Health Services Union v Crookwell/Taralga Aged Care Ltd T/A Phillip R H Chalker Sunset Lodge/ Viewhaven Lodge/ Upper Lachlan Community Care
[2022] FWC 2145
•12 AUGUST 2022
| [2022] FWC 2145 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Health Services Union
v
Crookwell/Taralga Aged Care Ltd T/A Phillip R H Chalker Sunset Lodge/ Viewhaven Lodge/ Upper Lachlan Community Care
(C2021/8641)
| COMMISSIONER MATHESON | SYDNEY, 12 AUGUST 2022 |
Application to deal with a dispute about matters arising under an enterprise agreement – Crookwell/Taralga Aged Care Ltd, NSWNMA and HSU NSW Enterprise Agreement 2017 -2020 – aged care industry – meaning of “full day” for the purposes of rostered days off – principles of enterprise agreement interpretation – Berri principles applied – disputed words have plain, natural and ordinary meaning – dispute determined.
The Health Services Union (Applicant) filed an application in the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) seeking that the Commission deal with a dispute in relation to the Crookwell/Taralga Aged Care Ltd, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020 (Agreement). The Respondent to the dispute is Crookwell/Taralga Aged Care Ltd T/A Phillip R H Chalker Sunset Lodge/ Viewhaven Lodge/ Upper Lachlan Community Care (Respondent).
Background to the dispute
The dispute relates to the interpretation of the term “full day” where used in clause 14.2(c) of the Agreement. Clause 14.2(c) of the Agreement states:
“Employees will be free from duty for not less than 2 full days in each week or 4 full days in each fortnight or 8 full days in each 28-day cycle. Where practicable days off will be consecutive. These days are referred to as “Rostered Days Off” (RDO’s).”
Clause 17.1 of the Agreement provides that overtime will be paid where a full-time or part-time employee “works on a rostered day off”.
It is not contested that rosters at the Respondent’s facilities are organised on a fortnightly basis.
The night shift at the Respondent’s Sunset Lodge facility involves working from 10.45pm until 7.45am the following day.
The night shift at the Respondent’s Viewhaven Lodge facility involves working from 10.45pm until 7.15am the following day.
The Applicant submitted that:
· it understands the term “full day” to mean “full calendar day”, being from midnight to midnight;
· employees who work night shift are regularly rostered in a way that means they are free from duty for less than 4 full days in each fortnight; and
· the Respondent has not paid these employees overtime for time worked on a rostered day off.
The Applicant also submitted that where the parties to the Agreement intended to refer to a “period of 24 hours”, as opposed to a calendar day, they have used the phrase “period of 24 hours”. The Applicant points to clause 20.5 of the Agreement as evidence of this, which states:
“20.5 On Call Allowance
(a)An employee who, at the request of the employer, agrees to be on call and is rostered on call shall be paid the allowance, for each period of 24 hours or part thereof, set out in Item 14 of Table 5 of Schedule B to this Agreement. An employee on call agrees to make themselves ready and available to return at short notice to work at the employers’ or clients’ premises, whilst off duty.
(b)An employee who is directed to remain on call during a meal break shall be paid the meal break allowance set out in Item 15 of Table 5 of Schedule B to this Agreement, provided that no allowance shall be paid if, during a period of 24 hours, including such period of on call, the employee is entitled to receive the allowance prescribed in sub-clause 20.5(a).
…”
The Respondent submitted that it has complied with clause 14.2(c) of the Agreement and denies that:
· employees regularly rostered to work night shift are free from duty on less than 4 calendar days in each fortnight; and
· employees are entitled to overtime under clause 17 of the Agreement as work was not performed on a designated rostered day off.
The Respondent disputes the Applicant’s interpretation of clause 14.2(c) of the Agreement and, in response, submitted:
· the parties never intended for the interpretation contended by the Applicant during the negotiation and/or operation of the Agreement or the earlier versions of it;
· the reference to “full days” in clause 14.2(c) must be interpreted by reference to the work/roster pattern of the individual employee that the clause is being applied to;
· if the reference to “full days” was intended as a reference to “full calendar days”, the word “calendar” would be included in the phrase “full days” in clause 14.2(c);
· the fact that the Applicant seeks to insert the word “calendar” to assist in the interpretation confirms that there is more than one way to interpret the phrase, which is entirely consistent with the phrase being contextually interpreted by reference to the work/roster pattern of individual employees; and
· if the Applicant’s contention was correct, an employee working a night shift roster pattern exclusively could not perform their ordinary hours in the relevant roster period because the shifts commence on one day and finish on the next day.
The dispute resolution clause and steps taken pursuant to that clause
The Applicant seeks to bring a dispute before the Commission pursuant to s.739 of the Act. Under s.739(1) of the Act, there must be a term referred to in s.738 of the Act that applies. The term in s.738(b) that the Applicant relies on is the dispute settlement term at clause 44 of the Agreement.
Clause 44 of the Agreement provides:
“44. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURES
44.1 Unless otherwise stated the terms “party” or “parties” referred to in this clause means those included within Clause 3 – Parties Bound.
44.2 This dispute resolution procedure will apply to disputes about:
(a)any matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee;
(b)threatened termination, with the exception that the arbitration provisions in subclause 44.6 do not apply unless the parties agree. Further, the parties’ rights are reserved during this process and the employer may exercise their right to terminate the employee in accordance with the agreement;
(c)matters in relation to the NES;
(d)matters arising under the agreement; and
(e)whether an employer had reasonable business grounds under subsection 65(5) of the Act - (requests for flexible working arrangements) or 76(4) of the Act - (requests for extending unpaid parental leave).
44.3 An employer or employee may appoint another person, organisation or association [e.g. Union or Aged & Community Services Australia (ACSA)] to accompany and/or represent them for the purposes of this clause.
44.4 In the event of a dispute the parties will initially attempt to resolve the matter at the workplace level, including, but not limited to:
(a)the employee and his or her supervisor discussing the matter; and
(b)if the matter is still not resolved the parties arranging further discussions involving more senior levels of management (as appropriate).
