2020 WAIRC 00440
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2020 WAIRC 00440

CORAM
: INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD
:
THURSDAY, 23 JULY 2020

DELIVERED : THURSDAY, 30 JULY 2020

FILE NO. : M 52 OF 2020

BETWEEN
:
JOSEPHINE JURAK
CLAIMANT

AND

CATHERINE ESTHER DOUST IN HER CAPACITY AS PRESIDENT OF THE LEGISLATIVE COUNCIL OF WA
RESPONDENT

CatchWords : INDUSTRIAL LAW – Enforcement of State industrial instrument – Application for summary judgment – Whether there is a real issue to be tried – Turns on construction of award term and own facts – Application for costs – Whether the claim was vexatiously or frivolously instituted
Legislation : Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA)
Industrial Relations Act 1979 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Instruments : Electorate Officers Award 1986 (WA)
Electorate and Research Employees CSA General Agreement 2019 (WA)
Case(s) referred
to in reasons: : United Voice WA v The Minister for Health [2011] WAIRC 01065
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Mary v Schon [2015] WADC 92
Edenham Pty Ltd v Meares (No 2) [2016] WASC 302
Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989)
Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported, WASCA, Library No 9189, 13 December 1991)
Dey v Victorian Railways Cmrs (1949) 78 CLR 62
Theseus Exploration NL v Foyster (1972) 126 CLR 507
Burton v Shire of Bairnsdale (1908) 7 CLR 76
Shilkin v Taylor [2011] WASCA 255
Commissioner of Police v AM [2010] WASCA 163 (S)
Matthews v Cool or Cosy Pty Ltd & Ors [2003] WASCA 136
Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27
Fedec v The Minister for Corrective Services [2017] WAIRC 00828
City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Result : Application granted in part
REPRESENTATION:

CLAIMANT : MR P. MULLALLY (AGENT) FROM WORKCLAIMS AUSTRALIA
RESPONDENT : MS J. VINCENT (OF COUNSEL) FROM STATE SOLICITOR’S OFFICE

REASONS FOR DECISION
1 Ms Josephine Jurak (Ms Jurak) was employed as an Electorate Officer to assist a member of the Legislative Council, Mr Robin Howard Chapple (Mr Chapple MLC).
2 The Respondent, Catherine Esther Doust as President of the Legislative Council of Western Australia, was Ms Jurak’s employer and employed Ms Jurak from 21 October 2013 to 3 January 2020. On 7 March 2018, the Respondent signed an instrument of delegation, delegating any power or duty relating to electorate officers to the holder of the office of the Director General, Department of Premier and Cabinet (from time to time).
3 Ms Jurak’s employment was governed by the Electorate Officers Award 1986 (WA) (the Award) and the Electorate and Research Employees CSA General Agreement 2019 (WA) (the Agreement).
4 Ms Jurak alleges that she was ‘forced’ to resign and was ‘constructively dismissed’ when she resigned from her employment on 6 December 2019, with her resignation to take effect on 3 January 2020.
5 Ms Jurak claims:
· the irretrievable break down of her working relationship with Mr Chapple MLC is a circumstance covered by cl 8(2)(b)(iv) of the Award because her ‘constructive dismissal’ occurred through no fault of her own and her employment was ‘deemed’ to have expired;
· upon the expiration of her employment contract she was entitled to benefits under cl 8(3)(a)(i) and cl 8(3)(a)(ii) of the Award, namely four weeks salary in lieu of notice and termination payment at two weeks salary for each year of service; and
· a further entitlement of a week in lieu of notice under cl 20.3 of the Agreement.
(the Claim)
6 The Respondent denies the Claim and on 19 June 2020 lodged an application seeking:
· summary dismissal on the ground that the Claim has no real prospect of success; and
· costs of the proceedings on the ground that the Claim was frivolously or vexatiously instituted.
(the Application)
7 In support of the Application, the Respondent lodged:
· an affidavit of Ms Regina Bolton, Executive Director of the Department of Premier and Cabinet, sworn on 9 July 2020 (the Bolton Affidavit);
· an affidavit of Ms Joanna May Vincent, Legal Practitioner, sworn on 19 June 2020; and
· submissions in support of the Application.
8 In opposing the Application, Ms Jurak lodged an affidavit sworn by her on 21 July 2020 (the Jurak Affidavit) and relies upon oral submissions regarding the application of cl 8(2)(b)(iv) of the Award.
9 Schedule I outlines the jurisdiction and practice and procedure relevant to the Industrial Magistrates Court of Western Australia (IMC).
10 Schedule II outlines the principles relevant to construction of an industrial instrument.
Issues For Determination
11 The following issues require determination:
(a) the proper construction and application of cl 8(2)(b)(iv) of the Award;
(b) whether summary judgment applies in the circumstances; and
(c) if the Application is successful, whether a costs order should be made?
Respondent’s Contentions
12 The Respondent contends that:
(a) cl 8 of the Award covers resignation, retirement, termination and severance;
(b) the Claim relies upon the application of cl 8(2)(b)(iv) of the Award. Clause 8(2)(b)(iv) of the Award states ‘For the purposes of this clause, an employee’s contract shall be deemed to have expired (terminated) if, through no fault of the employee, his or her services are no longer required and the Member for whom the employee works other circumstances as agreed between the employer and the Union’.
For the purposes of this clause the terms ‘Employer’ and ‘Union’ are defined in cl 6 of the Award; Relevantly ‘Employer’ means: (1) The President, acting on recommendation of the Director General, is the employer of each electorate employee appointed to assist: (a) a member of the Legislative Council in dealing with constituency matters. ‘Union’ means the Civil Service Association of Western Australia Incorporated.

