2024 WAIRC 01041
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2024 WAIRC 01041



CORAM
:
INDUSTRIAL MAGISTRATE T. KUCERA



HEARD
:
MONDAY, 29 JULY 2024



DELIVERED
:
TUESDAY, 17 DECEMBER 2024



FILE NO.
:
M 73 OF 2023



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





QUBE PORTS PTY LTD


RESPONDENT

Catchwords : INDUSTRIAL LAW – Construction of a clause of an enterprise agreement – Requirement for the respondent to pay for and provide training to the level of a Certificate II – Whether intent is an element of the civil remedy provision under s 50 of the Fair Work Act 2009 – Whether the respondent’s failure to provide training breached an enterprise agreement.
Legislation : Fair Work Act 2009 (Cth)
Instrument : Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020
Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016
Qube Ports Pty Ltd and Maritime Union of Australia Enterprise Agreement 2011 (The Port of Port Hedland)
Case(s) referred
to in reasons: : Target Australia Pty Ltd v Shop Distributive and Allied Employees’ Association [2023] FCAFC 66; (2023) 324 IR 304
Workpac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536
Fedec v The Minister for Corrective Services [2017] WAIRC 00828, (2017) 97 WAIG 1595
Re Harrison; Ex parte Hames [2015] WASC 247
National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238
Australian Building Construction Commissioner v Parker [2017] FCA 564; (2017) 266 IR 340
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Fair Work Ombudsman v No Land Tax Incorporated [2017] FCCA 2471
Iannella v French [1968] HCA 14; (1968) 119 CLR 84
Result : Claim proved in part.
Representation:
Claimant : Mr K. Sneddon (of counsel)
Respondent : Mr R. Boothman (of counsel)



REASONS FOR DECISION
Background
1 On 6 June 2023, the Construction, Forestry, Maritime, Mining and Energy Union, as it was then known, (claimant) lodged a claim alleging Qube Ports Pty Ltd (respondent) had breached cl 46 of the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020 (Agreement), thereby contravening s 50 of the Fair Work Act 2009 (Cth) (FW Act).
2 More specifically, the claimant alleged the respondent had failed to:
(a) train its employees to a minimum standard of a Certificate II in the Transport and Logistics Industry Skills Council, Stevedoring Training Package (Certificate II) as required under cl 46.2(b); and
(b) pay employees for undertaking this training contrary to cl 46.2(c).
3 By way of relief, the claimant sought an order under s 546 of the FW Act requiring the respondent to pay a civil pecuniary penalty for engaging in the alleged contraventions (claim).
4 The respondent denied that it has contravened the Agreement as alleged and opposed the Court making the orders sought. The respondent argued the claimant’s claim could not succeed, on grounds that included:
(a) There is no evidence the respondent has made any decision, or shown any intention, that it will not train employees to the level of a Certificate II. On the contrary, the respondent says it has taken and is taking steps to train employees to the minimum of a Certificate II.
(b) Clauses 46.2(b) and (c) of the Agreement do not require the training to occur within a prescribed period of time; and
(c) The obligation to pay employees under cl 46.2(c) only crystallizes once Certificate II training has happened and no such training has occurred. Respondent’s Outline of Submissions lodged 11 July 2024 (Respondent’s Submissions), [6].

