PR942266 AG826751 PR942266 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW application for settlement of dispute The Australian Workers' Union and Co-operative Bulk Handling Ltd (C2003/280) Grain handling industry COMMISSIONER THATCHER PERTH, 19 DECEMBER 2003 Proper application of agreement - use of extrinsic material. DECISION [1] A dispute exists between the Australian Workers' Union, West Australian Branch (AWU) and Co-operative Bulk Handling Limited (CBH) about the proper application of the Co-operative Bulk Handling Limited Country Operators Enterprise Partnership Agreement 1 (the agreement) which came into force on 5 August 2003. 2 [2] The agreement contains a dispute resolution and avoidance clause (clause 12), the relevant provisions of which are as follows: "The parties recognise the importance of providing an uninterrupted service to customers, shareholders and clients and agree that any issue in dispute should be able to be resolved without recourse to industrial action and within an informal framework as much as possible. To facilitate the resolution of any question, dispute or difficulty arising out of the operation of this agreement , work will continue as normal, and the following procedure shall apply: (a) ... (b)... (c) Where appropriate Company representatives and relevant Union Officials cannot resolve the issue in dispute, reference may be made to the Australian Industrial Relations Commission for the resolution of any such dispute." 3 [3] On 23 October 2003 I convened a conference during which conciliation on the matter in dispute was unsuccessful. Consequently the parties requested that the Commission exercise its powers of private arbitration 4 and determine certain rights and liabilities under the agreement. Specifically, the Commission is asked to determine whether the agreement, as it applies to casual Receival Point Operators (RPOs): "requires casual employees to be automatically classified as "Casual experienced (By Appointment)" after having been employed for two harvests or not?" [4] The Commission's powers of private arbitration are derived from the terms of the agreement between the parties and s.17OLW of the Act. 5 Section 17OLW (Procedures for Preventing and Settling Disputes) prescribes: "Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following: (a) to settle disputes over the application of the agreement; (b) ...." 6 [5] The parties did not take issue with the Commission's jurisdiction. Further I am satisfied that the Commission has jurisdiction to exercise its powers to determine the matter as: (i) The character 7 of this dispute is such that it is a dispute "arising out of the operation of this agreement"; (ii) This is a dispute "over the application of the agreement"; and (iii) The term "for the resolution of any such dispute" implies a finality that enables the Commission to exercise whatever powers are required to finally determine the dispute, including the power to arbitrate if necessary. 8 [6] At the time of the hearing both parties expressed doubt if the circumstances that lead to the compulsory conference still existed, as the employees involved at that time are all being paid at the casual experienced rate. However the AWU advocate indicated that "there are a couple in the Merredin district" 9 and CBH, although expressing the view that "we are seriously in doubt as to whether there really is a factual dispute before the Commission and whether this is not just an academic dispute at this stage", stated that it "would like some certainty on the matter". 10 Context [7] The context of the industry and enterprise in which the dispute has arisen is relevant in proceedings of this nature. CBH operates as a co-operative and receives, handles and out-loads more than a third of the nation's grain product at 197 receival points throughout the grain belt of Western Australia. The harvest commences in the north and ends in the south and generally lasts for around 10 weeks, within the period from approximately mid-October to the end of January. [8] CBH employs approximately 150 permanent RPOs and casuals during periods of demand when the permanent workforce proves insufficient. During the harvest season CBH engages casuals, generally recruited at a local level, as grain samplers, weighbridge officers and RPOs. In July there were 60 casuals to be covered by the agreement, by the beginning of November there were 353 harvest casuals and at the time of the hearing in early December that number had increased to approximately 1500. [9] When first recruited, full time RPOs start on the "on commencement" rate in the agreement and have the ability to proceed through grades 3, 2 and 1 if they successfully complete the appropriate CBH RPO development programs. Those arrangements also applied under the