(c) the requirement to pay entitlements under cl 8(3)(a) of the Award arises only where the employee’s contract of employment expires in accordance with the provisions of cl 8(2)(b) of the Award;
(d) cl 8(2)(b)(i) to cl 8(2)(b)(iii) of the Award have no application to the Claim, therefore, in relying on cl 8(2)(b)(iv) of the Award, Ms Jurak must demonstrate that her contract of employment has deemed to have expired:
(i) through no fault of her own or her services are no longer required; and
(ii) there are ‘other circumstances as agreed between the employer and the Union’ (emphasis added) (where cl 8(2)(b)(i) to cl 8(2)(b)(iii) of the Award to do not apply);
(e) even if Ms Jurak’s contract of employment was deemed to have expired through no fault of her own, having regard to paragraphs [4] to [6] of the Bolton Affidavit, there are no other circumstances agreed between the Respondent (as the employer) and the Civil Services Association of Western Australia Incorporated (as the Union) that enliven cl 8(2)(b)(iv) of the Award;
(f) the Claim particularises no other circumstances agreed between the Respondent and the Civil Services Association of Western Australia Incorporated, and pleads only the irretrievable breakdown of the working relationship between Ms Jurak and Mr Chapple and the Respondent’s failure to provide a safe workplace; and
(g) paragraph [5] of the Jurak Affidavit does not rebut the evidence in the Bolton Affidavit, it merely intends to draw an inference that a conversation with Ms Jane Meehan (Ms Meehan), an officer at the Department of Premier and Cabinet, is sufficient to demonstrate an agreement between the Respondent and the Union. The Respondent disputes that this is the case.
Ms Jurak’s Contentions
13 Ms Jurak contends that:
(a) an irretrievable breakdown of the working relationship is a circumstance covered by cl 8(2)(b)(iv) of the Award;
(b) her constructive dismissal by the Respondent occurred through no fault of her own, and, therefore, her employment was deemed to have expired;
(c) a ‘promise’ was made by Department officers that she would be paid a severance payment;
(d) by inference such ‘promise’ was an other circumstance enlivening cl 8(2)(b)(iv) of the Award and the application of this clause was utilised to make a severance payment; and
(e) there are matters of fact yet to be determined and the Claim ought not to be dismissed at this early stage.
Preferred Construction Of Clause 8(2)(b)(iv) Of The Award
14 Clause 8(2) of the Award concerns the expiration of an employee’s contract of employment, having regard to the unique position held by Members of Parliament. In the first instance, ‘[a]n employee’s contract of service terminates when the Member for whom the employee works ceases to hold office’: cl 8(2)(a) of the Award.
15 Thereafter, there are four instances where an employee’s contract of employment will be deemed to have terminated through no fault of the employee’s or where the employee’s services are no longer required. However, three of these instances are related to the Member for whom the employee works, including: (i) the Member’s death, resignation and retirement; (ii) the Member ‘is not re-elected for a second or subsequent term of office’; or (iii) the Member is not required following a change to electoral boundaries: cl 8(2)(b)(i) to cl 8(2)(b)(iii) of the Award.
