2024 WAIRC 00272
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2024 WAIRC 00272

CORAM : INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD : WEDNESDAY, 8 MAY 2024

DELIVERED : THURSDAY, 6 JUNE 2024

FILE NO. : M 126 OF 2023

BETWEEN : CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
CLAIMANT

AND

QUBE PORTS PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act 2009 (Cth) - Alleged contravention of a term of an enterprise agreement in the payment of a meal allowance – Proper construction of provisions relating to the payment of a meal allowance – Whether certain terms are inconsistent
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Fair Work (Registered Organisations) Act 2009 (Cth)

Instrument : Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020 Stevedoring Industry Award 2020
POAGS Pty Ltd and Maritime Union of Australia Union Collective Agreement (Dampier) 2010
Qube Ports Pty Ltd and Maritime Union of Australia Enterprise Agreement 2011 (Port of Dampier)
Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2016
Stevedoring Industry Award 2010
Case(s) referred
to in reasons: : Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union [2019] FCA 733
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (2019) 366 ALR 698; [2019] FCAFA 59
Kucks v CSR Ltd (1996) 66 IR 182
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Result : The claim is dismissed
Representation:


Claimant : Mr K. Sneddon (of counsel)
Respondent : Mr R. Boothman (of counsel)

REASONS FOR DECISION
The Claim
1 On 8 November 2023, the claimant lodged a claim pursuant to the Fair Work Act 2009 (Cth) (FWA) seeking the payment of the amount of $744.51, pre-judgment interest and the payment of a penalty for an alleged contravention by the respondent.
2 The particulars of the claim include:
a. a breach of s 50 of the FWA where it is alleged the respondent failed to pay Wayne Gordon (Mr Gordon) a meal allowance when he worked overtime shifts in excess of 1,820 hours per year contrary to cl 11.13.2 of Part A of the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020 (the Agreement) (the Meal Allowance);
b. payment of an amount of $744.51 for the Meal Allowance, being an amount, the respondent was required to pay under a fair work instrument (the Agreement), and which is a contravention of a civil remedy provision;
c. the payment of a civil penalty in respect of the alleged contravention of the Agreement pursuant to s 546(1) of the FWA, and payment of the civil penalty to the claimant; and
d. pre-judgment interest on the amount to be paid.
3 The respondent denies the claimant’s claim asserting that, on a proper construction of cl 11.13.2 of the Agreement, the respondent has not contravened the Agreement.
4 The claimant’s evidence at trial was limited to an uncontested witness statement of Mr Gordon. My only observation of the content of Mr Gordon’s evidence is that paragraph 7 of his witness statement contains a conclusionary statement on the ultimate issue, which is a matter of determination for the court. Exhibit 1 - Witness statement of Wayne Gordon filed 22 March 2024.

5 The respondent relied upon the evidence of Daniel Ortiz, General Manager, Industrial Relations for the respondent. He has held this position since July 2022, and is responsible, relevantly, for negotiating and drafting enterprise agreements, employee engagement including implementing strategies and human resources policies and procedures. He is also responsible for identifying requirements in enterprise agreements that exist nationally and ensuring that the respondent is compliant. Exhibit 2 - Affidavit of Daniel Ortiz affirmed on 5 April 2024 at [5].

6 Schedule I contains the principles relevant to the jurisdiction, practice and procedure of the Industrial Magistrates Court (IMC) under the FWA and the Industrial Relations Act 1979 (WA) (IR Act).
7 Schedule II contains the principles relevant to the construction of industrial instruments.
Agreed Facts and Facts not in Dispute
8 The parties submitted a statement of agreed facts, which are set out in Schedule III of these reasons (the Agreed Facts)
9 In accordance with the facts set out in paragraphs 2 and 3 of the Agreed Facts, the claimant has standing to bring the claim and the respondent is an organisation bound by the FWA.
10 The Agreement was approved by the Fair Work Commission on 18 August 2021 and operated from 25 August 2021 with a nominal expiry date of 30 June 2024. The Agreement applies to the respondent’s employees at the Port of Dampier engaged in classifications in cl 11.1 of Part A.
11 Mr Gordon was employed by the respondent as a full-time salaried employee (FSE) at the Port of Dampier; a national systems employee; and entitled to the terms of the Agreement.
12 To those agreed facts, I would also add the following facts which, in my view, were either not in dispute or the subject of uncontroverted evidence which I find to be reliable.
13 As an FSE, Mr Gordon is required to work 1,820 hours per year from 1 July to 30 June. Exhibit 1 at [6].

