"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Kempe Engineering Pty Ltd T/A Kempe Engineering Portland [2023] FWC 664

1 Fair Work Act 2009 s.739 - Application to deal with a dispute "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Kempe Engineering Pty Ltd T/A Kempe Engineering Portland (C2022/5462) COMMISSIONER CIRKOVIC MELBOURNE, 20 MARCH 2023 Application to deal with a dispute about any matters arising under the enterprise agreement – clause 21.2 – whether apprentices are entitled to severance pay pursuant to the agreement – if yes, what is the appropriate rate of pay? [1] This decision involves an application brought by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU / Applicant) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Kempe Engineering Pty Ltd (Respondent). [2] The parties are covered by the Kempe Engineering Portland Enterprise Agreement 2022 (the Agreement). The Agreement was approved by the Fair Work Commission (the Commission) on 30 March 2022. The Agreement applies to the Respondent, “company employees who are employed at Kempe Engineering Portland (the Site)… who “are engaged away from at the company’s establishment, carrying out on-site or distant work”, the AMWU, and the Australian Workers’ Union (AWU).1 [3] The parties jointly submitted that the questions for arbitration are: 1. Are apprentices entitled to severance pay pursuant to clause 21.2 of the Kempe Engineering Portland Enterprise Agreement 2022 (Agreement)? 2. If the answer to question 1 is ‘yes’, what is the rate payable to apprentices under clause 21.2.1 and 21.2.2 of the Agreement? [4] The Applicant submits that the answer to Question 1 as posited above is “yes” and contends that the answer to Question 2 is “that they are entitled to an amount that accumulates by $68.00 per week (clause 21.2.1 and 21.2.2)”2 [5] The Respondent disagrees and submits that, properly construed, clause 21 sets out the relevant process to be undertaken when the Respondent makes a decision that the job performed by an employee is no longer required to be done. Further, the Respondent submits that clause [2023] FWC 664 DECISION -- 1 of 25 -- [2023] FWC 664 2 21.1.4 expressly provides that an employee’s entitlements to severance and notice are to be determined by reference to the “Award” which pursuant to clause 7 of the Agreement, is the Manufacturing and Associated Industries and Occupations Award 2020 (Modern Award or Award). The Modern Award relevantly provides that redundancy is “provided for in the NES,” the NES deals with redundancy, and s.123(4)(a) of the Act expressly excludes apprentices from any NES redundancy entitlements. Further, clause 12.11 (a)(iii) of the Modern Award provides that the redundancy provisions of the NES do not apply to apprentices. The Respondent submits that, as there is nothing in the text of clause 21.2 that displaces clause 21.1.4, a proper characterisation of clause 21 is that apprentices are not entitled to any redundancy pay under the Agreement. [6] The parties provided a statement of agreed facts on 3 March 2023 which is reproduced below. AGREED STATEMENT OF FACTS A. Factual Background 1. The Applicant and the Respondent agree on the following facts in this matter. 2. The Kempe Engineering Portland Enterprise Agreement 2022 (the Agreement) applies to the parties bound as per clause 4 of the Agreement. 3. In or around January 2021, Mr Caleb Creasey commenced employment with the Respondent as an apprentice. At this time, Mr Creasey was the only apprentice employed by the Respondent at its Portland site. In or around January 2022, Mr Mathew Carter commenced employment with the Respondent as an apprentice. In or around May 2022, Mr Morris Richardson commenced employment with the Respondent as an apprentice. 4. Employees who are eligible to receive a severance pay entitlement under clause 21 of the Agreement have options for how they can receive such entitlement. 5. The Respondent pays severance contributions to Incolink (as the nominated bona fide redundancy fund) in respect of eligible employees who make an election to receive severance contributions in this manner pursuant to clause 21.2.1 of the Agreement. 6. Incolink Invoice No 4327003 with period JAN 2014, issued to the Respondent states a $299.20 severance contribution liability in respect of apprentices, Mr Luke Parfrey and Mr Declan Sherwell. 7. Incolink Provisional Invoice (39) dated December 2022 issued to the Respondent states a $0.00 severance contribution liability in respect of apprentices Mr Caleb Creasey, Mr Matthew Carter and Mr Morris Richardson. 8. Mr Greg Ford, AMWU delegate employee asked Mr Robert Logan of the Respondent why severance contributions were not being made to an apprentice employee in or -- 2 of 25 -- [2023] FWC 664 3 around early to mid-2021. Mr Logan informed Mr Ford that apprentice employees of the Respondent are not eligible to receive severance contributions. 9. On or about 3 August 2022, the Applicant filed a form F10 notice of dispute with the Fair Work Commission in relation to the Respondent’s alleged failure to pay severance contributions to apprentices in accordance with clause 21.2 of the Agreement. Background [7] The Applicant filed a Form F10 application to the Commission on 3 August 2022. [8] The matter was listed for conference on 12 August 2022, 17 October 2022, and 30 November 2022, but was unable to be resolved. The parties then provided consent directions for the filing of submissions, witness statements, and a statement of agreed facts. [9] The matter proceeded to a hearing conducted by Microsoft Teams on 8 March 2023. The Respondent sought permission under s.596 of the Act to be legally represented. Giving weight to the circumstances and considerations in s.596 of the Act and noting that the Applicant did not object to the Respondent’s application, I granted permission to the Respondent to be represented by Counsel. Evidence [10] The Applicant submitted witness statements for Mr Greg Ford, Boilermaker and Mr Tony Hynds, AMWU Organiser and in its reply submissions attached a witness statement of Mr Eric Locke, CEO of Incolink, who was not called to give evidence . Both Mr Ford and Mr Hynds attended the hearing but were not required for cross-examination. The Respondent called Mr Ted Pundij, Operations Director, and Mr Robert Logan, Branch Manager as witnesses and both were cross-examined at the hearing. [11] Mr Ford, Boilermaker gave evidence to the effect that: • He has been employed by the Respondent since 2010; • He is the AMWU delegate of the Portland site; • In early 2021, Mr Caleb Creasey became employed by the Respondent. He is now on the third year of his apprenticeship; • At the commencement of his apprenticeship, Mr Creasey and Mr Ford had a conversation regarding the Agreement and entitlements to people employed by the Respondent. In this conversation Mr Creasey asked whether he was entitled to severance payments and Mr Ford replied “yes;” • Mr Creasey elected to have severance payments paid to Incolink; • In February or March 2021, Mr Creasey informed Mr Ford that contributions to his Incolink account weren’t being made; -- 3 of 25 -- [2023] FWC 664 4 • Mr Creasey then appointed Mr Ford to act on his behalf and confer with his immediate supervisor, Mr Logan; • In early 2021 Mr Ford conferred with Mr Logan and discussed Mr Creasey’s grievance; • A month or so after this conversation, Mr Logan explained to Mr Ford that the Agreement does not entitle apprentices to severance contributions; and • Immediately after, Mr Ford notified Mr Creasey of the discussions with Mr Logan, and both decided to further appoint Mr Hynds of the AMWU to continue the steps in the dispute resolution procedure in the Agreement. [12] Mr Hynds, AMWU Organiser, gave evidence that: • On or