2025 WAIRC 00143
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA

CITATION
:
2025 WAIRC 00143



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 19 FEBRUARY 2025



DELIVERED
:
FRIDAY, 7 MARCH 2025



FILE NO.
:
M 42 OF 2024



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





PATRICK STEVEDORES HOLDINGS PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Interpretation of a term of an enterprise agreement – Alleged failure to establish a performance evaluation and career-planning program – Whether the relevant clause gives rise to a binding obligation
Legislation : Fair Work Act 2009 (Cth)
Instrument : Patrick Terminals Enterprise Agreement 2022
Qube Ports Pty Ltd of Port Hedland Enterprise Agreement 2020
Case(s) referred
to in reasons: : City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426
Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54
Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 214 ALR 56
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 01041; (2025) 105 WAIG 263
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Postal Corporation [2010] FMCA 688; (2010) 201 IR 363
National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238
South Australian Water Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia [2024] FCAFC 40; (2024) 330 IR 191
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Result : Claim dismissed
Representation:
Claimant : Mr K. Sneddon (of counsel)
Respondents : Ms H. Millar (of counsel) as instructed by Seyfarth Shaw Australia




REASONS FOR DECISION
1 On 2 April 2024, the Construction, Forestry and Maritime Employees Union (the claimant) lodged a claim alleging Patrick Stevedores Holdings Pty Ltd (the respondent) failed to establish a formal confidential performance evaluation and career-planning program (the Performance Program) for Daniel Ross McGuinness (Mr McGuinness) contrary to the requirements of cl 11.4 of the Patrick Terminals Enterprise Agreement 2022 (EA 2022) (the Claim).
2 In failing to establish the Performance Program for Mr McGuinness, the claimant alleges the respondent has contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) in that the respondent has contravened cl 11.4 of EA 2022.
3 The claimant seeks the payment of a civil penalty to be paid to the claimant.
4 The respondent denies the alleged contravention, opposes the order sought and says EA 2022 does not require the respondent to have implemented the Performance Program.
5 Schedule I of these reasons outlines the jurisdiction, standard of proof and practice and procedure of the Industrial Magistrates Court (IMC or Court).
6 Schedule II of these reasons outlines the principles applicable to construction of an industrial agreement.
Agreed Facts
7 The respondent is a national system employer for the purposes of the FWA and conducts a business providing stevedoring services, including at the Port of Fremantle (also referred to as the North Fremantle Terminal or Terminal).
8 The claimant has standing to commence the Claim.
9 EA 2022 was approved by the Fair Work Commission (FWC) on 31 March 2022, and it became operative on 7 April 2022 with a nominal expiry date of 31 December 2025. EA 2022 applies to the respondent, the claimant and Mr McGuinness.
10 Mr McGuinness is employed as a crane operator by the respondent at the Port of Fremantle and is a permanent employee whose employment is covered by EA 2022.
11 Pursuant to cl 11.4, EA 2022 provides for the establishment of the Performance Program for each employee.
12 At the commencement of the proceedings, a Performance Program had not been established with Mr McGuinness.
Other Evidence
Claimant
13 The claimant relied upon a witness statement by Mr McGuinness signed on 12 September 2024 (the McGuinness Statement), as amended during the oral hearing to delete paragraph 10. Exhibit 2 – witness statement of Daniel Ross McGuinness dated 12 September 2024.

14 In the McGuinness Statement, Mr McGuinness states that he has been employed for 21 years by the respondent of which he has been a permanent employee for 16 years. He has been employed as a crane operator for 12 years. To the best of his recollection his last performance evaluation was 11 years ago, and he does not have a career planning program designed to suit his requirements. Exhibit 2 at [6] to [9].

Respondent
15 The respondent relied upon a witness statement by Peter Chesi (Mr Chesi) signed on 4 October 2024 (the Chesi Statement). Exhibit 3 – witness statement of Peter Chesi dated 4 October 2024.

16 The McGuinness Statement was amended in Court to delete paragraph 10. There was no corresponding deletion of the contents of the Chesi Statement that dealt with the deleted paragraph 10. While I have recounted the evidence given by Mr Chesi (at [25] below), I consider this evidence as an example of the overall training and promotion process adopted by the respondent under the terms of EA 2022.
17 In the Chesi Statement, Mr Chesi states he is employed by PSL Services Pty Ltd, a subsidiary of the respondent, as the Terminal Manager of its container stevedoring terminal at North Fremantle. Exhibit 3 at [1].