14 From 16 April 2022 to 30 June 2022, Mr Gordon worked 38 overtime shifts. Exhibit 1 at [8].

15 Mr Gordon was not paid a standalone meal allowance when he worked the 38 overtime shifts [the entitlement to which is the issue in dispute]. Exhibit 1 at [9].

16 FSE and Provisional Full-Time Salaried Employees (PFSE) at the Port of Dampier who work overtime in excess of 1,820 hours in a year have never been paid the Meal Allowance by the respondent. Exhibit 2 at [12b].

17 The respondent paid FSE and PFSE a composite hourly rate payable to Supplementary Employees (SE), incorporating a 20% loading in respect of allowances including meal monies. Exhibit 2 at [12a].

18 Between 30 June 2019 and 3 March 2024, no respondent employee at the Port of Dampier covered by the Agreement was paid the Meal Allowance for any reason. Exhibit 2 at [13] to [15].

Parties’ submissions
19 The parties agree, in part, on the structure of the Agreement, including that the Agreement has two parts, Part A and Part B, with Part A applying nationally and Part B applying to the Port of Dampier (the Parts). The Parts are not disjunctive but the terms in Part B prevail to the extent of any inconsistency between Part A and Part B: cl 5.6 of Part A of the Agreement.
20 Further, the parties agree the Agreement is read in conjunction with the Stevedoring Industry Award 2020 (2020 Award), save that if there is any inconsistency between the 2020 Award and the Agreement, the Agreement applies: cl 5.3 of Part A of the Agreement.
Claimant
21 Relevant to the claim, the claimant submits that an FSE is paid a fixed annualised salary, inclusive of a meal allowance, to work 1,820 hours annually. Thereafter, an FSE is entitled to overtime being paid at the hourly rate normally paid to SE where the FSE works over 1,820 annualised hours: cl 9.1.1a, cl 11.3 to cl 11.4 of Part A and cl 6.1 of Part B of the Agreement. However, the claimant’s contention is that, in addition to this hourly rate, an FSE who works overtime is also entitled to a standalone meal allowance in accordance with cl 11.13.2 of Part A of the Agreement. The claimant further contends there is no inconsistency between the inclusive overtime hourly rate in Part B and the entitlement to the Meal Allowance in Part A when working overtime shifts.
22 The claimant refers to cl 11.3 of Part A of the Agreement and says as follows:
a. in an industrial sense, the terms meal monies and meal allowance mean the same thing;
b. notwithstanding an FSE annualised salary encompasses, amongst other things, meal monies or a meal allowance (cl 11.3, cl 11.4 and cl 11.5), this clause contemplates additional payments being made in addition to salaries and composite hourly rates where detailed in the Agreement; and
c. clause 11.13.2 is a circumstance where the Agreement contemplates an additional payment being made to the salary or composite rate, namely when an FSE works overtime (that is, works over 1,820 annualised hours per year).
23 The claimant further says its contention is strengthened by cl 30.6 of Part A of the Agreement where Permanent Employees Defined in cl 2.1p of Part A of the Agreement to mean: FSE ‘paid a fixed salary in accordance with clause 9.1 of this Agreement, a Provisional Full-time Salary Employee (PFSE) paid a fixed salary in accordance with clause 9.2. A Variable Salary Employee (VSE) who is irregularly engaged to work and is paid a minimum salary in accordance with clause 9.5 of this Agreement and a Provisional Variable Salary Employee (PVSE) who is irregularly engaged to work and is paid a minimum salary in accordance with clause 9.6 of this Agreement.’
receive a meal allowance for each overtime shift worked.
24 If the Meal Allowance was never paid to an FSE, cl 11.13.2 and cl 30.6 of Part A of the Agreement would never be enlivened for employees at the Port of Dampier leaving those clauses with ‘no work to do’. These clauses must have been inserted with the intention of paying a meal allowance in certain circumstances, which the claimant submits includes an FSE working overtime.
25 It was open to the drafters of the Agreement to expressly exclude the payment of a meal allowance to an FSE working overtime in the same way the Agreement excludes overtime rates for Variable Salary Employees (VSEs), Provisional Variable Salary Employees (PVSEs), Guaranteed Wage Employees and SEs at the Ports of Port Hedland and Dampier under cl 30.7.3 of Part A of the Agreement.
26 The claimant submits that for the payment of a meal allowance, Part A and Part B of the Agreement work in harmony and are not inconsistent. When an FSE works overtime at the Port of Dampier, the employee is paid an hourly rate equivalent to an SE hourly rate under Part B and is entitled to a meal allowance under Part A.
27 The claimant agrees with the respondent’s contention to the extent that the composite hourly rate paid to an SE is inclusive of meal monies (see cl 2.3.1 of Part B of the Agreement), but says cl 2.3 of Part B, as it relates to an FSE, is to set an hourly rate for overtime work for an FSE, not to determine more broadly FSE remuneration. It would be a mistake to conflate the entitlements paid to an SE with those paid to an FSE. An SE gets paid a composite rate incorporating all their entitlements (including meal allowance) and an FSE gets paid the same composite rate for working overtime plus a meal allowance.
