2026 WAIRC 00802
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00802



CORAM
:
INDUSTRIAL MAGISTRATE C. TSANG



HEARD
:
MONDAY, 25 MAY 2026



DELIVERED
:
TUESDAY, 18 AUGUST 2026



FILE NO.
:
M 105 OF 2025



BETWEEN
:
CFMEU


CLAIMANT





AND





PROGRAMMED PROPERTY SERVICES PTY LTD (ACN 106 015 632)


RESPONDENT

CatchWords : INDUSTRIAL LAW – Claim alleging contravention of s 50 of the Fair Work Act 2009 (Cth) arising from the employer’s construction of the wage and allowance clauses providing for increases to be calculated at the higher of 2.5% or ‘Perth CPI for the relevant quarter’ – Whether ‘Perth CPI for the relevant quarter’ means the annual or quarterly movement in the Perth CPI – Principles of construction of enterprise agreements
Legislation : Fair Work Act 2009 (Cth), s 50, s 217, s 285, s 545(3), s 546(1), s 546(3), s 547
Instrument : Programmed Property Services Limited (Painting WA) Enterprise Agreement 2021
Cases referred
to in reasons : Australian Postal Commission v Melbourne City Council [2005] VSCA 295
Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107
Australian Workers’ Union, The v Visy Glass Operations (Australia) Pty Ltd T/A Visy Glass [2023] FWC 1379
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Opal Packaging Australia Pty Ltd [2026] FCAFC 54
Cayford v Let Danny Do It Pty Ltd [2021] VSC 707
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy Network Management Pty Ltd [2025] FCA 1202
Contract Resources Pty Ltd T/A Contract Resources [2022] FWCA 3355
James Cook University v Ridd [2020] FCAFC 123
Jones v Dunkel (1959) 101 CLR 298
Kucks v CSR Ltd [1996] IRCA 166
OS ACPM Pty Ltd v Mining and Energy Union [2026] FCAFC 59
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73
Sheehan v Thiess Pty Ltd [2019] FCA 1762
Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2023] FCAFC 66
Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84
Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873
WorkPac Pty Ltd v Skene [2018] FCAFC 131
Result : Originating Claim dismissed
Representation:
Claimant : Mr A Mackenzie (of counsel) and with him Ms L Fraser Hardy (of counsel)
Respondent : Mr L Howard (of counsel) and with him Mr D Farrant (of counsel)


REASONS FOR DECISION
1 On 25 August 2025, the CFMEU filed an Originating Claim alleging that the respondent (Programmed) contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay Roy Allan, Brett Bates, Ian Todd, Cameron Allan, Gary Goodwin and Gary MacFarlane the amounts required under the Programmed Property Services Limited (Painting WA) Enterprise Agreement 2021 (Agreement) in respect of ordinary rates and rostered days off, travel allowance, personal leave and annual leave, including annual leave loading.
2 The CFMEU seeks declaratory relief in respect of the alleged contravention and orders under s 545(3) of the FW Act requiring Programmed to pay the alleged underpayments to the named employees, interest under s 547, and pecuniary penalties to the CFMEU under ss 546(1) and (3).
3 Whether Programmed has contravened the FW Act turns upon the proper construction of the words ‘Perth CPI for the relevant quarter’ in Appendix A in relation to wages, and in Appendix C in relation to allowances, of the Agreement: (emphasis added)
APPENDIX A – WAGE RATES
…
Wages will increase by the following:
· The 1st wage increase, of 2%, will be effective from the 1st full pay period on or after 1 April 2021.
· The 2nd wage increase, of 2.5% or Perth CPI for the relevant quarter (whichever higher), will be effective the 1st full pay period on or after 30th March 2022.
· The 3rd wage increase, of 2.5% or Perth CPI for the relevant quarter (whichever higher), will be effective the 1st full pay period on or after 30th March 2023.
The Perth consumer price index percentage will be taken from the relevant quarter before the nominated increase.
APPENDIX C – ALLOWANCES
…
Allowances will increase by the following:
· The 1st wage increase, of 2%, will be effective from the 1st full pay period on or after 1 April 2021.
· The 2nd wage increase, of 2.5% or Perth CPI for the relevant quarter (whichever higher), will be effective the 1st full pay period on or after 30th March 2022.
· The 3rd wage increase, of 2.5% or Perth CPI for the relevant quarter (whichever higher), will be effective the 1st full pay period on or after 30th March 2023.
4 The parties agree that the second and third increases under Appendices A and C fell due on the first full pay period on or after 30 March 2022 and 30 March 2023, and that the quarter from which the CPI figure is to be taken is, in each case, the December quarter preceding the nominated increase. The parties also agree on the figures produced by each construction. What divides them is whether ‘Perth CPI for the relevant quarter’ means:
(a) The percentage change in the Perth CPI over the 12 months ending in the relevant quarter, i.e. annual CPI, which is the CFMEU’s construction; or
(b) The percentage change in the Perth CPI over the relevant quarter, i.e. quarterly CPI, which is Programmed’s construction.
Legal principles
5 The principles for the interpretation of an enterprise agreement have been laid down by successive Full Courts of the Federal Court of Australia.
6 In WorkPac Pty Ltd v Skene [2018] FCAFC 131 (Skene) [197] and [202], Tracey, Bromberg and Rangiah JJ said:
197 The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation ‘turns on the language of the particular agreement, understood in the light of its industrial context and purpose’: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing [Geo] A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 [(Geo)] at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 [(Kucks)] at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [(Woolworths)] at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
…
202 Where a term is undefined, unless there is contrary indication, it ought to be presumed that the draftsperson intended that the term have its ordinary meaning. Despite the broad purposive approach to be taken to the interpretation of industrial agreements, that [canon] of construction remains applicable as a starting point.
7 In James Cook University v Ridd [2020] FCAFC 123 (Ridd) [65], Griffiths and SC Derrington JJ said:
65 The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context ([Holmes] at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 [(Wanneroo)] at [53]; [Skene] at [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach – the framers of such documents were likely to be of a ‘practical bent of mind’ ([Kucks] at 184; [Woolworths] at [16]; [Skene] at [197]). The interpretation ‘turns upon the language of the particular agreement, understood in the light of its industrial context and purpose’ ([Amcor] at [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed ([Wanneroo] at [53]). It may extend to ‘… the entire document of which it is a part, or to other documents with which there is an association’ (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 [(Hercus)] at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 178).
(iv) Context may include ‘… ideas that gave rise to an expression in a document from which it has been taken’ ([Hercus] at 518).
(v) Recourse may be had to the history of a particular clause ‘Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form …’ ([Hercus] at 518).
(vi) A generous construction is preferred over a strictly literal approach ([Geo] at 503-504; [Wanneroo] at [57]), but ‘Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties’ ([Holmes] at 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry ([Holmes] at 378-379; [Skene] at [197]).
8 In Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2023] FCAFC 66 (Target) [8]–[9] and [54]–[56], Bromberg J said:
8 The applicable principles for construing an enterprise agreement were largely not in dispute. The relevant principles were set out by the Full Court in [Skene] at [197] …
9 These principles have been cited with approval by the Full Court of this Court on numerous occasions: see Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union (2021) 308 IR 39 at [32] (Bromberg, Katzmann and O’Callaghan JJ); King v Melbourne Vicentre Swimming Club Inc (2021) 308 IR 171 at [42] (Collier, Katzmann and Jackson JJ); Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd (2018) 282 IR 228 at [8] (Reeves, Bromberg and O’Callaghan JJ). There are other contextual considerations that should be borne in mind when the meaning of an enterprise agreement is being considered which are discussed at [54]-[56].
…
54 Enterprise agreements are made through the collective bargaining processes facilitated by Pt 24 of the FW Act. It must be assumed that the general objective of employees in such a bargaining process is to increase their wages and improve other entitlements. The general objective of the employer is likely to be to reduce employment costs or at least to resist an overall increase in employment costs. For that reason, industrial bargaining will often involve a competition between disparate interests and, in circumstances where the economic power of the bargaining parties is not in equilibrium, the resulting agreement may more likely reflect the inequality of bargaining strength than industrial fairness. Further, an enterprise agreement will likely reflect the compromises made in the bargaining process: see Reeves v MaxiTRANS Australia Pty Ltd (2009) 188 IR 297 at [19] (Ryan J). There will often be horse trading where some new entitlements will be traded for the removal of old entitlements, or some increase or decrease in an existing entitlement will be agreed to on the basis of an offset made elsewhere. Or perhaps one claim will not be pursued in order that another is achieved.
55 It is not to be expected that an industrial bargaining process will always produce an agreement where each entitlement provided will be either objectively reasonable or rational and in harmony with other entitlements, or based on some objectively discernible purpose that may have explained the reason for its adoption in a predecessor agreement made under a different bargaining process: see Shop, Distributive and Allied Employees’ Association v Woolworths Ltd (2006) 151 FCR 513; 152 IR 95 at [26] (Gray ACJ) (SDA v Woolworths). That is not to say that industrial sensibility may not provide a guide to intent, particularly where one construction of a provision would not further the industrial interests of either the employer or its employees. But it is to say that the reality of industrial bargaining must be taken into account in the search for intent. It must be recognised that industrial bargaining is driven far more by competing self-interests and economic power than by an attempt to rationally balance the legitimate interest of both the employer and employees in the way that arbitral awards are made or in the way in which it is assumed legislation like the FW Act is made.
56 Further, even if the exercise of construing an enterprise agreement was far more like construing the meaning of a statute, a mere inconvenience or the mere existence of tension as between entitlements would not displace the ordinary or natural meaning of the text. In the absence of an absurdity, or at least a very seriously anomalous result, a departure from the plain text of the enterprise agreement would not be justified: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321 (Mason and Wilson JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Ganter v Whalland (2001) 54 NSWLR 122 at [38] (Campbell J).
9 In Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73 (Qube) [20]–‍[27], Katzmann, Wheelahan and Raper JJ said, in the context of an application made by Qube under s 217 of the FW Act to vary an enterprise agreement to remove an ambiguity or uncertainty:
20 …[T]he failure of an enterprise agreement to express the common intention of the parties was held by the Full Court in [Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 (Bianco Walling)] to be relevant to the question whether an ambiguity or uncertainty exists…
21 …In consequence, the Full Court [in Bianco Walling] held that in discharge of its functions under s 217(1) in ascertaining whether ambiguity or uncertainty exists, the Commission is permitted to have regard to the common intention of the parties, and to the history of the relevant clause in the enterprise agreement which is the subject of the application for variation.
22 …In Bianco Walling, the Full Court at [69] cited the decision of Watson VP in Re Australian and International Pilots Association [2007] AIRC 303; 162 IR 121 at [17] for the proposition that a significant factor for the Commission’s exercise of discretion under the corresponding provision in s 170MD(6)(a) of the Workplace Relations Act 1996 (Vic) was ‘the objectively ascertained mutual intention of the parties at the time the agreement was made’. The relevance of objectively ascertained mutual intention to the exercise of the power to vary under s 217 of the [FW Act] was more recently examined by Bell DP in Application by Monash [2023] FWC 1148 (Monash) (Bell DP), which was affirmed by the Full Bench on appeal in Monash University v National Tertiary Education Industry Union [2023] FWCFB 181.
23 The Commission has held that common intention may be established in a way that bears similarities to the proof of the actual common intention of parties to a contract for the purposes of the equitable remedy of rectification. However, it has been stated that s 217 is not simply a statutory analogue of rectification: see Bell DP in Monash at [142]. In relation to a nongreenfields agreement, the reasons for which s 217 cannot be a statutory analogue to the equitable remedy of rectification include that an enterprise agreement is not an inter partes agreement like a common law contract. It is an agreement in name only: Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 (Toyota) at [88] (Jessup, Tracey and Perram JJ), cited in Bianco Walling at [60]. An enterprise agreement is an instrument which, under a statutory framework, is negotiated by bargaining representatives, is voted upon by employees whom it will cover, and is then subject to approval by the Commission before it commences operation. Not all employees who will be covered by an enterprise agreement need to assent to its terms. As Bell DP observed in Monash at [148] and [149], it is not necessary that all employees vote, and it will often be unknown how employees voted let alone how employees affected by a particular clause might have voted or considered the clause, and that any requirement to identify a common understanding among a potentially disparate group of employees brings greater challenges to ascertaining the common intention of parties to a common law contract…
24 As to the principles for ascertaining the actual common intention of parties to a contract, they were addressed in Simic v New South Wales Land and Housing Corporation [2016] HCA 47; 260 CLR 85 (Simic). The following passage from the judgment of Kiefel J in Simic at [42] was cited by Bell DP in Monash at [141], and by the Full Bench in the present case at FB [46]:
What is necessary to be shown is the actual intention of each of the parties. This has often been referred to by intermediate appellate courts as the subjective intention of the parties. A court, in determining whether the burden of proof is discharged, may be said to view the evidence of intention objectively, in the sense that it does not merely accept what a party says was in his or her mind, but instead considers and weighs admissible evidence probative of intention. It is in this sense that statements such as that of Hodgson J in Bush v National Australia Bank Ltd [(1992) 35 NSWLR 390 [(Bush)], 406], that common continuing intention ‘must be objectively apparent from the words or actions’ of each party, may be understood.
25 In their joint judgment in Simic, Gageler, Nettle and Gordon JJ stated at [104]:
The issue may be approached by asking – what was the actual or true common intention of the parties? There is no requirement for communication of that common intention by express statement, but it must at least be the parties’ actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party.
(Citations omitted in original)
26 Gageler, Nettle and Gordon JJ also cited [Bush], where at 405–406 Hodgson J approved the following summary of basic principles set out by Tipping J in Westland Savings Bank v Hancock [1987] 2 NZLR 21 at 2930:
1. That, whether there is an antecedent agreement or not, the parties formed and continued to hold a single corresponding intention on the point in question.
2. That such intention continued to exist in the minds of both or all parties right up to the moment of execution of the formal instrument of which rectification is sought.
3. That while there need be no formal communication of the common intention by each party to the other or outward expression of accord, it must be objectively apparent from the words or actions of each party that each party held and continued to hold an intention on the point in question corresponding with the same intention held by each other party.
4. That the document sought to be rectified does not reflect that matching intention but would do so if rectified in the manner requested.
27 There are four points of importance arising from Simic and the cases cited in the joint judgment at [104]. The first is that common intention must exist in the minds of the parties. The second is that there does not need to be any express or outward communication of the common intention. The third is that common intention is concerned with the subjective or actual intention of each party: see Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; 69 NSWLR 603 at [267] (Campbell JA, Mason P agreeing). The fourth is that the objective ascertainment of common intention of each party by reference to their words or actions is concerned with the proof of their actual intention. It is not a search for an objectively attributed common intention: see Simic at [19] (French CJ) and [48] (Kiefel J). Recourse to objectively ascertained facts in proof of actual intention serves to meet the ‘high standard’ to which common intention must be proved in order to displace the terms chosen by the parties in the written instrument: see Simic at [41] (Kiefel J); and Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) [2019] NSWCA 11; 99 NSWLR 317 at [13]–[15] (Leeming JA). The Commission has adopted a similar approach to applications under s 217 based upon establishing a common intention. In Monash, in a passage that was cited with approval by the Full Bench in the present case at FB [47], Bell DP stated at [145]:
‘Common intention’ – however approached – for the purposes of an enterprise agreement is not lightly found.
10 In Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 (UGL) [12]–[16] and [74]–‍[77], Raper, Dowling and Longbottom JJ said:
PRINCIPLES OF CONSTRUCTION
12 The parties agreed that the relevant principles governing the construction of enterprise agreements are uncontroversial and not in dispute. The parties were content to accept the summary provided in [Ridd] at [65] (Griffiths and SC Derrington JJ). These principles as summarised by Ridd are: …
13 UGL also relied on Treasury Wine Estates Vintners Ltd v Pearson [2019] FCAFC 21; 268 FCR 12 [(Treasury Wines)] at [72]-[79] (Rares, Perry and Charlesworth JJ). In that case, the Full Court read down the automatic application of the clause in question because it was qualified by other clauses in the relevant enterprise agreement. The Full Court arrived at this conclusion by considering that the relevant clause should be read as part of the enterprise agreement as a whole, having regard to the industrial and legislative context in which it was made, its industrial and stated purposes, and how reasonable persons in the position of the parties would have understood it (at [75]). The Full Court also considered the incongruous result produced if a literal construction of the relevant clause was adopted (at [79]).
14 For the following reasons, ultimately, when the text is construed within the wider context of the Agreement, UGL’s construction must be preferred.
THE TEXT OF CLAUSE 14.8
15 Consistent with those principles, it is appropriate to return to the words of cl 14.8:
If an employee is required to work in excess of 10 hours per shift, the employee will be paid the flat Shift Over Cycle rate at Appendix 4(b) for those hours. Shift Over Cycle rates do not attract superannuation as they do not form part of the Ordinary Time Earnings. For example, where the rostered hours are 10 hours per day and an employee is required to work an additional one hour then this one hour shall be paid at the Shift Over Cycle Rate.
16 The ordinary meaning of the words in the first sentence are unambiguous: where an employee is required to work in excess of 10 hours per shift they will be paid at the Shift Over Cycle rates. However, as the principles direct and as both parties accepted, those words must be read as a whole and in context.
…
THE PURPOSE OF THE AGREEMENT AND THE RATE
74 In line with the approaches in Ridd and Treasury Wines, it is appropriate to have regard to the purposes of the Agreement and the purpose of the rate itself.
75 The objective of the parties to the Agreement is expressed at cl 2.4. It is ‘to ensure that the UGL operations on Woodside operated facilities remain highly competitive and sustainable, committed to zero harm and focused upon productivity, quality and performance improvement’. Clause 2.3 also provides that:
UGL and the employees are committed to genuinely identifying and implementing measures to improve productivity and efficiency at the site/s during the life of this Agreement, and are committed to continuous improvement programmes.
76 UGL submitted that its construction gives effect to these stated objectives. UGL referenced in oral submissions the objectives of remaining competitive and improving productivity and efficiency contained within those clauses, however, it was not explained how these purposes favour UGL’s construction. The AWU submitted that there is no indication that its construction, which would require Shift Over Cycle rates to be paid to the employees, would in any way stop UGL from being competitive. The AWU otherwise submitted that the objective of flexibility is provided by the broad rights under the Agreement for UGL to change its shift patterns in response to changing circumstances. In our view, the objectives in cll 2.3 and 2.4 do not clearly suggest that either construction should be preferred.
77 As for the purpose of the Shift Over Cycle rates itself, for the textual and contextual reasons identified above, we accept UGL’s submission that the purpose of the rate was to compensate an employee for having to work over ordinary rostered hours. We do not consider that the purpose of the clause is to compensate for the inconvenience of being required to work any shift over 10 hours.
11 In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Opal Packaging Australia Pty Ltd [2026] FCAFC 54 (Opal) [25] and [45]–[50], Raper and Longbottom JJ said, in the context of a claim brought by the AMWU that Opal had breached s 50 of the FW Act by not complying with the dispute resolution clause which provided that ‘work shall continue normally and the status quo remain’:
25 There was no dispute as to the applicable principles of construction which apply to enterprise agreements, as recently enunciated by the Full Court, in [UGL] at [12], concurring with and summarising the principles as contained in the Full Court in [Ridd] at [65], as follows: …
…
45 It was submitted by the AMWU that the Court ought to take into account the historical evolution of the clause. The Court’s attention was drawn to nine predecessor enterprise agreements (with various past entities) that have been created under numerous different industrial statutes, namely the Industrial Relations Act 1988 (Cth) and then the Workplace Relations Act 1996 (Cth) [(WR Act)]. Those predecessor dispute resolution clauses were much less prescriptive. They required that, while the dispute procedures were being followed, ‘work [should] continue normally’ and that no party would be prejudiced as to final settlement by the continuance of work. It was submitted that, by this history combined with similar provisions in the underlying industrial awards (neither of which contained the phrase ‘the status quo remain’), this context points to a ‘deliberate departure’ by the industrial parties from a consideration of the preservation of the undertaking of ‘work’ simpliciter. Similarly, it was submitted that the combined operation of each of the subclauses in cl 16.3 comprised a greater constraint on Opal’s managerial prerogative than would have been the case if the model clause (created by the FWC after the inception of the FW Act) had been adopted. Lastly, it was submitted that account ought be taken of the words in the phrase having an ‘industrially significant meaning themselves’ by reference to industrial decisions, in very different industrial and statutory contexts, from the 1980s and 1990s. It was submitted that these decisions reveal that the term ‘status quo’ is directed to disputes about the interference with managerial prerogative.
46 We are not persuaded that much clarity may be gained from the industrial history nor broader industrial context. In this case it is the text itself which reveals purpose and meaning. However, we do accept, consistent with the AMWU’s submission, that the parties chose to depart from a lessprescriptive clause. We are of the view that, in divining the meaning of the clause, the whole of the clause and the combined effect of each of its contingent parts must be taken into account…
47 Attention was given by both parties, before the primary judge, to three previous decisions of this Court which required it to grapple with the effect of other dispute resolution clauses: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods [2006] FCA 1039; 155 IR 211; [Construction, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020]; and Civil Air Operations Officers’ Association of Australia v Airservices Australia [2021] FCA 1313.
48 Each case concerned differently crafted dispute resolution clauses… Ultimately, the primary judge determined correctly that each decision was ‘of limited assistance’ (at [41]) given the obvious linguistic differences between each clause and adopted the observation of O’Callaghan SDP in United Voice v Transfield Services (Australia) Pty Ltd [2015] FWC 4177 at [18] namely that the interpretation of these provisions is dependent on the way in which they are drafted, the provisions or issues that are in dispute and the particular circumstances of the dispute. We concur with this observation. We can discern no error in the primary judge’s apparent acceptance (at [42]) that there existed an alternate hypothesis postulated by Opal as to what the extrinsic material may reveal about the parties’ intention and this undercut the persuasiveness of the AMWU’s submissions regarding the clause’s history. Regardless, the history of the clause is of limited assistance.
49 However, it is clear that the parties intended, from the evolution of the clause, for the dispute resolution procedure to be more prescriptive than its predecessor instruments. Further, it is clear that each subclause in combination did intend to ensure obligations and protections of some width. The text reveals that Opal intended to give employees additional protections (by way of cl 16.3(c)). The fact that they did more than was in the previous iterations of the Opal Agreement is significant, including by entering the fray on the issue of ‘status quo’ and what is contained in cl 16.3(c).
50 We do not accept that this reading, according to Opal, would be practically absurd. The AMWU accepts, as it is required to, that the relevant state of affairs is limited to that in dispute. Further, as we have found, the status quo does not reach back further than upon the initiation of the dispute. We do not accept that absurdity exists by reason of a potential to impede Opal’s ability to negotiate, primarily at the site level. The text is clear. It appears that the parties chose deliberately to have a clause of this kind, in terms which were more expansive regarding rights than the model clause and previous iterations.
12 In OS ACPM Pty Ltd v Mining and Energy Union [2026] FCAFC 59 (OS ACPM) [27]–[35] and [71], Raper and Shariff JJ said, in the context of a dispute over the true construction of clauses concerning entitlements to public holidays and shift work in the Black Coal Mining Industry Award 2010 and the Black Coal Mining Industry Award 2020:
27 The principles governing the construction of industrial instruments were recently distilled in [UGL] at [12], concurring with and summarising the principles as contained in the Full Court in [Ridd] at [65]:…
28 Although these principles are often cited, care must be exercised to ensure that there is not indiscriminate application of them to all ‘industrial instruments’, without accounting for differences in the nature of those instruments and how they have evolved over time under different statutory regimes regulating Australian industrial and workplace relations. The principles applicable to the interpretation of enterprise agreements made under the FW Act may not neatly apply to modern awards made under the same Act. Care must be taken to have regard to the statutory scheme under which instruments are made. We will return to this issue further below.
29 As will be evident from the disposition below, the parties, but particularly the MEU, sought to aid their interpretation of the disputed clauses by the relevant ‘context’, being the historical evolution of the awards and associated Tribunal (being the former Coal Industry Tribunal), Commission and Full Court decisions said to divine the intent or purpose of the provisions. These submissions appeared to mirror certain of the arguments before, and adopted by, the primary judge, as will be apparent from the above.
30 Whilst it may be accepted that account may be taken of the broader context (as observed by the Full Court in UGL, at points (3), (4) and (5) above), we would note the obvious: First, context is not an end in itself, the language of the instrument remains the start and end point: King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 [(King)] at [123].
31 Secondly, the context needs to be established in fact and account needs to be taken as to what can truly be presumed from that context. As is evident from the primary judge’s reasons, certain presumptions were made as to what constituted the genesis for the disputed provisions, by the identification of certain historical stepping stones on the path to the current relevant iterations of the awards. However, the history does not reveal a complete path and the history does not reveal so clear a bright line as to intention as the MEU urged and the primary judge accepted.
32 Thirdly, within the consideration of context, submissions are made about the ‘intention’ of the ‘framers’ no doubt alluding to that aspect of Madgwick J in [Kucks] at 184. Given an award has a legislative or quasilegislative force in the process of construction, as adverted to by Wheelahan J in King at [122], the search is not for the actual subjective intent of the makers of the instrument, but the process of construction must direct attention to the words that are actually used, citing Zheng v Cai [2009] HCA 52; 239 CLR 446 at [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ); Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25] (French CJ and Hayne J); [Holmes] at 379 (French J).
33 Fourthly, the inquiry is to discern the objective, expressed intention from the text of the instrument in light of context and purpose: [Amcor] at [2] (Gleeson CJ and McHugh J); SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).
34 Fifthly, in this case the ‘intention’ is said to have manifested from the surrounding industrial practices prior to or after the inception of the instrument. Care needs to be taken with respect to both. As to the former, it cannot be presumed merely because of a practice before the inception of an instrument that it was intended, without more (from the text or other extrinsic material) that the instrument sought to cement that practice. As to the latter, as the principles of [sic] associated with post-contractual conduct reveal, caution must be exercised. Different considerations arise when divining ‘intention’ with respect to enterprise agreements (where parties have negotiated and sought approval from the Commission with respect to an agreement). The form of the bargain is not without complexity as recognised in [Toyota] at [88]-[89] and does not sit comfortably with contractual notions given those who are the subject of the instrument may not have voted in favour of it at its inception: See the reasoning of the Full Court in [Qube] at [23]. Therefore, care must be taken when attempting to apply jurisprudence arising in the context of enterprise agreements to industrial awards and vice versa.
35 Sixthly, the derivation of ‘intention’ involves consideration of the particular species of instrument, taking into account how the instrument was created, as divined from the process required under the applicable statute…
…
71 It may be accepted that, where the language of an industrial instrument is ambiguous or susceptible of more than one meaning, evidence of ‘surrounding circumstances’, being a reference to ‘the objective framework of facts’, is admissible to assist in its interpretation: BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 520; 198 ALR 442 at 452–453, cited in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCAFC 149 at [59]. Indeed, even without ambiguity account may be taken of the surrounding context. Those objective facts, including industry practice (the customs and working conditions of the particular industry), may establish a common understanding or intention: Ridd at [65]; Civil Air Operations Officers’ Association of Australia v Airservices Australia [2021] FCA 1030; 309 IR 443 at [64]. The probative force of a mass of evidence may be cumulative such that it is pointless to consider the degree of probability of each item of evidence separately: Qube at [164]. However, as conceded by the MEU, proof of common understanding will not arise merely because a particular clause has a history of consistent application and will depend on the nature and extent of the evidence and indeed, as adverted to above, by reference to the nature of the instrument and the applicable legislative process by which the instrument was created. As a consequence, care must be taken when citing previous authority, so as to ensure that the circumstances are truly analogous.
The CFMEU’s evidence
13 The CFMEU called six witnesses.
14 The CFMEU filed a witness statement of Thomas Meagher (Mr Meagher), lawyer (Exhibit C1: court book, pp 114–‍120), attesting that the following documents are true copies of records held by the CFMEU:
(a) TM-4: Email of 16 February 2021 with attached Memorandum (Exhibit C2: court book, pp 422–‍423).
(b) TM-10: Email of 26 July 2021 (Exhibit C3: court book, pp 616–‍617).
(c) TM-11: File from Fair Work Commission (Exhibit C4: court book, pp 618–914).
(d) TM-12: Memorandum dated 18 May 2022 (Exhibit C5: court book, p 915).
(e) TM-13: Email of 20 May 2022 with attachment (Exhibit C6: court book, pp 916–919).
(f) TM-14: Email of 23 May 2024 with attached letter (Exhibit C7: court book, pp 920–‍971).
(g) TM-15: Email of 28 May 2024 with attached letter (Exhibit C8: court book, pp 972–‍974).
(h) TM-24: Consumer Price Index: Concepts, Sources and Methods (Exhibit C9: court book, pp 1048–1052).
(i) TM-25: Purposes and uses of consumer price indexes (Exhibit C10: court book, pp 1053–‍1061).
(j) TM-16: CFMEU membership extract (Exhibit C11: court book, pp 1062–‍1067).
15 Mr Meagher gave the following evidence under crossexamination:
(a) He commenced employment with the CFMEU as an assistant in October 2021 and commenced as a lawyer in October 2024.
(b) He was not involved in the negotiations of the Agreement.
(c) The Agreement was approved in August 2021, prior to him working for the CFMEU.
(d) He obtained the documents attached to his witness statement from the records in the CFMEU’s filing system. ts 6‍–‍7.

