a Disability Benefit, Superannuation Salary will be deemed to be that which would have applied if the Member had remained in the same classification as applied when the Member first became Totally but Temporarily Disabled;

v) Any reference to an award or an agreement in the above definitions, includes any variations or replacements of that award or agreement from time to time;

vi) For a Flight Attendant or member of the Technical Aircrew who works on a part-time basis a pro rata equivalent of the relevant salary definition will apply;

vii) This definition may be refined by the Principal Company in the event of changes to the method of determining pay;

viii) In the case of a Division 6 Transferring Member the salary to be used for superannuation purposes may be as otherwise agreed between the Company and the Member.

g) Notwithstanding the above definitions, for Members of Division 3A and Division 6, from 1 July 2008, the salary to be used for superannuation purposes will be no less than Ordinary Time Earnings.”

Are the provisions Ambiguous or Uncertain?

[21] Qantas contends that sub-clause 21.1.11 of EBA 6 is the only provision of the agreement regarding superannuation and its terms require reference to the trust deed in order to understand its meaning. It contends that the reference in the trust deed to “supervisory and training allowances” is not defined and not self-defining. Further, it contends that the title of an allowance does not determine its nature and the contested allowance in this case is not paid for the status and responsibilities attaching to the Training Captain role, but to compensate for a consequence of performing the role - the inability to earn flying hours in a roster relative to line flying pilots. Qantas contends that this context manifests an uncertainty or at least provisions that are susceptible of more than one meaning.

[22] AIPA contends that the training allowance in clause 21.1.8 is properly a training allowance for the purposes of the trust deed, the words in the agreement and the trust deed are consistent and there is no ambiguity or uncertainty in their application.

[23] In my view Qantas has established that there is an ambiguity or uncertainty in the operation of these provisions. There is no mention of training allowances in the superannuation provision of EBA 6 - but there is a reference to the inclusion of the 10% supervisory allowance in the superannuable salary. The reason for this selective reference is unclear. The reference to contributions to be in accordance with the trust deed requires consideration of the terms of the trust deed to ascertain the nature of the obligation in EBA 6. The relevant instruments were made at different times and have operated in conjunction with other instruments over time.

[24] The reference to allowances in the trust deed expressly includes supervisory and training allowances but also expressly excludes all other allowances. I accept that it may be contended that a reference to a training allowance could mean anything termed a training allowance. However it may also be contended that it is intended to describe the nature of the allowance rather than the terminology used to describe it. Further, the training allowance in EBA 6 does not appear to be associated with the activity of training as such and therefore the competing contentions have real significance. In my view therefore the combination of these considerations gives rise to an uncertainty and an ambiguity as to the proper meaning of these provisions and in particular the nature of Qantas’s obligation as to the rate of superannuation contributions under EBA 6.

The Mutual Intention of the Parties

[25] Once it is established that an ambiguity or uncertainty exists it is necessary to ascertain the meaning of the words used by the parties in expressing their agreement by reference to the context of the agreement and the objectively determined mutual intention of the parties at the time the agreement was made. 8 The Commission should endeavour to find the industrial purpose behind the disputed provision.

[26] The history of the relevant provisions is not in dispute. The Australian Airlines Pilots Award 1989 contained definitions of various types of Captain. “Training Captain” was defined to mean a captain, other than a check captain, who is appointed by the employer to perform in-flight instruction. Training Captains received an additional 8.5% on top of base salary and check captains received an additional 10%. Qantas contends that the history discloses that these allowances were to recognise the pilot’s skills and the extra work involved in training. Standard form contracts and individual contracts of employment were in similar terms and provided for the inclusion of the additional allowances. These references became relevant because the superannuation fund applied to pilots following the 1989 pilots dispute was an accumulation fund. It replaced a defined benefit fund that earlier applied.

[27] The relevant clause of the Trust Deed has its origins in 1995 when amendments were made to the Trust Deed to reflect the integration of Australian Airlines into Qantas. The previous salary clause was replaced with a clause that is relevantly the same as the current provision.

[28] The reference to the 240 hours per annum as a training allowance arose from a claim to enhance the “top-up” component of pilots salary and was reflected in a letter of agreement entitled LOA4 entered into in May 2001. Although there was no negotiation of the allowance at the time there appears to have been a brief discussion about what the allowance was to be called. Captain Richardson recalls suggesting “training allowance” and the parties considering it preferable to the previous term of check/admin allowance. Captain Richardson said that he did not have any regard to the terms of the trust deed when deciding to call the allowance “training allowance”.

