Independent Education Union of Australia v Roman Catholic Church Trust Corporation, Archdiocese of Hobart T/A Guilford Young College

[2021] FWC 1942

[2021] FWC 1942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Independent Education Union of Australia
v
Roman Catholic Church Trust Corporation, Archdiocese of Hobart T/A Guilford Young College
(C2020/9067)

COMMISSIONER WILSON MELBOURNE, 14 APRIL 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s.186(6)] – Whether redundancy may be conditional upon deed of settlement.

[1] Teachers in Catholic schools in Tasmania are covered by the Tasmanian Catholic Education Single Enterprise Agreement 2018 1 (the Agreement), which covers two employers, The Roman Catholic Church Trust Corporation of the Archdiocese of Hobart and the Provincial Salesians of Don Bosco Australia-Pacific. The Archdiocese operates 37 schools and colleges through a body known as the Catholic Education Trust (CET). One of the schools and colleges, the subject of this dispute, is Guilford Young College. The College is a senior secondary college, operating for years 11 and 12 only.

[2] The Applicant in these proceedings is the Independent Education Union of Australia (IEU). A dispute has arisen between the CET and the IEU about a requirement of the CET that employees made redundant will be required to sign a deed of settlement before their redundancy is finalised. The application was made pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute arising under an enterprise agreement.

[3] Mr Dennis Matson, Senior Industrial Officer, appeared for the IEU and Mr David Dilger, solicitor from Edge Legal appeared for the CET. Permission was granted to the CET to be represented by a lawyer with me being satisfied the criteria within s.596(2)(a) had been enlivened. My decision to grant permission to CET for legal representation included consideration of written and oral submissions from each party and followed me being satisfied the matter in dispute involved some measure of complexity with the likelihood that representation may assist with the efficient disposition of the matter. Witness Statements and oral evidence were received from two IEU Organisers on behalf of the Union, Jeremy Oliver and Dino Ottavi, and on behalf of the CET, Richard Heyward, the CET’s Manager – Employee Relations. A Witness Statement was submitted by the CET from Mr Craig Deayton, the Principal of Guilford Young College, and accepted into evidence without him being required to give oral evidence.

[4] The application was made by the IEU on 17 December 2020 and was the subject of conciliation before me on 22 December 2020. After the matter was unresolved and the Commission was advised that the IEU desired for the dispute to be arbitrated, it was programmed for arbitration, with the hearing listed for 3 March 2021.

QUESTION FOR DETERMINATION

[5] The question for determination posed to the Commission by the IEU is in these terms:

“In circumstances where the Employer has identified a potential redundancy situation is the employer, under the terms of the Tasmanian Catholic Education Single-Enterprise Agreement 2018, permitted to impose a further condition (being the execution of a deed of settlement) upon the making of an offer of a voluntary redundancy or the payment of a severance payment under clause 31 of the Agreement?”

[6] For the reasons set out below the question is answered as “no”. A deed of settlement may not be imposed as a condition of redundancy, however there is nothing to prevent such document, however described, being negotiated and agreed between an employer and employee.

BACKGROUND

[7] This dispute has been triggered by a decision of Guilford Young College in December 2020 to restructure its library functions. Amongst other changes all current library positions are to be made redundant and three new positions created: an Academic Research Leader and two Academic Research Centre Assistants. The former position is classified as Business Services 6 under the Agreement and the latter positions are classified as Library Services 3. Advertising for the position was due to commence in December 2020. 2

[8] Redundancy is dealt with in the Agreement at Clause 31. The provision is lengthy and is set out in full in an Attachment to this decision.

[9] As will be seen from the redundancy clause the matter of severance payment is dealt with somewhat unusually with the clause providing that severance pay is an amount negotiated between the parties:

“31.5 Severance Pay

Severance payment in the case of redundancy shall be an amount agreed between the Employer and the Employee(s) who may be represented by the Union in negotiations. In the event of no agreement being reached, the matter may be resolved pursuant to the Dispute Settling Procedure in this Agreement. The amount payable shall not be less than the entitlement under the National Employment Standards.” (underlining added)

[10] Ms Sandy von Allmen, who is the subject of this dispute and who did not give evidence in this matter had approximately 7 ½ years continuous service with the CET at the time the application was lodged, on 17 December 2020. 3 At the time of the dispute she was employed in the Guilford Young College library. The severance payment offered to her pursuant to the severance pay clause is 20 weeks’ pay, equivalent to 100 working days. If she was paid strictly in accordance with the National Employment Standards (NES) redundancy pay schedule Ms von Allmen would likely be entitled to 13 weeks’ pay, having between 7 and 8 years continuous service.

[11] Owing to the length of Ms von Allmen’s continuous service she was also entitled to be paid 25 days (or 5 weeks) pay in lieu of notice and accrued long service leave of 41.16 days.

[12] The path by which this offer was put forward to Ms von Allmen includes the following, summarised from the Witness Statement of Jeremy Oliver, an IEU Organiser: 4

•  On 7 December 2020 library staff were advised through a document sent to them of proposed restructuring within the library and that redundancies were likely. Mr Oliver’s understanding was that this meant that all current library positions would become redundant and new positions would be created.

•  On 8 December 2020 Mr Oliver and one of his Union’s affected members, Jen Johnson met with the college principal, Craig Deayton. Mr Oliver recollects Mr Deayton telling Ms Johnson “she would need to apply for one of the new positions and, if unsuccessful would, be made redundant at the end of Term 1, 2021. I questioned why redeployment was not being considered”. 5 Mr Deayton disputes some of these matters, instead giving evidence that he said the College would initially explore voluntary redundancies after which it would be necessary to proceed to a forced redundancy, but with him being always aware of the options of voluntary redundancy and redeployment.6

•  A further meeting was held on 9 December 2020 between Mr Oliver and Mr Deayton this time with Ms von Allmen in attendance as well. Mr Oliver recollects expressing concerns about the process being used by the school as well as the timelines and recollects that Mr Deayton “expressed a view that he would look for redeployment opportunities, but redundancy was also to be considered as it was unlikely that redeployment to the newly created positions would be possible”. 7

•  There was a further conversation on 10 December 2020 with Mr Oliver’s recollection being that similar matters were discussed on that occasion as well with Mr Deayton discussing “the possibility of voluntary redundancy if that is what IEU members saw as a positive outcome for them”. 8

[13] A dialogue about the possible voluntary redundancy of Ms von Allmen commenced on 11 December 2020 with agreement being reached a few days later on 15 December 2020 on a severance payment figure of 20 weeks’ pay. The parties’ intention at that time was that Ms von Allmen’s redundancy would take effect either at the end of the 2020 school year or at the end of Term 1 2021. Mr Oliver does not recollect mention having been made at that time of the need for a “deed” or any other requirement to execute a document as a condition for the redundancy. 9

[14] Discussions then ensued between the parties about CET’s requirement for Ms von Allmen to execute a release document of some kind. Mr Oliver’s evidence is that this was communicated to him on 15 December 2020 when he received a “deed of release” in relation to Ms von Allmen, which he had not been expecting. 10 After he objected to the matter it was indicated to him by the CET’s Manager, Employee Relations, Richard Heyward that “no payment would be made under Clause 31 unless the affected employees executed a deed of settlement”.11

[15] In reply to the union’s correspondence on the subject, Mr Heyward explained the CET’s view was that the requirement was lawful and because the redundancy being contemplated was voluntary and not compulsory. The explanation was given in correspondence dated 17 December 2020 and expressed as being “without prejudice”. The email is before the Commission since it was included in Mr Heyward’s witness statement. No objection was raised by the IEU to my receiving the correspondence and relying upon its content in the course of this decision. Since it explains the CET’s reasoning for insisting on a separation agreement, I consider it appropriate to receive and rely upon its content.

[16] It is also necessary to explain that the original dispute before the Commission addressed the IEU’s concerns for two of its members, Ms von Allmen and Ms Johnson, however the dispute in respect of Ms Johnson did not progress and was withdrawn.

[17] The CET’s 17 December 2020 email is in these terms:

“Dear Mr Matson

Without Prejudice,

RE: Your correspondence 16 December 2020.

