"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Boeing Aerostructures Australia Pty Limited T/A Boeing Aerostructures Australia [2020] FWC 4306

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 Boeing Aerostructures Australia Pty Limited T/A Boeing Aerostructures Australia (C2020/2516) COMMISSIONER CIRKOVIC MELBOURNE, 17 AUGUST 2020 Dispute under an enterprise agreement – entitlement to payment on public holidays when employee ordinarily works – whether agreement requires that a replacement public holiday be provided when ANZAC Day falls on a weekend. Introduction [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 (the AMWU) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Boeing Aerostructures Australia Pty Limited T/A Boeing Aerostructures Australia (Boeing). [2] The parties are covered by the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2018 (the Agreement). The Agreement was approved by the Fair Work Commission (the Commission) on 14 September 2018. It has a nominal expiry date of 30 June 2021. The Agreement applies to “All employees of Boeing Aerostructures Australia Pty Limited engaged in its operations at 226 Lorimer Street, Port Melbourne 3207 whose terms and conditions of employment are covered by this Agreement whether members of an employee organisation referred to in sub clause (c) hereof or not”.1 [3] The parties jointly submitted that the question for arbitration is:2 “As ANZAC Day falls on a weekend in 2020 and 2021, are employees of the Respondent who do not generally work on the weekend (and thus did not work on ANZAC day in 2020 and will not work on ANZAC day in 2021) entitled to a 1 Clause 1.5(b) of the Agreement. 2 Email from Corrs Chambers Westgarth dated 22 May 2020. [2020] FWC 4306 DECISION -- 1 of 14 -- [2020] FWC 4306 2 replacement Public Holiday under the terms of clause 7.7 of the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2018?” [4] The AMWU contends that these workers are entitled to be paid for 13 public holidays each year; Boeing contends that there is no such entitlement. Background [5] The AMWU filed an application on 20 April 2020. The matter was listed for conference on 21 April and 30 April 2020 [6] As the dispute was unable to be resolved at conference, it was listed for arbitration on 22 July 2020. The parties subsequently consented to the matter being determined on the papers. Issues in dispute [7] In summary, the issue in dispute requires an interpretation of clause 7.7 dealing with public holidays which is set out at paragraph [11] below. [8] The sole issue for me to determine is whether the Agreement entitles employees, who do not ordinarily work on a weekend, to a replacement public holiday when ANZAC Day falls on a weekend. Jurisdiction [9] 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 Part 2. It is not in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration. Principles of Interpretation of Enterprise Agreements [10] The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri), 3 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd. 4 The Full Bench in Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made. 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. 3 [2017] FWCFB 3005 at [114]. 4 Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 at [19] – [40]. -- 2 of 14 -- [2020] FWC 4306 3 Relevant provisions of the Agreement [11] A relevant provision of the Agreement is clause 7.7, is reproduced below: “7.7 PUBLIC HOLIDAYS Summary This clause describes an employee's (other than a casual employee) public holiday entitlements. Employees are generally entitled to 13 specified public holidays per year without loss of pay. Other days can be substituted for any of the specified days by agreement between the employer and employees 7.7.1 Prescribed holidays 7.7.1.1. An employee under this Agreement is entitled to be absent from their employment when they would ordinarily work the following public holidays, without loss of pay: New Year Day (sic) Australia Day Good Friday Easter Saturday Easter Monday Anzac Day Queen’s Birthday Labour Day or Eight Hours’ Day Show Day Melbourne Cup Day Christmas Day Boxing Day 7.7.1.2. An additional day to be observed during the Christmas/New Year period, or such other day as is generally observed in a locality as a substitute for any of the said days respectively, or proclaimed as an additional holiday for the State of Victoria. 7.7.1.3. Substitution of certain public holidays which fall on a weekend 7.7.1.4. Where Christmas Day falls on a Saturday or a Sunday, 27 December shall be observed as the public holiday in lieu of the prescribed day. 7.7.1.5. Where Boxing Day falls on a Saturday or a Sunday, 28 December shall be observed as the public holiday in lieu of the prescribed day. 7.7.1.6. Where New Year's Day or Australia Day fall on a Saturday or a Sunday, the following Monday shall be observed as the public holiday in lieu of the prescribed day. -- 3 of 14 -- [2020] FWC 4306 4 For the purposes of this Agreement the said Saturday and/or Sunday shall be deemed not to be holidays. 