FEDERAL COURT OF AUSTRALIA

Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    I have had the advantage of reading the reasons of White J in draft. I respectfully agree with them, and with the orders his Honour proposes.

Associate:

Dated:    14 May 2018

REASONS FOR JUDGMENT

WHITE J:

2    Mr Jenkins and Mr Pearce (the Employees) were formerly employed by the Appellant (Qube Ports). Both were retrenched by Qube Ports on 18 August 2014 by reason of their positions having become redundant.

3    Both Mr Jenkins and Mr Pearce were members of the respondent (the MUA). At the time of the retrenchments, their employments were covered by an enterprise agreement bearing the title “Qube No 1 and Maritime Union of Australia Enterprise Agreement 2011 (Port Pirie)” (the 2011 Enterprise Agreement) made under the Fair Work Act 2009 (Cth) (the FW Act). Although the year 2011 appears in the title, the enterprise agreement was not approved by the Fair Work Commission pursuant to s 186 of the FW Act until 22 March 2013, and it came into operation on 29 March 2013. It had a nominal expiry date of 1 January 2014.

4    By cl 18.3(c) of the 2011 Enterprise Agreement, employees were entitled to a redundancy payment calculated on the basis of three weeks’ pay “for each completed year of continuous service” to a maximum payment, including payment in lieu of notice, of 70 weeks’ pay.

5    Clause 18.4(d) provided for the determination of the length of continuous service, as follows:

d)    When determining the length of continuous service for the periods of calculating redundancy payments under this clause, the following shall apply:

i.    For FSEs and VSEs employed as Permanent Employees as at 1 March 2006, service shall be regarded as all prior continuous service with the Company as a GWE or Permanent Employee (and shall include previously agreed industry service where relevant).

ii.    For Permanent Employees (FSEs and VSEs) who were Permanent Employees as at 27 March 2006, service shall be regarded as all continuous service in permanent employment with the Company plus any continuous service, if relevant, as a GWE with the Company, from the date of commencement of this clause.

iii.    For GWEs, service shall be regarded as continuous service with the Company as a GWE from 17 March 2006.

(Emphasis added)

6    It was common ground that each of Mr Jenkins and Mr Pearce was an “FSE”, namely, a full time salaried employee.

7    The Employees had commenced employment with Qube Ports on 16 April 2008 at Port Pirie. However, before that time, they had been employed by the predecessors of Qube Ports who had had the contracts to provide stevedoring services at Port Pirie.

8    The issue in the case at first instance was whether the Employees’ service with Qube Ports’ predecessors before 3 April 2000 was “previously agreed industry service” within the meaning of cl 18.4(d)(i) so as to be taken into account in the calculation of their redundancy payments. Qube Ports took the view that it was not and paid each of the Employees a redundancy payment equivalent to 44.76 weeks’ pay based on them having continuous service from 3 April 2000 only.

9    The MUA asserted that account was to be taken of the Employees’ service before 3 April 2000 with the effect that each was entitled to the maximum payment of 70 weeks’ pay for which cl 18.3(c) provided. It commenced proceedings in the former Industrial Relations Court of South Australia (IRCSA). The MUA alleged that by making the claimed underpayment, Qube Ports had contravened (relevantly) ss 50 and 323 of the FW Act and sought payment of the amount of the underpayment, pecuniary penalties and interest.

10    An Industrial Magistrate in the IRCSA found that it was a term of the contracts of employment of Mr Jenkins and Mr Pearce that their industry service would be recognised in the event of retrenchment, that their employment with Qube Ports’ predecessors was “previously agreed industry service”, and ordered Qube Ports to pay the difference between 44.76 weeks and 70 weeks’ pay: Maritime Union of Australia v Qube No 1 Pty Ltd [2017] SAIRC 5. He adjourned consideration of the application for the imposition of penalties.

11    Qube Ports appeals against that judgment on a number of grounds.

12    In my opinion, the appeal should be dismissed. My reasons follow.

The employment background

13    Mr Jenkins commenced working at the docks at Port Pirie in 1981 and, from 1990, worked as a stevedore. He continued to be so employed until his retrenchment on 18 August 2014. At least for some years before 2000, Mr Jenkins had been employed by a company referred to at trial as P&O Ports, although the evidence did not disclose when his employment with P&O Ports had commenced. It was common ground that there had been no relationship between P&O Ports and Qube Ports.

14    Mr Pearce also commenced working at the Port Pirie docks in about 1980 with Mercantile Stevedores, which he said was a “branch” of P&O Ports. From 1990 until his retrenchment, he was employed as a foreman. Before 2000, he also had been employed by P&O Ports.

15    In March 2000, another company, Hobart Ports Corporation Pty Ltd (Hobart Ports) had obtained the contract to provide stevedoring services at Port Pirie. It traded at Port Pirie as “Port Pirie Stevedores” and in Melbourne as “Melbourne Stevedores”. It also seems that at some stage after 2000, Hobart Ports operated at Port Adelaide as “Port Adelaide Stevedores”. When Hobart Ports obtained the contract at Port Pirie, the Employees resigned their employment with P&O Ports with effect from 2 April 2000 and commenced employment with Hobart Ports the following day.

16    In 2006, the reorganisation contemplated by the Tasmanian Ports Corporation Act 2005 (Tas) occurred as a result of which the Employees became employed by Tasmanian Ports Corporation Pty Ltd (TasPorts). It was not suggested that anything in the resolution of the Employees’ present claims turned on that reorganisation.

17    In 2008, TasPorts and P&O Auto and General Stevedoring Pty Ltd (POAGS) entered into a joint venture and established a new company, Capital P&O Logistics Pty Ltd (CPOL) to conduct the business of the joint venture. This included the stevedoring work at Port Pirie. The Employees accepted employment with CPOL pursuant to letters of offer dated 16 April 2008 and continued working, as they had before, at the Port Pirie docks.

18    In about 2010, POAGS purchased TasPorts’ interest in CPOL. Subsequently, in or around March 2012, POAGS was renamed as “Qube” and CPOL was renamed “Qube Ports (No 1) Pty Ltd”.

19    There is a discrepancy in the name of Qube Ports in some of the documents. In the IRCSA, the Respondent to the proceedings was named as Qube Ports Pty Ltd. The judgment of the Industrial Magistrate refers to the Respondent as “Qube No 1 Pty Ltd” whereas the notice of appeal to this Court states the appellant’s name as “Qube Ports Pty Ltd”. It was not suggested that anything turned on this discrepancy.

The basis of the claim for recognition of previous industry service

20    In the proceedings at first instance, the MUA contended that the Employees had “industry service” within the meaning of cl 18.4(d)(i) of the 2011 Enterprise Agreement, namely, their employment after 1981 with P&O Ports, and that Qube Ports had “previously agreed” that that service would count in the calculation of the length of their continuous service. For those contentions, the MUA relied on events occurring eight years apart.

March-April 2000: Employment by Hobart Ports

21    The first event had occurred in March and April 2000 when Hobart Ports took over the stevedoring operations at the Port Pirie docks. The MUA contended that Hobart Ports had agreed then to employ the Employees and had agreed, as a term of their contracts of employment, that their service with P&O Ports would be recognised for the purposes of calculating their entitlements in the event that they were made redundant.

22    In support of the agreements by Hobart Ports which it alleged, the MUA relied in part on documentary evidence and in part on oral evidence, including the evidence of Mr R Newlyn, the former secretary of its South Australian branch.

23    The documentary evidence comprised an exchange of correspondence between the MUA’s then Assistant National Secretary (Mr O’Leary) and senior employees within Hobart Ports. The Industrial Magistrate accepted that the following exchange of correspondence had occurred.

24    In a letter to Hobart Ports’ general manager, Mr Badcock, on 20 March 2000, Mr O’Leary said:

Dear Kevin,

Please find enclosed for your consideration, a draft Redundancy, Retirement Agreement for Hobart Port to cover its proposed operations in Melbourne and Port Pirie.

In respect of Port Pirie, the MUA seeks agreement that any permanent P&O Ports employee, who transfers their employment to Port Pirie Stevedores, will have their Industry Start Date (ISD) or employment start date with P&O Ports, recognised by Port Pirie Stevedores for the purpose of application of the Redundancy, Retirement Agreement.

The Redundancy, Retirement Agreement, enclosed, will apply until replaced by other arrangements finalised between the Parties.

25    The draft Redundancy, Retirement Agreement to which Mr O’Leary referred in the letter was not in evidence in the trial in the present case. Mr O’Leary said in the letter that the proposed agreement was to apply to Hobart Ports’ operations in both Melbourne and Port Pirie. It is apparent from the letter that the MUA sought, as an additional agreement by Hobart Ports, recognition of the prior industry service of employees of P&O Ports at Port Pirie who would transfer to Hobart Ports’ business.

26    Mr Drinkwater, Hobart Ports’ Chief Executive, responded by letter dated 24 March 2000 saying:

Dear Mick

Port Pirie Stevedores

Thank you for your faxed letter of 20 March 2000 in respect to a proposed redundancy/early retirement agreement relative to the above and for the opportunity for Hobart Ports’ Representatives to meet with you and Rick Newlyn in Port Pirie on 22 March 2000.