The following facts relate to the voluntary discussion that have occurred with two respective CET employees,

•  Von - Allmen is offered 20 + 5 weeks

•  Johnston is offered 25 + 5 weeks

CET is entitled to DEED the arrangement relating to the employees as the arrangement is voluntary (not compulsory) and exceeds the lawful entitlements relating to the individuals,

The proposed DEED will contain the following details,

1. A severance amount above the employees NES entitlement to a redundancy payment,

2. A redundancy amount in accordance with the NES,

3. Details of any amount relating to the employee’s lawful entitlements that must be paid out in full (i.e. annual leave, LSL etc).

Points 2 and 3 above are lawful entitlements that are included in the DEED document for completeness only and will not feature in the DEED liquidated damages provision this is restricted to point 1 Therefore and subject to some future preceding based on a breach of the Deed CET will be restricted to a claim limited to the point 1 amount as detailed in the DEED. This I believe was explained in some detail to Mr Oliver yesterday.

Thus, there is no prerequisite to the employee receiving an entitlement nor is there a breach of the agreement – again explained to Mr Oliver yesterday.

Some alternatives,

•  We could exclude both 2. And 3. from the DEED but the DEED will still need to refer to the fact that all lawful entitlements have been paid.

•  Alternatively, we can stop all of these voluntary discussions, the Employees can return to work next year and we will commence a clause 31 process at that time,

1. In its entirety and

2. From the beginning (31.4 .)

I cannot agree with your proposition that this matter is at CL 31.5 EA

I also, note that Mr Oliver was of the position that CET was not entitled to have voluntary redundancy discussions I trust you have illuminated him to CL 31.4 (e and f).

Again, I must remind you that CET is not simply engaged in your matters and please desist from issuing demands with timeframes. It is only the fact that other matters have been resolved today that have allowed a response to be provided to you.” 12

[18] Mr Heyward’s evidence to the Commission included that he considered a separation agreement as necessary for prudential reasons: 13

•  It is “the most prudent and professionally acceptable means of: confirming agreement, resolving any issues and formalising any such arrangements”;

•  Since joining the CET in December 2017, he has always required a Deed to finalise a matter on CET’s behalf;

•  “A Deed is like a ‘ribbon and bow on top of a present’ - it is not strictly a mandatory requirement, but it provides the parties with an appropriate level of symbolism that this is the end of the matter once and for all”;

•  He concedes negotiation is required over the terms of a separation agreement:

“I make no apology for the CET’s preferred Deed being in terms that protects the Employer’s interests. I would not expect the IEU to fully understand the Employer’s interests. Equally, I have expected that the IEU’s preferred Deed to protect them and their members interests more often than not to the Employer’s detriment. This is all part of standard negotiation. There are some matters which are more important than others depending on the circumstances of each and every case. Having a standard document is merely a benchmark from when the negotiations begin.” 14

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[19] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 15 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.16

[20] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 17 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”18

[21] In characterising the nature of a dispute, the Commission is not confined to the application filed to deal with the dispute. 19 The entire factual background is relevant and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.20 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.21 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.22 However, the relief sought may cast light on the true nature of the dispute in some cases.23

[22] The Commission may deal with a dispute only if it is expressly authorised to do so. 24 If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5)25 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.26

[23] The Full Court summarised the principles for the interpretation of enterprise agreements in Workpac v Skene as follows:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context:  City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)).  To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced:  see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 27

[24] From within the Commission, the principles enunciated by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 28 usefully summarise the approach which should be taken in the task of ascertaining the construction of the words of an enterprise agreement. After an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 29

[25] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 30

CONSIDERATION

[26] There is a need in consideration of any dispute to properly characterise the dispute before arbitral powers may be exercised, including for the reason the Commission must be satisfied the matter may be dealt with under Part 6 – 2, Division 2 (Dealing with disputes), within which s.739 is found. The Part has application including where an enterprise agreement includes a term that provides a procedure for dealing with disputes (s.738(b)) and the Commission may arbitrate a dispute if in accordance with the term the parties have agreed that the Commission may do so (s.739(4)). The Commission though may only deal with a dispute if expressly authorised to do so by a provision of the Act, in this case by s.739 (s.596(1)). The Commission’s decision in arbitration may not be inconsistent with the Act or a fair work instrument applying to the parties (s.739(5)).

[27] Amongst other things, Clause 31 of the Agreement sets out a redundancy procedure and severance pay entitlements and Clause 7 is the Dispute Settling Procedure. The latter clause authorises the Commission to deal broadly with “all disputes”, including upon “final reference” of a matter to the Commission through conciliation and arbitration:

“7. DISPUTE SETTLING PROCEDURE

The Parties to this Agreement undertake to follow the procedure as set out herein, with the intention that all disputes shall be promptly resolved by conciliation in good faith. An employee who is party to a dispute may appoint the Union or other representative for the purposes of this clause.

7.1 Matters Likely to Become Industrial Issues

The Employer and the Union (or other employee representative) shall respectively notify each other as soon as possible of any industrial matter which, in the opinion of the party notifying, might give rise to an industrial dispute.

7.2 Disputes at School Level

In the event of a dispute arising at school level the parties shall immediately confer. If no agreement is reached at this level an official of the Union (or other employee representative) shall discuss the matter in dispute with the Employer or the Employer's representative.

7.3 Final Reference

Should the foregoing steps fail to resolve the issue within a reasonable time, the matter(s) in dispute shall be referred by the Employer, the Union or the employee party to the dispute to the Fair Work Commission for conciliation and arbitration, whose decision will bind all parties to the dispute.

7.4 Without prejudice to either party and except where a bona fide safety issue is involved, work shall continue in accordance with the agreement and customs and practice existing before the grievance arose while matters in dispute are being processed in accordance with the subclauses 7.1, 7.2 and 7.3 of this clause.

7.5 No party shall be prejudiced as to the final settlement by the continuance of work.”

[28] After consideration of these matters and the Question for Determination put forward by the IEU, I am satisfied that the question addresses a dispute arising under Clause 7 of the Agreement and that the matter may be arbitrated.

[29] In this case the question for determination requires an examination of whether the terms of the Agreement permit a thing to be done which is not referred to in the instrument at all. Resolution of the question will necessarily require both consideration of the context of the clause in question as well as its content.

[30] The content of the redundancy clause includes matters of definition, objective, process and commitments about numerous rights and obligations:

•  Clause 31.1 uses the term “redundancy situation” which is defined thus:

“A potential redundancy situation exists where any Employee could be disadvantaged in his or her current employment contract as a result of changes in funding, curriculum, enrolment, arrangement of work, or policy/administration changes.”

•  Clause 31.2 states agreed objectives to ameliorate the effects of redundancies.

•  Clauses 31.3 and 31.4 set out considerable process for discussion and consultation about potential redundancies. In summary:

•  The parties commit to the provision of as much information as possible as early as possible. If a redundancy is expected to take place from the beginning of a school year, then “the process must commence as early as possible in Term 3 and any redundancies be determined by early in Term 4.”

•  The clause includes a five-step process for discussion, consultation, and decision about redundancies:

•  Step 1 requires the provision of certain stipulated information to affected employees and to the CET and IEU. Paragraph (a) of the Step is specific about what is to be communicated, and to whom and by what means:

“(a) As soon as a potential redundancy situation is identified, the Employer/Principal shall communicate this fact in writing to each member of staff in the classification(s) of Employees affected, with an outline of the reasons for the potential redundancy(ies) (see Attachment 1). A copy must be placed on the staff notice board.”

Step 1 also requires the employer (in this case the CET) or Principal to “investigate alternatives” as well as to “offer voluntary redundancy(ies)”, but without obliging the employer to accept any particular expression of interest in a voluntary redundancy.

•  Step 2 deals with the situation in which “the potential redundancy is not solved”. The content of the Step deals with two alternatives which must be taken by the employer; either to issue a notification that there has been one or more voluntary redundancies or to issue a document advising that other redundancies, presumably involuntary redundancies, are required. Because of the content of the two alternatives in Step 2, when the Step refers in its preface to the potential redundancy not having been solved, such must logically be a reference to the employer’s Step 1 obligation to “investigate alternatives” not having assisted to avoid the need for redundancies of some kind.

•  In terms of logical sequential process, Step 3 deals with the situation in which the second alternative in Step 2 is engaged; that is, when involuntary redundancies require consideration. There are several relevant commitments in Step 3:

•  There is to be a meeting between the employer and the IEU in order “to agree on the criteria to be applied and the content of the redundancy document.”

•  The language of (b) indicates the paragraph is engaged where the meeting above agrees on the identity of the individuals to be declared redundant, in which case the individuals are to be informed within a week of the above meeting;

•  Paragraph (c) deals with the alternative where there is no agreement, which leads to a requirement there be a second meeting, and if the impasse persists, “the Employer shall inform the IEU of the action that the Employer intends to take”.