44.5 If a dispute is unable to be resolved at the workplace, in accordance with subclause 44.4, a party to the dispute may refer the matter to the FWC or other appropriate statutory tribunal.
44.6 The parties agree that the FWC shall have the power to do all such things as are necessary for the just resolution of the dispute including:
(a)mediation, conciliation and, with the exception of disputes arising under clause 36 – Workload Management, arbitration; and
(b)arbitration, for disputes arising under clause 36 – Workload Management, only with the agreement of the parties.
…”
The dispute clearly relates to matters arising under the Agreement, pursuant to clause 44.2(d).
The Applicant submitted that, prior to bringing the dispute before the Commission:
· it raised the issue with the Respondent and its representatives on a number of occasions through emails and in conference meetings. Examples of emails were provided;
· it had meetings with the Respondent over a period of months in relation to a number of matters, including rostering issues and the clause in dispute; and
· the Respondent continues to assert that employees are receiving their required rostered days off and that “full day” means a 24 hour period rather than a day.
It is not in dispute that the prerequisite steps in the dispute resolution clause of the Agreement have been followed by the Applicant and that the Commission has the jurisdiction to deal with the dispute.
The relief sought
The Applicant seeks:
(a)a declaration from the Commission that, for the purposes of the Agreement, “full day” refers to a calendar day;
(b)an order from the Commission that, where an employee does not receive:
(i)2 full calendar days in each week; or
(ii)4 full calendar days in each fortnight; or
(iii)8 full calendar days in each 28 calendar day cycle,
that employee must be paid overtime in accordance with clause 17;
(c)a recommendation from the Commission that the Respondent backpay all employees for unpaid overtime in accordance with clause 17; and
(d)any other relief that the Commission sees fit.
The questions to be determined
It is not in dispute that the questions to be determined by the Commission are:
Does the term “full day”, where referred to in clause 14.2(c) of the Agreement, mean calendar day (from midnight to midnight)?
If the term “full day”, where referred to in clause 14.2(c) of the Agreement, does not mean a calendar day, what does the term “full day” mean?
The legal framework
The principles regarding the interpretation of enterprise agreements are well settled and are not in dispute between the parties. In AMWU v Berri Pty Ltd,[1] a Full Bench of the Commission summarised those principles 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 aid 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.”[2]
In James Cook University v Ridd,[3] the Full Court of the Federal Court of Australia summarised the principles as follows (references omitted):
“(i) The starting point is the ordinary meaning of the words, read as a whole and in context.
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind”. The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”.
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to “... the entire document of which it is a part, or to other documents with which there is an association”.
(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken”.
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...”.
(vi) A generous construction is preferred over a strictly literal approach, but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties”.
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”[4]
The submissions of the parties
The plain meaning of the words
The Applicant
The Applicant submitted that the proper construction of clause 14.2(c) of the Agreement begins with a consideration of the ordinary meaning of the words and took me to the Macquarie Dictionary meanings of “full” and “day”.[5]
The Applicant submitted that:
· the term “day” may mean either a “calendar day” (or, as referred to in the Macquarie Dictionary, a “civil day”) or a 24 hour period (or, as referred to in the Macquarie Dictionary, a “mean solar day”); and
· in an enterprise agreement dealing with the relationship between employees and an employer, a “civil day”, or a calendar day, provides the more appropriate meaning when compared to the astrological concept of a “mean solar day”.[6]
The Applicant submitted that the Respondent’s contention that the Applicant’s construction requires insertion of the word “calendar” into clause 14.2(c) is incorrect as the term is merely used to give some meaning to the use of the word “full” and there is no requirement to insert that word into the definition.[7]
The Applicant also submitted:[8]
· the Respondent’s “24 hour period” does not give meaning to the use of the word “full”;
· while it accepts that a “day” may mean a 24 hour period, or “mean solar day”, the word “day” could not mean anything less than a 24 hour period, for example, 22 hours and 15 minutes, 16 hours or 12 hours;
· a “full day” must mean something more than what is conveyed by the use of the word “day” alone; and
· the Respondent’s construction would require the obliteration of both the words “full” and “day” and the insertion of “24”, “hour” and “period”.
The Respondent
The Respondent submitted that:[9]
· the term “full day” should be interpreted by reference to the work pattern of each individual employee, which necessarily means that the term is interpreted as meaning a 24 hour period commencing at the conclusion of a shift performed by that particular employee;
· nothing in the Respondent’s interpretation of the term “full day” offends the Macquarie Dictionary definition of both the words “full” and “day”;
· the Applicant’s contention that the definition of a “day” should be a “civil day” rather than a “mean solar day” ignores the reality that the term is to be applied in the context relevant to its use; and
· in clause 14.2(c) of the Agreement, the term “day” is being used in the context of roster patterns, the arrangement of work into shifts and the definition of “Rostered Days Off” and its meaning in this context is different for a night shift worker and a day shift worker.
The Respondent submitted that:[10]
· the Applicant’s construction would mean the word “calendar” must be introduced to ensure that the only way the term can be constructed is the way proposed by the Applicant; and
· the term “full day”, when used in applying clause 14.2(c) to individual roster patterns, does not require the use of any other words to properly understand its temporal context, which is derived from reference to the roster pattern central to the subject matter of the clause.
The words read as part of the Agreement as a whole
The Applicant
The Applicant submitted that a contextual reading of the Agreement supports its construction of clause 14.2(c) of the Agreement for a number of reasons.
Firstly, the Applicant points to the final sentence of clause 14.2(c), emphasised below:
“Employees will be free from duty for not less than 2 full days in each week or 4 full days in each fortnight or 8 full days in each 28-day cycle. Where practicable days off will be consecutive. These days are referred to as “Rostered Days Off” (RDO’s).”