28 The claimant says the respondent manufactures an inconsistency which does not exist when regard is had to the plain wording of the Agreement.
29 The provision of an additional benefit for an FSE when they work overtime does not result in any inconsistency between Part A and Part B of the Agreement, nor does it render the Agreement unworkable. In this way, the Agreement is clear and unambiguous.
Respondent
30 The respondent submits, under the Agreement, the phrase meal monies is intended to incorporate the phrase meal allowance where a meal allowance is the payment of money in lieu of the provision of a meal. This renders an inconsistency between the terms in Part A and Part B of the Agreement, as it relates to the payment of a meal allowance, and Part B therefore applies to the extent of that inconsistency.
31 Both historically and when construed according to its ordinary meaning, the term ‘meal monies’ applies where the respondent pays an employee in lieu of providing them with an actual meal.
32 Under the Agreement, this occurs in cl 26.9 and cl 11.13 of Part A of the Agreement for an interstate or intrastate port transfer or when overtime is worked. Thus, when considering the term meal monies, it should incorporate the term meal allowance, which is included in the composite hourly rate paid to SEs.
33 The respondent says consequentially any entitlement Mr Gordon has to the Meal Allowance under cl 11.13.2 of Part A of the Agreement is overridden by cl 2.3.1 of Part B of the Agreement where, if an overtime shift is worked, he is entitled to payment at the SE composite rate being a 20% loading for, amongst other things, meal monies (incorporating the Meal Allowance).
34 To find otherwise would mean an FSE who works over 1,820 annualised hours would be paid the SE composite rate of $65.08 (inclusive of meal monies) plus the Meal Allowance of $19.09, described as ‘double dipping’.
35 While cl 11.13.2 of Part A of the Agreement might expect the payment of a standalone meal allowance for an FSE who works overtime, the respondent says Part B applies as follows:
a. clause 6 provides that an FSE is entitled to overtime paid at the SE hourly rate; and
b. clause 2.3.1 provides that the composite hourly rate payable to an SE includes a 20% loading to account for various entitlements including meal monies.
36 Clause 2.3.1 of Part B of the Agreement is unambiguous and should be understood in the broader context of the Agreement concerning the payment of entitlements and the payment structure.
37 It was open to the parties to the Agreement to retain only cl 11.13.2 of Part A at the Port of Dampier. However, the parties agreed a port specific entitlement in Part B relevant to FSEs working overtime. Consistent with this agreement and the respondent’s understanding of the parties’ intention as it related to the composite hourly rate payable, the respondent never paid a standalone meal allowance to FSEs who worked over 1,820 annualised hours. The reason being is that the composite hourly rate for paid overtime already incorporated meal monies (inclusive of or equivalent to a meal allowance).
Meal Monies versus Meal Allowance
38 As I understood the claimant’s oral submissions, the claimant agreed the terms meal monies and meal allowance mean the same thing. That is, a payment in lieu of the provision of a meal.
39 However, to the extent that there is disagreement on this issue, I would resolve the issue in favour of the respondent’s suggested interpretation. That is, the terms are used interchangeably in the Agreement but have the same meaning. I would do so for the following reasons:
40 The Agreement is the successor to various iterations, including:
· POAGS Pty Ltd and Maritime Union of Australia Union Collective Agreement (Dampier) 2010 (2010 Agreement)
· Qube Ports Pty Ltd and Maritime Union of Australia Enterprise Agreement 2011 (Port of Dampier) (2011 Agreement)
· Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2016 (2016 Agreement)
41 The Agreement is to be read in conjunction with the 2020 Award, although where there is any inconsistency between the Agreement and any provision of the 2020 Award, the Agreement applies to the extent of the inconsistency: cl 5.2a and cl 5.3 of the Agreement.
42 Similarly, the 2010 Agreement incorporated the terms of the Stevedoring Industry Award 2010 which came into effect in October 1999, provided that the terms of the 2010 Agreement prevailed where they were inconsistent with an incorporated term of that award: cl 4 of the 2010 Agreement.
43 The terms meal monies and meal allowance are often used together within the same clause in reference to the same subject matter: cl 11.3, cl 11.4, and cl 11.5 of Part A of the Agreement.
44 These same terms also apply in the same way in previous versions of the Agreement: cl 11.3, cl 11.4 and cl 11.5 of Part A of the 2016 Agreement; cl 11.5 and cl 11.8.2(a) of the 2011 Agreement; cl 9 of the 2010 Agreement.
45 The SE Hourly Rate in cl 2.3.1 of Part B of the 2011 Agreement; the 2016 Agreement; and the 2020 Agreement included payment for, amongst other things, meal monies.