around mid-July 2022, Mr Ford contacted him by telephone and informed him of a workplace grievance concerning Mr Creasey; • Mr Ford informed him that he had notified Mr Logan in person that Mr Creasey was not getting paid his severance contributions into his Incolink fund; • Mr Ford told Mr Hynds that Mr Logan’s response was that severance contributions were not payable because apprentices are not entitled to redundancies; • Mr Ford further elaborated that he expressed to Mr Logan that these contributions were paid to apprentices in the past, however according to Mr Ford, this did not change the position of Mr Logan; • Mr Ford informed him, on instructions from Mr Creasey, that he had been appointed to act on Mr Creasey’s behalf and to continue the steps in the dispute resolution procedure; • Mr Hynds told Mr Ford he would check the Agreement and ring the Respondent once he had briefed himself on the matter; • Sometime later, Mr Hynds spoke to Mr Logan expressing the AMWU’s position that severance payments should be payable to Mr Creasey and all apprentices, and that this was consistent with past practice. Mr Logan advised Mr Hynds that he would consider the AMWU’s position and get more information to better understand the circumstances; • Roughly a week later, Mr Hynds called Mr Logan, who informed him that the Respondent’s position had not changed and that it was not possible or the Respondent to make contributions to an apprentice’s Incolink fund; • On 12 August 2022, Mr Hynds met with Mr Logan and Mr Ford to discuss the matters in dispute regarding severance contributions to apprentices, but no resolution was reached; -- 4 of 25 -- [2023] FWC 664 5 • On 30 September 2022, Mr Hynds met with Mr Pundij in Geelong for a meeting pertaining to employment/industrial matters. In that meeting, amongst other things, they discussed the dispute regarding severance contributions to apprentices. The Respondent maintained its position and no resolution was reached. • After reading the statements of Mr Pundij and Mr Logan, he was shocked and confused as his understanding of Incolink’s operation and payments to apprentices differed from the Respondent. He contacted Mr Erik Locke, CEO of Incolink, who provided him with a formal statement; • He had been Organiser at the Respondent’s site for almost 10 years and recalled that all apprentices during the course of their employment were eligible for severance contributions in accordance with the previous enterprise agreements which had similar or the same wording as clause 21.2 of the Agreement; • It was clear to him that there was a common understanding between the parties of how clause 21.2 would operate, as throughout the years of organising this site apprentices had always received severance contributions. • He had only recently discovered that previous apprentices of the Respondent had been receiving a percentage of their severance payments rather than the full fixed amount; and • Had he been aware of the above, he would have advised the apprentices that the amount they were receiving was incorrect. [13] Mr Hynds’ witness statement was accompanied by an annexure TH-1 titled “Statement of Eric Locke.” The Respondent objected to this statement being admitted, on the grounds that it was hearsay, inappropriate to be admitted when Mr Locke had not been called as a witness, and that it had no probative value to the question before me. The Applicant submitted that it had some probative value as it addressed some evidence raised by the witnesses of the Respondent which alluded to “incorrect advice” received by officers of the Respondent from Incolink, and that some weight should be placed on the statement. Having considered the submissions of both parties, I determined that this document would not be admitted into evidence. I have made some further comments about the statement of Mr Locke later in the decision. [14] For completeness, I note that the Respondent made several objections to individual paragraphs of the witness statements of Mr Ford and Mr Hynds being admitted into evidence. In each case the Applicant submitted that the paragraph should be admitted and due weight be placed on it. In light of s.590 of the Act, I determined the relevant paragraphs in dispute were admissible in each case. Where necessary, I have made findings as to the weight I have given to this evidence. [15] For the Respondent, Mr Pundij gave evidence to the effect that: • As Operations Director, he is responsible for: -- 5 of 25 -- [2023] FWC 664 6 o financial and operational management and performance of the Kempe Engineering Group of Companies; o Kempe's compliance with its obligations under employment laws and industrial instruments; o overseeing Branch Managers and supporting them on workforce issues that arise across Kempe's various operations, including at the Portland workshop situated at 9-15 George Street, Portland in the State of Victoria and its on-site work; and o human resources and employment matters; • Incolink is a worker entitlements fund which operates a redundancy account which receives periodic severance contribution payments from registered employers in respect of its employees; • Kempe has had an employer account with Incolink since around 1997, when severance contributions were first introduced into the Kempe Project Engineers Enterprise Agreement 1996-1998 Portland Aluminium Site Agreement (Portland EA 1997); • Kempe has maintained the account because historical and current enterprise agreements for the Portland site have required Kempe to give eligible employees the option to receive redundancy pay by way of weekly severance contributions to a bona fide redundancy fund; • Kempe currently makes severance pay contributions to Incolink monthly in respect of its non-apprentice employees who are covered by the Agreement. It only makes contributions for eligible employees; • Mr Creasey commenced employment with the Respondent on or about 10 January 2021. Mr Pundij was not responsible for his engagement and onboarding; • He was informed by payroll officer Ms Alyssa Martz that there had been difficulties in registering Mr Creasey on Incolink and that she had received advice from Incolink that severance contributions were not payable to employees. • He was informed recently that a decision made in early 2021 by Mr Richard Spence, Kempe’s HR and Safety Manager, not to make severance contributions for Kempe’s apprentices at the Portland site; • In early August 2022, the issues of apprentices not receiving severance contributions into Incolink was brought to his attention by Mr Ben Parker, Kempe’s Regional Manager Southwest Victoria and South Australia, following a meeting between Mr Parker, Mr Robert Logan, and AMWU Organiser Mr Tony Hynds; • He spoke to Ms Martz in early August 2022 and was informed that Mr Creasey was registered as an apprentice on Incolink’s online portal, and that the default severance -- 6 of 25 -- [2023] FWC 664 7 contribution amount for an apprentice was automatically set to $0.00 and could not be manually changed; • In early October 2022, he contacted Incolink by telephone and was told that it was not possible for apprentices to receive severance contributions on its online portal; and • In October 2022, he reviewed clause 21.2 of the agreement in force, the Award, the National Employment Standards, and concluded that Kempe’s past practice of contributing severance pay to apprentices was incorrect, and that the change implemented in early 2021 to not contribute severance pay for apprentices was correct. [16] Mr Robert Logan, Portland Branch Manager, gave evidence to the effect that: • He has worked for Kempe at the Portland site since 1989, and first commenced as an apprentice fitter and turner; • In around 2014, he was involved in the engagement and