If an understanding could be reached on the following points we believe it is possible for Hobart Ports to favourably view your proposal:

1.    An understanding that any new redundancy agreement of a type similar to that you outlined at our meeting would apply to any ex-P&O permanent employees picked up by Port Pirie Stevedores.

2.    The MUA acknowledges and is committed to Port Pirie Stevedores’ effective discipline and management of employees. This means for example, that eventually a management exercise could result in a termination on disciplinary grounds that would not attract a redundancy/early retirement package.

3.    That the MUA confirms that redundancy/early retirement calculations are based on the Stevedoring Industry Award pay rate.

4.    That issues identified in respect to “difficult” employees are able to be effectively dealt with by the MUA and/or Port Pirie Stevedores.

Given a favourable response to the above issues, Port Pirie Stevedores would be prepared to become party to an agreement that allows up to a maximum of 6 permanent ex-employees of P&O to commence employment with Port Pirie Stevedores including the recognition of industry service.

Port Pirie Stevedores will also engage up to 12 ex-P&O Guaranteed Wage Employees (GWEs) and sufficient supplementary employees as determined by operational requirements. This is conditional upon P&O paying out any sick leave, annual leave and long service leave accruals to which the individual employees are entitled to upon termination of their employment in accordance with Clause 2(ii) of the current redundancy/early retirement agreement.

It is also agreed between the parties that the above workforce numbers will be reviewed during the first three months of operation at Port Pirie Stevedores.

(Emphasis added)

27    Mr O’Leary responded by letter dated 27 March 2000 saying:

Dear Chris

I have received your fax of the 24th March in regards to Port Pirie Stevedores, and I can confirm the following as the MUA response to those matters raised.

1.    Agreed

2.    Agreed

3.    Agreed, on the basis that the Stevedoring Industry Award graded rate is the rate that appears in Clause 21. Classifications and Rates of Pay of the Registered EA.

4.    Agreed.

Your correspondence also outlines agreement to the employment of six (6) permanent ex-employees of P&O Ports and twelve (12) ex-P&O GWEs. I can confirm that all prospective Port Pirie Stevedores (PPS) employees will, as of today, be informing P&O Ports of their resignations, which will apply from midnight of Sunday, 2nd April 2000, enabling their employment with PPS to commence on Monday, 3rd April 2000.

All current employees of P&O Ports, both permanent and GWEs, have indicated a preference to have all sick leave, annual leave and LSL accruals dealt with under Clause 2(iii) of the current redundancy/early retirement agreement, and as such this issues need to be resolved quickly.

The MUA also agrees to the 12-week review of operations.

28    Mr O’Leary’s letter shows that he sent a copy of it to Mr R Newlyn.

29    Mr Jenkins and Mr Pearce were two of the six permanent stevedoring employees of P&O Ports in March 2000 to whom Mr Drinkwater and Mr O’Leary referred in this correspondence.

30    P&O Ports wrote to Mr Jenkins on 27 March 2000 confirming that it had lost the contract and that his employment with it would end. This letter, although in evidence at the trial, was not in the materials provided to this Court for the appeal. It seems probable that P&O Ports sent a letter in like terms to Mr Pearce.

31    On 3 April 2000, Mr Drinkwater wrote to Mr Jenkins confirming his appointment as a permanent employee of Port Pirie Stevedores commencing on 3 April 2000. The letter said:

Dear Rob

I would like to confirm your appointment as a permanent employee of Port Pirie Stevedores (a division of Hobart Ports Corporation Pty Ltd), commencing 3 April 2000. This appointment is subject to you undertaking a medical examination and receiving satisfactory results accordingly.

You have been appointed as a Grade 6 employee and the terms and conditions of your employment will be as per the Port Pirie Stevedores Bulk and General Stevedoring Enterprise Agreement 2000.

I would like to congratulate you on your appointment and look forward to working with you to ensure the success of Port Pirie Stevedores.

32    Mr Drinkwater sent a letter in relevantly identical terms to Mr Pearce on the same day. The letters made no reference to an agreement that the service of the employees with P&O Ports would count in the calculation of any redundancy payments.

33    The MUA submitted that the correspondence before 3 April 2000 evidenced, or at least was consistent with, agreements having been reached in principle on the draft Redundancy and Retirement Agreement and on the employment of the P&O Ports employees including Mr Jenkins and Mr Pearce, with recognition of their previous service. However, as already noted, it did not rely on its own agreement with P&O Ports for the entitlements of the Employees which it claimed. Instead, it claimed that those entitlements arose from the Employees’ contracts of employment.

34    The MUA and Hobart Ports “trading as Melbourne Stevedores and as Port Pirie Stevedores” did conclude an agreement entitled “Retirement and Redundancy Agreement” on 27 April 2000 (the 2000 Redundancy Agreement). It was stated to operate from 1 November 1999.

35    The 2000 Redundancy Agreement provided for the entitlement of employees who retired from employment with Hobart Ports before reaching the age of 65, for payments in the event of retrenchment for redundancy which varied according to the age and length of service of the employee, entitlements with respect to redeployment, and entitlements with respect to the portability of sick leave, annual and long service leave. It defined the term “service” as follows:

“Service” means that period of continuous service within the stevedoring industry as agreed between the parties for each permanent employee of Hobart Ports at 1st November 1992 and for future permanent employees of Hobart Ports after that date, “service” shall mean that period of continuous service as a permanent employee of the company.

… This definition of service shall apply for the purposes of this Agreement only and shall not be relied upon by any of the parties in other negotiations.

36    As can be seen, this definition seemed to distinguish between those who were permanent employees of Hobart Ports at 1 November 1992 and those who became permanent employees after that date. The manner of expression in this definition seems to involve some difficulty to which it will be necessary to return.

37    The remaining evidence on which the MUA relied was that of Mr R Newlyn and the Employees about the statements made by employees of Hobart Ports in late March 2000. Mr Newlyn said that, in a meeting at Port Pirie in March 2000 (which may have been the meeting on 22 March 2000 to which Mr Drinkwater referred in his letter of 24 March 2000), Mr Badcock, Hobart Ports’ General Manager of Stevedoring said that Hobart Ports would recognise the previous service of the permanent employees. He said that at the meeting with Mr Badcock, he had made it “quite clear” that the issues were “industry start date … and the number of permanents that would transfer over”. Mr R Newlyn said that Mr Badcock did not have an issue in recognising the industry start date. He said that at a later meeting with the MUA members, which Mr Badcock also attended, he had reported Hobart Ports’ agreement to the employees. He said that Mr Jenkins, who was at the time the MUA delegate at Port Pirie, had also attended the meeting with Mr Badcock.

38    Mr Jenkins confirmed his attendance at Mr R Newlyn’s meeting with Mr Badcock and others. He said that there was explicit agreement that Hobart Ports would recognise all previous industry service. He said that this had also been stated at the meeting of the employees attended by Mr R Newlyn and by Mr Badcock.

39    In addition, Mr Jenkins said that Ms Adams, the Human Resources Manager of Hobart Ports, had assured him in a one on one meeting that Hobart Ports would recognise his continuity of service in the event of redundancy.

40    Mr Pearce did not attend the meeting of Mr R Newlyn and Mr Jenkins with Hobart Ports’ management. He said, however, that both Mr R Newlyn and Mr Jenkins had told him that his prior service would be recognised, and that he had relied on that in deciding to accept employment with Hobart Ports, rather than electing to be retrenched by P&O Ports and to take a redundancy payment from it.

41    The Industrial Magistrate accepted the evidence of Mr R Newlyn, Mr Jenkins and Mr Pearce, at [26].

42    Neither Mr Jenkins nor Mr Pearce received any redundancy payment from P&O Ports on the termination of the employment by it on 2 April 2000.

April 2008: Employment by CPOL/Qube Ports

43    The second event was the offer of employment made by Qube Ports (then CPOL) to Mr Jenkins and Mr Pearce on 16 April 2008. The letters were relevantly identical. For ease of later reference, I have numbered the paragraphs in the letter to Mr Jenkins:

Dear Robin

Re: Offer of Employment with P&O Logistics Pty Ltd (“CPOL”)

1.    As you will be aware the Tasmanian Ports Corporation – Stevedoring (TasPorts) and P&O Auto and General Stevedoring (POAGS) have entered into a joint venture and established the new company, Capital P&O Logistics Pty Ltd (CPOL). CPOL will acquire that part of the TasPorts business in which you were currently employed.

2.    Upon and subject to the joint venture taking effect, CPOL offers you employment in the same position and on terms and conditions that are generally no less favourable than those to which you are entitled as an employee of TasPorts.

3.    If you accept this offer of employment with CPOL your employment with your current employer will come to an end.

4.    If your employment is covered by a certified agreement, AWA or Award and you accept employment with CPOL then that instrument will continue to apply to your employment for a maximum period of one year after the transmission of business to CPOL. You will receive more information about the continuing application of any industrial instrument that currently applies to you after the joint venture takes effect.

5.    If you accept employment with CPOL, CPOL has agreed with TasPorts that it will assume liability for any accrued annual leave, personal leave and long service leave to which you may be entitled when your current employment comes to an end. Further, for the purpose of these entitlements, to the extent that they depend upon length and continuity of service, your period of continuous service will count as service with CPOL.

6.    If you wish to accept this offer of employment with CPOL would you please sign and date the duplicate copy of this letter. Please note that in signing the duplicate of this letter you will be taken as also instructing CPOL to communicate to your current employer that you have accepted this offer and that you thereby resign from your employment.

