Australian Maritime Officers' Union, The v DP World Melbourne Limited
[2025] FWC 2264
•4 AUGUST 2025
| [2025] FWC 2264 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Maritime Officers’ Union, The
v
DP World Melbourne Limited; DP World Sydney Limited; DP World (Fremantle) Limited; and DP World Brisbane Pty Limited
(C2024/7287)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 4 AUGUST 2025 |
Alleged dispute about matters arising under the DP World Supervisor, Yard Planner and Production Coordinator Enterprise Agreement 2024 – accrual and payment of personal/carer’s leave under enterprise agreement following High Court decision in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU) [2020] HCA 29; (2020) 271 CLR 495; entitlement to fifth week of annual leave for yard planners; meaning of the term “available to work”
Overview
An application has been made by the Australian Maritime Officers’ Union (AMOU/Applicant) for the Commission to resolve a dispute under the DP World Supervisor, Yard Planner and Production Coordinator Enterprise Agreement 2024 (Agreement).[1]
The Agreement applies to relevant employees of DP World (Respondent), employed by DP World Melbourne Limited (DPW Melbourne), DP World Sydney Limited (DPW Sydney), DP World (Fremantle) Limited, and DP World Brisbane Pty Limited, who are engaged to work by any of these entities at their terminals in the ports of Brisbane, Sydney, Melbourne and Fremantle, and who are employed as Operations Supervisors, Maintenance Supervisors, Yard Planners and Production Coordinators. The Applicant is covered by the Agreement.
The parties are in dispute as to the entitlement of relevant employees to:
a) paid personal/carer’s leave (PC Leave) under clause 27.1 of the Agreement (PC Leave Dispute); and
b) the fifth week of annual leave for Yard Planners (currently employed at DPW Sydney (Port Botany terminal) and DPW Melbourne (West Swanston terminal)), including by reference to the Undertaking that was provided by the Respondent when the Agreement was approved (and thus became a term of the Agreement) (AL Dispute).
There is no contest between the parties as to the jurisdiction of the Commission to resolve this dispute by way of arbitration in accordance with clause 7 of the Agreement, and s.739 of the Fair Work Act 2009 (Act). I equally make this finding.
Directions were issued for the filing and serving of submissions and evidence, and a hearing was conducted in Sydney. At the hearing, Mr Chris Neiberding, Senior Industrial Officer, appeared for the Applicant, and Mr Brendan Milne, Partner, Kingston Read lawyers, appeared (with permission) for the Respondents.
Interpretation of enterprise agreements
My determination in this matter applies the principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd.[2] Such principles were neatly and helpfully summarised by Deputy President Gostencnik in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union v Paper Australia Pty Ltd:[3]
“In short compass, much like the approach to construing a statute, the construction of a provision in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant.”[4]
Background to Dispute
The background to this dispute can be summarised as follows:
a) DP World employs a number of supervisors, yard planners and production coordinators at terminals across Australia, and the Agreement applies to those employees in relation to that employment. Previous reiterations of the Agreement were approved by the Commission in 2015 and 2020.[5]
b) On 13 August 2020, the High Court delivered its decision in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU)[6] (Mondelez). By majority (4:1), the High Court clarified what is meant by ‘a day’ under s.96 of the Act (for the purpose of calculating employee entitlements to paid personal/carer’s leave). The High Court held that one ’day’ refers to a “notional day” consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week period. An employee’s entitlement to ‘10 days of paid personal leave’, regardless of their roster arrangement, is therefore to be calculated and paid at the rate of 1/26 of that employee’s ordinary hours of work in a year. For example, an employee who works their ordinary hours on a compacted roster (like an eight day fortnight) may extinguish their entitlement to ‘10 days’ of paid personal/carer’s leave in a year before they can actually take ten separate calendar days of leave.[7] That said, all permanent employees are still be entitled to two weeks of personal/carer’s leave each year (based upon the days and hours they work (or are rostered for ordinary time) each two week period). In other words, personal/carer’s leave under the NES still provides for two weeks ordinary time paid leave per year for all permanent employees, but it is based upon the employees’ rostered hours and rostered days, i.e. not by reference to some type of illusory or disconnected ‘ten’ single calendar days per year.
c) Negotiations for the Agreement (to replace the DP World Supervisors & Yard Planners Enterprise Agreement 2020)[8] occurred between 10 March 2023 and 18 June 2024. The Agreement was approved by the Commission on 22 July 2024 (to take effect on 29 July 2024).[9]
d) In making arrangements to have the terms of the Agreement entered into the Respondent’s payroll system, the Respondent became aware (on 26 July 2024) that personal/carer’s leave under the predecessor agreement based on employee shift lengths, rather than the relevant employee’s ordinary hours of work. After a preliminary audit, the Respondent also became aware that Yard Planners had also been accruing five weeks of annual leave despite them not having to work shifts consisting of day, evening and night shifts each roster period. It was the Respondent’s understanding (or position) that these Yard Planners were only entitled to accrue four weeks of annual leave under the Agreement.[10]
e) In August 2024, following a formal audit (post the Agreement commencing operation) (Audit), DP World notified employees that a some employees had been incorrectly accruing personal/carer’s leave and/or the fifth week of annual leave, which would be adjusted accordingly.[11] On 14 August 2024 and 22 August 2024, employees were notified by the Respondent of the Audit outcomes that were to be implemented ‘moving forward’ (i.e. the Respondent has not sought to rectify accruals it considers it previously accrued or paid erroneously, but seeks to apply the Audit outcomes only from the date that employees were relevantly notified, and into the future).[12]
The AMOU and its affected members do not agree with the conclusions of the Audit, or the implementation of same. Having sought to resolve this disagreement with the Respondent without success, the AMOU filed this dispute. Conciliation being fruitless, the AMOU now asks that the PC Leave Dispute, and the AL Dispute, be resolved by the Commission.
PC Leave Dispute
Clause 27.1 of the Agreement reads:
“27.1 Personal/carer's leave is provided for in the NES. Employees shall be entitled to 10 days of paid personal/carer's leave per year. Personal/carer's leave accrues progressively across the year.”
The NES entitlement to personal/carer’s leave is relevantly set out under s.96 of the Act, which reads:
“Entitlement to paid personal/carer's leave
Amount of leave
(1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to 10 days of paid personal/carer's leave.