The Applicant submitted that the term “Rostered Days Off” cannot sensibly be used to describe a 24 hour period.[11] In particular, the Applicant submitted:
· if you asked an employee, “what are you doing on your rostered day off next Tuesday?”, the answer, if the Respondent is correct, may well be “working for the first 7 hours and 45 minutes”; or
· if you asked an employee, “which days next week are your Rostered Day Off?”, the answer may well be “the two consecutive 24 hour periods from 7.45am Saturday to 7.45am Monday”.[12]
The Applicant submitted that this “is counterintuitive, inconsistent with the language used, and cannot be correct”.[13]
The Applicant also submitted that clause 14.2(b) of the Agreement is a neutral factor in determining the correct construction of clause 14.2(c).[14] Clause 14.2(b) provides that ordinary hours of work may be arranged as:
“(i) 76 hours per fortnight to be arranged so that each employee shall not work their ordinary hours on more than ten days in the fortnight; or
(ii) 152 hours in a 28 calendar-day cycle to be arranged so that each employee shall not work their ordinary hours on more than 20 days in the 28 calendar-day cycle; or
(iii) or 152 hours in a 28 calendar- day cycle to be arranged so that each employee shall not work their ordinary hours on no more than 19-days with the twentieth day taken as an accrued paid day off (ADO).
(iv) as otherwise agreed in writing between the employer and the employee.”
The Applicant submitted that:
· the natural progression from clause 14.2(b)(i), which deals with a “fortnight”, would have been to refer to a “month” in clauses 14.2(b)(ii) and 14.2(c)(iii);
· in this context, the term “month” is ambiguous: it may mean calendar month or a period of four weeks and the use of the composite term “28 calendar-day cycle” is plainly to curtail the consequences of that ambiguity; and
· this sheds no light on the meaning of the term “full day” in clause 14.2(c).[15]
The Applicant also submitted that, where the Agreement conveys the Respondent’s purported construction of “full day”, a 24 hour period, the Agreement does so explicitly.[16] In this regard, the Applicant points to:
· clause 20.5(b), which uses “24 hour period” in relation to an allowance payable for 24 hour periods of being on call; and
· clause 12.5, which uses “24 hours” to define the period required to be in a client’s premises to be a Live-in Home Carer.[17]
The Applicant submitted that it “is inconsistent and non-sensical that the Agreement conveys a 24 hour period using the term “full day” where it regularly deploys the term 24 hour period where required”.[18]
The Applicant also submitted that the measurement of time in hours is frequently deployed throughout the Agreement and that it would be an unusual result if “full day” was the only instance of the Agreement expressing a period of hours implicitly.[19]
The Applicant submitted that reading the words “full day” in the Agreement as a whole leads to the logical conclusion that “full day”, as it is used in clause 14.2(c), means a calendar or civil day and cannot mean a 24 hour period.[20]
The Respondent
The Respondent has a different view and submitted that the use of the term “calendar day” in clause 14.2(b)(i), the proximity of and relative interconnectivity between clause 14.2(b) and 14.2(c), and the use of the term “full day” in clause 14.2(c) rather than “calendar day”, is not simply to be considered a “neutral factor”.[21] Rather, the Respondent submitted that the different references to “calendar day” and “full day” in each of the subclauses is deliberate and designed to convey different meanings.[22] In particular, it submitted:
· in clause 14.2(b), the term “calendar day” conveys the point that the roster starts at midnight on one day and finishes at midnight on the 7th, 14th or 28th day as appropriate to the relevant roster period; and
· in clause 14.2(c), the intent is to define certain periods during which an employee is free from duty and for those periods to be referred to as “Rostered Days Off”. The Respondent submitted the term “full day” here is used to describe a period of 24 hours, which should not be confined to the “calendar day” definition, and is intended to reflect the fact that the application of the term must be referable to the work pattern of an individual employee, a point confirmed by:
othe term “full day” being used as a part of three broader phrases:
“2 full days in each week”;
“4 full days in each fortnight”;
“8 full days in each 28 day cycle.”
In each of these broader phrases, the “week”, “fortnight” and “28 day cycle” are referable to periods in the rosters set out in clause 14.2(b); and
othe clause establishing the definition of “Rostered Day Off” and this defined term must be applied in the context of the roster or work pattern that is applicable to the relevant employee. For an employee working exclusively night shifts, their “rostered days off” are in fact night shifts that they do not have to work.[23]
The Respondent challenged the Applicant’s submission that the use of “24 hour period” elsewhere in the Agreement supports the proposition that the term “full day” in clause 14.2(c) cannot be defined in the same manner, submitting that if that logic was to be applied here, then the term “full day” cannot be defined as a “calendar day” as that term has been used in clause 14.2(b).[24]
The Respondent submitted:[25]
· the wording of clause 14.2(c) has been “lifted” from pre-existing modern awards and the use of the term “full day” is not an accident; and
· there are other places in the Agreement where there is a lack of homogeneity of language used and to the extent the Applicant’s references to “24 hour period” elsewhere in the Agreement are relevant:
oin clause 12.5 (Live-In Home Carer), there is reference to the term “24 hours” in sub clause 12.5(a) and there is then reference to “consecutive days of duty” in sub clause 12.5(e), the latter also requiring temporal context as to its start and finish times, which is to be found in the designated work pattern of the individual employee; and
oin clause 20.5(a) (On Call Allowance), whilst there is reference to the term “24 hour” period, it is to be noted that the actual allowance is expressed in Table 5 Item 14 as an amount “per day”, which would appear to align with the position that the “24 hour period” and “day” have similar meanings.
