James Dargaville v Newcastle Port Corporation T/A Port Authority of New South Wales
[2023] FWC 191
•20 JANUARY 2023
| [2023] FWC 191 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
James Dargaville
v
Newcastle Port Corporation T/A Port Authority of New South Wales
(C2022/2602)
| COMMISSIONER P RYAN | SYDNEY, 20 JANUARY 2023 |
Dispute about a matter arising under the enterprise agreement – dispute determined
Introduction
This decision concerns an application (Application) by Mr James Dargaville (Applicant) pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Newcastle Port Corporation T/A Port Authority of New South Wales (Respondent).
The Applicant is employed by the Respondent as a marine pilot pursuant to the Port Authority of New South Wales Sydney Marine Pilots Enterprise Agreement 2019-2023 (Agreement) which came into operation from 30 July 2019[1] and has a nominal expiry date of 30 June 2023.[2]
The Application was made in accordance with clause 2.7 of the Agreement. Clause 2.7 of the Agreement contains a dispute resolution procedure which confers jurisdiction on the Commission to resolve disputes by conciliation and/or arbitration.
The issue in dispute involves the proper construction of clause 4.2.5 of the Agreement and whether the Applicant is entitled to be paid extended sick leave for the period of 8 January 2022 to 3 March 2022.
The matter was unable to be resolved at conciliation and proceeded to arbitration. There is no dispute between the parties as to jurisdiction, and I am satisfied on the materials before me that I have jurisdiction to arbitrate the dispute.
The parties agreed on the following questions to be determined by arbitration:
1. Is the Applicant’s injury a “serious long term” injury for the purpose of clause 4.2.5(a) of the Agreement?
2. Does the Harbour Master have a discretion to determine whether an injury is a “serious long term or terminal illness or injury”?
3. Does the Harbour Master have the discretion to refuse to grant additional leave to a Marine Pilot who produces medical evidence that they are suffering a serious long term or terminal illness or injury?
The matter was heard before me on 11 August 2022.
I exercised my discretion to grant permission to the parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2)(a) and (c) of the FW Act. The Applicant was represented by Mr I Latham. The Respondent was represented by Ms R Gall.
Witness statements were tendered from the following persons, who also gave evidence at the hearing:
·The Applicant (Exhibits A1 and A2); and
·Mr Myron Fernandes, the Respondent’s Harbour Master for Port Jackson (Sydney Harbour) and Port Botany (Exhibit R1).
Background and Facts
The Respondent is a statutory state-owned corporation established under the State Owned Corporations Act 1989 (NSW) and the Ports and Maritime Administration Act 1995 (NSW) and is responsible for the safe and efficient operation of commercial marine functions in the following ports: Sydney Harbour, Port Botany, Newcastle Harbour, Port Kembla, Port of Eden, and Port of Yamba.[3]
On 26 October 1995, the Applicant commenced employment with the Respondent as a marine pilot[4], and is classified as an unlimited marine pilot.[5] The Applicant reports to Mr Fernandes, the Respondent’s Harbour Master for Sydney Harbour and Port Botany.[6]
The primary responsibility of a marine pilot is to safely and efficiently conduct the passage of commercial vessels into ports (known as an inbound transfer), or out of ports (known as an outbound transfer).[7] Marine pilots are also required to make reports about incidents, perform the role of Duty Pilot on a rotational basis – which involves compiling and/or amending the shipping schedule, undertake training, complete ad hoc projects, and carry out incidental administrative duties.[8]
Marine pilots are required to comply with the New South Wales Marine Pilotage Code (Pilotage Code). Volume Two of the Pilotage Code describes the role of a marine pilot as follows:
Pilotage is a highly complex task, which involves rapidly integrating extensive knowledge of a diverse range of ships and navigation in a variable environment. It may also involve considerable physical exertion for embarking and disembarking ships. This job is conducted in an internationally dynamic work environment of changes in ships and cargoes as well as extremes in weather conditions due to climate change.
…
Marine pilots are required to board and disembark from ships from the deck of small high-powered launches often in rough seas. This involves climbing/descending high ladders to access vessels. Alternatively, in some ports marine pilots access vessels via helicopters landing on the vessel or sometimes winching down onto the deck. These activities are described in more detail in Table 5. [9]
Table 5 in Volume Two of the Pilotage Code sets out the inherent requirements for embarking and disembarking a vessel and states:
Overview of requirements and environment
Boarding arrangements at sea vary between ports, with the majority occurring via pilot cutter while the ship is in motion.
