[2010] FWAFB 4801

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Fair Work Act 2009
s.604—Appeal of decision

The Australian Workers’ Union - West Australia Branch
Co-operative Bulk Handling Limited



Appeal against decision - Position requirements - Construction of terms - Extrinsic evidence - Custom and practice - Intention of parties - Dispute resolution.

[1] On 7 April 2010, in Perth, we granted permission to appeal to the Australian Workers’ Union - West Australia Branch, against the decision of Commissioner Williams that weighbridge duties form part of the duties of plant operators employed by CBH Ltd. under the Geraldton Plant Operators Union Collective Agreement 2008 (agreement). These are our reasons for quashing the Commissioner’s decision and finding that the position requirements of plant operators in cl 8 of the agreement do not require plant operators to carry out weighbridge duties.

[2] The AWU had applied for a dispute resolution process to be conducted in relation to a dispute between it and CBH that, by the terms of the agreement, may be resolved using a dispute resolution process conducted by the Australian Industrial Relations Commission (now Fair Work Australia by virtue of the transitional legislation). By virtue of the provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 the matter was conducted pursuant to s.709 of the Workplace Relations Act 1996.

[3] Clause 22 of the agreement deals with dispute settlement, and by cl 22.2, it is clear that the process applies to any question, dispute or difficulty arising out of the operation of the agreement. Clause 22.7 empowers the Commission to exercise powers of conciliation and, if necessary, arbitration. The decision under appeal was one that arose from an arbitration.

[4] The issue in question can be simply put - Are weighbridge duties part of the plant operators’ duties under the agreement?

[5] Plant operators at the Geraldton port who are covered by the agreement are involved in loading of grain for shipping. With some minor exceptions, they have not been required to carry out weighbridge duties. It is not disputed that weighbridge duties are within their skills and competencies.

[6] The Commissioner set out the relevant clauses in his decision. On a literal reading of the position requirements of plant operators at cl 8.1, weighbridge duties seem to fall within that position description. The Commissioner found to that effect because he was of the view that, in the absence of ambiguity as to the meaning of cl 8, he was not permitted to consider any extrinsic material such as past custom and practice or what had transpired in the negotiations for the agreement or its predecessors.

[7] The reason that the Commissioner adopted that approach was because he considered that he was bound by authority not to have regard to extrinsic material. In so holding, the Commissioner erred.

[8] The Commissioner applied what he understood to be the reasoning of a Full Bench of the Australian Industrial Relations Commission in Swire. 1 He considered that the first question to be resolved was whether the relevant terms of the agreement are ambiguous and susceptible of more than one meaning. Having found that they were not, the Commissioner held that “[c]onsequently I am not able to consider any of the extrinsic evidence and information that the applicant has asked the Commission to consider such as custom and practice of the parties in the past or the negotiations leading up to the making of the Agreement.”

[9] We note that at first instance neither party argued that regard could not be had to extrinsic material in aid of ascertaining the true meaning of the clause in question. Arguably the commissioner denied the parties natural justice in not giving them an opportunity to address him on this issue. This would have amounted to error.

[10] On the appeal we were taken, by Mr M Cox of counsel, who appeared for the appellant, to many authorities to demonstrate that the Commissioner had misconstrued his role in ascertaining what the meaning was of the disputed clause.

[11] Swire was decided shortly after a decision in Watson 2, where Vice President Lawler also considered the approach to be taken in interpreting certified agreements. The Full Bench in Swire did not refer to the decision of Watson.

[12] Neither Swire nor Watson is authority for the proposition that in resolving the question of whether terms of an agreement are ambiguous and susceptible of more than one meaning, regard may not be held to extrinsic material. In so holding the commissioner erred. Because the manner in which agreements should be construed is in issue in this appeal, it is worthwhile extracting, in full but omitting footnotes, the distillation of the law by Vice President Lawler in Watson:

[13] Recently, Logan, J, after citing the passage from Kucks succinctly stated:

[14] The extract from Watson and the approach of Logan, J, inform the manner in which we approach the test of construing the agreement and leads to the conclusion that regard must be had to extrinsic material in order that the meaning of the clause in question may properly be understood.

