Interpreting employment contracts

Many of the cases which come before the industrial tribunals involve a dispute about the meaning of an employment contract. What are the principles which apply to that legal task? Here is a summary.

“It is well-established that the intention of any private legal document, including a deed, is to be ascertained from the document itself, and not from any extrinsic material, such as the subjective intention of the persons involved in drafting the deed: Byrnes v Kendle [2011] HCA 26; 243 CLR 253 at [53]-[59] (Gummow and Hayne JJ, French CJ agreeing at [17]), [98]-[115] (Heydon and Crennan JJ), and the authorities there set out. Gummow and Hayne JJ said, at [53]:

The fundamental rule of interpretation of the 1997 Deed is that the expressed intention of the parties is to be found in the answer to the question, “What is the meaning of what the parties have said?”, not to the question, “What did the parties mean to say?”

Heydon and Crennan JJ said (at [115]):

As with contracts, subjective intention is only relevant in relation to trusts when the transaction is open to some challenge or some application for modification – an equitable challenge for mistake or misrepresentation or undue influence or unconscionable dealing or other fraud in equity, a challenge based on the non est factum or duress defences, an application for modification by reason of some estoppel, an allegation of illegality, an allegation of “sham”, a claim that some condition has not been satisfied, or a claim for rectification. But subjective intention is irrelevant both to the question of whether a trust exists and to the question of what its terms are.”

CEEEIPP & Allied Services Union of Australia v Australian Postal Corporation (2017) FCA 1091 delivered 15 September 2017 per Moritmer J