16 The CFMEU filed a witness statement of Rhys Cardinal (Mr Cardinal), industrial officer (Exhibit C12: court book, pp 121–‍123), attesting that the following documents are true copies of records, including the CPI data he downloaded from the Australian Bureau of Statistics (ABS) website on 14 May 2026:
(a) RC-1: Building and Construction General On-site Award 2020 (Exhibit C13: court book, pp 309–‍417).
(b) RC-2: ABS CPI data release – December 2020 (Exhibit C14: court book, pp 975–‍1008).
(c) RC-3: ABS CPI data release – March 2021 (Exhibit C15: court book, pp 1009–‍1036).
(d) RC-4: Data Download – A2325826V (Exhibit C16: court book, pp 1037–1047).
17 Mr Cardinal gave the following evidence under crossexamination:
(a) He commenced working at the CFMEU in April 2023.
(b) He was not involved in the negotiations of the Agreement.
(c) The negotiations for the Agreement had concluded before he commenced working for the CFMEU. ts 9.

18 The CFMEU filed a witness statement of Malcolm Brownlee (Mr Brownlee), painter and CFMEU delegate during the bargaining for the Agreement (Exhibit C17: court book, pp 124–‍125). Mr Brownlee states that he did not attend the meeting at which Programmed explained the terms of the Agreement. He states that he did not hear, or see any document referring to, a proposal to calculate pay increases using quarterly CPI. Mr Brownlee states that he would not have voted in favour of the Agreement if he had known Programmed intended to apply quarterly, rather than annual, CPI.
19 Mr Brownlee gave the following evidence under crossexamination:
(a) He attended the earlier but not the later bargaining meetings.
(b) He did not attend the fourth and fifth bargaining meetings.
(c) He did not attend the explanation meeting where the Agreement’s terms were explained by Programmed.
(d) He does not recall receiving the Memorandum dated 7 May 2021 ‘because it’s that long ago’ but accepts that it is possible he did receive it, and that it is a more than likely possibility that he read it at the time.
(e) It is possible that the Memorandum dated 10 June 2021 was sent to him and quite possible that he read it at the time.
(f) He does not recall reading the email dated 5 July 2021 and its four attachments but accepts that it is more than possible he read them.
(g) He agrees that every painter who had a Programmed email would have received the email dated 5 July 2021. ts 11–‍15.

20 The CFMEU filed a witness statement of Ian Todd (Mr Todd), painter (Exhibit C18: court book, pp 126–‍127). Mr Todd states that, during negotiations for the Agreement, he occasionally spoke with the delegates, who did not inform him of any proposal to change the CPI pay increase from an annual to a quarterly measure. Mr Todd states that he did not attend the meeting at which Programmed explained the terms of the Agreement. He did not hear anyone refer to quarterly CPI or to a change in the wording of the CPI clauses. Mr Todd states that he would not have voted in favour of the Agreement had Programmed explained that it intended to apply quarterly CPI.
21 Mr Todd gave the following evidence under crossexamination:
(a) He was not a delegate or an official of the CFMEU and did not attend any bargaining meetings.
(b) He did not attend the explanation meeting where Programmed explained the final terms that went into the Agreement.
(c) He recalls receiving and reading the Memoranda dated 7 May 2021 and 10 June 2021.
(d) He does not recall receiving the email dated 5 July 2021 but accepts that it is possible he did receive it.
(e) He does not recall reading the four attachments to the email dated 5 July 2021 but accepts that it is possible he did read them.
(f) He accepts it is more than possible that he read the trackedchanges document. ts 17–‍21.

22 The CFMEU filed a witness statement of Gary MacFarlane (Mr MacFarlane), painter and CFMEU delegate during the bargaining for the Agreement (Exhibit C19: court book, pp 128–‍130). Mr MacFarlane states that he was unable to attend the bargaining meetings on 16 April 2021 and 10 June 2021. However, he remained in regular communication with the other two delegates, Mike Warner and Mr Brownlee, and neither informed him that Programmed was proposing to use quarterly CPI. The CFMEU’s organiser, Brad Upton (Mr Upton), did not inform him that he had agreed to quarterly CPI. Mr MacFarlane states that, as a delegate, he would not have authorised Mr Upton to do so. He does not believe that Mr Upton agreed to quarterly CPI because the CFMEU does not reach agreements without first consulting its delegates and members. He states that the employees covered by the Agreement are no exception, particularly because ‘almost all’ of them are CFMEU members. Mr MacFarlane states that he would not have voted in favour of the Agreement had Programmed told him it intended to use a CPI figure based on a threemonth snapshot.
23 Programmed raised a hearsay objection and an opinion objection to paragraphs 5 and 6 of Mr MacFarlane’s witness statement on the basis that Mr MacFarlane is giving evidence of the understanding of others in those paragraphs. ts 22.
In these paragraphs, Mr MacFarlane states that his own understanding, ‘and the understanding of the other painters I have talked to’ was that the Agreement would follow the same annual indexation as the 2015 and 2018 agreements, and that if ‘the company had told us they were going to use a threemonth snapshot’ that he would not have voted in favour of the Agreement, and ‘based on my discussions with the other painters, they would not have agreed to this either.’ I will return to the admissibility of this evidence later in these reasons.
24 Mr MacFarlane gave the following evidence under crossexamination:
(a) He retired in May 2024.
(b) He attended the earlier bargaining meetings with Mr Upton and Mr Brownlee. He did not attend the later meetings.
(c) He did not attend the meeting in July 2021 convened by Programmed to discuss and explain the terms of the Agreement.
(d) He recalls receiving the Memoranda.
(e) He does not recall receiving emails about the negotiations.
(f) He accepts his recall is affected by the fact the emails were sent more than five years ago.
(g) He cannot recall receiving the Memorandum dated 7 May 2021, but he would have read it if it was sent to him.
(h) It is possible that he read the Memorandum dated 10 June 2021.
(i) He does not recall reading the email dated 5 July 2021 and its four attachments but accepts that it is possible that he read them.
(j) He did read the Memorandum dated 5 July 2021.
(k) It is possible that he read the document at page 527 of the court book (the trackedchanges document). ts 25–‍‍32.