(Emphasis added)

44    The Employees did not say at trial that they had signed and dated the duplicate copy of the letter referred to in the last paragraph, but the Industrial Magistrate found that they had accepted the job offer, at [18].

45    The MUA emphasised that each of the Employees had been offered (and had accepted) employment in his then current position “on terms and conditions that are generally no less favourable than those to which [he was] entitled as an employee of TasPorts”. It contended that those terms and conditions included the agreement by Hobart Ports that the Employees’ service with P&O Ports before 3 April 2000 would count in the calculation of any redundancy payments and constituted an agreement for the purposes of cl 18.4(d)(i).

46    The Employees did not receive any redundancy payment from Hobart Ports on the termination of their employment by it.

The decision of the Industrial Magistrate

47    The Industrial Magistrate accepted Mr R Newlyn’s evidence to the effect that, in late March 2000, he had held meetings with Hobart Ports’ representatives in relation to the transmission of employees from P&O Ports to Hobart Ports. Mr Newlyn said that, in these discussions, key issues had been the “industry start date” and the number of permanent employees who were to transfer to Hobart Ports. The Industrial Magistrate accepted Mr Newlyn’s evidence that Mr Badcock had agreed in these discussions that previous industry service would be recognised in the event of redundancy, as a term of the contracts of employment of the employees. The Industrial Magistrate also accepted Mr Newlyn’s evidence that he had reported Mr Badcock’s agreement to a meeting of the MUA members in the presence of Mr Badcock.

48    In addition, the Industrial Magistrate accepted Mr Jenkins’ evidence that Ms Adams, had, in March 2000 and in the presence of Mr Badcock and Mr R Newlyn, confirmed Hobart Ports’ agreement to recognise prior industry service as a term of the offers of employment to the employees. The Magistrate also accepted Mr Jenkins’ evidence that Ms Adams had later repeated that confirmation to him personally.

49    The Industrial Magistrate found that it was a term of the contract of employment of each of Mr Jenkins and Mr Pearce that their industry service would be recognised by Hobart Ports in the event of retrenchment. This was a critical finding. The Magistrate rejected Qube Ports’ contention that the Hobart Ports’ South Australian Enterprise Agreement (the 2004 Enterprise Agreement), which came into operation on 23 July 2004, had had the effect of negating the respective contractual terms.

50    In reaching those conclusions, the Industrial Magistrate:

(1)    rejected Qube Ports’ submission that the evidence of Mr R Newlyn and Mr Jenkins concerning the oral agreement with Hobart Ports in March and April 2000 was inadmissible hearsay, at [32]. He held that, even if it was, the evidence should still be received because the IRCSA was not bound by the strict rules evidence and it was in the interests of justice for the evidence to be received;

(2)    accepted the evidence of Mr R Newlyn and Mr Jenkins as to the oral exchanges at the meetings with the Hobart Ports’ personnel in March and April 2000, at [35];

(3)    held that, although the claimed term had not been reduced to writing, a number of circumstantial matters pointed to it having been agreed upon. These included the correspondence between the MUA and Hobart Ports, at [37], the evidence that recognition of prior service was an industry standard, at [35], and that it was unlikely that Mr Jenkins or Mr Pearce would have accepted the job offers without agreement that their prior service would be recognised, at [35];

(4)    rejected Qube Ports’ submission that an adverse inference should be drawn against the MUA by reason that it had not adduced evidence from Hobart Ports’ personnel, at [39]-[41];

(5)    rejected Qube Ports’ submission that it had not been open to either Mr R Newlyn or Mr Jenkins to receive the offers of recognition of past service on behalf of Mr Pearce and Mr Jenkins, and that Mr Jenkins could not even receive the offer in his personal capacity, at [42]-[48]. He held that as Hobart Ports had communicated the offer to Mr Jenkins personally, it had been open to him to accept it, at [46], and that Mr R Newlyn had been the agent of both Mr Jenkins and Mr Pearce in relation to the offer of the term, at [47];

(6)    held that it was not material that the 2000 Redundancy Agreement had not made express mention of the recognition of prior service of the Employees, at [49]; and

(7)    held that the 2004 Enterprise Agreement had not had the effect of negating or cancelling the term in the contracts of employment, at [51]-[54].

51    The Industrial Magistrate also rejected some other contentions of Qube Ports, which were not pursued on appeal. It is not necessary for them to be separately mentioned.

52    The Industrial Magistrate then found that the term in the Employees’ respective contracts of employment with Hobart Ports that their industry service with P&O Ports would be recognised in the event of retrenchment was one of the terms encompassed by the offer by CPOL of employment on terms and conditions “that are generally no less favourable than those to which you are entitled as an employee of TasPorts”.

The appeal to this Court

53    The amended notice of appeal of Qube Ports contains three grounds.

54    Ground 1 has two limbs. In Ground 1(a), Qube Ports contends that there was no agreement between it and the Employees with respect to the recognition of service which had occurred before 3 April 2000. In Ground 1(b), it contends that the Industrial Magistrate should have found that the MUA had not established the agreement by Hobart Ports to recognise previous industry service because the “alleged” oral representations made by the Hobart Ports’ personnel had been superseded, or at least were not supported, by the 2000 Redundancy Agreement, nor by the terms of Hobart Ports’ offer of employment to the Employees. It also raises complaints about the nature of the evidence presented by the MUA on which the Magistrate relied.

55    Ground 2 concerns only Mr Pearce. It is to the effect that the Industrial Magistrate had erred by finding that Mr R Newlyn had acted as his agent in the formation of the contract, with the consequence that the agreement reached between Hobart Ports and Mr R Newlyn had not bound Mr Pearce.

56    Ground 3 contends that the Industrial Magistrate erred in his consideration of the effect of cl 5.5 of the 2004 EA. Grounds 3(a) and (c) are the converse of one another, so that it is convenient to set out Ground 3(a) only:

[The primary Judge erred by] finding at [51]-[54] that clause 5.5 of [the 2004 Enterprise Agreement] did not have the effect of superseding any prior agreement alleged between Hobart Ports and the Employees …

Ground 3(b) alleged a failure by the Industrial Magistrate to have regard to the 2004 Enterprise Agreement when considering the effect of Qube Ports’ letters of offer of 16 April 2008.

57    Put more succinctly, the grounds of appeal alleged that the Industrial Magistrate had been wrong to find that Hobart Ports had agreed in March and April 2000 that regard would be had in any redundancy to the Employees’ service with P&O Ports; that even if there had been such an agreement, it had been superseded by the enterprise agreement made by Hobart Ports with MUA in 2004; and that even if either of those contentions failed, the Industrial Magistrate had been wrong to find that Qube Ports had agreed in 2008 to recognise the Employees’ service with P&O Ports.

58    The MUA relied on a notice of contention. As will be seen, I do not consider it necessary to consider the matters raised by that notice.

59    The majority of Qube Ports’ submissions were directed to Ground 3. It submitted that this ground was fatal to the whole of the MUA’s claims. Like Qube Ports, I will address this ground first.

Ground 3: The effect of the 2004 Enterprise Agreement

60    The 2004 Enterprise Agreement is entitled “Hobart Ports South Australian Enterprise Agreement 2004”. It was made pursuant to Pt VIB of the Workplace Relations Act 1996 (Cth) (the WR Act) and was certified, pursuant to s 170LT of that Act, by the Australian Industrial Relations Commission on 23 July 2004. It came into operation on the same day. The parties to the 2004 Enterprise Agreement were Hobart Ports (trading as Port Pirie Stevedores and as Port Adelaide Stevedores) and the MUA.

61    By reason of s 170M of the WR Act and cl 4 of the 2004 Enterprise Agreement, the agreement was binding on Hobart Ports, the MUA and the employees whose employment was subject to it. It was common ground that the employment of the Employees had been covered by the 2004 Enterprise Agreement during its currency.

62    Clause 8 of the 2004 Enterprise Agreement contained a suite of provisions under the heading “Contract of Employment”. Clause 33 concerned retirement and redundancy and provided (relevantly):

33    RETIREMENT AND REDUNDANCY

33.1    The parties agree that the provisions of the current Stevedoring Industry Retirement and Redundancy Agreement shall not apply to the employees who are engaged after 1 April 2003.

33.2    Employees, subject to this Agreement, shall be entitled to redundancy payments as follows:

33.2.1    Payment of 3 weeks for each year of completed continuous service up to a maximum of 22 years of service (maximum 66 weeks payment); plus

33.2.2    An additional 4 weeks pay in lieu of notice for a maximum total redundancy payment of 70 weeks’ pay.

…

63    Qube Ports relied in particular on cl 5 of the 2004 Enterprise Agreement. It provided:

5.    AWARD PROVISIONS

This Agreement including any appendix attached thereto, shall:

5.1    Provide a complete and final resolution of all matters relating to the Company’s stevedoring operations and arrangements for all employees employed under the terms of this Agreement.

5.2    Be read in conjunction with the terms of the Stevedoring Award except to the extent of any inconsistency between this Agreement and the Stevedoring Award in which case the Stevedoring Award provisions shall cease to apply to the extent of the inconsistency. Provided however that such Stevedoring Award provisions shall cease to apply only to the extent and for the period necessary to permit the operation of this Agreement.