7.7.1.7. Substitution of public holidays by agreement at the enterprise By agreement between the employer and the majority of employees in the relevant enterprise or section of the enterprise, an alternative day may be taken as the public holiday in lieu of any of the prescribed days. 7.7.2 Payment for time worked on a public holiday 7.7.2.1. Payment for time worked by continuous shift workers on a public holiday Refer to 6.2.4 to determine the pay entitlements of continuous shift workers working on rostered shifts which fall on a public holiday. 7.7.2.2. Payment for time worked by non-continuous shift workers on a public holiday Refer to 6.2.4 to determine the pay entitlements of non-continuous shift workers working on rostered shifts which fall on a public holiday. 7.7.2.3. Payment for time worked by day workers on a public holiday Day workers, other than employees engaged in maintaining the continuity of electric light and power or garage employees and/or drivers of tow and/or repair vehicles recalled for breakdown, accident or other emergency work, required to work on a public holiday shall be paid for a minimum of four hours work at double time and a half. The double time and a half is to be paid until the employee is relieved from duty. Refer to 6.4.10 and 6.4.11 to determine the rest break and meal allowance entitlements of day workers who work on a public holiday. 7.7.3 Rostered day off falling on public holiday An employee who by the circumstances of the arrangement of ordinary hours of work is entitled to a rostered day off which falls on a public holiday prescribed by this clause shall, at the discretion of the Company, be paid for that day eight ordinary hours pay or have an additional day added to annual leave. This sub clause shall not apply when the holiday falls on a Saturday or Sunday.” [12] During the approval process for the Agreement, Boeing provided an undertaking to the Commission which relevantly states: “Public Holidays As to clause 7.7.1.2 of the Agreement: (a) to the extent the State of Victoria declares or prescribes a public holiday for the Friday before AFL Grand Final ('AFL Grand Final Friday') in a particular year, BAA will assign that day as an 'additional day' (i.e. the 13th public holiday) under clause 7.7.1.2; (b) if in a particular year, AFL Grand Final Friday is not declared or prescribed as a public holiday by the State of Victoria, then BAA may assign as the 13th public holiday ('additional day') under clause 7.7. 1.2, another day (other than a day set out in section 115(1 )(a) of the FW Act) that the State of Victoria may declare or prescribe as a public holiday; -- 4 of 14 -- [2020] FWC 4306 5 (c) where a day or part day is declared or prescribed by the State of Victoria as a public holiday, and that day or part day is not assigned as the 131 h public holiday under clause 7.7 .1.2, BAA will otherwise observe that day or part day as a public holiday in accordance with sections 11 4 to 116 and section 55 of the Fair Work Act.” Evidence [13] Mr Michael Sveticic, an AMWU delegate and employee covered by the Agreement, filed a witness statement on behalf of the AMWU. The essence of the statement was that many complaints from employees of Boeing were received by delegates of the AMWU following the release of the 2020 and 2021 work calendars about there being no substitution day for ANZAC Day.5 [14] Mr Michael Sorrenson, Director of Supply Chain Management & Operations at the Port Melbourne site of Boeing, filed a witness statement for Boeing. The crux of Mr Sorrenson’s evidence related to the historical operation of public holidays with respect to employees covered by the Agreement.6 [15] There was little factual contest between the parties as to matters of significance. Submissions of the parties [16] The AMWU contends that the question to be arbitrated should be answered “yes”7 and in support of this position advances the following arguments: (1) clause 7.7 and the undertaking reflect an “intention” of the parties that employees are “generally” entitled to 13 specified public holidays per year without loss of pay and the evidence demonstrates that in 2020 and 2021 employees of Boeing covered by the Agreement will not receive the benefit of 13 public holidays; 8 (2) the word “generally” appearing in clause 7.7 should be given its ordinary meaning: “in most cases, without regard to particulars or exceptions” and it follows that, “in most cases, employees are entitled to be absent from their employment when they would ordinarily work for 13 specified public holidays per year without loss of pay”;9 (3) Mr Sorrenson’s evidence “shows” that for the duration of the Agreement’s operation, no employees would ordinarily work on a Saturday or Sunday;10 (4) if Boeing’s interpretation is accepted, employees will be entitled to be absent from their employment when they would ordinarily work for 13 specified public holidays 5 Witness Statement of Michael Sveticic dated June 2020. 