25 The CFMEU filed a witness statement of Brett Bates (Mr Bates), Project Manager, formerly painter and decorator (Exhibit C20: court book, pp 133–‍134). Mr Bates states that, during negotiations for the Agreement, he spoke with the delegates on several occasions. During his discussions with the delegates, he did not hear any reference to quarterly CPI. He did not attend the meeting at which Programmed explained the final terms of the Agreement. Mr Bates states that he would not have voted in favour of an agreement that used a quarterly measure of CPI.
26 Mr Bates gave the following evidence under crossexamination:
(a) He was not a delegate or official of the CFMEU and was not present at any bargaining meetings.
(b) He did not attend the meeting that explained the terms of the Agreement.
(c) He does not recall receiving emails about the negotiations because ‘it’s a long time ago’ but accepts that it is possible he received the emails.
(d) He does not recall receiving any of the Memoranda.
(e) He does not recall reading the Memorandum dated 7 May 2021 and does not accept it is possible he read it. He says ‘I don’t remember seeing the email, so I wouldn’t have read it’. When questioned further, he says ‘Well, it’s possible I’ve seen the email. But I haven’t read it, no.’
(f) He accepts Programmed’s evidence that he was sent the Memorandum dated 7 May 2021 via email is not wrong.
(g) It is possible he was sent the email attaching the Memorandum dated 10 June 2021, but he has no recollection of reading the Memorandum dated 10 June 2021.
(h) It is possible he received the email dated 5 July 2021.
(i) It is unlikely that he read the email dated 5 July 2021, because it was received during his time as a Foreman when he did not read all of his emails unless they were relevant to the job he was undertaking on the day. While ‘it’s the wrong thing not to read things’, he relied on the shop steward to inform him about the negotiations.
(j) It remains possible that he read the email dated 5 July 2021, he just cannot recall because ‘it was a long time ago’.
(k) He does not recall reading the Memorandum dated 5 July 2021 but accepts it is possible that he read it.
(l) He does not recall reading the trackedchanges document. He says, he would remember if he read this document. He says, he does not recall seeing these documents in any emails. He hardly checked Programmed emails ‘unless they were job specific’.
(m) He does not recall reading the ‘Explanation of Terms Document June 2021’ Exhibit R19: court book, pp 524–‍‍615 (CS18: 5 July email and attachments) at [31(r)].
(explanatory table) but accepts that it is possible that he did. ts 34–‍39.

The CFMEU’s submissions
27 Clause 10.2 of the Agreement states:
10.2 Wage Rate Increases
a) In recognition of the productivity improvements which flow from the adoption of the co-operative and efficiency measures agreed to herein, the wage rates as prescribed in Appendix B hereof shall apply to all employees covered by this Agreement.
b) The increases arising from this clause are to be the only wage increases allowable during the period of this Agreement, and any other increases to wages and allowances arising, whether by decision of the Fair Work Commission or otherwise, shall not apply to the wage rates of employees employed under this Agreement, so long as the wage rates do not fall below the basic periodic rate of pay applying under ‘Modern Awards’ to the classification of the position held by the employee.
c) However, expense related allowances will be varied if these allowances fall below the Award due to increases by the Fair Work Commission varying the Award and increasing such allowances.
28 The CFMEU contends:
(a) By cl 10.2 of the Agreement, its makers:
(i) By cl 10.2(a): took a particular view of the role of wages under the Agreement: they are a reward in exchange for productivity improvements; they are not merely the outcome of negotiations.
(ii) Appendix B – Career Progression outlines the career structure that ‘applies under this Agreement’, from General Labourer, to Painter, Painter 1, Painter 2, Foreperson 1, Foreperson 2, Foreperson 3 and Foreperson 4. Therefore, the reference to Appendix B is not an error, but refers to the trigger for payment of the wage rates in Appendices A and C.
(iii) By cl 10.2(b): linked wage increases to the annual increases in the underlying award, and required the wage rates in the Agreement to keep pace with the rates of pay under the award arising from the annual wage reviews to be conducted by the FWC in each financial year under s 285 of the FW Act.
(iv) By cl 10.2(c): linked increases in the expenserelated allowances (travel allowance/fares, distant work allowance (employee’s own vehicle) and living away from home allowance) to the underlying award, which adjusts the expenserelated allowances annually, and in accordance with annual CPI:
B.2.2 Adjustment of expense-related allowances
(a) At the time of any adjustment to the standard rate, each expenserelated allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the [ABS] since the allowance was last adjusted.
(b) The applicable index figure is the index figure published by the [ABS] for the Eight Capitals Consumer Price Index (Cat No. 6401.0), as follows:
Allowance
Applicable Consumer Price Index figure
Tools and protective or other clothing or equipment allowance
All groups
Compensation for clothes and tools
All groups
Meal allowance
Meals out and take away foods subgroup
Living away from home–distant work
Domestic holiday travel and accommodation subgroup
Camping
Average of Food and nonalcoholic beverages, housing and transport groups
Fares and travel patterns allowance
Transport group
Weekend return home
Transport group
Transport and transporting tools
Transport group
(b) It is accepted that the predecessor 2015 and 2018 agreements contain cl 10.2 in identical terms. If any inference is to be drawn from this, it should be one of continuity with the manner in which the 2015 and 2018 agreements operated, which is that CPI means annual CPI.
(c) The second and third dot points of Appendix A provide for annual wage increases. They apply for a period of a year. The increase in the first dot point applies from the first pay period on or after 1 April 2021 and runs for a year until the first full pay period on or after 30 March 2022. The increases in the second and third dot points also apply for a year each.
(d) The words following the three dot points in Appendix A do not appear in Appendix C. Therefore, the only reference to a ‘quarter’ in Appendix C is contained in the words ‘for the relevant quarter’. Otherwise, the relevant parts of Appendices A and C are the same.
(e) While the parties dispute the correct construction, they do not dispute the task of construction: to find the objective, expressed intention from the text of the Agreement in light of context and purpose: OS ACPM [33].
(f) The makers of the Agreement rely on CPI as a determinant of the financial outcomes in Appendices A and C because they were concerned that wages do not fall behind the increase in the cost of living.
(g) Programmed’s contention that wage increases under the Agreement are merely the product of negotiation should be rejected based on the text of cl 10.2(a).
(h) Programmed’s contention that the documents sent to employees explained the meaning of the CPI reference should be rejected based on the evidence.
(i) On 7 May 2021, Programmed sent a memorandum to employees outlining the offer it was prepared to make:
On 16 April 2021, we met with your nominated delegates and the CFMEU to discuss your responses to our offer, which we proposed on 9 April 2021.
The feedback was generally positive, and we are hopeful that we will reach agreement in the near future.
Based on these discussions and our current position, the business would like to offer the following wage rate proposal;
- We have improved our offer to adjust, should CPI increase above 2.5%, for 2022 & 2023;
o 2021: 2% increase,
o 2022: 2.5% increase or Perth CPI for the relevant quarter (whichever is higher), &
o 2023: 2.5% increase or Perth CPI for the relevant quarter (whichever is higher).
*Note: the first increase will be applied in the first pay period following a majority vote of the Enterprise Agreement, the proceeding increases will be applied in the first pay period 12 months from the previous increase.
(j) The reference to improving its ‘offer to adjust, should CPI increase above 2.5%, for 2022 & 2023’ reflects the parties’ concern with CPI increasing in those years. It contemplates the triggers for wage increases are the CPI increases for the relevant years.
(k) On 10 June 2021, Programmed sent a memorandum to employees:
On Thursday 10 June 2021, we held a discussion with your nominated delegates and the CFMEU to hear your feedback to the offer proposed by Programmed on 7 May 2021. This was an adjusted proposal as we would like to reach agreement in the near future.
Our business has seen great success so far this year and we anticipate promising opportunities. However, we would like to maintain the recovery from an enormously challenging year in 2020. As previously expressed, we would like to achieve this with all of you, creating an ongoing, stable future for us all. Our offer is one that can support this growth and stability, now and into the future.
Therefore, we notified your nominated [delegates] and the CFMEU, that our previous proposal as offered on 7 May 2021, will remain as is;
o 2021: 2% increase,
o 2022: 2.5% increase or Perth CPI for the relevant quarter (whichever is higher), &
o 2023: 2.5% increase or Perth CPI for the relevant quarter (whichever is higher).
*Note: the first increase will be applied in the first pay period following a majority vote of the Enterprise Agreement, the proceeding increases will be applied in the first pay period 12 months from the previous increase.
(l) This memorandum merely uses the language of the Agreement of ‘Perth CPI for the relevant quarter’.
(m) Those words do not clearly distinguish between annual CPI and quarterly CPI.
(n) The only person who asserts that those words clearly convey quarterly CPI is Programmed’s witness, Ms Sheppard.
(o) On 5 July 2021, Programmed sent a memorandum to employees:
I am pleased to announce that on Tuesday 26 [sic] June 2021, I was notified by the CFMEU and your elected delegates, following all our ongoing discussions that we had reached an in-principle agreement. In order to provide you all a clear understanding of the changes and what they mean we have provided a summary below;
- No reduction in terms
- A 2021 wage increase, of 2%, effective from the 1st full pay period on or after 1 April 2021.
- A 2022 wage increase, of 2.5% or Perth CPI for the relevant quarter (whichever higher), effective the 1st full pay period on or after 30th March 2022.
- A 2023 wage increase, of 2.5% or Perth CPI for the relevant quarter (whichever higher), effective the 1st full pay period on or after 30th March 2023.
- The amalgamation of the productivity bonus to the current base rates, pro-rataed to exclude 4 weeks for annual leave,
- A 3-year term,
- A contribution of $175.00 to the purchase of boots,
- A travel clause that is clear and provides for the various scenarios that can arise,
- A commitment to pay for reasonable parking after the preference of carpooling has been exhausted,
- Updates to the classifications to provide for career progression and workforce longevity &
- Administrative updates to reflect the Award, the Fair Work Act, the National Employment Standards and the Model Clauses as provided by the Fair Work Commission.
(p) Ms Sheppard’s evidence in reexamination was that Programmed was trying to save money in changing from annual CPI to quarterly CPI. If that is so, and what was intended to be included in the Agreement was quarterly CPI, then this memorandum, referring to ‘no reduction in terms’ is untrue.
(q) Programmed provided an explanatory table to employees, explaining the amendments to Appendices A and C:
APPENDIX A
Wage Rates
This Appendix details the pay rates for the life of the agreement. The classifications in this agreement include;
- Apprentice Yr1
- Apprentice Yr2
- Apprentice Yr3
- Apprentice Yr4
- Adult Apprentice Yr1
- Adult Apprentice Yr2
- Adult Apprentice Yr3
- Adult Apprentice Yr4
- General Labourer
- Painter
- Painter 1
- Painter 2
- Foreperson1
- Foreperson2
- Foreperson3
- Foreperson4
This clause also states that increases relevant to the Perth consumer Price Index will be from the quarter prior to the nominated increase.
APPENDIX B
Career Progression
This Clause sets out the career progression structure, including timeframes, rates of pay and opportunity for progression under this agreement from General Labourer through to the Foreperson 4.
APPENDIX C
Allowances
This clause provides all those allowances not included in clause 14, including clarification that where an allowance in Appendix B applies as well the higher allowance will be effective. It also includes the increases that apply are outlined and that increases relevant to the Perth consumer Price Index will be from the June quarter prior to the nominated increase. Further to this definitions of all allowances are provided.
(r) The explanation of Appendix A states that the increases relevant to the Perth CPI ‘will be from the quarter prior to the nominated increase’ and there is clearly a mistake in Appendix C by referencing ‘from the June quarter’ when the words in the Agreement are ‘from the relevant quarter’.
(s) The explanatory table used language materially similar to that in the 2015 and 2018 agreements, which Programmed accepts referred to annual CPI. The CFMEU submits that this is what Programmed was communicating to employees in this explanatory table.
(t) At best, Programmed made no distinction between annual CPI and quarterly CPI in its explanatory table. At worst, Programmed suggested to employees that the Agreement would refer to annual CPI, not quarterly CPI.
(u) In summary, Programmed’s contention at paragraph 45 of its written submissions that the explanatory table explained to employees that Appendices A and C refer to quarterly CPI, cannot be accepted.
(v) Therefore, it makes sense for the wage increases to be based on annual CPI because the parties were accounting for the erosion of wages by the increase in the cost of living.
(w) Additionally, the same mechanism appeared in the 2015 and 2018 agreements: wage increases were set at a specified percentage, subject to a higher increase if annual CPI exceeded that percentage.
(x) Furthermore, the use of the word ‘quarter’ in each of Appendices A and C does not assist Programmed. There is no dispute that in the 2015 and 2018 agreements the parties applied annual CPI, and yet the 2015 and 2018 agreements also use the word ‘quarter’. Otherwise, one cannot refer to CPI data at all. This is because it was not until recently that the ABS began publishing CPI data more frequently than quarterly.
(y) Programmed’s contention at paragraph 41 of its written submissions, that the ‘basic principle’ of interpretation is that amendments are not to be treated as superfluous or insignificant; instead, amendments are to be interpreted as giving effect to an intention to change the meaning and operation of the text, is unsupported by the authorities that Programmed relies upon: Opal [69]; Australian Postal Commission v Melbourne City Council [2005] VSCA 295 (Australian Postal) [20].
(z) In Opal [67]–[69], Hatcher J said:
67 The primary judge, as earlier stated, nonetheless took the view that the requirement that the ‘status quo remain’ was, read in context, applicable only to the continuation of normal work and was not to be read as constituting any additional or wider requirement. I respectfully disagree with that conclusion for the following three reasons.
68 First, that approach does not give effect to the principle that a court should strive to give all words in a legal instrument meaning and effect and that particular words should not be treated as superfluous or redundant. In the context of statutory construction, this principle is as stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 [(Project Blue Sky)] at [71] per McHugh, Gummow, Kirby and Hayne JJ; a similar principle applies to the construction of contracts: XL Insurance Co SE v BNY Trust Company of Australia Ltd [2019] NSWCA 215 at [72]-[73] per Gleeson JA, Bell P and Emmett AJA agreeing. The principles of statutory construction have generally been applied to the interpretation of awards and other industrial instruments: [Geo] at 503 (Street J); [Hercus] at 520 per Burchett J; [King] at [125] per Wheelahan J. There is no reason why a principle analogous to that stated in Project Blue Sky should not be applied to the construction of provisions in enterprise agreements.
69 The application of that principle requires an endeavour to give meaning and effect to the requirement that the ‘status quo remain’ that is separate to and distinct from the immediatelypreceding requirement that ‘work shall continue normally’. That is all the more so because, as earlier recounted, the status quo requirement was added to the pre-existing ‘work shall continue normally’ requirement in the 2010 agreement: see [Australian Postal] at [20] per Charles and Nettle JJA; D C Pearce, Statutory Interpretation in Australia (10th ed, LexisNexis Butterworths, 2024) at [2.44]. The natural inference is that those who made the 2010 agreement intended to effect an alteration to the meaning of the provision which had appeared in the earlier Amcor agreements, and this supports the conclusion that the words ‘status quo remain’ requirement should bear the meaning earlier indicated.
(aa) The principle at Opal [68] that the court should strive to give all words in a legal instrument meaning cannot be contested. However, the idea that an amendment results in a change of meaning is unsupported by Opal [69]. Furthermore, Hatcher J was in dissent on the relevant construction question in Opal. In any event, contrary to Programmed’s contention, in Opal [69], Hatcher J expressed the principle that if there is a construction contended for that would give some words no work to do, then that construction is all the more to be rejected if those words were inserted by amendment.
(bb) The CFMEU does not contend that ‘for the relevant quarter’ has no work to do; those words must have work to do. They pick up the words following the dot points. However, it does not follow that the amendment to the words in Appendices A and C must cause a change in the meaning of those appendices.
(cc) This is supported by what Hatcher J said in Opal [64]:
The 2007 agreement was replaced by the 2010 agreement, which was the first made and approved under the provisions of the FW Act. It contained a dispute resolution procedure (cl 15) which was substantially different from that in the 2007 agreement and was, for all relevant purposes, the same as the provision in the Opal Agreement. In respect of what is now cl 16.3, the only difference is that the equivalent of paragraph (a) in the 2010 agreement was not given a paragraph designation. That the text of the dispute settlement procedure was so radically changed in the 2010 agreement, including in relation to the previous ‘work as normal’ provision, is in my view contextually indicative of an intention to substantially alter its meaning.
(dd) By Opal [64], Hatcher J notes the wholesale rewriting of the clause, and concludes, unexceptionally, that the radical change gives rise to a change in meaning. This is the only ‘principle’ which may be derived from Hatcher J’s reasons. Otherwise, that approach would be inconsistent with the longstanding authority of Kucks, which recognises that the framers of enterprise agreements are likely to be people of a practical bent of mind. The employees voting on the Agreement were practical people, not lawyers applying a rule that every amendment to a clause necessarily changes its meaning.
(ee) The other case relied upon by Programmed is Australian Postal [20]:
…Consequently, unless s.2(8) be construed as providing for something further and different, it would be otiose. It is, however, a basic principle of statutory interpretation that words in a statute are not ordinarily to be construed as superfluous or insignificant. And that rule applies with greater force where, as in the case of s.2(8), the provision in question has been added by amendment [Project Blue Sky [71]; Transport Accident Commission v Treloar [1992] 1 VR 447 at 462; Pearce and Geddes, Statutory Interpretation in Australia 5th Ed. at [2.22]]. Given, therefore, that the plain and ordinary meaning of the words of s.2(8) yields a result which is different to the unqualified terms of s.5A and that, although remarkable, that result is neither irrational or capricious or otherwise contrary to any apparent purpose of the legislation, we see no basis to construe the section otherwise than as the applicant would have it.
(ff) Australian Postal is a statutory construction case, not a case involving the construction of an enterprise agreement. In any event, the ‘principle’ to be derived from the passage is essentially the same as that from Opal [68], namely that, if construing a clause in one way would render some words otiose, that would be a reason not to construe the clause in that way, particularly if the words were inserted by way of amendment.
(gg) In summary, contrary to what Programmed contends, neither Opal nor Australian Postal stands for the principle that a subtle change in language, unaccompanied by any clear explanation, must give rise to a change in meaning.
(hh) Programmed’s contention, that it could not have been in the parties’ contemplation that the CPI increases would be 5.7% and 8.3% in the respective years, as they are beyond the CFMEU’s initial offer of 5%, should also be rejected. The parties could not have known when bargaining for the Agreement what the annual CPI was going to be in 2022 and 2023. Therefore, the parties could not have excluded a particular construction by reference to matters they could not then have known.
(ii) Programmed’s case is that it was seeking to reduce its labour costs, therefore, a construction that gives rise to a lower wage increase was its intended outcome. On the contrary, the CFMEU was pushing for higher wage increases. The parties’ competing positions demonstrate that what the parties said during the negotiations is unreliable, because the parties had competing purposes, which could not, without more, establish the proper construction of Appendices A and C.
(jj) While Ms Sheppard’s evidence at paragraph 45 of her witness statement refers to quarterly (not annual) CPI figures being discussed in the fourth bargaining meeting and quarterly (not annual) CPI figures being displayed by screen to the bargaining unit, that is incorrect, because CS12 to Ms Sheppard’s witness statement Exhibit R13: court book, pp 515–‍‍516 (CS12: ABS CPI data for December 2020) at [31(l)].
(the Perth CPI data for December 2020 that Ms Sheppard says she displayed from her laptop at the fourth meeting on 16 April 2021) contains both annual CPI and quarterly CPI figures.
(kk) At paragraph 90 of Ms Sheppard’s witness statement, she says:
Accordingly, Mr Upton accepted the company’s position, that quarterly CPI (and not annual CPI) would be the reference point for inflationary increases above 2.5%. However, Mr Upton said that the union wished to consider the company’s wages offer before confirming their position.
(ll) Even if there was a ‘paragraph 90 agreement’, it is irrelevant to the determination of the proper construction of Appendices A and C. This is because the starting point flowing from Toyota is that enterprise agreements are not contracts; the approval of an enterprise agreement is a process that is a stage removed from any agreement between a union and an employer.
(mm) The CFMEU relies on what Bromberg J said in Target [70]–[71] and [74], citing Sheehan v Thiess Pty Ltd [2019] FCA 1762 (Sheehan), for the general principle that the conduct of the parties to an agreement cannot be taken into account in construing the agreement:
70 Over the objection of the SDA, the primary judge held at [159] of the First Judgment that the evidence sought to be relied upon by Target, including the past payment practice, was admissible. Her Honour at [171] to [180] then surveyed many of the authorities which have considered the concept of a ‘common understanding’ as a principle in the [aid] of the construction of industrial instruments. The following observations made at [31] of SDA v Woolworths by Gray ACJ were quoted by the primary judge at [173] of the First Judgment and are instructive as to the principle in question and also as to the approach ultimately taken by her Honour:
There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Assn (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning. See Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11; (2006) 149 FCR 209 at [44].
71 A further authority referred to, and of significance to the primary judge’s approach, was [Sheehan] where, as the primary judge stated at [180] of the First Judgment, Colvin J had noted that the industrial agreement there in issue:
was the type of agreement intended to apply to parties who are not participants in the process and that it may not be appropriate for surrounding circumstances to be brought to account unless they rise to the level of matters that would be notorious or known to those intended to be bound by the instrument who did not participate in the negotiations or dealings by which the terms were formulated.
…
74 Further, the primary judge relevantly said at [193] and [194] of the First Judgment:
In summary, no consensus, agreement or admission as to the meaning of ‘ordinary time earnings’ or annual leave entitlements is disclosed. As was made clear in [SDA v Woolworths] at [31], the search is for clear evidence that the parties have acted on a common intention. The subjective views of those present at the meetings do not inform the construction of the Agreement in circumstances where neither the meaning of cl 7.2.10 nor the history of Target’s payment practices could properly be described as notorious facts. There may have been one or several reasons for the Association’s representatives to refrain from a further contest as to the annual leave claim, ranging from inadvertence to a deliberate decision based on broader industrial interests, to an absence of recognition of the particular terms of cl 7.2.10. These are not matters of common understanding. Additionally, Target’s reference to excluding penalties from the ambit of ordinary time earnings for other leave entitlements also indicates an absence of any clear common understanding of the meaning of that expression when used in the Agreement. There is no evidence of the information or explanation that was put to the employees at the time of the vote on the Agreement. It must also be recalled that whatever the terms of the Agreement, they were imposed upon employees covered by the Agreement. Further, having regard to all of these matters, I do not consider this to be the type of rare exception referred to in Health Services Union v Ballarat Health Service at [79] such that the Association should not be permitted to resile from whatever its particular representatives subjectively intended or expected by their reference to ‘drop’ in the 2012 negotiations. The nature of the negotiations does not disclose the clarity of any intervening event such as that described by Tracey J in Transport Workers Union of Australia v Linfox at [92].
The evidence of prior payment practices and the bargaining process was relevant to understanding the background facts known to both parties, but it does not evidence any common understanding. It does not assist in construing cl 7.2.10.
(Original emphasis)
(nn) In Sheehan [22] Colvin J said, in the context of a greenfields agreement:
Therefore, peculiar contextual matters that may have been commonly known to representatives of Thiess and the Union when negotiating the terms of the Agreement are not matters to be brought to account. The Agreement is within the category of instruments where it is intended to apply to parties who were not participants in the process by which the terms of the instrument were formulated. In such cases, it may not be appropriate for surrounding circumstances to be brought to account unless they rise to the level of matters that would be notorious or known to those intended to be bound by the instrument who did not participate in the negotiations or dealings by which the terms were formulated…
(oo) Even if a ‘paragraph 90 agreement’ is relevant, the CFMEU submits that Ms Sheppard’s evidence of such an agreement should not be accepted as reliable. Accepting her evidence would require findings that she and Mr Norling misunderstood the CPI data and that the participants at the fourth bargaining meeting on 16 April 2021 did not identify or challenge that misunderstanding.
(pp) Furthermore, the alleged ‘paragraph 90 agreement’ is not recorded in any contemporaneous document: Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873 (Qantas) [16] (Lee J):
Although this is an industrial case, as those experienced in commercial litigation are aware, in determining contested factual issues, what matters most is usually ‘the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts’: Mealey v Power [2015] NSWSC 1678 (at [4] per Pembroke J). As Leggatt J (as his Lordship then was) said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) (at [22]):
… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
(qq) The CFMEU therefore submits that Ms Sheppard’s evidence at [81] of her witness statement should not be accepted. Pursuant to the CPI data that Mr Cardinal downloaded from the ABS website on 14 May 2026, there was no increase in annual Perth CPI until the March 2021 quarter: Exhibit C15: court book, p 1029: ts 87.