Purpose and industrial context
The Applicant
The Applicant submitted that it is notorious that night shift is unpopular and exhausting work which disrupts a person’s life and causes damage to their health and sleep.[26] In support of this submission, the Applicant relies on a decision of the New South Wales Industrial Relations Commission in 2009, information from Safe Work Australia and the World Health Organisation and the evidence of Ms Mandy Hollis, Care Services Employee of Crookwell/Taralga Aged Care Ltd.[27]
The Applicant submitted that:
· the purpose of clause 14.2(c), read in its industrial context and with an awareness of the facts regarding night shift, is to recognise the fatigue caused by work and to ensure that employees are provided adequate rest and recuperation between finishing and recommencing work; and
· the clause must be interpreted in that context and in a way that promotes that purpose.[28]
The Respondent
The Respondent submitted that there is no evidence before the Commission that the definition of the term “full day” or the interpretation adopted by the Respondent has ever been previously referenced in bargaining negotiations in relation to the Agreement or been otherwise challenged in the bargaining phase of its formation.[29]
The Respondent acknowledged the fatigue management issues that can arise in the performance of night shifts and the specific evidence provided by Ms Hollis as to the impact of working night shifts, however submitted these matters are not relevant to the interpretation of the term “full day”, particularly as:
· there is no evidence that such matters were raised or considered in the negotiation of clause 14.2(c);
· it is the policy of the Respondent that employees elect to be rostered to work night shifts; and
· the evidence of Ms Teresa McKinnon, HR Lead for Crookwell/Taralga Aged Care Ltd, clearly indicates that employees working exclusively night shifts actually receive the same or more rest than employees working day shifts.[30]
The Respondent also submitted:[31]
· there is no prohibition under the Work, Health and Safety Act 2011 (NSW) (WHS Act) that would prevent the ability to deploy employees to work exclusively night shifts;
· it monitors the health and wellbeing of its staff and Ms Hollis has not provided the Respondent with any complaint about the impact of performing night shift work on her health and wellbeing; and
· statutory duties under the WHS Act have no influence over the manner in which the term “full day” in the Agreement is to be interpreted and only become relevant in the practical implementation of actual roster patterns once the framework for the available rostering options is established in the Agreement.
The practical implications
The Applicant
The Applicant submitted that the Respondent’s construction that a “full day” is a 24 hour period would result in absurdities.[32] In particular, it submitted that, if the Respondent’s construction and current practice is correct, it would be possible to roster in a way that would be compliant with the Agreement, despite there being no actual full day, or calendar day, on which the employee does not work.[33]
The Applicant provided examples and further explained that the Respondent’s interpretation would allow it to roster employees on a Monday morning shift finishing at 3pm followed by a Tuesday afternoon shift commencing at 3pm and call the gap between those shifts a “Rostered Day Off” or a “full day” off.[34] The Applicant submitted that the following roster, if the Respondent is correct, would include seven “full days” off, with a morning shift rostered from 6.30am to 3pm and an afternoon shift rostered from 3pm to 11.30pm, and comply with clause 14.2(c):[35]
Morning shift (M) = 6.30am – 3pm; Afternoon shift (A) = 3pm – 11.30pm
| Mon | Tues | Wed | Thu | Fri | Sat | Sun | Mon | Tues | Wed | Thu | Fri | Sat | Sun |
| M | A | M | A | M | A | M | A | M | A | M | A | M | A |
The Applicant also submitted that the Respondent’s own construction is not consistent with its rostering practices and has no apparent current or historical relevance to the parties.[36] In particular, the Applicant submitted:[37]
· the Respondent rosters employees to finish work on a night shift (7.45am) and recommence on a day shift on the following day (6.30am) and that the Respondent’s position has been that this constitutes a “full day”, despite this being a period of 22 hours and 45 minutes; and
· it would be an unusual result if the Respondent’s arbitrarily identified “24 hour period” was never relevant to any practical situation confronting the parties to the Agreement currently or historically, but was the objective meaning conveyed by the Agreement.
The Applicant also submitted that the Respondent’s construction would lead to unusual disparities between employees in that:
· those who work exclusively morning or afternoon shifts would always receive the requisite number of calendar days off and would never have a “full day” off of less than 31 hours and 30 minutes (ending on an afternoon at 11pm, a “full day” off, returning the next morning at 6.30am); and
· night shift workers, and only night shift workers, would not be entitled to the same (or any) number of calendar days off and would have far shorter “full days”. The Applicant submitted that, considering the impacts of night shift and the purpose of the clause, that is an illogical result.[38]
The Applicant also addressed the Respondent’s submissions that a full-time night shift roster pattern cannot be performed if the Applicant’s construction is correct, submitting that the Respondent’s position in this regard is irrelevant and incorrect.[39]
In particular, the Applicant submitted:[40]
· the practical administrative implication of its construction is not a matter relevant to the interpretation of clause 14.2(c);
· that the Respondent has chosen to organise its workforce in a manner which may have administrative or financial impacts is a matter for it to resolve and cannot influence the proper construction of the relevant clause;
· there are many ways to resolve the difficulty identified by the Respondent including, for example:
othe use of two 10 hour shifts in a 76 hour roster pattern, which would require employees to work only nine days in a fortnight (being 7 x 8 hour shifts and 2 x 10 hour shifts); or
ouse of 4 nine hour shifts;
· the burden on the Respondent is small as Ms Hollis is the only full-time employee who works night shift and the practical impediments do not arise for employees who are part-time or who perform day and/or afternoon shifts exclusively; and
· a full-time roster pattern would be non-compliant with the Respondent’s obligations under ss.17 and 19 of the WHS Act to eliminate all health and safety risks as far as reasonably practicable.