18 In summary, Mr Chesi has been employed by the respondent’s group of companies since 2000 and has been the Terminal Manager at the North Fremantle Terminal since February 2021. In this role, he is responsible for all aspects of terminal operations, including industrial issues involving attending meetings of the Employee Representative Committee (ERC) with representatives of the claimant and the Maritime Union of Australia Division (MUA) of the claimant. Exhibit 3 at [3] to [5].

19 Mr Chesi briefly explains the respondent’s stevedoring operations at the North Fremantle Terminal. Exhibit 3 at [6] to [7].

20 Thereafter, he explains the work undertaken by the respondent’s employees at the North Fremantle Terminal, which, again in summary, includes: Exhibit 3 at [9] to [15].

· there are approximately 226 stevedore employees employed in various categories of employment consistent with EA 2022 including permanent rostered employees, GMP and G2P, and permanent guarantee employees, PGE, rostered on an irregular basis;
· all PGE and G2P employees are classified at Grade 2, whereas GMP employees have different classifications; The classification structure under EA 2022 incorporates classifications under the Stevedoring Industry Award 1999.

· employees are represented by the ERC, which in practice are MUA delegates;
· in rough order of pay and desirability, the employees are employed in: lashing or general hand (Grade 2); pin man (Grade 2); driving internal transfer vehicles (Grade 2) or heavy forklifts (Grade 3); operating quay cranes (Grade 4); clerical duties (Grade 5 or 6); and Team Leader or Landside receivals/deliveries; and
· typically, employees commence employment in lashing, and they progress in obtaining skills or competencies in the pin man and driving internal transfer vehicles and then heavy forklift driving etc up to Team Leader.
21 In terms of training by the respondent, Mr Chesi states: Exhibit 3 at [16] to [28].

· skill or competency training enabling employees to perform higher paid or more desirable work is competitive and the respondent selects employees from a pool of applicants;
· the respondent is required to apply the selection criteria under Part A, cl 13.15 of EA 2022 in order to determine the employee(s) selected to undertake training. The selection criteria are based on a points system made up of existing skill, disciplinary action and aptitude. If there are two employees with the same score, a skills or service tiebreaker applies;
· unsuccessful applicants may lodge a grievance if they are not selected for training in accordance with Part A, Annexure 3 of EA 2022; and
· being trained in a new skill does not lead to automatic promotion to a higher grade. If an employee is allocated a shift where they perform higher-grade work, they receive payment at a higher rate.
22 In terms of promotion by the respondent, Mr Chesi states: Exhibit 3 at [19] to [24]

· where the respondent needs to fill a vacancy and an employee is being promoted ‘in Grade’ to fill it, the respondent is to apply cl 9.6 of EA 2022 in Part A or cl 9.4.3(i) in Part A. Port-level criteria for the North Fremantle Terminal is set out in cl 12.2, Schedule 2 of Part B;
· in summary, the promotion process requires the employee candidate to have the required skill, have no final warnings in the previous 12 months, and have the highest number of points based on a separate criterion. If there are two employees with the same score, a service tiebreaker applies; and
· unsuccessful applicants may lodge a grievance if they are not selected for training in accordance with Part A, Annexure 3 of EA 2022.
23 The respondent’s custom and practice are that successful employee candidates are selected using the selection criteria and the ERC is informed of the identity of the successful employee candidates in advance of the employees, or the results being announced. Selections are made on a provisional basis to allow for the grievance process timeline to expire or finalise. Exhibit 3 at [23].

24 Annexed to the Chesi Statement is a copy of email correspondence between a Human Resources Manager of the respondent and the ERC as an example of the selection process. Exhibit 3 at Annexure PC1.