on-boarding of two new apprentices, being Luke Parfrey and Declan Sherwell. He gave those apprentices the option to receive severance contributions either to their superannuation fund or to Incolink, in accordance with clause 21.2 of the Kempe Engineering Portland Enterprise Agreement 2014, which applied at the time; • He informed apprentices they would only receive a percentage of the full severance contribution rate, based on their apprentice wages. He instructed Kempe administration to establish Incolink accounts for those apprentices who made the election, which was consistent with past practice he had observed while at Kempe; • After this cohort of apprentices completed their apprenticeships in early 2017, Kempe did not employ new apprentices at the Portland Site until about 11 January 2021, when Kempe engaged a new apprentice, being Mr Creasey; • Mr Creasey, upon invitation, nominated to receive severance contributions into his Incolink fund, calculated by reference to the applicable wage rate percentage of 42% under the enterprise agreement in force; • Mr Logan asked Kempe’s administration team to register Mr Creasey as an apprentice employee on Incolink and make weekly severance contributions of $28.56, which represented 42% of the full rate of $68.00; • In or around February or March 2021, he was contacted by Ms Martz who had been informed by Incolink that apprentices were not eligible to receive severance pay. He notified Mr Creasey of this result and while disappointed, Mr Creasey understood the position and has not enquired with Mr Logan again about severance contributions under the clause 21.2; • Also in February or March 2021, Ms Martz informed Mr Logan that Kempe’s central management had reconsidered its obligations under clause 21.2 of the Agreement in -- 7 of 25 -- [2023] FWC 664 8 light of Incolink’s advice, and determined that apprentices were not eligible for severance contributions under this clause. • In mid 2021, the AMWU delegate employee on the Portland Site asked Mr Logan why Kempe was not making severance contributions on behalf of apprentices. Mr Logan said words to the effect that “apprentices are not eligible to receive severance contributions” and states that the delegate did not raise the issue with him again throughout the remainder of 2021; • A second apprentice, Mr Matthew Carter, was engaged by Kempe at the Portland site on or around 10 January 2022. Mr Carter was not invited to select a severance contribution option in accordance with clause 21.2. Mr Carter has not enquired with Mr Logan about severance contributions under clause 21.2 during his employment; • A third apprentice, Mr Morris Richardson, was engaged by Kempe at the Portland site on or around 2 May 2022. As with Mr Carter, Mr Richardson was not invited to select a severance contribution option in accordance with clause 21.2, and has made no enquiries to Mr Logan about severance contributions during his employment; • Mr Logan is not aware of any Kempe apprentice being made redundant at the Portland Site; • He has a folder of historical enterprise agreements at the Portland site between Kempe and the AMWU. From reviewing the historical agreements, he observes that: o The "Severance/Redundancy Pay Options plan" provisions under clause 21.2 are the same under the Portland EA 2022, the Portland EA 2014 and the Kempe Maintenance & Engineering Services Portland Enterprise Agreement 2011- 2014; o Each of these agreements also state at clause 21.1.4 that "if redundancies are still necessary after following the procedures set out above, the severance and notice provisions of the Award shall apply or as otherwise provided by this Agreement;' o Although the relevant provision is clause 21.3 and the contribution amount is $63.50 per week, the terms are materially the same under the Kempe Maintenance & Engineering Services, Portland Enterprise Agreement 2009; o The form of agreement was different and more extensive under the Kempe Maintenance & Engineering Services, Portland Collective Workplace Agreement 2006-2009. Clause 7 headed "Redundancy" included a similarly drafted provision to subsequent agreements including "Severance/Redundancy Pay Options plan" although it contains a third option of receiving a “pay increase of $46;80 per week for all purpose pay in lieu of either of the above severance options" Part 3 ('Agreed Conditions)" of this enterprise agreement at clause 4.4 relates to severance pay. Clause 4.4.4 specifically excludes apprentices from redundancy entitlements under clause 4.4; -- 8 of 25 -- [2023] FWC 664 9 o The Kempe Maintenance & Engineering Services Workshop Enterprise Agreement registered in 2004 at clause 11.3 provided five options for receiving severance entitlements and clause 11.l(iv) refers to the relevant award at the time in respect of severance and notice entitlements. • From on or about 2006 onwards, Mr Logan has been involved in enterprise agreement negotiations at the Portland as an employee representative. As he progressed into a management position, he began acting as the management bargaining representative in around 2014; • He does not recall the severance contribution provisions contained in Kempe's predecessor enterprise agreements for the Portland Site being negotiated in any particular detail during the bargaining process. The clause wording of these provisions were typically rolled over from one agreement to the next and the only item for negotiation was whether the weekly contribution rate should be changed; • He was Kempe’s management representative during the bargaining process which led to the current Agreement in force. Negotiations for the current Agreement commenced on or about 3 December 2021 and over the following three months, Mr Logan had several bargaining discussions with Mr Tony Hynds of the AMWU and the employee bargaining representatives;’ • During the bargaining process, Mr Hynds told Mr Logan words to the effect that the AMWU was comfortable with “rolling over” the key terms of the predecessor Agreement, with selected rates updated; • At a meeting on 22 February 2022 with Portland Site employees, Mr Logan explained in overview form the proposed terms of the current Agreement and that there were no fundamental changes from the previous Agreement; • During bargaining for the current Agreement, the AMWU and other employees did not raise the issue of apprentice employees not being given the option of receiving severance contributions in accordance with clause 21.2, and the only point of negotiation regarding clause 21.2 was whether the rate of $68 per week would be increased; • On or about the middle of 2022, he received a call from Mr Hynds who asked if Kempe would pay severance contributions to apprentices at the Portland Site. He said words to the effect that Kempe was not required to do so; • In early August 2022, Mr Logan met with Mr Hynds at the Portland site and informed him that Kempe’s position remained unchanged; Jurisdiction [17] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 25. For convenience, I have reproduced clause 25 below. -- 9 of 25 -- [2023] FWC 664 10 “25. DISPUTE RESOLUTION 25.1 Procedure Within the application of this agreement or a dispute in relation to the NES, the following procedure for the avoidance or resolution of disputes shall apply. In this clause a reference to 'the parties' means the 'parties to the dispute', a) The employees concerned will first meet and confer with their immediate supervisor. The employees may appoint another person to act on their behalf. b) If the matter is not resolved at such a meeting the parties will arrange further discussions involving more senior management as appropriate. c) If the matter remains unresolved the parties may jointly or individually refer the matter to the FWC for