16 These three instances clearly relate to the office held by the Member.
17 The fourth instance does not relate to the office held by the Member but provides for ‘other [unspecified] circumstances as agreed between the employer and the Union’ (emphasis added): cl 8(2)(b)(iv) of the Award.
18 Where an employee’s contract of employment terminates because of one of the instances in cl 8(2)(b) of the Award, the employee is entitled to a termination payment comprising of the entitlements provided in cl 8(3)(a)(i) to cl 8(3)(a)(iv) of the Award. An employee is not entitled to the termination payment for reasons specified in cl 8(3)(b)(i) to cl 8(3)(b)(iii) of the Award, which are not relevant to the Claim.
19 Further, cl 20.1 of the Agreement provides that the provisions of cl 20 needs to be read in conjunction with cl 8 of the Award. Clause 8(1)(b) of the Award provides that four weeks’ notice shall be given by the employer to the employee whose services are no longer required. This period increases by one week where the employee is over 45 years of age and has completed two years of continuous service with the employer: cl 20.3 of the Agreement.
20 The other circumstances referred to in cl 8(2)(b)(iv) of the Award are not defined in the Award, but whatever they may be these other circumstances are those which are agreed between the employer and the Union regarding the expiry of an employee’s contract of employment. Relevant to the Claim, the employer is the President, acting on recommendation of the Director-General (that being the Respondent), and the Union is the Civil Service Association of Western Australia Incorporated.
21 In my view, having regard to the ordinary meaning of the words of the instrument in the context in which they appear, and where there is no ambiguity in the words used, unless there is an agreement between the Respondent, as the employer, and the Civil Service Association of Western Australia Incorporated, as the Union, as to what other circumstance applies, cl 8(2)(b)(iv) of the Award has no operation relevant to an employee’s termination (deemed or not).
Application For Summary Judgement
Principles relevant to summary judgment applications
22 The IMC has the power to summarily dispose of a claim on the basis that there is no reasonable prospect of success. United Voice WA v The Minister for Health [2011] WAIRC 01065.
The IMC’s duties in dealing with cases are set out in reg 5 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA) (the Regulations). Regulation 7 of the Regulations sets out what the IMC may do for the purpose of controlling and managing cases and trials, including, at reg 7(1)(h) ‘order that an issue not be tried’, and at reg 7(1)(r) ‘take any other action or make any other order for the purpose of complying with regulation 5’.
23 Therefore, the IMC has the power to make the orders sought by the Respondent if it concludes that Ms Jurak’s claim is so clearly untenable that it could not possibly succeed and, if that circumstance exists, to dismiss the claim so as to deal with the case efficiently, economically and expeditiously and to ensure that the IMC’s resources are used as efficiently as possible. Regulation 5(2)(a) and reg 5(2)(c) of the Regulations.