Accrual of leave
(2) An employee's entitlement to paid personal/carer's leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee's ordinary hours of work, and accumulates from year to year.”
The AMOU’s submissions on the PC Leave Dispute (including the construction of clause 27 of the Agreement) are summarised as follows:
a) The Respondent failed to raise the outcome of the decision in Mondelez during Agreement negotiations, or in its explanations to employees prior to the approval of the Agreement. It follows that the Agreement was not genuinely agreed, including because of a material misrepresentation or material omission that impacted upon employee voting.
b) This dispute concerns the construction of the personal/carer’s leave provisions of the Agreement, not the NES.
c) It has always been (or historically been) the common understanding of the parties that personal/carer’s leave under the Agreement is not applied per Mondelez. There is no evidence that the parties ever turned their mind to Mondelez during bargaining, or otherwise.
d) The personal/carer’s leave clauses in the DP World Supervisors and Yard Planners Enterprise Agreements 2015, 2020, and 2024 are materially identical in wording:
·2015 Agreement (Clause 27): “Personal/carer’s leave is provided for in the NES. Employees shall be entitled to 10 days of paid personal/carer’s leave per year. Personal/carer’s leave accrues progressively across the year.”
·2020 Agreement (Clause 26): “Personal/carer’s leave is provided for in the NES. Employees shall be entitled to 10 days of paid personal/carer’s leave per year. Personal/carer’s leave accrues progressively across the year.”
·2024 Agreement (Clause 27): “Personal/carer’s leave is provided for in the NES. Employees shall be entitled to 10 days of paid personal/carer’s leave per year. Personal/carer’s leave accrues progressively across the year.”
e) Further to (d), there has been no substantive change to the wording of the personal/carer’s leave clauses across these enterprise agreements. The consistent language demonstrates a shared understanding between the parties that employees are entitled to 10 “working” days of personal/carer’s leave per year, consistent with their shift lengths and patterns.
f) The employees covered by the Agreement are paid a salary, as set out in Schedule 1 to the Agreement. Clause 27.16 provides that the “salary rate” is payable when personal leave is taken. This salary-based arrangement supports the AMOU’s construction of clause 27. Employees are entitled to take 10 “working” days of personal/carer’s leave per year, consistent with their shift lengths and patterns, and without any reduction in their salary.
g) The Commission should determine that under clause 27 of the Agreement, relevant employees who work a roster made up of 12 hour shifts are entitled to be absent for ten 12 hour shifts per year, i.e. the employees working such a roaster are entitled to 120 hours of paid personal/carer’s leave per year. [13]
The Respondent made the following submissions in respect of the PC Leave Dispute (and the construction of clause 27 of the Agreement):
“8. Prior to 2020, there was uncertainty as to what constituted a “day” of personal/carer’s leave for the purposes of the NES. That matter was, however, definitively resolved by the High Court of Australia in Mondelez, where it was held that a “day” is a “notional” day consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period, rather than the portion of a 24-hour period that would otherwise be allocated to work.
9. Properly construed, clause 27 of the Agreement contemplates that employees will accrue 10 “notional” days of paid personal/carer’s leave each year in accordance with the NES. Both textual and contextual considerations support that conclusion.
10. Three textual matters support DP World’s construction: First, subclause 27.1 of the Agreement explicitly states that personal/carer’s leave is provided for in the NES. Second, subclause 4.3 explicitly states that the Agreement is to be read and interpreted in conjunction with the NES. Third, there is nothing in the Agreement that suggests that it provides a different entitlement to the NES, and if that was to be the case, one would have expected the parties to include clear language demonstrating that intention.
11. As to contextual matters, four support DP World’s construction: First, the explanatory materials provided to employees explicitly state that employees would be entitled to personal/carer’s leave “in accordance with the NES, being 10 days per year”. Second, the explanatory materials stated that clause 27 provides the “same” entitlements as the SIA 2020, which refers back to the NES. Third, the legislative context supports DP World’s construction - clause 27 (and its equivalents in predecessor agreements) was bargained for, made and approved under the Act (which self-evidently included the NES). Fourth, the construction contended for by the AMOU would not, for the reasons identified in Mondelez, contribute to a sensible industrial outcome. For example, it would give rise to absurd and inequitable outcomes, including the following:
(a) an employee whose ordinary hours of work are spread over fewer days with longer shifts would be entitled to more paid personal/carer’s leave than an employee working the same number of ordinary hours per week spread over more days; and
(b) a part-time employee working one day per week would be entitled to ten days of paid personal/carer’s leave per annum, that being the same as a full-time employee. For example, an employee working one 12 hour shift per week would, on the AMOU’s contention, be entitled to 120 hours of personal/carer’s leave per year.
12. All of these textual and contextual matters support DP World’s contention that employees accrue 10 “notional” days of paid personal/carer’s leave each year in accordance with the NES.
13. As to the AMOU’s reliance on past practices, as recognised by the Full Court in Target [Target Australia Pty Ltd v SDA [2023] FCAFC 66], that is simply insufficient to justify any particular construction. Even so, at best, the AMOU’s evidence establishes a common inadvertence, rather than any common understanding between the parties. That is not enough, and even if it were (which Target makes clear it is not), the parties specifically displaced those practices when they made the Agreement. Finally, the subjective intentions or expectations of the AMOU and its witnesses are wholly irrelevant.
14. For the reasons set out above, the Commission ought reject the AMOU’s contentions, and confirm that, properly construed, clause 27 of the Agreement contemplates employees accruing 10 “notional” days of paid personal/carer’s leave each year in accordance with the NES – that is, a “notional” day consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period.”[14]
The Respondent also made the following submissions as to the alleged approval of the Agreement absent genuine agreement:
“6. This argument can be dealt with expeditiously: once an enterprise agreement is approved by the Commission it is accepted as validly made, and the AMOU cannot assert that the Commission has jurisdiction (other than by way of appeal) to set it aside. Moreover, the AMOU’s argument in this respect is not a dispute under the Agreement or the National Employment Standards, and is therefore not a dispute that engages the dispute resolution procedure under the Agreement.