former CBH Country Operators Enterprise Partnership Agreement (the 1997 agreement). [10] Casual RPOs are not required to complete any programs to become a "casual experienced". Parties [11] The position of the AWU as expressed by Mr Llewellyn 11 is that there are two methods of progression for a casual to the experienced rate, namely: The employee is to have 2 seasons' experience. The employee may be appointed by the Zone Manager. [12] The AWU position is based on three main grounds 12 : (a) At meetings to explain the agreement to employees (before they voted) that were undertaken by the AWU with the authority of CBH, this was what was explained by the union. (b) The wording of the agreement supports this position in that it provides one path being the 2 seasons experience unless appointed by the Zone Manager. Subclause 11(k) provides: "(k) Unless appointed by the Zone Manager a casual employee must complete two harvests before upgrading to the experienced rate." (c) If the union's position is not accepted, a casual RPO with experience who has not been classified as a "casual experienced" would be paid less than a full time RPO with no experience on the "on commencement" rate (after notionally adjusting for a 17.5% casual loading). Other comparisons also support the AWU interpretation. [13] The CBH position as expressed by Ms Kruger is that 13 : (a) Casual employees can only be classified as "Casual experienced (By Appointment)" as prescribed by clause 11(e) of the agreement if so appointed by CBH. (b) The general criteria for determining whether an appointment as a casual experienced is made are not contained in the agreement. However, such an appointment will usually not be forthcoming until the casual has completed two harvests. (c) In deserving cases the Zone Manager does, however, have the authority to make an appointment to the casual experienced rate where a casual has not yet completed two harvests. This authority is contained in subclause 11(k) of the agreement. (d) There are no words in subclause 11(k) that suggest that upgrading to the casual experienced rate is automatic after the completion of two harvests. The ordinary meaning of the words indicate that upgrading to that rate is not possible before the completion of two harvests, unless there is an appointment by a senior level of management, i.e. the Zone Manager. [14] The Commission was provided by the AWU with evidence of a CBH email dated 20 October 2003 to Zone Managers, District Managers and others that outlines company policy on appointing casual RPOs to the casual experienced (RPO) rate as follows: "(a) Senior RPO's will nominate suitable casual RPO's to the casual experienced rate after two satisfactory harvests have been completed (casuals who the SRPO's believe should be rewarded for their performance, effort and willingness to learn). A list of suitable appointments to be forwarded to their relevant supervisor for endorsement. The supervisor may then recommend to the District/Zone Manager the casual be upgraded to casual experienced. The Zone/District Manager may under his/her discretion authorise and approve the appointment to casual RPO experienced, by sending a confirmatory email or memo to Leh Tan (Payroll Supervisor). Once payroll have received the authorisation they will process the necessary changes. District/Zone Managers can only authorise the appointment of casuals to Casual experienced as per the current Country Operators Enterprise Agreement. Promotion to the casual experienced rate is based on work performance. (b) In exceptional circumstances a casual may be upgraded to casual experienced before 2 harvests have been completed; 1. Placed in charge of a bin. 2. Performance, willingness to learn and leadership potential are stand out and exceptional (same process as above). If you have any queries please contact Jim Fuller (extn...) or Natasha Waclawik (extn ...)" 14 Consideration [15] In resolving a dispute over the proper application of an agreement weight is given to the ordinary and natural sense of the words used in the relevant clause(s) in the agreement and within the context of the agreement taken as a whole. Words should be given their plain and ordinary meaning unless the contrary is shown. Words used should not be interpreted in a strict, technical fashion because those who framed the agreement are often non-lawyers who draft words in the context of custom and practice in the industry or enterprise. The Commission should strive to give effect to the mutual intention of the parties at the time of making the agreement. 