Construction, Forestry, Mining and Energy Union v Ashton Coal Operations Pty Limited

[2013] FWC 447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
Ashton Coal Operations Pty Limited
(C2012/1219)

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Ashton Coal Operations Pty Limited
(AG2012/12069)

ASHTON COAL OPERATIONS PTY LIMITED - ASHTON COAL PREPARATION PLANT WORKPLACE AGREEMENT 2010

ASHTON COAL OPERATIONS PTY LIMITED - ASHTON UNDERGROUND MINE ENTERPRISE AGREEMENT 2012

Coal industry
COMMISSIONER ROBERTS	SYDNEY, 23 APRIL 2013

Application to deal with a dispute re long service leave payments; meaning of ‘paid as if the employee was at work’; application to vary agreements to remove alleged ambiguity or uncertainty re long service leave payments.

[1] This decision concerns two applications, one filed on 4 October 2012 by the Construction, Forestry, Mining and Energy Union (the CFMEU or the Union) pursuant to s.739 of the Fair Work Act 2009 (the Act) to resolve a dispute between it and Ashton Coal Operations Pty Limited (Ashton, ACOL or the Company) under the Ashton Coal Operations Pty Limited - Ashton Coal Preparation Plant Workplace Agreement 2010 (the 2010 CHPP Agreement), regarding the correct remuneration of employees when they proceed on long service leave. The second application was filed on 31 October 2012 by Ashurst Australia (Ashurst) on behalf of Ashton pursuant to s.217 of the Act seeking to vary the 2010 CHPP Agreement and the Ashton Coal Operations Pty Limited - Ashton Underground Mine Enterprise Agreement 2012 (the 2012 Underground Agreement) to remove an alleged uncertainty or ambiguity in each agreement in relation to long service leave payments. The two agreements contain similar provisions in relation to payment for long service leave. Ashurst filed an amended application on 7 November 2012.

[2] The s.739 application was unsuccessfully conciliated by me on 11 October 2012 and that conciliation was followed by Ashton’s s.217 application. The parties agreed that the most efficient way of going forward with both applications was to have them heard together as they concern a common matter. The two applications then came on for hearing before me in Cessnock on 20 November 2012 and the hearing was concluded in Sydney on 29 November 2012. The CFMEU was represented by its Industrial Research Officer, Mr K Endacott. The Company was represented by Mr A Morris of Ashurst.

[3] The 2010 CHPP Agreement was approved by me on 26 March 2010 with a nominal expiry date of 9 March 2013. The 2012 Underground Agreement was approved by me on 16 April 2012 with a nominal expiry date of 9 November 2015. The CFMEU is the sole union respondent to each of the agreements. Both agreements operate to the exclusion of all provisions of the Black Coal Mining Industry Award 2010.

[4] The core issue between the parties is the terms of subclause 2.8.1 (Long Service Leave) of the 2010 CHPP Agreement and subclause 2.7.1 (Long Service Leave) of the 2012 Underground Agreement.

[5] The 2010 CHPP Agreement relevantly provides at subclause 2.8.1:

“2.8.1 Employees shall be entitled to Long Service Leave in accordance with this clause and the Coal Mining Industry LSL Reform Agreement 2009 and will be paid as if the employee was at work when taking the leave or on termination of employment subject to 2.8.7 and 2.8.9 below.”

[6] The terms of subclauses 2.8.7 and 2.8.9 are not presently relevant to the dispute.

[7] The 2012 Underground Agreement relevantly provides at subclause 2.7.1:

“2.7.1 Employees shall be entitled to Long Service Leave in accordance with this clause provided that in determining payment an employee shall be paid as if the employee was at work when taking the leave or on termination of employment subject to 2.7.7 and 2.7.9 below.”

[8] The terms of subclauses 2.7.7 and 2.7.9 are not presently relevant to the dispute.

[9] In short, the CFMEU contends that Ashton is not correctly applying the provisions of subclause 2.8.1 of the 2010 CHPP Agreement, in that the Company “is failing to pay the employees the same amount as they would receive as if they were at work for the period they had taken long service leave”. 1

[10] Currently, Ashton does not pay employees under the 2010 CHPP Agreement for Tool Allowance, First Aid Allowance or Crib Allowance when an employee takes long service leave or is paid out for long service leave on termination of employment. In relation to those allowances, the agreement relevantly provides at subclauses 2.2.2 (b), (c) and (d):

“(b) Tool Allowance - Employees required to provide necessary tools will be paid $2.40 per day they attend work.

(c) First Aid Allowance - Employees who provide proof of a current First Aid Certificate (Work Cover Accredited) shall be paid a flat allowance of $3.00 per day worked and shall be paid from the date the certificate is presented for the currency of the certificate.

(d) Employees will be paid an allowance of 0.75 hours at ordinary rates for each day they attend work. This allowance is in total payment for the staggering of, disruption to or missing crib (no crib taken) where necessary to maintain continuity of operations.”

[11] Ashton maintains that it is not required by the Agreement to pay such allowances on long service leave and maintains that the words ‘paid as if the employee was at work’ are synonymous with the provisions of the Agreement in relation to payment for annual leave. The relevant annual leave provisions are found at subclauses 2.6(d) and (e):

“(d) Payment for annual leave will be the greater of the employee’s ordinary rate of pay plus a loading of 20% of that rate or the employees projected roster earnings for the period of leave.

(e) Projected roster earnings for a Monday to Friday employee include shift allowances and any rostered overtime, whilst projected roster earnings for a Monday to Sunday employee include rostered Saturday, Sunday and Public Holidays (up to double time), shift allowances and any rostered overtime.”

[12] The 2012 Underground Agreement contains similar wording at subclauses 2.5(e) and (f).

[13] The Union application deals only with the 2010 CHPP Agreement and contends that the meaning of the subclause is clear on its face and is not susceptible of any uncertainty or ambiguity.