Percentage change (from corresponding quarter from previous year)
Period
Sydney
Melbourne
Brisbane
Adelaide
Perth
Hobart
Darwin
Canberra
Weighted average of eight capital cities
2021 March
0.9
0.8
1.7
1.2
1.0
1.1
2.3
1.6
1.1
2020 December
0.8
1.3
1.0
1.0
-0.1
0.8
0.0
1.1
0.9
2020 September
0.3
0.7
0.6
1.0
1.3
1.7
-0.4
1.0
0.7
2020 June
-1.0
0.3
-1.0
0.8
0.1
1.3
-1.8
-0.6
-0.3
2020 March
2.0
2.7
1.8
2.4
2.1
3.4
1.5
2.0
2.2
2019 December
1.6
2.0
2.0
2.1
1.6
2.7
0.5
1.7
1.8
2019 September
1.6
1.7
1.9
1.9
1.6
2.2
0.5
1.8
1.7
2019 June
1.7
1.3
1.7
1.4
1.6
2.3
0.8
1.7
1.6
2019 March
1.3
1.2
1.5
1.3
1.1
2.1
0.4
1.8
1.3
2018 December
1.7
2.0
1.5
1.6
1.3
3.0
1.2
2.5
1.8
2018 September
2.0
2.2
1.8
1.8
1.2
2.7
1.3
2.5
1.9
2018 June
2.1
2.5
1.7
2.7
1.1
2.4
1.2
2.8
2.1
2018 March
2.1
2.2
1.7
2.3
0.9
2.0
1.1
2.4
1.9
2017 December
2.2
2.2
1.9
2.3
0.8
2.1
1.0
2.2
1.9
2017 September
1.9
2.2
1.5
1.8
0.8
2.0
0.6
2.1
1.8
2017 June
2.2
2.2
1.8
1.6
0.7
2.3
0.5
2.1
1.9
2017 March
2.4
2.5
1.8
2.0
1.0
2.3
0.5
2.3
2.1
(rr) No adverse inference should be drawn from the CFMEU’s failure to call Mr Upton to respond to Ms Sheppard’s evidence concerning the alleged ‘paragraph 90 agreement’: Cayford v Let Danny Do It Pty Ltd [2021] VSC 707 [9] (Gorton J): (footnotes omitted)
9 The Jones v Dunkel inference may be drawn ‘when a person presumably able to put the true complexion on the facts relied on … has not been called as a witness … and the evidence provides no sufficient explanation of [their] absence’. Because this rule is an aspect of the principle that ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’, the inference may only be drawn against a party if, as a matter of common sense, the failure to call the witness may be attributed to a decision made by that party more so than the other party. Where it is equally open, in this sense, to both parties to call a witness, the inference ought not to be drawn. The criteria are often expressed in these terms:
(a) the missing witness would be expected to be called by one party rather than the other. This criterion is often expressed as the missing witness being in one party’s ‘camp’;
(b) the witness’s evidence would elucidate a particular matter; and
(c) the witness’s absence is unexplained.
(ss) The CFMEU did not call Mr Upton because it regarded his evidence as irrelevant to the proper construction of Appendices A and C. Mr Upton was also overseas at the time of the hearing. The CFMEU submits that the only other available course would have been to seek an adjournment to permit him to give evidence on an issue that it maintained was irrelevant.
(tt) Programmed refers to Contract Resources Pty Ltd T/A Contract Resources [2022] FWCA 3355 (Contract Resources). However, that decision concerned an application to vary an enterprise agreement under s 217 of the FW Act and involved a different statutory task. It is therefore of limited assistance.
(uu) In summary, the references in Appendices A and C to CPI are unclear as to their meaning. Therefore, construction of their meaning requires consideration of their purpose, which derives from cl 10.2, and the words in context, including in the context of the Agreement as a whole.
29 In response to Programmed’s closing submissions, the CFMEU contends:
(a) The CFMEU is not contending that context should be disregarded, but Ms Sheppard’s evidence is of no assistance, because the task is to discern the objective intention of the parties. Ms Sheppard’s evidence does not bear on the interpretation question, even as background. What was said in the bargaining meetings provides no assistance to the interpretation question. Specifically, paragraphs 70–71, 74–‍79, 82–‍90 and 93 of Ms Sheppard’s witness statement are irrelevant to the interpretation task and, therefore, should not be admitted.
(b) Programmed relies on Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy Network Management Pty Ltd [2025] FCA 1202 (Endeavour Energy) as inconsistent with Sheehan, but Endeavour Energy is not inconsistent with Sheehan by reason of what was before the court in that matter:
45 What emerges from this history is that the 2017 EA, and subsequently the 2021 EA, came into being in an environment where:
(a) materially identical provisions had been included in a series of industrial instruments covering Endeavour (and its predecessor entities) and its field staff;
(b) Endeavour (and its predecessor entities) had been paying its field staff on the understanding that, relevantly here, overtime on weekdays and Saturday mornings was payable at double time only after two hours of overtime had been worked on a particular day; and
(c) the correctness of that understanding had not been called into question.
(c) Given that materially identical wording had appeared in successive agreements since 2017 and its application had not been questioned, the basis for Kennett J’s finding in Endeavour Energy is apparent:
60 The evidence led by Endeavour and discussed in this part of the reasons is therefore relevant to the construction of the clauses of the 2017 and 2021 EAs presently in issue. The evidence as to how materially identical provisions in earlier instruments have been applied by Endeavour in paying its employees for overtime, and the lack of overt resistance to Endeavour acting in that way, is indicative of a shared understanding, among those who brought into being the text submitted to and approved by the Commission, concerning the meaning of those earlier provisions and thus the meaning that the provisions of the 2017 and 2021 EAs would bear. The Commission, in its brief reasons for approving the EAs, did not express views of its own about their effect (and there is no reason why it should have done so).
61 The understanding emerging from these aspects of the background supports Endeavour’s construction of the controversial aspects of the text (which, I have concluded above, is the preferable understanding of the EAs read as a whole). Such a shared understanding could not, of course, replace the text of the 2017 or 2021 EA or be given effect in preference to that text. However, it can properly provide assistance in identifying the true meaning of parts of the text whose signification is unclear.
(d) The circumstances of the present case, which involves an alleged agreement reached during bargaining between the CFMEU and Programmed, differ from those considered in Endeavour Energy.
(e) Programmed challenges the CFMEU’s reliance on Bromberg J’s reasons in Target on the basis that they did not form part of the majority’s reasoning. That challenge is answered by Feutrill J’s statement at Target [129]:
I agree for the reasons given by Bromberg J and Jackson J that the appeal and cross-appeal should each be dismissed. There is nothing that I can usefully add except to explain briefly my reasons for agreeing with them.
(f) Programmed relies upon Contract Resources as relevant to the task of interpreting an enterprise agreement. However, Lake DP expressly states in Contract Resources [95] that the Commission’s task in an application under s 217 of the FW Act is not to interpret the enterprise agreement:
The presence of ambiguity or uncertainty is a jurisdictional prerequisite to the exercise of the discretion to vary an enterprise agreement under s.217. The Commission must make a positive finding as to whether the relevant provisions of the agreement are ambiguous or uncertain. The consideration of this question involves an objective assessment of the words in question, considered in their context. The task of the Commission is not to interpret the enterprise agreement [see Bianco Walling at [66]–‍[72]], and it is important that the Commission bear in mind the distinction between ambiguity and uncertainty [Bianco Walling [73]–[83]].
Programmed’s evidence
30 Programmed called one witness.
31 Programmed filed a witness statement of Char Sheppard (Ms Sheppard) (Exhibit R1: court book, pp 149–‍165), attesting that the following documents are true copies of records:
(a) CS-1: Programmed Property Services Limited (Painting WA) Enterprise Agreement 2015 (Exhibit R2: court book, pp 188–‍227).
(b) CS-2: Programmed Property Services Limited (Painting WA) Enterprise Agreement 2018 (Exhibit R3: court book, pp 228–‍272).
(c) CS-3: Programmed Property Services Limited (Painting WA) Enterprise Agreement 2021 (Exhibit R4: court book, pp 273–308).
(d) CS-4: 30 March 2020 letter (Exhibit R5: court book, p 418).
(e) CS-5: 13 May 2020 memo (Exhibit R6: court book, pp 419–420).
(f) CS-6: 25 May 2020 letter (Exhibit R7: court book, p 421).
(g) CS-7: 4 March 2021 memo (Exhibit R8: court book, pp 424–‍425).
(h) CS-8: 22 March 2021 memo (Exhibit R9: court book, pp 426–427).
(i) CS-9: Draft 2021 Agreement (Exhibit R10: court book, pp 428–468).
(j) CS-10: 9 April 2021 memo (Exhibit R11: court book, pp 469–‍470).
(k) CS-11: Draft 2021 Agreement (Exhibit R12: court book, pp 471–‍514).
(l) CS-12: ABS CPI data for December 2020 (Exhibit R13: court book, pp 515–516).
(m) CS-13: Notes of 16 April 2021 meeting (Exhibit R14: court book, p 517).
(n) CS-14: Wages comparison spreadsheet (Exhibit R15: court book, p 518).
(o) CS-15: 7 May 2021 memo (Exhibit R16: court book, pp 519–‍520).
(p) CS-16: 10 June 2021 memo (Exhibit R17: court book, pp 521–522).
(q) CS-17: 22 June 2021 email (Exhibit R18: court book, p 523).
(r) CS-18: 5 July 2021 email and attachments (Exhibit R19: court book, pp 524–‍615).
(s) CS-19: Cameron ALLAN contract (Exhibit R20: court book, pp 166–‍169).
(t) CS-20: Roy ALLAN contract (Exhibit R21: court book, pp 170–173).
(u) CS-21: Gary GOODWIN contract (Exhibit R22: court book, pp 174–177).
(v) CS-22: Gary MACFARLANE contract (Exhibit R23: court book, pp 178–‍181).
(w) CS-23: Ian TODD contract (Exhibit R24: court book, pp 182–‍183).
(x) CS-24: Brett BATES contract (Exhibit R25: court book, pp 184–187).
32 Ms Sheppard states that she has been employed by Programmed for approximately 12 years, having commenced employment in the role of Human Resources Business Partner in 2014, in the role of Regional Human Resources Manager in 2018, and in her current role of Workforce Programs and Projects Manager in March 2025.
33 Ms Sheppard states that part of her responsibilities as Regional Human Resources Manager included conducting enterprise agreement negotiations for various business units, including Programmed’s painting business.
34 Ms Sheppard states: (references to attachments omitted)
Context to the 2021 Agreement negotiations
23 During 2020, and in the lead up to negotiations for the 2021 Agreement in 2021, [Programmed’s (PPS’s)] painting business experienced significant financial pressure because of the COVID‑19 pandemic.
24 Due to the government-imposed restrictions on the movement and interaction of people during the pandemic, PPS’s painting business suffered a substantial decline in work volume and, in some cases, a complete stoppage of work.
25 The decline in business placed the painting business in a dire financial position.
26 PPS was committed to mitigating the adverse impact of this decline on its employees. PPS sought to avoid making employees redundant by implementing other cost saving reductions, including changes to rosters and encouraging employees to take their accrued leave.
27 Under the terms of the 2018 Agreement, an increase to wages and allowances was scheduled to occur on 30 March 2020.
28 However, PPS was concerned that an increase in wages (and consequently the prices that it charged clients) would likely reduce its competitiveness in the market. In particular, the business was concerned that increased labour costs would make it more difficult to obtain future work – which might result in PPS having to make employees redundant.
29 Accordingly, PPS proposed to defer the wage increase under the 2018 Agreement as this would provide a significant financial relief to the company and reduce the likelihood of redundancies having to occur.
30 On 30 March 2020, I wrote to the CFMEU, advising that to safeguard employee jobs, PPS would be asking employees covered by the 2018 Agreement to forgo the wage increase that was scheduled for March 2020.
31 The workforce was quite responsive to the company’s proposal to defer the 2020 wage increase. The employees appreciated the financial stress that the company was under given the restrictions imposed by the pandemic.
32 On 13 May 2020, following consultation with employees, PPS requested that employees covered by the 2018 Agreement approve a formal variation to the agreement to forgo the 2020 wage increase. PPS proposed to conduct a ballot on 26 May 2020.
33 Following further discussions and consultation with employees, PPS decided that it would abandon the scheduled vote to forgo the 2020 wage increases. PPS considered that significant financial pressure had already been placed on employees to reduce their hours, change their rosters and take leave.
34 Accordingly, the proposal to defer the 2020 wage increase was abandoned.
35 By letter dated 25 May 2020, PPS notified employees that it would no longer ask employees to forgo the 2020 wage increase, nor would PPS seek to defer that increase to a later date. Instead, PPS determined to pay the increase, including back paying employees to the first full pay period commencing on or after 30 March 2020 (as was required under the 2018 Agreement).
36 On 7 June 2020, employees received the scheduled wage increase that was backdated to 30 March 2020.
37 However, the PPS painting business remained in a difficult financial position as the market challenges from the COVID-19 pandemic continued throughout the remainder of 2020 and into 2021.
Negotiations for the 2021 Agreement
38 PPS was reluctant to initiate negotiations for a replacement to the 2018 Agreement because the business continued to be under financial strain from the effects of the pandemic.
39 However, on 22 January 2021, the CFMEU contacted PPS to commence negotiations for a replacement to the 2018 Agreement. PPS agreed to the CFMEU’s request to commence bargaining.
40 Together with Joe Norling, the PPS General Manager for Western Australia, I was directly responsible for negotiating the 2021 Agreement on behalf of PPS. This included being present in each of the enterprise bargaining meetings conducted between PPS and the CFMEU. I also prepared each of the memorandums that PPS issued to employees following each bargaining meeting.
41 The CFMEU was represented in the negotiations by Brad Upton, one of the CFMEU’s organisers. Mr Upton attended each of the bargaining meetings and, at various times, was accompanied by different union delegates including Gary [MacFarlane], Malcolm Brownlee and Mike Warner.
42 It was difficult to get the union delegates to attend the negotiation meetings, as they considered it to be an inconvenience. This is why there was no consistent union delegate who attended each of the meetings. Instead, the relevant union delegate tended to change from meeting to meeting.
43 Primarily Mr Upton conducted the negotiations on behalf of the CFMEU. There were no other bargaining representatives.
Structure of bargaining meetings
44 There were five negotiation meetings for the 2021 Agreement. Each of the meetings occurred at PPS’s Belmont office. I emailed the calendar invitations for each of the meetings. The meetings occurred on the following dates:
(a) 4 [sic] March 2021;
(b) 17 March 2021;
(c) 30 March 2021;
(d) 16 April 2021; and
(e) 10 June 2021.
45 The general structure of the negotiation meetings would involve a discussion of the CFMEU’s log of claims and outstanding issues from prior negotiating meetings.
46 Using my laptop, I took notes of the matters discussed during the meetings. These notes were reviewed by the participants at the end of the meeting to ensure that they were accurate.
47 Following each meeting, I prepared a memorandum based on the agreed notes. The memorandum was issued to employees by PPS.
First negotiation meeting: 3 March 2021
48 On 3 March 2021, Mr Norling and I met with Mr Upton and Mr [MacFarlane] to conduct the first negotiation meeting. Sam Mallios from Programmed was also in attendance – but she was just observing, and did not participate in the negotiations.
49 During the course meeting, I told Mr Upton that due to COVID, PPS had seen a downturn in available work.
50 In that meeting, Mr Upton advanced the union’s log of claims, which included seeking a wage increase of 5% each year over the life of a three year agreement. I explained that the company would need to consider the impact of these wage increases and understand how the costs would relate to the predicted future workflow.
51 After the first negotiation meeting, I prepared a memorandum that summarised the matters discussed during the meeting.
52 On 4 March 2021, the memorandum was issued to employees.
Second negotiation meeting: 17 March 2021
53 On 17 March 2021, Mr Norling and I met with Mr Upton, Mr [MacFarlane] and Mr Brownlee to conduct the second negotiation meeting. Ms Mallios again observed the meeting.
54 During the second negotiation meeting, Mr Upton again advanced the CFMEU’s position that they were seeking a 5% wage increase for each year of the three year agreement. I said that the company would consider that proposal, but that PPS needed to understand what the other terms of the agreement would be before we could properly assess the wages claim.
55 After the second negotiation meeting, I prepared a memorandum that summarised the matters discussed during the meeting.
56 On 22 March 2021, the memorandum was issued to employees.
57 The 22 March memorandum attached a draft 2021 Agreement. The draft was based on the 2018 Agreement, but had marked up amendments reflecting the proposed changes to the agreement.
58 In the marked up version of the 2018 Agreement, the wages clause remained unaltered, with a comment noting that the clause would need to be updated upon agreement of the relevant increase.
Third negotiation meeting: 30 March 2021
59 On 30 March 2021, Mr Norling and I met with Mr Upton, Mr Brownlee and Mr Warner to conduct the third negotiation meeting.
60 During the third negotiation meeting, Mr Norling advised that the business was still recovering from pandemic, so it needed to remain competitive in pricing. That meant it was necessary for the company to keep costs down. Mr Norling explained that while a 1.5% wage increase each year, for three years, was where the company had initially landed, PPS was comfortable increasing that to retain staff.
61 Mr Upton explained that during his discussions with the workforce, the workforce had acknowledged that 5% was unlikely to be accepted by the company, and instead they would accept a 3% wage increase each year. The employees considered that increase to be fair and reasonable.
62 Mr Norling explored with the CFMEU various potential wage increases, including a proposal for wage increases of 2% in the first year, and the higher of 2% or CPI in the second and third years. Other various options were discussed, but no final wages proposal was specifically offered by the company during the meeting.
63 After the third negotiation meeting, Mr Norling and I discussed the potential wages offers that had been explored in the meeting. Mr Norling proposed that PPS offer employees a wage increase of 2% in the first year, and 2.5% in the second and third years. I prepared a memorandum that summarised the matters discussed during the meeting and which included the company’s proposed wages offer.
64 On 9 April 2021, the memorandum was issued to employees.
65 The 9 April memorandum attached a draft 2021 Agreement setting out the company’s proposed offer. The draft enterprise agreement deleted references to CPI and referred to the company’s proposal to increase wages by 2%, 2.5% and 2.5% for each year of the agreement.
The Company’s internal discussions regarding its wage proposal
66 After the conclusion of the third negotiation meeting, the parties had largely agreed on the substantive terms and conditions that were to be included in the 2021 Agreement, apart from the wage increases.
67 The CFMEU had indicated that they were willing to entertain wage increases of 3% each year, while the company’s proposal was for wage increases of 2% in the first year and 2.5% in the following two years.
68 The fourth negotiation meeting, scheduled for 16 April 2021, was an opportunity for the parties to see if they could reach an agreement on the wage increases.
69 I had a discussion with Mr Norling in advance of the 16 April 2021 meeting. I do not remember the specific date of our conversation, but it was prior to the 16 April 2021 meeting. The purpose of our discussion was to review the company’s wage proposal in advance of the fourth negotiation meeting.
70 During my discussion, I took Mr Norling to the ABS website, and the historical Perth CPI data contained on that website. Mr Norling and I reviewed a range of historical Perth CPI data, including both annual and quarterly CPI figures. Based on our review, we formed the view that annual CPI figures was quite variable and less reliable for the purposes of setting wage increases. We determined that the quarterly CPI figures were more stable and therefore more appropriate for our business.
71 We also discussed that the relevant CPI figure for wage increases should be taken from a specific quarter preceding the pay increase, being the December review period – instead of the June period that had been specified in the 2018 Agreement. December is a period of high operational activity for the painting business, with a significant amount of painting work being conducted during the holiday period when businesses are closed. Accordingly, Mr Norling and I agreed that it made more sense to align wage increases with the December review period rather than the June review period.
Fourth negotiation meeting: 16 April 2021
72 On 16 April 2021, a fourth negotiation meeting was conducted. I remember that Mr Upton, Mr Norling and I all attended the meeting. Ms Mallios, Mr Warner and Mike Zoetbrood, Programmed’s Industrial Relations Manager, were also invited to attend the meeting. I have recently spoken to Ms Mallios and Mr Zoetbrood. Mr Zoetbrood told me that he did not attend the meeting. Ms Mallios told me that she could not recall attending the meeting.
73 The purpose of the 16 April 2021 meeting was to address the quantum and structure of wage increases, which was the principal issue remaining in dispute.
74 A substantial part of the 16 April 2021 meeting involved discussion of CPI data published by the ABS. During the meeting, the Perth CPI data for the December 2020 reference period was displayed using my laptop that was connected to a screen in the meeting room. I navigated to the ABS website containing the CPI data for the December 2020 reference period.
75 As I was using my laptop to project the Perth CPI data onto the screen, I made handwritten notes during the course of the meeting (instead of typing them into my computer as was my usual practice).
76 The review of the ABS website and Perth CPI is data is referred to in my handwritten notes as ‘copy of chart’.
77 The December 2020 reference period was the most recently published CPI data available at the time. The December reference period is also the reference period that is published immediately prior to the 30 March annual wage increases that are contained in the enterprise agreements.
78 The Perth CPI data for the December 2020 reference period that was reviewed during the meeting included:
(a) annual CPI, which recorded annual CPI at negative 1%; and
(b) quarterly CPI, which recorded quarterly CPI at negative 0.1%.
79 Mr Upton said that the CFMEU had originally sought 5% annual wage increases, and noted concerns about the risk of inflation and the impact of rising prices on employees. Mr Upton said that there had been evidence of increases in the cost of rent, and employees were concerned about the prospect of higher interest rates.
80 Using my laptop, I shared with the meeting participants a spreadsheet that I had prepared. The spreadsheet compared the wages that PPS was paying to its painters across Australia. The spreadsheet demonstrated that the Western Australian painters were already the highest paid painters across the entire PPS business.
81 Although the cost of living had started to rise following the pandemic, this was not yet evident in the annual Perth CPI figures which remained negative for the December 2020 reference period. However, the quarterly Perth CPI had shown signs that it was starting to shift to a positive figure.
82 The distinction between annual CPI and quarterly CPI was expressly discussed during the meeting, including reviewing the December 2020 reference period Perth CPI rates for both annual and quarterly CPI.
83 I explained to those present in the meeting that the company had reviewed the recent and historical CPI data, and the annual CPI figures for Perth were quite volatile, in that they had fluctuated sharply between positive and negative values over a short period. By contrast, the quarterly CPI figures for Perth were observed to be relatively stable, showing modest and predictable movements from quarter to quarter.
84 Mr Upton reiterated that the CFMEU had initially sought a 5%, 5% and 5% increase over the three year life of the agreement, and was reluctant to drop below their revised position of 3%, 3% and 3%.
85 I explained that PPS already rejected the union’s 5%, 5% and 5% increase as being unviable. I explained that significant annual increases would be damaging for the business given it was still recovering from the pandemic, and significant wage increases could result in redundancies being necessary if the volume of work did not pick up.
86 I explained to those present at the meeting that:
(a) the company’s previous offer of 2%, 2.5% and 2.5% was consistent with what Programmed had been offering in other parts of the business, and was within the range of recent inflation data;
(b) the company was prepared to enhance its offer by providing the higher of 2.5% or Perth CPI in the second and third years of the agreement;
(c) however, reliance on annual CPI exposed the business to significant fluctuation and there was a risk of wage outcomes that were not aligned to the short‑term economic position of the business, given that the business was still attempting to recover from the impact of the pandemic and we were attempting to avoid redundancies. Accordingly, Programmed would not agree to annual CPI being utilised, as had been the position in the past;
(d) in contrast, the quarterly CPI was a more stable figure and was more likely to reflect the current economic conditions and cost of living at the time the wage increase would take effect;
(e) the quarterly CPI allowed for greater predictability and sustainability from a business perspective given it had demonstrated less volatility compared to the annual CPI rate; and
(f) therefore, the company was prepared to enhance its offer by providing 2% in the first year, and the higher of 2.5% or quarterly CPI in the second year, and the higher of 2.5% or quarterly CPI in the third year.
87 Mr Upton agreed that the annual CPI rate was low, and that it would be [preferable] to refer to the quarterly CPI rate because this would introduce more stability and ensure a closer alignment between the wage increases and the economic conditions at the time of those increases, particularly given that the cost of living had started to increase.
88 Mr Upton acknowledged that the quarterly CPI rate would be more likely to capture the rapid change in cost of living compared to the annual CPI rate which was still negative and yet to catch up with the prevailing economic conditions.
89 Mr Upton acknowledged that the company’s offer of the higher of 2.5% or quarterly CPI in the second year, and the higher of 2.5% or quarterly CPI in the third year was fair having regard to the December 2020 inflation data that we reviewed in the meeting, especially given we had just come out of the pandemic the company had previously been seeking to defer wage increases entirely.
90 Accordingly, Mr Upton accepted the company’s position, that quarterly CPI (and not annual CPI) would be the reference point for inflationary increases above 2.5%. However, Mr Upton said that the union wished to consider the company’s wages offer before confirming their position.
91 After the fourth negotiation meeting, I prepared a memorandum that summarised the matters discussed during the meeting.
92 On 7 May 2021, Mr Norling issued a memorandum to all staff updating them on the negotiation meeting from 16 April 2021.
93 The use of quarterly Perth CPI data was a departure from the previous arrangements under the 2015 and 2018 Agreements where annual Perth CPI data had been utilised. Accordingly, the memorandum I prepared explicitly referred to the ‘Perth CPI for the relevant quarter’, consistent with the position agreed by the parties in the 16 April 2021 meeting.
Fifth negotiation meeting: 10 June 2021
94 On 10 June 2021, a fifth negotiation meeting was conducted. The purpose of this meeting was to receive the CFMEU’s feedback to the company’s proposed offer that was advanced in the 7 May 2021 memorandum.
95 After the meeting I prepared a memorandum that was sent to employees later that same day, which reflects the discussions had in that meeting.
96 My memorandum records that during the 10 June 2021 meeting, PPS advised the CFMEU that it would not amend its previous offer from 7 May 2021.
CFMEU agrees to PPS’s 7 May 2021 proposal
97 By email dated 22 June 2021, Mr Norling advised me that Mr Upton had confirmed that the CFMEU agreed to the company’s 7 May 2021 proposal, subject to the company agreeing to backdate the first 2% increase to 1 April 2021. Mr Norling advised that he was comfortable with that addition proposed by the CFMEU.
98 Mr Norling’s email requested that I amend the draft 2021 Agreement to address the backdating of the first 2% increase to 1 April 2021.
99 I subsequently updated the draft 2021 Agreement to include the backdating of the first 2% wage increase to 1 April 2021.
100 I also prepared a memorandum to be issued to employees advising them that an inprinciple agreement that had been reached between PPS and the CFMEU, consistent with the company’s 7 May 2021 offer (but subject to the backdating of the first wage increase).
101 In anticipation of the 2021 Agreement being sent to employees for approval, I also prepared a document that summarised the effect of each clause contained in the 2021 Agreement (Explanatory Document).
102 By email dated 5 July 2021, Mr Norling advised all staff that the parties had reached an in-principle agreement on the terms of 2021 Agreement. Mr Norling’s email attached the memorandum I had prepared, together with two copies of the final 2021 Agreement that had been agreed by the parties (one copy had tracked changes, and the other copy was a clean copy) (Final 2021 Agreement). Mr Norling’s email also contained the Explanatory Document that I had prepared earlier.
…
2021 Agreement approved by employees
104 On 27 July 2021, PPS’s painters approved the Final 2021 Agreement.
35 The parties agreed that the CFMEU’s objections to paragraphs 31 and 42 of Ms Sheppard’s witness statement could be resolved by a ruling that neither of those paragraphs would be relied on for the purpose of proving the truth of the matters asserted in them. ts 47.