5.3    Be read in conjunction with the terms of the Stevedoring Australian Vocational Training System Award 1994 as amended except to the extent of any inconsistency between this Agreement and that award in which case the award provisions shall cease to apply to the extent of the inconsistency. Provided however that such award provisions shall cease to apply only to the extent and for the period necessary to permit the operation of this Agreement.

5.4    Be read in conjunction with the terms of the Stevedoring Long Service Leave Award as amended except to the extent of any inconsistency between this Agreement and that Stevedoring Long Service Leave Award in which case the Stevedoring Long Service Leave Award provisions shall cease to apply to the extent of the inconsistency. Provided however that such award provisions shall cease to apply only to the extent and for the period necessary to permit the operation of this Agreement.

5.5    Supersede any other Award, any agreement whether certified or not, (save and except the Stevedoring Industry Retirement and Redundancy Agreement as provided for in cl 33.1 of this Agreement), memorandum of understanding, exchange of correspondence, work practice(s), arrangement(s), written or unwritten which applied prior to the introduction of this Agreement and which regulated the terms and conditions of employment of employees covered by this Agreement.

5.6    Be read in conjunction with any appendix attached to this Agreement providing that the terms of any such appendix shall not be inconsistent with the terms of the Agreement itself.

64    There are well developed principles concerning the construction of industrial awards and agreements, which take account of the fact that they are commonly drafted by lay persons and lack the precision and clarity to be expected in commercial contracts.

65    The principles were reviewed recently by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 at [29]-[41]. It is not necessary to repeat the principles in detail in these reasons. It is sufficient to say that the Court will seek to identify, in an objective way, the meaning intended by the parties to the agreement having regard to the language they have used and, in doing so, avoid a narrow or pedantic approach. In particular, the Court takes account of the circumstance that the drafters of the agreement were likely of a “practical bent of mind” and likely to have been concerned with expressing their intentions in ways understood in the context of the relevant industry and industrial relations environment. As with commercial contracts, the Court will prefer a construction which gives effect to the presumed purpose of the parties.

66    Qube Ports submitted that cl 5.5 had the effect that the 2004 Enterprise Agreement superseded any previous agreement between Hobart Ports and the Employees, whether written or unwritten, and that this included the terms with respect to recognition of previous industry service found by the Industrial Magistrate. It contended that, properly understood, cl 5.5 meant that the 2004 Enterprise Agreement “covered the field in relation to all terms and conditions of employment” of the Employees to whom it applied “to the exclusion of all anterior terms, contractual or otherwise”. This was so, Qube Ports submitted, whether or not the anterior terms were inconsistent with the 2004 Enterprise Agreement. The Industrial Magistrate had erred by not recognising that this was the effect of cl 5.5.

67    In support of this submission, counsel for Qube Ports referred to the description of enterprise agreements made under Pt 2-4 of the FW Act by the Full Court in Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 (Jessup, Tracey and Perram JJ) at [89]:

… The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and, as mentioned above, will be felt also by those who did not agree to them. Someone, such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.

Counsel submitted that this description also applied to enterprise agreements made under Pt VIB of the WR Act.

68    In my opinion, Qube Ports’ submissions as to the effect of cl 5.5 of the 2004 Enterprise Agreement should not be accepted. Clause 5.5 is not to be understood as directed to individual contracts of employment at all. Instead, cl 5.5 was directed to industrial instruments and arrangements of particular kinds only, namely, those which “regulated” the terms and conditions of the employment of employees covered by the agreement. The word “regulated” suggests that the instruments and arrangements contemplated are those which are external to the contract of employment and which affect its operation in a given case. Further, the reference to “any other Award” and to any agreement whether certified or not points to the clause being directed to instruments and arrangements of a collective kind.

69    I also consider it pertinent that, despite the evident attempt by the drafters of cl 5.5 to cast its application broadly, the terms “contract of employment” and “terms and conditions in a contract of employment”, or like terms, are not used. It would have been obvious for such terms to have been used had it been intended that cl 5.5 should apply to them.

70    Furthermore, as Qube Ports acknowledged in later submissions, it would be contrary to principle to hold that an enterprise agreement made under Pt VIB of the WR Act superseded, in the sense that it displaced, the contract of employment altogether and, for that matter, all of the terms, express or implied, in a contract of employment. The true position is that the relationship of employer and employee depends upon there being a contract of employment between them; that an industrial award or certified agreement has application only when a contract of employment is (or has been) in place; that the award or certified agreement binds the parties only in relation to the matters with which it deals; and that there will invariably be aspects of the relationship which are not governed by the award or enterprise agreement. So much is orthodox principle: Amalgamated Colleries of WA Ltd v True (1937) 59 CLR 417 at 423; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 421-2; Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 287; Visscher v Giudice [2009] HCA 34, (2009) 239 CLR 361 at [13] (Gummow J), [71] (Heydon, Crennan, Kiefel and Bell JJ). It is reasonable to construe cl 5.5 on the basis that those responsible for its drafting were conscious of these basic principles and did not intend that cl 5.5 should infringe them. That understanding provides a ready explanation for cl 5.5 not referring to contracts of employment.

71    In the course of his argument concerning the effect of cl 5.5, counsel for Qube Ports advanced a submission concerning inconsistency between the 2004 Enterprise Agreement, on the one hand, and the contractual term for recognition of previous service found by the Industrial Magistrate, on the other. One submission was that the inconsistency arose from cl 5.5 itself. It was to the effect that even if there had been agreement by Hobart Ports for recognition of previous industry service, the continuance of that agreement was inconsistent with cl 5.5 of the 2004 Enterprise Agreement. That submission fails, for the reasons already given.

72    A second submission was that the effect of cl 5.1, when read in conjunction with cl 5.5, was that the 2004 Enterprise Agreement should be understood as covering the field of regulation of the terms and conditions of Hobart Ports at Port Pirie and Port Adelaide. In my view, the submission to this effect is outside the terms of Grounds 3(a) and (c). Apart from that, the submission faces the difficulty that the conditions in the 2004 Enterprise Agreement were minimum conditions, with the effect that it was open to Hobart Ports to agree on superior conditions with an individual employee. The 2004 Enterprise Agreement is not to be understood as though it was a “paid rates” agreement – cf s 17LG of the WR Act. Counsel did not point to any provision in the 2004 Enterprise Agreement itself, or in Pt VIB of the WR Act which indicated that the terms of the enterprise agreement were to be understood as “paid rates” terms or that an employer and worker could not agree on superior conditions. Nor did counsel point to any authority indicating that the terms of an enterprise agreement made under Pt VIB were to be understood in that way. The position is that stated by Black CJ and French J in Quickenden v O’Connor [2001] FCA 303; (2001) 109 FCR 243 at [69]:

The broad brush complaint that common law contractual rights were displaced by the certified agreement faced another threshold issue. For while the agreement bound Dr Quickenden by force of law, it did not thereby terminate his contract of employment. It created rights and obligations which were statutory in character and could operate in addition to the rights and obligations under his contact and, where inconsistent, no doubt displace them. There is nothing in the agreement however which expressly sets aside or displaces the terms of existing or common law rights generally. The agreement itself is not, on the face of it, and is not expressed to be, exhaustive of the rights and duties of those bound by it. If anything it focuses upon the rights of employees, rather than their obligations.

73    Counsel for Qube Ports acknowledged that it had been open to Hobart Ports and an individual employee to agree on an “over-agreement” entitlement both before and after the 2004 Enterprise Agreement came into operation. The submission was only that, if there had been such an agreement before the making of the 2004 Enterprise Agreement, cl 5.5 had the effect that it did not survive that Agreement.

74    Thirdly, counsel submitted that there was inconsistency between cl 33 in the 2004 Enterprise Agreement, on the one hand, and the individual terms asserted by the MUA, on the other. That was because of cl 5.5 and, further, because cl 33.2.1 referred to “continuous service” without any reference to “industry service”. Again, I consider that this submission was outside the terms of Grounds 3(a) and (c) of Qube Ports’ amended notice of appeal. However, even putting that consideration to one side, the argument fails by reason that cl 33.2.1 is to be understood as a minimum condition. It did not preclude Hobart Ports agreeing on a term which was more beneficial to the Employees.

75    For these reasons, I consider that Grounds 3(a) and (c) fail. I accept, however, that cl 5.5 of the 2004 Enterprise Agreement had the effect that the 2000 Redundancy Agreement was superseded. My conclusion concerning Grounds 3(a) and (c) means that it is necessary to address the remaining grounds of appeal.

Ground 1(b): The agreement by Hobart Ports

76    The sequence of their subject matter makes it appropriate to address Ground 1(b) before Ground 1(a).

Ground 1(b)(i): The contractual effect of the “representations” by Hobart Ports

77    Qube Ports submitted that the Industrial Magistrate failed to have regard to two important considerations: first, neither the 2000 Redundancy Agreement nor the Hobart Ports’ letters of 3 April 2000 had mentioned recognition of the Employees’ previous industry service; secondly, the 3 April 2000 letters evinced an intention (so Qube Ports contended) that the terms of the Employees’ employment would be governed by an enterprise agreement, and not by any other agreement. The enterprise agreement in question was the Port Pirie Stevedores Bulk and General Stevedoring Enterprise Agreement 2000 (the 2000 Enterprise Agreement). It was not put in evidence in the trial.