assistance in resolving the matter with the powers available to the presiding commissioner and the commission. d) Subject to the pre-dispute status quo, whilst these processes are being followed the parties shall be committed to avoid stoppages of work, lockouts or other bans or limitations on the performance of work and the Company shall ensure that all practices applied during the operation of the procedure are in accordance with safe working practices and consistent with established custom and practices at the enterprise. e) If conciliation fails to resolve the matter the parties may jointly or individually request the FWC to arbitrate the matter. If arbitration is necessary the FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions, which are necessary to make the arbitration effective.” [18] I note that the jurisdiction of the Commission to arbitrate the dispute was not bought into contest by the Respondent until 31 January 2021 when it filed its submissions. As such the Applicant was on notice that the jurisdiction of the Commission to arbitrate pursuant to clause 25.1 of the Agreement was a live issue from at least that time. I also note that the Applicant addressed the Commission’s jurisdiction in its reply submissions of 21 February 2023. [19] In essence, the Respondent submits that:3 • As the Applicant commenced these proceedings in the Commission, it is incumbent upon it to establish that jurisdiction exists, and there is no obligation for the Respondent to assist the Applicant to establish jurisdiction; • A person covered by the Agreement is permitted to raise a dispute “within the application of this agreement or a dispute in relation to the NES,” subject to having complied with each of the requisite procedural steps in clause 25.1(a) – (d); -- 10 of 25 -- [2023] FWC 664 11 • The AMWU is not entitled to raise disputes of its own motion, as clause 25.1(a) specifies that a dispute must be raised by the “employees concerned;” • There is no evidence from any apprentice that he or she has purported to make an election in accordance with clauses 21.2.21 or 21.2.2 and been denied payment of contributions in accordance with such an election; • As a result, the Commission cannot be satisfied that there is an extant dispute about the application of the Agreement; • The AMWU filed no evidence to establish that each of the relevant steps in clauses 25.1(a) and (b) have been complied with. Specifically, that there was no evidence that a meeting occurred between the “employees concerned” and their “immediate supervisor”, that the “employees concerned” appointed the AMWU to “act on their behalf”, and that there had been any discussions “involving more senior management;” and • As the AMWU could not satisfy the Commission that it had complied with the dispute resolution clause, or that there is an extant dispute between the Respondent and the relevant “employees concerned,” the Commission must dismiss the application. [20] In its reply submissions, the Applicant submits that: • As the Respondent had previously consented to the arbitration of the dispute by the Commission by email on 17 October 2022, the Applicant had not seen a requirement to make submissions as to jurisdiction; • In early 2021, Mr Caleb Creasey became employed by the Respondent as an apprentice; • Mr Creasey elected to have severance payments be paid to Incolink, his nominated redundancy fund, pursuant to clause 21.2.1 of the Agreement; • Mr Greg Ford, AMWU delegate of the site, was appointed by Mr Creasey to act on his behalf regarding matters pertaining to Mr Creasey’s severance contribution grievance; • Mr Ford conferred with Mr Logan of the Respondent, the matter was discussed, and no resolution was reached; • Mr Hynds was then further appointed by Mr Creasey and Mr Ford to confer with more senior management of the Respondent. No resolution was reached; • On 3 August 2022, the Applicant referred the matter to the Commission; and • Pursuant to the above events, the Applicant has followed the dispute resolution procedure as set out in clause 25.1 of the Agreement, and the Commission must be satisfied that it has jurisdiction to hear and determine the dispute. Consideration – Jurisdiction -- 11 of 25 -- [2023] FWC 664 12 [21] In coming to my conclusion with respect to the question of the Commission’s jurisdiction to determine the dispute, I have adopted the reasoning of the Full Bench in The Australian Workers’ Union v MC Labour Services Pty Ltd.4 Clause 25.1 is re-produced above and in my view outlines a set of pre-conditions in clause 25.1.(a) and (b) that must be met before the Commission has capacity to deal with a dispute in accordance with clause 25.1.(c). [22] I have noted above the Respondent’s objections to certain paragraphs in the witness statements of Mr Ford and Mr Hynds. I admitted the evidence on the basis that I would take into account the submissions of the parties as to the weight, if any, that ought to be given to the evidence in my determination of the jurisdictional objection. I am prepared to give the evidence of Mr Ford and Mr Hynds some weight to draw the inference that Mr Creasey appointed both AMWU officers to act on his behalf in the dispute, noting that the evidence is consistent with that of Mr Logan, who states that he met first with Mr Ford and later with Mr Hynds to discuss the matters the subject of the dispute before me in about mid-20215 and the “middle of 2022”6 respectively. [23] It is not in dispute, and I find that, the initial step of the dispute resolution procedure set out in clause 25.1(a) has been met. It is apparent from the evidence before me that Mr Creasey was an “employee concerned,” and that the AMWU delegate employee (Mr Ford) based at the Portland site met with Mr Creasey’s “immediate supervisor” Mr Logan in mid-2021.7 [24] The Respondent’s objection to jurisdiction appears to be founded on the paucity of evidence as to compliance with clause 25.1(b) of the Agreement, and in particular whether “further discussions involving more senior management” occurred prior to 3 August 2022. [25] Clause 25.1(b) states that the parties “will” arrange “further discussions involving more senior management as appropriate.” As the dispute was lodged with the Commission on 3 August 2022, any such discussion would need to occur before this date. [26] As to compliance with clause 25.1(b), the evidence before me is as follows: • Mr Hynds states that he met with Mr Logan and Mr Ford on 12 August 2022 to discuss the matters in dispute;8 • On 30 September 2022, he met with Mr Pundij, Operations Director, at which time the Respondent maintained its position and no resolution was reached; and9 • Mr Pundij states that the matter was first brought to his attention in or around “early August” 2022 following meeting between Mr Parker, Mr Logan and Mr Hynds; [27] For completeness, I observe that clause 25.1.