Australian Nursing and Midwifery Federation, Ramsay Health Care Australia Pty Ltd t/a Ramsay Health Care Australia v Ramsay Health Care Australia Pty Ltd
[2024] FWC 3518
•17 DECEMBER 2024
| [2024] FWC 3518 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute & s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
Australian Nursing and Midwifery Federation, Ramsay Health Care Australia Pty Ltd t/a Ramsay Health Care Australia
v
Ramsay Health Care Australia Pty Ltd
(C2024/1386)
&
Ramsay Health Care Australia Pty Ltd t/a Ramsay Health Care Australia
(AG2024/2634)
RAMSAY HEALTH CARE AUSTRALIA PTY LIMITED AND NSW NURSES & MIDWIVES' ASSOCIATION AND ANMF NSW BRANCH ENTERPRISE AGREEMENT 2021-2023
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 17 DECEMBER 2024 |
Dispute arising under dispute settlement term of enterprise agreement; application for variation of the Ramsay Health Care Australia Pty Limited and NSW Nurses & Midwives’ Association and ANMF NSW Branch Enterprise Agreement 2021-2023 to remove ambiguity or uncertainty – order of consideration – payments for periods of annual leave - proper construction of terms of enterprise agreement – whether ambiguity or uncertainty exists – whether discretion should be exercised to remove an ambiguity or uncertainty.
This decision deals with two applications that relate to the terms of an enterprise agreement called the Ramsay Health Care Australia Pty Ltd and NSW Nurses and Midwives’ Association and ANMF NSW Branch Enterprise Agreement 2021-2023 (Agreement or 2021 Agreement). The first is an application[1] by the Australian Nursing and Midwifery Federation (ANMF) under s.739 of the Fair Work Act 2009 (Cth)(Act) for the Commission to deal with a dispute in accordance with the dispute settlement term of the Agreement (clause 2.4). The dispute relates to the operation of two sub-clauses in the Agreement dealing with payment for annual leave. Those subclauses are 8.1.19 and 8.1.20 respectively. The second application[2] is made by Ramsay Health Care Australia Pty Ltd (Ramsay) pursuant to s.217 of the Act. That application seeks an order to vary the same subclauses to remove ambiguity or uncertainty.
The ANMF application was filed on 7 March 2024 and was the subject of some discussions which did not resolve the matter. The Ramsay application was filed on 12 July 2024 and included a proposed draft order which was subsequently amended on 3 September 2024.
On 31 July 2024, after hearing from the parties, I determined that the appropriate course was to deal with the applications at the same time. The matters were listed and dealt with concurrently on 14 October 2024.
The clauses in dispute
The subclauses at the centre of both matters are in Part 8.1, Annual Leave Entitlements, of the Agreement. The relevant provisions appear under the heading ‘Payment of Annual Leave’ and provide as follows:
8.1.18 Payment for Annual Leave will be made in the normal payroll cycles but can be paid in advance if requested in writing by the employee.
8.1.19 Payment for Annual Leave will be paid at the employee’s ordinary earnings (inclusive of applicable weekend and shift rates).
8.1.20 On the 4 weeks Annual Leave entitlement provided for in Part 8.1.1 to 8.1.4, employees shall also receive either a loading of 17.5%, or the average of shift penalties and allowances received in the previous 6 months, whichever is the higher.
The relief sought by the applicants
In the ANMF application, the parties provided the following questions for arbitration:
Agreed Questions
1. Subclause 8.1.19 of the Agreement states, ‘Payment for Annual Leave will be paid at the employee’s ordinary earnings (inclusive of applicable weekend and shift rates).’
a. Having regard to clause 7.9 – Penalty Rates and Loadings, what weekend and shift rates are applicable when an employee is on a period of annual leave?
b. Is an employee on annual leave entitled to receive the weekend and shift rates they would receive were they not on leave?
2. Does the reference to ‘a loading of 17.5%’ in subclause 8.1.20 mean 17.5% of the amount derived from subclause 8.1.19?
3. Subclause 8.1.20 provides for a payment of ‘either a loading of 17.5%, or the average of shift penalties and allowances received in the previous 6 months, whichever is the higher.’
a. Does the phrase “shift penalties and allowances” include each of:
i. Shift work allowances, loadings or penalty rates;
ii. Weekend shift allowances, loadings or penalty rates;
iii. Public Holiday shift allowances loadings or penalty rates.
4. For the purposes of subclause 8.1.20:
a. What is ‘the average of shift penalties and allowances received in the previous 6 months’ and how is that average calculated?
Questions sought by the Respondent
5. Are the clauses 8.1.19 and 8.1.20, when read together and in the context of the enterprise agreement, a re-statement of standard annual leave loading outcomes whereby a loading of 17.5%, or some other higher amount, is paid for a period of annual leave to compensate for a lost opportunity for additional earnings?
Questions sought by the Applicant
6. Further to question 3a above, Does the phrase ‘shift penalties and allowances’ in subclause 8.1.20 include the other ‘allowances’ set out in the Agreement including:
i. Laundry Allowance;
ii. Lead Apron Allowance;
iii. On-Call Allowances;
iv. In Charge Allowance;
v. Telephone Allowance;
vi. Qualification Allowance;
vii. Meal on Overtime Allowance; and
viii. Motor Vehicle Allowance?
The revised draft order filed by Ramsay on 3 September 2024 proposes that subclauses 8.1.19 and 8.1.20 be deleted and replaced with the following provisions which are to take effect from 21 December 2021, which is the commencement date of the Agreement:
8.1.19
(a) For employees other than 7 day shift workers, payment for Annual Leave shall be at the Ordinary Rate of Pay for the ordinary hours in the leave period.