6 Witness Statement of Michael Sorrenson dated 22 June 2020. 7 Applicant’s Closing Submissions dated 22 July 2020 (AMWU Closing Submissions) at [30]. 8 Applicant’s Submissions dated June 2020 (AMWU Submissions) at [8] – [9]. 9 AMWU’s Closing Submissions at [2] – [3]. 10 AMWU’s Closing Submissions at [4]. -- 5 of 14 -- [2020] FWC 4306 6 in only 33% of the years governed by the Agreement which would the effect of making the 13 day “standard” as exception rather than being general;11 (5) clause 7.7.1.7 of the Agreement “foresees” circumstances where substitution days may be required and provides for a method of reaching agreement and Boeing is not entitled to “unreasonably withhold such agreement”;12 (6) clause 7.7.1.2 is “capable of furnishing a replacement public holiday in the circumstances of ANZAC Day falling on a non-work day”;13 (7) clause 7.7.1.3 is intended to facilitate the substitution of certain public holidays which fall on a weekend and this is “separate and severable” from clauses 7.7.1.4, 7.7.1.5 and 7.7.1.6. Any alternative interpretation leaves 7.7.1.3 with no work to do;14 (8) Boeing has an implied duty of good faith which extends to their obligation to honour employee entitlement to be absent for the 13 specified public holidays per year without loss of pay;15 (9) a redacted petition of 527 employees of Boeing has been gathered stating “We the undersigned call on BAA to ensure that the EBA standard of 13 Public Holidays per year is met in 2020 and 2021, with a replacement day for ANZAC Day added to the calendar” ;16 (10) pursuant to the list of public holidays identified on the Fair Work Ombudsman’s website, employees of Boeing in Brisbane will have an ANZAC Day replacement public holiday but those covered by the Agreement in Port Melbourne will be at work;17 (11) leaving aside Easter Sunday, the Agreement entitles each employee covered by the Agreement to be absent from work on 12 days they would otherwise ordinarily work without loss of pay. In 2020 and 2021 this will not be reached and an “an important aspect of the bargain that employees entered in to (sic) will not be delivered”. This is an important question of interpretation but “also an important question of trust”;18 (12) in the present case, the process for reclassifying employees is dealt with directly in the Agreement and is therefore a permitted matter;19 and 11 AMWU’s Closing Submissions at [5] – [6]. 12 AMWU’s Submissions at [14] – [15]. 13 AMWU’s Closing Submissions at [15]. 14 AMWU’s Closing Submissions at [18] – [19]. 15 AMWU’s Closing Submissions at [16]. 16 AMWU’s Closing Submissions at [21]. 17 Applicant’s Submissions in Reply dated 29 June 2020 (AMWU’s Reply Submissions) at [1] – [2]. 18 AMWU’s Reply Submissions at [5] – [8]. 19 AMWU’s Submissions at [19] – [22]. -- 6 of 14 -- [2020] FWC 4306 7 (13) in Boeing v AMWU [2016] FWCFB 1204 (the Full Bench Decision), the Full Bench recognised a clear intention of the parties to deliver a standard of 13 public holidays a year.20 [17] Boeing contends that the answer to the question to be arbitrated is “no” and in support of this position advances the following arguments: (1) clause 7.7 of the Agreement does not compel Boeing to provide 13 paid public holiday each year, regardless of whether or not an employee is or is not rostered to work on those public holidays. Rather, on its proper construction, clause 7.7 entitles an employee to “be absent from their employment when they would ordinarily work” on any of the 13 prescribed public holidays without loss of pay. Where an employee would not otherwise “ordinarily work” a prescribed public holiday, their absence from work on that day remains unpaid;21 (2) the text of clause 7.7 is “structured by way of an overarching summary, followed by specific provisions establishing relevant rights and obligations”;22 (3) with respect to the overarching summary that “employees are generally entitled to 13 specific public holidays per year without loss of pay”, it should be noted that:23 a. it summarises entitlements prescribed by other specific provisions within clause 7.7. It does not, of itself, create discrete rights or obligations independent of those specific provisions; b. even if the provision were substantive, it rises no higher than an observation that employees are “generally” entitled to 13 specific public holidays without loss of pay and does not purport to create an enforceable right to 13 public holidays in all circumstances; and c. the provision’s reference to “without loss of pay” refers to the focus of clause 7.7 on the entitlement to be absent from work on specific public holidays; (4) clause 7.7.1.1 provides that an employee “is entitled to be absent from their employment when they would ordinarily work the following public holidays, without loss of pay”, going on to list 12 specific public holidays, including Anzac Day;24 (5) clause 7.7.1.2 provides that ““an additional day” is “to be observed during the Christmas/New Year period, or such other day as is generally observed in a locality as a substitute for any of the said days respectively, or proclaimed as an additional holiday for the State of Victoria”.;25 20 AMWU’s Submissions at [11] – [13]. 