78    Contrary to the first of these contentions, it is plain that the Industrial Magistrate did have regard to the 2000 Redundancy Agreement when considering the terms in the contracts of employment on which the MUA relied. The Magistrate said:

[49]    I have also considered the significance of the absence of any reference to this term in the subsequent 2000 Redundancy document agreed between the applicant and Hobart Ports. There is no evidence that Mr Pearce or Mr Jenkins specifically approved the relevant clauses of the collective agreement prior to accepting the job or at all, or even that its final terms were produced to them prior to the terms being accepted by Rick Newlyn. Further, by the time this document had been agreed to by the applicant Hobart Ports’ offer had been accepted, relied on and incorporated into the individual contracts of employment. In my opinion the absence does not negate all the evidence in support of the formation of the agreement.

79    Apart from an undeveloped submission that the “oral representations” made by the Hobart Ports’ personnel could not be “disassociated” from the negotiations concerning the 2000 Redundancy Agreement, I did not understand Qube Ports to challenge the accuracy of the matters to which the Magistrate adverted in this paragraph.

80    Further, Qube Ports’ assumption that the 2000 Redundancy Agreement did not provide for recognition of the Employees’ previous industry service may not be sound. I mentioned earlier that the definition of “service” in the 2000 Redundancy Agreement seems to involve some difficulty. It refers to two categories of employees, being those who were permanent employees of Hobart Ports as at 1 November 1992 and those who became permanent employees of Hobart Ports after that date. However, Hobart Ports could not have had any employees at Port Pirie at 1 November 1992. In addition, there was evidence that, until about 2000, the activities of Hobart Ports had been confined to Tasmania, suggesting that it was also unlikely to have had any employees in Melbourne as at 1 November 1992. It is theoretically possible that the definition was intended to encompass a worker employed by Hobart Ports in Tasmania at 1 November 1992 who had by April 2004 relocated either to Melbourne or Port Pirie but this does not seem realistic. It seems more likely that the terminology in the definition may not accurately express the parties’ intention, and that it should not be understood as referring literally to persons who were, as at 1 November 1992, permanent employees of Hobart Ports. Instead, it may be appropriate to understand the first category of employees in the definition as being those employees of Hobart Ports who had been permanent employees in the stevedoring industry at 1 November 1992 or, perhaps, those of its employees who had been employed in the enterprise at Port Pirie at 1 November 1992.

81    One thing that is clear from the reference to “continuous service within the stevedoring industry” is that the parties to the 2000 Redundancy Agreement contemplated that there could be agreement that the continuous service in the stevedoring industry of some individual employees would be recognised for redundancy purposes, even if that service had not been with Hobart Ports.

82    Having regard to all these circumstances, the validity of Qube Ports’ assumption that the 2000 Redundancy Agreement did not take account of the individual agreements of the Employees may be questionable. It may well be the case that it did, although in an infelicitous way. It would, however, be inappropriate to express any concluded view about the construction of the definition, given that the Court has not heard from Hobart Ports, one of the parties to the 2000 Redundancy Agreement.

83    Because of the uncertainty, the position most favourable to Qube Ports should be considered.

84    An important consideration is that the 2000 Redundancy Agreement was concluded on 27 April 2000 (when it was executed by the MUA). It had been executed by Hobart Ports on 18 April 2000. Both dates were after Hobart Ports had had entered into the contracts of employment with the Employees.

85    There are circumstances in which the subsequent conduct of parties to a contract may be considered for the purpose of identifying the terms of their contract (as distinct from the meaning of those terms): County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [23]; Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, (2009) 76 NSWLR 603 at [325]; Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286 at [134]. However, that principle does not extend to the subsequent conduct of others. The conduct of Hobart Ports and the MUA in negotiating the 2000 Redundancy Agreement was not conduct of the Employees. Accordingly, there was no proper basis on which the Industrial Magistrate could have regard to the subsequent conduct of Hobart Ports and the MUA for the purpose of determining the terms of the contracts of employment which Qube Ports had concluded with the Employees by, at the least, 3 April 2000.

86    Furthermore, it had not been open to the MUA and Hobart Ports by their agreement on the 2000 Redundancy Agreement to alter the terms of the Employees’ contracts of employment.

87    Hobart Ports’ letters of 3 April 2000 were personal to each of the Employees. As already mentioned, neither letter made any reference to recognition of previous service for redundancy purposes. This was an important consideration, but it was not overlooked by the Industrial Magistrate. He made express reference to this consideration, at [34], and was satisfied nevertheless that there had been oral agreement on the term.

88    It was obvious that the Magistrate had to scrutinise carefully the evidence of the Employees and of Mr R Newlyn. The Employees were giving evidence of conversations occurring approximately 16 years earlier and in a context in which their recollections could easily have been coloured by self-interest. Similar considerations applied in relation to the evidence of Mr R Newlyn.

89    It is apparent that the Industrial Magistrate’s conclusions rested very much on his credibility assessments. This Court should respect the advantage which he had in seeing and hearing the witnesses in making those assessments: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]-[29]. Nevertheless, the Court may overturn findings based on credit if “incontrovertible facts” or “untested testimony” indicate error in the judgment at first instance, or if it is “glaringly improbable” or “contrary to compelling inferences”. I do not understand Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43] as having altered the position stated in Fox v Percy in this respect.

90    In the present case, the Industrial Magistrate did not rely only on his credibility assessment of the witnesses. He referred to a number of circumstantial matters supporting the reliability of the witnesses’ accounts. Of these circumstantial matters, the fact that there was objective corroboration of the Employees’ contemporaneous interest in having their previous industry service recognised was an important consideration. So also was Hobart Ports’ willingness to agree on the term in order to secure the continuation of the Employees in working in its businesses. In these circumstances, there is no basis upon which this Court should interfere with the Magistrate’s findings. They were not inconsistent with other matters which were established incontrovertibly and were not glaringly improbable.

91    Counsel for Qube Ports did not elaborate the contention that the oral agreement with the Employees had been “superseded” by the 2000 Redundancy Agreement. It is not easy to see how that could have been the case given that, on the Industrial Magistrate’s findings, the agreement for recognition of their previous industry service had become a term of the contracts of employment of the Employees, whereas the 2000 Redundancy Agreement was in the nature of a collective agreement to which they were not parties.

92    The Industrial Magistrate did not make any finding on the topic of whether the letters of 3 April 2000 evinced an intention that the employment of the Employees would be governed only by the 2000 Enterprise Agreement. It is not clear that this submission was made to him and, as noted, the 2000 Agreement was not tendered at trial. That being so, it would have been difficult for the Magistrate, as it is for this Court, to evaluate the submission. Much may have turned on the content of the 2000 Agreement. Further, it is not realistic to suppose that an enterprise agreement could supplant all the terms of an individual contract of employment.

93    I conclude that Qube Ports has not made good Ground 1(b)(i).

Ground 1(b)(ii): Admissibility of the statements of the Hobart Ports’ Employees

94    By this limb of Ground 1(b), Qube Ports contended that the Industrial Magistrate should have found that the evidence of the “oral representations” made by the senior employees at Hobarts Ports in March and April 2000 was inadmissible because it was conclusory, amounted to hearsay or should have otherwise been excluded, or should have been given little weight.

95    The evidence in chief of all witnesses at the trial was contained in affidavits. Counsel for Qube Ports objected to the admissibility of portions of the affidavits of the MUA witnesses. The grounds of his objection appear to have been relevance, hearsay and conclusory form. Counsel raised the issue in respect of the first witness called by the MUA, Mr J Newlyn, the Secretary of the South Australian Branch of the MUA since 1 July 2003. Counsel prefaced his objection with an acknowledgement that the IRCSA was not bound by the rules of evidence. He told the Industrial Magistrate that his objections could be treated as going to the question of the weight to be given to the affidavits and, accordingly, a matter to be addressed in the closing submissions. The Magistrate acceded to that suggestion, and the same course was adopted in relation to each of the other MUA witnesses.

96    In the closing submissions, counsel for Qube Ports submitted that the evidence of the statements of Mr Badcock and Ms Adams at the meetings in March 2000 was “classic hearsay” because it comprised “out-of-court representation[s]” by persons who had not given evidence in the trial.

97    In respect of this objection, the Industrial Magistrate said:

[32]    In my opinion this is not hearsay because the HR manager and the General Manager were relevant senior managers authorised to speak on behalf of the employer and to convey its intention. They both participated in various meetings with the MUA about it acquiring the contract to perform stevedoring services at Port Pirie in lieu of P&O. I infer they are the senior representatives of the company referred to in the letter of Mr Drinkwater of 24 March regarding the meeting of 22 March. On this basis I find they both had ostensible and actual authority. As they were speaking for Hobart Ports to convey an authorised expression of the company’s position, their out-of-court statements to Mr Newlyn and Mr Jenkins are admissible to prove the company’s state of mind and intentions.