[14] In its application, Ashton contends that subclause 2.8.1 of the 2010 CHPP Agreement and subclause 2.7.1 of the 2012 Underground Agreement are the subject of “uncertainty as to the interaction between the general provisions of the LSL clauses and the particular provisions prescribing the relevant allowances in the two agreements that are the subject of this application”. 2

[15] The 2012 Underground Agreement relevantly provides at subclauses 2.2.2(c), (d) and (e):

“(c) First Aid Allowance - Employees who provide proof of a current First Aid Certificate (Work Cover Accredited) shall be paid a flat allowance of $3.10 per day worked and shall be paid from the date the certificate is presented for the currency of the certificate.

(d) Trainer/Assessor Allowance - Employees who are appointed as a trainer and/or assessor shall be paid a flat allowance of $4.40 per day worked.

(e) Trade Allowance - Employee’s appointed as a Tradesperson will be paid a flat allowance of $15.75 per shift worked for the purpose of planning, reporting, pre and post shift communication (up to a total of 15 minutes per shift), and statutory duties required to be accessed...”

[16] In its application, Ashton further submitted that the expression ‘paid as if at work’ was first included in long service leave provisions applying to its employees under the Ashton Coal Operations Pty Limited - Ashton Open Cut Mine Certified Agreement 2008 (the 2008 Open Cut Agreement) and the same expression was subsequently included in the Ashton Coal Operations Pty Limited - Ashton Underground Mine Certified Agreement 2008 (the 2008 Underground Agreement) and then in the 2010 CHPP Agreement and the 2012 Underground Agreement. The application notes that the 2008 Open Cut Agreement was terminated on 13 June 2012 on Ashton’s application.

[17] Ashton’s application goes on to say:

“The expression ‘shall be paid as if at work’ has been consistently treated by the Applicant as including payment of shift allowances, rostered overtime and bonus and has not included other allowances, namely in clause 2.2.2 of the Ashton Underground Agreement 2008 and the Ashton Underground Agreement 2012 - Step Up Allowance, First Aid Allowance, Trainer/Assessor Allowance and Trade Allowance; and in clause 2.2.2 of the Ashton CHPP Agreement 2010 - the Tool Allowance, First Aid Allowance Crib Flexibility Allowance and Leading Hand / Step Up Allowance.

When the Ashton CHPP Agreement 2010 and the Ashton Underground Agreement 2012 were negotiated, it was known how those same words and the provisions concerning the relevant allowances had been applied in the prior agreements ...

The Applicant contends that the intended effect of both of the agreements which are the subject of this application is that the relevant allowances are not required to be paid in respect of LSL and that this is reflected in the particular subclauses prescribing the allowances, which state that an employee is entitled to the allowances for each day or shift worked, meaning actually worked.”

[18] Section 217 of the Act provides:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.

(2) If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[19] Ashton seeks orders pursuant to s.217 of the Act in the following terms:

“1. In the Ashton Coal Operations Pty Ltd - Ashton Underground Mine Enterprise Agreement 2012, insert the following new clause 2.2.3: ‘For clarity, the allowances as provided in clauses 2.2.2(b), (c), (d) and (e) are only payable when an employee actually attends work and are not payable where the employee is paid as if at work under clause 2.3.2(b) (Accident Pay), clause 2.7 (Long Service Leave) or clause 2.9.1 (Compassionate Leave).’

2. In the Ashton Coal Operations Pty Ltd - Ashton Coal Preparation Plant Workplace Agreement 2010, insert the following new clause 2.2.3: ‘For clarity, the allowances as provided in clauses 2.2.2(b), (c), (d) and (e) are only payable when an employee actually attends work and are not payable where the employee is paid as if at work under clause 2.8.1 (Long Service Leave) or clause 2.10.3 (Compassionate Leave).’

3. That Order 1 shall operate from 23 April 2012.

4. That Order 2 shall operate from 2 April 2010.”

[20] In its amended form F1 application, Ashton said:

“10. It is evident from the recent dispute application by the CFMEU that there is an uncertainty as to the interaction between the general provisions of the LSL clauses and the particular provisions prescribing the relevant allowances in the two agreements that are the subject of this application.

11. It is appropriate that the two agreements the subject of this application be varied to remove the uncertainty (or ambiguity) in the manner sought by this application, namely by making it clear that the relevant allowances are not, and have not at any time been required to be paid in respect of LSL.

12. The variation of the two agreements in the manner sought will give effect to the mutual intent of the parties to the agreements at the time that the agreements were made.”

Evidence

Mr M Kelly

[21] Mr M Kelly gave sworn evidence and submitted a witness statement 3.

[22] In his witness statement, Mr Kelly said that he has been an Industrial Relations and Management Consultant advising and representing Ashton since 2005. In that role he has been involved in negotiating a number of enterprise agreements covering underground operations, open cut operations and the Coal Handling and Preparation Plant (the CHPP). Mr Kelly goes on to provide some history of enterprise agreement negotiations at Ashton’s operations.

[23] Mr Kelly said that in negotiations leading to the making of the 2008 Open Cut Agreement, Ashton agreed to improve long service leave payments by paying long service leave as if an employee was at work so as to equate long service leave payments to those made for annual leave. He went on to say: “I believe that ‘paid as if at work’ was a shorthand term that was widely understood in my experience in the industry as including rostered overtime, shift allowances and weekend penalties. The treatment of other allowances such as first aid allowances, tool allowances and the like would vary from site to site depending on the terms of the applicable agreement.”

[24] Mr Kelly continued by saying that historically in the coal mining industry annual leave was paid at a higher rate than long service leave and this led to a significant reduction in pay when employees went on long service leave as compared with annual leave. “Once enterprise bargaining was introduced, some employers agreed to improve LSL payments by paying ‘as if at work’. In other words paying rostered overtime and applicable shift allowances and weekend penalties.” Improvements were also made to accident pay rates.

[25] In relation to the 2008 Underground Agreement, Ashton agreed to long service leave payments in line with the 2008 Open Cut Agreement. This again equalised annual leave and long service leave payments.

[26] In relation to the negotiation of the 2010 CHPP Agreement, Mr Kelly said that one of the union claims was for long service leave “to be paid as if at work in the same way as under the then current Open Cut Agreement 2008 and the Underground Agreement 2008. “ACOL readily agreed to this claim to achieve a consistent approach to payment of LSL across the Ashton operations. There was little debate about the claim given the established precedent at the other Ashton operations.”