21 Respondent’s Outline of Submissions dated 22 June 2020 (Boeing’s Submissions) at [6]. 22 Boeing’s Submissions at [8]. 23 Boeing’s Submissions at [9]. 24 Boeing’s Submissions at [10]. 25 Boeing’s Submissions at [11]. -- 7 of 14 -- [2020] FWC 4306 8 (6) Boeing meets its obligation under clause 7.7.1.2 of the Agreement to provide “an additional day” by observing the Grand Final Eve public holiday and also observes Easter Sunday as a public holiday, per Victorian legislation, despite it not being prescribed under the Agreement;26 (7) it follows that, if an employer would “ordinarily work” each of the 12 public holidays prescribed in clause 7.7.1.1 and an additional day prescribed by clause 7.7.1.2, the employee would be entitled to be absent from work on each of those 13 public holidays without loss of pay and if they did not “ordinarily work” on any of these days, they would only be entitled to be absent from work without loss of pay on those public holidays upon which they would ordinarily work. This is the “extent of the “benefit” which clause 7.7 prescribes”;27 (8) the clause does not compel Boeing to pay each employee covered by the Agreement the equivalent of 13 days’ pay. It entitles those employees to be absent from work on certain days they would otherwise ordinarily work without loss of pay;28 (9) clauses 7.7.1.4 to 7.7.1.7 sets out the only “exceptions” to this position. Clauses 7.7.1.4 to 7.7.1.6 identify four specific public holidays, being Christmas Day, Boxing Day, New Year’s Day and Australia Day, where substitution for a weekday must occur when those days fall on a weekend. Mr Sorrenson’s evidence is that these public holidays are dealt with in accordance with those clauses of the Agreement;29 (10) clause 7.7.1.7 provides a further optional mechanism for the substitution of any day of the prescribed public holidays by agreement between the employer and majority of employees in the relevant enterprise or section of the enterprise;30 (11) the AMWU’s preferred construction would either require “rewriting” clauses 7.7.1.4 to 7.7.1.6 to include ANZAC Day or rewriting clause 7.7.1.7 to impose an obligation on Boeing to agree to some alternative day in lieu of ANZAC Day. Each of those approaches is “misconceived”;31 (12) with respect to clauses 7.7.1.4 to 7.7.1.6, the “drafters of the Agreement evidently gave attention to the possibility that employees might not obtain the benefit of paid public holidays falling on weekends, and agreed a confined subset of those public holidays for which a weekday substitute would be provided.” The express inclusion of four specific holidays within these clauses “suggests” that the remaining public holidays (including ANZAC Day) were intended to be excluded from that mechanism;32 (13) with respect to clause 7.7.1.7, it is “plainly intended” to facilitate further possible substitutions should Boeing and a majority of employees agree to do so and indicates 26 Boeing’s Submissions at [12]. 27 Boeing’s Submissions at [13]. 28 Boeing’s Submissions at [13]. 29 Boeing’s Submissions at [14]. 30 Boeing’s Submissions at [15]. 31 Boeing’s Submissions at [16]. 32 Boeing’s Submissions at [17]. -- 8 of 14 -- [2020] FWC 4306 9 no intention to “compel” Boeing to reach any such agreement or limit its ability to withhold agreement. The text of clause is “permissive” rather than “mandatory”, using terms such as “may” rather than “will” or “must”, consistent with other aspects of the Agreement. From a contextual standpoint, one sees that approach reflected in the approach of several other provisions in the Agreement whereas, by contrast, where the Agreement intends a majority agreement mechanism to be a mandatory step, it says so in express terms;33 (14) the AMWU points to “selective” extracts of the Full Bench Decision which deals with “a different issue” and contain nothing which suggests that clauses 7.7.1.4 to 7.7.1.6 be rewritten in the manner suggested by the AMWU;34 [18] In its reply submissions, Boeing advanced the following: (1) on the AMWU’s construction, neither the words “that the employee would ordinarily work…” nor the specific substitution mechanisms established by clauses 7.7.1.4 to 7.7.1.6 would have any work to do as Boeing would be compelled to provide 13 paid