The Respondent
The Respondent submitted that the Applicant’s interpretation of the term “full day” would result in no employee being able to elect to work exclusively night shifts for the full 10 shifts per fortnight or 20 shifts per 28 day period and it relied on the evidence of Ms McKinnon in this regard.[41]
The Respondent submitted that the Applicant’s proposed solution of changing the roster pattern for night shift employees:
· would result in operational complications impacting all employees; and
· would create an anomaly in that night shift employees would only be required to work nine shifts per fortnight or 18 shifts per 28 day period whilst morning and afternoon shift employees would be required to work 10 shifts in a fortnight or 20 shifts in a 28 day period.[42]
The Respondent further submitted that the Applicant’s proposed solution to the issue created by preventing the rostering of 10 shifts in a fortnightly roster pattern would cause considerable operational inconvenience, particularly as:
· it only permits night shift employees to work nine shifts instead of 10 in a fortnightly roster cycle; and
· it requires the complete reorganisation of the rosters in two ways:
oon the two days in the fortnight the night shift worker works longer hours, other staff need to be rostered on shorter shifts; and
oanother staff member has to be rostered to work the night shift taken away.[43]
The Respondent also submitted that Ms Hollis is not the only employee working night shifts.[44]
The Respondent submitted that the Applicant’s contentions about the effect of the Respondent’s interpretation of the term “full day” do not represent logical consequences of that interpretation as examples provided allocate work hours in excess of ordinary hours and would trigger overtime entitlements.[45]
Consideration
The plain meaning of the words
It is not in contention that the words in clause 14.2(c) that are the subject of this dispute are “full day”. No other words in the clause are controversial.
The Applicant submitted that the proper construction of clause 14.2(c) of the Agreement begins with a consideration of the ordinary meaning of the words and took me to the Macquarie Dictionary meanings of “full” and “day”.[46]
The Macquarie Dictionary attributes a range of meanings to the adjective “full”, including:[47]
“1. filled; containing all that can be held; filled to utmost capacity: a full cup; a full theatre.
2. complete; entire; maximum: a full supply.
…
4. of the maximum size, amount, extent, volume, etc.: a full kilometre; full pay; the full moon.
5. (of garments, etc.) wide, ample, or having ample folds.
6. filled or rounded out, as in form.
7. addressing or covering many aspects or possibilities: a full explanation; a full treatment.
….
12. being fully or entirely such: a full brother.”
The Applicant submitted that the most appropriate use of the word “full” in the context of the Agreement is “complete, entire”.[48]
The Macquarie Dictionary attributes a range of meanings to the noun “day” including:[49]
“1. the interval of light between two successive nights; the time between sunrise and sunset.
2. the light of day; daylight.
3. Astronomy
a.the period during which the earth (or a heavenly body) makes one revolution on its axis.
b.the average length of this interval, on earth the mean solar day of 24 hours.
c.the interval of time which elapses between two consecutive returns of the same terrestrial meridian to the sun (solar day).
d.a period reckoned from midnight to midnight and equivalent in length to the mean solar day (civil day), as contrasted with a similar period reckoned from noon to noon (astronomical day).
e.the period of time during which the earth makes one complete revolution on its axis in relation to a particular star, in particular, in relation to Aries (sidereal day).
4. the portion of a day allotted to working: an eight-hour day.
5. a day as a point or unit of time, or on which something occurs.
6. a day assigned to a particular purpose or observance: New Year’s Day.
7. a day of contest, or the contest itself: to win the day.
8. (often plural) a particular time or period: the present day; in days of old.
9. (often plural) period of life or activity.
10. period of power or influence: every dog has his day.
…”
The Applicant submitted that:
· the term “day” may mean either a “calendar day” (or, as referred to in the Macquarie Dictionary, a “civil day”) or a 24 hour period (or, as referred to in the Macquarie Dictionary, a “mean solar day”); and
· in an enterprise agreement dealing with the relationship between employees and an employer, a “civil day”, or a calendar day, provides the more appropriate meaning when compared to the astrological concept of a “mean solar day”.[50]
The Respondent submitted that:[51]
· the term “full day” should be interpreted by reference to the work pattern of each individual employee, which necessarily means that the term is interpreted as meaning a 24 hour period commencing at the conclusion of a shift performed by that particular employee;
· nothing in the Respondent’s interpretation of the term “full day” offends the Macquarie Dictionary definition of both the words “full” and “day”;
· the Applicant’s contention that the definition of a “day” should be a “civil day” rather than a “mean solar day” ignores the reality that the term is to be applied in the context relevant to its use; and
· in clause 14.2(c) of the Agreement, the term “day” is being used in the context of roster pattern, the arrangement of work into shifts and the definition of “Rostered Days Off” and its meaning in this context is different for a night shift worker and a day shift worker.
I accept that both the interpretations of a “day” advanced by the Applicant and the Respondent are not inconsistent with the definition of that term provided by the Macquarie Dictionary. The challenge in looking at the dictionary definitions alone is that they set out different meanings. The Applicant prefers the meaning “civil day” or “calendar day” and the Respondent prefers the meaning “mean solar day” or “24 hour period”, both of which are called up in the dictionary definition. However, the dictionary definitions do not provide the complete answer in considering the plain and ordinary meaning of the words in dispute. The words need to be read as a part of the Agreement as a whole and in context.
The words read in context
The Applicant submitted that a contextual reading of the Agreement supports its construction of clause 14.2(c) for a number of reasons.
Firstly, the Applicant points to the final sentence of clause 14.2(c) of the Agreement, emphasised below:
“Employees will be free from duty for not less than 2 full days in each week or 4 full days in each fortnight or 8 full days in each 28-day cycle. Where practicable days off will be consecutive. These days are referred to as “Rostered Days Off” (RDO’s).”
The Applicant submitted that the term “Rostered Days Off” cannot sensibly be used to describe a 24 hour period.[52] In particular, the Applicant submitted:
· if you asked an employee “what are you doing on your rostered day off next Tuesday?”, the answer, if the Respondent is correct, may well be “working for the first 7 hours and 45 minutes”; or
· if you asked an employee “which days next week are your Rostered Day Off?”, the answer may well be “the two consecutive 24 hour periods from 7.45am Saturday to 7.45am Monday”.[53]
The Applicant submitted that this is counterintuitive, inconsistent with the language used, and cannot be correct.[54]
The first question posed by the Applicant is a loaded question in that it infers that a “Rostered Day Off” has to be a particular day of the week and may as well have been put as “what are you doing on Tuesday?”. This is not the right question to be posing in the context of this dispute, when there is a difference of views about whether the “Rostered Days Off” are 24 hour periods or calendar days. Similarly, the second question refers to “days”, which again infers the interpretation the Applicant prefers in the posing of the question. Notwithstanding this, if the question was posed differently, such as “when is your next Rostered Day Off?”, the same response might be elicited, i.e. “the two consecutive 24 hour periods from 7.45am Saturday to 7.45am Monday”. I accept that this response is a peculiar one. However, this does not, in itself, necessarily lend to a conclusion that “Rostered Day Off” refers only to a calendar day. Further, the use of that term, or the term “RDO”, elsewhere in the Agreement does not shed any light on the meaning of the term “full day”.
