Kimberley Pearn, Katherine Zahrooni v Catholic Schools Parramatta Diocese Ltd - [2023] FWC 3039

[2023] FWC 3039

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Kimberley Pearn, Katherine Zahrooni
v

Catholic Schools Parramatta Diocese Ltd

(C2023/1747)

COMMISSIONER P RYAN

SYDNEY, 20 NOVEMBER 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

INTRODUCTION

This decision concerns an application by Ms Kimberley Pearn and Ms Katherine Zahrooni (Applicants) pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Catholic Schools Parramatta Diocese Limited (Respondent) (Application).

The Applicants are employed by the Respondent as primary school teachers pursuant to the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020 (Agreement) which came into operation from 21 January 2021[1] and has a nominal expiry date of 31 December 2021.[2]

The Agreement covers a range of catholic school employers throughout the Australian Capital Territory and New South Wales.[3]

One of the employers covered is the Catholic Education Office, Diocese of Parramatta (CEDP).[4] On 1 January 2023, there was a transfer of business from CEDP to the Respondent and all CEPD employees were employed by the Respondent. There is no dispute between the parties that the Agreement is a transferable instrument and that it covers the Respondent and the Applicants as transferring employees.[5] Any reference to the “Respondent” in this decision includes a reference to CEDP.

The dispute concerns the portability arrangements in relation to personal/carer’s leave and long service leave as set out in Annexures L and M of the Agreement, and whether those arrangements apply to employees who are re-employed by the same employer.

Clause 43 of the Agreement sets out the dispute resolution procedure and, following compliance with Step 1 set out in clauses 43.2 and 43.3, provides that the dispute (if unresolved) may be referred to the Fair Work Commission (Commission) under Step 2.

Clause 43.5 of Agreement confers jurisdiction on the Commission to resolve disputes by mediation, conciliation or other methods it considers appropriate, and if unsuccessful, by arbitration.

The dispute was unable to be resolved by conciliation and proceeded to arbitration.

In programming the matter for arbitration, the parties agreed on the following questions to be determined:

1. Does Annexure L of the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020 apply where the new employer and the previous employer are the same Participating Employer?

2. Does Annexure M of the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020 apply where the ‘New Employer’ and the ‘Former Employer’ are the same ‘Employer’?

Notwithstanding the agreed questions, the Applicants submitted an additional question to be determined as part of their materials in chief:

3. Are the criteria for defining portability of employment entitlements found in Annexures L and M of the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020 discriminatory within the meaning of section 195 of the Fair Work Act 2009 (Cth)?

The Respondent objected to the additional question on the basis that it was not within the scope of the dispute before Commission and that it should not be considered.[6]

Subject to the issue of the additional question, which I deal with further below, there is no dispute between the parties as to jurisdiction, and I am satisfied on the materials before the Commission that I have jurisdiction to arbitrate the dispute.

The matter was heard on 25 July 2023. I exercised my discretion to grant permission to both parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was represented by Ms K Edwards. The Respondent was represented by Mr M Foran.

The parties filed a Statement of Agreed Facts (SOAF). In addition to the SOAF, the following materials were admitted into evidence:

Exhibit No.

Description

A1

Witness Statement of Kimberley Pearn dated 14 June 2023

A2

Witness Statement of Katherine Zahrooni dated 14 June 2023

A3

Witness Statement of Neil Bent dated 14 June 2023

A4

Witness Statement of Neil Bent dated 17 July 2023

A5

Letter from Independent Education Union (IEU) to Respondent dated 30 August 2022

A6

Letter from IEU to Respondent dated 6 September 2022

A7

Letter from Catholic Employment Relations (CER) to IEU dated 8 November 2022

A8

Letter from IEU to CER dated 15 December 2022

A9

Letter from CER to IEU dated 21 February 2023.

None of the witnesses were required for cross examination.

FACTUAL BACKGROUND

The factual background set out below is based on the SOAF and the unchallenged evidence of the Applicants.