46 The 2020 Award uses the term meal allowance but does so in the same context to that contained in the various agreements.
47 There is simply no alternative meaning attributable to the use of those words in the context in which the words are used. Accordingly, the only reasonable interpretation is that meal monies and meal allowance mean the same thing. Notably, many of the same clauses permeate the agreements and were no doubt carried over from agreement to agreement suggestive of the phrase ‘if it ain’t broke, don’t fix it’.
48 On that basis, where the term is used in a general sense, the term meal allowance will be used for the remainder of these reasons.
Issue for Determination
49 The principal issue for determination is whether there is an inconsistency between Part A and Part B of the Agreement relating to the payment of the Meal Allowance for an FSE.
50 As already stated, cl 5.6 of Part A of the Agreement provides that in the event of any inconsistency between Part A and Part B, Part B prevails to the extent of the inconsistency.
51 The same, or similar, Part A and Part B terms were also contained in cl 4 of the 2010 Agreement, cl 5.5 of the 2011 Agreement and cl 5.6 of the 2016 Agreement.
Inconsistency
52 While I accept the parties' submission (albeit phrased differently) that the question for determination is whether there is an inconsistency between the terms in Part A and Part B, I am not convinced this question is limited to a yes or no answer by comparing cl 11.13.2 in Part A with cl 6 in Part B.
53 In my view, the starting point is to consider how Parts A and B of the Agreement are intended to operate.
54 The reason for doing so follows consideration of the process undertaken by Wheelahan J in Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union [2019] FCA 733. In summary, Maribyrnong City Council Enterprise Agreement 2016 contained a similar clause to cl 5.6 of the Agreement, save that it also expressly provided that Part A was to be read in conjunction with the other parts. I accept the nature of the enquiry was different and the structure of the agreement was likely different, but the principles applied in resolving the question of inconsistency, in my view, are apposite to the question to be resolved in this case.
55 That is, firstly, ‘while the process of construction … should focus on the text of the Agreement, the text is to be construed in its context and having regard to its industrial purpose’: Maribyrnong City Council at [44]. In this case, the Agreement is an industrial instrument where the terms of Part B are specific to employees at the Port of Dampier and, in that context, are designed to prevail over conflicting generic terms of Part A. However, it is also clear Part A and Part B, where possible, are to be read together to bind the respondent and its employees: cl 4.1 and cl 5.1 of the Agreement.
56 Second, there may be inconsistency between the terms in Part A and Part B of the Agreement, and, if the terms cannot be sensibly and fairly read together, there may be terms in Part B which are intended to cover a particular subject matter to the exclusion of terms in Part A such that the terms of Part B prevail: Maribyrnong City Council at [53].
57 By way of example, cl 54 of Part A of the Agreement and cl 4 of Part B of the Agreement refer to the establishment of committees in the workplace.
58 Clause 54 of Part A provides for the requirement of an employee representative committee (ERC) and health and safety committee (HSC) in each workplace. Clause 54.3 of Part A provides that all committees will be elected from the workplace and there will be a minimum of nine ERC meetings each year and a minimum of 11 HSC meetings each year. However, cl 54 of Part A does not provide for the mechanics of these meetings. This is provided for in Part B, no doubt because it is port specific.
59 Clause 4 of Part B provides more detail regarding where, how and the composition of the meetings at the Port of Dampier, but, relevantly, cl 4.1b of Part B provides there are to be a minimum of eight ERC meetings each year and cl 4.2a of Part B provides there are to be a minimum of 12 HSC meetings each year. That is, there is an inconsistency between Part A and Part B as to the number of ERC and HSC meetings to be held each year at the Port of Dampier.
60 A sensible and fair reading of the operation of cl 54 of Part A and cl 4 of Part B is that an ERC and HSC is to be formed at the Port of Dampier but they are to operate in accordance with cl 4.1, cl 4.2 and cl 4.3 of Part B with a minimum of eight ERC meetings each year and a minimum of 12 HSC meetings each year (rather than the minimums provided for in cl 54.3 of Part A).
61 Thus, beyond the need to form an ERC and HSC, cl 4 of Part B was intended to otherwise cover the operation of these meetings to the exclusion of cl 54.3 of Part A.
62 By adopting the process in Maribyrnong City Council, proper regard can also be had to the well-known principles applicable to the construction of enterprise agreements and awards as set out in [39] to [40] of that judgment. Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (2019) 366 ALR 698; [2019] FCAFA 59 at [5]; and Kucks v CSR Ltd (1996) 66 IR 182 at 184