•  There are commitments in paragraphs (d) and (e) for the matters requiring consideration by the parties in their discussions.

•  Finally, there is a commitment in paragraph (f) that certain attributes of an employee will not be taken into account; namely “whether the person is a Union Representative or member, the person's sex, marital status, age, pregnancy, lifestyle or religion”.

•  Step 4 commits the employer to do a number of things couched as “Notifying the Redundancy Result”. Within 2 weeks of the Step 3 meetings the IEU must be notified in writing “of the details of the Employer's action following Step 3”. Further, individual employees must be notified they are being considered for redundancy and invited to provide their response. If a response is given, and the employer accepts redundancy is not appropriate, the parties’ discourse reverts to Step 3.

The Step also provides what is to happen if an employee elects to take up an offer of leave without pay. Finally, it obliges the employer to provide written advice to the IEU of the “ultimate outcome of the matter”.

•  Step 5, entitled “Assistance in Re-employment”, obliges certain assistance to be provided to an employee declared redundant.

•  Clause 31.2 deals with the matter of severance pay consequential upon being made redundant and is in these terms:

“31.5 Severance Pay

Severance payment in the case of redundancy shall be an amount agreed between the Employer and the Employee(s) who may be represented by the Union in negotiations. In the event of no agreement being reached, the matter may be resolved pursuant to the Dispute Settling Procedure in this Agreement. The amount payable shall not be less than the entitlement under the National Employment Standards.”

[31] Clause 31 does not deal with notice for termination of employment and instead that subject is dealt with in several other parts of the Agreement. So far as is relevant to Ms von Allmen, the applicable provision is within the specific conditions for school support employees at Clause 57.2.1. The clause provides for a scale of notice consistent with the NES.

[32] There is a wider context to Clause 31 given by other parts of the Agreement and also the Act under which the terms of the Agreement have been negotiated, made and approved. Context relevant to this matter from within the Agreement is given by these provisions:

•  Clause 13.2.3 allows the CET to exercise discretion as to whether it should advertise a vacant position where it proposes to fill a position with someone whose existing position has been made redundant;

•  Clause 15.1.1 permits the CET to transfer staff members to another school including as a means to “avoid redundancies”, which provision is in turn affected by Clauses 15.3 and 15.4 which first requires consideration to be given to a voluntary transfer before turning to consideration of the compulsory transfer;

•  Clause 22 requires that salary sacrifices to superannuation funds that the employer take into account any redundancy payments which may be due;

•  Clauses 32 (of general application) and 59 (applicable to part-time teacher assistants) set out a procedure to provide a period of transitional salary maintenance in the event that an employee is required to have their hours of work reduced which includes a capacity for employee to elect to be declared redundant in defined circumstances.

[33] Relevant context for the matters within the Agreement is given by several parts of the Act.

[34] Chapter 2 of the Act deals with the subject of Terms and Conditions of Employment.

[35] Section 50, within Part 2 – 1 (Core provisions) provides that a person must not contravene a term of an enterprise agreement, and notes the section is a civil remedy provision.

[36] Part 2 – 2 of the Act sets out the National Employment Standards, which make provisions for notice of termination and redundancy pay. 31 Part 2 – 1, Division 3 is entitled “Interaction between the National Employment standards, modern awards and enterprise agreements”.

[37] A modern award or enterprise agreement must not exclude the NES, however may include terms they are expressly permitted to include either through a provision of Part 2 – 2 or the Regulations. 32 A modern award or enterprise agreement may include terms that are ancillary, incidental or supplementary to the NES, but only to the extent the term is not detrimental to an employee in any respect.33 An enterprise agreement may include terms that have the same or substantially the same terms as the provisions of the NES.34 A term of a modern award or enterprise agreement has no effect to the extent that it contravenes s.55.35

[38] The importance of the NES and its legislative place is stressed by s.61 which provides that the NES “sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5)”.

[39] Redundancy or severance pay is prescribed in the NES at ss.119 – 122, being Subdivision B of Part 2 – 2, Division 11, with the amount of redundancy pay being prescribed by s.119 equal to “the total amount payable to the employee for the redundancy pay period” worked out in accordance with a table taking into account the “[e]mployee’s period of continuous service with the employer on termination”. The requirement to make a redundancy payment is affected by s.122, which deals with the circumstances in which an employee is the subject of a transfer of employment in the manner set out in the section, or where they reject an offer of substantially similar employment in which their service is preserved. The obligation to make a payment of redundancy pay on occasion is subject not only to the ascertainment of whether the employee is actually redundant, but also to the limits on the scope of the Division as set out in Subdivision C, comprised of s.123.

[40] The NES provisions dealing with notice of termination and redundancy pay do not set out a process for consultation or decision making about a redundancy. They also do not provide for a redundancy or other termination of employment at the initiative of the employer to be made conditional upon negotiation and execution of a deed of settlement, however described.

[41] Relevant considerations to the disposition of this matter are the extent of the NES as it deals with redundancy and the extent to which the Agreement’s redundancy terms are ancillary, incidental or supplementary to the NES.

[42] In applying the legislative provision that the terms of an agreement do not exclude the operation of the NES the Full Bench has confirmed in relation that to the extent an agreement provides different terms which do not purport to exclude the NES, the terms operate in parallel, with the following being decided in Maritime Union of Australia, The v FBIS International Protective Services (Aust) Pty Ltd (FBIS):

“[21] The Appellant submitted that the entitlement to redundancy pay of the relevant employees arises under clause 2.5 of the FBIS Agreement and not s.119 of the Act. It says that by reason of ss.55(4), (5) and (6), the NES operates as a minimum standard but not the source of entitlement to redundancy pay in the relevant sense. In consequence, so was submitted, s.120 is excluded by the express terms of the FBIS Agreement. As s.120 is only enlivened if an entitlement arises “because of” s.119, there is no displacement of the minimum standards of the NES contrary to s.61 of the Act.

[22] We are not persuaded that this construction is correct.

[23] Section 55(4) of the Act permits an enterprise agreement to include terms that are “ancillary or incidental to the operation of an entitlement of an employee under the” NES or “that supplement the” NES. Terms that are ancillary or incidental to, or that supplement, the NES must not be detrimental to an employee in any respect when compared to the NES. Section 55(5) permits an enterprise agreement to include terms that have the same or substantially the same effect as provisions of the NES whether or not such terms are ancillary or supplementary terms.

[24] Section 55(6) of the Act relevantly provides that if an enterprise agreement includes terms permitted by ss.55(4) or (5) then if such terms give an employee an entitlement that is the same as an entitlement under the NES, the enterprise agreement terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit, and the provisions of the NES “relating to the NES entitlement apply, as a minimum standard” to the enterprise agreement entitlement.

[25] Clause 2.5.2.1 of the FBIS Agreement 36 contains a term that gives an employee an entitlement to redundancy pay that is the same as the NES entitlement, although it is not clear whether the precondition that an employee “is made redundant by the Company” under the FBIS Agreement has the same meaning as the preconditions to the entitlement in s.119(1) of the Act. Nonetheless to the extent that the FBIS Agreement provides the same entitlement to redundancy pay as the NES entitlement, the entitlement to redundancy pay may be sourced both in the FBIS Agreement and in the NES because they “operate in parallel”. The entitlement may be enforced under either source but not both sources so as not “to give a double benefit”. This is the effect of s.55(6). This construction is clear in the words of s.55(6) but lest there be doubt, the construction is also consistent with the explanation of the provision in the Supplementary Explanatory Memorandum to the Fair Work Bill 2008,which provides:

“24. The amendments make clear that an enterprise agreement can include terms that are the same (or substantially the same) as an NES entitlement. These could be terms which simply replicate the NES or terms that make ancillary or supplementary provision in relation to the NES and subsume the NES entitlement. This means that an employer can make a comprehensive enterprise agreement with the employer’s employees.