Ms Pearn

From 27 January 2017 until 26 January 2021, Ms Pearn was employed by the Respondent as a teacher at Our Lady of Mt Carmel Primary School on a series of maximum term contracts as follows:

· From 27 January 2017 to 19 January 2017;

· From 29 January 2018 to 21 December 2018;

· From 29 January 2019 to 27 January 2020;

· From 28 January 2020 to 26 January 2021.[7]

From 14 September 2020 until the end of the school term on 18 December 2020, Ms Pearn took a period of paid parental leave and received payments from the Respondent in accordance with the Agreement. From 18 December 2020 until 26 January 2021, Ms Pearn was paid by the Respondent in accordance with the Agreement.[8]

On 26 January 2021, Ms Pearn’s employment with the Respondent ended.[9]

In the period following the ending of her employment with the Respondent, Ms Pearn received payments in accordance with the Commonwealth Government’s Paid Parental Leave Scheme.[10]

Between 26 January 2021 and 2 June 2021, Ms Pearn was not employed by the Respondent.[11]

While the SOAF does not set out the reasons for the break in service, the Respondent does not dispute that Ms Pearn was pregnant and that during the period of 14 September 2020 to 2 June 2021 Ms Pearn gave birth and had primary caring responsibilities for her child.[12]

Between 2 June 2021 and 18 June 2021, Ms Pearn performed work on a casual basis on five days.[13]

On 12 July 2021, and within six months of 26 January 2021, Ms Pearn commenced employment with the Respondent pursuant to a maximum term contract that specified an end date of 27 January 2022.[14]

On 28 January 2022, Ms Pearn was employed by the Respondent on a permanent basis as a teacher at Our Lady of Mt Carmel Primary School.[15]

Ms Zahrooni

On 21 August 2018, Ms Zahrooni commenced employment with the Respondent on a casual basis, working at various schools in the Parramatta area.[16]

From 29 January 2019 until 26 January 2021, Ms Zahrooni was employed by the Respondent as a teacher at Our Lady of Mt Carmel Primary School on a series of maximum term contracts as follows:

· From 29 January 2019 to 27 January 2020;

· From 28 January 2020 to 26 January 2021.[17]

On 18 December 2020, the 2020 school term concluded. On 26 January 2021, Ms Zahrooni’s employment with the Respondent ended.[18]

Between 26 January 2021 and 27 May 2021, Ms Zahrooni was not employed by the Respondent.[19]

While the SOAF does not set out the reasons for break in service, the Respondent does not dispute that Ms Zahrooni was pregnant and that during the period of 18 December 2020 to 27 May 2021 Ms Zahrooni gave birth and had primary caring responsibilities for her child.[20]

On 27 May 2021, and within six months of 26 January 2021, Ms Zahrooni was re-employed by the Respondent as a teacher on a temporary basis pursuant to a maximum term contract that specified an end date of 27 January 2022.[21]

On 28 January 2022, Ms Zahrooni was employed by the Respondent on a permanent basis as a teacher at Our Lady of Mt Carmel Primary School.[22]

The Dispute

On 30 August 2022, the IEU sent correspondence to the Respondent on behalf of Ms Pearn outlining why she was entitled to continuous service for the purposes of Annexures L and M of the Agreement.[23] The correspondence stated, inter alia:

Continuity of Service

The Union notes that, if Ms Pearn had taken up employment with another NSW Catholic School employer, she would have been entitled to have continuous service recognised by operation of Annexures L and M of the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020. This is because she had completed the relevant qualifying period with CEDP, and no more than two full-school terms would have elapsed between the cessation of that employment and commencing employment with a new catholic employer.

Indeed, it is arguable that CEDP could be identified as both the “Former Employer” and the “New Employer” for the purposes of applying Annexure M and “Participating Employer” for the purposes of applying Annexure L, in which case a valid claim for continuous service could be advanced.[24]

On 6 September 2022, the IEU sent correspondence to the Respondent on behalf of Ms Zahrooni outlining why she was entitled to continuous service for the purposes of Annexures L and M of the Agreement.[25] The correspondence stated, inter alia:

Continuity of Service

The Union notes that, if Ms Zahrooni had taken up employment with another NSW Catholic School employer, she would have been entitled to have continuous service recognised by operation of Annexures L and M of the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020. This is because she had completed the relevant qualifying period with CEDP, and no more than two full-school terms would have elapsed between the cessation of that employment and commencing employment with a new Catholic employer.