5 In deciding the claim, it is necessary for the Court to first determine whether the respondent has contravened cls 46.2(b) and (c) of the Agreement, the terms of which I will extract below.
Agreement clause in issue
6 The claimant alleged the respondent breached cl 46 of the Agreement (Vocational Education and Training). More specifically, the claimant says the respondent contravened cls 46.2(b) and 46.2(c) which appear in the extract below:
46.2 Training Standards and Qualifications
(a) Vocational training and education provided to Employees will be in accordance with the relevant requirements of the Company’s training packages and the Australian Qualifications Framework (AQF) or other endorsed training packages.
(b) Employees will be trained to a minimum Certification II in the Transport and Logistics Industry Skills Council, Stevedoring Training Package, Training for Certification III in the Stevedoring Training Package may apply at Company discretion for Employees upon request and taking into consideration the recognition of prior learning and the business needs,
(c) Training for attainment of the Transport and Logistics Industry Skills Council Stevedoring Training Package certificates will be paid.
…
Initial response to the claim
7 After the claimant filed the claim, the respondent on 14 July 2023, initially filed a response in which it admitted the allegations but sought an opportunity to be heard on the relief sought by the claimant (response).
8 Following this, the claim was listed for a directions hearing, that was held on Monday, 28 August 2023. During this hearing, the parties agreed to the claim being programmed for a hearing on penalty, pursuant to an agreed set of programming orders (programming orders).
9 Under the programming orders, the parties were required to file a Statement of Agreed Facts by 13 November 2023. Following this, the parties were each required to file evidence and submissions relevant to the issue of penalty.
10 On 1 September 2023, the claim was listed for hearing on penalty, to be held on 18 December 2023.
11 On 13 November 2023 the parties filed a Statement of Agreed Facts dealing with each of the elements relevant to establishing the admitted contraventions. It was agreed the respondent had not trained 69 of its stevedoring employees to the minimum Certificate II requirement.
Application to amend documents
12 On 24 November 2023, some three days before the respondent was due to file any witness statements relevant to the issue of penalty, the respondent filed an application to amend its response and the Statement of Agreed Facts (respondent’s application).
13 By this application, the respondent sought to amend its response so it could defend the claim on the grounds as set out in the preceding paragraph [4]. In addition, the respondent sought to retract the admission it had contravened the Agreement and failed to train its stevedores in Port Hedland, to the level of a Certificate II.
14 In support of the respondent’s application, the respondent filed an Affidavit from Ronan David Boothman dated 24 November 2023 (Mr Boothman’s Affidavit).
15 The respondent’s application was listed for a hearing on 7 December 2023, the earliest available date prior to the scheduled hearing on penalty. After hearing from the counsel for both parties, the respondent was given leave to amend its response and the Statement of Agreed Facts by 18 December 2023.
16 As the claim had not previously been the subject of a pre-trial conference, a direction was made for this to occur, on a date to be fixed by the Court’s Registry.
Amended programming orders
17 On 6 February 2024, the claim proceeded to a pre-trial conference. The claim was not resolved between the parties and so the matter was referred to the Court for hearing.
18 On 13 March 2024, the Court’s Registry listed the claim for a hearing to be held on 29 July 2024. Pursuant to programming orders that were made by consent on 11 March 2024, the parties were each required to file any witness evidence prior to the hearing by 14 June 2024.
19 The parties were also required to file outlines of submissions by 8 July 2024.
Amended Statement of Agreed Facts
20 In an Amended Statement of Agreed Facts (ASOAF), the parties agreed the following:
Claimant
(ii) 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 Fair Work Act 2009 (Cth); and
(d) an employee organization to which the Qube Ports Pty Ltd of Port Hedland Enterprise Agreement 2020 applied within the meaning of section 52 of the Act.
Respondent
(iii) The Respondent was at all material times:
(a) a ‘constitutional corporation’ within the meaning of that term in section 12 of the Act;
(b) a ‘national system employer’ within the meaning of that term in section 14 of the Act;
(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 Act.
The Agreement
(iv) The Agreement was approved by the Fair Work Commission on 9 August 2021. A copy of the Commission’s decision was annexed and marked “SOAF-1”.
(v) The Agreement operated from 16 August 2021 and has a nominal expiry date of 30 June 2024.
(vi) The Agreement applies to stevedoring Employees working in the classifications set out at clause 11.1 and Schedule 2 of the Agreement and who are employed at the Port of Port Hedland from 16 August 2021.
(vii) Clause 46.2(b) of the Agreement provides:
Employees will be trained to a minimum Certification II in the Transport and Logistics Industry Skills Council, Stevedoring Training Package…
(viii) Clause 46.2(c) of the Agreement provides:
Training for attainment of the Transport and Logistics Industry Skills Council Stevedoring Training Package certificates will be paid.
(ix) The reference to ‘will be paid’ in clause 46.2(c) of the Agreement means the costs associated with the training package will be paid for by the Respondent.
Issues to be Decided
21 Section 50 of the FW Act (Contravening an Enterprise Agreement), which is a civil remedy provision, relevantly states:
A person must not contravene a term of an enterprise agreement.
22 To establish a contravention of s 50 in the present case, the claimant was required to prove on the balance of probabilities:
(a) the Agreement applies to the respondent; and
(b) the respondent has contravened cl 46 of the Agreement.
23 The first of these issues was addressed by the parties in the ASOAF.
Claimant’s Evidence
24 The claimant filed a witness statement in support of the claim, from Joel O’Brien (Mr O’Brien), who is the North-West Regional Organiser in the claimant’s Maritime Union of Australia Division. Mr O’Brien’s witness statement was admitted into evidence by consent. He was not cross-examined.
25 Mr O’Brien said he has worked for the claimant since October 2019, representing members who work in the maritime industry in the North-West of Western Australia and the WA Diving Industry.