25. Such terms operate in parallel with the NES entitlement, and do not confer a double entitlement. The same applies to terms of modern awards that are ancillary or supplementary to a NES entitlement. This means that a NES entitlement can be sourced both in the NES and in an enterprise agreement or modern award and can be enforced as an entitlement under either. Also, the mechanisms contained in the agreement are available to resolve any dispute about the entitlement.” 37 [Our emphasis added]

[26] However the entitlement to redundancy pay under the FBIS Agreement does not operate writ large. Whilst it is possible for an enterprise agreement to provide for a term which requires a redundancy entitlement to be paid unencumbered by s.120 of the Act, the FBIS Agreement does not so provide. Clause 2.5.5 of the FBIS Agreement contains exclusions, clause 2.5.5.1(c) of which provides that the redundancy clause shall not apply:

“. . . in a particular redundancy case if the Company arranges suitable alternative employment for the Employee; or the Employee unreasonably refuses to accept such employment”

[27] It is immediately apparent that the effect of this exclusion is that redundancy entitlements under the FBIS Agreement are not payable at all in the circumstances contemplated by the exclusion. For present purposes it is not necessary to decide whether there is any material difference between the phrase “obtains other acceptable employment” in s.120 of the Act and “arranges suitable alternative employment” in clause 2.5.5.1(c). Under clause 2.5.5, unlike s.120, there is no requirement for an application to be made to the Commission before the exclusions may be invoked and there is no possibility in the circumstances contemplated by the exclusions for a reduction of the entitlement rather than a complete loss of the entitlement. It cannot therefore be said that the clause is ancillary or incidental to, or supplements the NES within the meaning of s.55(4) of the Act because to the extent identified above, it is detrimental to an employee. Nor can it be said that the exclusions term in clause 2.5.5 has the same or substantially the same effect as any provision of the NES. Even if it were such a term it cannot displace s.120 by reason of s.61(1) of the Act.

[28] Moreover, to the extent that it was submitted that s.120 was excluded by operation of clause 2.5 of the FBIS Agreement,the submissions, in the circumstances of the exclusions in clause 2.5.5, flies in the face of s.55(1) and if it so operated it has no effect by reason of s.56 of the Act.

[29] To the extent that the redundancy pay entitlement in clause 2.5.2 provides an entitlement that is the same as the NES entitlement in s.119 within the meaning of s.55(5) then as s.55(6)(b) makes clear the provisions of the NES relating to the NES entitlement apply as a minimum standard to the enterprise agreement entitlement that is the same as the NES entitlement.

[30] It seems clear to us that s.120 of the Act is a provision of the NES relating to the NES redundancy pay entitlement in s.119. For reasons already given, it is not as suggested by the Appellant, excluded by the express terms of the FBIS Agreement. Rather it continues to apply as a minimum standard to the redundancy pay entitlement under the FBIS Agreement that is the same as the NES entitlement. In our view, this construction is consistent with the statutory note found at the end of s.55(6) of the Act which provides:

“Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.”

[31] It is also consistent with the explanation of this provision in the Supplementary Explanatory Memorandum to the Fair Work Bill 2008,which provides:

“28. The amendments made by this item also make clear that where:

•  an enterprise agreement contains terms that are the same or substantially the same as a NES entitlement, or terms that are ancillary or incidental to, or which supplement, a NES entitlement; or

•  α μοδερν αωαρδ χονταινσ τερμσ that are ancillary or incidental to, or which supplement, a NES entitlement,

the provisions in the NES that relate to that entitlement (e.g., in relation to rate of accrual of leave, or what notice must be given to access an entitlement) apply to the entitlement in the award or agreement (as a minimum standard) to the extent that the award or agreement entitlement is the same as the NES guaranteed entitlement.” 38 [Our emphasis added]

[32] The construction we prefer also gives full effect to s.61 of the Act. The construction argued for by the Appellant would displace the NES redundancy entitlement in s.119 and the NES standard relating to that entitlement found in s.120. The NES entitlement would not operate in parallel with the enterprise agreement entitlement, while the NES standard related to the NES entitlement it would not apply as a minimum standard to the enterprise agreement entitlement, and the exclusion of the entitlement would be subject to a less stringent test. As we have indicated above, an enterprise agreement may expressly or by necessary implication allow the NES redundancy entitlement to operate without the strictures in s.120 of the Act. That is, it might allow an employee an entitlement even if an employer obtained acceptable alternative employment for the employee. This would be a term that fell within s.55(4) of the Act. Clause 2.5.5.1(c) is not a term that has that effect, to the contrary it is detrimental to the employee.” 39 (original citations)

[43] It follows from FBIS that an enterprise agreement may supplement what is within the NES but may not impermissibly remove rights and entitlements. After carefully separating the entitlements which arise under the enterprise agreement and the NES and noting that the core redundancy benefits established by the NES “may be enforced under either source but not both sources so as not “to give a double benefit.”” 40  FBIS further confirms that the parties to an enterprise agreement are at liberty to set their terms for the disposition of redundancy benefits in excess of the NES.

[44] While the NES is an enforceable right to notice of termination and redundancy pay it does not deal with matters of process, whereas the Agreement does. The Agreement though provides supplementary terms including providing for redundancy benefits in excess of the NES both through the inclusion of considerable mandatory consultation and deliberation process and with the ability of the parties to negotiate severance payments above the redundancy pay floor provided by the NES. FBIS confirms that the rights provided in the Agreement which are in addition to the NES operate in parallel, meaning they stand alone and may be enforced.

[45] In turn the combination the Agreement’s provisions with those in the Act create new rights. For example, because of the Agreement’s redeployment obligations it must be the case that redeployment of an individual was not reasonable in all the circumstances for a redundancy to be a genuine redundancy for the purposes of the Act’s unfair dismissal provisions.

[46] There is no suggestion that the Agreement impermissibly removes rights and entitlements set by the NES. Instead, what is within Clause 31 may be regarded as either ancillary or incidental provisions or supplementary provisions.

[47] The Act does not define the terms used in s.55 of ancillary, incidental or supplementary. Accordingly, those terms are to be given their ordinary meaning.

[48] Most of Clause 31 would easily fit within the category of being ancillary or incidental, with Clauses 31.1 to 31.4 being objectively an elaboration of objectives or a stipulation of what should or must be done before finally making a decision either of voluntary or involuntary redundancy. Some elements though, and particularly the matter of severance pay, are supplementary to the NES in that they add to the subject or extend what is provided for in the Act. 41

[49] The NES makes no distinction between voluntary or involuntary redundancy and the redundancy payments required by s.119 make no distinction between the categories. The NES though requires redundancy pay to be paid to employees in two circumstances and relevant to this matter “if the employee’s employment is terminated … at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour” (s.119(1)(a)), with the core part of the definition being reflected in the definition of the term “genuine redundancy” as that term is used in unfair dismissals (s389(1)).

[50] As such it may be seen that Clause 31 either provides for rights and entitlements which are not in the NES (and thus are provisions which are ancillary or incidental) or which provide improved benefits (which are thus supplementary to the NES). In either case it is the terms of Clause 31 and the other relevant parts of the Agreement which will determine the question before the Commission.

[51] Clause 31 deals directly with redundancy payments only in Clause 31.5 (Severance Pay), with no part of that clause or Clauses 31.1 – 31.4 making a distinction between the payments due to a person terminated for reason of voluntary redundancy or one made redundant involuntarily. In each case the payment due as a term of the Agreement is “an amount agreed between the Employer and the Employee(s)”, subject to the requirement that the “amount payable shall not be less than the entitlement under the National Employment Standards”.

[52] The Agreement is silent on what entitlement is due to an employee where no amount of redundancy pay is agreed by them: that is, where the parties have not achieved a meeting of minds over the amount of the severance payment. Presumably in such case the CET may still terminate an employee’s services for reason of redundancy, however before doing so may need to invoke the Agreement’s Dispute Settling Procedure (Clause 7) in order to facilitate agreement over the severance pay or failing that to refer the dispute to the Commission for conciliation or arbitration of the matter (see Clause 7.3).

[53] The Agreement provides that a person who is made redundant has considerable rights before their redundancy may take effect. There must, under the Agreement, be a “potential redundancy situation” (Clause 31.1) and affected employees must be advised in writing in accordance with a standard letter and provided with an individualised information pro forma. Voluntary redundancies must be invited, and expressions of interest must be considered (Clause 31.4, Step 1). After information has been provided and consultation undertaken and the need for redundancies not avoided, affected employees must be notified and provided with further information (Clause 31.4, Step 2). Discussions are then required about the likely decision for involuntary redundancy. The employer’s decision making must avoid the discriminatory factors of the person’s union membership or activity, their gender, marital status, age, pregnancy, lifestyle or religion (Clause 31.4, Step 3). Before a final decision is made there must be further discussion, as well as consideration of leave without pay and, if necessary, a final decision (Clause 31.4, Step 4). Assistance must be given to obtain alternative employment (Clause 31.5, Step 5). There must then be a negotiation leading to agreement over the severance pay (Clause 31.4, Step 6).