This makes the task of embarking and disembarking ships at sea hazardous and demanding. It requires getting onto/off a ladder from/onto a cutter, climbing a long vertical ladder, sometimes in adverse weather with the ship and cutter rolling at different rates, and at night with reduced visibility. The pilot is not roped to a safety harness.
The task may be performed up to 4 times in a 10-hour shift, depending on the port and duration of pilotage. Sometimes the 9m long ladder leads to a lowered accommodation ladder, which the pilot also climbs in order to board the vessel.
In addition some ships do not have lifts and the equivalent of up to seven storeys of steep stairs may need to be climbed to the bridge.
Alternative boarding arrangements via helicopter are outlined on page 56.
Pilots have to undertake training and comply with port procedures in using pilot ladders. These cover checking the integrity of the ladder, its positioning in relation to the accommodation ladder, the positioning of the cutter, procedures for embarking and disembarking vessels, the role of the crewman. The interacting roles of pilot and cutter crew are specified.
…
Ladder climbing technique
The technique of ladder ascending and descending varies greatly between pilots. The man-ropes are often used to gain a foothold. Some pilots use these for the entire ascent or descent but others use the side ropes on the ladder.
Critical judgement is needed in a rough sea regarding timing for gaining/leaving the ladder from/to the cutter. There is potential for the pilot’s leg to be jammed between the cutter and the ship, for the pilot to land violently on the deck or fall overboard. Ladder climbing is the major cause of injuries to pilots.[10]
The Applicant described his duties, which was not disputed, as follows:
5. A Marine Pilot travels about 4 miles off the coast of either Port Botany or Sydney Heads in a small launch. The Pilot boards a ship climbing a rope ladder up to nine metres in length. The Pilot carries out an information exchange with the Ships Master and assumes the “conduct” of the Navigation of the vessel. The Pilot essentially has control of the vessel and manages the arrival or departure passages and the berthing or unberthing manoeuvres and any other communications etc. pertaining to the Pilotage. It is a position of great responsibility.[11]
On 11 November 2021, the Applicant sustained a right femoral and lesser trochanteric fracture.[12]
On 12 November 2021, the Applicant underwent surgery which involved the insertion of a 350mm gamma nail (metal pin) into the cavity of the femur, secured by two metal pins that were drilled laterally through the femur bone at the top and bottom of the gamma nail.[13]
Following the surgery, the Applicant underwent intensive inpatient rehabilitation from 16 November 2021 to 27 November 2021. The Applicant continued to undergo further rehabilitation as an outpatient following his discharge from hospital which continued until early March 2022.[14] The Applicant had to ‘relearn’ how to walk.[15]
The Applicant was initially certified unfit for work until 3 February 2022.[16]
On 7 January 2022, the Applicant sent a copy of a medical report to Mr Fernandes. The medical report, dated 4 January 2022, stated:
… As you are aware, [the Applicant] sustained a right femoral and lesser trochanteric fracture on 12/11/21 and underwent surgical fixation with a gamma nail at the Northern Beaches hospital by orthopaedic surgeon, Dr Julian Yu. [The Applicant] subsequently underwent intensive inpatient rehabilitation at Arcadia (16/11/21-27/11/21) under the care of my colleague, Dr Mark Haran, and has been participating in our Day Only Rehabilitation program since being discharged home.
Given the extent of his injury, [the Applicant] has made considerable progress to date and his most recent x-ray on 22/12/21 shows that the fracture is healing well. I am aware of the physical requirements of [the Applicant’s] work as a Marine pilot and believe that he has good prospects of returning to his preinjury duties given enough time and rehabilitation. We will have a better idea of the timeframe of this after he has his repeat x-ray and orthopaedic review on 3/2/22. [17]
For the period up to 7 January 2022, the Applicant used all his accrued personal leave. From 8 January 2022, the Respondent began to debit the Applicant’s accrued long service leave without his knowledge or consulting with him prior to doing so.[18]
On 4 February 2022, and following a review by his surgeon, the Applicant was certified unfit for work until 4 March 2022.[19]
On 22 February 2022, the Applicant met with Mr Fernandes at the Respondent’s office at Port Botany. During this meeting, the following exchange took place:
The Applicant: “I discovered that my long service leave has been deducted since 8 January 2022 as my sick leave entitlement has been fully utilised. My long service leave should not be deducted without my permission. I should be getting extended sick leave.”