Indeed, it is arguable that CEDP could be identified as both the “Former Employer” and the “New Employer” for the purposes of applying Annexure M and “Participating Employer” for the purposes of applying Annexure L, in which case a valid claim for continuous service could be advanced.[26]

On 8 November 2022, CER sent correspondence to the IEU outlining the Respondent’s position regarding the application and operation of Annexures L and M of the Agreement.[27] In reference to Annexures L and M of the Agreement, the correspondence stated:

Portability of Long Service Leave and Personal Leave Provisions of the Agreement

Your letters reference Annexures L and M of the Agreement.

We refer your attention to 2(a) under the heading “Operation” of Annexure L and Clause 2 under the heading “Objective” of Annexure M.

We take the view that the inclusion of the word “another” is synonymous with “different”. Meaning that the portability of leave in both annexures is subject to the employee obtaining employment with a different employer.

Since the Agreement does not contemplate the return of an employee in circumstances where the employee has terminated their own employment, or a maximum term contract is not renewed, we cannot accept your premise that “in a very real and material sense” continuous service occurred for either employee.[28]

(Emphasis in original)

On 15 December 2022, the IEU sent correspondence in response to the CER’s correspondence.[29] The correspondence relevantly stated:

The Union has clearly outlined the employment history of both members, Ms Kimberley Pearn and Ms Katherine Zahrooni, in our letters dated 30 August 2022 and 6 September 2022 respectively. We do not intend to repeat their employment history with CEDP in this letter. However, we do note the following essential facts:

·Both members have had a break in their service due to the birth of their respective child and therefore unable to accept work whilst they were caring for their children;

·Both members returned to work with CEDP at their respective schools within six months (or two full school terms) of cessation of their employment;

·If the members had accepted work with any of the Participating Employers named in Annexures L and M of the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020 (‘the Agreement’), they would have been entitled to have continuous service recognised by operation of those Annexures.

Having regard to the circumstances outlined above, the failure to recognise these members’ continuous service is disappointing and contrary to the spirit and intention of the portability of leave provisions. It leads to a ludicrous outcome whereby their decision to return to the same employer results in a diminution of their leave entitlements.

Moreover, the Union is deeply concerned by the discriminatory implications of CEDP’s decision not to recognise their continous [sic] service. We believe that these members have been treated less favourably due to their parental responsiblities [sic], which is an attribute appertaining to their sex.

In light of the above concerns, the Union strongly urges CEDP to review these members’ leave entitlements with recognition for the continuity of service. We ask that their leave balances are corrected by no later than 10 January 2023.

Please be advised that if the issues remain unresolved, the Union reserves its rights to commence appropriate action in the Fair Work Commission and/or Australian Human Rights Commission without further notice.[30]

On 21 February 2023, the CER sent correspondence in response to the IEU’s correspondence.[31] The correspondence relevantly stated:

Your members left employment with CSPD at the conclusion of their maximum term contracts. Despite your attempts, it remains irrelevant the reason why further employment was not pursued by your members at the time. CSPD’s position remains that where a maximum term contract ends and the employee is offered a position sometime in the future, that this holds the same interpretation as an employee resigning to pursue a different career and returning to work with CSPD at a time in the future, which breaks continuous service.

CSPD appreciates the reasons your members did not pursue another contract and the resulting outcome is unfortunate, but there is no obligation on CSPD to honour continuation of service. Your request on behalf of your members, Ms Pearn and Ms Zahrooni, is again rejected.

CSPD does not consider this decision to be discriminatory or a breach of the Agreement. Therefore, should the IEU pursue any discrimination or dispute claim in any forum as threatened, this will be strenuously defended. Where appropriate, CSPD reserves its right to seek costs against the IEU.[32]

RELEVANT PROVISIONS OF THE AGREEMENT

Clause 11.1 of the Agreement states:

11.1 A Teacher will be employed as a full-time or part-time Teacher (including as a
temporary full-time or part-time Teacher) or as a casual Teacher.