15 [16] There is no definition of "experienced" or "casual experienced" in respect of an RPO in the agreement, and the starting point is to examine the ordinary and natural sense of the relevant provisions of clause 11 (Wages) within the context of the agreement and this enterprise. [17] Clause 11 includes the following: "11. WAGES ..... (b) Attainment of grades will be in accordance with the Company's Receival Point Operator and Plant Operator Development Programmes. ..... (e) In acknowledgement of the productivity, flexibility and efficiency measures identified in this Agreement, the following rates of pay shall be available to all employees covered by this Agreement 3% increase on base rate effective l March 2003 Receival Point Operator Core Hours Additional Hours Wages Senior RPO 19.92866 31.19832 797.14635 Grade 1 18.72984 29.32157 749.19367 Grade 2 17.34006 27.14587 693.60251 Grade 3 16.66109 26.08293 666.44347 On Comm 14.85756 23.25951 594.30227 Civil Maintenance Worker Core Hours Additional hours Wages Grade 1 ... ... ... Grade 2 ... ... ... Grade 3 ... ... ... On Comm ... ... ... Casual Receival Point Core Hours Operator Additional Hours Wages Casual 16.60000 25.98730 664.00000 Casual experienced (By Appointment) 18.10000 28.33555 724.00000 Casual Sampler Core Hours Additional Hours Wages Year One 17.35000 27.16143 694.00000 Year Two 18.10000 28.33555 724.00000 Year Three (By Appointment) 18.85000 29.50968 754.00000 All sampling rates include 75 cents per hour sampling allowance. All casual rates are inclusive of casual loading. (j) Casual Employees Casual employees shall be employed by the day or part thereof with a minimum period of engagement on any day of 2 hours. Casual and temporary employees will not be employed to the detriment of permanent employees. (k) Unless appointed by the Zone Manager a casual employee must complete two harvests before upgrading to the experienced rate ." 16 [18] Clause 6 of the agreement states that: "This Agreement shall be read and interpreted wholly in conjunction with the Western Australian Grain Industry Award 2000. In the event of any inconsistency between the award and this agreement, the agreement shall prevail to the extent of any inconsistency." However there is no reference to "experienced" or similar term in relation to any of the classifications in the award, and its various provisions are of little assistance in the current exercise. Subclause 11(e) [19] Commencing with subclause 11(e), the ordinary and natural sense of the term "Casual experienced (By Appointment)" indicates that a casual RPO is entitled to the higher rate of pay when they come within a specific classification, the key words of which are "experienced (By Appointment)". [20] This implies that for payment of this higher classification the employee must be "experienced". Also, the words "(By Appointment)" are directly relevant to the scope of that term, and the plain and ordinary meaning of the words contained therein indicates that, within this context: the term "By" should be taken to mean "through authority of"' 17 or "of circumstance, condition, manner, cause, reason" 18 ; the term "appointment" means "the act of appointing, designating or placing in office" 19 or "the act of nominating to, or placing in, an office" 20 ; and the use of the term in parenthesis means that the words therein contain explanatory or qualifying words 21 or that the brackets are "used to mark off an interjected or explanatory remark". 22 [21] The ordinary meaning is not assisted by each of the words commencing with a higher case. [22] Therefore taken in isolation in the context of subclause 11(e), the ordinary and natural sense of the term "Casual experienced (By Appointment)" means that for a casual RPO to be entitled to receive the higher wage rate under the agreement the employee must be appointed (by their employer) as a "casual experienced" RPO. [23] This interpretation appears to be supported by reference to the use of the term "(By Appointment)" where it appears in the same subclause to assist describe when a Casual Sampler is entitled to receive a higher rate. Under the rules of statutory interpretation, the view is taken that where a term is used consistently in legislation, it should be given the same meaning. 23 [24] The term used is "Year Three (By Appointment)". The presence of "(By Appointment)" within that term for casual samplers indicates that it involves a process different from the movement from the Year One to the Year Two rates where no qualification of "(By Appointment)" appears and automatic progression is implied on the completion of the years of service. The entitlement to the "Year Three (By Appointment)" indicates it is subject to the completion of two years of service and an appointment to the higher classification. [25] There is some authority to support an examination of prior provisions to assist in the interpretation of current laws, although prior provisions must be used with caution. 