(Citations omitted)

In support of the proposition in the last sentence in [32], the Magistrate cited Pollitt v The Queen (1992) 174 CLR 558. That case concerned circumstances in which proof of an out of court statement by another may be admissible to prove the state of mind of the maker of the statement. The Magistrate then considered the position on the basis that he was wrong in that conclusion:

[33]    In the event I am wrong and the statements of Ms Adams and Mr Badcock are strictly hearsay, I have determined to admit them into evidence in the interests of justice, not being bound by the strict rules of evidence. Any risk that their statements did not accurately reflect the views of Hobart Ports is outweighed by the reliability and probative value of the impugned evidence. The evidence is probative of the existence of the initial oral offer of a significant term of the employment contract.

98    It is apparent that the Industrial Magistrate considered that he was not bound by “the strict rules of evidence” by reason of s 154 of the Fair Work Act 1994 (SA). It provided:

154 – General principles affecting exercise of jurisdiction

(1)    In exercising its jurisdiction, the Court or the Commission –

(a)    is governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts; and

(b)    is not bound by evidentiary rules and practices but may, subject to subsection (2), inform itself as it thinks appropriate.

(2)    The Court and the Commission must observe the rules of natural justice.

Section 154 was a statutory direction as to the manner in which the IRCSA was to exercise its jurisdiction: Griggs v Noris Group of Companies [2006] SASC 23; (2006) 94 SASR 126 at [36].

99    On the hearing of the appeal, counsel for Qube Ports submitted that his concession at trial that the Industrial Magistrate was not bound by the rules of evidence had been wrong because it overlooked s 551 of the FW Act. That section mandates the application of the rules of evidence applicable to civil proceedings in relation to proceedings for the imposition of a penalty:

551 Civil evidence and procedure rules for proceedings relating to civil remedy provisions

A court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.

The provisions which the MUA alleged Qube Ports had breached were civil remedy provisions.

100    It is convenient to defer consideration of the MUA’s submission based on Coulton v Holcombe (1986) 162 CLR 1 at 8 that Qube Ports should not be permitted to agitate on appeal an issue which it had expressly conceded at first instance.

101    Counsel for the MUA submitted that s 551 is not to be understood as imposing “a universal standard for evidence on all the courts which hear civil remedy matters”. Instead, the effect of s 551 was only to require a court to apply its civil procedure and rules of evidence rather than its criminal procedure and rules of evidence.

102    The competing contentions give rise to a number of issues, not all of which were addressed by the parties.

103    Section 551 had a counterpart in s 729 of the WR Act. Section 729 provided:

A court hearing a proceeding under a civil remedy provision must apply the rules of evidence and procedure for civil matters.

104    Section 729 was inserted into the WR Act by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). That Act increased significantly the circumstances in which penalties could be imposed. It seems that s 729 was inserted to give effect to Recommendation 3-1 of the Australian Law Reform Commission contained in Principled Regulation: Federal Civil and Administrative Penalties in Australia (ALRC Report 95, 2002), namely:

The Regulatory Contraventions Statute should provide that, in the absence of any clear, express statutory statement to the contrary, the procedures for the imposition of a civil penalty be in accordance with the usual practice and procedure of the court in civil cases or in accordance with the directions of the court or a judge.

105    It is apparent that s 551 does require the rules of evidence and procedure for civil matters to be applied by courts hearing proceedings relating to contraventions of a civil remedy provision. It is also apparent that s 551 must contemplate that the rules of evidence and civil procedure will vary from court to court. That is because s 546(1) of the FW Act vests jurisdiction to order the payment of pecuniary penalties in eligible State and Territory courts as well as in the Federal Court and the Federal Circuit Court. When the latter two courts are exercising the jurisdiction, the Evidence Act 1995 (Cth) applies. By reason of s 4 of the Evidence Act 1995 and the definition of “federal court” in the dictionary, the Evidence Act does not apply to proceedings in State and Territory courts. Section 79(1) of the Judiciary Act 1903 (Cth) identifies the evidentiary and procedural regime to be applied by a State or Territory court when exercising federal jurisdiction: Rizeq v Western Australia [2017] HCA 23; (2017) 344 ALR 421 at [42], [58]-[63]. It provides:

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

106    This means that in those States and Territories which have a counterpart to the Evidence Act 1995, it is that counterpart which will supply the evidentiary rules to be applied. South Australia has not enacted a counterpart to the Evidence Act 1995. The laws relating to evidence in South Australia are, subject to modification by a particular statute, found in the common law and in the Evidence Act 1929 (SA).

107    In relation to procedure, each of the courts vested with jurisdiction by s 546(1) has its own procedural regime. Hence, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298, the Full Court said, at [55]:

The effect of s 551 of the FW Act is that BHP was obliged to comply with this Court’s pleading rules. At the time when the proceeding was instituted these were to be found in O 11 of the Federal Court Rules 1979 (Cth).

(Emphasis added)

108    Prima facie, s 154 of the Fair Work Act 1994 (SA) is a law of the State of South Australia relating to procedure and evidence and, accordingly, was to be applied by the Industrial Magistrate in this case. However, account had to be taken of the stipulation in s 79(1) that the laws relating to evidence and procedure of a State or Territory are binding “except as otherwise provided by … the laws of the Commonwealth”. Is s 551 to be regarded as such a law? Can a provision that a court is not bound by the rules of evidence but may, subject to compliance with the rules of natural justice, inform itself as it thinks appropriate, be regarded as a rule of evidence for the purpose of s 551? The parties’ submissions did not address these issues. That suggests that it would be undesirable for the Court presently to be expressing concluded views about them.

109    The circumstance that the Industrial Magistrate considered the position on the basis that the rules of evidence did apply, as well as on the basis that they did not apply, makes it unnecessary to do so. The Magistrate held that the evidence of the statements of Mr Badcock and Ms Adams did not infringe the hearsay rule. In my opinion, he was correct to do so.

110    The common law rule against hearsay operates (relevantly) to preclude a witness giving evidence of a statement made by another as proof of the fact asserted. The classic statement of this aspect of the rule is that given by the Privy Council in Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

111    In the present case, the MUA did not adduce the evidence of the statements of Mr Badcock and of Ms Adams for the purpose of proving the truth of the matters they asserted, but instead to prove as a fact what they had said. It was by proving what each had said and done that the MUA sought to establish that Hobart Ports had agreed, as a term of the individual contracts of the Employees, that their previous industry service would be recognised in the event of redundancy. That assessment of Hobart Ports’ words and actions was to be made in accordance with the objective theory of contract, that is, by consideration of what a reasonable person in the circumstances would have understood Mr Badcock and Ms Adams to be conveying: Taylor v Johnson (1983) 151 CLR 422 at 429; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35, (2004) 218 CLR 451 at [22]; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8, (2002) 209 CLR 95 at [25]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, (2004) 219 CLR 165 at [38]-[41].

112    Accordingly, the MUA was entitled to lead evidence of what had been said and done in the conversations in order to prove the contractual terms which it alleged. No infringement of the hearsay rule was involved in it doing so. The result is that the Industrial Magistrate’s ruling with respect to the objection based on hearsay was correct, although not for the reason he gave.

113    This makes it unnecessary to consider whether Qube Ports required leave to advance its submission concerning the effect of s 551.

114    Qube Ports did not develop before this Court its submission concerning the conclusory quality of many of the statements in the witnesses’ affidavits. Counsel’s submission was only that “the evidence ought to have been given no weight because [it] was conclusory and self-serving”.

115    It is true that much of the content of the affidavits containing the evidence in chief was conclusionary in form and made liberal use of indirect speech.

116    Given that the witnesses were giving evidence of conversations which had occurred approximately 16 years earlier, it was probably unrealistic to expect that any would have been able to give an account of them using direct speech. However, that circumstance did not mean that no evidence could be given of the conversations. In Hamilton-Smith v George [2006] FCA 1551; (2006) 247 FCR 238, Besanko J said at [83]:

In my opinion, there is a rule of practice at common law that requires a witness to recount the actual words used in a conversation if he or she is able to do that: … If the witness is unable to recall the actual words used, he or she can give evidence of the substance or effect of what was said. …

(Citations omitted)

117    In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688; (2001) 53 NSWLR 31, Barrett J said at [8]:

There is no rule of law, whether under the Evidence Act or otherwise, which makes inadmissible evidence of a conversation given in indirect speech, but there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form.

See also Cross on Evidence, (11th Australian Edition) at [17145] and Odgers’ Uniform Evidence Law, (12th Edition) at [EA.26.270], [EA.55.540].

118    As counsel for Qube Ports recognised, the conclusory form in which the affidavits were expressed went to the weight to be attributed to them. There is no reason to suppose that the Magistrate overlooked that. This was not a case in which it was obvious that the evidence in chief should not have been given any weight at all, by reason of the form in which it was expressed.

119    In my view, it was open to the Magistrate to regard the statements of Mr Badcock and of Ms Adams as intended to have contractual significance. That is to say, their statements constituted either an acceptance of the claim made on behalf of the Employees by the MUA that previous industry service would be recognised in the event of redundancy or, alternatively, an offer of employment by Hobart Ports on terms which included an oral term that previous industry service would be recognised, which offer was accepted by the Employees by (at least) 3 April 2000.

120    Ground 1(b)(ii) fails.

Ground 1(a): Had Qube Ports agreed to recognise the Employees’ previous industrial service?

121    Qube Ports submitted that the Industrial Magistrate should have found that, on the proper interpretation of cl 18.4(d)(i) of the 2011 Enterprise Agreement, there was no previous industry service, prior to 3 April 2000, which had been “agreed” between it and the Employees. This sub-ground focused on the second event on which the MUA had relied. It requires attention to the construction of cl 18.4(d)(i) and of the letters of 16 April 2008.