36 As outlined at [29(a)] above, the CFMEU raised a relevance objection to paragraphs 70–71, 74–‍79, 82–‍90 and 93 of Ms Sheppard’s witness statement concerning the matters said in the bargaining meetings. I will return to the admissibility of this evidence later in these reasons.
37 Ms Sheppard gave the following evidence under crossexamination:
(a) Page 2 of CS-12 is an extract of a longer document published by the ABS.
(b) The issue of reducing labour costs was very important to Programmed.
(c) The negotiations concerned a substantial labour cost to Programmed. The wages payable under the Agreement represented hundreds of thousands, if not millions, of dollars.
(d) Mr Upton stated, further along in the negotiation, that the CFMEU were concerned about the impact of rising prices on employees.
(e) Between 9 April 2021 and 16 April 2021, Ms Sheppard met with Mr Norling to discuss historical Perth CPI data with a view to determining Programmed’s approach to the fourth bargaining meeting. The most recent data then available related to the December 2020 quarter. She could not recall the date of the meeting and had no contemporaneous records of it.
(f) The features of CPI data discussed in the meeting with Mr Norling were discussed in the fourth bargaining meeting with the CFMEU on 16 April 2021. She took a note of the meeting on her reMarkable (a digital notebook): Exhibit R14: court book, p 517 (CS13: Notes of 16 April 2021 meeting) at [31(m)].