7. In any event, as is plain from the evidence, DP World explained clause 27 of the Agreement to the employees in accordance with section 180(5) of the Act (as it then was), including that it provided the “same” entitlement as the [Stevedoring Industry Award 2020] (that being the NES) and would be “in accordance with the NES, that being 10 days per year, accrued progressively”. That there is now a disagreement about the meaning of clause 27 does not (and cannot) demonstrate that DP World’s explanation was deficient. The obligation imposed on an employer by section 180(5) of the Act (as it then was) was not the jurisdictional fact - the Commission’s satisfaction that DP World had complied with the obligation was. Deputy President Cross [who approved the Agreement] was, self-evidently, so satisfied.”[15]
Consideration and determination of the PC Leave Dispute
In resolving the PC Leave Dispute, I make the following findings and conclusions:
(a) there is no dispute between the parties as to the construction of s.96 of the Act (i.e. as set out in the decision in Mondelez);
(b) there is no dispute that the parties did not (or failed to) turn their minds to the effect of Mondelez decision during bargaining (i.e. issues of common understanding do not arise);[16]
(c) parliament has amended the Act multiple times since the decision in Mondelez was made in 2020. None of those amendments (or additions) have sought to alter the effect of the decision in Mondelez as it concerns s.96 of the Act. I am (of course) bound to follow and apply the decision in Mondelez;
(d) in my view, the words of clause 27 of the Agreement, read in context, do no more than replicate the words of s.96 of the Act (albeit in a consolidated form). They create an entitlement under the Agreement to personal/carer’s leave (to accrue and be paid as if the Agreement entitlement was the NES entitlement). History and/or custom and practice as to the application of clause 27 of the Agreement, arising intentionally, by mistake, or from a shared/common understanding, cannot alter the position that the words of clause 27 of the Agreement (properly construed) do no more than replicate the words set out in s.96 of the Act;
(e) in view of (a) and (b) above, an employee’s entitlement to personal/carer’s leave under clause 27 of the Agreement is as set out in s.96 of the Act (per the decision in Mondelez).[17] It follows that I find that properly construed, clause 27 of the Agreement provides that relevant employees accrue 10 “notional” days of paid personal/carer’s leave each year (as they would under the NES (at s.96(1) of the Act)), with a “notional” day consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period; and
(f) it is not for me to determine, and I have no power to resolve, the validity of the Agreement, as it concerns the issue of genuine agreement, its approval by the Commission, or otherwise. In other words, in these proceedings, I am required to take the Agreement as I find it, being both valid and enforceable under the Act in accordance with its own terms.
I resolve the PC Dispute in favour of the Respondent. I find that clause 27 of the Agreement is to be construed and applied such that it’s effect is the same as that under s.96 of the Act (per the decision in Mondelez).
AL Leave Dispute
Clauses 24.1 and 24.2 of the Agreement read:
“24.1 Annual leave is as provided for in the NES.
24.2 An Employee for each year of service will be entitled to either 4 weeks of paid annual leave, or 5 weeks if the Employee is classified as a Continuous Shiftworker under this Agreement. For clarity a Monday to Friday Day Worker is not a Continuous Shiftworker and as such is entitled to 4 weeks of paid annual leave.”
Clause 6 (Interpretation and Definitions) of the Agreement defines a ‘Continuous Shiftworker’, a ‘Shiftworker’, and a ‘Monday to Friday Dayworker’, as follows:
· "Continuous Shiftworker" means an Employee who is available to work on any shift Monday to Sunday and who actually attends for work as required from time to time on both Saturday and Sunday.
· “Monday to Friday Dayworker” means an employee whose ordinary hours of work are worked on day shift, which may be any of the five days each week, Monday to Friday inclusive.
· "Shiftworker" means an Employee, other than a Continuous Shiftworker, who is engaged to work in a system of consecutive shifts throughout the 24 hours of the five days (Monday to Friday) of each week. A Shiftworker does not regularly work on weekends or public holidays.
The Undertaking that accompanied the approval of the Agreement (and thus became a term of the Agreement)[18] is consistent with the Agreement definition of ‘Continuous Shiftworker’. That Undertaking reads:
“For the purposes of Division 6 of the NES a shift worker is an employee who is available to work on any shift Monday to Sunday and who actually attends for work as required from time to time on both Saturday and Sunday.”
Clause 20.1 (Ordinary Hours) of the Agreement reads:
“(a) The ordinary hours of work for a full time Employee are worked in a system of consecutive shifts throughout the 24 hours of the seven days of each week that shall be agreed at each terminal and is subject to the Employee's category of engagement.
(b) Rosters may be between 36 to 42 average hours per week.”
Clause 23 (Rosters) of the Agreement reads:
“23.1 It is expected that the roster will generally ensure sufficient coverage to meet operational requirements.
23.2 Continuous Shiftworker Rosters identifying ordinary hours and predictable time off will be agreed by the parties in each Terminal and will include:
(a) work across all seven days of the week;
(b) work across the full 24 hour period (i.e. day, evening and night shifts, or day and night shifts) (this does not apply to Day Workers); and
(c) shift lengths of between 7 and 12 hours, which includes pre and post shift handover and planning.
23.3 Employees agree that it is an operational requirement that they perform work on public holidays.
23.4 Employees covered by this Agreement guarantee to provide the necessary coverage at all times as required by the Company provided sufficient Employees are employed to meet operational needs.
23.5 Double Headers and shift extensions shall not be worked by Employees except in unforeseen circumstances.”
Mr Troy Bentley, Operations Supervisor, at the DP World Port Botany Terminal, gave evidence (on behalf of the AMOU) that the Port Botany Terminal has two Yard Planners, and that both of these Yard Planners work 12 hour shifts, across 7 days of the week, from 6:00am to 6:00pm. These Yard Planners work (i.e. are rostered to work, and actually work) regularly (or from time to time) on Sundays and public holidays.[19]
Ms Kylie Rafferty, Yard Planner, at the DP World Melbourne Terminal, in her evidence (on behalf of the AMOU) highlights that her current employment contract with the Respondent contains a clause that reads: “Your indicative roster is subject to change by the Company from time to time as operationally required.”[20] She identifies that the Respondent makes (or has made) unilateral changes to her roster (and the roster of others) from time to time.[21] Further, Ms Rafferty states:
“The ordinary hours of work for every roster that I have worked as a Yard Planner at DP World Melbourne, including my current roster, have always extended well beyond the 0700-1700 Monday to Friday that the Award considers day work.