26 Mr O’Brien said that on 1 June 2024, he sent out a survey to employees engaged by the respondent at its Port Hedland operations to ascertain if they had attained a Certificate II during their employment, or if they were currently undergoing training to attain this qualification (survey).
27 In the survey, Mr O’Brien said he asked employees to answer the following questions:
a) Name.
b) Are you employed by Qube Ports Pty Ltd and is your employment covered by the [Agreement]?
c) How long have you been employed by Qube Ports Pty Ltd in Port Hedland?
d) Do you have a Certification II in the Transport and Logistics Industry Skills Council, Stevedoring Training Package?
e) Are you currently undergoing training for a Certification II in the Transport and Logistics Industry Skills Council, Stevedoring Training Package?
28 He said that between 1 June and 9 June 2024, he received twenty responses to the survey. He compiled the information from these responses into a table which he attached to his witness statement.
29 Mr O’Brien said the responses he received confirmed that seventeen workers covered by the Agreement had not been trained to the level of a Certificate II. He also said that none of these employees were currently working towards this qualification.
30 He said there were three employees who stated they had received a version of the training that preceded the Certificate II. Of these employees one received this training in the Port of Brisbane in 2011, one was from a different stevedoring company in 2005 and the other from the respondent in Port Hedland in 2010.
31 Mr O’Brien said that he understood from discussions he had held with the respondent’s employees that no one who was covered by the Agreement, or its predecessors from 2016 or 2011, have ever been trained in this qualification.
Respondent’s Evidence
32 The respondent filed a witness statement from Daniel Ortiz (Mr Ortiz) who works for the respondent as its General Manger – Industrial Relations. He has worked in this role since July 2022.
33 Mr Ortiz said that he is responsible for negotiating enterprise agreements, employee engagement, conducting workplace investigations and managing disciplinary matters.
34 Mr Ortiz stated that on 23 August 2023, he became aware that Qube Learning Pty Ltd (Qube Learning), which was a Registered Training Organisation (RTO) providing training services for the respondent, was, at the direction of the Australian Skills Quality Authority (ASQA), de-registered as a Certificate II provider. He said this direction was effective from 9 May 2023 (ASQA direction).
35 Mr Ortiz said that because of the ASQA direction, the respondent was unable to provide the training required under cl 46.2(b) of the Agreement. He also said training for Certificate II was removed from the scope of training the respondent has approval to deliver, based on compliance with the Australian Qualification Framework.
36 Mr Ortiz said he was informed by the respondent’s National Training Manager, Anthony Mancini, that the respondent is arranging for any employees covered by the Agreement who have not yet received it, to receive the training required under clause 46.2(b) of the Agreement. He said to this end, the respondent is required to submit documentation to ASQA for approval, so the respondent can administer training for a Certificate II.
37 Mr Ortiz said he understood the relevant documentation had been submitted to ASQA, but he was waiting on confirmation from the respondent’s General Manager Safety, Health, Sustainability & Training, Johl Hayes (Mr Hayes), as to when the documentation was submitted.
38 Mr Ortiz said he had been informed by Mr Hayes that while ASQA processed the respondent’s documentation there would be an approximate 8-week gap before the respondent can administer Certificate II training.
39 In his statement, Mr Ortiz said that he was waiting on confirmation from Mr Hayes as to when he expects the respondent’s documentation will be processed, and when the training will be administered.
40 Like Mr O’Brien’s witness statement, the statement from Mr Ortiz was filed by consent. He was not cross-examined about his evidence.
41 In addition to the witness statement from Mr Ortiz, I have extracted below paragraph [15] from Mr Boothman’s Affidavit. It states as follows:
On 20 November 2023, I contacted Mr Ortiz by phone and obtained instructions to seek an order to amend Qube’s response and the statement of agreed facts to deny the contraventions alleged. Mr Ortiz also informed me that from February 2024, Qube would be re-registered to act in the capacity of Registered Training Organisation which means, from that time, it would be able to provide employees with the Training.
Principles to be Applied When Interpreting an Industrial Instrument
42 The issue of whether the respondent contravened cl 46 requires the Court to decide how the terms of the Agreement, in so far as they impose an obligation on the respondent to train its employees, are to be interpreted and applied.
43 The relevant principles for interpreting industrial instruments are wellestablished. They were summarised by a Full Court of the Federal Court of Australia in Target Australia Pty Ltd v Shop Distributive and Allied Employees’ Association [2023] FCAFC 66; (2023) 324 IR 304 per Bromberg J at [8]  [9].
44 Referring to WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197]; his Honour Bromberg J set out these principles as follows:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation ‘turns on the language of the particular agreement, understood in the light of its industrial context and purpose’: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378  379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a ‘practical bend of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
45 Also relevant is the decision of the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] WAIRC 00828, (2017) 97 WAIG 1595 at [21] – [23] (Fedec).
46 In summary, the Full Bench stated that the general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement in that:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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 commonsense may be a topic on which minds may differ;
(f) 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 as to have some operation; and
(g) industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
Claimant’s submissions
47 The claimant submitted the witness statement from Mr Ortiz is evidence the respondent has not yet provided training to the employees. The claimant submitted his statement does not explain why the training has not been delivered ‘on and from February 2024’, Claimant’s Outline of Submissions lodged 12 July 2024 (Claimant’s Submissions), [8].
as the respondent said it would in paragraph [15] of Mr Boothman’s Affidavit.
48 The claimant submitted that Mr O’Brien’s witness statement provides evidence that as of 14 June 2024, training has not been provided and nor has it commenced. Claimant’s Submissions, [9].