(b) does also state that the parties will arrange further discussions involving more senior management “as appropriate”. In the circumstances of this matter, I find that it is “appropriate” for there to have been further discussions involving more senior management before the matter was referred to the Commission. -- 12 of 25 -- [2023] FWC 664 13 [28] I have set out the evidence before me at paragraph 26 above. On the evidence before me I am unable to conclude that a meeting took place between “the parties” being Mr Ford and or Mr Hynds and the Respondent’s “senior management” on or before 3 August 2022. [29] As clause 25.1 sets out pre-conditions that must be met before the matter can be referred to the Commission, and there being no discretion afforded to me in clause 25.1(b),10 I am unable to conclude that “the parties” have complied with clause 25.1(b) before referring to the dispute to the Commission pursuant to clause 25.1(c). [30] On that basis, the Commission does not have jurisdiction to hear and determine the dispute. However, in the event that I am mistaken on the question of jurisdiction, I will proceed to determine the substantive questions before the Commission below. Principles of Interpretation of Enterprise Agreements [31] The principles applicable to the interpretation of enterprise agreements are well settled and were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri),11 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.12 The Full Court of the Federal Court in WorkPac Pty Ltd v Skene (Skene),13 has further distilled the principles. The starting point is the ordinary meaning of the words, read as a whole and in context.14 The language of the agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. The task of interpreting an enterprise agreement does not involve re-writing the agreement to achieve what might be regarded as fair or just outcome.15 [32] There appears to be no serious contest between the parties as to the applicable principles of interpretation of enterprise agreements. I adopt and apply the principles as cited above in this decision without restating them. Relevant provisions of the Agreement [33] Clause 21 of the Agreement provides as follows: “21. REDUNDANCY 21.1 Consultation and provision of information 21.1.1 Where the company makes a decision that the job performed by an employee is no longer required to be done, the company shall hold discussions with the employees directly affected and if requested their representatives. Voluntary redundancies will be called for as the first step of the process. 21.1.2 The discussions shall take place as soon as is practicable after the company has made a definite decision, which will invoke the provisions of the paragraph above and shall cover, among other things, any reasons for the proposed termination, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employee(s) concerned. -- 13 of 25 -- [2023] FWC 664 14 21.1.3 For the purposes of the discussion the company shall, as soon as practicable after making a decision but before any terminations, provide in writing to the employees concerned, all relevant information about the purposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of workers normally employed and the period over which, or the time when the terminations are likely to be carried out, provided that the company shall not be required to disclose confidential information, the disclosure of which would be inimical to the company's interests. 21.1.4 If redundancies are still necessary after following the procedures set out above the severance and notice provisions of the Award shall apply or as otherwise provided by this Agreement. 21.1.5 The company shall upon receipt of a request from an employee whose employment has been terminated, provide to an employee a written statement specifying the period of his or her employment and the classification of or the type of work performed by the employee. 21.2 Severance/Redundancy Pay Options plan From 12 July 1997 where severance entitlements accrued under the Award clause 4.4.1 are frozen as per this agreement, such entitlements shall be paid at the rate applicable at the time of severance. Employees may elect to receive severance payment entitlements by selecting one of the two following options. 21.2.1 Severance payment of $68.00 per week will be paid into a nominated bonafide redundancy fund in the name of the employee. A pro rata amount shall be payable for employment which is less than a completed week, calculated according to the number of days worked. 21.2.2 Payment of $68.00 per week into the employee's nominated superannuation fund.” Relevant provisions of the Award [34] Clauses 12 and 46 of the Award, which relate to apprentices and redundancy respectively, relevantly provide as follows: “12. Apprentices 12.1 The terms of this award apply to apprentices, including adult apprentices, except where otherwise stated. Apprentices may be engaged in trades or occupations that are provided for in clause 12 where declared or recognised by an apprenticeship authority. Subject to appropriate State legislation, an employer will not employ an unapprenticed junior in a trade or occupation provided for in clause 12. -- 14 of 25 -- [2023] FWC 664 15 … 12.11 Apprentice conditions of employment (a) Except as provided in clause 12 or where otherwise stated, all conditions of employment specified in this award apply to apprentices. (i) An apprentice is entitled to be released from work without loss of continuity of employment and to payment of the appropriate wages to attend any training and assessment specified in, or associated with, the training contract. (ii) Time spent by an apprentice, in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the apprentice’s wages and determining the apprentice’s employment conditions. Clause 12.11(a)(ii) operates subject to the provisions of Schedule F—School-based Apprenticeships. (iii) The notice of termination provisions of the NES apply to apprentices. The redundancy provisions of the NES do not apply to apprentices. 46. Redundancy NOTE: Redundancy pay is provided for in the NES. See sections 119–123 of the Act. Clause 46.4 supplements the NES by providing redundancy pay for some employees of a small business employer. … (emphasis added) Relevant Provisions of the Act [35] Section 123 of the Act relevantly states: “…Other employees not covered by redundancy pay provisions: (4) Subdivision B does not apply to: (a) An employee who is an apprentice; or …” (emphasis added) -- 15 of 25 -- [2023] FWC 664 16 [36] Section 55 of the Act, which deals with the interaction between the National Employment Standards (NES) and a modern award or enterprise agreement, relevantly states: “(4) A modern award or enterprise agreement may also include the following kinds of terms: (a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards; (b) terms that supplement the National Employment Standards; but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards. … (5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4). (6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement ) that is the same as an entitlement (the NES entitlement ) of the employee under the National Employment Standards: (a) those terms operate in parallel with the employee's NES entitlement, but not so as to give the employee a double benefit; and (b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.” Submissions of the Parties [37] For the sake of efficiency, I have distilled below the key submissions advanced by each party. [38] The Applicant contends:16 • Clause 21.2 includes the words ‘employees may elect to receive severance payment entitlements by selecting one of the two following options;’ • To be entitled to the pay option plan in clause 21.2, an apprentice must be an employee of the Respondent; • Apprentices under the agreement are directly employed by the Respondent and are in receipt of wages; -- 16 of 25 -- [2023] FWC 664 17 • Consistent with reference to the Act’s definitions of national system employee and national system employer, as well as the ordinary meaning of “employee” in the Oxford Dictionary, the apprentices are employees and are therefore entitled to elect one of the options expressed in clauses 21.2.1 and 21.2.2; • Clause 21.2 operates before any matters arising out of the s.119(a) and (b) of the Act and clause 21.1.4 of the Agreement occur and is designed to compensate and protect employees, including apprentices, for matters in the future arising from a shortage of work; • Apprentices generally choose the option pursuant to clause 21.2.1 and nominate “Incolink” as a bonafide redundancy fund into which severance payments are made; • Incolink