I am available and willing to be rostered on any shift, and I work both Saturday and Sunday every third week as part of the ordinary hours of my current roster.”[22]
Ms Emma Higginbottom, Employee & Industrial Relations Adviser, West Swanson Dock Terminal, West Melbourne, gave the following evidence (on behalf of the Respondent):
“5. DP World and its fully owned subsidiaries are a terminal and logistics supply chain solution provider which includes the operation of four terminals in the following locations in Australia:
(a) Port Botany in New South Wales (DP World Sydney);
(b) West Swanson in Victoria (DP World Melbourne);
(c) Fisherman Islands in Queensland (DP World Brisbane); and
(d) Fremantle in Western Australia (DP World Fremantle)
6. DP World Sydney employs supervisors and yard planners at Port Botany. DP World Melbourne employs supervisors and yard planners at West Swanson. DP World Brisbane employs supervisors and production coordinators at Fisherman Island. DP World Fremantle employs supervisors at Fremantle.
7. The DP World Supervisor, Yard Planner and Production Coordinator Enterprise Agreement 2024 (Agreement) applies to these employees in respect of their employment with the entities mentioned at clause 3.2 of the Agreement.”[23]
***
“15. DP World employs yard planners at Port Botany and West Swanson only. The yard planners work different rosters at Port Botany and West Swanson.
16. At Port Botany, yard planners currently work the following roster:
| Week | Mon | Tue | Wed | Thu | Fri | Sat | Sun |
| 1 | D12 | D12 | D12 | D12 | OFF | OFF | OFF |
| 2 | OFF | D12 | D12 | D12 | D12 | OFF | OFF |
| 3 | OFF | OFF | D12 | D12 | D12 | D12 | OFF |
| 4 | OFF | OFF | OFF | D12 | D12 | D12 | D12 |
| 5 | OFF | OFF | OFF | OFF | D12 | D12 | D12 |
| 6 | D12 | OFF | OFF | OFF | OFF | D12 | D12 |
| 7 | D12 | D12 | OFF | OFF | OFF | OFF | D12 |
| 8 | D12 | D12 | D12 | OFF | OFF | OFF | OFF |
17. At West Swanson, yard planners currently work the following roster:
| Week | Mon | Tues | Wed | Thu | Fri | Sat | Sun |
| 1 | D8 | D8 | D8 | D8 | OFF | OFF | OFF |
| 2 | E8 | E10 | OFF | OFF | D8 | D10 | D10 |
| 3 | OFF | OFF | E10 | E10 | E10 | OFF | OFF |
[24]
During cross-examination, Ms Higginbottom gave the following evidence:
(a) an employee’s roster is subject to change by the Respondent (after relevant consultation has occurred as required under the Agreement, per clause 8.11). In other words, a roster change does not require the mutual agreement of an affected employee; and
(b) the roster at the Port Botany Terminal is (currently) a day shift roster, and the roster at the West Swanson Terminal is (currently) a day and evening shift roster. Previously the roster for Yard Planners at the West Swanson Terminal was a day, evening and night shift roster.[25]
The AMOU’s written submissions on the AL Leave Dispute[26] are summarised as follows:
(a) Yard Planners employed by DP World in Melbourne and DP World in Sydney meet the definition of a shift worker under clause 24.2 of the SIA 2020, clause 24.2 of the Agreement, and the Undertaking. Relevant employees satisfy this definition because they:
·are ‘available’ to work on any shift Monday to Sunday; and
·actually attend for work on both Saturday and Sunday as required.
(b) The terms of the Agreement (including the Undertaking) do not require a continuous 24-hour roster for employees to qualify for the fifth week of annual leave. The roster that relevant employees work involves both evening and day shifts, which constitutes shiftwork rather than day work.
(c) Further to the foregoing, closed port days, which are recognised under the Agreement, also demonstrate that the Yard Planners are regularly rostered to work on public holidays and irregular shifts, satisfying the requirements of the definition of “Continuous Shiftworker” under the Agreement.
(d) The Respondents contend that the current rosters (day and evening shifts only) preclude yard planners from being considered "available" for all shifts. The Respondents’ argument that yard planners are not "available" to work any shift Monday to Sunday because they do not currently work night shifts ignores the practical reality of their rostered availability.
(e) The term "available" must be interpreted in the context of the Agreement as a whole, including its purpose and intent. The Agreement does not require employees to currently work all types of shifts (day, evening, and night) to meet the "availability" criterion. The term "availability" should be assessed based on the employees’ willingness and contractual obligation to work shifts as required by DP World, rather than their current rostered patterns. Clause 21.3 of the Agreement, which limits DP World’s ability to compel employees to work overtime, does not affect the employees’ availability under the Agreement.
(f) Rosters are operational arrangements and do not negate the employees’ general availability to work any shift if required. The Respondents’ interpretation imposes an unduly restrictive reading of the Agreement, contrary to its purpose of ensuring flexibility in shiftwork arrangements. The yard planners’ inclusion in a shift roster that spans all seven days demonstrates their availability to work any shift Monday to Sunday, even if they are not currently required to work night shifts. Evidence of past practices or correspondence demonstrating that yard planners have been or could be required to work night shifts supports the AMOU’s position.
(g) The Respondents rely upon s.87 of the Act and case law (including O’Neill v Roy Hill Holdings Pty Ltd[2015] FWC 2461 (Roy Hill)), to argue that yard planners do not meet the criteria for an additional week of annual leave.
(h) The AMOU position is that the Respondents’ reliance upon s.87 of the Act is misplaced for the following reasons:
·Section 87 establishes minimum entitlements under the NES, which can be supplemented by enterprise agreements. The Agreement in this matter provides for more generous entitlements than the statutory minimum (under s.87 of the Act), including a broader definition of "shiftworker" than under clause 24.2 of the SIA 2020.
·The Agreement explicitly defines a "shiftworker" as an employee who is available to work on any shift Monday to Sunday and who actually attends for work as required from time to time on both Saturday and Sunday. This definition is broader than the NES definition and reflects the specific operational requirements of DP World’s yard planners.