49 In relation to the Agreement the claimant submitted:
(a) the parties are not in dispute the Agreement contains terms and conditions of employment agreed upon between an employer and employees for a period of up to four years with a nominal term of approximately 34 months.
(b) Clause 46.2(b) confers a right to employees that they will be trained to a certain level. This right is not qualified and has no preconditions attached. The training provider is not specified, or how the training is to be delivered.
(c) an employee reading the clause would expect to be trained to the specified level; the same employee has agreed to the terms of the clause and agreed to the time that it will apply to their employment.
(d) The Agreement’s predecessors, the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016 and the Qube Ports Pty Ltd and Maritime Union of Australia Enterprise Agreement 2011 (the Port of Port Hedland), contain clauses providing the same entitlement to training. Claimant’s Submissions, [15]  [18].

50 The claimant disagreed with the respondent’s construction of cl 46.2(b), which the respondent said it had not breached because the clause did not prescribe a minimum period in which training must occur. Rather, the claimant argued that because the Agreement is for an agreed fixed period, the rights contained apply for the term of the Agreement. Claimant’s Submissions, [19].

51 The claimant submitted ‘[c]lause 46.2(b) confers an entitlement [that is to] be delivered within the term of the Agreement. This has not happened and, as such, the respondent has contravened the Agreement.’ Claimant’s Submissions, [20].

Respondent’s submissions
52 The respondent submitted the disposition of the claim turns on:
(a) whether the [claimant] has proven on the balance of probabilities [the respondent] has decided (or shown some intention) that its Employees won’t be trained to a minimum [of Certificate II];
(b) whether [the respondent] has failed to comply with the obligation to provide the training to [its employees]; and
(c) whether [the respondent’s] obligation to pay [its employees] for undertaking the training has arisen, and has not been complied with. Respondent’s Submissions, [5].
(original emphasis)
53 The respondent submitted the claim must fail because:
(a) there is no evidence [the respondent] has made any decision, or shown any intention, that it won’t train [its employees] to a minimum [of Certificate II]. [T]here is evidence [the respondent] has taken, and is taking, steps to train [its employees] to a minimum [of Certificate II];
(b) clauses 46.2(b) and (c) of the Agreement properly construed, do not require the training to occur within a prescribed period of time; and
(c) the obligation to pay [its employees] under cl 46.2(c) only crystallises once Certificate II training has occurred, and no such training has occurred. Respondent’s Submissions, [6].

The respondent’s submission on clause 46.2(b)
54 After noting the respondent’s RTO had lost its ability to deliver Certificate II training, which meant the respondent was unable to provide the training required under cl 46.2(b) of the Agreement internally, the respondent submitted it was arranging for its employees who are covered by the Agreement and have not yet received it, to be provided with training.
55 The respondent submitted that it has lodged documentation to ASQA for approval that will allow the respondent to administer the training. The respondent said that while ASQA processes its documentation, there will be a gap until it can administer the training.
56 The respondent submitted the evidence relied upon by the claimant in support of the claim was misplaced as the Agreement provides that ‘Employees will be trained to a minimum Certification II’. Respondent’s Submissions, [16].
(original emphasis)
57 The respondent said, ‘[the claimant’s] task– as the party making an allegation to enforce a legal right – is not proving whether employees haven’t been trained (which, on their own evidence, [was that] some employees have been trained), it is proving that [the respondent] won’t train Employees.’ Respondent’s Submissions, [16].
(original emphasis)
58 The respondent submitted that it had provided evidence that demonstrated it intends to train employees to a minimum of Certificate II, with the view to achieving the purpose expressly set out in Part A, cl 46.1(a) of the Agreement.
59 The respondent said, ‘[w]hilst it may be open to the Court to find [the respondent] hasn’t yet trained all of its employees to a minimum [of Certificate II], there is no evidence to ground a finding [the respondent] won’t train employees to a [Certificate II minimum].’ Respondent’s Submissions, [18].
(original emphasis)
60 The respondent submitted that although the ordinary meaning of the word ‘will’ in cl 46.2(b) suggests ‘the clause imposes a binding obligation, the clause is silent as to the time for performance.’ Respondent’s Submissions, [20].