(b) For a 7 day shift worker, payment for Annual Leave shall be at the Ordinary Rate of Pay for the ordinary hours in the leave period and, in addition, a loading that is equivalent to the shift and weekend penalty rates that would have been applicable if the employee was not on Annual Leave.
8.1.20For employees other than a 7 day shift worker:
(a)on the 4 weeks Annual Leave entitlement provided for in clause 8.1.1, the payment shall also include a loading of 17.5% of the employee’s Ordinary Rate of Pay, or the average of shift and weekend penalties received by the employee in the previous 6 months, whichever is the higher;
(b)on the additional annual leave provided for in Part 8.1.5, the payment shall also include a loading that is equivalent to the shift and weekend penalty rates that would have been applicable if the employee was not on annual leave.
Approach to the determination of the applications
Both applicants urged that their respective applications be determined before the application of their opponent. The ANMF said that their application had been made well in advance of the Ramsay application, that the parties had engaged in extensive negotiations to attempt to settle the matter and that the Ramsay application was made only after those attempts were unsuccessful. Further, the AMNF said that the structure of the legislation was that where the parties had agreed to having disputes of this kind resolved by arbitration before the Commission, and the parties had filed agreed questions to be determined to resolve the dispute, that process should be favoured unless there were compelling reasons for an alternative approach. They submitted that given the Agreement was well past its nominal expiry date – 31 March 2023 – and bargaining was advanced for a replacement agreement, the Commission should be reluctant to ‘interfere’ in that process by determining the variation application first.
Ramsay contended that the preferred approach was to deal with the variation application first given that the first step in that process, namely the determination as to whether an ambiguity or uncertainty within the meaning of s.217 existed, could be dealt with without the necessity to interpret the Agreement. They said if the Commission concluded that there was an absence of ambiguity or uncertainty in the terms of the Agreement, or that the variation should not be made as a matter of the exercise of discretion, then the application would go no further and the AMNF application would then fall for determination. This approach, Ramsay said, was the most logical and was consistent with the need to take into account equity, good conscience and the merits[3] of the matters.
I am persuaded to adopt the approach suggested by the AMNF. In circumstances where the parties are clearly in dispute as to the operation of the terms of an agreement, and where that agreement itself provides a mechanism for resolving such a dispute and the parties have engaged that process, the appropriate course is to deal with that application before considering a later application by one of the parties seeking a resolution of the matter by alternative means. I therefore propose to determine the ANMF application in the first instance and thereafter deal with the variation application.
The proper construction of subclauses 8.1.19 and 8.1.20
The proper approach to the construction of the terms of an enterprise agreement made under the Act has been set out in numerous decisions of the courts[4] and this Commission. In WorkPac Pty Ltd v. Skene[5] the Full Court of the Federal Court of Australia said:
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 George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 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 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).[6]
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v. Berri Pty Ltd[7] the Full Bench of the Commission modified and restated the relevant principles of construction previously set out in Australian Meat Industry Employees’ Union v Golden Cockerel[8] in the following terms:
[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision’s place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.
Question 1 - Subclause 8.1.19 of the Agreement states, ‘Payment for Annual Leave will be paid at the employee’s ordinary earnings (inclusive of applicable weekend and shift rates).’
a. Having regard to clause 7.9 – Penalty Rates and Loadings, what weekend and shift rates are applicable when an employee is on a period of annual leave?
b. Is an employee on annual leave entitled to receive the weekend and shift rates they would receive were they not on leave?
Clause 8.1.19
ANMF
The ANMF submitted that on an objective reading of subclause 8.1.19, an employee was to be paid annual leave on the basis that they would be paid as they ordinarily would be, that is, as if they were not on annual leave. They said that the reference to ‘ordinary earnings’ in the subclause was to be distinguished from other descriptors for various amounts of pay, such as ‘ordinary rate of pay’ or ‘base rate of pay’ used elsewhere in the Agreement. The ANMF said that the expression ‘ordinary earnings’, even without the words that follow in parenthesis, implies the inclusion of earnings ordinarily obtained beyond a pay rate or wage. It was argued that the additional words in parenthesis, ‘(inclusive of applicable weekend and shift rates)’, makes explicit the obligation to include the weekend and shift rates that an employee would ordinarily receive if they were working during the period of leave.
The ANMF submitted that the words in parentheses must be given meaning and have work to do in the subclause and that the construction urged by Ramsay would deny them any operation. They said that the applicable rates could be determined having regard to the rosters the employees would have worked had they not been on leave, or alternatively, on the basis of ‘an objective inquiry into the amount the relevant employee would reasonably expect to have been paid during a period of leave, had the employee worked during that period.’[9]
The ANMF also referred to the decision of the Full Court of the Federal Court of Australia in Target Australia Pty Ltd v Shop, Distributive and Allied Employees' Association[10] where it was said that the Court construed the expression ‘ordinary time earnings’ in the context of annual leave payments to include shift penalties that an employee would have received if the employee had worked rather than taken leave.
Ramsay
Ramsay submitted that employees earned the right to shift and weekend penalties under specific clauses of the Agreement which required them to be working such shifts or weekends in order to receive those payments. They said employees on leave were not entitled to those payments and that there were no ‘applicable weekend and shift rates’ because the employees were not required to work and were not working when on annual leave. Ramsay argued that the subclause did not include a reference to rates the employee would have earned had they not been on leave, or equivalent words. They said the term ‘ordinary earnings’ was not defined but that properly construed, it must be a reference to ‘ordinary rate of pay’, a term defined in subclause 1.8.20.
Ramsay also argued that the reference to ‘inclusive’ in 8.1.19 was in error given that ordinary rates of pay as defined in subclause 1.8.20 excluded penalty rates, allowances and loadings. Alternatively, they said that the words ‘inclusive of applicable’ were superfluous or created ambiguity because employees were not entitled to shift or weekend penalty rates while on annual leave.
