In brief
An employer's misunderstanding of Latin has had harsh consequences for it in the interpretation of an enterprise agreement. Associate Victoria Eastwood reports.
How does it affect you?
- A reminder that small words and phrases in an enterprise agreement can make a difference in the meaning of its terms.
- It may not be enough to show evidence of prior negotiations to support why certain clauses in an enterprise agreement were included.
- The fact that no one has ever raised any issues in relation to the interpretation of an enterprise agreement will not necessarily stop a person raising an issue later in time.
Background
One Friday afternoon before 4pm, Qube Ports notified some of its employees about a 10 hour shift starting on the Sunday, in accordance with the terms of the relevant enterprise agreement. On the Saturday before 2pm, the employees were notified of a change to the start time and the shift duration (which increased to 12 hours). At the 'toolbox' meeting at the start of the Sunday shift, the manager discussed the duration of the shift with the employees and confirmed it was to be 12 hours.
Following that meeting, seven employees said they were unable to extend the shift to 12 hours, and left the site after completing 10 hours of work. They subsequently received formal written warnings from Qube for leaving the site without authorisation and refusing a lawful and reasonable direction to complete the shift.
The CFMMEU argued that the warnings were not valid because the employees had not been validly notified of the extension to the shift in accordance with the terms of the enterprise agreement, which provided that notification to work on the weekend 'may be confirmed, varied or cancelled (ie, change to shift start time or cancelled) by 1400 hours Saturday.' The CFMMEU submitted that the Latin phrase 'ie' means 'that is', which meant that the only permitted variations were either a change to the shift start time or a cancellation.
Qube argued this was an 'ultra-literal' interpretation and stated that the words 'ie' were intended to be 'eg' and quoted the Editor-at-Large of the Merriam Webster Dictionary – 'The most looked up abbreviations in our online dictionary are i.e. and e.g., probably for the simple reason that they are so often confused for one another'.
Decision
The Commission decided there was no ambiguity in either of the phrases. The CFMMEU's interpretation was simply the plain meaning of those phrases. It was also correct when considering the particular clause in the context of both the clause as a whole, and the enterprise agreement as a whole.
The history of the bargaining process was also raised, but the Commission decided that evidence of prior negotiations did not assist in this case.
Qube raised that in the context of one of its other sites, its practice was to treat any alterations to the start time of a Sunday shift (notified on a Saturday) as a variation (not a shift extension, which was dealt with via a separate clause in the enterprise agreement). The Commission said that the mere fact that no claim was made under an earlier instrument is not enough. Qube's argument on that point was not accepted.
Reference: CFMMEU v Qube Ports Pty Ltd [2018] FWC 5537