[29] In the course of documenting LOA4 a clause regarding superannuation was formulated which was similar to the equivalent term in EBA 6. However the wording was slightly different. It read:

“Superannuation contributions and entitlements will be in accordance with the Trust Deed and Rules of the Qantas Airways Limited Staff Superannuation Plan and consist of base pay plus the 10% supervisory allowance.”

[30] This wording was replicated in EBA 5 which was made in 2002. A change to this wording occurred in EBA 6 by the deletion of the words “and consist of base pay”. Mr Wagener gave evidence that these words were deleted, to the best of his recollection, so that the Trust Deed would be the single source of what constituted base pay. It did not involve the inclusion of the 240 hours pa allowance into superannuation contributions. He said that no such claim was made to that effect by AIPA.

[31] Qantas led evidence of its practice in not including the 240 hours pa allowance into the superannuation contributions and the recent origin of the claim that it should be included. Evidence led by AIPA establishes that the claim that the relevant instruments required inclusion of the allowance have been pressed since 2009 and that prior to that pilots assumed that Qantas’s practice was in line with the agreement. AIPA submits that these circumstances cannot be said to amount to evidence of any common understanding.

[32] A number of observations can be made about this history and context. It is important to note that the task of interpreting EBA 6 does not directly relate to the wording of EBA 6 itself. Rather it involves considering the interaction between EBA 6 and other documents that are referred to in EBA 6 and were developed earlier when different circumstances existed. There is no clear literal interpretation of the disputed provisions.

[33] The history of the relevant provisions does not include any evidence of a claim made to include the allowance into superannuation calculations. The change made in wording from EBA 5 and EBA 6 was not intended to effect a change in the level of superannuation contributions. The wording utilised in EBA 5 expresses the level of contribution in a comprehensive manner whereas the wording adopted in EBA 6 was intended to allow the words in the Trust Deed to play a greater role. The wording in EBA 5 suggests that the 240 hours pa allowance was not included in the superannuation calculations of salary. In my view, considering this material objectively, the negotiating parties did not mutually intend a change in practice. Nor could a consideration of the wording of the agreement have led to a perception that the allowance was to be included. The history suggests that whatever might have been intended to be included as a training allowance, this did not include the 240 hours pa allowance that was renamed a training allowance in 2001.

[34] In my view there was no intention to include the 240 hours pa allowance in superannuation calculations in 1995 when the trust deed was formulated, no such intention in 2001 when the allowance was re-titled a training allowance, no such intention when the wording of LOA 4 was included into EBA 5 in 2002-3 and no such intention when the wording was changed in the course of negotiating and finalising EBA 6 in 2007.

[35] Further I do not regard the 240 hours pa allowance as a training allowance in the conventional sense.

[36] In all the circumstances I conclude that the reference to training allowances in the Trust Deed was not intended by the parties to cover the 240 hours pa allowance and the proper interpretation of the provisions is that the allowance is not payable for superannuation purposes under the EBA 6.

Should EBA 6 be Varied?

[37] The final question that arises for determination is whether a change in the agreement should be made. It has been observed that having ascertained the mutual intention of the parties it would be unusual for other factors to weigh in favour of not making a variation that reflected that interpretation 9. Other considerations include the objects of the relevant legislation and overall fairness considerations.

[38] In my view all of the circumstances suggest that a variation that reflects the mutual intention of the parties and the long-standing practice of the employer should be reflected in the agreement. I therefore grant the application. An order reflecting the changes sought in the application is issued in conjunction with this decision.

VICE PRESIDENT

 1   CoInvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [43]-[46]

 2   Re Victorian Public Transport Enterprise Agreement, 1994 Print M2454; Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-4 PR917548 at [31]

 3   Amcor Ltd v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union (Amcor) (2005) 222 CLR 241.

 4   PR932468

 5   (2005) 222 CLR 241.

 6   (1996) 66 IR 182.

 7   (1982) 149 CLR 337

 8   CPSU v Telstra (2005) 139 IR 141 at [38]-[39].

 9   Ibid at [48].

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