In my view, the construction advanced by the ANMF in relation to subclause 8.1.19 is clearly correct. The starting point is the ordinary meaning of the text of the provision read as whole and in context. The expression ‘ordinary earnings’ is broad. Unlike other terms in the Agreement relating to particular formulations of payment or rates of payment, it is not defined in the Agreement. The fact that it is not so defined supports the view that it is to be distinguished from those other expressions, including the term ‘ordinary rate of pay’ at subclause 1.8.20. The expression ‘ordinary earnings’ would in my view, be objectively understood as encompassing any earnings that an employee would receive having regard to their ordinary or usual working arrangements. Such earnings would include any additional or discrete forms of payment that an employee would ordinarily receive beyond the ‘ordinary rate of pay’ as defined in the Agreement.
The inclusion of the words in parenthesis ‘(inclusive of applicable weekend and shift rates)’ should be given work to do in the overall construction of the subclause. The inclusion of those words reinforces the view that ‘ordinary earnings’ should be construed broadly. It is inconsistent with the view that the expression is confined to a narrower concept such as ‘ordinary rate of pay’, particularly given that the latter concept expressly excludes, amongst other things, ‘applicable penalty rates’.[11] The submission by Ramsay that the words are included in error or that they are superfluous is unconvincing. On their ordinary meaning, the inclusion of the parenthesised words makes it abundantly clear that the payment for annual leave is to include ‘applicable’ weekend and shift rates.
The use of the adjective ‘applicable’ serves at least two purposes. It is used to indicate that not all employees would receive those rates but where those rates ordinarily apply to the employees receiving the annual leave payment, they are to be included in the annual leave payment as part of the employee’s ‘ordinary earnings’. It also ensures that only the ‘applicable’ amount forms part of this payment, consistent with the general rule in 7.9.1 that only the highest of the penalties is payable. They are not paid on a compounding basis.
I also reject Ramsay’s argument that construed in the broader context of other clauses in the Agreement dealing with shift and weekend penalty rates, those rates are not payable as part of the annual leave payment when an employee is on annual leave because the employee is not actually working. This involves a strained and artificial approach to the meaning and operation of the clauses providing for the payment of weekend and shift penalty rates. It is to be expected that such clauses would describe the circumstances in which those payments would be payable, including that the employees would need to be working in those periods to receive the penalties. However, this does not mean that another clause or clauses cannot provide for the payment of a benefit that is referrable to those amounts on periods of leave, where the clear language of that clause specifically provides for it.
The answer to question 1 is:
(a) the shift work penalty rates in subclauses 7.9.3 and 7.9.4 and the weekend penalty rates in subclauses 7.9.6 and 7.9.7; and
(b) yes, but only whichever is the higher of the penalty rates referred to in (a) above.
Question 2 Does the reference to ‘a loading of 17.5%’ in subclause 8.1.20 mean 17.5% of the amount derived from subclause 8.1.19?
The parties are at odds as to the amount derived from subclause 8.1.19. Ramsay submitted that the answer to question 2 would be ‘yes’ but only if question 1 was determined in their favour and only in respect of the first 4 weeks of annual leave accrued in any year of service. Moreover, they argued that the ANMF’s answers to questions 1 and 2 could result in a double-payment of shift or weekend penalty rates.
The words ‘shall also’ in 8.1.20 link the subclause to the subclauses that precede those words and the rate referred to in the immediately preceding subclause. As a matter of construction, the 17.5% referred to in 8.1.20 can only be 17.5% of the amount of annual leave determined by reference to the 4-week period provided for in clauses 8.1.1. to 8.1.4 and the rate prescribed by subclause 8.1.19.
The answer to question 2 is ‘yes’.
Question 3 - Subclause 8.1.20 provides for a payment of ‘either a loading of 17.5%, or the average of shift penalties and allowances received in the previous 6 months, whichever is the higher.’
a. Does the phrase “shift penalties and allowances” include each of:
i. Shift work allowances, loadings or penalty rates;
ii. Weekend shift allowances, loadings or penalty rates;
iii. Public Holiday shift allowances loadings or penalty rates.
Subclause 8.1.20
Subclause 8.1.20 relates to the payment which is payable in addition to the payment for annual leave determined in accordance with 8.1.1 to 8.1.4.
ANMF
The ANMF maintained that the expression ‘shift penalties and allowances’ in subclause 8.1.20 should be read as including all of the penalty rates and loadings referred to in clause 7.9 of the Agreement.[12] These are shiftwork penalty rates,[13] weekend penalty rates,[14] public holiday penalty rates[15] and overtime penalty rates.[16] I note that the agreed question 3(a)(i) included only the first three of these categories.
The ANMF said that the wording in 8.1.20 was broad and would capture the additional payments that would regularly come to an employee during the normal course of their work pattern. They maintained that the construction favoured by Ramsay required the reader to read the expression as ‘shift penalties and shift allowances’ in circumstances where the Agreement did not assign those concepts separate meanings. The ANMF also submitted that other references in the Agreement to ‘shift allowances’ made it plain that the expression was intended to include weekend rates.
The ANMF also argued that the reference to ‘allowances’ in 8.1.20 should be understood as including all of the allowances separately identified in clause 7.10 of the Agreement. They did so by advancing a case for an affirmative answer to question six.