(i) The AMOU position is that the Respondents’ reliance upon Roy Hill is misplaced. In Roy Hill, the Commission considered whether an employee met the NES definition of "shiftworker" (based on the employee’s rostered hours and work patterns). The case thus involved a different factual context, where the employee was not regularly rostered to work on Sundays or public holidays, and did not meet the NES definition of "shiftworker." In contrast, the yard planners in this matter are:
·available to work any shift Monday to Sunday, as evidenced by their contractual obligations and historical work patterns; and
·regularly attend work on both Saturdays and Sundays as part of their ordinary rostered hours, satisfying the broader definition of "shiftworker" under the Agreement.
Mr Neiberding (on behalf of the AMOU) made the following oral submissions on the AL Leave Dispute at the hearing:
“The AMOU submits that the yard planners employed by DP World Melbourne Limited and DP World Sydney Limited are entitled to accrue five weeks of annual leave under the DP World Supervisor, Yard Planner and Production Coordinator Enterprise Agreement. We say this entitlement arises from the status of shift worker as defined by the agreement and undertakings provided by DP World.
The respondent's interpretation of 'availability' is restrictive and inconsistent with the purpose and intent of the agreement. The term 'available' must be interpreted in the context of the agreement as a whole, which prioritises flexibility in shift work arrangements.
The AMOU has demonstrated that the yard planners are contractually obliged and willing to work shifts as required, regardless of their current roster patterns, and the respondent's argument that current roster precludes yard planners from being available ignores the broader contractual obligations and operational realities.
The respondent's reliance on current rosters to argue against the yard planners' availability is misplaced. Rosters are operational tools and do not negate the employees' general availability to work any shift if required. Clause 21.3 of the agreement, which limits DP World's availability to compel employees to work overtime, does not diminish the yard planners' availability under the agreement. Evidence of past practices and correspondence further supports the AMOU's position that yard planners have been, or could be, required to work night shifts, demonstrating their availability.
The undertakings provided by DP World clarifies that a shift worker is an employee who is available to work any shift Monday to Sunday and attend work as required on both Saturdays and Sundays. This undertaking reflects an intention to extend the definition of shift worker beyond minimum statutory requirements under section 87 of the Fair Work Act.
The AMOU submits that the yard planners' inclusion in a shift roster spanning all seven days demonstrates their availability to work any shift Monday to Sunday, even if they are not currently required to work night shifts.
The respondent's reliance on section 87 of the Fair Work Act and case law such as O'Neill v Roy Hill Holdings Pty Ltd is misplaced. Section 87 establishes a minimum standard which can be supplemented by enterprise arrangements. The agreement provides more generous entitlements than the statutory minimum. Further, the factual circumstances of O'Neill differ significantly from this matter and do not consider the specific terms of this agreement.
The AMOU respectfully submits that the yard planners meet the criteria of accruing five weeks' annual leave under the agreement. The respondent's arguments impose an unduly restrictive interpretation of the agreement, contrary to its purpose and intent. The Commission should reject the respondent's submission and confirm that the yard planners are entitled to five weeks of annual leave for each year of service.”[27]
The Respondent made the following written submissions in respect of the AL Leave Dispute:
“While DP World accepts that the relevant yard planners (excluding any Monday to Friday Day Workers, as defined) are shiftworkers that attend for work on both Saturdays and Sundays as required from time to time, it disputes that they are available to work on any shift Monday to Sunday.
As is apparent from clauses 20-23 of the Agreement, the Agreement contemplates employees working a system of consecutive shifts during the 24 hours of the seven days of each week, as agreed at each terminal. Such an agreement can involve continuous or irregular shifts, arranged as either day, evening and/or night shifts (or a combination thereof). Any work outside of that roster is overtime, and only one nominated employee (designated on a locally agreed overtime roster) can be compelled to work it.
Despite this framework, the AMOU contends that yard planners are available to work any shift Monday to Sunday, merely because they now assert that is so. However, that contention misapprehends what it means to be both available, and to be available to work any shift Monday to Sunday, under the Agreement; ignoring both important textual and contextual considerations.
First, the ordinary meaning of ‘available’ is ‘able to be used, obtained, or selected; at one's disposal’. That definition makes clear that availability is assessed from DP World’s perspective: that is, whether the relevant employees are ‘able to be used’ and are at DP World’s ‘disposal’. As stated above, clause 21.3 makes abundantly clear that DP World cannot (generally) compel employees to work overtime, such that they are not ‘available’ outside of their roster.
Second, the ordinary meaning of ‘any’ is ‘of whatever sort or kind’. In context, that means any of day, evening and night shifts. Importantly, however, the relevant yard planners have not agreed to, and do not presently, work each of day, evening and night shifts. Instead, they have only agreed to work (and in circumstances where they cannot be compelled by DP World to work outside of their rosters, are only available to work) day and/or evening shifts. In such a circumstance, it cannot sensibility be suggested that the relevant yard planners are available to work on any shift Monday to Sunday.
The absurdity of the AMOU’s contention is best demonstrated by a real-life example: yard planners at the Port Botany terminal workday shifts only (6:00 am to 6:00 pm across seven days each week, on a four day on, four day off, basis). If the AMOU’s contention was accepted, they would be entitled to an additional week of annual leave each year, despite not being available to (and not having to) work any evening or night shifts (and only having to work 26 Saturday and Sunday day shifts each year). Further, the yard planners at West Swanson would be entitled to an additional week of annual leave each year, despite not being available to (and not having to) work any night shifts (and only having to work 17 Saturday and Sunday day shifts each year). Indeed, if the AMOU’s contention was to be accepted, all shiftworkers (excluding any Monday to Friday Day Workers, as defined), irrespective of their patterns of work, would be entitled to the additional week of annual leave. That, objectively, cannot have been the parties’ intention.
Finally, as to the AMOU’s purported reliance on closed port days, again, that is entirely misconceived. First, the ‘shiftworker’ test that is relevant for the purposes of this Agreement does not reference closed port days (or public holidays). Second, and in any event, the relevant yard planners are not required to work all of the closed port days. Third, even if they do work a closed port day, they receive separate compensation for doing so (i.e. a day in lieu).