[27] “At no stage in the negotiations for either the CHPP Agreement 2007 or the CHPP agreement 2010 was there any discussion about this crib flexibility allowance being paid in respect of any form of paid leave. The Tool Allowance and the First Aid allowance were agreed to be increased. There was no discussion about these allowances being paid in respect of LSL or other forms of paid leave. The crib flexibility allowance increased automatically because it was calculated by reference to the employee’s hourly rate. As in the case of the Open Cut Agreement 2008 and the Underground Agreement 2008, to pay the allowances in respect of LSL would have meant that payments for LSL would be higher than payments for annual leave. There was no claim for this.”

[28] Mr Kelly noted that the leading Hand / Step Up Allowance is not payable on any form of leave: “I note that the Leading Hand / Step Up Allowance is not expressed as being paid ‘per day worked’ in the same way as the other allowances.”

[29] Mr Kelly went on to say that, in negotiations for the 2012 Underground Agreement, payment for personal leave was increased to payment ‘as if at work’. “To the best of my recollection, in these negotiations, no issue or concern was raised by the employee bargaining representatives in respect of the meaning given to ‘paid as if at work’ where that term has been used in the Ashton Operations collective agreements. In particular, no issue was raised about the fact that ACOL did not pay employees covered by the Underground Agreement 2008 the allowances (other than shift allowances) in respect of LSL, annual leave, accident pay or compassionate leave.”

[30] Mr Kelly said that in the negotiations for the proposed 2011 Open Cut Agreement there was no discussion about First Aid Allowance or Step Up Allowance being paid in respect of long service leave. “I do recall that there was a claim for, and significant discussion about, payment for personal leave and accident pay being paid as if at work. However, none of that discussion related to the inclusion of the allowances mentioned above.”

[31] In cross-examination, Mr Kelly said that ‘paid as if at work’ has the same meaning as ‘projected roster earnings’. 4 He went on to say that there was no discussion during enterprise agreement negotiations about what ‘paid as if at work’ meant.5

[32] Mr Kelly went on to repeat that ‘paid as if at work’ “was a shorthand term that was widely understood … in the industry as including roster overtime, shift allowances and weekend penalty rates. 6

[33] Mr Kelly went on to say that the Company did not specifically exclude certain allowances from the payment provisions for long service leave because it did not feel that it was necessary as the parties understood what was involved. 7 Mr Kelly was asked: “And if I've got this application right, you are seeking the Commissioner to now put a definition in the agreement that would ensure the agreement reflects what your understanding was in the negotiations?” and replied: “Our application is, yes, to put words in that would have been better put in at the time of the negotiations, no doubt about it.”8

[34] Mr Kelly was then asked: “So if the true definition of paid as if at work is what you are paid an amount equal to what you have paid if you physically attend work for the period of annual leave, then that note you make is not correct?” and replied: “If it's said for what you were paid as if you had worked, or attended work, yes it's not the same.” 9

Ms K Taylor

[35] Ms Taylor gave sworn evidence and submitted a witness statement 10.

[36] In her witness statement, Ms Taylor said that she is HR Superintendent at Ashton and has held that position since May 2012. She is responsible for employee relations across the Ashton mine sites and for payroll matters.

[37] Ms Taylor went on to say that in connection with these proceedings she examined long service leave records of Ashton employees from 1 January 2008 for the Underground Mine and until December 2011 for the Open Cut Mine and the CHPP. The Open Cut Mine ceased operation in December 2011.

[38] Attached to Ms Taylor’s statement was an annexure 11 which sets out details of long service leave paid by the Company. I have paid regard to the details in that annexure.

[39] Ms Taylor went on to say that she also examined, by a sampling process involving eleven records of long service leave payments for nine employees, in relation to payments made to employees in respect of long service leave. “Those records show that LSL payments to Employees, whilst covered by the respective agreements, have included payment in respect of shift loading, rostered overtime and production bonus. In no case was an Employee paid in respect of other allowance prescribed in the respective agreements ...”

[40] Specifically, Ms Taylor said that in relation to the 2008 and 2012 Underground Agreements, Step Up Allowance, First Aid Allowance, Trainer / Assessor Allowance and Trade Allowance were not paid. In relation to the 2008 Open Cut Agreement, First Aid Allowance and Leading Hand / Step Up Allowance were not paid. In relation to the 2010 CHPP Agreement, Tool Allowance, First Aid Allowance, Crib Flexibility Allowance and Leading Hand / Step up Allowance were not paid on long service leave.

[41] Ms Taylor went on to say that she had examined Ashton’s records concerning the taking of compassionate leave and payments for such leave since 1 January 2008, again by a sampling process involving the records of eleven employees. “These records show that compassionate leave payments to employees, whilst covered by the respective agreements, have not included payment of the allowances prescribed in the respective agreements ...”

[42] Ms Taylor had also searched Ashton’s records in relation to employees who received accident pay in respect of a period longer than four weeks while covered by the 2008 Underground Agreement, employees who received accident pay of any duration under the 2012 Underground Agreement and employees who received accident pay for a period longer than eight weeks under the 2008 Open Cut Agreement. None of those payments included payment of the allowances prescribed in the respective agreements.

[43] Ms Taylor said that long service leave payments made to Mr Turner in April 2011 and June/July 2012 “did not include payment in respect of any allowances other than shift allowances. That is, he was not paid in respect of Tool Allowance, First Aid Allowance or Crib Flexibility Allowance ...”

[44] It was Ms Taylor’s further evidence that until Mr Turner raised the issue in respect of his leave in June/July 2012, “no issue or dispute has arisen about the fact that LSL payments to employees have not included payment in respect of the allowances ...”

[45] In cross-examination, Ms Taylor agreed that her direct knowledge of Long Service Leave payments was post May 2012. She agreed that CHPP employees on Long Service Leave received less than they would have if they had attended work. 12

Mr G Sharp

[46] Mr Sharp gave sworn evidence and submitted a witness statement 13.

