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Single Abbreviation Changes Meaning Of Enterprise Agreement

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By Brenton Allen, Lawyer, MST Lawyers

 In finding that an employer misconstrued a common abbreviation in its own enterprise agreement, Qube Ports Pty Ltd (Qube) has been required to withdraw final warnings issued to seven employees following a recent decision of the Fair Work Commission that highlights the importance of meticulous legal drafting.

The decision involved a dispute as to whether Qube was entitled, under the terms of the Qube Ports Pty Ltd Port of Port Kembla Enterprise Agreement 2016 (Enterprise Agreement), to unilaterally lengthen a Sunday shift from 10 hours to 12 hours and issue formal warnings to employees who refused to work the additional time.

In its application to the FWC to arbitrate the dispute, the CFMEU argued, under the Enterprise Agreement, a Sunday shift could only be extended in extenuating circumstances and with the employee’s consent.

Qube maintained that the shift extensions were lawful and reasonable, relying on a clause that stated Sunday shifts “may be confirmed, varied or cancelled (i.e. change to shift start time or cancelled) by 1400 hours. Saturday“. (NB: MST Lawyers added underline beneath i.e.)

In support of its defence, Qube argued the words i.e. were intended to be e.g., with the effect that a variation to the shift start time was one type of variation contemplated, but was not the only type of variation contemplated.

Qube also submitted a quote from Mr Peter Sokolowski, editor at large for the Merriam Webster dictionary, which provided that the “most looked up abbreviations in our online dictionary are i.e. and e.g., probably for the simple reason that they are so often confused for one another”.

However, Deputy President Anna Booth of the FWC noted that the Webster Online Dictionary “itself defines i.e. as ‘that is’ and e.g. as ‘for example'”. Finding this was the “plain meaning of i.e. and e.g.”, the deputy president said she saw “no ambiguity in these phrases” and rejected Qube’s defence.

The decision highlights that the FWC will, when tasked with construing the terms of an enterprise agreement, begin by considering the ordinary and natural meaning of the relevant words and will not rewrite an agreement to achieve what might be regarded as a fair or just outcome.

As similar disputes can also arise in the context of other employment-related documentation (e.g. employment agreements and policies), it is crucial that employers engage a specialist legal practitioner to settle documentation that will create a source for employment entitlements. For a confidential discussion about your circumstances, MST Lawyers invites you to contact one of our specialist employment lawyers by email or telephone +613 8540 0200.