24 In this case the 1997 agreement is instructive insofar as it applied to "seasonal employees", as this would include the class of employees who are casual RPOs under the current agreement. (One of the effects of the 2003 agreement was to merge the previously existing classifications of seasonal employee (other than those performing sampling duties) and casual employee into the one classification of Casual RPO.) [26] Clause 9 (Wages) of the 1997 agreement included the following: "(j) SEASONAL EMPLOYEES (i) All provisions and allowances in the award shall continue to apply to seasonal employees. Payment to Seasonal employees shall be made subject to the established criteria of the company which relates to these appointments. (ii) Any seasonal employee allocated to sampling duties will be paid $0.75/k for each hour worked in addition to the hourly rate mentioned below. Seasonal Wages Hourly rate Weekly wage (inc 17.5%) 40 hours Seasonal Employee $11.00/br $440.00 Experienced Seasonal $12.10/k $484.00 (k) CASUAL EMPLOYEES (i) Casual employees shall be engaged by the day or part thereof with a minimum period of engagement on any day of 2 hours. (ii) All provisions and allowances in the award shall continue to apply to casuals except the weekly wage rate shall now be divided by 40 to ascertain the hourly rate. Casual Wages Base Weekly wage rate 40 hours Casual Employee $13.28/hr $531.20" 25 [27] Therefore prior to the current agreement there existed within the classifications for seasonals, a higher rate for an "Experienced" seasonal. Also the 1997 agreement recognized that the employer made "appointments" to the seasonal classifications, including the "Experienced seasonal" classification according to criteria established by CBH that was not outlined in the agreement. It was common ground that such appointments were made by the district manager. [28] Also it was common ground that such process is similar to the arrangements included in the CBH email 26 , which outlines the criteria that CBH is applying in appointing casual RPOs to the casual experienced RPO classification (with the exception of the expedited arrangements included in subclause 11(k)). 27 [29] Given all of the above, within the context of subclause 11(e) in isolation , the most obvious interpretation of the issue in dispute is that the higher rate of pay applies to casuals when they are appointed as an experienced casual, according to an appointment process of the employer. [30] However, subclause 11(e) cannot be viewed in isolation and the question is how that subclause is affected by subclause 11(k) and, specifically, whether subclause 11(k) has the effect of casual RPOs being upgraded automatically if the casual RPO has completed two harvests (unless appointed earlier). Subclause 11(k) [31] What then is the ordinary and natural sense of subclause 11(k) which, it is common ground, is a provision that was agreed to following discussion at the last meeting of the committee that negotiated the agreement. [32] In context, the plain and ordinary meaning of the word "unless" should be taken to mean "except when". 28 Further the subclause prescribes an exception, or "an instance or case not conforming to the general rule." 29 That exception is described in subclause 11(k) as "Unless appointed by the Zone Manager". [33] It was common ground amongst the parties that the exception has the effect that a Zone Manager has the discretion to appoint a casual RPO with less than 2 harvests' experience to the "Casual experienced (By Appointment)" rate. [34] Therefore the crux of the dispute is the effect of the "general rule" 30 as stated within subclause 11(k), namely : "... a casual employee must complete two harvests before upgrading to the experienced rate". [35] The options advanced by the parties are that: Option 1 - the CBH submission. A casual RPO must complete two harvests before being eligible to be appointed to the experienced rate. The general rule refers to one of the criteria that is generally applied by the employer in exercising its discretion to decide whether or not to make appointments to the experienced classification. However the completion of two harvests is not the only criteria, and the other is not acknowledged in the agreement. This is because the purpose of the subclause is to provide for the exception to the two harvests criterion. Option 2 - the AWU submission. An existing casual RPO or a person who is to be appointed as a casual RPO who has completed two harvests must be upgraded to the experienced rate. There is no other criterion. [36] The positioning of the word "must" within the subclause assists the argument in support of Option 1. It is positioned before "complete two harvests" making it mandatory (excluding the exception) that two harvests be completed. No similar imperative is explicit in respect of the