[47] In his witness statement Mr Sharp said that he is a Vice President of the CFMEU’s Northern District Branch and has worked for the Union since January 2006. He was previously an underground mineworker and an official of CFMEU Lodges. He has responsibility for representing the industrial interests of CFMEU members at certain mine sites.

[48] Mr Sharp went on to say that he was a bargaining representative in negotiations leading to the making of the 2010 CHPP Agreement but was not involved in negotiations relating to the underground or open cut agreements. Mr Sharp said that during the 2010 CHPP Agreement negotiations, the Company never said that Tool Allowance, First Aid Allowance or the Crib Flexibility Payment would not be paid when an employee went on Long Service Leave. “All of these payments are payments that are made to an employee that attends work.”

[49] Mr Sharp went on to say that the 2010 CHPP Agreement does not contain a definition of ‘as if at work’ but “… the Agreement does not ‘except’ any particular payments for Long Service Leave and the only payment which is specifically referenced as not being paid on ‘any form of leave’ is the Leading Hand/Step up Allowance at clause 2.2.2(e).”

[50] Mr Sharp replied to the evidence of Mr Kelly, saying that Mr Kelly’s belief that ‘paid as if at work’ was understood in the industry as including rostered overtime, shift allowances and weekend penalties, is in error. “The term is clear and easily understood.”

[51] “It is raised in the Respondent’s statements that no employee had raised issue of Long Service Leave underpayments. It is my experience that employees often do not check their payslips and until brought to the attention of the Union by Mr Turner that he was not being paid what he would have received had he attended work, I was unaware the Respondent was not paying the employees as required by the terms of their Agreement.”

[52] In cross-examination, Mr Sharp said that he did not pay any particular regard to the 2008 Underground Agreement or the 2008 Open Cut Agreement when formulating a log of claims for the 2010 CHPP Agreement in relation to Long Service Leave payments. 14 He went on to say that in the CHPP negotiations, the Company agreed to the claim for Long Service Leave to be paid ‘as if at work’.15 Mr Sharp said that the Company neither said that those allowances would be paid or would not be paid.16

[53] In further cross-examination, Mr Sharp maintained his evidence that employees often do not check their payslips. 17

Mr P Turner

[54] Mr Turner gave sworn evidence and submitted a witness statement 18.

[55] Mr Turner is an Ashton employee at the CHPP as a Level 3 Operator and commenced employment in March 2004. He is also the CFMEU Lodge President. He works a Monday to Friday rotating roster, working 35 ordinary hours per week plus rostered overtime. He receives Tool Allowance, First Aid Allowance and the Wash Plant Allowance.

[56] Mr Turner went on to say that when he went on Long Service Leave, he received a pay slip and “observed that I received an amount significantly less than what I receive if I had attended work for the period of the Long Service Leave.” He checked the wording of the 2010 CHPP Agreement and came to the belief that he had been underpaid. He raised the matter with the Company, without success. “In all of my years working in the coal mining industry and in my involvement in Agreements, it has never been mentioned to me, said to me or understood by me that being paid ‘as if at work’ means less than being paid as if you would have attended work.”

[57] Mr Turner said that he was an employee representative in the negotiation of the 2010 CHPP Agreement and: “It was a demand in these negotiations that when an employee was absent from work on Long Service Leave they were to be paid the same amount they would received if they had continued to work. The Agreement reflected what was agreed and those words were ‘will be paid as if the employee was at work when taking the leave’.”

[58] Mr Turner continued by saying that he had informed Ms Taylor that he believed that he had been underpaid for his Long Service Leave and that the wording of the Agreement was clear. “It is not my practice to check that the employer is paying me correctly. I generally trust that my employer is paying me correctly under the terms of the Agreement. It is my experience over the years that most people I work with generally trust the employer is paying them correctly.”

[59] In cross-examination, Mr Turner said that he checked his payslips after returning from a combination of annual, sick and long service leave in late July 2012. 19 He followed the matter up with the CFMEU Lodge and the Wash Plant Manager.20

[60] In further cross-examination, Mr Turner was asked: “You remember when you were present in the negotiations for the 2010 CHPP there was no resistance to the claim for long service leave to be paid as if at work?” and said: “No.” 21 He was asked: “You knew enough to know that it was paid as if at work already at the open cut and underground?” and said: “No. I told you that.”22

Mr S Thompson

[61] Mr Thompson gave sworn evidence and submitted a witness statement 23.

[62] Mr Thompson is a Vice President of the CFMEU’s Northern District Branch and has held that position since March 2010. He was previously a member of the Union’s Board of Management. Prior to taking up his current role, Mr Thompson was a mineworker. He is the official responsible for CFMEU members and potential members at Ashton.

[63] Mr Thompson went on to say that he was involved in the negotiation of the 2011 Open Cut Agreement and the 2012 Underground Agreement. He was not involved in the negotiation of the 2010 CHPP Agreement.

[64] Mr Thompson went on to say that “In negotiations for an Agreement where the Agreement provides that an employee is to be ‘paid as if at work’ and then it is negotiated or understood that an amount they should receive when attending work would not be paid that is identified in the relevant clause of the Agreement. An example of which appears at clause 2.2.2(e) of the [2010 CHPP Agreement] where it specifically notes ‘this allowance will not be paid for any form of leave’.”

[65] Mr Thompson said in reply to Mr Kelly’s evidence: “A demand for payment as ‘if at work’ is a different demand than a payment to be paid projected roster earnings. ‘Projected roster earnings’ is a terminology that is explained in the Industry Award and in fact a detailed explanation of what is meant by ‘Projected Rostered Earnings’ is contained in each of the Respondent’s Enterprise Agreements. A demand for ‘paid as if at work’ is a demand that an employee will be paid on leave the exact amount they would be paid as if at work. Mr Kelly’s description where he says ‘In other words paying rostered overtime, applicable shift allowances and penalty rates is the meaning to be given to “paid as if at work”’ is incorrect and does not accord with my understanding and the Union’s general understanding of the industry usage of the term. I have never used the term ‘paid as if at work’ or ‘will be paid as if the employee was at work’ to mean projected rostered earnings in any negotiations I have had with the Respondent.”