63 With that in mind, it might be tempting to launch into an analysis of the payment of a meal allowance under the Agreement. However, the payment of a meal allowance is associated with other circumstances, one of which is overtime, the foundation for the claim.
64 To determine if any inconsistency exists between Part A and Part B as it relates to the payment of a meal allowance for overtime work by an FSE, in my view, it is necessary to consider both the remuneration and the operation and payment of overtime relevant to an FSE.
Remuneration of FSEs
65 Clause 11 of Part A of the Agreement and its subclauses provide for: how the rates of pay are calculated for an FSE; where the rates of pay apply; and what the rates of pay include (or exclude). Save for a table in cl 11.7, which is the 2020 Award rates of pay and only apply where referred to in the Agreement, cl 11 does not otherwise provide the actual rates of pay or remuneration for employees, including FSEs (see also cl 11.8 of Part A of the Agreement).
66 The remuneration of employees at the Port of Dampier is determined by reference to the classifications in Schedule 2 of Part A of the Agreement See cl 11.1 of Part A of the Agreement.
and cl 2 of Part B of the Agreement.
67 That is, the classifications in Schedule 2 of Part A of the Agreement are likely national classifications with the remuneration attributable to those classifications in cl 2 of Part B referrable to the Port of Dampier.
68 However, a fair and sensible reading of the terms of the remuneration in Part B of the Agreement is not that it applies without reference to Part A. That is, the remuneration amounts in Part B are predicated on the basis stated in cl 11.3, cl 11.4 and cl 11.5 of Part A of the Agreement.
69 That is, relevant to an FSE:
a. salary and composite hourly rates include allowances, leave loadings, shift premiums, a meal allowance and the application of the irregular part of any roster (where applicable), although this is subject to additional payments where the Agreement provides for such payment arrangements: cl 11.3 of Part A of the Agreement;
b. the history of the salary and composite hourly rates included wage related allowances, shift penalties, overtime, public holidays, weekend penalties and a meal allowance: cl 11.4 of Part A of the Agreement; and
c. the remuneration in Part B of the Agreement continues to include a meal allowance: cl 11.5 of Part A of the Agreement.
70 The apparent intention of cl 11.3, cl 11.4 and cl 11.5 of Part A of the Agreement, and reinforced in cl 11.6, is to make clear that the remuneration in cl 2 of Part B of the Agreement is the total remuneration relevant to classifications, unless the Agreement otherwise entitles additional payments where applicable.
71 There is no inconsistency between the actual remuneration in cl 2 of Part B and the basis underpinning the remuneration provided in cl 11 of Part A of the Agreement.
The Operation and Payment of Overtime under the Agreement
72 Clause 30 of Part A and cl 6 of Part B of the Agreement both provide for overtime (other than shift extensions) for an FSE.
73 The significant difference between Part A and Part B of the Agreement is remuneration for working overtime.
74 Clause 30.2 of Part A of the Agreement provides that all hours worked in excess of or outside the ordinary hours of work are to be paid in accordance with the 2020 Award, which, having regard to cl 21 of the 2020 Award, could be anywhere from 200% to 312.5% of the ordinary hourly rate of pay. Clause 30.5 of Part A of the Agreement provides that Permanent Employees, including FSEs, who work in excess of 1,820 annualised accumulated hours are paid in accordance with the rates in cl 30.5 and, in addition, to those rates, Permanent Employees also receive a meal allowance for each shift worked in cl 30.6.
75 Clause 6 of Part B of the Agreement provides that an FSE (and other employees) who work more than 1,820 hours per year will be paid overtime at the ‘Supplementary Employees hourly rate’ (SE Hourly Rate).
76 The following observations apply:
a. to the extent that there is a difference in the amount calculated for overtime payments between the 2020 Award and the Agreement, cl 6 of Part B of the Agreement is intended to cover the payment of overtime for an FSE. That is, there is an inconsistency between Part A and Part B as to the payment of an amount of overtime for an FSE;
b. the payment of a meal allowance in cl 30.6 of Part A of the Agreement is tied to the payment rate in cl 30.5. That is, in my view, the words ‘in addition to’ and ‘also’ in cl 30.6 of Part A, indicates the payment of a meal allowance does not operate independently of the overtime payment rate. Therefore, unless the employee is entitled to be paid at penalty rate in cl 30.5 of Part A of the Agreement, they are not entitled to a meal allowance in cl 30.6 of Part A of the Agreement; and
c. clause 2.3.1 of Part B of the Agreement provides that the composite hourly rate payable to SE is set out in the table in the clause and incorporates a 20% loading in respect of leave, etc, as well as shift premiums and allowances and a meal allowance.