Secondly, the Applicant submitted that clause 14.2(b) is a neutral factor in determining the correct construction of clause 14.2(c).[55] Clause 14.2(b) provides that ordinary hours of work may be arranged as:
“(i) 76 hours per fortnight to be arranged so that each employee shall not work their ordinary hours on more than ten days in the fortnight; or
(ii) 152 hours in a 28 calendar-day cycle to be arranged so that each employee shall not work their ordinary hours on more than 20 days in the 28 calendar-day cycle; or
(iii) or 152 hours in a 28 calendar- day cycle to be arranged so that each employee shall not work their ordinary hours on no more than 19-days with the twentieth day taken as an accrued paid day off (ADO).
(iv) as otherwise agreed in writing between the employer and the employee.”
The Applicant submitted that:
· the natural progression from clause 14.2(b)(i), which deals with a “fortnight”, would have been to refer to a “month” in clauses 14.2(b)(ii) and 14.2(c)(iii);
· in this context, the term “month” is ambiguous: it may mean calendar month or a period of four weeks and the use of the composite term “28 calendar-day cycle” is plainly to curtail the consequences of that ambiguity; and
· this sheds no light on the meaning of the term “full day” in clause 14.2(c).[56]
The Respondent has a different view and submitted that the use of the term “calendar day” in clause 14.2(b)(i), the proximity of and relative interconnectivity between clause 14.2(b) and 14.2(c), and the use of the term “full day” in clause 14.2(c) rather than “calendar day”, is not simply to be considered a “neutral factor”.[57] Rather, the Respondent submitted that the different references to “calendar day” and “full day” in each of the subclauses is deliberate and designed to convey different meanings.[58] In particular, it submitted:[59]
· in clause 14.2(b), the term “calendar day” conveys the point that the roster starts at midnight on one day and finishes at midnight on the 7th, 14th or 28th day as appropriate to the relevant roster period; and
· in clause 14.2(c), the intent is to define certain periods during which an employee is free from duty and for those periods to be referred to as “Rostered Days Off”. The Respondent submitted the term “full day” here is used to describe a period of 24 hours, which should not be confined to the “calendar day” definition, and is intended to reflect the fact that the application of the term must be referable to the work pattern of an individual employee, a point confirmed by:
othe term “full day” being used as a part of three broader phrases:
“2 full days in each week”;
“4 full days in each fortnight”;
“8 full days in each 28 day cycle.”
In each of these broader phrases, the “week”, “fortnight” and “28 day cycle” are referable to periods in the rosters set out in clause 14.2(b); and
othe clause establishing the definition of “Rostered Day Off” and this defined term must be applied in the context of the roster or work pattern that is applicable to the relevant employee. For an employee working exclusively night shifts, their “rostered days off” are in fact night shifts that they do not have to work.
The disputed provision, clause 14.2(c) of the Agreement, is situated within clause 14, titled “Hours”, and specifically clause 14.2, dealing with “Arrangement of Hours”. Clause 14.2 in its entirety reads as follows:
“14.2 Arrangement of Hours
(a)The ordinary hours of work, exclusive of meal times, shall not exceed an average of 38 hours per week.
(b)The hours of work prescribed in sub-clause (a) may be arranged as follows:
(i)76 hours per fortnight to be arranged so that each employee shall not work their ordinary hours on more than ten days in the fortnight; or
(ii)152 hours in a 28 calendar-day cycle to be arranged so that each employee shall not work their ordinary hours on more than 20 days in the 28 calendar-day cycle; or
(iii)or 152 hours in a 28 calendar- day cycle to be arranged so that each employee shall not work their ordinary hours on no more than 19-days with the twentieth day taken as an accrued paid day off (ADO).
(iv)as otherwise agreed in writing between the employer and the employee.
(c)Employees will be free from duty for not less than 2 full days in each week or 4 full days in each fortnight or 8 full days in each 28-day cycle. Where practicable days off will be consecutive. These days are referred to as “Rostered Days Off” (RDO’s).
(d)Each shift shall consist of no more than 10 hours of work at ordinary time (not including unpaid breaks).
(e)An employee shall not work more than seven consecutive shifts unless the employee requests and the employer agrees.
(f)Except for meal breaks and the periods not worked in broken shifts, all time from the commencement to the cessation of duty each shift shall count as working time.
(g)(i) A Director of Nursing shall be free from duty for not less than 9-days
in each 28 consecutive days and such days free from duty may be taken in one or more periods.
(ii)If any of the days mentioned in sub-clause (i) cannot be taken by reason of emergency, such day or days shall be given and taken within 28-days of becoming due.
(iii)A Director of Nursing shall, where practicable, inform the employer by giving not less than seven days' notice of the days he or she proposes to be free from duty; provided that such days shall be subject to the approval of the employer, and such approval shall not be unreasonably withheld.
(h)The employer will ensure there is provision for handover between Registered Nurses at the commencement of each shift to inform of any changes to a residents’ health status.”
I have considered the submissions of the Applicant and the Respondent regarding the relevance of clause 14.2(b) of the Agreement. However, I do not accept the submissions of either party.
Clause 14.2(a) of the Agreement provides that ordinary hours of work shall not exceed an average of 38 hours per week.