act of "upgrading to the experienced rate" for employees who have completed two harvests, as Option 2 would suggest. At best it would be implicit. [37] The argument in support of Option 2 turns on the word "upgrading" and that this has a meaning similar to how full time RPOs move between grades, namely that (in the AWU's submission) the upgrading occurs "automatically" subject to the RPO successfully completing the CBH Receival Point Operator and Plant Operator Development Programmes. [38] On the other hand CBH submitted that there is nothing in subclause 11(k) to override the words "By Appointment" within subclause 11(e), which indicates a discretionary process, without exception. The words "(By Appointment)" cannot be ignored. 31 [39] Mr Roy of the AWU also advanced the view that the term "(By Appointment)" includes the actions of the employer to appoint a person as "at the point of hire", i.e. that the term "appointment" can be read as if it means "engagement". This is not accepted as in such instances those words would be superfluous in an industrial instrument. A similar argument would apply to other classes of employees and there is no reference to "(By Appointment)" within other classifications in the agreement. [40] An argument against the CBH view is that unlike the 1997 agreement (in relation to seasonals), there is nothing explicit in the agreement to suggest that appointments to the experienced classification are based on criteria applied by CBH that are not outlined in the agreement or that the criterion referred to in subclause 11(k) of the agreement is not the only one. Given that a criterion is included in the agreement, is it not unreasonable to assume that there are no other criteria. Wage comparisons [41] Both parties also sought to justify their interpretation of the agreement by referring to a comparison of the rates of pay for casual RPOs with those prescribed for full time RPOs. I found these arguments unpersuasive. [42] One reason is that the rates payable to full time employees are according to grades that are dependent upon the completion of development programs, whilst the rates to casuals are not. Another reason is that the fact that a base grade casual RPO attracts a rate less than the equivalent of an RPO on commencement (adjusted notionally for a 17.5% loading) under the current agreement is not dissimilar to the comparison that existed for seasonals under the 1997 agreement. [43] In addition, in determining the proper application of an agreement, the Commission is not to determine what is fair and just. As stated by Madgwick J in Kucks v CSR Limited 32 : "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 in an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning." Extrinsic material [44] I have come to the conclusion that subclause 11(k) is ambiguous and susceptible to more than one meaning. [45] Both parties lead evidence on the negotiations that lead to the agreement. Also, the AWU lead evidence on the consultation process with employees prior to the agreement being certified by the Commission. The witnesses called were: For the AWU: Mr Dominic Ripepi, an RPO and chair of the committee of employees that negotiated with CBH representatives on the proposed agreement. Mr John Roy, an employee of the AWU in the Bunbury Office who participated in the negotiations. For CBH: Mr James Fuller, Manager, Industrial Relations who lead negotiations on behalf of CBH. Ms Natasha Waclawik, Employee Relations Officer, who assisted Mr Fuller in negotiations and was responsible for compiling the minutes of meetings. Mr Rhys Ainsworthy, the Manager, Grain Operations, who was involved in some of the negotiations. [46] The principles governing resort to extrinsic material in the construction of agreements were stated by Mason J in Codelfa Construction Pty Limited v State Rail Authority of NSW 32 : "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." [47] After taking into account all of the evidence the parties put before me (and excluding as appropriate the evidence of the "actual intentions, aspirations or expectations of the parties") I am satisfied that the salient objective facts within which the agreement came into existence include: (i) Negotiations on the agreement commenced in August 2002 and, after being interrupted by the harvest season, continued until a final meeting of the negotiating parties was held on 16 May 2003. During this process there was an unsuccessful vote on a formerly proposed agreement. 33 (ii) It was the practice for Ms Waclawik to compile brief minutes of the negotiation meetings and to distribute these to all of the parties present. 34 (iii) During the course of the negotiations, up until the last meeting CBH had indicated to the AWU representative that it was not prepared to agree to movement to the new casual experienced rate other than on a "by appointment" basis. Mr Roy described the CBH position as "fairly intractable". 