days off “come what may” and would be “required” to substitute any public holiday falling on a weekend;35 (2) the AMWU’s emphasis on the word “generally” in clause 7.7 should be rejected for three reasons:36 a. The overarching summary in clause 7.7 does not, of itself, create rights and obligations, noting that it is headed “Summary” and falls outside the numbering system of the remainder of clause 7.7. Its text “unambiguously” summarises the effects of the more detailed provisions which follow, and the use of the word generally here cannot displace the meaning of those specific provisions;37 b. Even if the “chapeau” to clause 7.7 did create substantive rights, it does not bear the meaning which the AMWU contends, noting that the Macquarie Dictionary ascribes three ordinary meanings to the word “generally”: “with respect to the larger part, or for the most part … usually; commonly; ordinarily… without reference to particular persons or things: generally speaking”. Either of the first two meanings are capable of “sensible operation” in the present context, with the first more likely given its use as an adverb. That meaning is apt to encompass exceptions: “whether in the form of the vagaries of how dates fall within the Gregorian Calendar year to year, or how the Victorian Government decides whether or not to proclaim a substitute public holiday in a given year when ANZAC Day falls on a weekend.”;38 33 Boeing’s Submissions at [18]. 34 Boeing’s Submissions at [19]; Boeing’s Closing Submissions at [13]. 35 Respondent’s Supplementary Outline of Submissions dated 23 July 2020 (Boeing’s Closing Submissions) at [2]. 36 Boeing’s Closing Submissions at [3]. 37 Boeing’s Closing Submissions at [4]. 38 Boeing’s Closing Submissions at [5] – [6]. -- 9 of 14 -- [2020] FWC 4306 10 c. Contrary to the AMWU’s submission, there is a twelfth and thirteenth day being provided as if employees ordinarily work those 13 days they are entitled to be absent on those days without loss of pay and if they do no ordinarily work any of those days, their absence is unpaid. That ANZAC Day happens to fall on weekend days in 2020 and 2021 does not alter that position;39 (3) Boeing’s construction is consistent with clause 4.2.6 of the Agreement, which deals with public holidays for part-time employees by providing part-time employees do not lose pay for normal paid hours which fall on a public holiday that they do not work, whereas the AMWU’s construction would create an entitlement for full-time employees which would substantively differ from those of part-time employees;40 (4) an examination of the Agreement’s predecessors undermines the AMWU’s preferred constructions as substantially identical provisions appeared in the 2014 and 2010 agreements and in 2015 and 2010 ANZAC Day feel on a weekend and no substitution public holiday was provided nor is there any evidence that a dispute was raised in relation to Boeing’s treatment of those days;41 (5) there is no indication that the parties negotiating the Agreement had a common intention to give the words in the Agreement different meaning to the identical provisions in the 2010 and 2014 agreements and as such the AMWU’s argument is little more than an appeal to an “anteriorly derived notion of what would be fair or just, regardless of what has been written into the [Agreement]”;42 (6) the AMWU’s submission that employees will benefit form a paid day off on ANZAC Day in a minority of years of the Agreement’s operation is unsustainable as it assumes that the Agreement will cease operating upon the nominal expiry date which is incorrect as it will cease to operate only upon termination or replacement. There is no proper basis to speculate about the length the Agreement will operate for and thus such speculation cannot “aid in its construction”;43 (7) with respect to the AMWU’s submission that the workers who voted for the Agreement took the provision to have its ordinary or usual meaning that they would be entitled to 13 days off on days they would ordinarily work, Boeing rejects this position as “without substance” and points to an absence of evidence of any prior common understanding or objective background facts which might have aided the construction exercise;44 (8) the argument that the employees are losing a public holiday on a work day should be rejected as it does not arise given that ANZAC Day is falling on weekends which are not work days;45 39 Boeing’s Closing Submissions at [7]. 40 Boeing’s Closing Submissions at [8]. 41 Boeing’s Closing Submissions at [9]. 42 Boeing’s Closing Submissions at [10]. 43 Boeing’s Closing Submissions at [11]. 44 Boeing’s Closing Submissions at [12]. 