Ramsay
Ramsay argued that only the ‘shift work penalty rates’ in subclauses 7.9.3 and 7.9.4 were captured by the expression ‘shift penalties and allowances’ in 8.1.20. They pointed out that clause 7.9.1 provided that where an employee works hours that entitle them to payment of more than one of the ‘penalty rates’ then only the highest of the penalties was payable. They said that of the description of the penalty rates referred to in 7.9.1, only the shift worker penalty rates could be described as ‘shift penalties’. Further, they said subclause 7.9.5 expressly referred to ‘shift penalties’ when referring to the ‘loadings’ in clauses 7.9.3 and 7.9.4. Ramsay contrasted the use of the words ‘weekend and shift rates’ in subclause 8.1.19 with the words in 8.1.20 which did not include a reference to the word ‘weekend’, as indicating an intention not to include weekend penalties in the latter subclause.
Ramsay argued that where other clauses in the Agreement referred to more than one type of penalty, they expressly did so. They referred to clauses 6.7.3 and 7.9.9 which referred ‘weekend or shift penalties’. Ramsay pointed out that clause 3.10.4 made separate reference to penalty rates and ‘shift allowances’ and said that there was no available ordinary meaning of the expression ‘shift penalties and allowances’ which could include the overtime penalty rates provided for in 7.9.13.
The effect of these submissions is that the parties agreed that the expression ‘shift penalties and allowances’ in 8.1.20 included the shiftwork penalties in 7.9.3 and 7.9.4 but the ANMF said the expression also included the remaining penalty rates referred to in clause 7.9.
In my view, largely for the reasons advanced by Ramsay, and on a plain reading of the words in the broader context of the Agreement, the expression ‘shift penalties and allowances’ in 8.1.20 does not include the penalty rates provided for by clause 7.9 other than the shift penalties in subclauses 7.9.3 and 7.9.4. The different penalty rates in clause 7.9 are clearly and separately delineated in that clause. Had the parties intended that the other penalty rates in that clause were to be taken into account for the purpose of determining the relevant amount in 8.1.20 they would have made express reference to those other rates. They did not do so in 8.1.20 even though they had done so elsewhere, including in the immediately preceding subclause.
There is also a difficulty with the ANMF’s argument that the expression ‘shift penalties and allowances’ in 8.1.20 includes all of the various penalties mentioned in 7.9 and the allowances referred to in 7.10. The latter proposition follows from the affirmative answer for which the ANMF contends in response to question 6. The ANMF’s argument that the words ‘and allowances’ after the words ‘shift penalties’ is to be read as a reference to the allowances in clause 7.10, effectively leaves the words ‘shift penalties’ alone to encompass all of the penalty rates referred to in 7.9. I do not think that those words can bear such an extended meaning. Nor do I think the expression ‘shift penalties and allowances’ leads to that result.
The answer to question 3(a) is
(i) yes, it includes shiftwork penalty rates.
(ii) no; and
(iii) no.
Question 4 - For the purposes of subclause 8.1.20, what is ‘the average of shift penalties and allowances received in the previous 6 months’ and how is that average calculated?
The ANMF submitted that the average of the shift penalties and allowances received in the previous 6 months was to be determined by dividing the total value of all shift penalties and allowances received in the 6 months prior to the commencement of leave by the total number of days worked in the same period to produce a daily average.
Ramsay submitted to similar effect, save that the amount included as ‘shift penalties and allowances’ was to be consistent with the construction they advanced as to the meaning of that expression in response to question 3 above. They said ‘the average is calculated by adding the value of the shift penalties received by an employee in the six month period immediately before the commencement of the annual leave, and dividing that by the days or weeks worked in that same six month period.’[17]
I accept the approach of the parties as to the proper construction of the averaging provision in subclause 8.1.20 as being the correct approach. As to the amount that is to be averaged, this turns on the meaning of the expression ‘shift penalties and allowances’ and the answers provided to questions 3 and 6 of this decision.
Question 5 - Are the clauses 8.1.19 and 8.1.20, when read together and in the context of the enterprise agreement, a re-statement of standard annual leave loading outcomes whereby a loading of 17.5%, or some other higher amount, is paid for a period of annual leave to compensate for a lost opportunity for additional earnings?
Question 5 was posed by Ramsay only. The ANMF said that the question itself is unclear given the inclusion of the phrase ‘standard annual leave loading outcomes.’ They said the question was in the nature of a submission since it went to the matters raised in the other agreed questions rather than being a question in itself. I agree with that view. It does little to advance the settlement of the dispute to attempt to grapple with other expressions not appearing in the Agreement in an effort to resolve the point posed by question 5. Nor is it necessary to recast the questions dealt with in substance in the other questions. The answers provided to the other questions are sufficient to resolve the matters separating the parties.
The answer to question 5 is: It is unnecessary to answer this question for the purpose of resolving the dispute.
Question 6 - Further to question 3a above, Does the phrase ‘shift penalties and allowances’ in subclause 8.1.20 include the other ‘allowances’ set out in the Agreement including:
i. Laundry Allowance;
ii. Lead Apron Allowance;
iii. On-Call Allowances;
iv. In Charge Allowance;
v. Telephone Allowance;
vi. Qualification Allowance;
vii. Meal on Overtime Allowance; and
viii. Motor Vehicle Allowance?
This question was posed by the ANMF only. The ANMF contended that the reference to ‘allowances’ in subclause 8.1.20 was a well-understood term in the Agreement and should be taken to include any allowance so described in the Agreement, including those referred to above. Ramsay said that subclause 7.10.2 expressly provided that allowances were not payable during a period of leave including annual leave, and that any interpretation that would require payment of the average of allowances received would be inconsistent with that provision. The ANMF countered that subclause 8.1.20 did not require the payment of allowances during a period of annual leave but only an average of allowances received over the preceding 6 months and that there was no inconsistency with 7.10.2 in those circumstances. Further, it was put by the ANMF that Ramsay’s construction would leave the word ‘allowances’ with no work to do in subclause 8.1.20.