has a published “Apprentice Guide” on its website which indicates that where an enterprise agreement permits it, apprentices are entitled to receive Incolink redundancy contributions from their employer; • Clause 21.2 of the Agreement is consistent with the previous agreement, being the Kempe Engineering Portland Enterprise Agreement 2014 (previous Agreement); • Previous apprentices in 2014 who were employed by the Respondent received payments into their Incolink redundancy fund; and • The historical practice of the Respondent making payments to Incolink for apprentice employees indicates that the parties intended clause 21.2 in the previous Agreement and the current Agreement to grant an entitlement to apprentices to be paid regular severance payments. [39] In its reply submissions, the Applicant further submits that:17 • The Respondent has ignored previous industrial agreements and past practices in construing clause 21.2 of the Agreement, and is incorrect to do so; • Construction of clause 21.2 can be “affected by a common understanding of the parties to it about a particular state of affairs.” “In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no-one has thought about the issue.”18 • During the employment of all previous apprentices, the parties, the Respondent and their union representatives shared a state of affairs which included Kempe making severance payments to apprentices. • The evidence of Mr Pundij and Mr Logan indicate there was a clear understanding of how clause 21.2 operated which clearly included apprentices, which was in turn “severed in or around February or March 2021” when the Respondent obtained advice from Incolink; -- 17 of 25 -- [2023] FWC 664 18 (emphasis added) Respondent Submissions [40] The Respondent contends that the question to be arbitrated should be answered “no” and in support of this position advances the following arguments:19 • When considering any obligations to employees pursuant to clause 21.2, the clause must be read in the context of clause 21 as a whole; • Clause 21 is titled “Redundancy” and sets out the relevant processes to be undertaken when the Respondent decides “that the job performed by an employee is no longer required to be done;” • Relevantly, clause 21.1.4 states that if redundancies are still necessary after following the procedure in clauses 21.1.1 – 21.1.3, an employee’s entitlements to “severance and notice” are to be determined by reference to the “Award;” • As provided by clause 7, the relevant “Award” is the Manufacturing and Associated Industries and Occupations Award 2020; • The Award provides for redundancy at clause 46, which relevantly states that redundancy is “provided for in the NES.” Sections 119-123 of the NES, and specifically s.123(4)(a), expressly exclude apprentices from NES redundancy entitlements, while clause 12.11(a)(iii) of the Award reiterates that the redundancy provisions of the NES do not apply to apprentices; • There is nothing in the text of clause 21.2 that displaces 21.1.4. Accordingly, the starting position is that apprentices are not entitled to any redundancy pay. If Kempe and the AMWU intended to depart from the position set out in the Award and the Act, the Agreement must contain express terms to that effect; • Clause 21.2 is titled “Severance/Redundancy Pay Options plan” and relevantly states that “Employees may elect to receive severance payment entitlements by selecting one of the following two options.” • If an apprentice employee does not have an entitlement to redundancy pay by operation of clause 21.1.4 of the Agreement, clause 21.2 has no effect or application to an apprentice employee because he or she cannot elect to receive an entitlement that does not exist; • Clause 21.2 does not in itself provide employees with a separate or independent entitlement to severance pay. Clause 21.2 merely gives employees “options” for how they can receive severance pay. It is not a clause that prescribes an underlying entitlement; • This is further illustrated by the fact that an eligible employee is not compelled to receive severance pay in accordance with clause 21.2.1 or 21.2.2 as the provision states -- 18 of 25 -- [2023] FWC 664 19 “Employees may elect to receive severance payment entitlements….”. It is entirely open to an eligible non-apprentice employee who is covered by the Agreement not to make an election under clause 21.2 and instead receive redundancy pay in accordance with clause 21.1.4 of the Agreement; • For the Commission to have regard to previous industrial instruments and/or past practices of Kempe, the Commission must be satisfied of “clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning;” • While apprentices may have been paid contributions to Incolink in the past, this is indicative of a “common inadvertence” regarding the operation of clause 21.2 at best; • To the extent that the industrial history is relevant, it shows that an employee’s entitlement to redundancy pay, if any, is prescribed by the Award, unless the Agreement provides to the contrary; • The first paragraph of clause 21.2 relevantly states “From 12 July 1997 where severance entitlements accrued under the Award clause 4.4.1 are frozen as per this agreement….” This is a legacy provision which has existed in past enterprise agreements for the Respondent at its Portland site and intended to preserve the continuous service for employees employed prior to July 1997. While the “Award” clause reference of 4.4.1 is outdated under the Modern Award, apprentices also did not have an entitlement to severance pay under clause 4.4 of the predecessor parent Award, being the Metal, Engineering and Associated Industries Award 1998; Consideration [41] In accordance with the principles earlier stated, the construction of the Agreement begins with a consideration of the “ordinary meaning of the words, read as a whole and in context.”20 Context may appear from the text of the Agreement viewed as a whole, or the place and arrangement of the clause in the Agreement. The statutory framework under which the Agreement was made and in which it operates may also provide context. The interpretative task also requires a consideration of the “language of the particular agreement, understood in the light of its industrial context and purpose.” 21 It is also accepted that “a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”22 There is no real contest between the parties as to the approach to the interpretation of the terms of an enterprise agreement. [42] The questions for arbitration as posed by the parties are set out at paragraph 3 of this decision. At the hearing I raised with the parties my view that question 1 could be characterised in a different way as “Are apprentices employees for the purposes of clause 21.2”? The Applicant agreed that question 1 as posed by the Commission more accurately reflected the dispute between the parties. The Respondent submitted that it was “content” to characterise question 1 as proposed by the Commission, provided the “same issues” are addressed and that the Respondent’s written submissions are considered. In any event, it is apparent that the crux of the dispute between the parties is whether apprentices are employees who are entitled to elect -- 19 of 25 -- [2023] FWC 664 20 to direct the employer to make severance payments in accordance with clause 21.2 of the Agreement. In either case, the answer to question 1 is no. [43] In this regard, I note that clause 21.2 provides for employees to direct the employer to make payments on their behalf to a 3rd party, namely a “nominated bona fide redundancy fund” or a “nominated superannuation fund”. Clause 21.2 does not prescribe for any type of payment to be made to any employee, whether an apprentice or non-apprentice employee. [44] I note that clause 21.2 forms part of clause 21 headed “Redundancy” which details at clauses 21.1.1 to 21.1.3 the consultation process to be followed “where the company has made a decision that the job performed by an employee is no longer required to be done”. [45] Relevantly, clause 21.1.4 provides that if redundancies are still necessary after the procedures set out in clauses 21.1.2 and 21.1.3 are followed, “the severance and notice provisions of the award shall apply or as otherwise provided by the agreement.” [46] There is no dispute that pursuant to clause 7.1 the Agreement incorporates the Manufacturing and Associated Industries and Occupations Award 2020 (the Modern Award). Clause 46 of the Modern Award deals with redundancy and relevantly states that “redundancy is provided for in the NES.” Sections 119 to 123 of the Act deal with redundancy. Relevantly, s.123(4)(a) of the Act states that Subdivision B (relating to redundancy pay) does not apply to “an employee who is an apprentice.” Further, clause 12.11.