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January 2019

Ambiguity in enterprise agreement wording can have huge consequences

CFMMEU v Qube Ports Pty Ltd (2018)

The Case

Qube Ports Pty Ltd (Qube) notified employees before 2pm on Saturday that the Sunday shift would be extended from 10 hours to 12 hours. The manager confirmed this at a toolbox meeting at the start of the Sunday shift.

At the conclusion of the meeting, seven employees said they could not stay to complete a 12-hour shift and left after 10 hours. The employees who refused to stay received written warnings.

The Verdict

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) commenced proceedings in the Fair Work Commission (FWC) claiming the warnings were invalid.

The CFMMEU argued that the employees had not been notified of the shift extension in accordance with the terms of the enterprise agreement. The enterprise agreement stated that notification to work on the weekend “may be confirmed, varied or cancelled (i.e. change to shift start time or cancelled) by 1400 hours Saturday.”

The CFMMEU argued that the use of the Latin phrase ‘i.e.’ meaning ‘that is’, meant that the only permitted variations were either a change to the shift start time or a cancellation. This did not include an extension of the shift.

Qube argued the phrase ‘i.e.’ were intended to be ‘e.g.’ Qube relied on the Merriam Webster Dictionary to argue that the terms i.e. and e.g. were often confused.

The FWC held there was no ambiguity in the wording of the enterprise agreement. The CFMMEU’s interpretation was the correct interpretation of the clause.

Qube indicated that at one of its other sites, with the same enterprise agreement wording, it treated any alterations to the start time of a Sunday shift (which it notified on a Saturday) as a variation (not a shift extension), and no action had ever been taken by employees. The FWC said that the fact there had been no claim made under an earlier industrial instrument did not change the interpretation of the clause.

The Lessons

Be careful when drafting enterprise agreements. Small words and phrases can change the intended meaning of a clause. Evidence of prior negotiations or practices about how the clause was intended to operate may not be persuasive. The fact a dispute has not previously arisen about the interpretation of the clause (which may have been in prior enterprise agreements) does not prevent an interpretation issue being raised later.

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