I do not think that the phrase ‘shift penalties and allowances’ can be sensibly read as meaning shift penalties and shift allowances. The expression ‘shift allowances’ is not a defined term. It is only used twice in the Agreement at subclauses 3.4.4 and 3.10.14. In both cases I think the reference should be properly understood as being to the shiftwork penalty rates set out in clauses 7.9.2 to 7.9.5 and that the reference to ‘shift allowances’ is no more than a lapse in drafting. I do not think the Agreement establishes a concept of ‘shift allowances’ which is separate and distinct from the shiftwork penalties in those subclauses.
However, I am also of the view that the words ‘and allowances’ are not superfluous. The ordinary meaning of those words should be understood as a reference to the allowances described in clause 7.10 and Appendix B. I reject the argument advanced by Ramsay that construing the Agreement in that way would involve a direct inconsistency with 7.10.2. That is because what is being described in 8.1.20 is not the payment of an allowance or allowances during a period of leave but an additional amount on an annual leave entitlement that is calculated by reference to allowances received during a specified period. I am therefore of the view that the additional amount in subclause 8.1.20, aside from the 17.5% loading, is to be determined by calculating the average of shiftwork penalties referred to in 7.9.2 to 7.9.5 and the allowances in 7.10.
The answer to question 6 is ‘yes, to the extent those allowances are referred to in subclause 7.10.’
Section 217 – Application to vary to remove ambiguity or uncertainty
There was no dispute as to the approach to be taken to the Ramsay application. The parties acknowledged that the task was two-fold; first, the Commission should determine whether an ambiguity or uncertainty exists which could be removed by variation, and second, where such an ambiguity or uncertainty does exist, the Commission should then determine whether it should exercise its discretion in favour of removing that ambiguity or uncertainty.[18]
Ramsay argued that the terms of subclauses 8.1.19 and 8.1.20 were ambiguous and uncertain in at least the following respects:
8.1.19
(i) clause 8.1.19 is ambiguous in that it refers to being paid at the employee’s “ordinary earnings”, a term which is not defined or used anywhere else in the Agreement;
(ii) clause 8.1.19 is uncertain for the reason that no weekend and shift rates are “applicable” while an employee is on a period of annual leave; in particular:
(a) an employee is eligible to be paid an afternoon or night shift penalty rate only where the employee is “working such a shift”,
(b) an employee is eligible to be paid a weekend penalty rate only where the employee is “required to work ordinary hours” on a Saturday or Sunday;
(c) an employee is eligible to be paid a public holiday penalty rate only where the employee is “required to work ordinary hours” on a Public Holiday;
(d) an employee is not taken to be on annual leave on a public holiday;
(iii) the words “(inclusive … rates)” in clause 8.1.19 overlap with the reference to “shift penalties” in clause 8.1.20;
(iv) there is no requirement in the Agreement for the Respondent to roster an employee for shift work or weekend work, or to assume an employee would have worked shift work or weekend work on the basis of some notion of a projected roster during a period of annual leave. In oral submissions Ramsay said that ‘there is no time period to which that phrase (applicable weekend and shift rates) can be applied to identify what amount, if any, ought to be paid.’[19]
8.1.20
(v) clause 8.1.20 is uncertain for the reason there is no rule in the Agreement for which period of accrued annual leave an employee is taking (e.g. whether the first week or a fifth week) and therefore whether that annual leave taken attracts the annual leave loading.
(vi) the reference in clause 8.1.20 to payment of an average of allowances received in the last 6 months appears inconsistent with the words and purpose of clause 7.10.2, which expressly states that allowances are not paid during periods of leave;
(vii) there is no mention of the dividing the ‘average of shift penalties and allowances’ by the number of days and the number of shifts worked;[20] and
(viii) the ANMFs position would produce an absurd and unfair outcome where the payment for a period of annual leave could include a penalty rate (i.e. “applicable weekend and shift rates”) plus a loading of 17.5% of both the ordinary rate and the penalty rate or an average of those same penalty rates, whichever is higher.
The ANMF conceded in its initial submissions that there were elements of the subclauses that were capable of having more than one meaning. They said the expressions ‘applicable weekend and shift rates’ and ‘average of shift penalties and allowances’, although they had a true ascertainable meaning, were also open to multiple possible meanings. In closing submissions, the ANMF said that Ramsay had effectively failed to identify any relevant ambiguity or uncertainty and in the absence of that statutory prerequisite, the application must fail.
The decision in Bianco Walling establishes the following propositions in relation to the determination as to whether ambiguity or uncertainty exists in an enterprise agreement:
(i) The process of ascertaining ambiguity or uncertainty in an enterprise agreement is distinct from the process of construction, the latter of which involves determining the true meaning of a provision by application of established principles and techniques. A provision may be ambiguous or uncertain even though capable of interpretation.
(ii) The words “ambiguity” and “uncertainty” are not synonymous. Ambiguity exists when a provision in an enterprise agreement is capable of more than one meaning.
(iii) Ambiguity may be apparent on the face of the document or may only become apparent when extrinsic evidence is adduced.
(iv) The mere existence of rival contentions as to the meaning or application of a provision or provisions in an enterprise agreement is unlikely to be sufficient to indicate ambiguity or uncertainty for the purposes of s 217.
(v) While the mere existence of rival contentions is insufficient to permit a finding of ambiguity or uncertainty, the Commission ‘will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention’ (original emphasis).
(vi) A form of “uncertainty” can extend to the concept of uncertainty the context of common law contract, where a provision might be found to be void in such a contract because no definite meaning can be put on that provision. However, “uncertainty” in s.217 is not so limited.