o 1 thing
o 3% – 3% – 3% increase
o Copy of chart
* Originally 5%
Really saying agree to everything else
– Adamant w̄ 3%
– Way inflation etc
350 – to 450/500 rental house
o Fear of interest rates
o Don’t want ppl to going due to interest rates
Inflation – still in a pandemic
Agreeing to everything else
Just looking to 3% inc
– Sticking point – don’t want to go under 3%
– Want consider 2.5% to CPI
– Feel have been frozen – 1.5% very [indistinct]
(g) She accepts that the figures in paragraph 78 of her witness statement had been transposed and that it is the other way around (the quarterly movement for December 2020 was –‍1.0%, while the annual movement was –0.1%).
(h) The information she provided in the fourth bargaining meeting with Mr Upton was correct; she made the error when she prepared her witness statement.
(i) In her conversations with Mr Upton, and the information she provided, the quarterly CPI was more stable than the annual CPI changes. In her witness statement, she incorrectly switched those numbers around.
(j) Mr Cardinal prepared a table at paragraph 7 of his witness statement based on the CPI data he downloaded from the ABS website on 14 May 2026:
Quarter
Sep 2019
Dec 2019
Mar 2020
Jun 2020
Sep 2020
Dec 2020
Mar 2021
Range
Mean
Standard deviation
Index
112.6
113.1
113.5
112.1
114.1
113
114.6



Q/Q Perth CPI % increase
0.5
0.4
0.4
-1.2
1.8
-1.0
1.4
3.02%
0.33%
1.12%
Y/Y Perth CPI % increase
1.6
1.6
2.1
0.1
1.3
-0.1
1.0
2.16%
1.09%
0.81%
(k) When taken to the third row of the table, which records quarteronquarter movements in Perth CPI, and the corresponding figures in the table at the bottom of page 1029 of the court book, titled ‘Percentage change (from previous quarter)’, Ms Sheppard agreed that the figures did not demonstrate that quarter-on-quarter CPI was stable while year-on-year CPI was variable.
(l) Ms Sheppard states that, based on the information available to them, she and Mr Norling considered the quarterly CPI figures to be more stable than the annual CPI figures. She does not accept that they misread the data.
(m) At the fourth bargaining meeting, Ms Sheppard displayed the ABS data to the attendees, including Mr Upton. She agrees that she had dealt with Mr Upton on many occasions and that he did not ordinarily accept Programmed’s position without question. She does not recall him challenging either the data displayed or Programmed’s characterisation of quarterly CPI as stable and annual CPI as variable.
(n) Her conversations with Mr Upton were clear. ‘The information was provided during the meetings. We reviewed the information together. We were all comfortable and confident with the information. We believe our due diligence led us to provide us with enough information to present our proposal. We shared that proposal with Mr Upton. Mr Upton reviewed that proposal and responded, understanding, from his perspective, what we had showed him. And therefore, an agreement was reached. And it was very clear. And during that conversation, it was reiterated multiple times that we were referring to the relevant quarter.’
(o) At paragraph 81 of her statement, she says:
Although the cost of living had started to rise following the pandemic, this was not yet evident in the annual Perth CPI figures which remained negative for the December 2020 reference period. However, the quarterly Perth CPI had shown signs that it was starting to shift to a positive figure
(p) When taken to the table at paragraph 7 of Mr Cardinal’s witness statement, Ms Sheppard agreed that there is only an uptick in the Perth CPI figures in the March 2021 data. She agreed that at the time of her meeting with Mr Norling and of the fourth bargaining meeting, the most recent CPI data she had was the December 2020 data.
(q) At the fourth bargaining meeting, they could see from the data that there was a more positive quarterly CPI shift. The conversations that they were having were ‘as a whole’ rather than on individual quarters. ‘When we talked about the consideration around quarters – when we talked about the consideration of – of explicit quarters, such as December, it was around the business’s ability and capability to do business during that period.’ The December 2020 data was the most recent data available. She said that they ‘would be looking across multiple quarters, to make sure that we understood our position.’
(r) That is what she means at paragraph 83 of her witness statement, that ‘the annual CPI figures for Perth were quite volatile, in that they had fluctuated sharply between positive and negative values over a short period’. These conclusions were formed by looking back to multiple quarters. The data that she had included the December 2020 data.
(s) Throughout her witness statement, she distinguishes between the year-on-year change in Perth CPI from the quarter-on-quarter change in CPI, by calling year-on-year change, ‘annual CPI’ and quarter-on-quarter change, ‘quarterly CPI’.
(t) She believes that the words in the Agreement were very clear in referring to quarterly CPI. Furthermore, the conversations that they had throughout the negotiations, because they had deviated from annual CPI, and referring to quarterly CPI, were adequate. She considers the expression ‘for the relevant quarter’ to be clear.
(u) Following each bargaining meeting, the participants reviewed Ms Sheppard’s notes to ensure their accuracy. She then prepared a memorandum for circulation to employees based on those notes. The memoranda recorded the important matters, rather than every aspect of the discussions.
(v) There were five bargaining meetings. She attended each of them, as did Mr Upton. During the first three meetings, there were minimal discussions about the wage increases ‘because we were going through other matters that were part of the log of claims.’
(w) The ‘paragraph 90 agreement’ refers to the fourth bargaining meeting on 16 April 2021. She agrees there is nothing in the note taken on her reMarkable that explicitly refers to the matters at paragraph 90 of her witness statement, ‘but it certainly is clear that there was an agreement and a discussion regarding it, and that we had clearly put forward our position.’
(x) She drafted the Memorandum dated 7 May 2021 following the 16 April 2021 bargaining meeting. She agrees there is nothing in this memorandum that explicitly refers to the matters at paragraph 90 of her witness statement, but ‘none of the memorandums talk to anything but what the business is offering. So we wouldn’t be putting that information in there. Our information in the memorandum is the offer that the business puts forward to the workforce.’ All the memoranda include information of what was discussed; this one ‘includes the information of what was discussed, but it includes the offer.’.
(y) She denies that there was no ‘paragraph 90 agreement’ with Mr Upton. ‘It was absolutely agreed. It was discussed, and it was agreed to, and then it went forward and agreed to by the workforce by vote. So it was agreed in the meeting. And then it was agreed further, when presented to the workforce. And then agreed even further, when voted upon by the workforce, who were notified of it and provided adequate information, on an ongoing basis, of the intentions of the agreement.’
(z) She denies that the words in the Memorandum dated 7 May 2021 that ‘We have improved our offer to adjust, should CPI increase above 2.5%, for 2022 & 2023’ mean annual CPI, because ‘we referred, after that, to “the relevant quarter”.’ She denies that the entire paragraph is unclear that there is a change from annual CPI to quarterly CPI. She says it is ‘clear that we are referring to quarterly CPI.’
(aa) She drafted the Memorandum dated 10 June 2021 and agrees that it does not record the ‘paragraph 90 agreement’.
(bb) She drafted the Memorandum dated 5 July 2021 and says it records the ‘paragraph 90 agreement’ by stating that the parties have reached an inprinciple agreement, ‘which we had negotiated, that included the discussion around quarterly CPI increases.’ She says that there ‘was absolutely an agreement’ about quarterly increases.
(cc) She agrees that the whole point of the change from annual CPI in the 2018 agreement to quarterly CPI in the Agreement was to manage Programmed’s labour costs, which means to make sure that they did not get too high.
(dd) She disagrees with the proposition that changing from annual CPI to quarterly CPI was inconsistent with the statement ‘No reduction in terms’.
(ee) The 2018 agreement, under the dot points, uses the language ‘The Perth consumer price index percentage will be taken from the June quarter before the nominated increase’. The last page of the explanatory table (page 615 of the court book), states in relation to Appendix A, ‘This clause also states that increases relevant to the Perth consumer Price Index will be from the quarter prior to the nominated increase’. She denies that she used words in the explanatory table that everyone agrees refer to annual CPI increases. She says the words used, ‘from the quarter’ were used in the ‘context of the discussions referring to the quarterly increases, based on the quarter, in the context of the discussions, not in the context of a previous agreement.’ ts 51–63.

38 Ms Sheppard gave the following evidence under reexamination:
(a) She transposed the numbers –‍1.0% and –0.1% at paragraph 78 of her witness statement. That was an error made in the drafting of the witness statement.
(b) She gave evidence about quarterly CPI being more stable than annual CPI. By ‘stable’ she means they were not fluctuating with a lot of significance. When they looked at the CPI data, ‘in the context of that particular time that we were looking at, they were the most reflective of what our business could do, based on the work that the business was receiving, and the margins that the business was going to be able to work with.’
(c) At paragraph 83 of her witness statement, she states the quarterly CPI figures for Perth ‘showing modest and predictable movements from quarter to quarter’. By ‘modest and predictable movements’ she means that ‘the business could see that it was going to be most likely that the business would stay stable ourselves, based on that information. That we could see that that was in line and in keeping with what our business could manage.’ By ‘modest’ she means that ‘the workforce would still receive increases, but that our business would not be put at risk.’
(d) Ms Sheppard’s evidence at paragraph 74 of her witness statement, confirmed under reexamination, is that CS12 is a true copy of the ABS website CPI data that she displayed at the fourth bargaining meeting.
(e) She gave evidence that the ‘paragraph 90 agreement’ was not explicitly outlined in the Memorandum dated 7 May 2021. By ‘explicitly outlined’ she means the memorandum states that the ‘feedback was generally positive, and we are hopeful that we will reach agreement’ and then states, ‘Based on these discussions and our current position, the business would like to offer’ this proposal, and then outlines the details of the proposal. The memorandum also talks to the relevant quarter and talks to the discussions around when the first increase is applied.
(f) She believes that she reviewed the 2018 agreement as part of the initial process of reviewing the Agreement, but not for the purpose of preparing the explanatory table. ts 71–74.