Mr Fernandes: “Extended sick leave might be available when an employee suffers a serious long term or terminal injury or illness. I do not believe that your injury qualifies under the definition of serious long term or terminal injury or illness.”[20]
Mr Fernandes stated he formed his view that the Applicant did not sustain a serious long term or terminal illness or injury based on the material provided by the Applicant prior to 22 February 2022, which stated the Applicant had reasonable prospects of returning to work.[21]
Mr Fernandes confirmed that he did not know what a right femoral and lesser trochanteric fracture was beyond it being a fracture and that he did not know what surgical fixation with a gamma nail involved.[22] Mr Fernandes did not request the Applicant to provide (or prevent the provision of) any further medical evidence, nor did he require the Applicant to undergo any further medical examination.[23]
Mr Fernandes further stated that he believed he had the discretion under clause 4.2.5 of the Agreement to determine whether the Applicant had sustained a serious long term or terminal illness or injury.[24]
Following his meeting with the Applicant on 22 February 2022, Mr Fernandes confirmed his view with the Respondent’s people and culture team.[25]
On 4 March 2022, the Applicant returned to work, but was certified unfit for pilot ladder transfer work for the period of 4 March 2022 until 1 April 2022. During this period, the Applicant performed the role of Duty Pilot as well as other administrative tasks.[26]
At some stage in March 2022, the Applicant and Mr Fernandes had a further discussion during which the following exchange took place:
The Applicant: “I should be getting extended sick leave. I have a serious injury.”
Mr Fernandes: “I take a different view to yours and this has been explained by me before”.
The Applicant: You should know as a courtesy I will probably escalate this to the Chief Operating Officer.”[27]
Further discussions between the Applicant (or the Marine Pilots Representatives on his behalf) and the Respondent took place throughout March 2022 but did not resolve the matter.[28]
On 5 April 2022, the Applicant was certified fit for duty as a marine pilot subject to the following conditions:
· Swell height less than 3.5 metres;
· Two ships per shift;
· Inwards ladders (inbound transfers) only.[29]
On 14 April 2022, the Applicant sent a ‘letter of demand’ to the Respondent’s people and culture team further agitating his request for extended sick leave.[30]
On 6 June 2022, the Applicant was certified fit for duty as a marine pilot subject to the following conditions:
· Swell height less than 3.5 metres;
· Two ships per shift.[31]
As at the date of hearing, the Applicant continued to be subject to medical conditions (or restrictions) regarding the performance of his duties.[32]
Clause 4.2.5 of the Agreement
Clause 4.2.5 of the Agreement states:
4.2.5 Extended Sick Leave
(a) Subject to the approval of the Harbour Master, upon the production of medical evidence, a Marine Pilot suffering serious long term or terminal illness or injury will be granted additional leave of up to 180 days or as in the case of a pre-existing condition as noted by the insurer, may be granted sick leave up to 356 days.
(b) Documented medical evidence and / or a medical examination by a medical practitioner will be necessary where required by Port Authority.
(c) Marine Pilots who have no prospect of a return to work and who are subject to a waiting period in excess of 180 days for salary continuance insurance coverage due to a pre-existing will be paid sick leave to the maximum of 75% of base salary, plus 10% superannuation, plus 100% of the Utility Allowance for the second six months on sick leave.
Summary of the Applicant’s Submissions
The Applicant submitted that the matters in dispute are whether the Applicant suffered a “serious long term or terminal illness or injury” and whether the Harbour Master appropriately exercised his discretion.
The Applicant accepted that “serious long term or terminal illness or injury” is a composite phrase and is to be interpreted as a whole by reference to its ordinary meaning in accordance with the principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[33] (Berri).
The Applicant submitted that it is clear that he suffered a serious long term injury when one considers the nature of the injury, the surgery required, and the period of time that he was unfit for work or subject to restricted duties.
The Applicant accepted that clause 4.2.5(a) of the Agreement provides discretion to the Harbour Master but submitted that discretion must be in relation to production of medical evidence. In support of this submission, the Applicant submitted the requirement for the production of medical evidence immediately follows the reference to approval, and clause 4.2.5(b) provides a mechanism for additional medical evidence. Furthermore, the Applicant submitted that the granting of additional leave does not appear to be subject to a discretion because of the use of the obligatory word “will”.
In practical terms, the Applicant submitted the way in which clauses 4.2.5(a) and (b) interact are that if a marine pilot makes a request for extended sick leave, and the Harbour Master considers the medical evidence is not sufficient to allow for an approval, the Harbour Master has the power under clause 4.2.5(b) to request further medical evidence and/or a medical examination.
The Applicant submitted that Mr Fernandes erred in assessing whether the Applicant had good prospects of returning to work, rather than whether the Applicant had a serious long term injury.