If the employer is to utilise averaging, clause 14.2(b) essentially sets out the mechanics through which averaging of hours can occur, by including options for the arrangement of working hours within certain parameters. Those options include averaging hours over a “fortnight” or a “28 calendar-day cycle”.
As noted by the Respondent, in clause 14.2(b), the term “calendar day” conveys the point that the roster starts at midnight on one day and finishes at midnight on the 7th, 14th or 28th day as appropriate to the relevant roster period.[60]
Clause 14.2(c) prescribes the amount of time for which employees are entitled to be free from duty, depending on the way in which the average of 38 working hours are arranged.
When clauses 14.2(b) and clauses 14.2(c) are read together in the context of averaging arrangements that are to occur over a fortnight or 28 calendar-day period, they have a complementary effect.
In particular, where hours are to be arranged over a fortnight, clause 14.2(b)(i) requires that employees shall not work more than “ten days” in the fortnight, whereas clause 14.2(c) sets out an entitlement for the employee to be free from work for “4 full days” in each fortnight. When working off the concept that there are 14 days in a fortnight, both clauses have the effect of requiring that at least four days must be free from work. They do this by prescribing an upper limit on days worked (being 10) and lower limit on days off (being 4).
Where hours are to be arranged over a 28 calendar-day cycle with an ADO (defined in clause 14.2(b)(iii) as an accrued paid day off) arrangement in place, clause 14.2(b)(iii) requires that employees shall not work more than “19-days with the twentieth day taken as an accrued paid day off (ADO)”, whereas 14.2(c) sets out an entitlement for the employee to be free from work for “8 full days in each 28-day cycle”. As only 19 days are worked in this cycle, it flows from this that the minimum number of days free from work (being 8) is satisfied.
Where hours are to be arranged over a 28 calendar-day cycle without an ADO arrangement in place, clause 14.2(b)(ii) requires that employees shall not work more than “20 days in the 28 calendar-day cycle”, whereas 14.2(c) sets out an entitlement for the employee to be free from work for “8 full days in each 28-day cycle”.
While the drafting of the clauses is awkward in that different terminology is used when referring to a “day”, in this last scenario, with the upper limit of days worked (being 20) and lower limit of days off (being 8) intended to achieve a complementary effect, it follows that the reference to “day” or “days” in the terms:
· “28 calendar-day cycle” and “20 days” in clause 14.2(b); and
· “8 full days” and “28-day cycle” in clause 14.2(c),
must be intended as a reference to the same thing. Given that the starting premise for the arrangement of hours in clause 14.2(b) is across a “28 calendar-day cycle”, the subsequent reference to “days” in clause 14.2(b), “full days” in clause 14.2(c) and “28-day” in clause 14.2(c) must be intended as a reference to “calendar day”.
Further supporting this finding is the use of the word “full” before “days” in clause 14.2(c) of the Agreement. While the term “day” can take on various meanings, in the context of the clause in dispute, which is concerned with days off, neither party submitted that the term “day” would mean anything less than a 24 hour period.
While it was not argued by the parties, I considered the possibility that the term “day”, where appearing in clauses 14.2(b) and (c) of the Agreement, could be read as “work day”, noting that clause 22.1 of the Aged Care Award 2010 (Award) uses this terminology (emphasis added below):
“22.1 Ordinary hours of work
The ordinary hours of work will be 38 hours per week, or an average of 38 hours per week worked over 76 hours per fortnight or 114 hours per 21 days or 152 hours per four week period, and will be worked either:
(a)in a period of 28 calendar days of not more than 20 work days in a roster cycle;
(b)in a period of 28 calendar days of not more than 19 work days in a roster cycle, with the twentieth day taken as an accrued paid day off (ADO); or
(c)eight hours on a day shift or 10 hours on a night shift.”
However, the Agreement does not use this terminology in clause 14.2(b), which states (emphasis added below):
“(b) The hours of work prescribed in sub-clause (a) may be arranged as follows:
(i)76 hours per fortnight to be arranged so that each employee shall not work their ordinary hours on more than ten days in the fortnight; or
(ii)152 hours in a 28 calendar-day cycle to be arranged so that each employee shall not work their ordinary hours on more than 20 days in the 28 calendar-day cycle; or
(iii)or 152 hours in a 28 calendar- day cycle to be arranged so that each employee shall not work their ordinary hours on no more than 19-days with the twentieth day taken as an accrued paid day off (ADO).
(iv)as otherwise agreed in writing between the employer and the employee.”
The Agreement also replaces the words “roster cycle” with “28 calendar-day cycle” providing a further anchor back to the term “calendar-day”.
Further, a shift may be rostered for a minimum of four hours (see clause 14.3) or a maximum of 10 hours (see clause 14.2(d)) and employees may work a mixture of day, afternoon and night shifts, which introduces complexity and raises a question about what a “work day” would actually be if each work day may vary. In the context of the Agreement, the Applicant’s construction of the term “full day” fits more comfortably when it is considered that work is to be arranged based on calendar days, i.e. according to a roster starting at midnight on one day and finishing at midnight on the 7th, 14th or 28th day as appropriate to the relevant roster period (unless otherwise agreed in writing).
However, the term “work day” has not been used in the Agreement and, in circumstances where I am able to establish the plain, ordinary and natural meaning of “full day” within the context of the Agreement itself and where there is a departure from the words within the Award, I do not consider the use of the term “work day” in the Award to have any bearing on the matter before me.
Rather, it seems more likely that the use of the term “full” when read in the context of the Agreement suggests that it was intended to provide abundant clarification, i.e. in the context of a 28 calendar-day cycle, 8 of those days (being calendar days) would need to be “full” or, as defined in the Macquarie Dictionary, “complete” or “entire”. In other words, if the beginning or the end of a shift encroached on that calendar day, the day could not be counted as the “Rostered Day Off” for the purposes of clause 14.2(c).