[15] Clause 8 of the agreement sets out the requirements for the position of a plant operator. It relevantly reads:


[16] It is readily apparent that no specific mention is made of the performance of weighbridge duties amongst the functions and operations required of plant operators as set out in cl 8. It is, however, common ground that weighbridge functions are within the skills and competencies of plant operators; indeed, operation of the weighbridge is a task that can be, and was until recently, performed by persons of a lower classification than that of plant operator. It is also common ground that it is necessary that weighbridge functions are performed in the “receival, storage, caretaking and out loading of grain and other products.”

[17] In the course of his reasons the Commissioner outlined some of the background materials to which he concluded he could not have regard in interpreting the clause in question. He noted that plant operators covered by the agreement have historically carried out work at the Geraldton port involving the loading of grain for shipping, but that customarily they have not been required to carry out weighbridge duties. The CBH training documentation and plant operators’ manual do not expressly refer to the performance of weighbridge duties by plant operators. Plant operators at Geraldton have occasionally carried out such duties, but only on an ad hoc basis, for a specific purpose and pursuant to specific arrangements made between the plant operators and CBH and which were recorded in memoranda. During the negotiations for the agreement the AWU offered to include in the proposed agreement provisions for plant operators to perform weighbridge duties (obviously at a price) but CBH did not agree to that. There was also evidence that in the 2004 negotiations for the predecessor agreement, CBH had proposed that plant operators take on weighbridge duties, but then withdrew that proposal. The Commissioner also noted that weighbridge work at the Geraldton port has been historically performed by other employees who are covered by the Clerks (Grain Handling) Award 1977. Further, grain cannot be received or out loaded without being weighed, and to do so would be contrary to the Bulk Handling Act 1967 (WA). The contentious words in cl 8 of the agreement also appear in other agreements covering plant operators at Kwinana, Albany and Esperance ports, at each of which ports weighbridge work is performed by plant operators covered by those agreements.

[18] Having regard to the matters to which we have alluded, we agree with the submissions of the appellant that it was the objectively discernable intention of the parties in the formation of the agreement that weighbridge duties would not form part of plant operators’ duties under the agreement. Considered objectively, the extrinsic material establishes that the intention of the parties was not to have weighbridge duties included in the scope of operators’ duties.

[19] CBH submitted that on the face of the agreement it clearly encompassed weighbridge duties because they are part and parcel of the receival and out loading of grain. CBH also placed considerable weight on the fact that plant operators perform weighbridge work at Kwinana, Albany and Esperance where the relevant clauses of the operative agreements are in similar terms to cl 8 of the agreement.

[20] Whilst the points made by CBH are sound, in our view they emphasize two things - the ambiguity of the clause, despite its superficial lucidity, and the importance of having regard to the context in which an agreement was negotiated. In our view, neither of the matters referred to by CBH derogates from the meaning of the clause as intended by the parties during their negotiations. The extrinsic material, particularly the negotiations in 2004, as well as for the present agreement, about weighbridge duties, inexorably leads to the conclusion that those duties are not contemplated by the agreement as being part of the duties of plant operators. That there is no specific reference to those duties at cl 8 is consistent with that intention. Here, as contemplated by Burchett, J in Short v FW Hercus Pty Ltd the extrinsic evidence is admissible both to raise and resolve an ambiguity. 4

[21] We formed the view that it was in the public interest to grant leave to appeal in circumstances where the Commissioner had misconceived his ability to have regard to extrinsic material and where it is at least arguable that there is no clear authority on the issue at full bench level. We also granted leave on the conventional ground of demonstrable error.

[22] CBH also argued that there was no competent appeal before us because the appellant had not complied with the Fair Work Australia Rules 2009 that require that three copies of a paginated appeal book be lodged at the same time as the notice of appeal is lodged. Although it is important that the rules be complied with, in the circumstances we dispensed with those requirements.



M. Cox, of counsel, for the appellant.

A. Cameron for the respondent.

Hearing details:


 1   Swire Cold Storage Pty Ltd (Victorian Transport Workers) Agreement 2005 [2008] AIRCFB 397 at [33]

 2   Kenneth Watson & ors v ACT Department of Disability Housing and Community Services (2008) 171 IR 392 at [8] - [14]; [2008] AIRC 29

 3   Commonwealth, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [39].

 4   (1993) 40 FCR 511 at p.519

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