25 Mr Chesi states: Exhibit 3 at [27] to [36].

· Mr McGuinness is a Grade 4 Crane Operator at the North Fremantle Terminal with relatively few positions available for application for advancement;
· in August 2023, Mr McGuinness applied for a Training Coordinator position but was unsuccessful as he did not have a Certificate IV in Training & Assessment required for the role;
· in January 2024, Mr McGuinness applied for two Team Leader training places with 27 other employees. The respondent applied the training selection criteria in cl 13.15 of Part A of EA 2022. The relevant selection criterion was the loss of points for an existing skill with most applicants, including Mr McGuinness, receiving one point because they held four skills. Exhibit 3 at Annexure PC2 for the assessment of the Team Leader/Crane Driver training.
Three other employees received two points because they held three skills. The other selection criteria had no applicability to Mr McGuinness or ostensibly to any other applicant. However, Mr Chesi provided further information relevant to the points for aptitude criterion, discussed below; and
· in February 2024, Mr McGuinness applied for promotion to a Team Leader position, but he was not eligible because he did not hold the mandatory Team Leader skill required under EA 2022.
26 Relevant to the Team Leader training places, even if the tie breaker provisions were applicable, they would not have assisted Mr McGuinness where every unsuccessful candidate had four skills (same as Mr McGuinness), and four unsuccessful candidates had served longer than Mr McGuinness.
27 Mr Chesi also advises that lengthy service by stevedores or at the North Fremantle Terminal is not unusual. The average length of service for GMP employees at the North Fremantle Terminal is 17 years and no employee trained using the process described has less than 10 years’ service. Exhibit 3 at [32].

28 Mr McGuinness submitted a grievance for his unsuccessful application for Team Leader training on 5 February 2024 and the respondent responded on 21 February 2024. Exhibit 3 at PC3.
Mr Chesi states Mr McGuinness did not apply to the FWC following receipt of the respondent’s response. Exhibit 3 at [34].

29 Mr Chesi states that the challenges Mr McGuinness has experienced when seeking further training and promotion are a result of: Exhibit 3 at [35].

· how EA 2022 operates in that under the relevant selection criteria and criteria for promotion set out therein, an employee who does not have the Team Leader skill is automatically disqualified if they apply for promotion to this role, which is what occurred to Mr McGuinness in February 2024; and
· Mr McGuinness’s own high level of skill means he receives one point out of possible five points awarded based on existing skills held.
30 Mr Chesi states that in the absence of aptitude testing, Mr McGuinness and other like employees are ‘disadvantaged’ compared to other employees with fewer skills. However, this could be changed with the implementation of aptitude testing but: Exhibit 3 at [36].

· aptitude testing must be developed in consultation with the ERC and MUA, which can be and has been time consuming and where dispute resolution procedures can involve the FWC arbitration of decisions;
· the ERC and the MUA have been resistant to the implementation of aptitude testing and refers to minutes of meeting dated 17 December 2020 to that effect;Exhibit 3 at Annexure PC4.
and
· there was lengthy discussion over the Head Clerk aptitude testing with eventually the criterion assigned 25 points where the employee reached the assigned pass grade.
31 Over the past months the respondent has engaged in developing a Performance Program for employees with discussions between the respondent and the ERC to occur in October 2024. It is intended to roll out programs based on employee roles.Exhibit 3 at [37] and [38].

The Parties’ Contentions
32 While resolution of the Claim involves the preferred construction of cl 11.4 of EA 2022, the central issue for determination is whether cl 11.4 imposes an enforceable obligation upon the respondent the contravention of which is intended to be subject to a civil penalty?
33 The principles applicable to the interpretation of industrial agreements are well known. In summary, the interpretation of an industrial instrument begins with consideration of the natural and ordinary meaning of the words used. City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426, 438 (City of Wanneroo).
An industrial instrument is to be interpreted in light of its industrial context and purpose and must not be interpreted in a vacuum divorced from industrial realities. City of Wanneroo 438, 440.
An industrial agreement must make sense according to the basic conventions of the English language. City of Wanneroo 440.
The circumstances of the origin and use of a clause is relevant to an understanding of what is likely to have been intended by its use. Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54.
Narrow and pedantic approaches to the interpretation of an industrial agreement are misplaced. Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182; Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 214 ALR 56.