I therefore accept the submissions of the Applicant that:
“Clause 14.2(b) deals with the same periods and cycles as those in clause 14.2(c). The clauses refer to both “28 calendar-day period” and “28 day period”. The “full day” then referred to in clause 14.2(c) must be one of the 28 days, or the 28 calendar-days described in clause 14.2(b). Hence the “full day” must be a calendar-day.”[61]
As such, I find that the term “full day”, where referred to in clause 14.2(c) of the Agreement, means calendar day.
As the task of interpreting the words does not need to go beyond the primary test of establishing the words’ plain, ordinary and natural meaning within the context of the Agreement as a whole, it is not necessary for me to take into account surrounding circumstances and witness evidence and the parties’ submissions turning to those matters.
Notwithstanding this, I observe that this dispute arises in the context of an employee whose shifts start on one calendar day and end on the next. In the case of this dispute, this is an employee working night shifts for the Respondent. The hours of nights shifts are as follows at the two facilities operated by the Respondent:
· 10:45pm to 7:45am at Sunset Lodge; and
· 10:45pm to 7:15am at Viewhaven Lodge.
I have considered the various provisions within the Agreement that impact the way in which employees can be rostered, including clause 14.2(d) of the Agreement, which provides that each shift shall consist of no more than 10 hours of work at ordinary time (not including unpaid breaks), and clause 16.4, which requires 8 hour breaks between ordinary rostered shifts.
While the application of clause 14.2(c) in the way I have found it must be applied may impact the Respondent’s current rostering practices, it is indeed possible to roster employees, including those working only night shift, in a way that enables them to work such that they:
· are rostered to work ordinary hours of work as prescribed under the relevant averaging arrangement or as agreed in writing;
· work within the parameters for the minimum shift length and maximum ordinary hours in a day;
· take the requisite number of rostered days off applicable to the averaging arrangements in place pursuant to clause 14.2(c); and
· have the required breaks between shifts.
This is particularly so given the capacity under the Agreement for shifts to be worked for up to 10 hours (see clause 14.2(d)), for hours to be averaged over a cycle of up to 28 calendar days or as otherwise agreed in writing.
Conclusion
For the reasons I have set out earlier, I am satisfied that the phrase “full day” referred to in clause 14.2(c) of the Agreement has a plain, ordinary and natural meaning when read in the context of the Agreement as a whole and that meaning is “calendar day”. There are no further questions for me to determine and I observe that the balance of the provisions of the Agreement will need to be applied in a way that gives effect to this finding. Accordingly, the dispute is now concluded.
COMMISSIONER
Appearances:
Mr J Lappin on behalf of the Applicant.
Mr S Puxty of Cantle Carmichael Legal on behalf of the Respondent.
Hearing details:
2022.
Sydney (by Video using Microsoft Teams).
April 5.
[1] [2017] FWCFB 3005.
[2] Ibid, [114].
[3] [2020] FCAFC 123.
[4] Ibid, [65].
[5] Applicant, ‘Submissions’, filed 22 February 2022, [12]-[14].
[6] Ibid, [14].
[7] Ibid, [40].
[8] Ibid, [41]-[42].
[9] Respondent, ‘Reply Submissions’, filed 15 March 2022, [9]-[11].
[10] Ibid, [35]-[36].
[11] Applicant, ‘Submissions’, filed 22 February 2022, [16].
[12] Ibid.
[13] Ibid.
[14] Ibid, [17].
[15] Ibid, [18].
[16] Ibid, [19].
[17] Ibid.
[18] Ibid.
[19] Ibid, [20].
[20] Ibid, [21].
[21] Respondent, ‘Reply Submissions’, filed 15 March 2022, [12].
[22] Ibid, [13].
[23] Ibid.
[24] Ibid, [14].
[25] Ibid, [15]-[16].
[26] Applicant, ‘Submissions’, filed 22 February 2022, [22].
[27] Ibid, [23]-[24] with reference to Public Health System Nurses' and Midwives' (State) Award [2009] NSWIRComm 129 (18 September 2009), [25]-[92]; Guide for managing the risk of fatigue at work, Safe Work Australia (2013) 1, 8 and 19; World Health Organisation, IARC Monographs Meeting 124: Night Shift Work (4–11 June 2019) Applicant, ‘Witness Statement of Mandy Hollis’, dated 18 February 2022, [12]-[24].
[28] Applicant, ‘Submissions’, filed 22 February 2022, [25].
[29] Respondent, ‘Reply Submissions’, filed 15 March 2022, [19].
[30] Ibid, [21]-[23].
[31] Ibid, [31]-[34].
[32] Applicant, ‘Submissions’, filed 22 February 2022, [27].
[33] Ibid, [28]-[29].
[34] Ibid, [30].
[35] Ibid.
[36] Ibid, [31].
[37] Ibid, [31]-[32].
[38] Ibid, [34].
[39] Ibid, [35].
[40] Ibid, [36]-[39].
[41] Respondent, ‘Reply Submissions’, filed 15 March 2022, [24].
[42] Ibid, [26].
[43] Ibid, [35].
[44] Ibid.
[45] Ibid, [28]-[29].
[46] Applicant, ‘Submissions’, filed 22 February 2022, [12]-[14].
[47] Macquarie Dictionary Online (Macmillan Publishers Australia, 2022).
[48] Applicant, ‘Submissions’, filed 22 February 2022, [12].
[49] Macquarie Dictionary Online (Macmillan Publishers Australia, 2022).
[50] Applicant, ‘Submissions’, filed 22 February 2022, [14].
[51] Respondent, ‘Reply Submissions’, filed 15 March 2022, [9]-[11].
[52] Applicant, ‘Submissions’, filed 22 February 2022, [16].
[53] Ibid.
[54] Ibid.
[55] Ibid, [17].
[56] Ibid, [18].
[57] Respondent, ‘Reply Submissions’, filed 15 March 2022, [12].
[58] Ibid, [13].
[59] Ibid.
[60] Respondent, ‘Reply Submissions’, filed 15 March 2022, [13].
[61] Applicant, ‘Submissions in reply’, filed 24 March 2022, [6].
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