61 The respondent pointed to obligations elsewhere in the Agreement, where the respondent is subject to temporal limits. As examples, the respondent referred to:
(a) under clause 12.1, [the respondent] is required to determine whether it is appropriate to replace a departed full time salaried employee ‘as soon as practicable and no later than 21 days after the [full time salaried employee’s] departure’;
(b) under clause 12.2, [the respondent] is required to determine whether it is appropriate to replace a departed variable salary employee with an employee who will be upgraded to a variable salary employee ‘as soon as is practicable and no later than 21 days after the [variable salary employee’s] departure’;
(c) under clause 33.3.7, [the respondent] is required to ‘call for volunteers one month in advance of a Closed Port Day’;
(d) under clause 59.2.2(d), [the respondent] is required to reply to a request for offsite union meetings ‘within 48 hours of receipt of the request’; and
(e) under clause 14.3 of Part B of the Agreement ‘[a]ll new Foremen and Leading Hands are to be trained and qualified First Aiders within six months of obtaining the skill.’ Respondent’s Submissions, [21].
(original emphasis)
62 The respondent submitted, ‘[t]he silence in clause 46.2(b) as to a prescribed time for performance is instructive.’ Respondent’s Submissions, [22].
It said that ‘[u]nlike [the clauses (a) – (e)] referred to above, it is evident the parties to the Agreement did not intend [the respondent] would provide [its employees] with the training within a prescribed timeframe.’
63 The respondent contended the purpose of cl 46.2 is informed by cl 46.1(a), which states:
The provisions of this clause have the purpose of enhancing the ability of each Employee to realise their full potential and to contribute in accordance with operational requirements towards the improved efficiency, reliability, and competitiveness of the Company’s operations.
64 The respondent said:
Nothing in clause 46.1(a) suggests that time is of the essence in relation to clause 46.2(b).
Therefore, when considering the text, context and purpose of clause 46.2(b), there is no basis for the Court to find [the respondent] is required to ensure training [for a Certificate II] has occurred within a prescribed, period of time. Respondent’s Submissions, [25].

65 The respondent submitted it necessarily follows the Court cannot be satisfied the respondent has failed to comply with cl 46.2(b), even where the respondent had not trained all of its employees in the Certificate II.
66 In the alternative, the respondent submitted that even if the time for performance under cl 46.2(b) had arisen, it had taken proactive steps to ensure its employees will receive the training.
67 The respondent submitted ‘[t]he Court should find [the respondent] has, by seeking ASQA approval to administer the [t]raining, taken sufficient steps to be able to fulfil its obligations under cl 46.2(b) to ensure that [its employees] “will be trained”.’ Respondent’s Submissions, [27].
(original emphasis)
The respondent’s submission on cl 46.2(c)
68 The respondent submitted its ‘obligation to pay [its employees] for the training under clause 46.2(c) [of the Agreement] is necessarily predicated on the training having occurred.’ Respondent’s Submissions, [28].
The respondent contended that if the training has not occurred, its obligation to make payment to employees under cl 46.2(c) cannot arise.
69 The respondent submitted ‘the Court must find that because the training has yet to take place, [the respondent’s] obligation to pay the Employees under clause 46.2(c) has not arisen.’ Respondent’s Submissions, [29].

70 In addition, the respondent submitted that ‘even if the Court found [the respondent] had failed to comply with the obligation under clause 46.2(b), there can be no finding that clause 46.2(c) has been contravened because the training has not occurred.’ Respondent’s Submissions, [30].