77 The claimant’s submission that a clause like cl 30.7.3 of Part A of the Agreement could have been inserted after cl 30.6 of Part A of the Agreement may be true, but, in my view, it does not otherwise change a fair and sensible reading of cl 30.5 and cl 30.6 of Part A of the Agreement. Nor does it change the wording in cl 2.3.1 and cl 6 of Part B of the Agreement as it relates to the payment of overtime for an FSE.
78 As an aside, there appears to be a duplication of classifications of employees in cl 30.5 and cl 30.7 of Part A of the Agreement, where the definition of Permanent Employee includes VSE and PVSE, however, this anomaly does not need to be reconciled in the case. For the same reasons given at [72] - [75], the payment of overtime for this classification of employee is also covered by cl 6 of Part B of the Agreement. In addition, I note the document was likely drafted by those without a keen eye on legal niceties, and there is little, if any, relevance for determining the issue in dispute in this case.
Payment of a Meal Allowance
79 Clause 11.11 of Part A of the Agreement provides that employees are entitled to the following allowances where applicable: cl 11.12 - Trainers Allowance; and cl 11.13 - Meal Allowance.
80 Clause 11.13.1 of Part A of the Agreement provides that unless a meal allowance is incorporated into a salary, it is payable in accordance with the 2020 Award and the amount payable is set out in the table provided.
81 Clause 11.13.2 of Part A of the Agreement provides that, relevantly, FSEs are not entitled to the payment of a standalone meal allowance other than where overtime is worked or where specifically identified in the Agreement.
82 It is this clause, which the claimant substantially relies upon to make its claim.
83 Is there an inconsistency between cl 11.13.2 of Part A of the Agreement and cl 6 of Part B of the Agreement as it relates to payment of a meal allowance for overtime worked by an FSE?
84 The claimant says there is not an inconsistency, and these two clauses can and do work harmoniously with each other. The respondent says there is an inconsistency, and that the claimant’s construction results in ‘double dipping’.
Determination
85 For the following reasons, I find there is an inconsistency between cl 11.13.2 of Part A of the Agreement and cl 6 of Part B of the Agreement:
a. as is generally accepted by the parties, Part A of the Agreement is intended to apply across ports operated by the respondent where Part A contains many generic terms (by way of example but not limited to, cl 9, cl 13, cl 21 and so on);
b. Part B of the Agreement is port specific and is intended to apply, in this case, to the Port of Dampier with specific clauses that are unlikely to apply to all or other ports operated by the respondent (by way of example but not limited to, cl 13 (heat agreement), cl 16 (payment of north-west expense or allowance), cl 18 (cyclone procedure));
c. remuneration of FSEs, both in relation to the payment of annualised hours and overtime, is port specific with Part B of the Agreement determining the amount to be paid for both;
d. clause 6 of Part B of the Agreement is intended to cover the rate of pay for overtime worked by an FSE;
e. the rate of pay for overtime worked as provided in cl 6 of Part B of the Agreement is the SE Hourly Rate, which is a composite rate inclusive of, amongst other things, the Meal Allowance;
f. clause 30.6 of Part A of the Agreement is not intended to be read as a separate entitlement to the penalty rate provided in cl 30.5 of Part A; and
g. clause 11.11 of Part A of the Agreement entitles an employee to the Meal Allowance under cl 11.13.2 where applicable, meaning a meal allowance is to be paid to an FSE who works overtime, but that is not when working overtime at the Port of Dampier, which is covered by cl 6 of Part B.
86 I further find that cl 11.13.2 of Part A and cl 6 of Part B cannot fairly and sensibly be read together where to find otherwise would mean that an FSE who works overtime at the Port of Dampier would be remunerated twice for the Meal Allowance. That is, by being remunerated for a standalone meal allowance and by payment of a composite overtime rate which includes a meal allowance. I do not accept this was drafters’ intention, which is also consistent with the parties’ historical position where no Meal Allowance was paid to an FSE who worked overtime shifts between 30 June 2019 and 3 March 2024, and bargaining on a new enterprise agreement must have occurred prior to the 2020 Agreement being approved on 18 August 2021.
87 Accordingly, as provided in cl 5.6 of Part A of the Agreement, cl 6 of Part B of the Agreement prevails to the exclusion of any overtime payment terms in Part A of the Agreement, inclusive of cl 11.13.2 and cl 30.6.
88 It is not that cl 11.13.2 and cl 30.6 of Part A of the Agreement have ‘no work to do’, but they have been excluded in their operation by cl 5.6 of Part A of the Agreement, which is consistent with the intention of the drafters of the Agreement in having two operative parts that may overlap on occasion but where only one part can reasonably, and was intended to, apply.
89 As a result, I am not satisfied the claimant has proven its claim that the respondent contravened cl 11.13.2 of Part A of the Agreement in failing to pay the Meal Allowance for the overtime shifts worked by Mr Gordon.
90 The claimant’s claim is dismissed.
Orders
91 The claim is dismissed.