Clause 11.6 of the Agreement states:

11.6 ARRANGEMENTS FOR TEMPORARY TEACHERS

A Teacher may be employed as a temporary Teacher in the following circumstances:

(a)where a Teacher is employed to replace a Teacher on leave or secondment;

(b)where a school’s staffing is to be reduced in the following year overall or in a department (in a secondary school). This may include but is not limited to circumstances such as declining enrolments or school amalgamations;

(c)where a Teacher is employed on a specific programme not funded by the Employer, or a new programme or initiative funded by the Employer which is not of an ongoing nature;

(d)where a Teacher resigns during a school year and the usual Employer practice is that such positions are filled on a temporary basis; or

(e)where an ongoing position has not been able to be filled using normal selection criteria and the Teacher has been informed of this in writing prior to the appointment.

Applicants must be advised in writing prior to accepting a position that it is temporary, the expected length of the appointment and the reason why it is temporary, with such reason being one of the reasons specified above.

In the case of paragraph 11.6(a), the appointment may be for the whole of the period of leave or secondment of the Teacher.

In the case of paragraphs 11.6(b) and (c), the appointment may be for a period of up to two full school years. The Employer, the Union and the Teacher may agree to extend the temporary period of appointment beyond two years. The Union will not withhold its consent unreasonably.

In the case of paragraph 11.6(d) the appointment may be for not longer than the end of the school year in which the appointment occurs.

In the case of paragraph 11.6(e) the appointment may be for a period of up to one full school year.

The parties recognise that a temporary Teacher may be appointed to a series of different temporary positions either within the school or at another school of the Employer immediately following the cessation of a prior temporary appointment.

(emphasis in original)

Clause 36.1 of the Agreement states:

36.1 ENTITLEMENT TO PAID PERSONAL/CARER’S LEAVE – TEACHERS

(a) A Teacher will receive a one-off entitlement to 15 days’ paid Personal/Carer’s Leave upfront (pro rata for a part-time Teacher) on commencement of their first temporary block or permanent appointment in addition to Personal / Carer’s Leave provided in paragraphs 36.1(b) and 36.1 (c). This one-off entitlement will not apply where the Teacher has transferred their accrued Personal/Carer’s Leave from a participating employer as provided in Annexure L – Personal/Carer’s Leave Portability (NSW/ACT Catholic Systemic Schools and Participating NSW/ACT Catholic Independent Schools).

(Emphasis in original)

Clause 36.6 of the Agreement states:

36.6 PORTABILITY

An Employee who was previously employed with another Employer named in this Agreement, or with a participating Catholic Independent School listed in Annexure L – Personal/Carer’s Leave Portability (NSW/ACT Catholic Systemic Schools and Participating NSW/ACT Catholic Independent Schools), may be eligible for portability of Personal/Carer’s Leave. Arrangements for portability of Personal/Carer’s Leave are set out in that Annexure.

(Emphasis in original)

Clause 38.1 of the Agreement states:

38.1 APPLICABILITY OF LONG SERVICE LEAVE ACT 1955 (NSW) AND LONG
SERVICE LEAVE ACT 1976 (ACT).

The provisions of the Long Service Leave Act 1955 (NSW) and of the Long Service Leave Act 1976 (ACT), as applicable, will apply except to the extent that this Agreement provides for a more favourable outcome in a particular respect.

Clause 38.9 of the Agreement states:

38.9 SERVICE

(a) An Employee who takes approved leave without pay (including unpaid parental leave) will be deemed to have had continuous service, notwithstanding the fact that the service was interrupted by such leave. However, the period of the unpaid leave must not be taken into account in calculating the period of service for the purpose of long service leave accrual. This provision does not apply to an Employee who takes unpaid community service leave under the Act; an Employee who takes a period of unpaid community service leave under the Act will accrue long service leave during such period.

(b) An Employee whose employment terminates with an Employer within one week of
the end of any school term, and is reappointed by the same Employer before the expiration of two weeks after the commencement of the next school term will be deemed to have had continuous service for the purposes of long service leave.

Clause 38.10 of the Agreement states:

38.10 LONG SERVICE LEAVE PORTABILITY

Eligible Employees are entitled to Portability of Long Service Leave as outlined in Annexure M – Catholic Schools Intrastate Long Service Leave Portability Arrangement.