[66] “At no point in the negotiations when the Respondent agreed to a demand to pay Accident Pay ‘as if at work’ or the improvement under circumstances in Personal Leave to be paid ‘as if at work’ did the Respondent [say] that it did not include the allowances that are received when you attend work such as any of the allowances in clause 2.2.2 of the Agreement.”

[67] “As the Official with responsibility for the Respondent’s operations I was unaware in any negotiations I was involved in that the Respondent had not been paying the employees their lawful entitlements under the Long Service Leave clause whilst on Long Service Leave until it was brought to my attention by Mr Patrick Turner. It’s my experience as a Union Official and a long term Lodge Member that employees often do not check they are being paid properly and even when they become aware of it are reluctant to raise it with their employer for fear of repercussions.”

[68] In his supporting oral evidence, Mr Thompson said: “The way I understand the difference between that [projected roster earnings] and the as if at work payments is basically any other allowance it applies, which I explained to the delegates at the time because they asked me, ‘What’s the difference between as if at work and projected roster earnings?’” 24

[69] In cross-examination, Mr Thompson was asked: “I’ll put this to you, and I’m bound to put this to you, that in fact you understood that the meaning of paid as if at work was the equivalent of projected roster in the annual leave provision?” and said: “That’s not correct.” 25

[70] In re-examination, Mr Thompson was asked: “If you take it between paid projected roster for a Monday to Friday employee for annual leave, do you recall what they would receive?” and said: “They would basically receive whatever their projected roster, which includes your shift allowances, rostered overtime, penalty rates that were in your roster.” 26

Oral submissions

The CFMEU

[71] Mr Endacott argued that the wording of the relevant long service leave provisions in both the 2010 CHPP Agreement and the 2012 Underground Agreement does not give rise to any uncertainty or ambiguity as the meaning of ‘paid as if at work’ and is clear on its face. The argument that ‘paid as if at work’ has the same meaning as ‘projected roster earnings’ is not sustainable when the annual leave clauses of the two agreements define what ‘projected roster earnings’ means.

[72] Mr Endacott went on to say that the Union’s claim for employees to be paid for long service leave ‘as if at work’ was agreed to by Ashton and “It doesn’t matter whether it was their belief that meant something different.” 27

[73] Mr Endacott said that the evidence of Mr Sharp and Mr Thompson came from persons with long experience in the industry. In relation to Mr Sharp, Mr Endacott said: “Evidence about what he has understood to be paid as if at work, that is reliable, strong and understanding of the industry that goes back almost a couple of decades as official and over a couple of decades as a coalminer.” 28 Their evidence should be preferred to that of Mr Kelly.

[74] Mr Endacott went on to address the issue of what weight I should put on the fact that the employees did not raise the level of payment issue on long service leave at an earlier time. He said: “The fact that no one raised it could simply be that everyone trusted their employer they were paid, being paid as if at work.” 29 Mr Endacott also said that little weight should be given to the conduct of the parties subsequent to the making of the agreements. “At the end of the day you look at what was finally agreed and because for any number of reasons things that are finally agreed aren’t always consistent with what the discussion is because people have their own agendas and want to press particular points.”30

[75] In summary, it was Mr Endacott’s argument that ‘paid as if at work’ or similar words have a clear and distinct meaning on their face and that meaning becomes clearer when examined in the context of other leave provisions in the agreements such as those for annual leave.

Ashton

[76] Mr Morris argued that I must have regard to “the genesis and the aim of the transaction known to the parties at or before the date of the contract or in this case, the enterprise agreement.” 31 He went on to say that subsequent conduct by the parties can be relied upon in determining what the intention of the parties was when making an agreement. He said that Ashton does not “rely on subsequent conduct to prove ambiguity here.”32

[77] Mr Morris went on to say: “the allowances in the two agreements that are payable on their face when for a day or shift worked mean just that. And it is necessary in order to qualify for those allowances that work is actually performed. It’s not overridden by the general provision in the language ‘paid as if at work’.” 33

[78] In answer to a question from me, Mr Morris said that ‘per day worked’ is synonymous with ‘undertaking the duties’. 34 He went on to say: “we say on a plain reading of the agreement there is room for doubt and the question comes down to essentially this, whether when the general provisions about leave in these two agreements say an employer will be paid as if at work, the allowances that are paid per day or per shift work or when attending work are required to be paid or whether they’re only paid if a day or shift is actually worked. That’s the nub of the question. And we say it’s only if you actually work them.”35

[79] Mr Morris continued by saying that ‘paid as if at work’ is equivalent to ‘projected roster earnings’ and “the payment per projected roster is explicitly defined in the annual leave provisions and includes rostered overtime, shift allowances and weekend penalties.” 36

[80] In relation to Mr Kelly’s evidence, Mr Morris said that this evidence showed the background behind the ‘paid as if at work’ provision when an employee takes long service leave. The insertion of ‘paid as if at work’ was a significant improvement for employees as it meant that long service leave payments would include rostered overtime, applicable shift allowances and weekend penalties. “So what we say you can draw from Mr Kelly’s evidence is that when this agreement was negotiated in 2008 and the long service leave provision was changed to ‘paid as if at work’ the claim was essentially to match the annual leave payment or level of payment.” 37

[81] Mr Morris continued with an analysis of the negotiations for, and making of, various agreements covering Ashton’s operations. He said that “the common understanding was annual leave projected roster payment and long service leave paid as if at work, compassionate leave paid as if at work mean effectively the same thing. They do not include the allowances in clause 2.2.2.” 38 Mr Morris went on to say: “The issue is raised about whether payment as if at work is being properly applied in September 2012 when some four and a half years after the Underground Agreement – so the Open Cut Agreement 2008 was made, and a little bit less for the Underground Agreement 2008. It’s first raised on behalf of Mr Turner who is giving evidence. To this moment no point about compliance with ‘paid as if at work’ has been taken by the union in relation to the Underground Agreement, deathly silence on that. It was not taken in relation to the Open Cut Agreement. It’s not being taken in relation to any other forms of leave.”39