The claimant’s submissions
34 The claimant submits the obligation in cl 11.4 of EA 2022 (and the two prior iterations of EA 2022) is prefaced by the word ‘shall’, indicating the action required is mandatory and not permissive.
35 There is no rational argument against the proposition that the respondent must provide performance and career-evaluation.
36 The respondent concedes that on 2 April 2024 and 4 October 2024 there was no Performance Program established with Mr McGuinness. The respondent alludes to some work being done on developing a framework but puts no timeframe on this being completed or implemented. This has been the case for the past 12 years as it relates to Mr McGuinness.
37 The respondent’s evidence highlights that a lack of career-planning or structured program has left Mr McGuinness without a defined path to help facilitate his ambition.
38 The claimant expanded its written submissions at the hearing to include that EA 2022 contains no aspiration clauses and cl 11.4 of EA 2022 was an ‘imperative command’ upon the respondent to have a Performance Program. The claimant submitted the whole of EA 2022 was binding upon the respondent and to find otherwise would induce ‘industrial chaos’. Further, the obligation upon the respondent in cl 11.4 was an ongoing obligation, similar to that found in a different Industrial Magistrate’s decision in Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 01041; (2025) 105 WAIG 263 (Qube).
39 Further, the claimant accepted that if cl 11.4 of EA 2022 was an imperative command upon the respondent, the same imperative command could apply to employees if they did not participate in performance appraisals with the respondent under cl 11.2. That is, on the claimant’s preferred construction it would be open to the respondent to apply for a civil penalty if an employee refused to, or did not, participate in performance appraisals.
The respondent’s submissions
40 The respondent says cl 11.4 of EA 2022 does not create a binding obligation on it and, alternatively, even if it created a binding obligation, the respondent has not breached the obligation because the time for compliance has not passed.
41 The respondent identifies three questions: (1) does cl 11.4 create a binding obligation; (2) if yes, do the circumstances for compliance arise; and (3) if yes, has there been a failure to comply with the obligation?
42 Notwithstanding the inclusion of mandatory language in cl 11.4 of EA 2022, the respondent submits that cl 11 is a facilitative provision designed to allow the respondent and employees to communicate and establish and carry out a Performance Program.
43 Clause 11 is directed towards steps to be taken by both the respondent and employees, and cl 11.1, cl 11.2 and cl 11.3 contain similar mandatory language to that contained in cl 11.4. The claimant’s construction of cl 11.4 would similarly oblige employees to comply with, and be subject to contraventions of, agreement terms lacking in specificity and precision.
44 This is further supported by other clauses within EA 2022 which create obligations on the respondent to engage in processes that are more clearly and precisely drafted. By way of example, and in contrast, the respondent refers to prescriptive clauses referrable to training and promotion (cl 9.5, cl 9.6 and cl 13.15), allocation (cl 22 and Part B provisions), selection for redundancy (cl 31) and dispute resolution (Sch 1). The respondent suggests that if cl 11 of EA 2022 was intended to bind the respondent and its employees in the way suggested by the claimant, it would have been drafted with more detail, including timing.
45 Alternatively, if cl 11.4 of EA 2022 creates a binding obligation on it, the respondent submits that the circumstances of compliance have not yet arisen. That is, the language in cl 11.4 assumes a Performance Program is not already established and in place at the time EA 2022’s operation commenced and mandates no set time by which the respondent is to establish a Performance Program (cf. cl 7 of EA 2022 in respect of the labour review provisions).
46 The respondent contends that, at most, a Performance Program is to be established during the currency of EA 2022, which the respondent’s evidence demonstrates is being undertaken. Therefore, the respondent has not ‘run out of time’ to establish a Performance Program for Mr McGuinness.
47 The respondent says the respondent’s construction of cl 11.4 ought to be preferred and, if so, the respondent has not breached EA 2022 or s 50 of the FWA.
48 The respondent raises two other issues contained in the claimant’s submissions: (1) the respondent’s non-compliance with similar clauses contained in past iterations of EA 2022; and (2) unsubstantiated assertions of why Mr McGuinness ‘missed advancement and training opportunities’. The first issue was not developed during the hearing, and the second issue was cured by deletion of paragraph [10] in the McGuinness Statement.
Does Clause 11.4 of EA 2022 Impose an Enforceable Obligation on the Respondent?
EA 2022
49 EA 2022 contains both binding obligations and non-binding aspirational or hortatory statements. The claimant’s submission that there are no aspirational clauses in EA 2022 is simply not borne out by reference to the agreement itself, and nor is it consistent with higher court authority.
50 True enough the nature of enterprise agreements is such that they are intended to create binding obligations. However, not every provision in an enterprise agreement is intended to impose an enforceable obligation on a party to expose the party to the possibility of a penalty for non-compliance. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Postal Corporation [2010] FMCA 688; (2010) 201 IR 363 at [161]; National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238 at [30] per White J.

51 The use of words such as will, commit and shall generally import an obligation, however, whether it is intended these words, when used, invoke an obligation needs to be seen in the context of the whole of the clause and the enterprise agreement. South Australian Water Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia [2024] FCAFC 40; (2024) 330 IR 191 at [26] (South Australian Water Corporation).