35 This had been included in the draft agreement leading up to the final meeting. 36 (iv) During discussions with the AWU over the appointment criteria, CBH had suggested that a criteria for appointments be the completion of two harvests. 37 No reference was made to any criteria in the draft document leading up to the meeting of 16 May 2003. 38 (v) The appointment criteria became a discussion point during the final meeting which was attended by Mr Fuller, Mr Ainsworthy (for at least part of the time) and Ms Waclawik for CBH and a committee of employee representatives (lead by Mr Ripepi) and Mr Roy as the AWU representative. This occurred in the context of union and employee concerns that inconsistent practices could be applied by various district managers. A suggestion was made by Mr Ripepi that two harvests be the sole criteria 39 . Other ideas were "bandied around". 40 The CBH response included concern about how this would apply to a casual whose performance did not warrant payment of the higher rate. 41 (vi) CBH representatives did not agree to this suggestion at the meeting. 42 Also CBH representatives would not agree to remove the words "(By Appointment)" from the draft agreement. 43 (vii) At the meeting, discussion moved to how a two harvests criterion could hold back an exceptional performer and a suggestion was made that a casual could be appointed to an experienced casual rate with the approval of the Zone Manager. This was agreed to. 44 (viii) The minutes of the meeting of 16 May 2003 do not include any reference to the two harvests suggestion or any variation thereof. 45 (ix) At the conclusion of the meeting CBH representatives indicated that CBH agreement to all negotiations would have to be confirmed by senior management. 46 (x) A further draft was prepared by CBH 47 and circulated to the negotiating parties. This included what was to become subclause 11(k) of the agreement. 48 (xi) After some fine-tuning 49 that final draft was signed off by CBH and the AWU 50 , without dialogue on subclause 11(k). 51 (xii) Whilst CBH made individual copies of the agreement available to employees, by agreement between Mr Fuller and Mr Roy arrangements were made for Mr Roy to hold meetings with staff to explain the terms of the agreement. This arrangement was to avoid a "them and us" approach being presented to employees. 52 Those meetings were held by Mr Roy prior to the vote. CBH did not by any systematic means separately explain the agreement directly to employees. (xiii) A vote on the agreement was undertaken by the Australian Electoral Office. On 14 July it declared that a valid majority of employees had approved the agreement. [48] The evidence does not support a mutual agreement between the parties that the agreement as circulated between CBH and AWU representatives contained provision for an automatic upgrading of casual RPOs to the "Casual experienced (By Appointment)" rate after two harvests. Further, I am satisfied that the weight of evidence does not support this being agreed to by CBH. [49] It seems that all parties understood that in entering into the agreement, the completion of two harvests would be a criterion for enabling a casual to be eligible to receive the experienced rate of pay. However if the union and employee representatives were under the impression that it would be the only criterion, the CBH representatives drafted the amendment to read that it was one of the criteria and that another would be applied administratively through the appointment process. [50] The AWU referred to the following conduct by CBH subsequent to the certification of the agreement. I have not placed weight on that conduct for the reasons outlined: (a) The admissibility or otherwise of evidence of subsequent conduct when a court or tribunal is seeking to determine the objective intent of the parties to an industrial instrument, contract, other agreement or document is by no means settled law. 53 (b) A telephone conversation between Mr Roe and Ms Waclawik on the meaning of the agreement. Whilst on the evidence I am satisfied that during the conversation Mr Roy sought to gain a commitment from Ms Waclawik to his interpretation of the agreement, she did not express a view that was contrary to the view that an upgrading to the experienced casual classification was on a by-appointment basis only. (c) Actions by CBH to appoint the 4 casuals who were the subject of Mr Roe's representations to Ms Waclawik to the experienced rate. I am satisfied on the evidence that it was not unreasonable that this occurred after the delegated employee of CBH had assessed each individual after the harvest had commenced and in the