[82] Mr Morris closed his submission by saying: “what we say in the light of all that history grounded on the submissions I’ve made is that you should conclude that the real and common understanding and intention has been that ‘paid as if at work’ is equivalent to projected roster and that the allowances are treated as paid when an employee actually works not when the agreement provides they’re paid as if at work. ... And varying in the agreements in the way we’ve sought in the application would give effect to what we say is the intent that you discern from all of the evidence and it is desirable and appropriate to vary the agreements to remove that uncertainty. That will resolve the dispute notified by the union. It will ensure clarity and remove all of the uncertainty or ambiguity for the parties going forward. What the parties negotiate in the future is for them in the future but you should not allow an imperfection in drafting and an uncertainty to be now sort of exploited in the way that the union seeks to based on a proposition about the literal meaning of the language.” 40

[83] I have also paid regard to the citations from case law raised by each party. I will now deal specifically with some of the relevant case law and the principles contained therein.

Case law and principles

[84] My earlier decision in CFMEU v Tahmoor Coal Pty Limited 41(Tahmoor) which also dealt with an application pursuant to s.217 of the Act, sets out a selection of the case law and principles to be applied. Many of the decisions cited below refer to s.170MD(6) of the Workplace Relations Act 1996. That section contains at subclause (a) a provision very similar to that contained in s.217 of the current Act:

"170MD(6)

The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement:

(a) for the purpose of removing ambiguity or uncertainty; or

(b) for the purpose of including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee."

[85] The material below is an edited version of the case law in Tahmoor:

The decision in Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 (Tenix) [PR917548 at para 35]makes it clear that the identification of an ambiguity or uncertainty requires the determination of a jurisdictional fact: ‘In the context of s.170MD(6)(a) [of the Workplace Relations Act 1996] the Commission must first identify the existence of an ambiguity or uncertainty before exercising its discretion to vary the agreement. We agree with the Full Bench in Re: CFMEU Appeal which described the existence of an ambiguity or uncertainty as “a necessary statutory prerequisite to any variation being made.”’

In S J Higgins Pty Ltd and others v CFMEU (Higgins) [PR903843 at para 7] Senior Deputy President Williams of the Australian Industrial Relations Commission (the AIRC) said:

‘In my view, it is not enough that there are or may be rival contentions as to the proper construction of the terms of an award or agreement. Nor is it enough that claims may have been made in the field for the application of a particular provision in circumstances and its applicability of the provision is disputed. Such contentions and claims may well be self serving. The correct approach, as applied by the Full Bench, requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning.’

In Telstra v CPSU [PR954989 at paras 36 and 37] a Full Bench of the AIRC said:

‘What is clear from these principles of construction of contracts is the resolve of the Courts to give effect to the contract once it is established that the parties intended to be bound by their agreement. And Courts will impute a common intention by reference to the terms of a contract and the surrounding circumstances. In the absence of mutual intention, imputed or actual, the agreements must fail for frustration. In this regard reference may be had to the words of McHugh JA in G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd:

“[T]he decisive issue is always the intention of the parties which must be objectively ascertained from the terms of the document when read in the light of the surrounding circumstances. If the terms of a document indicate that the parties intended to be bound immediately, effect must be given to that intention irrespective of the subject matter, magnitude or complexity of the transaction. [footnotes omitted]

The point was made even more forcefully by Hand J in Hotchkiss v National City Bank [footnotes omitted]:

“A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party when he used the words intended something else than the usual meaning which the law imposes on them, he would still be held, unless there were mutual mistake or something else of the sort.”’

The decision of Senior Deputy President Marsh in Beltana Highwall Mining Pty Ltd 42 provides a useful summary of guidance from authorities:

‘— before exercising its discretion to vary an agreement pursuant to s.170MD(6)(a) the Commission must first identify the ambiguity or uncertainty [Tenix at para 28, Re Victorian Public Transport Enterprise Agreement 1994 (Re Victorian) [Print M2454 at p.3] and Re Construction, Forestry, Mining and Energy Union (Re CFMEU) [Print R2431 at para 8]].

the Commission may then exercise the discretion to remove the ambiguity or uncertainty by varying the agreement [Tenix at para 28 and Higgins at para 7];

the first step i.e. identification of an ambiguity or uncertainty requires the determination of a “jurisdictional fact” [Tenix at para 33 and Corporation of the City of Enfield v Development Assessment Commission (199 CLR 135 at 148)]

the correct approach to identifying an ambiguity or uncertainty requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning [Tenix at para 49, Higgins at para 7 and Re Victorian at p.3];

the words used in the provision are construed in their context including where appropriate the relevant parts of the parent award with which a complementary provision is to be read [Construction, Forestry, Mining and Energy Union v Linfox Transport (Australia) Pty Limited (Linfox) [Print Q2603 at para 30];

s.170MD(6)(a) is not confined to the identification of which words of a clause give rise to an ambiguity or uncertainty. A combination of clauses may have that effect [Re CFMEU at para 12];

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 [Re Victorian at p.4 and Re CFMEU at para 14];

the Commission's task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. It must avoid contentions that are ‘self serving’ [Re Grocon & CFMEU Enterprise Agreement 2001 - 2002 [PR924146 at para 20] and Higgins at para 7];

the second step in the process is the exercise of discretion as to whether or not an agreement should be varied to remove the ambiguity or uncertainty [Tenix at para 54];

the Commission may not appropriately use its power to rewrite an agreement to install something that was not inherent to the agreement when it was made [Linfox at para 29];

the Commission is to have regard to the mutual intention of the parties at the time the agreement was made and subsequent conduct of the parties [Tenix at para 54];

the Commission is empowered to remove an ambiguity or uncertainty by varying an agreement to remove it in a manner which gives effect to the mutual intentions of the parties at the time the agreement was made. The Commission is not limited by the form of the application before it [Tenix at para 56];

in looking at the context of a provision the Commission is entitled to consider [Short v FW Hercus Pty Ltd (46 IR 128) at 134]:

the effect of a prefatory statement made by the parties at the time when it was introduced into the award;

the circumstances of the origin and use of the clause;

the time when and the circumstances under which the instrument is made;

the entire document of which the contentious provision is part or other documents with which there is an association;

ideas that give rise to an expression in a document.’ 43

In Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd 44, their Honours said:

‘Support for the position that the industrial context and the intention or purpose of the makers of an industrial instrument should be paramount notwithstanding the strict wording of the document is found in the judgments of members of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union [case citation omitted].