(a)(iii) of the Modern Award provides that “the redundancy provisions of the NES do not apply to apprentices.” [47] It is in my view apparent that clause 21.1.4 requires me to consider whether severance entitlements arise from the modern award or “as otherwise provided by the Agreement”. Based on the above, it is evident that apprentice employees have no entitlement to severance payments by virtue of the severance and notice provisions of the Modern Award (as contemplated by Clause 21.1.4). [48] The Applicant points to clause 21.2 and submits that as apprentices are “employees” for the purposes of that clause, they are entitled to severance pay pursuant to clause 21.2.1 or 21.2.2 as elected. As stated above, clause 21.2 provides for employees to direct the employer to make payments on their behalf to a third party, namely a “nominated bona fide redundancy fund” or a “nominated superannuation fund” and does not prescribe for any type of payment to be made to an employee, whether an apprentice or non-apprentice employee. [49] Clause 21.2 is headed “Severance/Redundancy Pay Options plan”. It is evident from a contextual reading of clause 21.2, and the parties agree, that the words severance and redundancy are used interchangeably in clause 21.2. [50] It is also worth noting that the reference to clause 4.4.1 of the Award is not a reference to the Modern Award. The Respondent submits that the reference to “the Award clause 4.4.1” is a reference to the predecessor Award, being the “Metal, Engineering and Associated Industries Award 1998” (the predecessor Award). The Applicant makes no submission on this point. In any event, there is no dispute that clause 4.4.4 of the predecessor Award also excluded apprentices from receiving severance payment under clause 4.4.1 of that Award. -- 20 of 25 -- [2023] FWC 664 21 [51] I agree with the Applicant that an apprentice is an employee and in that regard falls within the category of worker contemplated by clause 21.2. That said, in my view, it does not follow that an apprentice becomes entitled to elect to have payments made into a nominated redundancy or superannuation fund. This is because, as submitted by the Respondent, the severance entitlement referred to in clause 21.2 is not derived from clause 21.2, but rather, is derived from the Modern Award. Neither clause 21.2.1 nor 21.2.2, in the context of the preceding sentence of clause 21.2, enlivens an entitlement, or a right, to a severance payment. Both options presuppose that an entitlement exists. [52] Construed this way, clause 21.2 provides an option for an employee (including an apprentice) to request that the Respondent make contributions to either a nominated redundancy fund or a superannuation fund in circumstances where such an entitlement exists. As stated above, clause 21.2 effectively operates as a mechanism by which the Respondent may discharge, in part, its obligations to make severance payments as required by clause 21.1.4 and accordingly, the Award and the NES. [53] In my view, this interpretation sits comfortably with ss 55(4) and 55(6) of the Act as clause 21.2 can be characterised as an “ancillary or incidental” term to an employee’s existing entitlement to redundancy pay under the NES. An alternate construction is that clause 21.2 operates to grant employees a separate right to receive severance entitlements, distinct from the entitlements under the Act. The Respondent submits, and I agree, that such a construction of clause 21.2 would contemplate a double benefit given to employees, which may be inconsistent with s.55(6). [54] The Respondent also submits that it is questionable whether clause 21.2.2 is an unlawful agreement term. However, the efficacy of clause 21.2 in operating as a mechanism for the Respondent to discharge its obligation to provide for redundancy to its employees is not a matter I need to determine. Nor is the matter of whether clause 21.2.2 is unlawful. In any event, the presence of clause 21.2.2 does not displace my view that clause 21.2 allows an employer to provision for future redundancy obligations under clause 21.1.4. It does not in itself prescribe an entitlement to employees. [55] It is not in dispute that apprentice employees are not entitled to redundancy pay pursuant to the Award and the Applicant has not pointed me to any other clauses in the Agreement that entitle apprentice employees to redundancy pay. [56] Further, I reject any suggestion that the Incolink guide, in evidence before me,23 enlivens a severance entitlement or that its terms guide a particular interpretation of clause 21.2. The Applicant points to page 4 of the guide, which provides “if you are an apprentice… and your job becomes redundant… you may be entitled to redundancy payment.” Page 40 of the guide also provides “because of the special nature of the apprenticeship employment contract… redundancy entitlements are usually only available in certain circumstances.” This cannot be said to enliven an entitlement contemplated by clause 21.2 or provide any meaningful guidance to the interpretative analysis before me. [57] For completeness, I note that the Applicant sought to rely on a witness statement of Mr Eric Locke, CEO of Incolink, in support of its contention that the Incolink scheme permitted payments to be made into the scheme by employers on behalf of apprentice employees. The -- 21 of 25 -- [2023] FWC 664 22 Respondent objected to the admissibility of the evidence on a number of grounds including hearsay, that it was inappropriate that Mr Locke was not called as a witness or made available for cross-examination, and that the statement was of limited or no probative value to the Commission. I did not allow the evidence as I did not consider its contents to provide any probative value to the questions for consideration by me. [58] The Applicant urges the Commission to accept that clause 21.2 “is designed to operate in the absence of circumstances that give rise to entitlements pursuant to redundancy.” I disagree. A purposive and contextual approach to the interpretation of an enterprise agreement is appropriate and a narrow and pedantic approach is misplaced. The argument advanced by the Applicant would require me to read clause 21.2 in isolation and the word “employees” literally devoid of context. In my view, the word “employees” cannot sensibly mean any employees, including for example, casuals, fixed term employees and apprentices. Rather, in the context of clause 21.2, it means employees who are eligible to receive redundancy related benefits. Apprentices are not eligible to receive redundancy because the Modern Award and the Act exclude them. [59] A purposive and contextual approach to the interpretation of clause 21.2 would suggest that the clause provides a method for the employer