context of the responsibilities assumed by them. 54 (d) CBH circulating the email dated 20 October 2003 55 outlining its interpretation of the meaning of the agreement. There does not appear to be anything untoward in CBH undertaking this action, although it would have been beneficial if this could have occurred earlier. [51] Also I have not placed weight on the evidence that the difference in interpretation between the parties did not arise until after a meeting amongst Mr Roy, Mr Fuller and Ms Waclawik on 5 September to discuss the implementation of the agreement. Summary [52] In summary, I have determined that in relation to the dispute the answer to the question posed by the parties is in the negative, namely the proper application of the Co-operative Bulk Handling Limited Country Operators Enterprise Partnership Agreement is that the agreement does not require casual employees to be automatically classified as "Casual experienced (By Appointment)" after having been employed for two harvests. It follows that, taken as a whole, the proper application of the agreement is that: (i) Casual RPOs are classified to the casual experienced rate by an appointment process; (ii) Persons are eligible to be appointed to the casual experienced RPO classification after completing two harvests; (iii) As an alternative to (ii) above, a casual RPO may be appointed to the casual experienced classification not having completed two harvests. Explanation to employees [53] The AWU contends that its members relied on the union's understanding of what the words meant when voting on the terms of the agreement - that resulted in the valid majority necessary to have the agreement certified by the Commission. It raised the issue of whether the agreement would have achieved a favourable vote given the interpretation being placed on the agreement by CBH. Of course, there is no way of knowing if this would have been the case. [54] Section 17OLJ(3)(b) of the Workplace Relations Act 1996 obliges the employer to take reasonable steps to ensure that the terms of the agreement are explained to all affected employees prior to seeking their approval of their agreement. Failure to meet those obligations would render invalid an application for certification of an agreement. 56 [55] It is common ground that CBH assisted Mr Roy of the AWU to undertake this explaining, without a representative of CBH being present. In effect CBH had delegated the explaining function to the union and met its obligation to ensure the terms of the agreement were explained. [56] Mr Roy's evidence was that subclause 11(k) was one of the most frequently raised clauses and that when it was raised he explained its meaning according to what was his understanding. 57 [57] Given the nature of these proceedings, there was very limited evidence before the Commission from employees who attended those meetings and who participated in the vote. Apart from the evidence of Mr Roy, Mr Ripepi's evidence was limited to a meeting at Woolly Park for the Merredin area. 58 Therefore the issue of whether there was a genuine and informed approval of the agreement by a valid majority was not the focus of these proceedings. [58] Of course it is not a function of the Commission in the context of an application under s.170LW to determine whether or not an agreement having been certified by the Commission was validly certified, and neither party sought this. [59] Either party may make application to the Commission under s.170MD(6) of the Act for variation of the agreement to remove the ambiguity and uncertainty that was the subject of this dispute. BY THE COMMISSION: COMMISSIONER Appearances: M Llewellyn for the Australian Workers' Union C Kruger of the Australian Mines and Metals Association for the respondent Hearing details: 2003. Perth: November 18; December 1. Printed by authority of the Commonwealth Government Printer <Price code E> 1 PR935766. 2 PR935766, per McCarthy DP. 3 Emphasis added. 4 Private Arbitration Case (2001) 203 CLR 645. 5 Finance Sector Union of Australia v GIO Australia Limited, Print PR928618, 12 March 2003, per Ross VP, Watson SDP, Larkin C, paragraphs 39 and 68. 6 Emphasis added. 7 Refer decision of Lacy SDP, Maritime Union of Australia v Australian Plant Services Pty Ltd , Print PR908236, 3 September 2001, at paragraph 57 . 8 The reason is similar to that given by a Full Bench in Shop, Distributive and Allied Employees v Big W Discount Department Stores Print PR924554, 12 November 2002, per Watson SDP, Kaufman SDP and Foggo C, paragraph 31 when considering a disputes resolution clause in an agreement which enabled a dispute to be referred to the Commission "for determination". 9 Transcript of proceedings on 1 December 2003, PN1534. 10 Transcript of proceedings on 1 December 2003, PN1492 & PN1493. 