For the reasons set out above, the yard planners are plainly not available to work on any shift Monday to Sunday, and accordingly, are not entitled to accrue five weeks of annual leave for each year of service under the Agreement.
The Commission ought reject the AMOU’s contention and confirm that the relevant yard planners are, under their current rosters, presently entitled to accrue only four weeks of annual leave for each year of service under the Agreement.”[28]
Mr Milne (on behalf of the Respondents) made the following oral submissions on the AL Leave Dispute at the hearing:
MR MILNE: Now, we address in our submissions what we say 'available' means, and we refer to the dictionary and the fact that it's 'able to be used, obtained or selected, at one's disposal'. We say that that makes clear that - the ordinary language makes clear that availability is assessed from DP World's perspective, not from the employees' perspective, that is, whether we are able to use those employees and they are at DP World's disposal. We say, for the reasons that have been pointed out, clause 21.3 makes it abundantly clear that that's not the case and we can't require them to work outside that roster, and if we were to do so, we'd have to go through - sorry, we can't do that and, as such, they're not available outside of that roster, and the roster is the key point here.
Second, we say the ordinary meaning of 'any' is 'of whatever sort or kind'. Again we refer in our submissions to the relevant dictionary meaning. We say, in context, that means you've got to work each day, evening or night shifts, or, at the very least, across the 24/7 period in order to be that continuous shift worker.
THE DEPUTY PRESIDENT: Over what period, like a roster that Ms Higginbottom has put up?
MR MILNE: Yes, correct.
THE DEPUTY PRESIDENT: Right.
MR MILNE: Correct. Importantly, as you'll see from those rosters, they are the present agreed rosters, they are what are being worked, there's nothing outside of that. We say, in those circumstances, they have only agreed to work and, in circumstances where they can't be compelled to work outside of those rosters, they are only available to work those day and evening shifts that they cover the 24/7 period.
Of course, if a different roster was implemented and agreed to which included work on each day, evening and night shift across the 24/7 period such that they met that definition, they would get the additional week of annual leave - we don't dispute that - and, indeed, it is my understanding that, in the past, they have received accrued additional leave during that period. However, that's not the current roster.
So we say, for all those reasons, Deputy President, the yard planners are plainly not, under their current rosters, available to work on any shift Monday to Sunday and, accordingly, are not entitled to accrue the five weeks of annual leave.
THE DEPUTY PRESIDENT: Is that because your rosters don't go over that period currently?
MR MILNE: It's for two reasons, Deputy President. The first is they don't cover that 24/7 period for continuous, but the second is, we say the reference to 'any shift' is a reference to the type of shift, that is, day evening and night shift, and if we don't have night shifts, for example, like we don't at Port Botany, we can't - they're not available to work that shift because that shift doesn't exist.
Again, you know, if you look at the agreement and you say, 'Well, the parties could agree on any shift at any time', hypothetically it means again every single shift worker will effectively be available to work and would be entitled to five weeks, and it's the point - and I appreciate the comment you made a moment ago, Deputy President, but it's a point you make in Bega that I was going to address that, just because an enterprise agreement has a definition of shift worker for the purposes of the National Employment Standards, doesn't mean it actually has to apply to someone, it's going to depend on the circumstances.
That's very clear because of the operation of 196 of the Fair Work Act, which Mr Neiberding has been saying that what has happened is the parties have agreed to expand the definition. That is not correct. The definition, as you rightly point out, Deputy President, is adopted from the modern award in the exact same terms because it has to be under section 196. It could have been broader, the parties could have given a more generous or less restrictive definition, but they didn't. They adopted the very definition in the modern award.[29]
Consideration and determination of the AL Leave Dispute
Clause 24.2 of the Stevedoring Industry Award 2020 (SIA 2020) reads:
“24.2 Shiftworkers
For the purpose of Division 6 of the NES a shiftworker is an employee who is available to work on any shift Monday to Sunday and who actually attends for work as required from time to time on both Saturday and Sunday.”
The Agreement is a single enterprise agreement, and was approved using the terms of the SIA 2020 for better off overall test comparative purposes.
Clause 24.2 of the SIA 2020 matches or aligns with the definition of Continuous Shiftworker under Clause 6 of the Agreement.[30] The Undertaking (that became a term of the Agreement upon its approval) adds nothing, beyond the technical fulfilment of s.196 of the Act (for enterprise agreement approval purposes).
Clause 24.2 of the SIA 2020 has a long history, absent any recorded disputation of the term “available to work”. In relation to that history:
(a) clause 24.2 of the SIA 2020 has its origins from clause 27(b)(i) of the Stevedoring Industry Award 1991 (S0283 Rep V Print K4259) (SIA 1991), which reads:
(b) Clause 5 of the SIA 1991 set out the awards rescinded and superseded by the that award. The same (or similar) wording for annual leave appears in many other awards listed at clause 5 of the SIA 1991. It appears that the wording for clause 27(b)(i) of the SIA 1991 was based upon, or derived from, at least:
·clause 19(aa) of the Waterside Workers’ (Container Terminals) Award 1984 (W003 Con M Print F6588);
·clause 33(aa) of the Waterside Workers Award 1983 (W001 Rep M Print G1811); and
·clauses 19(a) and (aa) of the Waterside Workers’ (Container Terminals) Award 1984, which read:
(c) The SIA 1991 was consumed into the Stevedoring Industry Award 1999 (AP796113, made on 28 October 1999) (SIA 1999), as a result of the award simplification process).[31] Its clause as to annual leave read:
(d) The SIA 1999 was consumed into the Stevedoring Industry Award 2010 (as a result of the award modernisation process) (SIA 2010).[32] As to annual leave, it relevantly read:
(e) The SIA 2020 was made as a result of the 4 yearly review of modern awards. An exposure draft was published on 2 October 2014, along with a comparison document comparing the wording of the ‘shiftworkers’ annual leave clause in the SIA 2010 (clause 22.3) to the proposed wording of the ‘shiftworkers’ annual leave clause (at clause 16.2 of the SIA 2020):
(f) As a result of the Full Bench decision issued on 23 December 2014 ([2014] FWCFB 9412, at [35]), the wording was amended, and an updated exposure draft was published that read:
(g) The wording of the foregoing clause has remained unchanged since that amendment, as currently reflected at clause 24.2 of the SIA 2020.