24 The power to order summary judgment is one that should be exercised with great care. Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.
An application for summary judgment should be determined on the material before the Court, not based on the prospect that, given the opportunity, the other party might be able to remedy a deficiency. Mary v Schon [2015] WADC 92 [43] - [44].
The persuasive onus rests on the applicant for summary judgment, but the respondent to the application bears an evidentiary onus. Edenham Pty Ltd v Meares (No 2) [2016] WASC 302 [18].
The claim or defence put forward should not contain bare allegations unsupported by material facts. Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989).

25 The other party has an obligation to provide particulars of an arguable defence or claim (as the case may be) and to provide a statement of facts which go to show that it is arguable. Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported, WASCA, Library No 9189, 13 December 1991).
The summary judgement procedure is not confined to cases which are immediately plain and obvious. Dey v Victorian Railways Cmrs (1949) 78 CLR 62, 91.

26 While the Court may determine a difficult question of law on a summary judgment application, usually it is appropriate to leave the determination of such a question for trial. Theseus Exploration NL v Foyster (1972) 126 CLR 507, 514 - 515.

27 Disposal of a claim or a defence summarily ‘will never be exercised unless the [party’s claim or defence] is so obviously untenable that it cannot possibly succeed’. Burton v Shire of Bairnsdale (1908) 7 CLR 76, 92 (see also Shilkin v Taylor [2011] WASCA 255, 29).

Should summary judgment apply to the Claim?
28 The principle dispute between the parties concerns the construction and application of cl 8(2)(b)(iv) of the Award.
29 While not expressly stated in the Claim, I infer that Ms Jurak is seeking to invoke the IMC’s enforcement jurisdiction under s 83 of the Industrial Relations Act 1979 (WA) (IR Act).
30 To invoke the IMC’s enforcement jurisdiction, a claimant must first identify which instrument he or she says they are seeking to enforce. Thereafter, once the instrument is identified, consistent with the words in s 83(1) of the IR Act, the claimant must also identify the provision he or she says has been contravened or not complied with by the respondent.
31 It is only upon the claimant proving a contravention or failure to comply with a provision of an instrument that the IMC may make an order under s 83A(1) of the IR Act, where the employee has not been paid an amount to which they are entitled under the relevant instrument.
32 Noting the Claim seeks the payment of a monetary amount, to succeed under s 83 and s 83A(1) of the IR Act, Ms Jurak must prove on the balance of probabilities that the Respondent has contravened cl 8(3)(a) of the Award in failing to pay a termination payment.
33 However, in order to prove this contravention or failure to comply, Ms Jurak first needs to prove that her contract of employment expired in accordance with cl 8(2)(b) of the Award. Ms Jurak relies on cl 8(2)(b)(iv) of the Award as the basis for the deemed expiration of her contract of employment.
34 Having regard to the preferred construction of cl 8(2)(b)(iv) of the Award, Ms Jurak needs to prove there was an agreement between the Respondent and the Civil Service Association of Western Australia Incorporated regarding the deemed expiration of her contract of employment. It is not to the point what the agreement concerned (given other circumstances is likely to encompass a wide range of topics).
35 This is the case, notwithstanding there may be no fault on the part of Ms Jurak and she resigned from her employment (leaving aside whether her resignation could properly be characterised as ‘constructive dismissal’).
36 In respect of Ms Jurak’s claim for an additional week in lieu of notice under cl 20.3 of the Agreement, again she would first need to establish a claim under cl 8(2)(b) of the Award.
37 According to the Bolton Affidavit no agreement exists between the Respondent and the Civil Service Association of Western Australia Incorporated regarding the deemed expiration of Ms Jurak’s contract of employment. Paragraph [4] - [6].
Nothing in the Claim or in the Jurak Affidavit challenges this evidence.
38 To the extent that the Jurak Affidavit refers to a conversation between Ms Jurak and Ms Meehan about paying a severance payment, nothing in the Jurak Affidavit or in the annexures demonstrate that this conversation in any way related to an agreement between the Respondent and the Civil Service Association of Western Australia Incorporated concerning the deemed expiry of Ms Jurak’s contract of employment. Paragraph [5] and [8].