to satisfy future severance/redundancy obligations by contribution into a redundancy fund or a superannuation fund. The clause gives a choice to employees who already have such a benefit because of clause 21.1.4 to receive severance/redundancy entitlements. For the reasons stated above, I have concluded that apprentices are not employees who have an entitlement to severance/redundancy under the Award. [60] I have noted the Applicant’s reliance on the previous iterations of the Agreement and the Respondent’s past practices to support its interpretative analysis of clause 21.2. I accept the general proposition that where a provision has appeared in past iterations of an Agreement between the same parties, and where it can be shown that they have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that the parties have settled on the meaning of the provision.24 I agree with the Applicant that there is evidence before me that the Respondent had previously made payments to Incolink on behalf of apprentice employees and that clause 21.2 has remained largely unchanged in previous iterations of the Agreement. I also agree that the practice ceased following an internal review which appears to have stemmed from information received by the Respondent from Incolink that such payments could not be received by it. I note that the Applicant challenges the accuracy of the advice said to have been received by the Respondent from Incolink. [61] Regardless of the reasons for the review and ultimate change in practice, I am not persuaded that the evidence before me rises to the level that would be required to indicate that there was any common understanding between the Applicant and the Respondent about the meaning of clause 21.2. All that has been established is that the Respondent had a practice in the past of providing severance contributions to Incolink on behalf of its apprentice employees. The Respondent submits that at its highest, the evidence before me is that any such practice was by reason of inadvertence. I agree. In this regard, I note the comments of his Honour Justice Gray in Shop Distributive and Allied Employees' Association v Woolworths Limited where His Honour was considering the correct calculation of the rate of pay for a part-time employee entitled to long service leave. -- 22 of 25 -- [2023] FWC 664 23 “In the present case, there is no evidence to indicate that there was any common understanding between the applicant and the respondent about the meaning of the relevant clauses in preceding agreements. All that has been established is that, until 2004, the respondent had a practice of paying employees entitled to long service leave at a rate of pay inclusive of penalties and shift premiums, if applicable. There is no evidence as to why it did this. The reason might have been inadvertence on the part of those responsible for making the payments as to the presence of the definition in the LSL Act. It may have been an act of generosity on the part of the respondent, from which it has now resiled. There is no evidence that any relevant person on the applicant’s side was aware of the respondent’s practice of making payments at the higher rate, much less of any belief on the part of any relevant officer of the applicant that payment at the higher rate represented the appropriate construction of the relevant provisions. There is therefore no evidence of a settled interpretation, of which the parties had a common understanding.” [62] I also note that on the evidence before me it is apparent that the Applicant first raised the matter the subject of the dispute before me with the Respondent in March 2021. The parties commenced bargaining for the current Agreement on or about 3 December 2021, and it was approved on 30 March 2022, some 12 months from when the dispute was first raised with Mr Logan. The uncontested evidence of Mr Logan is that severance contribution provisions “were not negotiated in any particular detail”25 across the Kempe predecessor enterprise agreements, and that the AMWU was “comfortable with ‘rolling over’ the key terms of the predecessor agreement”26 with selected rates updated in relation to the current Agreement. In this regard, it is instructive that the Applicant submits that the common understanding was “severed in around February or March 2021.” It is not apparent to me how, on the one hand the Applicant can sustain an argument that the common understanding between the parties was “severed”, and on the other hand, argue that there was a common understanding between the parties as to the meaning of clause 21.2. [63] If apprentices receiving severance contributions pursuant to clause 21.2 had been a live issue since early to mid 2021, the parties had ample opportunity to address it during the bargaining process. It is apparent that clause 21.2 is the same as it was in the previous agreement, being the “Kempe Engineering Portland Enterprise Agreement 2014”. I am not satisfied there is sufficient evidence before me to suggest a “common understanding” between the parties as to the meaning of clause 21.2.” At its highest the evidence of the Applicant regarding past practices involving 2 employees Mr Parfrey and Mr Sherwell points to “common inadvertence” as to the operation of clause 21.2 and nothing more. Conclusion [64] As stated above I have considered the Respondent’s submissions and concluded that clause 25.1.(b) has not been complied with before the matter was bought to the Commission pursuant to clause 25.1.(c). It follows that I agree with the Respondent that the Commission lacks jurisdiction in this matter. In the event that I am wrong, I have proceeded to consider the substantive questions. -- 23 of 25 -- [2023] FWC 664 24 [65] Having regard to the principles of construction referred to earlier, I have identified the objective meaning of clause 21.2, by construing the words of the Agreement in light of their industrial and textual context, and the answer to the first question posed is “no”. In those circumstances, it is unnecessary for me to answer the second question. COMMISSIONER Appearances: Mr A. Bonello for the Applicant Mr. M Minucci for the Respondent Hearing details: 2023 Melbourne 8 March Printed by authority of the Commonwealth Government Printer <PR760434> 1 Clause 4 of the Agreement. 2 Applicant’s Outline of Argument, paragraph 34. 3 Respondent submissions paragraphs 9 - 15 4 [2017] FWCFB 5032 5 Witness Statement of Mr Logan, paragraph 15. 6 Witness Statement of Mr Logan, paragraph 28. 7 Witness Statement of Mr Logan, paragraph 15. 8 Witness Statement of Mr Hynds, paragraph 13. 9 Witness Statement of Mr Hynds, paragraph 14. 10 [2017] FWCFB 5032, [39]. 11 [2017] FWCFB 3005, [114]. 12 Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [19] – [40]. 13 [2018] FCAFC 131, [197]. 14 Note: context is to be considered as part of the first stage: SZAL v Minister for Immigration and Border Protection [2017] 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ. -- 24 of 25 -- [2023] FWC 664 25 15 Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [41]. 16 Applicant’s Outline of Argument, paragraphs 22 – 50. 17 Applicant’s Reply Submissions, paragraphs 21-28. 18 Australian Liquor, Hospitality and Miscellaneous Workers’ Union v Prestige Property Services Pty Ltd (2006) 149 FCR 209, [44] 19 Respondent’s Outline of Submissions, paragraphs 16-29. 20 WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197]. 21 WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197], citing Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). 22 Ibid. 23 Annexure TP-2. 24 Shop Distributive and Allied Employees' Association v Woolworths Limited (2006) 151 FCR 513, at [31]. 25 Witness Statement of Mr Logan, paragraph 22. 26 Witness Statement of Mr Logan, paragraph 24. -- 25 of 25 --