[54] Should an affected employee or other party with standing see the need, remedial action may be taken under several parts of the Act, depending on the term or right which is alleged to have been contravened. A dispute may arise under the Agreement. Alternatively, a general protections action may be taken under Part 3 – 1 or an unfair dismissal action commenced under Part 3 – 2 (and especially if it were alleged the person’s dismissal was not a genuine redundancy as defined). Alternatively, it may be that because of the provisions of s.50, civil remedy action is taken by one of the persons listed in s.593(2).

[55] Importantly an employee has a right to take action in relation to performance of their rights after their redundancy has taken effect as well. To put that in perspective, a redundant employee – even one to whom the statutory scale of redundancy pay applies – may at a later time contest such things as the former employer’s severance pay calculation or may claim their redundancy was not a genuine redundancy or that their selection for redundancy was for a discriminatory purpose or breached the general protections provisions for other reasons.

[56] Those post-employment rights are not excluded by the Agreement if there has been agreement reached on severance pay in “an amount agreed between the Employer and the Employee(s)”, being an amount payable shall not be less than the entitlement under the National Employment Standards”. Equally they are not excluded if the Agreement stems from the processes in the Dispute Settling Procedure.

[57] That which the employer is permitted to do is a function of the Agreement.

[58] The question for determination in these proceedings whether CET is permitted to “impose a further condition (being the execution of a deed of settlement) upon the making of an offer of a voluntary redundancy or the payment of a severance payment under Clause 31 of the Agreement”. The breadth of the question means a precise “yes” or “no” answer is not easily available. The parties may be discussing a voluntary redundancy or one to be brought about through involuntarily means. The terms proposed within the “deed of settlement” may be narrow and innocuous, or breathtakingly broad and likely to seriously impact upon a party’s rights.

[59] While the question for determination uses the term “deed of settlement” the document CET sought Ms von Allmen to agree to is entitled “Separation Agreement” which does not use the term “deed” anywhere in its content.

[60] Whether described as a deed of settlement or otherwise the effect of such document can be to finally determine a parties’ rights, depending on what is contained within it. A deed which maintains award and enterprise agreement obligations may be accepted by the Courts as constraining on the parties, whereas one which has the parties contracting out of those rights may in some circumstances not be accepted. Such a document may be accepted by the Courts as being a genuine compromise to bona fide current and contemplated litigation having regard to the various risks to the parties in that litigation. The backdrop to this is a view that the Act and its predecessors should encourage dispute resolution at the local level while acknowledging that such encouragement should be limited so as not to invite non-compliance by employers with their payment obligations. The Courts cautious approach to the impact of deeds of settlement and related types of document on statutory rights was considered by the Federal Court in the matter of Atkins Freight Services Pty Ltd v Fair Work Ombudsman:   

“49. The FWO’s first contention on the appeal concerning the Deeds was that no effect should be given to them because it is not possible for employers and employees to contract out of the minimum entitlements established by awards. That principle is well established: Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691 at 700; Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406 at [23][35]; Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784, (2000) 99 FCR 95 at [17][25]. The FWO accepted that this general principle does not preclude parties from compromising bona fide current and contemplated litigation. So much was confirmed by the Full Court in Kowalski at [17]:

In these circumstances to view the Heads of Agreement as simply involving some diminution of the appellant’s statutory rights is to misunderstand the agreement reached. Plainly the appellant and the second respondent had litigation outstanding. Plainly enough each party was putting a particular position in that litigation. There were risks to each. True it is that statutory public rights cannot be waived or compromised. However, this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation.” 42 (Citations omitted)

…

“53. The submission made by Atkins Freight that the policy of the WR Act and the FW Act to encourage the resolution at the workplace level of disputes between employers and employees does not warrant any different view. The existence of such a policy may be accepted, having regard to the terms of s 186(6) of the FW Act and Pt 13 of the WR Act. Atkins Freight submitted that this statutory policy supported an understanding that it was the legislative intention that agreements of the kind reflected in the Deeds of Settlement should be enforceable. It is not altogether clear that the dispute resolution procedures contemplated by the WR Act and the FW Act do apply in the case of noncompliance by employers with their payment obligations under awards and enterprise agreements. However, it is not necessary to express a concluded view on that issue. First, it was also the policy of the WR Act and is the policy of the FW Act that employers and employees should comply with their obligations under awards and industrial agreement and that there should not be any contracting out of those obligations other than in confined circumstances. Secondly, there is no evidence that Atkins Freight was invoking any dispute resolution procedure in the Oil Industry Award. In fact, Atkins Freight’s evidence did not even establish that Mr Freckleton and Mr Gedling were still employees of Atkins Freight at the time that they entered into the Deeds of Settlement. That is to say, it is not clear whether these were agreements made at the “workplace level”.

54. In my opinion, the present case has not been shown to be within the Kowalski principle. Instead, the Deeds contravene the principle that it is not open to parties to contract out of award obligations. Clause 8 of the Deeds which contains an acknowledgement that the employees had sought legal advice before executing the Deeds does not require any different conclusion. When the issue concerns the exercise of the discretion, it is to be expected that there would be evidence that that had in fact occurred if reliance is to be placed on such a clause. Atkins Freight led no such evidence.”  43

[61] The Separation Agreement provided by CET to Ms von Allmen does not on its face endeavour to depart from the Agreement’s payment obligations, however it does, at length, seek to relieve the CET from the exercise of other rights Ms von Allmen may have under the Act, without there being any evidence there is either a bona fide controversy between the two on the indicated subjects or that she may have ever contemplated exercising her rights relating to them.

[62] In summary the Separation Agreement proposed by CET for Ms von Allmen would have her agree to these things:

•  Her redundancy is described as a “cessation of employment”. Nowhere in the document are the words “redundant” or “redundancy” or their plurals or derivatives used.

•  At the time of cessation of employment Ms von Allmen would be paid a gross sum of money equal to 41.16 days for accrued long service leave; 100 days as severance pay; and 25 days payment in lieu of notice of termination. These amounts would be subject to the deduction of taxation.

•  Before the date of the Separation Agreement Ms von Allmen must deliver to her employer all confidential documents she holds, the College’s property such as a laptop and keys; and collect her personal effects from the school.

•  Other than permitted disclosures, Ms von Allmen must keep confidential all confidential information of which she has become aware. Disclosure of the Separation Agreement and the settlement it records would only be a permitted disclosure if it was required by law or in order to receive professional advice, or if needed to enforce the Separation Agreement. CET agreed in the hearing that the effect of these terms would include that Ms von Allmen would be unable to speak about what had happened at a union meeting or indicate her concerns on social media; however submitted that such concerns as she had could be raised and dealt with before her redundancy took effect. 44

•  Mutual commitments of non-disparagement are given, which in Ms von Allmen’s case would oblige her to “not make or induce anyone else to make any disparaging statement publicly or otherwise about the College in relation to the cessation, or (sic) employment or the terms of this document and all negotiations leading up to it.”

•  The agreement provides a one-sided release by Ms von Allmen in favour of the College:

“4 RELEASE AND DISCHARGE

(a) The employee releases absolutely and forever discharges the College from all claims and the employee must not make, take or institute any claims against the College.

(b) The employee indemnifies and keeps indemnified the College against any loss, cost, damage or expense (including legal fees) that the College incurs because of any claims by the employee.

(c) The College may use this document, as a bar to any claim by the employee or any matter arising out of this document.”

•  The agreement may be relied upon by the College to enforce the document against Ms von Allmen. After identifying the amount of severance pay under the Separation Agreement is $33,834, being the total amount and not just the proportion above the NES, a claim may be made for liquidated damages in the same amount if Ms von Allmen breaches the Release and Discharge clause:

“2.3 Consequences of breach

The Employee acknowledges and agrees that:

(a) the employer enters into this document and relies upon the employee’s agreement to be bound by these terms;

(b) if the employee or any person on the employee’s behalf breaches clause 4 (Release and Discharge) then the employee must repay the amount of $33,834 on demand;

(c) if the employee fails to repay the amount of $33,834 on demand in accordance with sub-clause 2.3(b), the employer may recover against the employee the settlement sum as liquidated damages. The parties agree that such amount is a genuine pre-estimate of the employer’s loss arising from the employee’s breaches of this document; and

(d) nothing in this clause otherwise affects the parties’ obligations or rights arising under this document.”