122    At the commencement of these reasons, I set out in full the terms of cl 18.4(d) of the 2011 Enterprise Agreement. It is also appropriate to note the full terms of cl 18.3, to which the terms elaborated in cl 18.4 refer:

18.3    Redundancy Payments

a)    Redundancy payments shall be calculated on the basis of three (3) weeks pay for each completed year of continuous service, or part thereof, to a maximum payment, exclusive of notice [in] lieu of notice, of 52 weeks’ pay.

b)    Permanent, VSE & GWE employees employed from 1 July 2012 will be entitled to redundancy calculated on the basis of Three (3) weeks’ pay for each completed year of continuous service to a maximum payment including payment in lieu of notice, of 52 weeks’ pay.

c)    Permanent, VSE & GWE employees employed as at 1 July 2012 will be entitled to redundancy calculated on the basis of Three (3) weeks’ pay for each completed year of continuous service to a maximum payment including payment in lieu of notice, of 70 weeks’ pay.

123    Neither of the Employees was a “VSE” or a “GWE”. It was common ground that each was a permanent employee to whom cl 18.3(c) applied. As previously noted, it was also common ground that each was an FSE for the purposes of cl 18.4(d)(i).

124    It is pertinent to note at the outset that the 2011 Enterprise Agreement related only to employees of Qube Ports at Port Pirie.

125    Qube Ports submitted that cl 18.4(d)(i) referred to two forms of service of (relevantly) the permanent FSEs who were in employment at 1 March 2006: prior continuous service with it as a Guaranteed Wage Employee (GWE) or as a permanent employee; and previous industry service which it had agreed to be included. It submitted that the Industrial Magistrate had been wrong to conclude that its letters of 16 April 2008 contained such an agreement and, because this was the only evidence of such an agreement upon which the MUA relied, that its claim should for this reason alone have failed.

126    There are some matters to note about cl 18.4(d)(i). It commences by indicating that its subject is the FSEs and Variable Salary Employees (VSEs) who were employed as “permanent employees” as at 1 March 2006. Neither the evidence at trial nor the submissions indicated the significance of the specification of that date. It appears that it may well have resulted from the unthinking use of a clause in another enterprise agreement to which the MUA and Qube Ports were parties, namely, the P&O Automotive & General Stevedoring Pty Ltd and Maritime Union of Australia Union Collective Agreement (South Australian Outports) 2008 (the Outports Agreement). It was common ground that the Outports Agreement did not have any application to Port Pirie. Plainly, Qube Ports could not itself have employed FSEs and VSEs as permanent employees at 1 March 2006 because, as indicated earlier, it was established only in 2008 as the vehicle by which the TasPorts – POAGS joint venture was to be conducted. This suggests that the clause is to be understood as indicating that service by the defined employees with others would be regarded as prior continuous service with Qube Ports and, further, service as a GWE or a permanent employee. It is possible that the first part of the clause is to be understood as though it read “service with the Company shall be regarded as all prior continuous service as a GWE or Permanent Employee …”.

127    There is also ambiguity in the description of the “industry service” contemplated by the parenthetical clause. It is apparent that this clause was intended to extend the services which may be included in the computation of continuous service. Necessarily, the earlier service had to have been with an entity other than Qube Ports. That being so, it seems appropriate to understand the parenthetical clause to be referring to previous industry service, that is, service in the stevedoring industry with a different employer which occurred before the service to which the first limb of cl 18.4(d)(i) refers, providing that there had been agreement for the inclusion of that service. On a strict construction of the parenthetical clause, the previous industry service is not necessarily service which was continuous with that to which the first limb of cl 18.4(d)(i) refers, but it is reasonable to suppose that, in practice, agreement would be given only in respect of previous industry service which was so continuous.

128    Counsel for Qube Ports submitted that the parenthetical clause should be understood as referring only to an agreement made between 2008 (when the previously applicable certified agreement had been made) and 2011. As I understood it, this was because the enterprise agreement which replaced the 2004 Enterprise Agreement (the 2008 Enterprise Agreement) contained in its cl 5.3 a counterpart of cl 5.5 in the 2004 Enterprise Agreement. That had, so Qube Ports submitted, “wiped the slate clean” by negating any individual agreements which antedated it. For the same reasons as given in relation to cl 5.5 of the 2004 Enterprise Agreement, that submission cannot be accepted. Further, cl 18.4(d)(i) does not include any temporal limitation. It seems to contemplate an agreement made at any time with respect to the recognition of prior industrial service.

129    One thing is apparent. Both limbs of cl 18.4(d)(i) contemplated that service before an employee’s commencement of employment with Qube Ports may be included in the computation of continuous service for the purpose of cl 18.3(3)(c). There are other indications to the same effect. The very fact that the parties agreed on a cap of 70 weeks’ redundancy pay (66 weeks if allowance is made for four weeks’ pay in lieu of notice) is one. An employee could have such an entitlement only after 22 years of continuous service, a period well out of reach, during the currency of the 2011 Enterprise Agreement, of any employee who commenced with Qube Ports on 16 April 2008 or for that matter, with Hobart Ports on 3 April 2000. Neither the evidence nor the submissions indicated any persons, other than the Employees, to whom such a cap could be applicable.

130    Qube Ports contended that a number of matters separately and in combination indicated that the letters of 16 April 2008 should not have been held by the Industrial Magistrate to constitute the requisite agreement for the purposes of cl 18.4(d)(i):

(1)    clause 18.4(d)(i) contemplated a specific agreement for the recognition of previous industry service. The statement in the letters of 16 April 2008 that CPOL offered employment “in the same position and on terms and conditions that are generally no less favourable than those to which you are entitled as an employee of TasPorts” could not be regarded as encompassing an agreement of that kind: at best, the asserted agreement was indirect and it should not be readily supposed that Qube Ports intended the statement to encompass a term or condition contained in undocumented oral agreement made with an unrelated entity some eight years previously;

(2)    the letters of 16 April 2008 had addressed the topic of continuous service, but only with respect to annual leave, personal leave and long service leave. Counsel submitted that in this circumstance, the maxim generalia specialibus non derogant (when in conflict, provisions of general application do not override specific provisions) is applicable, referring to Charben Haulage Pty Ltd v Environmental & Earth Sciences Pty Ltd [2004] FCA 403 at [171]; and

(3)    the Industrial Magistrate had failed, when construing the letters, to have regard to two features of the surrounding circumstances, namely, the 2000 Redundancy Agreement and the 2004 Enterprise Agreement. The latter part of this contention was the subject of Ground 3(b) in the amended notice of appeal, but is convenient to address it in relation to Qube Ports’ Ground 1.

131    In relation to the first of these matters, it is to be noted that cl 18.4(d)(i) does not contain any specification as to the manner and form of the agreement. Given its context, it seems appropriate to regard the clause as contemplating agreements of diverse kinds, for example, individual and collective agreements, agreements which may encompass more than one subject matter, and agreements with persons other than employees or their union as, for example, an agreement with the entity which had transmitted to Qube Ports the business in which the employees were employed. It would be inappropriate for the Court to read into cl 18.4(d)(i) limitations which the parties themselves did not choose to incorporate, in particular, to read in the word “specifically” before the word “agreed”. In my opinion, there is no reason to construe cl 18.4(d)(i) as confined to agreements which address specifically (as opposed to indirectly) the topic of recognition of previous industrial service.

132    The second and third matters on which Qube Ports relied concerned the construction of the letters of 16 April 2008. The terms of the offers in those letters are to be construed objectively, that is, by consideration of the meaning which they conveyed to a reasonable person in the position of the Employees in April 2008.

133    One matter can be put aside immediately. That is the 2000 Redundancy Agreement. Given that it had been superseded by the 2004 Enterprise Agreement, it could not reasonably be regarded as part of the factual matrix in which Qube Ports’ offers were to be understood.

134    The position with respect to the 2004 Enterprise Agreement is similar, although for a different reason. The letters of 16 April 2008 told the Employees that the 2004 Enterprise Agreement would continue to apply to their employment for a maximum period of one year after the transmission of business to CPOL. Qube Ports’ submission, as I understood it, was that this meant that the content of cll 5.1 and 5.5 of the 2004 Enterprise Agreement was relevant to an understanding of what had been conveyed, objectively, by the terms of its offers. In particular, it meant that, considered reasonably, the Employees should have understood that any terms and conditions applicable to their employment before the commencement of the 2004 Enterprise Agreement had been superseded and, accordingly, not within the terms of the offer made in the second paragraph of the letter. Given that I would reject Qube Ports’ submissions as to the effect of cl 5.5 of the 2004 Enterprise Agreement, this submission must fail.

135    The expression “on terms and conditions that are generally no less favourable than those to which you are entitled as an employee of TasPorts” involves some imprecision. It seemed to contemplate that the terms and conditions of employment with Qube Ports may not match exactly the terms and conditions of the Employees’ employment with TasPorts but would have a close equivalence. It may be pertinent that the term “no less favourable” appeared twice in cl 32 of the 2004 Enterprise Agreement.