D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth) and the Industrial Relations Act 1979 (WA)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA. The IMC, being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: s 12 of the FWA (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); IR Act s 81, s 81B.
[2] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: s 544 of the FWA.
[3] The civil penalty provisions identified in s 539 of the FWA include:
· Section 50 – contravening a term of an enterprise agreement.
[4] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: s 14 and s 12 of the FWA. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer …’: s 13 of the FWA.
[5] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for a person to pay a pecuniary penalty: s 546 of the FWA.
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award or FWA: s 545(3)(a) of the FWA.
Burden and Standard of Proof
[7] In an application under the FWA, the claimant carries the burden of proving the claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say “we think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.
[8] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences (362).
[9] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[10] Subject to the provisions of the FWA, the procedure of the IMC relevant to claims under the FWA is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations). Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[11] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)

SCHEDULE II: Construction of Industrial Instruments
[1] This case involves construing an enterprise agreement. 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; 97 WAIG 1595 [21]  [23].
In summary (omitting citations), the Full Bench stated:
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement;
(1) the 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;
(2) it 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;
(3) the 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;
(4) the 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;
(5) an 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;
(6) an 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
(7) industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
[2] The following is also relevant:
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; 153 IR 426 [53] - [57] (French J) (City of Wanneroo).
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).