(Emphasis in original)

Annexure L to the Agreement relevantly states:

ANNEXURE L
PERSONAL/CARER’S LEAVE PORTABILITY (NSW/ACT CATHOLIC SYSTEMIC SCHOOLS AND PARTICIPATING NSW/ ACT CATHOLIC INDEPENDENT SCHOOLS)

1. APPLICATION:

This Annexure sets out Personal/Carer’s Leave portability for Employees who were previously employed by a Participating Employer.

Note: This Annexure establishes obligations on the Employers covered by this Agreement to recognise Personal/Carer’s Leave portability for Employees.

Employees who intend on terminating their employment and obtaining employment with a new Employer should always refer to their proposed new Employer’s industrial instruments for information about whether leave entitlements can be transferred.

A ‘Participating Employer’ includes:

An Employer listed in subclause 2.1 of this Agreement for both Teachers and General Employees; and

The NSW Catholic Independent Schools Employers listed below for Teachers only:

…

The ACT Catholic Independent Schools Employers listed below for Teachers only:

…

2. OPERATION

(a) An Employee, who was previously employed with another Participating Employer on a full-time, part-time or temporary basis, will be entitled to portability of Personal/Carer’s Leave as follows.

(b) Untaken paid personal/carer’s that has accumulated with the previous participating Employer will be credited to the Employee as accumulated personal/carer’s leave on the commencement of their employment with the Employer. The maximum personal/carer’s leave portable from a Participating Employer will be 150 days.

(c) For an Employee to be eligible for portability of personal/carer’s leave under this clause, the Employee must satisfy the following criteria:

(i)The Employee has commenced employment with the Employer within six months or two terms, whichever is the greater, of the termination of the Employee’s employment with the other Participating Employer.

(ii)The former Participating Employer will provide to each Employee, on the termination of the Employee’s employment, a completed version of the form set below and the Employee will provide the original completed form to the new Employer within four school weeks of the commencement of employment with the new Employer.

(Emphasis in original)

Annexure M to the Agreement relevantly states:

ANNEXURE M
CATHOLIC SCHOOLS INTRASTATE LONG SERVICE LEAVE PORTABILITY ARRANGEMENT

1. APPLICATION

THIS ANNEXURE WILL APPLY TO:

(a)The Employers listed in clause 6; and

(b)Any person employed in a Catholic school listed in clause 6 or in a Catholic school, Catholic Education Office or Catholic Schools Office operated by an Employer listed in clause 6:

(i)whose employment is terminated with an employer; and

(ii)who is subsequently employed by a new employer after 28 January 2005; and

(iii)who qualifies to transfer his/her long service leave entitlement from one employer to another employer under this Arrangement or the former industrial instrument the Catholic Schools Long Service Leave Portability (State) Agreement as made by NSW Industrial Relations Commission on 17 December 2004 and gazette in NSW Industrial Gazette Vol 350. Pg.1140.

2. OBJECTIVE

The principal object of this Annexure is to provide for the portability of Long Service Leave to employees engaged in Catholic Education Offices, Catholic Schools Offices, together with employees employed in schools of the organisations listed in clause 6 under defined employment circumstances, (“continuous” service). Service will be deemed to be continuous when an employee terminates employment with a participating employer and shortly thereafter commences employment with another participating Employer.

3. DEFINITIONS

FOR THE PURPOSE OF THIS ANNEXURE:

(a) ‘Employer’ means any Catholic Systemic School or Catholic Independent School listed in clause 6 to this Annexure.

(b) ‘Former Employer’ means any Employer listed in clause 6 to this Annexure on the day of an employee’s last termination of employment.

(c) ‘New Employer’ means any Employer listed in clause 6 to this Annexure immediately following an employee’s last termination of employment.

(d) ‘Service’ means service as an adult within the terms of the Long Service Leave Act 1955 (NSW), as applicable as at the date of this Agreement

(e) ‘Employee’ means any person employed in a Catholic school listed in clause 6 or in a Catholic school, Catholic Education Office or Catholic Schools Office operated by an Employer listed in clause 6 of this Annexure and who is eligible to be enrolled as a member of the Union.

(f) ‘Union’ means the Independent Education Union of Australia.

4. LONG SERVICE LEAVE PORTABILITY

4.1 Entitlement to Long Service Leave will be in accordance with the provisions of the Act, the Long Service Leave Act 1955 (NSW), and any applicable enterprise agreement and any enterprise agreement (including any amendments or replacements of the legislation or industrial instruments) that applies to any Employer.