The Applicant submitted that the grant of an additional period of leave of up to 180 days must mean that a serious long term injury could occur where the period of extended sick leave is less than 180 days as well as more than 180 days.
In concluding, the Applicant submitted that he did have a serious long term injury, that any discretion only goes to the seeking of further medical evidence or requesting a medical examination, and that there is no discretion available to the Harbour Master to reject an application once the Harbour Master is of the view that there is a serious long term injury. The Applicant submitted that such a reading of the clause would be counter intuitive and contrary to the purpose of the clause.
Summary of the Respondent’s Submissions
The Respondent submitted that the relevant issues in considering the proper construction of clause 4.2.5(a) of the Agreement are the meaning of “serious long term or terminal illness or injury” and the discretion conferred on the Harbour Master by reason that the grant of additional leave is subject to his ‘approval’.
With reference to relevant authorities[34], the Respondent submitted that the interpretation of an enterprise agreement is directed to the ascertainment of the actual and true meaning which is to be determined objectively 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.
The Respondent’s primary position is that the Applicant did not suffer “serious long term or terminal illness or injury” and therefore, clause 4.2.5 of the Agreement is not engaged.
The Respondent submitted that “serious long term or terminal” is a composite expression that qualifies the nature of the illness or injury and must be construed as a whole.
The Respondent submitted that the term is not expressed to be ‘serious short term’ or ‘serious medium term’ and with reference to the Macquarie Dictionary (Online) submitted that ‘serious long term’ means extending over a period of time of considerable length; maturing over several years or more.
The Respondent submitted that a reasonable person would understand that to be ‘serious long term’, the illness or injury is one which would have a significant adverse impact on the quality of life for a period which is in the upper end of the range of time and is in the nature of years or at least half a year.
The Respondent submitted that while the Applicant’s injury could be initially regarded as serious, that seriousness was momentary or short term, or at best medium term, taking into consideration that the Applicant was recovering well within two months, was back at work within three and a half months, albeit on modified duties and was effectively performing his role in less than five months.
As to discretion, the Respondent submitted that the proper construction of clause 4.2.5(a) is that the Harbour Master has a discretion to determine whether a marine pilot is suffering from “serious long term or terminal illness or injury” and whether to approve the granting of additional leave for three reasons.
First, clause 4.2.5(a) is prefaced with the words “[s]ubject to the approval of the Harbour Master”. The Respondent submitted that the textual context indicates that all aspects of the clause are subject to that approval, other than the production of medical evidence, which is carved out.
Second, the use of the word “granted” before “additional leave” provides further textual support that the Harbour Master give permission before the “additional leave” can be taken, which can be contrasted with other types of leave to which marine pilots are ‘entitled’.
Third, the use of the word “will” is not directed at mandating the granting of additional leave, rather once the Harbour Master has exercised discretion and approved the grant of additional leave, that leave cannot be refused by the Respondent.
The Respondent submitted that the Harbour Master’s refusal to approve the Applicant’s request for extended sick leave was not done capriciously, arbitrarily or unreasonably and was a reasonable view open to him on the medical evidence before him.
The Respondent submitted that if the Commission finds that the approval discretion was not exercised properly, the Commission should refer the matter back to the Harbour Master to re-exercise his approval discretion in accordance with the decision of the Commission.
Principles of construction of enterprise agreements
The principles relevant to the approach that the Commission should take to the construction of enterprise agreements was set out in the decision of a Full Bench of the Commission in Berri as follows:
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.
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.
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.
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.
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.
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.
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.
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
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 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.
In Workpac Pty Ltd v Skene[35], the Full Court of the Federal Court in Skene succinctly restated the principles 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. The interpretation “…turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; 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. 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.”
[references omitted]
I have applied these principles in determining this matter.
Consideration
As stated above, the dispute involves the proper construction of clause 4.2.5(a) of the Agreement. Although the Agreement contains a definitions clause[36], it does not contain a definition of any of the relevant words in clause 4.2.5(a). Therefore, the starting point is to consider the ordinary meaning of the words, having regard to their context and purpose.[37]
It is clear that the purpose of clause 4.2.5 of the Agreement is to provide for an additional period of up to 180 days of sick leave to a marine pilot who is suffering a “serious long term or terminal illness or injury”.
The Applicant suffered a right femoral and lesser trochanteric fracture. Following the insertion and fixation of a gamma nail, the Applicant underwent intensive rehabilitation and had to relearn how to walk. The Applicant was totally unfit for work for three and a half months, before returning to work on restricted or modified duties. The Applicant continued to be on some form of restricted or modified duties as at the date of hearing, which was almost nine months after he sustained the injury.