52 By way of example, in cl 6.3, cl 8.2 and cl 8.4 of EA 2022 the use of the word shall in reference to the contents of EA 2022 not impeding the respondent’s continuous improvement of its business or diminishing the employees’ and respondent’s rights and responsibilities, is not intended to impose an enforceable obligation where these clauses are either aspirational or include no defined or quantifiable criteria.
53 The word shall is also used in clauses where arguably its purpose is to give direction or is facilitative rather than expose a party to a penalty for non-compliance, including in: cl 7 where the parties are to conduct a six monthly review of EA 2022; cl 7.1 where the parties are to review any change or intended rostered change with conclusions to be communicated within a week; and cl 7.3 where the review team for each party is not to exceed six persons and incorporate certain persons.
54 In contrast, cl 9.5, cl 9.6, cl 16.4, cl 18.1 of EA 2022 the use of the word will is intended to create a binding obligation for the application of the relevant selection process and payment of wages, particularly where the subject matter is quantifiable and assessable against a defined criterion.
55 Therefore, the context in which the words shall or will are used will likely determine the construction and/or character of the clause. Interestingly, in EA 2022, the word shall is used more in clauses which are aspirational in character whereas the word will is used more in clauses which contain a quantifiable obligation on a party. However, this is not always the case and certainly not determinative of the issue.
Text - Clause 11.4
56 Clause 11.4 is under the heading of ‘Communication and Performance Reviews’, which deals with the communication structure at each Port [presumably not just at the North Fremantle Terminal given it appears in Part A rather than in Part B], and includes an informal process, performance appraisals and establishment of a Performance Program: cl 11.1 to cl 11.4 of EA 2022.
57 Clause 11.4 of EA 2022 states:
The Company [respondent] shall establish with each employee a formal confidential performance evaluation and career-planning program designed to best suit the circumstances and requirements of each individual employee. Whilst formal periodic reviews will be incorporated into the program for each individual employee, it shall be sufficiently flexible to provide mutual opportunity for ongoing informal input, counselling and review at any time.
58 Clause 11.4 provides for the establishment of a Performance Program for each employee but also provides for formal reviews incorporated into the Performance Program where the periodic reviews are also to be sufficiently flexible to provide mutual opportunity for ongoing input etc.
59 Clause 11.4 uses the word shall in reference to the establishment of a Performance Program but also uses the word shall in reference to the sufficient flexibility of the formal periodic reviews to be incorporated into the program.
Text - Clauses 11.1 to 11.3
60 Clause 11.1 of EA 2022 uses the word shall for the presence of a communication structure at each Port and the employees’ participation in the communication structure and being subject to performance evaluations and reviews. Clause 11.1 also refers to the purpose of the communication structure.
61 Clause 11.2 of EA 2022 uses the word shall requiring employees to participate in performance appraisals. Again, cl 11.2 also refers to the purpose of performance appraisals.
62 Clause 11.3 of EA 2022 uses the word shall to describe what the performance reviews incorporate.
Context
63 The use of the word shall in cl 11 of EA 2022 is not consistently associated with an intention to impose an enforceable obligation which may result in a civil penalty. For example, the second sentence of cl 11.2, cl 11.3 and the second sentence of cl 11.4 are descriptive in nature and provide an explanation of the content of a review.
64 To the extent that cl 11.1 and cl 11.2 of EA 2022 invoke an obligation on employees to undertake performance evaluations and participate in performance appraisals, again, it is unlikely that it was intended an employee be subject to a civil penalty if they did not comply with these clauses. See South Australian Water Corporation at [57] where the plurality considered it unlikely similar wording under cl 3.6.3 gave rise to a legal obligation such that employees who declined to undertake capability and professional development deemed necessary by the employer would be subject to civil penalties.
If the claimant’s submission regarding EA 2022 containing no aspirational or non-binding clauses was accepted, including at cl 11.2, its own members would effectively be ‘thrown under the bus’.
65 Clause 11.4 of EA 2022 lacks specificity. There is no time frame for the establishment of a Performance Program or when formal periodic reviews are to occur (annually, every second year, during the life of EA 2022). See in contrast South Australian Water Corporation at [60] where the relevant clause states “[d]uring the life of this Agreement…across the Corporation”.
Is the obligation on the establishment of a Performance Program or is it on the design of any such program? Will the respondent be in contravention on pain of civil penalty if an established Performance Program does not best suit the circumstances and requirements of an individual employee? Similarly, will the respondent be in contravention if an established Performance Program is not sufficiently flexible (whatever that means) to provide mutual opportunity for ongoing informal input, counselling and review?