Consideration
Observations about the Agreement
71 It is clear from both the instrument and the parties’ evidence that the Agreement is a variation of a standard enterprise agreement the claimant has reached with the respondent to apply at its different stevedoring operations, in ports throughout Australia.
72 The port specific obligations that apply under the Agreement and are peculiar to the respondent’s Port Hedland operations, are contained in Part B, which is a separate schedule. Some of the matters addressed in Part B include provisions for the payment of various location allowances, reimbursement expenses and port specific training requirements.
Observations about the words used in clause 46
73 As the authorities that I have referred to confirm, the starting point when interpreting the terms of an industrial instrument, is the ordinary meaning of the words, read as a whole and in context. Workpac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197]

74 When performing this task, it is important to consider whether the words used have an unambiguous meaning. If the words are easily understood by a reasonable person, then it is this understanding that must be applied. Re Harrison; Ex parte Hames [2015] WASC 247 at [50] which was referred to and followed in Fedec v The Minister for Corrective Services [2017] WAIRC 00828, (2017) 97 WAIG 1595.

75 In applying these principles to the present case, it is clear from the words used in cls 46.2(b) and 46.2(c) the parties had intended to create a simple, unambiguous obligation requiring the respondent to train its employees to a specified minimum standard and to cover the costs of this training.
76 To this end, I note the obligation requiring the respondent to train employees to a specified standard and to meet the costs of that training, has been cast in words that are materially the same, as other terms in the Agreement providing for the payment of employee entitlements (entitlement provisions).
77 Such terms include the requirement for the respondent to pay its employees at rates of pay as specified under the Agreement, the provision of paid leave and the like. The entitlement provisions are both ongoing and are not affected by, or subject to, temporal limits.
78 The entitlement provisions simply state what the respondent is required to do or pay where the preconditions are met that trigger an employee’s right to receive a particular entitlement. A timeframe within which the entitlement must be provided is not expressed.
79 In this respect, the ordinary meaning of the words used in cls 46.2(b) and 46.2(c), suggest the parties had intended that the provision of training to a specified standard, with the costs to be borne by the respondent, would be approached in the same way as other entitlement provisions under the Agreement.
Context in which the clause appears in the Agreement
80 The construction of the words used in cls 46.2(b) and 46.2(c) that I have suggested is supported by the context in which they appear in the Agreement.
81 An important part of this context is provided in cl 3 (Intent of this Agreement) which I have extracted as follows:
3. Intent of this Agreement
3.1 The parties recognise that it is essential to achieve a spirit of trust and cooperation between the Parties, as required by the overall objectives of the Company through the provision of:
(a) A safe workplace;
(b) Job security;
(c) A constructive and cooperative employer and Employee relationship;
(d) Competitive remuneration;
(e) A non-discriminatory approach;
(f) Regular and genuine communication with the Employees and the Union;
(g) Reasonable career paths and job satisfaction embracing modern and flexible forms of work organisation, consistent with optimum use of all the Company’s resources; and
(h) Strict adherence to the terms and conditions contained within this Agreement.
82 Also relevant is the purpose of cl 46 which I earlier referred to in paragraph [63] and the additional parts of cl 46, that address how the obligation to provide training is to be discharged. These are set out below:
46.3 Application of Training
(a) Consistent with the abovementioned, competency-based training and education, including related processes such as the use of standards and assessments, will be utilised for a variety of purposes including selection and recruitment, entry level training, such as traineeships and trade apprenticeships, as well as skill enhancement and promotional opportunities and the form recognition of skills previously obtained but not recognised for new and existing Employees. Such processes will not be utilised in a negative manner such as for disciplinary purposes.
46.4 Training Delivery
(a) Competency-based training involves both structured training and practical work experience to obtain full competency and proficiency and may be delivered on or off the job or through a combination of both. The Company, where appropriate, may maintain qualified workplace trainers and assessors sufficient for its operational needs, some of whom may not be engaged in such duties on a full-time basis.
(b) As part of their normal duties, other experienced Employees are required to assist in the skills enhancement of others by monitoring and coaching their work during the gaining of practical experience. Technical training will be provided by inhouse technical trainers, where employed, however, the Company may utilise external registered training organisations and/or qualified training personnel, as required.