SCHEDULE III: STATEMENT OF AGREED FACTS
PRELIMINARY
[1] For the purpose of these proceedings only, the parties agree the following facts.
CLAIMANT
[2] The claimant was at all material times:
a. a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act);
b. a body corporate able to be sued in its registered name by reason of section 27 of the RO Act;
c. an ‘employee organisation’ as defined in section 12 of the FWA; and
d. an employee organisation to which the Agreement applied within the meaning of section 52 of the FWA.
RESPONDENT
[3] The respondent was at all material times:
a. a 'constitutional corporation' within the meaning of that term in section 12 of the FWA;
b. a 'national system employer' within the meaning of that term in section 14 of the FWA;
c. a corporation able to sue and be sued; and
d. an employer to which the Agreement applied within the meaning of section 52 of the FWA.
THE AGREEMENT
[4] The Agreement was approved by the Fair Work Commission on 18 August 2021.
[5] The Agreement operated from 25 August 2021 and has a nominal expiry date of 30 June 2024.
[6] The Agreement applies to stevedoring Employees engaged in the classifications set out at clause 11.1 and Schedule 2 of the Agreement and who are employed by the respondent at the Port of Dampier from 25 August 2021.
THE AFFECTED WORKER
[7] At all material times Wayne Gordon was:
a. employed as an FSE by the respondent at the Port of Dampier;
b. a national system employee; and
c. entitled to the terms of the Agreement.