Programmed’s submissions
39 Programmed contends:
(a) The court’s task is to ‘discern the objective, expressed intention from the text of the instrument in light of context and purpose’: OS ACPM [33].
(b) Given the statutory regime for enterprise agreement making under the FW Act, a common intention for the purposes of enterprise agreements is not lightly found: Qube [23], [27].
(c) However, evidence of the surrounding circumstances and the objective matrix of facts is admissible to assist in interpretation, whether or not the language is ambiguous. Even if that evidence does not establish a common intention, it may assist the court in discerning the objective, expressed intention from the text of the instrument: OS ACPM [33], [71].
(d) The surrounding circumstances and objective matrix of facts are set out at paragraphs 3–‍23 of Programmed’s written submissions, with each fact referenced to Ms Sheppard’s witness statement. Ms Sheppard’s evidence should be accepted because it was not contradicted by direct evidence: (footnotes omitted)
Background facts
3. [Programmed] (PPS) provides maintenance and building services to clients that are designed to prolong the life of physical assets and properties. PPS services extend to commercial painting, grounds maintenance, signage solutions, building projects and electrical solutions. PPS is part of the wider group of Programmed companies.
4. The 2021 Agreement applies to PPS and its employed painters. The CFMEU ‘stands in the shoes’ of these painters – it is eligible to represent the industrial interests of these painters, and it negotiated the 2021 Agreement on their behalf. The six individuals pleaded in the Amended Statement of Claim – Mr R Allan, Mr Bates, Mr Todd, Mr C Allan, Mr Goodwin, and Mr MacFarlane – are all painters covered by the 2021 Agreement.
5. At the time the 2021 Agreement was negotiated, the painters covered by it were the highest paid painters in the PPS business across Australia.
The negotiation of the 2021 Agreement
6. The 2021 Agreement was negotiated during the COVID-19 pandemic whilst there were restrictions on movement and the conduct of business. The pandemic had deleterious effects on PPS’ schedule of work, with PPS experiencing a substantial decline in work volume, and in some cases, a complete stoppage of work.
7. In March 2020 (being the point in time in which the COVID-19 virus had reached Australian shores), PPS was exploring ways it could mitigate the future impact the pandemic was to have on its business and its painters. In consultation with the CFMEU and painters, it explored whether the painters would be willing to forgo a scheduled wage increase to occur on 30 March 2020 under the (2018 Agreement). PPS’ rationale was that foregoing the increase would help to mitigate redundancies, and keep painters employed. The painters’ counterproposal was to defer the increase for a six-month period. Ultimately, the wage freeze proposal did not proceed.
8. Throughout 2020 and into 2021, PPS continued to suffer financially as the consequences of the pandemic continued to compound. In January 2021, the CFMEU contacted PPS to commence negotiations for the 2021 Agreement.
9. There were five bargaining meetings for the 2021 Agreement, commencing from March 2021. Char Sheppard (Regional Human Resources Manager) attended each of these five meetings, with Joe Norling (General Manager, Western Australia). Ms Sheppard took contemporaneous notes of these meetings on her laptop. At the end of the meeting, the participants reviewed her typewritten notes to ensure they were accurate. Afterwards, Ms Sheppard prepared a memorandum based on these notes, which summarised the content of the meeting, and sent these memorandums to the painters.
First to third meetings
10. The memorandums record that, at the first meeting, the CFMEU articulated a wage claim of 5% per year. The memorandum summarising the second meeting records that the bargaining unit deferred the question of wage rises in the first instance, and prioritised the negotiation of other conditions first.
11. PPS responded to the CFMEU’s 5% per year wage claim at the third meeting, on 30 March 2021. PPS explained [that] it was still recovering from the financial impacts of the pandemic, and that it needed to keep costs down. PPS said that 1.5% increases were contemplated, but that it was willing to agree to higher increases as retention measure. The CFMEU acknowledged that 5% per year was unlikely to be accepted by PPS. PPS and the CFMEU discussed a potential 2% increase, and then future increases of 2% or based on CPI, but no final wages proposal was ultimately offered.
12. Afterwards, PPS formalised a proper proposal, and [recorded] it in the memorandum for the third meeting. The proposal was that PPS would like to offer wage increases of 2%, 2.5% and 2.5%.
Fourth meeting
13. By the fourth meeting, the quantum and structure of wage increases was the principal remaining issue in dispute. Prior to that meeting, Ms Sheppard and Mr Norling had discussed the potential to structure wage increases by reference to a quarterly CPI figure. This proposal, as well as broader issues about wages, were discussed. The CFMEU reconfirmed that it had revised its wage proposal downwards, to 3% per annum. It was shown a table which recorded that its Perth member painters were the highest paid painters in the Programmed business nationally.
14. ABS CPI data was also discussed at the fourth meeting. For this purpose, Perth CPI data for December 2020 quarter was displayed using a screen connected to Ms Sheppard’s laptop. The CFMEU discussed that it was concerned about the risk of inflation and the prospect of higher interest rates. PPS explained that the data showed that the rise in cost of living was not yet evident in Perth, and that the data demonstrated that CPI in Perth was negative for the December 2020 quarter.
15. The distinction between annual and quarterly CPI was discussed by reference to the Perth CPI rates for the same reference period. PPS said in the meeting that it was not willing to agree to a wage mechanism by reference to annual CPI, liked it has agreed under the 2018 Agreement and 2015 Agreement. This was because annual CPI increases exposed it to significant fluctuation that would be unaligned to the short-term economic position of the business. PPS did not want to manage that fluctuation given that it was trying to manage a distressed situation caused by the pandemic, and trying to avoid job loss.
16. The CFMEU acknowledged the fairness of structuring increases by reference to quarterly figures given the distressed situation PPS was managing. The meeting was left by the CFMEU confirming that it wished to consider PPS’ offer further. The memorandum circulated to painters records PPS’ offer as discussed, and records an ask that employees seriously consider it, in light of the enormous challenges PPS experienced in the preceding year.
The backpay compromise that was reached
17. PPS maintained its offer at the fifth meeting on 10 June 2021, which was restated in the memorandum circulated to painters.
18. On 22 June 2021, an in-principle agreement was reached. Under this proposal, the CFMEU would accept PPS’ wage terms, on condition that they were improved to also include backpay component. That is, it was agreed that the first 2% pay rise would be backdated to commence on 1 April 2021.
19. Painters ultimately voted to approve this compromise, and the 2021 Agreement commenced to operate on 27 July 2021 [sic].
The terms of that gave effect to the in-principle agreement
20. How the bargaining unit expressed its wage proposal in writing is best represented by the trackedchanges version that was supplied to employees during the voting period. This trackedchanges version of the agreement documents the amendments between the words of Appendix A of the 2018 Agreement, and Appendix A of the 2021 Agreement:
Wages will increase by the following:
· The 1st wage increase, of 2%, will be effective the 1st full pay period on or after 30 March 2018 as calculated in the table above from the 1st full pay period on or after 1 April 2021.
· The 2nd wage increase, of 2.5% or Perth CPI for the relevant quarter (whichever higher), will be effective the 1st full pay period on or after 30th March 2019 2022 and will increase as per the Perth consumer price index or by 1.5%, whichever is greater.
· The 3rd wage increase, of 2.5% or Perth CPI for the relevant quarter (whichever higher), will be effective the 1st full pay period on or after 30th March 2020 2023 and will increase as per the Perth consumer price index or by 1.5%, whichever is greater.
The Perth consumer price index percentage will be taken from the June relevant quarter before the nominated increase.
21. As can be seen from the [trackedchanges], in the previous regime under the 2018 Agreement, the parties had agreed to administer the second and third wage increases by 1.5%, or ‘as per the Perth consumer price index’, ‘whichever is greater’. There is no dispute that these words of the 2018 Agreement referred to the annual movement in the Perth consumer price index, and that pay was administered on that basis.
22. In order to give effect to the in-principle agreement that was reached, a different form of wording was used: being that the second and third wage increases were to be 2.5%, or by reference to ‘Perth CPI for the relevant quarter’, ‘whichever higher’. A subsequent change to the last sentence changed the reference point from ‘the June quarter before the nominated increase’ (language of the 2018 Agreement) to ‘the relevant quarter before the nominated increase’ (language of the 2021 Agreement).
How wage increases were subsequently administered by PPS during the life of the 2021 Agreement
23. Consistent with how PPS says Appendix A operates, PPS administered the first increase at 2%, backdated to 1 April 2021. PPS then administered the second increase on 30 March 2022 at 2.5%, because Perth CPI for the December 2021 quarter was 1.4%. PPS then administered the third increase on 30 March 2023 at 3.6%, because this was the Perth CPI increase for the December 2022 quarter.
(e) Only Ms Sheppard gave direct evidence of the surrounding circumstances and objective factual matrix relating to the fourth and fifth bargaining meetings. Although Mr Brownlee and Mr MacFarlane attended some bargaining meetings, neither attended the fourth or fifth meetings.
(f) The evidence, including from the memoranda issued by Programmed following each bargaining meeting, is that the earlier meetings concerned discussions over nonwage matters, and that wages were discussed in the third, fourth and fifth meetings.
(g) Programmed submits that the CFMEU initially proposed annual wage increases of 5%, while Programmed initially contemplated increases of 1.5%. The parties subsequently moved towards a compromise. Programmed modified its offer of 2%, 2.5% and 2.5% by adding a CPI alternative, calculated by reference to the relevant quarter, in response to Mr Upton’s concerns about possible inflation. The offer was not accepted at that stage. After the fifth meeting, the parties reached agreement on the basis of Programmed’s offer, together with an additional backpay component.
(h) The CFMEU’s reliance on Sheehan [22] for the proposition that evidence of surrounding circumstances and the objective matrix of facts cannot be brought into account in the task of construction, directly contradicts OS ACPM [71], and was rejected by Kennett J in Endeavour Energy [46]–‍[51], [59]–[61].
(i) The CFMEU’s construction should be rejected based on an examination of the text, context and purpose.
(j) Based on the text of the Agreement: the words say ‘2.5% or Perth CPI for the relevant quarter (whichever higher)’. The words direct the parties to apply a Perth CPI figure ‘for’ the quarter. The words are plain; they are not ambiguous. In this sentence, ‘for’ directs the reader to the reference point, which is ‘the relevant quarter’.
(k) The words do not say the figure is to be derived from an annual figure, unlike the 2015 and 2018 agreements, which used the words ‘as per the Perth consumer price index’.
(l) The ‘basic principle’ of interpretation is that amendments are not to be treated as superfluous or insignificant but are to be interpreted as giving effect to an intention to change the meaning and operation of the text: Opal [69]; Australian Postal [20].
(m) The CFMEU’s contention that there was an insufficient change in the words to effect a change in meaning should be rejected; the task of the court is to discern objective intention, and not subjective questions about the sufficiency of the change in the amended wording. The CFMEU’s contention that the parties intended the Agreement to retain the same meaning as the 2015 and 2018 agreements does not sufficiently account for the amendments to the operative wording.
(n) All available context supports Programmed’s construction. The CFMEU’s construction is divorced from Programmed’s starting position of 1.5% increases, and discordant with the background, which included that Programmed was in financial distress because of losses arising from managing the effects of the pandemic, and wanted to control costs and avoid job losses. The CFMEU acknowledged its ambit 5% claim was unlikely to be accepted in that environment, and subsequently, agreed to a lesser increase.
(o) Programmed produced memoranda based on the agreed notes following the bargaining meetings, which memoranda referenced quarterly (not annual) CPI. The employees were notified in five separate documents on three occasions after the fourth meeting, that Programmed’s revised offer referenced quarterly (not annual) CPI.
(p) The evidence given by the painters called by the CFMEU does not assist the CFMEU because their evidence is contradicted by the documentary material provided to them. Furthermore, given the nature of agreement making under the FW Act, the painters who gave evidence constitute a minority of those who voted for the Agreement: out of the 19 employees covered by the Agreement, 12 employees voted in favour of it.
(q) The painters’ evidence under cross-examination was effectively that they could not recall reading the documents produced by Programmed, because they were sent to them five years ago now, but agreed that they possibly read them at the time. Mr Todd gave positive evidence that he read one of the documents. Mr Bates’ evidence was that he was focused on jobbased emails about painting, with other emails a second priority, but even he ultimately confirmed it was possible that he had read them at the time.
(r) None of the CFMEU’s witnesses attended the fourth bargaining meeting.
(s) Ms Sheppard gives evidence about the fourth bargaining meeting at paragraphs 72–‍93 of her witness statement. She says that a substantial part of the meeting involved discussion of the CPI data published by the ABS and that during the meeting, the Perth CPI data for the December 2020 reference period was displayed on a screen in the meeting room from her laptop. She attaches a true copy of the ABS website CPI data that she displayed in the meeting, marked CS12. Ms Sheppard says at paragraph 90 of her witness statement:
Accordingly, Mr Upton accepted the company’s position, that quarterly CPI (and not annual CPI) would be the reference point for inflationary increases above 2.5%. However, Mr Upton said that the union wished to consider the company’s wages offer before confirming their position.
(t) Ms Sheppard gives evidence about the fifth bargaining meeting at paragraphs 94–‍96 of her witness statement. At paragraphs 97–‍98 of her witness statement, Ms Sheppard gives evidence of Mr Norling advising her that Mr Upton had confirmed with Mr Norling that the CFMEU agreed to Programmed’s 7 May 2021 proposal, subject to Programmed agreeing to backdate the first 2% increase to 1 April 2021, which Mr Norling advised that he was comfortable doing, and requested her to amend the Agreement to reflect the backdated increase.
(u) Programmed relies on evidence that bargaining occurred against the background that it was experiencing financial difficulty and that the painters covered by the Agreement were the highest paid painters in Programmed’s business Australiawide. The CFMEU initially sought increases of 5% in each year of the Agreement, while Programmed initially contemplated increases of 1.5% in each year. Programmed submits that the negotiations were directed to reaching agreement in that context and accommodating the parties’ competing objectives. Ms Sheppard’s evidence was that the CFMEU acknowledged Programmed’s financial circumstances and accepted that its claim for annual increases of 5% would not be agreed.
(v) The CFMEU’s contentions attempt to fill the gaps in text, context and purpose by reference to the ‘logic’ of how inflation is usually taken into account in a minimum wage setting context. However, the Agreement was not the production of arbitration, but of negotiation in an enterprise bargaining scenario. Negotiated wage increases may not keep up with the cost of living, and when that happens, it becomes the subject matter of bargaining in future negotiations.
(w) Contract Resources involved a dispute concerning an enterprise agreement clause that provided for the first wage increase, payable from 1 January 2022, to be calculated as follows: ‘2% Increase to hourly rate or Brisbane December 2021 CPI whichever is greater’. The AWU argued that the clause referred to annual CPI for the December quarter, while the company argued that it referred to quarterly CPI. Lake DP considered the objective factual matrix, assessed the evidence, preferred the company’s evidence, and concluded that the parties intended quarterly CPI be applied. Contract Resources demonstrates that parties engaged in enterprise bargaining may agree to wage increases calculated by reference to quarterly CPI.
(x) Australian Workers’ Union, The v Visy Glass Operations (Australia) Pty Ltd T/A Visy Glass [2023] FWC 1379 (Visy), involved a dispute over the meaning of ‘CPI’ in an enterprise agreement clause which provided for a wage increase that was to be ‘2.5% of CPI whichever is greater’ with ‘CPI to be obtained from the ABS December statistics of the relevant year’. The company applied the national CPI published in December 2022, and the AWU argued that ‘CPI’ referred to the CPI for Adelaide. Anderson DP, applying the principles of construction, concluded that the parties objectively intended the clause to refer to Adelaide CPI. Visy demonstrates that parties can agree to various ways of describing their pay arrangements.
(y) In summary, Programmed submits that, read in context, the expression ‘Perth CPI for the relevant quarter’ refers to the quarteronquarter movement in CPI.
Consideration
40 As outlined at [28(e)] and [39(a)] above, the parties do not dispute the applicable principles.
41 The court’s task is to discern the objective, expressed intention from the text of the Agreement, read as a whole and in light of its context and purpose: Skene [197]; OS ACPM [33].
42 The starting point is the ordinary meaning of the words, read as a whole and in context: Skene [197]; Ridd [65]. Context is not an end in itself. The language of the instrument remains the start and end point: OS ACPM [30].
43 Enterprise agreements are not to be read narrowly or pedantically. Their framers are likely to be persons of a ‘practical bent of mind’. Where a term is undefined, and absent contrary indication, it is to be presumed that the term was intended to have its ordinary meaning: Skene [197], [202]; Ridd [65].
44 An enterprise agreement is not an inter partes contract. It is an instrument negotiated by bargaining representatives, voted upon by employees whom it will cover, approved by the Fair Work Commission, and given effect under the FW Act: Qube [23]; OS ACPM [34].
45 Where the language of an industrial instrument is ambiguous or susceptible to more than one meaning, evidence of surrounding circumstances, being the objective framework of facts, is admissible to assist in construing it: OS ACPM [71]. Even without ambiguity, account may be taken of the surrounding context: OS ACPM [71].
46 A mere inconvenience or existence of tension as between entitlements would not displace the ordinary or natural meaning of the text: Target [56]. In the absence of an absurdity, or at least a very seriously anomalous result, a departure from the plain text of the enterprise agreement would not be justified: Target [56]; Opal [50].
47 The court’s task remains directed to discerning the objective meaning conveyed by the words used, read as a whole and in their industrial context. It is not an inquiry into which outcome the court considers fairer or more commercially desirable.
The admissibility of Ms Sheppard’s evidence
48 As outlined at [29(a)] and [36] above, the CFMEU objected to the paragraphs of Ms Sheppard’s witness statement dealing with the bargaining meetings, on the basis that what was said in those meetings cannot bear on the construction question. I do not accept that contention for the reasons that follow.
49 OS ACPM [71] confirms that the objective framework of facts is admissible to assist construction. Kennett J’s analysis in Endeavour Energy [46]–‍[61] also demonstrates that Sheehan does not establish a rule that the process by which an enterprise agreement came into existence is inadmissible in every case.
50 In Endeavour Energy [51] and [58], Kennett J said: (emphasis added)
51 [Toyota] and Bianco Walling were, as I read them, not cases that turned on the construction of particular enterprise agreements. The observation that an enterprise agreement is not a contract–and should not be approached on the assumption that it derives legal force from the agreement of two or more ‘parties’ to be bound by particular terms–is, with respect, obviously correct. However, I do not think it follows that the process by which an enterprise agreement acquires legal force and the background against which that process occurs have no relevance to the construction of the agreement; nor do I understand Colvin J to have gone that far in Sheehan. It is useful to note some aspects of the statutory process.
…
58 Integral to that process is the drafting and consideration (and potentially the refinement during bargaining) of a text which is put to employees and voted on by them. The process is very different from a contractual negotiation or the passage of legislation; however, like those processes, it involves people drafting, discussing and adopting a text. The factual matrix in which these steps occur, at least to the extent that it is known or reasonably knowable by the persons to whom the FW Act affords a role in the process, is logically capable of shedding light on the meaning of words that appear in the text. The fact that an enterprise agreement will bind future employees, who have played no part in its development and approval, does not gainsay this point: the same is obviously true of legislation, and does not dissuade the courts from searching (albeit in a highly structured and constrained way) for the intention of the legislature.
51 Ms Sheppard prepared the memoranda, explanatory table and trackedchanges document supplied to employees before the vote. Her evidence is admissible to establish the provenance of those documents and the circumstances in which they were prepared and circulated. The documents themselves form part of the objective context in which the Agreement was made.
52 I accept the CFMEU’s submission that this is not an Endeavour Energy case in the sense that there is no longstanding and uncontested application of materially identical words capable of evidencing a shared understanding. I do not rely on Ms Sheppard’s evidence as proof of an actual common intention. Her evidence about the discussions during bargaining is of more limited weight. The construction I reach does not depend upon proof of an agreement between Ms Sheppard and Mr Upton.
The text
53 The operative words are ‘2.5% or Perth CPI for the relevant quarter (whichever higher)’.
54 In Appendix A, those words are followed by the sentence ‘The Perth consumer price index percentage will be taken from the relevant quarter before the nominated increase.’
55 I do not accept Programmed’s contention that the words are plain and unambiguous. Read in isolation, ‘Perth CPI for the relevant quarter’ is capable of bearing either construction advanced by the parties.
56 The CFMEU is correct that, at the time the Agreement was made, the ABS published CPI data quarterly. It follows that a CPI release for a particular quarter may state the movement from the previous quarter or the movement for the corresponding quarter of the previous year. The words ‘for the relevant quarter’ do not, by themselves, identify which comparison is intended.
57 However, Programmed’s construction sits more naturally with the words used. ‘Perth CPI for the relevant quarter’ more readily describes the CPI movement over the identified quarter. Had the makers of the Agreement intended to refer to annual CPI, more natural language was available, including ‘annual CPI’, ‘yearended CPI’, or the words used in the predecessor agreements, namely ‘as per the Perth consumer price index’.
58 That textual inclination is reinforced by the structure of Appendix A.
59 On the CFMEU’s construction, ‘Perth CPI for the relevant quarter’ refers to the annual CPI figure ending in the relevant quarter, and the sentence below the dot points identifies that quarter as the quarter preceding the nominated increase. On this construction, the two references overlap.