•  The term “claim” and its plural and synonyms is defined by the agreement in the following way:

“Claim all claims, demands, complaints, actions, suits, applications, proceedings, liabilities, entitlements to sums of money, damages and costs, either at law or in equity however described and whether in the future or presently within the contemplation of any party, arising directly or indirectly out of the:

(a) cessation;

(b) employment;

but does not include any entitlement under the Superannuation Guarantee (Administration) Act 1992 or any applicable workers compensation legislation including any entitlement to damages resulting from injury to which workers compensation legislation applies.”

[63] The context of Clause 31 includes the matters referred to above, and in particular that it provides a procedure for circumstances of “redundancy situation”, with the procedure aimed at achieving the objectives in Clause 31.2. Aside from the objective of avoiding or delaying redundancies, the objectives include facilitating those declared redundant to obtain alternative employment “within Catholic education, so that they do not suffer financially as a result of being declared redundant”. Further objectives are stated as a desire to ensure consistency and fairness of approach, a desire to have the procedures applied as early as possible, ensuring “appropriate notice and consultation”. The processes within the clause step through consultation and discussions and ever more serious considerations. Once a redundancy is unavoidable, then aside from contemplating redeployment and assistance the clause countenances first voluntary redundancies and then involuntary redundancies. These matters of context show the clause as having application to circumstances of redundancy only.

[64] That is, the clause is not one that deals with dismissals for such things as poor performance, loss of registration or misconduct or resignations, whether real or in name only.

[65] Neither the context or the content of Clause 31 suggests that application of its terms is conditional on reaching agreement on a Separation Agreement or terms or deed of settlement, however described. There are stated conditions within the clause, about matters of consultation, assistance and process, and the reaching of agreement over the amount of severance pay however there are no conditions that would imply that something other than those things have to be done in order for the clause to have effect. On the obverse there is nothing within the clause that would lead to the view that would suggest the obligations and entitlements in the clause may be made conditional on other matters, whether agreed or imposed.

[66] Having observed those matters it is possible the normal negotiations of parties in the lead up to a redundancy, whether genuine or in name only, might lead them to agree on things which are not within the clause. Some of that possibility comes about because the clause invites negotiation, at least over the matter of severance pay. A couple of alternative scenarios might illustrate how negotiations are invited because the clause requires agreement on severance pay:

•  An employee might agree to be made redundant and with a particular amount of severance pay, but only on the condition that the redundancy takes effect at the end of the school year, 9 months away.

•  The employer may have selected another employee for redundancy from the ranks of a number of candidates on the basis that an assessment on multiple factors identifies their work performance has some blemishes and their overall rating is lower than other employees. The employer may be prepared to provide better than usual severance pay in order to have them leave, but only if it can be assured there will be no repercussions after the event.

•  The employer may in another case wish to restructure parts of its employment by introducing teachers with different skills and considers that an existing employee would not be a strong candidate for redeployment. The employer is prepared to provide a long lead time before redundancy takes effect and provide higher than NES severance pay, however wishes to avoid a debate after employment has ended that the person’s dismissal was not a genuine redundancy.

[67] In such cases either the employer or the employee may state to the other they wish to conclude their agreement in a manner that leaves them both contractually bound. There is nothing on the explicit face of Clause 31 that would prevent them agreeing to do so.

[68] The question for determination in this matter though is not whether the parties may be prevented from agreeing their arrangement should be contractually documented, but rather whether the employer as a condition of redundancy may “impose a further condition (being the execution of a deed of settlement) upon the making of an offer of a voluntary redundancy or the payment of a severance payment under clause 31”. In seeking to resolve the question as posed to the Commission it is to be observed that beyond the elements of the clause associated with process or fairness:

•  it is the employer which makes the decision a position is redundant and selects one or more employees to be made redundant;

•  both parties are required to negotiate on the severance payment, with negotiation being from a pre-established floor – the payment must be no lower than the statutorily established scale in s.119.

[69] What follows is a negotiation. The negotiation is required under the term in this Agreement whether the redundancy is voluntary or involuntary.

[70] It would not be inconsistent with the Agreement for the employer to say to an employee “we want your agreement to be made redundant at the end of Term 3 and are prepared to pay severance pay at a rate of twice the NES; however, the terms of our agreement need to be set out in a separation agreement”. Plainly there are benefits in such an offer; the employee gets to agree a departure date sometime in the future, allowing them to better plan financially for their change in circumstance and be more likely to obtain alternative employment. The employee also gains by accepting and receiving a better-than-NES severance payment. Such an employee may be entirely happy to leave on terms which included contracting they would keep confidentiality and not pursue legal action to dispute their dismissal. The employer gains by reducing or eliminating the risks of litigation or adverse publicity about its decision making.

[71] If all these matters were agreed there is nothing within Clause 31 that would suggest what was agreed was contrary to the Agreement. That proposition would likely continue even if the content from the Separation Agreement given to Ms von Allmen, summarised above, were also agreed. If all matters were not agreed, then obviously there is no concluded agreement to be documented and there will be no accord and satisfaction on the subject. If the employer said with reference to the content of the Separation Agreement “take it or leave it”, meaning its contents were not for negotiation, and Ms von Allmen said “leave it”, then plainly there is no agreement for voluntary redundancy and no agreement about the terms of an involuntary redundancy either. This would be because Ms von Allmen would not have accepted a condition put forward by the CET, namely that acceptance of its offer for severance pay was conditional upon entering into its drafted Separation Agreement, the contents of which were not for negotiation.

[72] How close this example is to Ms von Allmen and the CET’s situation is not known. I do not have information before me about the concerns of either about the Separation Agreement’s contents.

[73] What is known though is that accord, and satisfaction has not been reached over Ms von Allmen’s voluntary redundancy.

[74] The opportunity to negotiate the terms of a redundancy arise because of the unique content of the Agreement’s Clause 31.5: “Severance payment … shall be an amount agreed between the Employer and the Employee(s)”. If there is an impasse in the scenario referred to above, then the direction to be taken by the employer, in this case CET, is not to be easily predicted. Amongst alternatives, it could raise its severance pay offer to obtain agreement to its terms which include a mutually agreed departure date and the signing of a separation agreement; or it might reduce the severance payment offer to the amount prescribed by the NES and have the employee leave on a date of its choosing and without a Separation Agreement.

[75] How the parties in such a situation resolve such negotiating tension, or even whether they able to, is not the subject of this decision.

[76] If they are unable to resolve the matter, it would appear the only recourse for either party is to avail themselves of the Agreement’s Dispute Settling Procedure in Clause 7. Clause 31.5 provides that in the event of no agreement being reached on the subject of severance payment “the matter may be resolved pursuant to the Dispute Settling Procedure in this Agreement”. Clause 7 provides for a stepped discussion and resolution process and then an opportunity for reference of an unresolved matter to the Commission in the following terms:

“7.3 Final Reference

Should the foregoing steps fail to resolve the issue within a reasonable time, the matter(s) in dispute shall be referred by the Employer, the Union or the employee party to the dispute to the Fair Work Commission for conciliation and arbitration, whose decision will bind all parties to the dispute.”

[77] Where such a reference takes the parties is an open question given that the matter of severance pay under the Agreement is also an open matter.

[78] The IEU argues that in seeking to impose a condition for redundancy that there be a deed or separation agreement, the CET endeavours to rewrite the Agreement “to import new words which are not necessary and, in fact, contradict the plain meaning of the clause”, submitting there “is no evidence of any mutual intention to permit the restriction of rights under the clause in any way, let alone “in any such way as may be determined by the employer in any deed it may require at any time” which, in effect, is what the Respondent asks the Commission to find”. 45 For its part, the CET argue it is the IEU which is “seeking to rewrite the clause by ignoring the industrial context (of both the origin of the clause and the subsequent application) that is critical to understanding and applying the clause”.46 The “industrial context” referred to by the CET is that the drafters of the Agreement were practical people:

“Being of a practical bent of mind and more concerned with expressing an intention in ways likely to have been understood in the context of their industrial relations environment than in legal niceties or jargon, it is clear from a reading of clause 31 that the drafters intended to set out the voluntary redundancy process up to negotiation of the amount and that there was no intention to bar the parties from entering into a Deed or any other form of agreement.” 47

[79] There is no evidence before the Commission about the formation of the Agreement; of whether the drafters were of a practical bent or ridden in legal niceties; or what any of them may have hoped their words may have meant.