4.2 Continuous service with an Employer as at the operative date of this Agreement, will be recognised by another Employer for the purpose of this Annexure provided that:

(a)The Employee has completed an initial qualifying period (the “Initial Qualifying Period”) of:
(i) at least one year of continuous service with a participating employer listed in
clause 7 of this Annexure; or

(ii) at least five years of continuous service with a participating employer listed in
clause 8 of this Annexure.

(b)An Employee will only be entitled to the portability of his or her long service leave where he or she commences employment with a new employer and no more than the equivalent of two full school terms have elapsed between ceasing employment with the Former Employer and commencing employment with a New Employer.

(c)Service prior to the Initial Qualifying Period will not be counted for the purpose of calculating long service leave entitlements in accordance with paragraph 4.2(a).

4.3 Notwithstanding an Employee may have taken all or part of their accrued long service leave with their Former Employer or may have been paid out on termination all or part of their long service leave by their Former Employer, the Employee’s period of continuous service with the Former Employer will be recognised by the New Employer for the purposes of calculating any entitlement to long service leave.

4.4 Prior service will be recognised by the New Employer on the understanding that the Employee is not entitled to take or be paid long service leave which they have already taken or been paid by their Former Employer.

4.5 Notwithstanding the provisions of subclause 4.2, where the Former Employer has a different rate of accumulation of long service leave to the New Employer, the following will occur:

(a)Service with the Former Employer will be recognised as service with the New Employer; and

(b)The accrued entitlement to long service leave recognised by the New Employer will be that which the Employee had accrued at the date of ceasing employment with the Former Employer.

(Emphasis in original)

THE CONSTRUCTION POINT (QUESTIONS 1 AND 2)

Summary of the Applicants’ Submissions

The Applicants submitted that the dispute concerns two key issues: the meaning of “another” and the meaning of “new employer”.[33]

The Applicants submitted that the construction of any statute or enterprise agreement, must be “text based” and that all words are to be given meaning and effect.[34]

The Applicants submitted that the words used in Annexures L and M ought to be interpreted consistently[35], and if that approach is taken, the Applicants are entitled to continuity of service for the purposes of Annexures L and M of the Agreement.

The Applicants cited the decision of the Full Court of the Federal Court in Workpac Pty Ltd v Skene,[36] which set out the principles relevant to the construction of enterprise agreements and stated that in the case of Annexures L and M, “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.”[37]

In relation to Annexure L, the Applicants submitted that clause 1 makes personal/carer’s leave portable where employees have been employed by a Participating Employer and establishes obligations on all Participating Employers to recognise portability of personal/carer’s leave.

The Applicants submitted that while clause 2(a) deals with the operation and intent of the portability scheme and that clause 2(c) sets out eligibility, the word “another” in clause 2(a) of Annexure L, as it appears immediately prior to the defined term “Participating Employer”, should be interpreted consistently with the instrument as a whole.

The Applicants submitted in that context, “another” could mean another employer, as in another employment contract, regardless of whether it was with the same employer or not. The Applicants accepted that it could also mean “other than the employer that originally employed the employee”, but submitted that is not what the clause expressly states and that the former approach should be preferred as that is consistent with Annexure M.[38]

The Applicants submitted that clause 2(c) of Annexure L sets out the express definition of eligibility for “portability of personal/carer’s leave” and that the ordinary meaning of the criteria set out in clause 2(c)(i) supports an interpretation that “Employer” and “other Participating Employer” can be the same “Employer”. The Applicants submitted that the criteria in clause 2(c)(ii) provides further context for that interpretation through the use of the uncapitalised word “new” before “Employer” which simply means “new employment” and “new” as in “newly commenced”.[39]

The Applicants submitted that whether the first employer is the same as the second employer does not matter and if the drafters had intended to grant portability only to employees who were re-employed by a different employer, they could have said so.

The Applicants submitted that the use of the word “another” in clauses 36.6 and 37.3 of the Agreement reflects the terminology of Annexure L and does not provide any further guidance as to the interpretation of that word in Annexure L.