39 At its highest, and if accepted, the conversation referred by Ms Jurak was between her and Ms Meehan and is not asserted to be attributed to, or on behalf of, the Respondent. The only reference to the Respondent is in an email dated 27 February 2020 from Ms Sharon Basini informing Ms Jurak that the Respondent did not support a severance or irretrievable breakdown payment. Annexure ‘JJ1’ (email from Ms Sharon Basini dated 27 February 2020)

40 In my view, no inference can be drawn from this evidence that an agreement existed between the Respondent and the Civil Service Association of Western Australia Incorporated regarding the deemed expiry of Ms Jurak’s contract of employment. Where I am unable to draw this inference, the content of the Jurak Affidavit does not rebut the evidence in the Bolton Affidavit, notwithstanding the purported content of an earlier conversation between Ms Jurak and Ms Meehan indicating the payment of a ‘redundancy’.
41 The aspect of the Claim relevant to the cl 20.3 of the Agreement also relies upon establishing a basis under cl 8(2)(b)(iv) of the Award. The Claim does not particularise that Ms Jurak’s services were no longer required. To the contrary, Ms Jurak claims and asserts she was ‘constructively dismissed’ upon the ‘irretrievable breakdown’ of the employment relationship between her and Mr Chapple and relies upon a ‘promise’ of a payment of a severance payment.
42 Having regard to the Claim, the response to the Claim and to the affidavit evidence before the IMC, the Respondent has satisfied the persuasive onus that there is no issue or question in dispute, which ought to be tried or that there ought for some other reason be a trial of the Claim, where the entitlements and amount sought under cl 8(3)(a) of the Award and cl 20.3 of the Agreement rely upon the application of cl 8(2)(b)(iv) of the Award.
43 Therefore, judgment will be entered against Ms Jurak and the Claim is and be dismissed.
Application for Costs
44 The Respondent makes application for costs if summary judgement against the Claim is granted. Section 83C of the IR Act provides that ‘[i]n proceedings under section 83 … costs shall not be given to any party to the proceedings … unless, in the opinion of the [IMC], the proceedings have been frivolously or vexatiously instituted or defended … by the other party’.
45 The Respondent contends the Claim was frivolously instituted and, in the alternative, vexatiously instituted.
46 In dealing with whether the Claim was vexatiously instituted, I note the Claim was commenced against the Respondent and not Mr Chapple. The Respondent was Ms Jurak’s employer. There is no evidence, or any inference capable of being drawn from the evidence, before the IMC that enables a conclusion that the Claim was commenced ‘without sufficient grounds for success purely to cause trouble or annoyance’ Commissioner of Police v AM [2010] WASCA 163 (S) [28] - [29].
to the Respondent.
47 Having regard to the contents of the Jurak Affidavit, Ms Jurak asserts an officer at Department of Premier and Cabinet said she would be paid a termination payment upon her resignation (which she refers to as her ‘constructive dismissal’) from her employment. Whether this representation was made or not was, in fact, immaterial to the application of cl 8(2)(b)(iv) of the Award based on the preferred construction of this clause adopted by the IMC.
48 However, of itself and without more, that the Claim was arguably misguided or misconceived based on the alleged representation made does not, in my view, lead to a conclusion that it was vexatiously instituted.
49 The Respondent’s primary submission on why costs ought to be ordered is, in essence, it is axiomatic that if the Claim is dismissed because there is no reasonable prospects of success, the Claim is frivolous or has been frivolously instituted.
50 The Respondent refers to the Western Australian Industrial Appeal Court (IAC) decisions in Matthews v Cool or Cosy Pty Ltd [2003] WASCA 136 and Commissioner of Police v AM [2010] WASCA 163 (S) Matthews v Cool or Cosy Pty Ltd & Ors [2003] WASCA 136 [9].
in support of its submission on the meaning of ‘frivolous’. No issue is taken with this meaning.
51 Section 86(2) of the IR Act authorises the IAC to make a costs order, which is in similar terms to that of s 83C of the IR Act. The IAC in Matthews noted that the ‘policy envisaged by s 86(2) is that will it be [only] on very rare occasions that a costs order will be made’. Accordingly, consistent with the policy behind s 86(2), it will only be on very rare occasions that a costs order will be made under s 83C of the IR Act. Notably, while the IAC determined the ‘appeal was not frivolous or vexatious’, it also stated that in light of the minor expenses claimed the Court would exercise its discretion not to award them. Thereby invoking its discretionary decision with respect to costs in any event.
52 In the Commissioner of Police v AM, the majority dismissed the respondent’s application for costs, notwithstanding the deficiency in the appellant’s grounds of appeal under s 90 of the IR Act. Buss J (with whom Le Miere J agreed) concluded that the appeal was not one of the rare occasions on which the costs of a legal practitioner should be awarded and did not characterise the appellant’s grounds of appeal as ‘so obviously untenable that they cannot possibly succeed’, ‘manifestly groundless’ or ‘so manifestly faulty that they do not admit of argument’. Commissioner of Police v AM [2010] WASCA 163 (S) [38].