Having regard to the matters referred to above I am satisfied that clause 8.1.19 contains an ambiguity or uncertainty in that the expression ‘ordinary earnings’ in subclause 8.1.19 is uncertain and capable of bearing more than one meaning. The term is not defined. It is not used elsewhere in the Agreement. It subsists in the Agreement alongside other terms relating to a similar subject matter such as ‘ordinary rate of pay’, ‘rate of pay’, ‘base rate of pay’ and ‘weekly rate’ amongst others. The agreement covers full-time and part-time employees. It provides for different rostering arrangements, shift work and shift work penalty rates. It is at least arguable that the expression embraces the entirety of what the employee would have earned for working the usual working hours, whatever they may be, or some lesser amount by reference to, for example, the employee’s ordinary rate of pay. In these circumstances it seems to me that the expression is capable of meaning different things, including in its application in different circumstances.
In relation to the submission that the words ‘applicable weekend and shift rates’ in 8.1.19 are ambiguous or uncertain I do not accept this to be the case. Ramsay did not seriously advance a rival contention as to an alternative or additional meaning. They effectively put that the words had no work to do save in relation to seven-day shift workers and the draft order which they pursued for those shift workers reflected in substance the contention which the ANMF advanced in respect of the operation of the existing clause i.e the amount that would have been paid if the employee was not on Annual Leave. Considered objectively, I do not regard the expression as ambiguous or uncertain. Nor do I accept the balance of Ramsay’s argument in relation to subclause 8.1.19. Those remaining terms do not disclose an ambiguity or uncertainty in the relevant sense.
As to subclause 8.1.20, I consider that the only ambiguity or uncertainty rests with the expression ‘average of shift penalties and allowances received in the previous 6 months.’ In my view there is at least uncertainty as to what the divisor should be to obtain that average. The ANMF said the divisor was the number of days worked in the 6-month period. Ramsay did not posit an alternate contention as to averaging and in fact re-stated the averaging proposition in respect of ‘shift and weekend penalties’ in its draft order. Nonetheless, I am of the view that the expression could also encompass a divisor that consisted of the total number of days in the 6-month period. This gives rise to uncertainty for the purposes of s.217.
I do not consider that the alleged inconsistency between 7.10.2 and 8.1.20 gives rise to an ambiguity or uncertainty. I am of the view that the clauses deal with discrete entitlements and the limitation set out in 7.10.2 does not cast a shadow of ambiguity or uncertainty on the reference to the amount determined by reference to ‘allowances’ in 8.1.20. The proposition that a particular contention might produce an unfair outcome may be a matter relevant to the exercise of the discretion to vary a term to remove ambiguity or uncertainty, but it is not in itself determinative of the existence of an ambiguity or uncertainty. I do not consider there are any other relevant uncertainties or ambiguities in 8.1.20.
Whether the proposed variations should be made to remove ambiguity or uncertainty
Central to Ramsay’s case for the removal of ambiguity and uncertainty was the proposition that the history of agreement-making between the parties demonstrated a clear mutual intention that the subclauses in contest were to operate in a particular way and that the variation sought reflected that intention. Ramsay said the proposed variation would also remove the asserted ambiguity or uncertainty and that the Commission acting in accordance with equity and good conscience should find favour with the proposed variation.
Common intention
There were 4 previous agreements covering Ramsay and the ANMF that predated the Agreement. For ease of reference, I will refer to each of those agreement by the year of their commencement. They are the 2009, 2012, 2015 and 2018 Agreements respectively.
2009 Agreement
In relation to the 2009 Agreement, Ramsay said that terms of that agreement showed, in summary, the following:
(a) Day workers were paid at their ordinary rate of pay plus a 17.5% loading on their ordinary weekly rate;
(b) Shift workers were paid at their ordinary rate of pay plus either the 17.5% loading or the shift allowances and weekend penalty rates that would have been paid for ordinary time during the annual leave period, whichever was higher; and
(c) 7 day shift workers were paid at their ordinary rate of pay plus the shift allowances and weekend penalty rates that would have been paid for ordinary time during the annual leave period (but not the 17.5% loading).[21]
They also said that the 2009 Agreement provided that:
(a) penalty rates for shift work and weekend work did not form part of the ordinary rate of pay, except for the purpose of the annual leave loading clause that applied to all employees other than 7-day shiftworkers;
(b) in addition to the ordinary rate, an employee other than a 7-day shift worker was to be paid a loading of 17.5% of the appropriate ordinary weekly time rate of pay plus specified allowances, or alternatively the shift allowances and weekend penalties for ordinary time the employee would have worked if not on annual leave if that would exceed the 17.5% loading.[22]
2012 Agreement
In relation to the 2012 Agreement, Ramsay said that terms of that agreement relating to annual leave were materially different to the 2009 Agreement. They said that clause 6.1.8 in the 2012 Agreement was identical to clause 8.1.19 in the Agreement and that clause 6.1.29 was in similar but not identical terms to clause 8.1.20 in the Agreement.
Ramsay also referred to a document dated June 2012 between themselves and the ANMF which described how the 2012 Agreement was intended to operate. That document included the following:
“The new agreement in NSW is a significant break from the past in the style of the document. The new document is a comprehensive revision of the expression of the entitlements of nurses. It is intended that the expression be in simple, contemporaneous language to make the document more useful to both managers and nurses.
In a project of this complexity it is possible that there will be unforeseen consequences in the change of expression of entitlements. The approach agreed in the negotiations between the Association and Ramsay Health Care to avoid unforeseen consequences is that:
1. existing entitlements remain unchanged with the exception of those intentionally changed by negotiation;
2. the interpretation and application of the new document shall be informed by the interpretation and application of the content of preceding agreements.
…
In the event … (an issue) is escalated by the dispute settlement procedure to Fair Work Australia the parties will inform FWA of this letter on interpretation of the Agreement.”