In Amcor, Gleeson CJ and Mc Hugh J stressed at [2] that:

(t)he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation.

See also at [13], where their Honours referred to:

… the industrial purpose of the agreement, and the commercial and legislative context in which it applies.

Further, the purposive approach to the construction of industrial instruments was persuasively illustrated by Kirby J in Amcor at [96] where his Honour said:

The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

See also per Gummow, Hayne and Heydon JJ at [30].

The approach of the High Court in Amcor is consistent with the modern approach to interpretation of commercial agreements where context and surrounding circumstances will be taken into account “even if the words at issue are not ambiguous, or susceptible of more than one meaning”; see Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [case citation omitted] at [46], per Weinberg J and see also at [251] where Lander J said:

It is now clear and settled law that the meaning of commercial contracts and documents is to be determined objectively. To determine the objective intention of the parties regard must be had, of course, to the words in the document themselves, but regard should also be had to all of the surrounding circumstances which were known to the contracting parties at the time the document was created including the underlying purpose and object of the commercial transaction: Pacific Carriers per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [22].

What is true of commercial contracts and their construction is also true of the construction of industrial agreements where regard must be had to the industrial context and the purpose of the provisions in question.’ 45”

[86] In Codelfa Construction Pty Ltd v State Rail Authority of NSW 46 (Codelfa), the High Court said:

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.” 47

[87] In Western Export Services Inc v Jireh International Pty Ltd 48(Western Export Services), the High Court said that the ‘true rule’ set out in Codelfa concerning the admission of evidence of surrounding circumstances:

“... Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.” 49

[88] In Construction, Forestry, Mining and Energy Union v SCA Hygiene Australasia Pty Limited 50, a Full Bench acknowledged and followed the approach taken in Short v FW Hercus Pty Ltd51. The Full Bench went on to say:

“... The correct approach was that the language of the agreement was to be construed in context which, in this case, necessitated consideration of the whole of the annual leave clauses as well as the evidence that established the historical context in which the clauses had come into existence. That evidence included previous industrial agreements which had first introduced the entitlements and the circumstances surrounding the drafting and adoption of similar provisions and corresponding leave loadings when the first enterprise agreements were entered into for the Springvale site. It also included consideration of the evidence that all agreements since that time had adopted the same wording and been applied in the same manner.” 52

Leave provisions in the 2010 CHPP and the 2012 Underground Agreements

[89] The relevant provisions of the 2010 CHPP Agreement and the 2012 Underground Agreement as they relate to payment when employees take long service leave or are paid out for long service leave on termination of employment, are set out earlier in this decision. The provisions in each agreement provide that long service leave, either taken while employed or paid out on termination, will be paid ‘as if the employee was at work’.

[90] Both agreements also contain provisions setting out the appropriate payment to employees taking other forms of leave. In the case of annual leave, both agreements provide that payment for annual leave will be the greater of an employee’s ordinary rate of pay plus a loading of 20 per cent or the employee’s projected roster earnings for the period of leave. Both agreements define ‘projected roster earnings’ as including shift allowances and any rostered overtime. In relation to payment of accrued annual leave on termination of employment, the 2010 CHPP Agreement provides that on termination of employment, an employee’s “annual leave entitlements, including applicable average bonus will be paid out” (subclause 2.6(f)). The 2012 Underground Agreement provides that when an employee’s employment is terminated, except for misconduct, the employee’s accrued annual leave will be paid out at the employee’s projected roster earnings. (subclause 2.5(g)).

[91] In the case of personal leave, the 2010 CHPP Agreement provides that such leave shall be paid at the ordinary time rate appropriate to an employee’s classification for the shift length hours the employee was unable to attend work (subclause 2.7.4). The 2012 Underground Agreement has a similar provision. (subclause 2.6.5).

[92] In the case of the termination of an employee, the 2010 CHPP Agreement provides that an employee with 70 or more hours of unused personal leave who is terminated by retrenchment or due to resignation or retirement etc. will be paid out for unused personal leave at ordinary time rates (subclause 2.7.13). In the case of the 2012 Underground Agreement, the provisions for payout of untaken personal leave are somewhat different. That agreement provides that any unused personal leave accrued by an employee who is retrenched, retires, resigns, is terminated by the company because of ill health or dies, will be paid out that accrued personal leave at ordinary time rates. The agreement then goes on to set out in some detail how some types of employees are to be paid out their accrued personal leave when the employment relationship ends. Those particular provisions provide that those listed types of employee will be paid out their accrued personal leave “... as if at work including shift allowances (excluding all other allowances and MPIS payment), on a pro rata basis for each weeks entitlement of personal leave.” (subclause 2.6.13(d)). ‘MPIS’ stands for the Mine’s Performance Incentive Scheme.

[93] In the case of compassionate leave, the 2010 CHPP Agreement provides that such leave will be paid at the rate “... the employee would reasonably have expected to be paid by the employer if the employee had worked during that period.” (subclause 2.10.3). The 2012 Underground Agreement provides that compassionate leave will be paid “... as if the employee was at work ...” (subclause 2.9.1).

[94] In the case of emergency services leave, the 2010 CHPP Agreement provides that payment will be made for “... the difference between their rostered shift length at ordinary hours and the amount received for the emergency service.” (subclause 2.12). The 2012 Underground Agreement provides that payment will be made for “... the difference between as if the employee was at work and the amount received for the emergency service.” (subclause 2.11).

[95] In relation to jury service leave, the 2010 CHPP Agreement does not appear to make any provision for it. The 2012 Underground Agreement provides that an employee required to attend jury service during rostered hours “... will be reimbursed by ACOL an amount equal to the difference between the amount paid in respect of attendance for such jury service and the amount that the employee would have received had they attended for work.” (subclause 2.12).