53 Ms Jurak notes that no costs order was made in any of the decisions referred to by the Respondent.
54 Notwithstanding I determined that the Claim has no reasonable prospect of success given there are no unresolved questions of fact or difficult questions of law that require a trial, I am not satisfied that this determination means that at all material times the Claim as instituted was so obviously untenable or manifestly groundless as to be utterly hopeless. Argument was required and, ultimately, it was a matter of construction and application of a term of the Award having regard to the evidence that lead to the outcome.
Orders
55 I make the following orders:
1 Pursuant to reg 5 and reg 7(1)(r) of the Regulations, the Respondent’s application for summary judgment is granted and the Claim is dismissed.
2 There be no order as to costs.



D SCADDAN
INDUSTRIAL MAGISTRATE




Schedule I – Jurisdiction of the IMC
[1] The IMC has the jurisdiction conferred by the Industrial Relations Act 1979 (WA) (IR Act) and other legislation. Section 83 and s 83A of the IR Act confer jurisdiction on the Court to make orders for the enforcement of a provision of an industrial agreement where a person has contravened or failed to comply with the agreement. If the contravention or failure to comply is proved, the IMC may issue a caution or impose a penalty and make any other order, including an interim order, necessary for the purpose of preventing any further contravention. The IMC must order the payment of any unpaid entitlements due under an industrial agreement.
[2] The powers, practice and procedure of the IMC are the same as a case under the Magistrates Court (Civil Proceedings) Act 2004 (WA). The onus of proving a claim is on the claimant and the standard of proof required to discharge this onus is proof ‘on the balance of probabilities’. The IMC is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit. In Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27 [40] - [47], Commissioner Sleight examined a similarly worded provision regulating cases in the State Administrative Tribunal of Western Australia, noting:
[T]he rules of evidence are [not] to be ignored … After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and elicit truth …
The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force.

Schedule II – Relevant Principles Of Construction
[1] This case involves construing industrial agreements and statutes. Similar principles apply to both. The relevant principles to be applied when interpreting an industrial instrument are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] WAIRC 00828 [21] - [23]. In summary (omitting citations), the Full Bench stated:
a. ‘The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement’;
b. ‘[T]he primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument. [I]t is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean’;
c. ‘[T]he objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context. [T]he apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances’;
d. ‘[A]n instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ’;
e. ‘[A]n instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation’; and
f. ‘Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect’.
The following is also relevant:
g. Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813 [53] - [57] (French J) (City of Wanneroo).
h. Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo [53] - [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28] - [30] (Katzmann J).