60 The placement of ‘for the relevant quarter’ within the operative dot points supports Programmed’s construction. Read naturally, those words describe the CPI measure to be compared with 2.5%, namely the movement in CPI over that quarter. The sentence below the dot points identifies which quarter is relevant: the quarter preceding the nominated increase. This construction differentiates between the words ‘for the relevant quarter’ in the operative dot points and the words ‘from the relevant quarter’ below the dot points. It thereby gives each expression work to do, which is a construction to be preferred: Project Blue Sky [71].
61 This textual consideration applies with less force to Appendix C, which does not contain the sentence below the dot points. In Appendix C, the words ‘for the relevant quarter’ identify the relevant quarter on either construction. It remains necessary to determine whether the same operative expression should bear the same meaning in both appendices. The parties’ agreement that the relevant quarter is, in each case, the December quarter preceding the nominated increase, resolves any uncertainty arising from the absence of that sentence from Appendix C.
62 I do not regard that textual consideration as determinative. The CFMEU’s construction remains open on the words. It is therefore necessary to consider the Agreement as a whole and the objective context.
The Agreement as a whole
63 The CFMEU relies on cl 10.2 as supplying the purpose of the CPI mechanism. I am not persuaded that cl 10.2 carries the weight the CFMEU places on it.
64 Clause 10.2(a) is a recital of the industrial consideration for the wage rates. It refers to productivity improvements and the wage rates applying to employees covered by the Agreement. It does not address how CPI is to be measured.
65 The CFMEU also relies on the reference in cl 10.2(a) to the wage rates ‘prescribed in Appendix B’. Whether that reference was intended to pick up the career progression structure in Appendix B, or was an error for Appendix A, does not affect the present issue.
66 Clause 10.2(b) is a ‘no further increases’ clause. It provides that the increases arising from cl 10.2 are the only wage increases allowable during the period of the Agreement, subject to the wage rates not falling below the basic periodic rate of pay under the relevant modern award. It does not link the Agreement’s increases to the annual wage review and does not address how CPI is to be measured.
67 Clause 10.2(c) preserves the award safety net for expense-related allowances. To that limited extent, the award’s allowance adjustment mechanism may affect outcomes under the Agreement. However, cl 10.2(c) does not supply the measure for the general increases in Appendix C, which have their own formula.
68 I accept the CFMEU’s broader contention that CPI clauses are commonly used to address movements in the cost of living. I also accept that an annual wage increase measured against three months of inflation may understate the erosion of real wages over the year.
69 However, that does not determine the construction of this Agreement. The Agreement was not the product of arbitration or minimum wage setting proceedings. It was the product of enterprise bargaining. As Bromberg J explained in Target [54]–‍[55], enterprise agreements reflect the compromises made in the bargaining process, including compromises between competing wage and cost positions. It is not to be expected that every entitlement will be objectively rational, or in harmony with any originally expressed purpose. Enterprise agreements are often made following a process involving the ‘horse trading’ of entitlements: Target [54].
70 Programmed challenges the CFMEU’s reliance on the reasons of Bromberg J in Target concerning his Honour’s reference to Sheehan. It is unnecessary to resolve that point. I rely on his Honour’s reasons in Target [54]–‍[56] concerning the realities of enterprise bargaining and the threshold for departing from the ordinary or natural meaning of the text, which state orthodox propositions consistent with the authorities cited in those passages.
71 The second and third increases in Appendices A and C provide a guaranteed increase of 2.5%, with the CPI figure operating as an additional entitlement if it exceeds that floor.
72 On Programmed’s construction, a quarterly CPI figure may be lower than the corresponding annual CPI figure.
73 However, and by way of example only, the following figures extracted from the two tables on p 1029 of the court book illustrate the point that it will not always be the case that the quarterly CPI figure is lower than the annual CPI figure:
Percentage change (from corresponding quarter of previous year)
Period Perth
2021 March 1.0
2020 September 1.3
Percentage change (from previous quarter)
Period Perth
2021 March 1.4
2020 September 1.8
74 Regardless, even if a quarterly CPI figure may be lower than an annual CPI figure, that does not make the clause absurd or seriously anomalous: Target [56]. On Programmed’s construction, the quarterly CPI figure was engaged for the third increase, producing an increase of 3.6% rather than the guaranteed floor of 2.5%. That does not determine the construction, because the Agreement is not to be construed by reference to the conduct of parties subsequent to its approval, Sheehan [23].
but it illustrates that Programmed’s construction gives the quarterly CPI figure practical operation.
75 The CFMEU is correct in saying at [28(hh)] above, that the parties could not have known, when bargaining for this Agreement, what the CPI figures would be in 2022 and 2023. That point does not favour either construction. The construction of the Agreement cannot be controlled by the fact that the annual CPI figures later exceeded the quarterly CPI figures, or by the fact that Programmed’s construction proved less generous in hindsight.
76 It is unnecessary to determine whether, as a matter of arithmetic, a quarterly CPI figure will usually be lower than the corresponding annual CPI figure. The question is not which mechanism better protects real wages. The question is which mechanism the Agreement, properly construed, provides.
The predecessor agreements and the trackedchanges document
77 The CFMEU contends that because the 2015 and 2018 agreements referred to a ‘quarter’ and were understood and administered by reference to annual CPI, the reference to a ‘quarter’ in the Agreement should be construed as meaning annual CPI.
78 Appendices A and C of the 2015 agreement stated, respectively: (emphasis added)
Wages will increase by the following:
· The 1st wage increase will be effective the 1st full pay period on or after 31st March 2016 and will increase as per the Perth consumer price index.
· The 2nd wage increase will be effective the 1st full pay period on or after 31st March 2017 and will increase as per the Perth consumer price index or by 2%, whichever is greater.
The Perth consumer price index percentage will be taken from the December quarter before the nominated increase.
…
Allowances will increase by the following:
· The 1st allowance increase will be effective the 1st full pay period on or after 31st March 2016 and will increase as per the Perth consumer price index.
· The 2nd allowance increase will be effective the 1st full pay period on or after 31st March 2017 and will increase as per the Perth consumer price index or by 2%, whichever is greater.
The Perth consumer price index percentage will be taken from the December quarter before the nominated increase.
79 Appendices A and C of the 2018 agreement stated, respectively: (emphasis added)
Wages will increase by the following:
· The 1st wage increase will be effective the 1st full pay period on or after 30 March 2018 as calculated in the table above.
· The 2nd wage increase will be effective the 1st full pay period on or after 30th March 2019 and will increase as per the Perth consumer price index or by 1.5%, whichever is greater.
· The 3rd wage increase will be effective the 1st full pay period on or after 30th March 2020 and will increase as per the Perth consumer price index or by 1.5%, whichever is greater.
The Perth consumer price index percentage will be taken from the June quarter before the nominated increase.
…
Allowances will increase by the following:
· The 1st wage increase will be effective the 1st full pay period on or after 30 March 2018 as calculated in the table above.
· The 2nd wage increase will be effective the 1st full pay period on or after 30th March 2019 and will increase as per the Perth consumer price index or by 1.5%, whichever is greater.
· The 3rd wage increase will be effective the 1st full pay period on or after 30th March 2020 and will increase as per the Perth consumer price index or by 1.5%, whichever is greater.
The Perth consumer price index percentage will be taken from the December quarter before the nominated increase.
80 The operative dot points in the 2015 and 2018 agreements are different. They refer to a wage increase measure based on a fixed percentage (of 2% in 2015 and 1.5% in 2018) or ‘as per the Perth consumer price index’, whichever is greater.
81 In each of the 2015 and 2018 agreements, the reference to a ‘quarter’ appeared in the sentence below the operative dot points. Its function was to identify the quarter from which the CPI percentage would be taken (from the December quarter or from the June quarter).
82 Given the structure of Appendices A and C of the 2015 and 2018 agreements, it was natural to read the words ‘as per the Perth consumer price index’ in the operative dot points as the annual movement in CPI, with the sentence below the dot points fixing the reference quarter.
83 The Agreement recast the operative dot points. The tracked-changes document supplied to employees during the access period shows that the words ‘as per the Perth consumer price index’ were deleted and replaced with ‘Perth CPI for the relevant quarter’. At the same time, the guaranteed floor increased from 1.5% in the 2018 agreement to 2.5% in the Agreement.
84 I accept the CFMEU’s contention that neither Opal [69] nor Australian Postal [20] establishes a rigid rule that every amendment must produce a change in meaning. The principle is that a construction which renders words otiose is to be avoided, particularly where those words have been introduced by amendment.
85 However, the difficulty for the CFMEU is not merely that the words changed; it is that the operative formula changed. The words which had previously been understood and administered as referring to annual CPI were removed. Different words were inserted. The reference to a relevant quarter was moved into the operative formula by which the wage increases were to be calculated.
86 On the CFMEU’s construction, those changes made no material change to the CPI measure. That is possible, but it is not the more natural inference from the changed words and structure. The former words, which had been understood and administered by reference to annual CPI, were removed. The reference to the relevant quarter was inserted into the operative dot points, and the guaranteed floor was increased to 2.5%.
87 The more natural inference is that those changes are consistent with a changed operative mechanism comprising a higher guaranteed floor and a recast CPI figure measured over the relevant quarter.
88 That inference does not depend on a rule that every amendment necessarily changes meaning. It depends on the ordinary work performed by the changed words in the changed structure.
89 That inference is also consistent with the principle in Kucks that the framers of enterprise agreements are people of a practical bent of mind who engage in enterprise bargaining to reach a concluded agreement. The more natural inference is that the framers negotiated and rewrote the operative formula in Appendices A and C to change the CPI measure.
The objective bargaining circumstances
90 The following matters are established on the evidence and are reflected in the materials provided to employees:
(a) The Agreement was negotiated in 2021, following a period in which Programmed said it had experienced financial difficulty arising from the pandemic: Exhibits R6, R7, C2, R8.
(b) The CFMEU originally sought wage increases of 5% per annum, and later revised its position downwards: Exhibits R8, R9.
(c) Programmed originally proposed wage increases of 1.5% per annum, and later revised its position upwards: Exhibits R9, R10, R11, R12, R16, R17.
(d) From 7 May 2021, the offers Programmed put to employees expressed the second and third increases as ‘2.5% or Perth CPI for the relevant quarter (whichever is higher)’: Exhibits R16, R17, R19.
(e) The tracked-changes document supplied to employees before the vote showed the deletion of the previous operative CPI formula and the insertion of the new wording: Exhibit R19.
91 I accept the CFMEU’s contention that the memoranda did not expressly explain the difference between annual CPI and quarterly CPI. I do not accept Programmed’s contention that the memoranda ‘explained’ to employees that quarterly CPI would apply. Repeating the disputed phrase is not the same as explaining it.
92 However, the memoranda are not irrelevant. The Memorandum dated 7 May 2021 describes the offer as one improved ‘to adjust, should CPI increase above 2.5%’. That language is consistent with a CPI percentage operating as an upside above a 2.5% guaranteed floor. It does not suggest that the annual CPI mechanism used in the predecessor agreements was simply being continued.
93 The CFMEU relies on the statement ‘No reduction in terms’ in the Memorandum dated 5 July 2021, arguing that, if quarterly CPI was intended, the statement was untrue. I do not draw that conclusion. The statement appears in a dotpoint summary of an inprinciple agreement. It is expressed generally. It does not address the distinction between annual CPI and quarterly CPI. Furthermore, the guaranteed floor increased from 1.5% to 2.5%. Whether the new mechanism would prove more or less beneficial than the predecessor mechanism depended on the future CPI figures that were not then known. A general statement of that character cannot control the meaning of the operative words in the Agreement.
94 The explanatory table is of limited assistance. Its description of Appendix A, that ‘increases relevant to the Perth consumer Price Index will be from the quarter prior to the nominated increase’, is consistent with both constructions. The reference in the Appendix C entry to ‘the June quarter’ appears to be an error carried over from Appendix A of the 2018 agreement; Appendix C of the 2018 agreement referred to the December quarter. I place little weight on the explanatory table.
Evidence about the bargaining meetings
95 None of the CFMEU’s witnesses attended the fourth or fifth bargaining meetings. The painters’ evidence was that they also did not attend the explanatory meeting convened by Programmed in July 2021 to explain the terms of the Agreement to the employees.
96 Ms Sheppard’s evidence of the fourth bargaining meeting, if accepted in full, would establish that the distinction between annual CPI and quarterly CPI was discussed, that Programmed said it would not agree to annual CPI, and that Mr Upton accepted quarterly CPI as the reference point, subject to the CFMEU considering the offer.
97 Consistent with the approach in Qantas [16], I place greater weight on the contemporaneous documents than on recollections of discussions held several years ago.
98 Ms Sheppard’s evidence must also be assessed in light of the concessions she made in crossexamination. She accepts that paragraph 78 of her witness statement transposed the December 2020 figures: the annual movement was –0.1% and the quarterly movement was –‍1.0%. She also accepts, when taken to the table prepared by Mr Cardinal and the ABS data in the court book, that the quarteronquarter figures over the period selected did not demonstrate that quarterly data was stable and annual data volatile.
99 Those concessions affect the reliability of Ms Sheppard’s recollection of detail. The statement at paragraph 81 of her witness statement that ‘quarterly Perth CPI had shown signs that it was starting to shift to a positive figure’ is difficult to reconcile with the corrected December 2020 quarterly figure. Therefore, I treat with caution the detailed account of the statements attributed to Mr Upton at paragraphs 87–‍90 of her witness statement and make no findings in reliance on those paragraphs.
100 However, the concessions do not require the rejection of her evidence in its entirety. She maintained that she and Mr Norling reviewed annual and quarterly CPI data before the fourth bargaining meeting; that material containing both annual and quarterly CPI measures was displayed at the meeting; that the distinction between annual CPI and quarterly CPI was discussed; and that Programmed communicated that it would not agree to annual CPI.
101 That core account is consistent with Ms Sheppard’s contemporaneous note recording a ‘copy of chart’ and a proposal of ‘2.5% to CPI’, and with the subsequent change to the operative wording. Ms Sheppard’s contemporaneous note does not itself establish that quarterly CPI was discussed or agreed, but it is consistent with CPI being a substantial subject of the meeting.
102 It is common ground that CPI and the wage formula were discussed at the fourth bargaining meeting, and that the Memorandum dated 7 May 2021 makes reference to CPI for the first time.
103 The CFMEU’s submission that Ms Sheppard’s evidence should be rejected rested on the proposition that Ms Sheppard’s description of the annual Perth CPI figures as volatile, and the quarterly figures as comparatively stable, must be a misreading of the data, particularly given that there was no uptick in the CPI data until the March 2021 quarter.
104 The CFMEU relied on the tables at p 1029 of the court book, downloaded by Mr Cardinal from the ABS website on 14 May 2026, some five years after the events in question. Ms Sheppard was crossexamined on the tables and maintained her account of the data she accessed at the time and her discussion with Mr Norling as to what that data showed. Although the underlying historical figures may be the same, Ms Sheppard’s evidence was that the CPI data she displayed at the fourth meeting was CS-12.
105 Whether the characterisation of annual CPI as volatile or quarterly CPI as stable was statistically accurate is not determinative. The relevant question is whether the discussions described by Ms Sheppard occurred. I am satisfied that they did.
106 Mr Upton was the CFMEU’s lead negotiator and attended the fourth and fifth meetings. He is a witness in the CFMEU’s camp whose evidence would have elucidated matters squarely in issue: Cayford [9]. The explanations offered for his absence, namely that his evidence was irrelevant to an objective construction task, and that he was overseas at the time of the hearing, are not compelling where Ms Sheppard’s account of those meetings was directly challenged.
107 Nonetheless, I do not draw a Jones v Dunkel inference from Mr Upton’s absence. It is unnecessary to do so. His absence means only that the core of Ms Sheppard’s evidence stands uncontradicted by direct evidence from the CFMEU negotiator who attended those meetings. That is a matter of weight only; it does not reverse the onus of proof or require Ms Sheppard’s evidence to be accepted.
108 On balance, I accept Ms Sheppard’s evidence that the distinction between annual CPI and quarterly CPI was raised at the fourth bargaining meeting and that Programmed communicated that it was not prepared to agree to an annual CPI increase.
109 I do not find it necessary to decide whether Mr Upton agreed, on behalf of the CFMEU, that quarterly CPI was fair, stable or better aligned with current conditions. The contemporaneous documents do not record such an agreement. Furthermore, given the statutory character of the Agreement (Toyota [88]; Qube [23]), any such acknowledgement between negotiators could not, of itself, determine the meaning of the instrument voted on by employees.
110 The evidence of the employees called by the CFMEU does not materially assist in resolving the construction question. Mr Brownlee, Mr Todd, Mr MacFarlane and Mr Bates did not attend the fourth or fifth bargaining meetings. Nor did they attend the meeting convened by Programmed to explain the terms of the Agreement. Their evidence about whether they read the documents was, understandably, affected by the passage of time.
111 In any event, the subjective understanding of individual employees cannot determine the objective meaning of the Agreement.
112 As outlined at [23] above, Programmed objected to those parts of paragraphs 5 and 6 of Mr MacFarlane’s witness statement in which he gave evidence concerning the understanding of unnamed painters. I admit his evidence of what was communicated to him as direct evidence of those communications. I do not admit it as proof of what unnamed painters knew, understood, or would have done. His own subjective understanding of Appendices A and C and his evidence of how he would have voted in a hypothetical situation are admitted but carry little weight for the reasons given above, that the subjective understanding of an individual employee cannot determine the objective meaning of the Agreement.
Fair Work Commission decisions
113 Contract Resources and Visy are decisions of the Fair Work Commission concerning differently worded provisions and different statutory or factual contexts. They are not binding on this court.
114 Contract Resources concerned an application under s 217 of the FW Act. As Lake DP observed at [95], the Commission’s task was to determine whether ambiguity or uncertainty existed, not to finally construe the enterprise agreement. I take from Contract Resources no more than that enterprise bargaining may produce wage clauses using quarterly CPI.
115 Visy likewise demonstrates that the meaning of a CPI clause depends on its particular words and context.
116 Neither decision materially assists in construing the Agreement: Opal [48].
Conclusion
117 For the preceding reasons, I find:
(a) The expression ‘Perth CPI for the relevant quarter’ is capable of bearing either construction, although its ordinary meaning inclines towards Programmed’s construction. This textual inclination is reinforced by the structure of the appendices and the placement of the words within the operative dot points of the appendices, which ensures a differentiation between ‘for the relevant quarter’ and ‘from the relevant quarter’.
(b) Nothing in the Agreement as a whole, including cl 10.2, requires a construction providing for annual CPI, as contended for by the CFMEU.
(c) The predecessor agreements provide some support for the CFMEU’s construction because they identified a reference quarter while applying annual CPI. However, the operative wording in the predecessor agreements differed materially from the Agreement.
(d) The tracked-changes document shows that the previous operative wording, which had been understood and administered by reference to annual CPI, was removed and replaced by wording expressly referring to ‘Perth CPI for the relevant quarter’, while the guaranteed floor increased to 2.5%.
(e) The memoranda did not expressly explain that quarterly CPI would apply, but they framed the CPI component as an adjustment above the 2.5% floor.
(f) The bargaining evidence provides limited support for Programmed’s construction, although the construction does not depend upon proof of an agreement between the bargaining representatives.
118 The CFMEU’s construction requires the changes to the operative wording to have made no material change to the CPI measure. It also depends substantially on an asserted purpose of protecting annual wages against annual inflation. That is an understandable industrial purpose, but it is not sufficiently expressed in the Agreement to displace the construction supported by the words, structure and objective context. Furthermore, Target [54]–‍[56] cautions against attributing to a negotiated instrument an assumed rationality which its text does not disclose.
119 Programmed’s construction gives effect to the words as recast, is consistent with the higher guaranteed floor and the recast CPI mechanism forming part of the revised offer, and does not produce an absurd or seriously anomalous result.
120 I find that the expression ‘Perth CPI for the relevant quarter’ in Appendices A and C means the quarteronquarter percentage movement in the Perth CPI for the December quarter preceding the nominated increase.
121 In Appendix A, the sentence below the operative dot points identifies the quarter from which the CPI percentage is to be taken. It is consistent with, and does not detract from, that construction.
122 Appendix C should be construed consistently with Appendix A. The same operative formula and increase dates appear in both appendices. The omission from Appendix C of the sentence appearing below the dot points in Appendix A does not justify a different construction.
123 It follows that:
(a) The second increase, payable from the first full pay period on or after 30 March 2022, was 2.5%, because the quarterly movement in the Perth CPI taken from the December 2021 quarter was 1.4%.
(b) The third increase, payable from the first full pay period on or after 30 March 2023, was 3.6%, because the quarterly movement in the Perth CPI taken from the December 2022 quarter exceeded 2.5%.
124 Programmed administered the increases to ordinary rates and rostered days off, travel allowance, personal leave and annual leave, including annual leave loading, on that basis.
125 The CFMEU bears the onus of proving the alleged contravention on the balance of probabilities. It has not established that Programmed contravened the Agreement and thereby contravened s 50 of the FW Act.
126 The claim for declaratory relief is not made out. Accordingly, the claims for payment under s 545(3), interest under s 547 and pecuniary penalties under s 546 of the FW Act do not arise.
127 The Originating Claim is dismissed.



C. TSANG
INDUSTRIAL MAGISTRATE