[96] The 2010 CHPP Agreement does not appear to make provision for Defence Services leave. In relation to that form of leave, the 2012 Underground Agreement provides for payment “... as if the employee had attended work less any remuneration received from the Defence Service.” (subclause 2.13).

[97] The 2012 Underground Agreement does not appear to make provision for reimbursement of employees who may be required to attend a medical assessment outside normal working hours. The 2010 CHPP Agreement provides that in such circumstances “... they will be paid at normal pay rates for the time.” (subclause 2.13).

[98] The 2010 CHPP Agreement provides for the payment of a Leading Hand/Step Up allowance in the following terms:“(e) ... Employees required by CHPP management to undertake the duties of a Leading Hand on a relief basis will be paid at Level 3 hourly rates whilst they are appointed to the role and undertaking the duties of Leading Hand. This allowance will not be paid for any form of leave.” (subclause 2.2.2(e)).

[99] The 2012 Underground Agreement includes the following provision for a Step Up allowance: “(i) Employees appointed to undertake the duties of a Leading Hand Maintenance Supervisor will be paid an allowance of $4.50 per ordinary hour and double that amount for all overtime hours for each shift whilst appointed to the role, and undertaking the duties of a Leading Hand. (ii) Employees appointed to undertake the duties of a Deputy/Supervisor will be paid an allowance of $4.50 per ordinary hour and double that amount for all overtime hours for each shift whilst appointed to the role, and undertaking the duties of a Deputy.” (subclause 2.2.2(b)).

[100] The 2010 CHPP Agreement provides for the payment of a Bonus Payment “to all employees for each fortnight worked and on all forms of approved leave, and for the first 39 weeks of accident pay.” (subclause 2.2.1(a)). The 2012 Underground Agreement provides for the MPIS referred to earlier in this decision.

[101] The 2010 CHPP Agreement makes provision for Accident Pay whereby an employee entitled to such pay can receive up to 78 weeks paid absence. For the first 39 weeks of any such absence, an employee is to be paid an amount equal to that which would have been received “... had the employee been on paid personal leave at the date of injury.” (subclause 2.4.2(a)). The Agreement goes on to provide that the second period of 39 weeks is to be paid at the “... rate of pay of the employee at the date of injury.” (suclause 2.4.2(b)).

[102] The 2012 Underground Agreement also provides for Accident Pay. It provides that payment for the first 39 weeks is to be made at the rate “... that would have been received by virtue of this agreement had the employee been at work at the date of injury.” (subclause 2.3.2(a)). In relation to the second period of 39 weeks, the Agreement provides for “... payment representing the difference between the fortnightly amounts of compensation paid to the employee ... and the fortnightly classification rate of pay ... of the employee plus MPIS at the date of injury.” (subcause 2.3.2(b)).

The predecessor agreements

[103] A provision for long service leave to be paid ‘as if at work’ first appeared in the 2008 Open Cut Agreement, at subclause 2.8.1.

[104] The Ashton Coal Operations Pty Limited - Ashton Coal Preparation Plant Workplace Agreement 2007 (the 2007 CHPP Agreement) provides that payment for long service leave “... shall be paid for the average rostered hours per week for the applicable roster multiplied by the appropriate hourly classification rate.” The 2010 CHPP Agreement then changed to include long service leave payments to be paid ‘as if at work’.

[105] The Ashton Coal Operations Pty Limited - Ashton Underground Mine Certified Agreement 2005 (the 2005 Underground Agreement) provides for long service leave to be paid in the same manner as provided for in the 2007 CHPP Agreement. The 2008 Underground Agreement contains the same long service leave payment provision as the 2012 Underground Agreement.

[106] In relation to payments for annual leave, the provisions in the 2007 CHPP Agreement are the same as those in the 2010 CHPP Agreement. The provisions in the 2005, 2008 and 2012 Underground Agreements in relation to annual leave payments are also the same.

[107] In the case of personal leave, the 2007 CHPP Agreement provides for payment in the same terms as the 2010 Agreement when such leave is taken. Provisions for the payout of unused personal leave in the 2007 CHPP Agreement provide for a payout where an employee has at least 5 years of continuance service at the CHPP and that leave is to be paid at ordinary time rates. In the case of an employee with 70 or more hours of unused leave who is terminated by retrenchment, retires etc., the leave will also be paid out at ordinary time rates.

[108] In the case of compassionate leave, the provisions of the 2077 CHPP Agreement are the same as those in the 2010 Agreement. The 2005 Underground Agreement does not provide for compassionate leave as such but provides for bereavement leave and pressing domestic leave. That leave was to be paid at ordinary rates of pay. The 2008 Underground Agreement provides for compassionate leave to be paid ‘as if the employee was at work’. Pressing domestic leave is to be ‘paid at the employee’s classification rate for the rostered shift length’. The 2012 Underground Agreement omits pressing domestic leave and provides for compassionate leave to be ‘paid as if the employee was at work for each occasion …’.

32 Transcript PN939.

33 Transcript PN943.

34 Transcript PNs956-957.

35 Transcript PN961.

36 Transcript PN967.

37 Transcript PN1014.

38 Transcript PN1080.

39 Transcript PN1096.

40 Transcript PNs 1105 and 1109.

41 [2011] FWA 6946.

42 PR932468.

43 Ibid at [23].

44 [2011] FCAFC 67.

45 Ibid at [14]-[18].

46 [1982] HCA 24.

47 Ibid at para 22.

48 [2011] HCA 45.

49 Ibid at para 3.

50 [2012] FWAFB 9505.

51 [1993] FCA 51.

52 [2012] FWAFB 9505 at para 16.

53 (1959) 101 CLR 298.

54 Print P1859, 4 November 1997.

55 See for example Exhibit Ashton 2 and Attachment MK9 to Exhibit Ashton 1.

56 [2011] FWA 6941.

57 Ibid at para 63.

58 Ibid at para 65.

Printed by authority of the Commonwealth Government Printer

[2013] FWC 447

23 APRIL 2013