In resolving the AL Dispute in this case, I make the following findings:
(a) The history of clause 24.2 of the SIA 2020 does not assist in terms of the meaning of the phrase “available to work” (i.e. under the Agreement, or the SIA Award). Again, there are no recorded decisions on the construction or application of this phrase as it concerns the entitlement to additional annual leave (under an award, or other industrial instrument).
(b) Notwithstanding clause 20.1 of the Agreement, per clause 6 of the Agreement, Monday to Friday Dayworkers, and Shiftworkers, are employees who do not work their ordinary hours on days other than Monday to Friday “each week”. It follows that under the terms of the Agreement, such employees are not ‘available’ to be rostered to work shifts on days other than Monday to Friday “each week”. This is to be contrasted with a “Continuous Shiftworker” who, under the terms of the Agreement, is not subject to such restrictions.
(c) Clause 2 of the SIA 2020 defines the terms “day shift”, “day work”. “7 day continuous shiftwork”, and “shiftwork employee”. Continuous shiftwork under the SIA 2020 involves work performed on shifts across each of the 7 days of the week, which may be worked over one, two or three shifts per day (i.e. as opposed to needing to be worked across three (day, afternoon or evening, and night) shifts each day (see also clause 13.3(c) of the SIA 2020).
(d) The Agreement (at Clause 13 and Schedule 1) provides for annualised (or ‘all inclusive’) salaries based upon the working of (ordinary hour) rosters of 36, 38, 40 and 42 hours in length.
(e) The fifth (or additional) week of annual leave under the Agreement arises where an employee (to whom the Agreement applies) is a “Continuous Shiftworker” (as defined by clause 6 of the Agreement). That definition has two components, both of which must be met.
(f) A plain and ordinary reading of the words of clause 6 of the Agreement (and the Undertaking) identifies that in order to be a “shiftworker” for the purposes of the NES additional (or fifth week of) annual leave under clause 24.2 of the Agreement, a relevant employee must be a “Continuous Shiftworker” who firstly, is “available to work on any shift Monday to Sunday”, and secondly, “actually attend[s] for work as required from time to time on both Saturday and Sunday.” Neither “Monday to Friday Day Worker”, nor a “Shiftworker”, is a “Continuous Shiftworker” under the Agreement.
(g) The phrase “actually attends for work as required from time to time on both Saturday and Sunday” is not in dispute.[33] That phrase is to be contrasted with the phrase that is in dispute, namely “available to work on any shift Monday to Sunday”. Quite plainly, ‘availability’ to work, and ‘actually attending’ for work, are not the same thing.
(h) Any work performed by an employee outside of their roster is ‘overtime’. The resolution of the AL Dispute does not concern itself with overtime, be it the availability to work overtime, or the actual working of overtime. An employee will fall within the definition of a Continuous Shiftworker based upon their ordinary hours, or their availability to work ordinary hours. Overtime does not come into the equation.
(i) Clause 23.2 of the Agreement is a clause that is specific to Continuous Shiftworker ‘rosters’. In other words, clause 23.2 is not the gateway by which one determines whether or not an employee is, or is not, a Continuous Shiftworker. Rather, it concerns the parameters by which a Continuous Shiftworker will (or is able to) be rostered.
(j) Clause 23.2 provides that the “roster” for a Continuous Shiftworker will include ordinary hours rostered across all seven days of the week, and across the full 24 hour period (i.e. day, evening, and night shifts). In short, a Continuous Shiftworker can have their rostered ordinary hours arranged across these two parameters (as compared to Monday to Friday Dayworkers and Shiftworkers (under the Agreement), who cannot). A Continuous Shiftworker must therefore be available to work the roster (or ordinary hours) set pursuant to clause 23.2. What hours a Continuous Shiftworker actually works is dependent upon the roster that is set by the Respondent. The fact that the Respondent may set a roster that does not continue through 24 hours of the day is a matter for the Respondent. That does not detract from the fact that a Continuous Shiftworker (being an employee who is not a Monday to Friday Dayworker, or a Shiftworker) must be available to work whatever roster is set by the Respondent under clause 23.2 of the Agreement).
(k) The term ‘availability’ does not require actual attendance. In other words, availability comes before being rostered to work, and before actually attending for work.
In the Full Bench decision in Maritime Union of Australia v Qube Ports Pty Ltd[2015] FWCFB 3164 (Qube Decision), the Commission considered the proper construction of the term “available” in clause 30.1(b) of the Qube Ports Pty Ltd and the Maritime Union of Australia Enterprise Agreement 2011 (Port of Adelaide EA), which reads:
“Where an FSE is available to work but not allocated to work on a public holiday (including Closed Port Days) as specified in the Award, that employee will be credited with seven (7) hours to be deducted from their accumulated hours.” (emphasis added)
The conclusions reached by the Full Bench in the Qube Decision were as follows
“[42] Finally, we turn to the proper construction of the term ‘available’ in clause 30.1 (b). The Appellant [MUA] contends that the term ‘ available ‘should have been interpreted to mean: both not actually working and not unavailable for work by reason of being on a form of approved leave.
***
[44] The Appellant [MUA] noted - correctly - that the only evidence of the purpose behind the inclusion of the words “if available to work” was from the respondent’s witnesses, and was directed towards what the respondent subjectively wanted to achieve. As described by them, the words were intended to require employees to make themselves available in order for clause 30.1(b) to operate. That subjective intention of the Respondent was, essentially, the only factor consistent with the conclusion ultimately accepted by the Commissioner: that appears to have been “the purpose” contemplated by the Commissioner.
[45] The words “is available to work” must be considered objectively, and in the context of the Agreement as a whole. Clause 30.1(b) applies to all public holidays, not merely those that are also CPDs. The conclusion that positive steps are required in order to be considered ‘available’, was inconsistent with the common position otherwise adopted by the parties, and accepted by the Commissioner: public holidays (other than Closed Port Days) are treated as normal working days. On the construction adopted by the Commissioner, employees will not be credited with the accrued hours for the public holiday, unless they actually work or take steps to positively confirm that they are available to work. There is nothing in the agreement that provides for such a process for public holidays.