45 Boeing’s Closing Submissions at [13]. -- 10 of 14 -- [2020] FWC 4306 11 (9) the AMWU’s submission that Boeing is “perfectly capable of furnishing a replacement public holiday” remains “unexplained”. If the Victorian Government were to proclaim a substitute a public holiday for ANZAC day it would be capable but it has not done so;46 (10) the AMWU’s submission that Boeing has an implied duty of good faith, citing Barker v Commonwealth of Australia, can be relied on to support the AMWU’s contention should be rejected on the basis that the High Court left the question of implied duty of good faith unresolved and that it has not been extended to rewrite the plain meaning of enterprise agreements under the Act;47 (11) the AMWU’s submission that clause 7.7.1.3 creates separate and severable obligations independent from clauses 7.7.1.4 to 7.7.1.6 is “wrong” and plainly an “erroneously numbered heading…” which was intended to encompass 7.7.1.4 to 7.7.1.6 rather than create rights or obligations itself. Such a conclusion is obvious when one considers its common structure and wording with the heading to clause 7.7.1.7 and when examining the predecessor agreements;48 (12) the AMWU’s introduction of a petition should be rejected for three reasons: a. the AMWU has closed it evidentiary case, having had an opportunity to previously tender this document but did not do so, and advances no basis as to why it ought be granted leave to reopen its case nor is any such basis apparent;49 b. the petition is a screenshot of 10 redacted lines of text and accompanying signatures (one of which is redacted) and the assertion that 527 employees have signed is absent evidence and unable to be testing in closing submissions;50 and c. the petition is irrelevant as whatever the views of those nine people who appear to have signed the petition, assuming they are covered by the Agreement, those subjective views do not assist in interpreting the Agreement;51 (13) the AMWU’s remaining submissions have “no substance”, noting that the Full Bench Decision and the undertaking provided with respect to the Agreement have no bearing on the present dispute;52 and (14) the AMWU’s position is one that “casts aside the plain meaning” of the relevant Agreement clauses in favour of “an appeal to amorphous notions of industrial fairness”.53 46 Boeing’s Closing Submissions at [14]. 47 Boeing’s Closing Submissions at [15]. 48 Boeing’s Closing Submissions at [16]. 49 Boeing’s Closing Submissions at [18]. 50 Boeing’s Closing Submissions at [19]. 51 Boeing’s Closing Submissions at [20]. 52 Boeing’s Closing Submissions at [21]. 53 Boeing’s Closing Submissions at [22]. -- 11 of 14 -- [2020] FWC 4306 12 Consideration [19] In accordance with the principles earlier stated, the construction of the Agreement begins with a consideration of the ordinary meaning of the relevant words. Context may appear from the text of the Agreement viewed as a whole, or the place and arrangement of clause 7.7 in the Agreement. The statutory framework under which the Agreement was made and in which it operates may also provide context. [20] Clause 7.7 is titled “PUBLIC HOLIDAYS”. That the clause seeks to regulate public holiday entitlements for employees covered by the Agreement is not in dispute. The title is followed by the word “Summary” following which the clause relevantly states that “Employees are generally entitled to 13 specified public holidays per year without loss of pay”. Clause 7.7.1 sets out the prescribed holidays and importantly stipulates that an employee is entitled to be absent from their employment without loss of pay “when they would ordinarily work” the prescribed public holidays. It is worth noting at this juncture that 12 public holidays are nominated in the list appearing at clause 7.7.1.1 and that, by virtue of an undertaking to the Agreement provided by Boeing at the time of the making of the Agreement, the AFL Grand Final Day public holiday was acknowledged as the “additional day” for the purposes of clause 7.7.1.2 [21] Clause 7.7.1.3 purports to facilitate substitution of certain public holidays which fall on a weekend. These include Christmas Day, Boxing Day, New Year’s Day and Australia Day. It is also worth noting that clause 7.7.1.7 provides a mechanism for the employer and a majority of employees to agree as to an alternative day to be taken as the public holiday in lieu of any of the prescribed days. [22] The remainder of clause 7.7 essentially purports to regulate the payment for time worked on a public holiday for day workers and shift workers. [23] The parties do not dispute that ANZAC Day fell on a Saturday in 2020 and will fall on a Sunday in 2021. Further, there is no contest that the employees the subject of the dispute, do not normally work on Saturday or Sunday. The essence of the question before me is whether, clause 7.7 entitles employees to a replacement public holiday in 2020 and 2021 as ANZAC Day falls on a weekend in both years. [24] In my view, on a proper construction, the entitlement to be absent from work without loss of pay on ANZAC Day is a