In relation to Annexure M, the Applicants submitted that “New Employer” is defined in clause 3 as “any Employer listed in clause 6 to this Annexure” The Applicants submitted that Annexure M also uses the non-capitalised term “new employer” in clause 1(b)(ii) which “simply means any Employer listed in clause 6 (i.e., whether the same employer or another).”[40]

The Applicants stated that their submissions in relation to the use of the term “another” in Annexure L[41] are equally applicable to the use of the term “another” in clause 2 of Annexure M.

The Applicants submitted that clause 38.9 of the Agreement, which provides an entitlement to continuity of service for long service leave where an employee is re-employed within two weeks after the commencement of the next school term, deals with a different scenario and does not provide any guidance in relation to the interpretation of Annexure M.

Summary of the Respondent’s Submissions

The Respondent submitted that the ordinary meaning of the words “new” and “another” in Annexures L and M of the Agreement precludes the Applicants from being eligible for the portability schemes.

The Respondent submitted that the Macquarie Online Dictionary defines the words “another” and “new” as follows:

“another”: “adjective 2. a different; a distinct; of a different kind: at another time; another man. pronoun 4. a different one; something different: going from one house to another.”

“new” as “10. other than the former or the old: a new era.”

The Respondent submitted that applying the ordinary meaning of those words to Annexures L and M of the Agreement, it is clear that the “new” employer and “another” employer is distinct from, or different to, the first employer.

The Respondent submitted that the use of the term “another” sets up the difference between employers which is a function of portability of entitlements.

The Respondent submitted that teachers generally require more sick leave than other professions and that clause 36.1(a) of the Agreement is intended to address this issue in two ways:

For those employees who have accrued balances from another eligible employer, those balances are ported in accordance with Annexure L; and

For those employees who do not fall within the scope of Annexure L, they are credited with 15 days of personal/carers’ leave upon commencement of their employment.

In relation to Annexure M, the Respondent submitted that clause 38 of the Agreement deals with long service leave which accrues according to years of service. The Respondent submitted that Annexure M addresses movement between employers which may otherwise break service. In this respect, the Respondent referred to clause 1(b)(iii) of Annexure M which refers to the transfer of an employee’s long service leave entitlement “from one employer to another employer”. Whereas clause 38.9(b) of the Agreement addresses employment with the “same employer” where a continuous succession of engagements is deemed to constitute service for the purposes of long service leave.

The Respondent submitted that if the drafters intended Annexure M to include re-employment by the “same employer” they would have used the words “same employer” like they did in clause 38.9(b) of the Agreement.

Principles of construction of enterprise agreements

The principles relevant to the approach that the Commission should take to the construction of enterprise agreements were set out by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[42] (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.

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.

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.

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.

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.

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.

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, the Full Court of the Federal Court 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.”[43]

[References omitted]

I have applied these principles in determining this matter.

Consideration

As stated above, the dispute concerns the portability arrangements in relation to personal/carer’s leave and long service leave as set out in Annexures L and M of the Agreement, and whether those arrangements apply to employees who are re-employed by the same employer.

It should be noted at the outset that in accordance with the principles in Berri, the task of interpreting an agreement does not involve rewriting the agreement to achieve a fair or just outcome. Rather, the task is one of interpreting the agreement produced by the parties.

In relation to Annexure L, the dispute turns on the interpretation of clause 2 of Annexure L and in particular, the meaning of the words “another”, “other” and “new”.

Although the Agreement contains a definitions clause,[44] it does not contain a definition of any of the relevant words, nor are they defined in clause 1 of Annexure L.

Therefore, the starting point is to consider the ordinary meaning of the words in the context of which they appear, and whether the Agreement has a plain meaning or if it is ambiguous or susceptible of more than one meaning.

Clause 2(a) provides that an employee “who was previously employed with another Participating Employer” will be entitled to “portability of Personal/Carer’s Leave.”

Clause 2(c) provides that for an Employee “to be eligible for portability of personal/carer’s leave under this clause, the Employee must satisfy the following criteria:

(i)The Employee has commenced employment with the Employer within six months or two terms, whichever is the greater, of the termination of the Employee’s employment with the other Participating Employer.

(ii)The former Participating Employer will provide to each Employee, on the termination of the Employee’s employment, a completed version of the form set below and the Employee will provide the original completed form to the new Employer within four school weeks of the commencement of employment with the new Employer.”