[46] Under the terms of the Port of Adelaide EA there is a general presumption that FSEs are available to work. Under the terms of clause 4.1.4 they ‘shall be available for totally irregular allocation in accordance with the notification procedures of this Agreement.’ However under clause 9.1.2 these employees may make themselves unavailable for work on up to 42 days within a 12 month period.
[47] FSEs can be required to work on any day other than when they are on approved leave or on approved time off under clause 9.1.2. The most natural reading is that an FSE is ‘available to work’ at any other time. We do not see anything in the context or purpose of the clause to give it any other reading. Accordingly, we consider that the Commissioner was in error in finding that the term ‘available to work’ in clause 30.1(b) requires the employee to volunteer or otherwise confirm their availability to work.
***
[49] However we find the Decision was in error insofar as it found that the words ‘is available to work’ in clause 30.1(b) mean that the employees in question must volunteer and/or otherwise confirm their availability to work on the day in question. We uphold that part of the appeal. We find that FSEs are ‘available to work’ as long as they are not at work, and are not unavailable to work by reason of being on a form of approved leave or approved time off in accordance with clause 9.1.2 of the Agreement.”[34]
Whilst the Qube Decision concerns different parties, the terms of a different enterprise agreement, and the term ‘available to work’ in respect of public holidays (construed by reference to the terms of the Port of Adelaide EA), I do not accept that there is any basis to construe the phrase “available to work” differently (to the Full Bench in the Qube Decision) for the purposes of resolving the AL Dispute in this case.
I resolve the AL Dispute in favour of the AMOU. I find that clause 24.2 of the Agreement is to be construed and applied such that a Continuous Shiftworker is available to work on any shift Monday to Sunday if they are available to be rostered for any shift Monday to Sunday. In making this finding, I reject any suggestion that an employee needs to specifically volunteer or confirm their availability to work on any particular shift. Rather, such an employee’s availability arises from the fact that they are a Continuous Shiftworker (not being a Monday to Friday Dayworker, or a Shiftworker) under the terms of the Agreement, who is able to be rostered according to the parameters set out in clause 23.2 of the Agreement. Relevantly, an employee will not be ‘available’ if they are on some form of approved leave or time off.
DEPUTY PRESIDENT
Appearances:
Mr Chris Neiberding, Senior Industrial Officer, appeared for the Australian Maritime Officers’ Union (AMOU) (Applicant).
Mr Brendan Milne, Partner, Kingston Read lawyers, appeared (with permission) for DP World Melbourne Limited, DP World Sydney Limited, DP World (Fremantle) Limited, and DP World Brisbane Pty Limited (Respondents).
[1] [2024] FWCA 2697 (22 July 2024), AE525521, PR777213.
[2] [2017] FWCFB 3005, at [114]. See also James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566, at [65].
[3] [2020] FWC 2130.
[4] Ibid, at [8].
[5] DP World Supervisors & Yard Planners Enterprise Agreement 2015[2015] FWCA 8321, AE416907, 2 December 2015 2021; DP World Supervisors & Yard Planners Enterprise Agreement 2020[2021] FWCA 644, AE510345, 9 February 2021.
[6] [2020] HCA 29; (2020) 271 CLR 495.
[7] The Mondelez case also confirmed that part time employees receive personal/carer’s leave on a pro-rata basis.
[8] DP World Supervisors & Yard Planners Enterprise Agreement 2020[2021] FWCA 644, AE510345, 9 February 2021.
[9] Applicant’s Submissions, at [8]-[9], CB, pp.86-87.
[10] Digital Hearing Book (Court Book (CB), pp.126-129. See also Ms Emma Higginbottom Statement, at [10]-[14] (CB, p.211).
[11] In relation to personal/carer’s leave discrepancy arising from the audit, see Transcript (Ms Higginbottom XXN), at PN83-PN87, PN92-PN93, PN108, and PN130.
[12] Transcript, PN258.
[13] CB, pp.86-94, and 213-219. Transcript, PN145-PN155.
[14] CB, pp.206-208.
[15] CB, p.96.
[16] Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829, at [40]-[41] (common understanding principles). See also LHMWU v Prestige Property Services Pty Ltd [2006] FCA 11, at [44] (common inadvertence), and HSU v Ballarat Health Services [2011] FCA 1256, at [79] (knowledge of employee voting cohort).
[17] See CPSU, the Community and Public Sector Union v Serco Australia Pty Ltd[2021] FWCFB 6045, at [48]-[50]; Note paragraphs [22] to [29] (pages 4-5, Item 5 – Subclause 55(5)) of the Supplementary Explanatory Memorandum to the Fair Work Bill 2008 (Australian Senate).
[18] Note ss.55, 87(i)(b)(i), 190-191, and 196 of the Fair Work Act 2009.
[19] Bentley Statement (filed by the AMOU), at [9], CB, p.98. Mr Bentley was not cross-examined.
[20] Rafferty Statement (filed by the AMOU), at [3], CB, pp.101 and 105. Ms Rafferty was not cross-examined. Note also, Transcript, PN220-PN224.
[21] Rafferty Statement (filed by the AMOU), at [5]-[7], and [9]-[11], CB, p.101, and 111-125.
[22] Ibid, at [15]-[16], CB, p.102.
[23] Higginbottom Statement (filed by the Respondent), at [5]-[7], CB, p.210.
[24] Ibid, at [15]-[17], CB, pp.211-212.
[25] Transcript, PN113-PN124.
[26] CB, pp.83-85, and 220-224.
[27] Transcript, PN137-PN144.
[28] CB, pp.201-203 (footnotes omitted).
[29] Transcript, PN260-PN271.
[30] Ibid, PN271.
[31] See also the decision issued by the Commission on 3 August 1999 in [R7753].
[32] On 22 May 2009, the Commission published a Full Bench statement and Stage 3 exposure drafts ([2009] AIRCFB 450), including the Stevedoring Industry Award 2010 exposure draft. On 4 September 2009, the Commission published a Full Bench decision [2009] AIRCFB 826, and the Stevedoring Industry Award 2010. The annual leave provisions remained the same as in the exposure draft published on 22 May 2009.
[33] Ibid, PN217.
[34] Maritime Union of Australia v Qube Ports Pty Ltd[2015] FWCFB 3164, at [42], [44]-[47], and [49] (per Hamberger SDP, Booth DP, and Cargill C).
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