qualified one. Clause 7.7.1.1 speaks plainly as to the entitlement to be absent from work without loss of pay and the meaning of the expression “would ordinarily work” in the context of the Agreement as a whole is not ambiguous. It has a plain meaning, namely that the benefit arises with respect to those employees who “would ordinarily work” on ANZAC Day. It follows that employees covered by the Agreement are entitled to be absent from work, without loss of pay on 13 public holidays if they would ordinarily work those public holidays; if they would not ordinarily work any of those days there is no entitlement to be absent from work without loss of pay. [25] The AMWU’s submission that both the clause and the undertaking reflect an intention that employees are generally entitled to 13 specified public holidays per year without loss of pay, does not in my view alter the ordinary meaning of clause 7.7.1.1 or displace the meaning of the words “would ordinarily work”. -- 12 of 14 -- [2020] FWC 4306 13 [26] The AMWU relies on the first section of clause 7.7 and in particular the word “generally” appearing at the summary part of the clause to assert the entitlement. In my view, the submission is without merit. If I were to accept the notion proffered by the AMWU, the critical words in 7.7.1.1 “would ordinarily work” would have no work to do. I have no convincing textual reason to read down the disputed clause in the manner suggested by the AMWU [27] I have considered the balance of the AMWU’s submissions, including its reliance on the Full Bench Decision, which it advances in support of its interpretation of the disputed clause. I reject this submission as the Full Bench Decision was dealing with a different matter, namely the determination of the “additional day” in clause 7.6.1.2 of the 2014 agreement. In my view, the Full Bench Decision is of no assistance to the AMWU in the present case. [28] As to the submission that Boeing has an “implied duty of good faith” and that this “extends to their obligation to honour the employee entitlement to be absent from their employment when they would ordinarily work for 13 specified public holidays per year without loss of pay”, the submission is not fully developed and it is unclear to me how the purported duty is said to displace the plain meaning of clause 7.7.1.1. [29] I have also considered the AMWU’s submissions that clause 7.7.1.2 is “perfectly capable of furnishing a replacement public holiday in the circumstances of ANZAC day falling on a non work day”, that clause 7.7.1.3 is “intended to facilitate this process to substitute of (sic) certain public holidays which fall on a weekend” and that it is “separate and severable” from 7.7.1.4, 7.7.1.5 and 7.7.1.. I agree that Clauses 7.7.1.3 to 7.7.1.6 are clauses that essentially provide a mechanism for the substitution of certain public holidays when they fall on a weekend and that these include Christmas Day, Boxing Day, New Year’s Day and Australia Day. Clause 7.7.1.2 plainly reads “substitution of certain public holidays which appear on a weekend”. The sentence, on its plain meaning, does not create any rights or obligations of itself. That it appears in a section of the clause that would suggest a typographical error does not alter my overall interpretive conclusion. [30] As to the AMWU’s submission that 527 of Boeing’s employees have signed a petition indicating their views, I note that the petition before me is a screenshot of 10 redacted lines of text and accompanying signatures, one of which is redacted. Given this limited material, I am unable to make any findings as to the view of employees. I have given no weight to the petition in coming to my decision. [31] In the present matter, I consider that clause 7.7 has a plain meaning. It is not ambiguous. To adopt the meaning sought by the AMWU would in my view involve some straining on the ordinary meaning of the words. As Deputy President Colman aptly observed in National Union of Workers v CHEP Australia Limited: “the mere fact that two parties present respectable but conflicting interpretations does not mean that the provisions concerned must be ambiguous.”54 54 [2018] FWC 3797 at [44]. -- 13 of 14 -- [2020] FWC 4306 14 [32] Taking into account the ordinary meaning of the words contextually in clause 7.7 and with respect to the context of the Agreement as a whole, I am of the view that Boeing’s interpretation is the correct one. Therefore the answer to the question posed “As ANZAC Day falls on a weekend in 2020 and 2021, are employees of the Respondent who do not generally work on the weekend (and thus did not work on ANZAC day in 2020 and will not work on ANZAC day in 2021) entitled to a replacement Public Holiday under the terms of clause 7.7 of the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2018?” is no. 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