[80] The parties referred to the reasoning by the Full Bench in the matter of Catholic Regional College Sydenham v Independent Education Union of Australia 48 (Sydenham). The dispute in that matter involved the meaning of a disciplinary clause which enabled concerns about an employee’s conduct or performance to be raised with them in discussions with their employer. If the discussions did not resolve the matter, then “the employer may initiate Due Process as outlined below”. A dispute arose about whether in resolving the matter before the tribunal at first instance the member could have regard to the context of the enterprise agreement as a whole and “the ‘custom and practice’ in the Catholic School education sector prior to the making of the Agreement”.49 It was contended “that the Commissioner erred by not starting with the words of the Agreement, instead resorting to the history of the clause as an aid to interpretation, completely reversing the ordinary approach to the construction of an agreement” and that there was error in “imposing as a test whether there was evidence of any mutual intention to alter the effect of previous instruments, rather than assess evidence as to whether there was a mutual intention to reflect that past history in the current Agreement”.50 For the purposes of context it is noted the decision at first instance considered whether the term “Due Process” when considered against the background of industrial instruments since 1994 was a compulsory step or one that may be taken.51 After allowing the appeal and upon rehearing, the Full Bench found the term was one that provided options to an employer with residual concerns.52 The construction favoured by the Full Bench was derived from the language of the term, without regard to its history, finding there was no evidence of any mutual accepted intention in relation to the disputed clause.53

[81] In this matter, the IEU argued that Sydenham meant that where an agreement provides for a matter to be dealt with in a particular way, it is not open to the employer to do something else, 54 with the clause providing a code with which the parties must comply.55 In turn CET argued that Sydneham would have relevance to this matter if “the redundancy process proceeded beyond Step 1 as it held that an employer was bound to follow ‘Due Process’ under its enterprise agreement when it chose to commence such a process. However, the parties were still negotiating a voluntary redundancy and were still at Step 1 which had no such prescriptive clauses or process”.56

[82] For the purposes of completeness, I am not persuaded by the CET’s reasoning set out above that this matter has not progressed beyond Step 1. While this decision does not deal with the extent of compliance with the minutiae of Clause 31 it has to be noted there are whole swathes of obligations that seem to either have not been complied with at all or dealt with through some entirely different process, perhaps for reason of convenience to the parties. Irrespective, to suggest the extent of the parties’ progression so far has been only to Step 1 is not consistent with the events that have taken place.

[83] In any event Sydneham has limited relevance to the determination of this matter. While the IEU argued that the decision makes it clear that where a process is provided by an agreement it is not then open to the employer to do something else, 57 the actual reasoning in the decision is more nuanced, and especially in not favouring what was argued by the employer Appellant that “an employer may engage in some unidentified general process, notwithstanding the specific process of “Due Process” being provided”.58 The Full Bench found the Appellant’s submission extended beyond initiating “Due Process” and that:

“[43] We find that the better construction of clause 11.1.2, and one that gives effect to its evident purpose in the context of the relevant industry and industrial relations environment, is that it provides an employer who still has concerns about the conduct and performance of an employee, following the completion of the discussions required in clause 11.1.1, with the option to choose to take no further steps in relation to those concerns or to take further steps, in which case they are required to initiate and apply the “Due Process” set out in clauses 11.2-11.5, rather than take any unspecified steps to address those concerns. It is apparent from the way in which the clause operates that it is not designed to be used in cases of serious misconduct, as defined in clause 25.2 of the Agreement. This was conceded by both parties in the proceedings before Commissioner Roe. 59 Such a construction does not require all performance or conduct defects not amounting to serious misconduct to go through “Due Process” because an employer, having ventilated its concerns during the clause 11.1.1 discussions, may choose to take no further action, rather than initiate “Due Process”. However, if an employer chooses to take further steps they are required by clause 11.1.2 to initiate and apply the “Due Process” set out in clauses 11.2-11.5 of the Agreement.”60

[84] I note as well that the Full Bench in DL Employment Pty Ltd v Australian Manufacturing Workers' Union has expressed a reluctance to imply terms into an enterprise agreement. The matter before the Full Bench in that case included an invitation to imply terms from relevant contracts of employment using common tests for the implication of contractual terms. In doing so, it relied upon the Full Court’s explanation that an enterprise agreement “is an agreement in name only” and has more of a “legislative character”. 61

[85] Consideration of the foregoing matters reinforces that a precise “yes” or “no” answer to the question for determination is problematic. For the reasoning set out, the answer is most certainly not “yes” since the question extends to the employer’s conduct both in respect of voluntary and involuntary redundancies.

[86] The CET is the decision maker in respect of involuntary redundancies and it not able to require that the decision be subject to a deed, however described. It may ask for one, and it may achieve agreement both on the subject and the terms of the document; however, it may not be imposed. Clause 31.5 requires severance pay to be “an amount agreed between the Employer and the Employee(s)”. A refusal by an employee being made redundant involuntarily to accede to their employer’s request to negotiate a Separation Agreement and its terms may be contrary to the employee’s financial interests when they find the employer reduces its severance pay offer in the absence of a deed or separation agreement.

[87] In the case of a voluntary redundancy, there appears to be no impediment to the employer making a deed or separation agreement a condition of offer and acceptance of the matters in debate. However, the employer must face up to the fact that if it overplays its hand with the drafting of the document it may well not have any volunteers, no matter what is offered in the way of severance pay. To be clear; the content of a separation agreement is negotiable. If its terms are not agreed, there can be no voluntary redundancy (in the sense of one for which interest has been expressed and terms for departure agreed). In such eventuality CET’s only available avenue is to pursue an involuntary redundancy. If, in pursuit of that option, there is no agreement over severance pay, the matter may the subject of a dispute to be progressed under Clause 7.

CONCLUSION

[88] For the reasons set out above, the Question for Determination to be addressed in this decision is answered in the following manner:

Q: In circumstances where the Employer has identified a potential redundancy situation is the employer, under the terms of the Tasmanian Catholic Education Single-Enterprise Agreement 2018, permitted to impose a further condition (being the execution of a deed of settlement) upon the making of an offer of a voluntary redundancy or the payment of a severance payment under clause 31 of the Agreement?

A: No. A deed of settlement may not be imposed as a condition of redundancy, however there is nothing to prevent such document, however described being negotiated and agreed between an employer and employee.

[89] The dispute is determined accordingly.

COMMISSIONER

Appearances:

Mr D. Matson for the Applicant

Mr D. Dilger for the Respondent

Hearing details:

Melbourne (via video conference);
3 March;
2021.

Printed by authority of the Commonwealth Government Printer

<PR728504>

ATTACHMENT

31 REDUNDANCY

31.1 Potential Redundancy Situation

A potential redundancy situation exists where any Employee could be disadvantaged in his or her current employment contract as a result of changes in funding, curriculum, enrolment, arrangement of work, or policy/administration changes.

31.2 Objectives

The objectives of these Procedures and Guidelines, in order are to:

•  Avoid redundancies in Catholic schools in Tasmania;

•  Delay redundancies where this is not possible;

•  Facilitate those declared redundant to find other suitable employment within Catholic education, so that they do not suffer financially as a result of being declared redundant;

•  Ensure a consistent and fair approach to be applied to all in Catholic education;

•  Ensure that that these procedures be applied as early as possible; and

•  Ensure that there is appropriate notice and consultation.

31.3 Timelines

The timelines are vital and the parties are committed to providing as much information as possible as early as possible. If a redundancy(ies) is expected to take effect from the beginning of a school year, and the information upon which a potential redundancy is identified is available early in the year the process must commence as early as possible in Term 3 and any redundancies be determined by early in Term 4.