66 In answer to this, the claimant says the obligation to establish a Performance Program is ongoing in the same or similar way to that stated in Qube as it relates to training employees set out in cl 46.2(b) of the Qube Ports Pty Ltd of Port Hedland Enterprise Agreement 2020 (the Training Clause).
67 The Training Clause in Qube is quite different to cl 11.4 of EA 2022, both in terms of the text and the context. The Training Clause does not contain the words shall establish but uses the word will be trained. The purpose of the Training Clause is set out in cl 46.1, which is consistent with an intention of the agreement specified in cl 3.1(g) relevant to employee career paths and job satisfaction. In addition, the subsequent clauses in cl 46 are prescriptive in terms of who is to pay for the training and rates of pay whist undertaking training, amongst other more facilitative and descriptive clauses. The point being, the Training Clause is part of what appears to be a comprehensive regime tied to a specified purpose.
68 The same cannot be said of cl 11.4 of EA 2022 This includes a lack of a similar intention statement or statement of purpose: see cl 8 of EA 2022.
. Accordingly, Qube is of limited utility in respect of resolving the preferred construction of cl 11.4 so as to determine the Claim.
Purpose
69 Unlike the Training Clause in Qube, cl 11 and cl 11.4 of EA 2022 contains no expressed purpose statement. As a general proposition, the intention of EA 2022 outlined in cl 8 in Part A is very much driven to factors relevant to promoting the respondent’s business.
70 The purpose of a Performance Program is not readily divined from EA 2022 and the evidence does not assist in determining any purpose. It may be speculated that there is a mutual benefit to employer and employee. However, as described by Mr Chesi, the current selection process undertaken by the parties under the terms of EA 2022 has little, if any, relationship to a Performance Program. That is, a Performance Program is unlikely to overcome the current points system of determining who is eligible for training or for promotion although this may change if the parties agree on aptitude testing.
71 However, I accept that EA 2022 makes provision for the establishment of a Performance Program, and thus it was contemplated by the makers of the agreement that it would have a role in the workplace, sadly, on the evidence, not in the context of the current training and selection process demanded.
Determination
72 Notwithstanding the use of the word shall in the first sentence of cl 11.4 of EA 2022, I am not satisfied that it is intended to invoke an enforceable obligation on the respondent. The context in which the word is used, both in cl 11.4 and in cl 11 more generally, consistent with other clauses where shall appears, is informative and ill designed to give rise to a penalty for non-compliance.
73 As already mentioned, cl 11.4 of EA 2022, like the other subclauses in cl 11, is undefined and lacks criterion upon which the respondent can be assessed to have contravened, supportive of it being a non-enforceable obligation.
74 Accordingly, I find that, consistent with the respondent’s contentions, cl 11.4 of EA 2022 was not intended to, nor gives rise to, a binding obligation on the respondent capable of invoking a contravention of EA 2022 or a breach of s 50 of the FWA.
75 Therefore, I am not satisfied on the balance of probabilities of the claimant’s construction of cl 11.4 of EA 2022 or that the claimant has proven the Claim to the requisite standard.
Outcome
76 The Claim is dismissed.



D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (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.
[2] The IMC, being a Court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA), s 81 and s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include the requirement to comply with the terms of an enterprise agreement: FWA, s 50.
[5] An obligation upon an ‘employer’ covered by an agreement is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 42, s 53, s 14 and s 12. An entitlement of an employee covered by an agreement is an entitlement of 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’: FWA, s 42, s 53 and s 13.
Contravention
[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: FWA, s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA include:
· Failing to comply with an enterprise agreement: FWA, s 50.
[8] 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’: FWA, s 14 and s 12. 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’: FWA, s 13
[9] 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 FWA: FWA, s 545(3).
· A person to pay a pecuniary penalty: FWA, s 546.
[10] The IMC may order the payment of a pecuniary penalty, or part of a penalty, be paid to the Commonwealth, a particular organisation or a particular person: EWA, s 546(3).
Burden and standard of proof
[11] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. 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.
[12] 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, 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)

SCHEDULE II: Construction of Industrial Instruments
[1] This case involves, in part, construing industrial agreements. 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; (2017) 97 WAIG 1595 [21] - [23].
[2] 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.
[3] 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 at [53] - [57] (French J).
· 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).