Ramsay submitted that the evidence showed that:
(a) the ANMF were not seeking changes to the payment made for a period of annual leave (although they were seeking an increase to the quantum of annual leave) from the 2009 Agreement to the 2012 Agreement;
(b) Ramsay were not seeking any changes to the payment made for a period of annual leave from the 2009 Agreement to the 2012 Agreement; and
(c) there were no negotiated changes to the entitlements to payment for annual leave, or annual leave loading.
Ramsay submitted that to the extent there were changes of substance to the relevant provisions relating to annual leave and leave loading between the 2009 and 2012 Agreements these were unintended and were drafting errors on the part of the parties. They said the June 2012 document showed that the parties had a common intent for the relevant annual leave provisions in the 2012 Agreement to remain unchanged from the 2009 Agreement.
2015 Agreement
Ramsay was unable to provide documentation recording the negotiation of the 2015 Agreement. They noted however that clause 6.1.19 in the 2015 Agreement (relating to the annual leave component) was identical to 6.1.18 of the 2012 Agreement. The subclauses relating to the loading component were different as between the two agreements. The latter agreement made reference to ‘shift penalties and allowances’ in the alternate loading component and an averaging system in the previous six months for the purposes of the calculation of that part of the component. This averaging system was referred to in 6.1.20 as being introduced on a trial basis for the first 6 months of the agreement. No such provision had appeared in the earlier iterations of the agreements.
Ramsay argued that
‘The terms of the 2015 EA do not, in substance, amount to a change from the 2012 EA for the entitlement to pay for a period of annual leave. The only change was to include a method to calculate the value of the Alternate Loading in order to determine whether it was the 17.5% Loading or the Alternate Loading to be paid.
In substance, and in the context of the 2015 EA as a whole, the same errors in the drafting of clauses 6.1.18 and 6.1.29 in the 2012 EA were unintentionally replicated in clauses 6.1.19 and 6.1.20 of the 2015 EA. This was exactly the sort of unintended consequence that Ramsay and the ANMF agreed was to be avoided (per the 2012 Common Intent Agreement).
The conclusion to be drawn is that the terms in the 2015 EA that provided for payment of annual leave and leave loading (i.e. clauses 6.1.19 and 6.1.20) were intended to remain unchanged other than to incorporate the method for calculating the Alternate Loading, and was to be interpreted by reference to the 2009 CA.’[23]
2018 Agreement
Ramsay again noted the similarities between the comparable subclauses in the 2015 and 2018 Agreements. They contended that the material change was the adoption of the trial method for the calculation of the alternate loading component. They said that there were no other intentional changes sought and that the same errors of drafting that appeared in the 2015 Agreement were reproduced in 2018 and that this ‘unintended consequence’ was exactly what the parties had agreed in 2012 should be avoided. They submitted that the intention was that aside from the calculation of the alternate loading component, the provisions were intended to be unchanged and ‘interpreted by reference to’ the 2009 Agreement.
Ramsay submitted that the evidence in the matter, including the evidence of their witnesses, compelled a conclusion that the amounts to be paid for a period of annual leave had been settled and undisturbed since 2009 and that there were no negotiations as to the form, content or effect of subclauses 8.1.19 and 8.1.20 of the Agreement. They said the 2015 method for calculating the alternate loading was not a change but an agreement as to how to work out that component. They said the evidence was that the parties had not, since 2009, ever discussed or negotiated any change to the clause.
The ANMF said that Ramsay’s evidence confirmed that there had been no discussion or consideration of the 2009 Agreement during the negotiation of the 2018 Agreement or the 2021 Agreement itself. They said that Ms. Prideaux’s evidence showed that Ramsay was not paying annual leave in accordance with their own proposed orders and that the practice was to ‘top-up’ leave loading and that she was unsure as to what the payment practice was for 7-day shift workers. They submitted that Mr. Richardson’s evidence confirmed that there were changes of substance relating to the annual leave provisions as between the 2009 Agreement and the 2012 Agreement and that both parties had given considered attention to the terms of the agreements in negotiations in 2012 and 2015.
The ANMF said that Ramsay’s case, at its highest, was one of common inadvertence not common intention as the evidence did not establish that the parties had always intended that the disputed clauses were to have the meaning provided for in Ramsay’s draft orders.
Consideration
The principles guiding the exercise of discretion in applications under s.217 were discussed both at first instance[24] and on appeal[25] in the Monash University litigation. In the appeal decision, the Full Bench said that the approach of Deputy President Bell as to the significance of an antecedent common intention, was consistent with previous authority in relation to a predecessor provision to s 217. The Bench endorsed the view expressed in Re Australian and International Pilot’s Association[26] that the objectively ascertained mutual intention of the parties at the time the agreement was made was a significant factor in determining whether to exercise the discretion to vary an agreement to remove uncertainty or ambiguity.[27]
The Full Bench also observed that the exercise of the power is ‘not to give effect to a new and substantive change to an enterprise agreement the subject of an application. And a decision to remove uncertainty or ambiguity should give effect to the “substantive agreement” that was ambiguously or uncertainly reduced to writing in the terms of the enterprise agreement’.[28]
The proposition put by Ramsey here was that the true substance of an agreement that was entered into in 2012 and imperfectly reduced to writing at that time, was consistent with the objectively ascertained mutual intention of the parties that had survived through to the making of the 2021 Agreement. They argued in effect that this intention remained notwithstanding the wording of the latter agreement. Ramsay accepted that there were differences of substance between the wording of the annual leave provisions of the 2009 Agreement and those of the 2012 Agreement. Some of these differences they said were attributable to consciously negotiated changes. Others, including the clauses now in issue, were described as unintended drafting errors. In his evidence in chief, Mr. Richarson, Ramsay’s Human Resources Manager at the relevant time, said changes to the annual leave provisions were not discussed or negotiated during the negotiation of the 2012 Agreement. In cross-examination however he accepted that the ANMF did take an active interest in the redrafting for the 2012 Agreement including, specifically, the provisions relating to the payment of annual leave and leave loading. The evidence was as follows:
And so the 2012 agreement provisions in your recollection do represent an active agreement between the two parties. I'm talking about specifically the provisions relating to annual leave loading and annual leave payment?---Yes, I believe they are. Yes. I believe they do, sorry, I should say.[29]
Having regard to the evidence, I am unable to conclude that the changes to the relevant provisions which were of some significance and which involved very different terminology were no more than a drafting error that found its way into the 2012 Agreement without any conscious consideration by parties.