[32.2]    Where a business or part of a business of the Hobart Ports Corporation Pty Ltd (the transmitter) is transmitted from Hobart Ports to another employer (transmittee) and the employee who at the time of such transmission was an employee of Hobart Ports, elects to become an employee of the transmittee, Hobart Ports will ensure that the terms and conditions of employment paid by the transmittee are no less favourable than those applied to the employment with Hobart Ports Corporation. …

…

[32.4]    Hobart Ports Corporation shall include as part of tender specifications, and within the contractual arrangements with the transmittee, the obligation for the transmittee to apply terms and conditions of employment, including the employer contribution to superannuation, that are no less favourable than those which applied to each transmitted employee by Hobart Ports immediately prior to the transmission of business occurring.

(Emphasis added)

136    The evidence did not disclose the terms of the agreement which Qube Ports had made with TasPorts in 2008. However, as Qube Ports referred in para 4 of the letter of 16 April 2008 to the “transmission” of the business from TasPorts to CPOL, it may be that it drafted the offers so as to recognise the obligations which it had accepted to TasPorts under cll 32.2 and 32.4. Those clauses concerned the terms and conditions of employment of the Employees generally, and not just the terms and conditions under the 2004 Enterprise Agreement itself and/or the Employees’ entitlements with respect to annual leave, personal leave and long service leave.

137    Despite the imprecision, the letters of 16 April 2008 should be construed having regard to all of their terms. They should not be construed as though they contained (relevantly) only paras 4 and 5. Effect has also to be given to para 2.

138    In my view, Qube Ports’ letters of 16 April 2008 were to be understood, objectively, as conveying the following. First, by para 2, Qube Ports offered each of the Employees employment. It expressed the offer in general terms, by telling each employee that his employment would be in the same position he held at that time and that it would be on terms and conditions generally no less favourable to him than those to which he was presently entitled as an employee of TasPorts. Paragraphs 4 and 5 the letter elaborated that offer by identifying particular terms and conditions which would apply: para 4 by telling the Employees that their employment would continue to be governed by (relevantly) the same certified agreement applicable to their employment by TasPorts; and para 5 addressed the Employees’ entitlements to annual leave, personal leave and long service leave. Paragraph 5 can be understood as identifying three of the terms and conditions which would be no less favourable to the Employees than the terms applicable to their employment by TasPorts.

139    In my opinion, a reasonable reader would not have understood paras 4 and 5 as exhausting the extent to which the offered terms and conditions would be no less favourable than those applicable to their employment by TasPorts. Put slightly differently, I do not consider that a reasonable reader of the letters would have understood the letters as conveying that the offered employment would be on terms generally no less favourable to them than their existing terms, but only in the respects identified in paras 4 and 5. Were it otherwise, para 2 would have been unnecessary.

140    The matter may be tested as follows. Suppose that there had been an express written agreement between Hobart Ports and the Employees that their previous industry service would be recognised in the event of redundancy. In that circumstance, I doubt that it could reasonably be concluded that the terms of the 16 April 2008 letters did not include that term, and that is so whether or not Qube Ports had been aware at the time of the offer of the express agreement.

141    Contrary to the submissions of Qube Ports, I do not consider that there is any inconsistency between paras 2 and 5 which attracts the application of the maximum generalia specialibus non derogant. Paragraph 5 is instead one particular of the way by which Qube Ports proposed to give effect to the more generally expressed offer.

142    I mention one further matter. Neither the evidence nor the submissions indicated why Qube Ports regarded itself as bound to recognise the Employees’ service with Hobart Ports from 3 April 2000. Perhaps it took the view that that service was within the first limb of cl 18.4(d)(i) pursuant to a construction of the clause along the lines outlined earlier. If so, it did not indicate the construction of the clause upon which it had proceeded, let alone indicate the basis on which it had distinguished employment before and after 3 April 2000. Alternatively, Qube Ports may have proceeded on the basis that there had been an agreement of the kind to which the parenthetical clause referred. Again, if so, the basis for a distinction between employment before and after 3 April 2000 was not shown. However, it is not necessary to pursue these considerations because the MUA did not submit that Hobart Ports’ conduct in recognising the Employees’ service from 3 April 2000 constituted a form of admission on which it could rely: cf Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216 at 237; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9,251 at 9,255; County Securities v Challenger Group at [162]-[165].

143    For these reasons, I consider that Ground 1 in the amended notice of appeal fails.

Ground 2: Issue of agency with respect to Mr Pearce

144    By Ground 2, Qube Ports challenged the Industrial Magistrate’s finding that Hobart Ports had agreed with Mr Pearce to recognise his previous industry service. Its contention was based on the fact that Mr Pearce had not accompanied Mr R Newlyn or Mr Jenkins to the meeting at which Mr Badcock made his statements concerning the recognition of previous industry service and that, while Mr Pearce had had a one on one interview with Ms Adams in late March 2000, he did not claim that she had made any statement concerning recognition of previous industry service to him.

145    Mr Pearce’s evidence was that, before he spoke to Ms Adams, Mr R Newlyn had told him that Hobart Ports had agreed to recognise his service with P&O Ports, as it would in relation to the other transferring workers. It is apparent that it was in his interview with Ms Adams that Mr Pearce accepted Hobart Ports’ offer of employment.

146    The Industrial Magistrate found that Mr R Newlyn had been Mr Pearce’s agent in relation to the negotiation of the offer of employment:

[47]    In my opinion Mr Newlyn did act as agent for both gentlemen, in any event. There were only six affected members of the union who could benefit from the term, and their identity was well known. The single issue was straight forward. It did not suffer from any vagary as to timing or scope. In the presence of Hobart Ports’ General Manager, Mr Newlyn reported to the members and received their approval to accept the four conditions and convey the offer’s acceptance. The process was an unambiguous negotiation about a common term of six proposed contracts of employment. The valuable legal consideration was Mr Jenkins, Mr Pearce and the other four permanent workers accepting the job offer. I conclude that both Mr Jenkins and Mr Pearce were accurately and appropriately told of Hobart Ports’ offer as was intended by Hobart Ports, and both conveyed their acceptance both through Mr Newlyn and to the present Mr Badcock, as well as directly in Mr Jenkins’ case. The offer and acceptance were also clearly made in contemplation of the creation of legal relations in the form of contracts of employment.

147    The Magistrate’s finding in this passage that the group of employees to whom Mr R Newlyn had reported (in the presence of Mr Badcock) Hobart Ports’ commitment concerning recognition of previous industry service had included Mr Pearce is not supported by the evidence. Nor is the finding that Mr Pearce had communicated his acceptance of Hobart Ports’ offer through Mr R Newlyn. Both Mr R Newlyn and Mr Jenkins said that there had been a meeting with a group of employees, but Mr Pearce did not claim to have been present at that meeting. He said that Mr R Newlyn had spoken to him, in a “one on one” conversation, before his interview with Ms Adams. There was no suggestion that he had left it to Mr R Newlyn to report his acceptance of Hobart Ports’ offer. Mr Pearce said that he had accepted the offer of employment only because Hobart Ports had agreed to recognise his service with P&O Ports.

148    Counsel for Qube Ports submitted that Mr R Newlyn could not be regarded as having been the agent of Mr Pearce for the purpose of the negotiation of Mr Pearce’s contract of employment. He relied on the following matters:

(1)    Mr Pearce acknowledged that he had not expressly appointed either Mr R Newlyn or Mr Jenkins as his agent in relation to his entry into an employment contract with Hobart Ports; and

(2)    neither Mr R Newlyn nor Mr Jenkins could, as an agent of Mr Pearce, enter into an employment contract binding on him, citing Ryan v Textile Clothing & Footwear Union Australia [1996] 2 VR 235.

149    These contentions of Qube Ports may well be correct, but having regard to the underlying facts found by the Industrial Magistrate, they do not have the effect for which it contends. Counsel for Qube Ports elicited from Mr R Newlyn at trial that he had attended the meeting with the Hobart Ports’ personnel in his capacity as State Secretary of the MUA, and that he had done so representing the collective interests of the MUA membership. As it happens, these concerned the interests of six employees only. Hobart Ports must have intended that Mr R Newlyn and Mr Jenkins would convey the outcome of the meeting to the other employees. This is confirmed, amongst other things, by the fact that Mr Badcock attended the meeting at which Mr R Newlyn informed the employees of Hobart Ports’ commitment.

150    To my mind, in these circumstances the question of whether Mr R Newlyn was an agent of Mr Pearce is immaterial. He was the intermediary by which Mr Badcock’s statement was communicated to Mr Pearce. He did not have to be appointed by Mr Pearce as his agent for that purpose. Mr Pearce’s evidence, as noted, was that he relied on that statement when he communicated personally his acceptance of the offer of employment.

151    The circumstances of this case are very different from those considered by the Court of Appeal of the Supreme Court of Victoria in Ryan. That case concerned the different question of whether a union negotiating a collective agreement does so as agent of its members.

152    In my opinion, Ground 2 fails.

Conclusion

153    For the reasons given above, I consider that all of Qube Ports’ grounds of appeal fail. That makes it unnecessary to consider the MUA’s notice of contention.

154    The appeal should be dismissed.

Associate:

Dated:    14 May 2018

REASONS FOR JUDGMENT

BROMWICH J:

155    I agree with the reasons of White J and the orders his Honour proposes.

Associate:

Dated:    14 May 2018