31.4 Procedures

Step 1 - The Redundancy Identification and Investigating Ways of Avoiding Redundancy

a) As soon as a potential redundancy situation is identified, the Employer/Principal shall communicate this fact in writing to each member of staff in the classification(s) of Employees affected, with an outline of the reasons for the potential redundancy(ies) (see Attachment 1}. A copy must be placed on the staff notice board.

b) The notification must attach an information pro forma (see Attachment 2) with the information completed.

c) A copy of this notification shall be forwarded at the same time to the Executive Director of Catholic Education Tasmania and the Union.

d) A copy of these procedures must then be given to each staff member.

e) The Employer/Principal must start to investigate alternatives including:

•  What efforts can be made to re-deploy existing staff within the school;

•  Staffing requirements in all other schools under the authority of the present Employer;

•  The possibilities of employment of staff in neighbouring schools;

•  Any additional funding that may be available e.g. additional government funding, parish support;

•  Measures to overcome short-term overstaffing;

•  Retraining possibilities;

•  Possible leave arrangements, e.g. Leave Without Pay, Long Service Leave, Parental Leave;

•  Applications by staff indicating that they are willing to make a voluntary offer to be declared redundant.

f) While the Employer must offer voluntary redundancy(ies) at this step, the Employer is not obliged to accept any particular expression of interest in a voluntary redundancy.

Step 2-The Redundancy Document

If the potential redundancy is not solved, the Employer will send either:

a) A notification that the situation has been resolved by the taking of a voluntary redundancy(ies) and/or 'leave without pay'; or

b) A redundancy document to all the parties mentioned above. The redundancy document must include the following information:

•  The Reasons for the potential redundancy(ies) including any relevant information such as funding, staffing, curriculum change and enrolments (past, present and projected);

•  The Number and Categories of Staff likely to be affected and details of their employment;

•  Alternatives Investigated in Step 1; and

•  The steps the Employer proposes to implement the redundancy(ies)

Step 3 -The Redundancy Meeting

a) A meeting will be held between the IEU and the Employer to consider the Employer's/Principal's redundancy proposal. The parties will seek to agree on the criteria to be applied and the content of the redundancy document.

b) If agreement is reached on both matters, the Employer/Principal shall indicate to the persons at the meeting the name/s of the person/s to be declared redundant. The person/s so named shall be informed within a week of the meeting by the Employer/Principal.

c) If agreement is not reached, a second meeting will be held to attempt to resolve the disagreement. If agreement still cannot be reached the Employer shall inform the IEU of the action that the Employer intends to take.

d) In deciding who is to be declared redundant, the parties must consider

•  the needs of the school;

•  the work currently being performed which will no longer need to be performed; and

•  those staff who could not be replaced by any member of the existing staff, having regard to the programs planned for the period after the redundancy.

e) The Employer/Principal will identify the factors (from those below) which have been considered in determining the staff member(s) to be declared redundant and inform the meeting of any priority that has been applied to these factors:

•  Current Contract of Employment

•  Current Duties

•  Curriculum Programs

•  Experience

•  Funding Base for Staff Member

•  Graduate Status

•  Length of Service

•  Pastoral Considerations

•  Previous Redundancy History

•  Qualifications

•  Specialist Expertise

•  Staff member's willingness to make a voluntary offer to be declared

•  redundant.

f) Factors which cannot be used include whether the person is a Union Representative or member, the person's sex, marital status, age, pregnancy, lifestyle or religion.

Step 4- Notifying the Redundancy Result

a) Within two weeks of the meeting(s) in Step 3, the Employer must notify the IEU in writing of the details of the Employer's action following Step 3.

b) The Employer must provide a letter to each person proposed to be made redundant which must afford the Employee an opportunity to provide any reasons why they believe that his/her employment should not be terminated. The letter shall outline the forms of assistance available to them and, where possible, offer the option of Leave Without Pay for the following school year (or such other period as is possible).

c) Should an Employee provide a reason why his/her employment should not be terminated as a consequence of redundancy, which is acceptable to the Employer, then the process should revert to Step 3;

d) Should an Employee elect to take up an offer of Leave Without Pay:

•  The date of termination will be deferred accordingly;

•  The Employee shall be entitled to apply for and then be given absolute preference for any position which becomes available in the school during the period of leave, for which the Employee has appropriate skills and qualifications; and

•  If redundancy is not avoided, the Employer will confirm the termination not less than one month prior to the date of effect.

e) The Employer must provide a letter to the IEU which advises of the ultimate outcome of the matter.

Step 5 - Assistance in Re-Employment

The Employer must offer at least the following assistance to any person declared redundant:

a) Assistance with locating openings and securing employment in other Catholic schools;

b) Regular meetings with the staff member/s to discuss pastoral and professional issues; and

c) Time release to the staff member/s declared redundant to attend interviews.

31.5 Severance Pay

Severance payment in the case of redundancy shall be an amount agreed between the Employer and the Employee(s) who may be represented by the Union in negotiations. In the event of no agreement being reached, the matter may be resolved pursuant to the Dispute Settling Procedure in this Agreement. The amount payable shall not be less than the entitlement under the National Employment Standards.

 1   AE503121.

 2   Exhibit A1, Witness Statement of Jeremy Oliver, 29 January 2021, Attachment 1, Guilford Young College, Library & Information Services Review, Executive Summary & Recommendations.

 3   Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, 17 December 2020, item 2.1 (4)

 4   Exhibit A1, Witness Statement of Jeremy Oliver, 29 January 2021, [11] – [16.]

 5   Ibid, [12].

 6   Exhibit R1, Witness Statement of Craig Deayton, 12 February 2021, [11] – [14].

 7   Exhibit A1, Witness Statement of Jeremy Oliver, 29 January 2021, [13].

 8   Ibid, [14].

 9   Ibid, [16].

 10   Ibid, [17].

 11   Ibid, [20].

 12   Exhibit R2, Witness Statement of Richard Heyward, 12 February 2021, Annexure 1.

 13   Exhibit R2, Witness Statement of Richard Heyward, 12 February 2021, [15] – [18].

 14   Ibid, [19]

 15   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30] – [32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, [25].

 16   Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019, [52].

 17   CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

 18   SDA v Big W Discount Department Stores PR924554, [23].

 19   AMWU v Holden Limited PR940366, [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523, [23].

 20   Ibid, [47].

 21   MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

 22   MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523, [21] - [22].

 23   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884, [20].

 24   Fair Work Act 2009, s.595.

 25   The Commission must not make a decision that is inconsistent with the Fair Work Act 2009, or a fair work instrument that applies to the parties.

 26   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97, [31] - [32].

 27 [2018] FCAFC 131, [197], (2018) 280 IR 191, [197].

 28   [2017] FWCFB 3005, [114]; see also United Firefighters Union of Australia v Emergency Services Telecommunications Authority[2017] FWCFB 4537, [35].

 29   Ibid, [114].

 30   [2017] FWCFB 4537.

 31   Fair Work Act 2009, Part 2 – 2, Division 11.

 32   Ibid, ss.55(1) – (2).

 33   Ibid, s.55(4).

 34   Ibid, s.55(5).

 35   Ibid, s.56.

 36   Appeal Book at p. 231.

 37   Supplementary Explanatory Memorandum to the Fair Work Bill 2008 at paras 24–25.

 38   Ibid, at para 28.

 39   Maritime Union of Australia, The v FBIS International Protective Services (Aust) Pty Ltd[2014] FWCFB 6737; with the relevant findings referred to not disturbed on judicial review before the Full Court in FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90, which instead considered whether the employer had obtained other acceptable employment for employees, and the meaning of “obtains”.

 40   Hobson Bay City Council T/A Hobson Bay City Council v Karen Loft[2019] FWC 5320, [42].

 41   See Macquarie Dictionary Online; supplement (n) – “something added to complete a thing, supply a deficiency, or reinforce or extend a whole”.

 42   Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18.

 43 [2017] FCA 1134, [49] – [54], per White J., with reference to Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18, [17].

 44   Transcript, PN 332 – 334.

 45   Exhibit A3, Applicant’s Outline of Submissions, 29 January 2021, [31].

 46   Exhibit R3, Respondent’s Outline of Submissions, 12 February 2021, [8(3)(i)].

 47   Ibid.

 48   [2011] FWAFB 2784, (2011) 209 IR 121.

 49   Ibid, [11].

 50 Ibid, [11] – [12].

 51 Ibid, [31] – [33].

 52   Ibid, [43].

 53   Ibid, [42].

 54   Exhibit A3, Applicant’s Outline of Submissions, 29 January 2021, [4].

 55   Transcript, PN 277.

 56   Exhibit R3, Respondent’s Outline of Submissions, 12 February 2021, [26].

 57   Transcript, PN 283.

 58   [2011] FWAFB 2784, (2011) 209 IR 121, [41(iii)].

 59   [2011] FWA 1003, at para 21.

 60   Ibid.

 61   DL Employment Pty Ltd v Australian Manufacturing Workers' Union[2014] FWCFB 7946, [81]; with reference to Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84.