While the period in which the Applicant was totally unfit for work was only three and a half months, that is not determinative as to whether the Applicant was ‘suffering’ a serious long term injury. In this respect, I agree with the observation of Marshall J in Crowley v Park Hannifin (Australia) Pty Limited[38] that it is possible that an absence from work is temporary notwithstanding that an employee is suffering from a long term injury. Accordingly, while the maximum amount of extended sick leave available under clause 4.2.5(a) of the Agreement is 180 days, a marine pilot is not required to be absent for a period of at least 180 days in order for the injury or illness to qualify as “serious long term”.
In my view, in considering the plain and ordinary meaning of the relevant words in clause 4.2.5(a) and the context in which they appear, the Applicant was clearly suffering from a serious long term injury.
In relation to the issue of discretion, I do not accept the Respondent’s contention that the Harbour Master has the discretion to determine whether an injury is a “serious long term or terminal illness or injury”, or a general discretion to refuse to grant extended sick leave to a marine pilot who produces medical evidence that they are suffering a serious long term or terminal illness or injury.
While I accept the clause begins with the words, “[s]ubject to the approval of the Harbour Master”, the use of the word “will” as opposed to “may”, which is used elsewhere in the same clause, indicates that the grant of additional leave is mandatory upon the Harbour Master being satisfied that a marine pilot is suffering a serious long term or terminal illness or injury. In this respect, I agree with the Applicant’s submission regarding the interaction between clauses 4.2.5(a) and (b) and that the extent of any discretion is limited to the Harbour Master requesting additional medical evidence and/or requiring a marine pilot to undergo a medical examination.
Furthermore, I agree with the Applicant’s submission that a general discretion to refuse the grant of extended sick leave in circumstances where a marine pilot is suffering a serious long term injury or illness would be counter intuitive and contrary to the purpose of the clause.
Conclusion
In conclusion, the answer to the agreed questions for arbitration are as follows:
1. Is the Applicant’s injury a “serious long term” injury for the purpose of clause 4.2.5(a) of the Agreement?
Yes.
2. Does the Harbour Master have a discretion to determine whether an injury is a “serious long term or terminal illness or injury”?
No.
3. Does the Harbour Master have the discretion to refuse to grant additional leave to a Marine Pilot who produces medical evidence that they are suffering a serious long term or terminal illness or injury?
No.
COMMISSIONER
Appearances:
Mr I Latham of counsel for the Applicant.
Ms R Gall of counsel for the Respondent.
Hearing details:
2022.
Sydney:
11 August.
[1] [2019] FWCA 5120 at [3].
[2] Clause 1.1.2 of the Agreement.
[3] Exhibit R1 [2]-[3].
[4] Ibid at [22].
[5] Appendix A of the Agreement, Transcript at PN324-325.
[6] Exhibit R1 at [23].
[7] Exhibit R1 at [11]-[12].
[8] Ibid at [14].
[9] Ibid at [15], Annexure C at p.124-48.
[10] Ibid at p.124.54-124.55
[11] Exhibit A1 at [5]; Exhibit R1 at [13].
[12] Exhibit A1 at [8], Annexure.
[13] Exhibit A1 at [8]-[9], Annexures B and C.
[14] Exhibit A1 at [13], Annexure C.
[15] Exhibit A1 at [9].
[16] Exhibit A1, Annexure C.
[17] Exhibit A1, Annexure C; Exhibit R1 at [27], Annexure D.
[18] Exhibit A1 at [11].
[19] Exhibit A1, Annexure C.
[20] Exhibit R1 at [33]; Exhibit A1 at [14];
[21] Exhibit R1 at [34]; Transcript at PN198-200; PN211; PN260-262; PN278 and PN281-286.
[22] Transcript at PN240-PN246.
[23] Transcript at PN256-PN257 and PN291.
[24] Transcript at PN259.
[25] Exhibit R1 at [35].
[26] Exhibit R1 at [40], Annexure C; Exhibit A1 at [13].
[27] Exhibit R1 at [37].
[28] Exhibit A1 at [16]-[19].
[29] Exhibit R1 at [46], Annexure M.
[30] Exhibit A1 at [20], Annexure E.
[31] Exhibit R1, Annexure Q.
[32] Transcript at PN410-PN414.
[33] 2017 FWCFB 3005 at [114].
[34] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [66], [70]; Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2021] FCAFC at [31]-[32]; Berri at [114].
[35] [2018] FCAFC 131 at [197].
[36] Appendix A of the Agreement.
[37] Berri at [114].
[38] [2006] FCA 901 at [26].
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