83 In the context in which cl 46 appears in the Agreement, the obligation in issue, as in National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238, is not aspirational or something the respondent can defer without reasonable excuse.
84 The provision of training is a matter the parties have agreed would happen while the Agreement is in force, on an ongoing basis. To do otherwise would be at odds with at least one of the objectives the parties committed to under cl 3.1, when they made the Agreement.
85 I consider that timeliness, as it is with the other entitlement provisions under the Agreement, is an inherent feature of cl 46.2(b). Put another way, I accept the clause requires the respondent to take all reasonable steps to ensure that it complies with the clause as soon as it becomes aware an employee has not been trained to the level of a Certificate II.
86 I make this observation because it is trite that employees leave and are replaced by others, who may or may not have been trained to the minimum Certificate II level. I also accept that it takes time to train employees to the level of a Certificate II.
87 However, it is also trite that employees cannot progress along their career path until they have received their training for a Certificate II. This scenario is contemplated by cl 46.2(b) because it deals with the circumstances in which existing employees who have Certificate IIs may be trained to the level of a Certificate III.
88 When the obligation for the respondent to provide training under cl 46.2(b) is viewed in this context, it is likely a reasonable person in the position of the parties would not have considered that there was a need to include a timeframe for training to be delivered, because it is so obvious it goes without saying the obligation to ensure employees are trained to a requisite standard would, so long as the Agreement continues to apply, be ongoing.
Construction of clause 46.2(c)
89 While I have formed the view cls 46.2(b) and 46.2(c) are entitlement provisions, I accept the construction of cl 46.2(c) that was contended for the respondent. Simply put, it is my view the respondent’s construction of cl 46.2(c) is to be preferred.
90 The obligations under cls 46.2(b) and 46.2(c) are in two steps. The first requires the respondent to provide the training, the second requires the employer to pay for it.
91 The precondition that triggers an employee’s entitlement under cl 46.2(c), which is apparent from the ordinary words used, is that the training for a Certificate II or III contemplated in cl 46.2(b) must have occurred or been arranged by the respondent.
92 It seems the self-evident purpose of cl 46.2(c) is to ensure an employee is not out of pocket for Certificate II or III training. I therefore accept that if the training has not occurred, the respondent’s obligation under cl 46.2(c) cannot arise.
Comparison with first-aid training
93 An interpretation which regards cl 46.2(b) as an entitlement provision that requires the respondent to promptly comply is supported by a comparable term in the Agreement relating to the provision of firstaid training.
94 Specifically, cl 44.2 of the Agreement (First Aid) relevantly states;
The Company will provide first-aid training to operational Employees to ensure satisfactory first aid services are provided on all allocated shifts.
95 Like cl 46.2(b) of the Agreement, there is no time frame specified in cl 44.2 by which first-aid training must be provided. This, in my view, pre-supposes the respondent is, on an ongoing basis, required to check that its employees have received the requisite first-aid training.
96 It also pre-supposes that where an employee has not received this training, the respondent will take steps to ensure it will be promptly provided.
97 If on the other hand, the construction advanced by the respondent in relation to cl 46.2(b) is followed and applied to the interpretation of cl 44.2 (and noting the similarity between the two clauses), there would be nothing to compel the respondent to promptly provide the safety-critical first-aid training, which the clause requires.
98 I do not consider it likely a reasonable person in the position of the parties would have intended this outcome, particularly in the context of the objects under cl 3.1 of the Agreement I earlier referred to in paragraph [81].
99 This I find, suggests the obligation for the respondent to train the employees who are covered by the Agreement to a minimum of a Certificate II is ongoing and presents where employees require training, but have not received it to the level required.
Proof of intention is not required
100 I do not accept the respondent’s submission that it is necessary for the claimant to prove, the respondent did not intend to train its employees. Proof of the contravention merely required the claimant to establish on the balance of probabilities the respondent had failed to provide the entitlement that it is required to provide under cl 46.2(b) of the Agreement.
101 In Australian Building Construction Commissioner v Parker [2017] FCA 564; (2017) 266 IR 340 Flick J noted there are some provisions in the FW Act where ‘intent’ is expressed as an element, that must be established to make out a contravention.
102 Referring to s 361 of the FW Act as an example, His Honour observed this provision contains alternatives as to the manner in which a contravention may occur; a threat to take action ‘with intent’ to coerce. He also noted there are other provisions of the FW Act (which includes s 50) where ‘intent’ is not expressed as an element of the civil remedy provision. Australian Building Construction Commissioner v Parker [2017] FCA 564; (2017) 266 IR 340 at [105].