11 AWU's Outline of the Applicant's Case, paragraph 5. 12 Ibid, paragraphs 5, 6, 17 & 18. 13 Respondent's written submissions, paragraphs 4,5,6 & 11. 14 See Attachment PR1 of Exhibit L1. 15 Refer to a number of principles of interpretation in a decision of Ives DP in National Union of Workers v Grain Corp Operations Limited, Print PR9l 8161, 11 June 2002 at paragraphs 46 &47. Also decision of Whelan C in National Union of Workers v Ricegrowers Co-operative Limited , Print 931209, 8 May 2003 at paragraph 46. 16 Emphasis added. 17 Refer Macquarie Dictionary, 1991, 2nd edition, page 248, The Macquarie Library Pty Ltd. 18 Refer The Shorter Oxford English Dictionary on Historical Principles, 1973, 3rd edition, Volume I, page 260. 19 Refer Macquarie Dictionary. 1991, op cit, page 1289. 20 Refer The Shorter Oxford English Dictionary on Historical Principles. 1973, op cit, page 92. 21 Refer The Shorter Oxford English Dictionary on Historical Principles, 1973, 3rd edition, Volume II, page 1525. 22 Refer Macquarie Dictionary, 1991, 2nd edition, op cit, page 1289. 23 Statutory interpretation in Australia , 2001, Fifth edition, paragraph 4.2, Butterworths Australia. 24 Ibid, paragraph 3.28. 25 Emphasis added. 26 Refer paragraph 14 above. 27 Refer evidence of Dominic Ripepi, in transcript of proceedings of 1 December 2003, paragraphs PN190 & PN222-228. Also evidence of James Fuller, in transcript of proceedings of 1 December 2003, paragraph PN672. 28 Refer Macquarie Dictionary 1991, 2nd edition, op cit, page 1908. 29 Refer to definition of "exception" in Macquarie Dictionary, 1991, 2nd edition, op cit, page 605. 30 Refer to the use of the term in paragraph 32. 31 All words must be given some meaning and effect - Refer to Statutory interpretation in Australia , op cit, paragraph 2.22. 32 High Court of Australia (1982) 149 CLR 337 at 352. 33 Evidence of James Fuller in transcript of proceedings, paragraph PN699. 34 Refer Exhibit K4, paragraph 4 and evidence of John Roy in transcript of proceedings, paragraphs PN298. Evidence of Natasha Waclawik in transcript of proceedings, paragraphs PN1173. 35 Refer transcript of proceedings, paragraph PN389. 36 Evidence of John Roy in transcript of proceedings, paragraphs PN322 & PN340. 37 Refer evidence of John Roy in transcript of proceedings, paragraphs310-312. Also Exhibit K1, paragraph 9. 38 Transcript of proceedings, paragraph PN384. 39 Evidence of Dominic Ripepi in transcript of proceedings, paragraph PN183. 40 Evidence of John Roy in transcript of proceedings, paragraph PN346. 41 Evidence of Dominic Ripepi in transcript of proceedings, paragraph PN184. Also evidence of John Roy in transcript of proceedings, paragraph PN520. 42 In response to a question as to whether during the meeting the CBH representatives agreed to the suggestion, Dominic Ripepi's response was that "well they did not come back and say no". - Transcript of proceedings, paragraph PN197. Evidence of James Fuller in transcript of proceedings, paragraphs PN632, PN700-702,PN775, & PN902. 43 Evidence of John Roy in transcript of proceedings, paragraph PN394. Evidence of James Fuller in transcript of proceedings, paragraphs PN636. 44 Evidence of James Fuller in transcript of proceedings, paragraphs PN714. Evidence of Natasha Waclawik in transcript of proceedings, paragraphs PN1184. 45 Refer to Appendix A of Exhibit K4, Minutes of meeting of 16 May 2003. Also evidence of John Roy in transcript of proceedings, paragraph PN412. 46 Refer to Appendix A of Exhibit K4, Minutes of meeting of 16 May 2003, final paragraph. Evidence of Dominic Ripepi in transcript of proceedings, paragraph PN182. 47 Evidence of James Fuller in transcript of proceedings, paragraph PN906. 48 Evidence of Dominic Ripepi in transcript of proceedings, paragraph PN182 & PN 196. Evidence of John Roy in transcript of proceedings, paragraph PN400. 49 Evidence of John Roy in transcript of proceedings, paragraph PN504. 50 Evidence of James Fuller in transcript of proceedings, paragraph PN911. 51 Evidence of John Roy in transcript of proceedings, paragraph PN401. Evidence of Dominic Ripepi in transcript of proceedings, paragraph PN196. 52 Evidence of James Fuller in transcript of proceedings, paragraph PN699. Evidence of Natasha Waclawik in transcript of proceedings, paragraphs PN1317. 53 Decision of Ives DP, NUW v GrainCorp Operations Limited , Print PR918161, 11 June 2002 at paragraph 48. 54 Evidence of Natasha Waclawik in transcript of proceedings, paragraphs PN1373-1375, PN1384 & PN1389. 55 Refer paragraph 14 above. 56 Mobile Food Vans Enterprise Agreement Case , Print R4468, 6 May 1999, per MacBean SDP, Harrison SDP & Redmond C, at paragraph 31. 57 Exhibit L2, Witness statement of John Roy, paragraph 11. 58 Evidence of Dominic Ripepi in transcript of proceedings, paragraphs PN250-PN260.