Ramsay’s reliance on the June 2012 correspondence as reflecting an intention of the parties to preserve the application of the 2009 Agreement is of limited assistance. Even if, contrary to my finding above, the parties had inadvertently made changes in the transition between the two agreements, the correspondence does not set out to preserve the relevance of the 2009 Agreement in perpetuity. The document was brought into existence in the context of the 2012 negotiations with a view to potentially clarifying the operation of a newly entered-into agreement. Two further agreements were negotiated in the intervening period between the 2012 Agreement and the 2021 Agreement. Mr. Richardson’s evidence was that there was no reference to the document in any negotiations after 2012[30] and there were no efforts to revisit any unintentional changes made by the 2012 Agreement in the agreements that followed it.[31]
There was no dispute that the parties did turn their minds to the provisions relating to leave loading in the negotiations for the 2015 Agreement. That resulted in changes to that clause which were introduced on a trial basis. Those changes were adopted and incorporated into the 2018 Agreement and later, the 2021 Agreement. Ramsay’s proposed draft order reflects the agreed position from 2015 for employees other than 7-day shift workers, but makes different and quite separate provision for 7 day shift workers that reverts back to the 2009 Agreement. This is because, Ramsay maintained, the distinction between the loading to be paid to a day worker, a shift worker and a 7-day shift worker was inadvertently left out of the 2012 Agreement. I am unable to accept that in circumstances where the loading provisions have been deliberately reconsidered and changed from 2015 onwards, it is possible to conclude that the objectively ascertained mutual intention was that the loading provisions were intended to operate for 7-day shift workers in a way that was consistent with the 2009 Agreement and not in accordance with the terms the parties entered into in 2021.
I also note that there are differences between what Ramsay says was the common intention derived from the 2009 Agreement and the proposed draft orders said to reflect this intention, at least insofar as the loading provisions are concerned. The draft orders propose that for employees other than 7-day shift workers, the loading component on the first 4 weeks of leave shall be ‘17.5% of the employee’s Ordinary Rate of Pay, or the average of shift and weekend penalties received by the employee in the previous 6 months, whichever is the higher’ (emphasis added). Clause 31(iv) of the 2009 Agreement provided for a loading of 17.5% of the appropriate ordinary weekly time rate of pay together with special allowances. For shift workers, the entitlement in 31(vii) was the higher of the loading or the amount including shift work allowances and weekend penalty rates that would have been received had the employee worked.
For these reasons I am not satisfied on the evidence in this case that Ramsay has established that there is an objectively ascertained mutual intention at the time the Agreement was made and that this intention was to maintain the annual leave arrangements provided for in the 2009 Agreement. Nor do I think such an intention, even if it did exist, is now reflected in the draft orders proposed. The making of the variation would involve the making of a new and substantive change from the terms of the agreement struck by the parties. These are significant factors weighing against the exercise of my discretion in favour of making the variations sought. I am also of the view that in circumstances where an agreement has expired and the parties are bargaining for a replacement agreement it would not be appropriate to exercise my discretion in favour of a variation, particularly one that would operate from the date of commencement of the Agreement in December 2021. The lack of clarity as to the application of the clause over the course of the Agreement also weighs against a variation with retrospective operation.
I do not propose to exercise the discretion conferred by s.217 in this case. The application by Ramsay under s.217 is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Dunstan for the ANMF.
Mr Gee for Ramsay Health Care Australia Pty Ltd.
Hearing details:
In person at the Fair Work Commission, Sydney at 10:00am AEDT on Monday, 14 October 2024.
Final written submissions:
ANMF filed final submissions on 17 October 2024.
Ramsay Health Care Australia Pty Ltd filed final submissions on 18 October 2024.
[1] C2024/1386.
[2] AG2024/2634.
[3] Section 578.
[4] See for example Target Australia Pty Ltd v Shop, Distributive and Allied Employees' Association [2023] FCAFC 66 at [8] to [9].
[5] [2018] FCAFC 131.
[6] Ibid at [197].
[7] [2017] FWCFB 3005.
[8] [2014] FWCFB 7447.
[9] AMWU and UWU v. FreshFood Management Services Pty ltd[2022] FWC 3320 at [37].
[10] [2023] FCAFC 66.
[11] Clause 1.8.20.
[12] Submission paragraph 32.
[13] Subclauses 7.9.2 to 7.9.5.
[14] Subclauses 7.9.6 to 7.9.8.
[15] Subclauses 7.9.9 to 7.9.12.
[16] Subclauses 7.9.13 to 7.9.14.
[17] Submission paragraph 72.
[18] Bianco Walling Pty Ltd v. Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [49].
[19] PN 724.
[20] PN 734.
[21] Submissions 30 August 2024 at 28.
[22] Ibid at 27.
[23] Submissions 45 to 48.
[24] Monash University[2023] FWC 1148.
[25] Monash University v. National Tertiary Education Union[2023] FWCFB 181.
[26] (2007) 162 IR 121.
[27] Op cit at [20].
[28] Citing Construction, Forestry, Maritime, Mining and Energy Union v Specialist People Pty Ltd[2019] FWCFB 6307, at [24].
[29] Transcript PN 489.
[30] Transcript PN 477.
[31] Transcript PN 479.
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