103 It is on this basis I have rejected the respondent’s submission the claimant was required to establish the respondent had intended to not comply with cl 46.2(b).
104 In circumstances where a contravention of an enterprise agreement has occurred, the issue of whether the breach was deliberate or intentional is one of the matters to be considered when assessing penalty: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450, at [18].
105 The issue of whether a particular contravention was intentional is to be inferred or determined by reference to all of the mental and physical elements of the act or omission in question, including the relationship between the employer and employee, giving rise to the obligation that has been breached: Altobelli J in Fair Work Ombudsman v No Land Tax Incorporated [2017] FCCA 2471 at [120]  [122] citing Iannella v French [1968] HCA 14; (1968) 119 CLR 84 at [24].
Comparison with provisions where timeframes are included
106 The respondent in its submissions, sought to draw a comparison between cl 46 and the obligations relating to the provision of first aid training for Foremen and Leading Hands under cl 14.3 of Part B of the Agreement, to support of its construction.
107 Clause 14.3 of Part B of the Agreement provides;
All new Foremen and Leading Hands are to be trained and qualified First Aiders within six months of obtaining the skill.
108 In addition, the respondent also referred to other provisions in the Agreement containing timeframes or temporal limits, the respondent must comply with.
109 I do not consider the inclusion of the time frame to provide first-aid training under cl 14.3 of Part B gives rise to the construction of cl 46 being advanced by the respondent. I also do not consider that cl 46.2(b) needs to include a timeframe or a temporal limit to be enforceable.
110 Clause 14.3 deals with a discrete category of employees who are newly appointed to supervisory roles. It appears obvious the parties have chosen to include a timeframe by which these employees must receive first-aid training because it is critical to their roles.
111 The requirement to provide the first-aid training within 6 months, to employees in these particular classifications is in my view, distinguishable. Noting the location of this clause is in Part B of the Agreement, this obligation is limited in its application to specific supervisory positions who are employed at the respondent’s Port Hedland operations.
112 The other provisions the respondent has referred to in support of its construction of the Agreement are also distinguishable. None of the clauses referred to in the preceding paragraph [61] are entitlement provisions. They are also not relevantly comparable with the clause that is under consideration in the present matter either.
Observations about the evidence
113 The evidence in this matter establishes that the respondent has not, during the life of the Agreement, trained 17 of its employees at its Port Hedland operations to the level of a Certificate II. This much was made clear in the survey Mr O’Brien compiled, in respect of which he received some 20 replies.
114 Of the 20 employees who responded to the survey, only three employees were trained to the level of a Certificate II, but this occurred before the Agreement was made. Of the 17 who said they had not been trained to the level of a Certificate II, their lengths of service with the respondent ranged from 10 months to 12 years.
115 It is open to infer the respondent did not, prior to 23 August 2023, train these employees to the level of a Certificate II, when it had access to its own RTO. If it had done so, some of these employees would have completed their Certificate II by now.
116 I accept the capacity the respondent may have had to provide this training was diminished from 23 August 2023 when ASQA removed Qube Learning’s status as an RTO provider. That said, there was no evidence the respondent, even while it had access to its own RTO, was providing training to employees for a Certificate II or in other ways contemplated under cls 46.4(a) or 46.4(b) of the Agreement.
117 As recently as 23 November 2023 the respondent said it would have the capacity to provide Certificate II training from February 2024 as it had submitted documentation to ASQA for approval to administer this training. Paragraph 15 of Mr Boothman’s Affidavit

118 Although the respondent says it has taken steps to fulfil its obligations to train employees under cl 46.2(b) of the Agreement, as at 14 June 2024 and the date of the hearing, there was no evidence that approval to administer Certificate II training was given by ASQA or that this training had commenced. A timeframe as to when this training will occur was not provided either.
119 As at the date of hearing, (by which time the Agreement had passed its nominal expiry date) there was no evidence that any of the 17 employees that were referred to in Mr O’Brien’s survey, were being trained for a Certificate II.
Findings
120 Noting the observations I have made in relation to the construction of cl 46.2(b), the evidence demonstrates the respondent has failed to train 17 of its employees to a minimum of a Certificate II as required.
121 I do not accept the evidence discloses the respondent has taken reasonable steps to provide Certificate II training as required by cl 46.2(b). On the contrary, the evidence establishes that it has not during the life of the Agreement trained these employees to the minimum level of a Certificate II.
122 I therefore find the respondent has contrary to s 50 of the FW Act, breached cl 46.2(b) of the Agreement.
123 In view of my finding on the interpretation of cl 46.2(c), it is my view, the alleged breach of this provision cannot be made out.
Conclusion
124 For all the reasons set out in the preceding paragraphs I have determined the claimant has proved the respondent has breached cl 46.2(b) of the Agreement and thereby contravened, s 50 of the FW Act.
125 Having reached this decision I intend to hear further from the parties on the issue of penalty and what, if any, further orders I should make in relation to the claim.



T. KUCERA
INDUSTRIAL MAGISTRATE