The Macquarie Dictionary[45] defines:

“another” as “adjective 2. a different; a distinct; of a different kind: at another time; another man. pronoun 4. a different one; something different: going from one house to another.”

“new” as “adjective 10. other than the former or the old: a new era.”

“other” as “adjective 1. additional or further: he and one other person. 2. different or distinct from the one or ones mentioned or implied: in some other city. 4. (with plural nouns) being the remaining ones of a number: the other men. 8. another person or thing”.[46]

While the definition of “Participating Employer” in clause 1 includes all of the employers participating in the scheme, when applying the plain and ordinary meaning of the words “another”, “other” and “new” in Annexure L, it is clear that the entitlement to a credit (or transfer) of personal/carer’s leave under the portability scheme set out in Annexure L only arises where the personal/carer’s leave to be credited (or transferred) was accumulated with a different Participating Employer.

I do not accept the Applicants’ submission that “another” or “another Participating Employer” could mean “another employment contract” regardless of whether it was with the same employer or not, or that “Employer” and “other Participating Employer” in clause 2(c)(i) can be the same employer. Nor do I accept the submission that “new Employer” in clause 2(c)(ii) simply means “new employment”. The plain and ordinary meaning of the relevant words does not support those interpretations. Furthermore, the use of the word “former” at the beginning of clause 2(c)(ii) provides additional contextual support that the “new” employer must be a different Participating Employer.

Turning to Annexure M of the Agreement, the word “another” is also used in clauses 1, 2 and 4. Clause 1 provides that Annexure M will apply to an employee whose employment is terminated with an employer, and who is subsequently employed by a new employer, and who qualifies to transfer their long service leave entitlement from one employer to another employer.

Clause 2 sets out the objective of the portability scheme in annexure M: that service will be deemed continuous when an employee terminates employment with a participating employer and shortly thereafter commences employment with another participating employer.

Clause 4.2 provides that continuous service with an Employer will be recognised by another Employer subject to the applicable qualifying periods and the employment with the new employer commencing within a defined period.

Although Annexure M contains a definitions clause,[47] it does not contain a definition of “another”. In the absence of a definition, the starting point is to consider the ordinary meaning of the words in the context of which they appear. Furthermore, I agree with the Applicants’ submission that where the Commission’s task is to construe the meaning of a term of an Agreement according to its ordinary meaning, that term should be construed consistently throughout the Agreement unless the context suggests otherwise. As set out earlier, the Macquarie Dictionary defines “another” as “adjective 2. a different; a distinct; of a different kind: at another time; another man. pronoun 4. a different one; something different: going from one house to another.”[48]

While the terms “Former Employer” and “New Employer” are both defined in clause 3 as “any Employer listed in clause 6”, the use of the word “another” in clauses 1, 2, and 4 provides the qualification that the entitlement to have service deemed continuous under Annexure M only arises where the Former Employer and the New Employer are different employers.

I do not accept the Applicants’ submission that clause 38.9(b) of the Agreement provides no guidance in relation to the interpretation of Annexure M. In accordance with the principles set out in Berri, when the Agreement is viewed as a whole, the use of the word “same” in clause 38.9(b) and “another” in Annexure M provides contextual support that the Former Employer and the New Employer in Annexure M must be different employers. In this respect, I accept the submission of the Respondent that had the drafters intended Annexure M to include re-employment by the “same Employer”, they would have used words that support such an interpretation like they did in clause 38.9(b).

Conclusion

In conclusion, the answers to the agreed questions for arbitration are as follows:

1. Does Annexure L of the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020 apply where the new employer and the previous employer are the same Participating Employer?

No.

2. Does Annexure M of the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020 apply where the ‘New Employer’ and the ‘Former Employer’ are the same ‘Employer’?

No.

THE DISCRIMINATION POINT (QUESTION 3)

In the alternative, the Applicants submitted that the criteria for defining portability of employment entitlements in Annexures L and M of the Agreement are discriminatory terms within the meaning of s.195 of the FW Act.

The Applicants submit that the terms discriminate against “women as the carers of newborns.”[49]

In support of this contention, the Applicants rely on two witness statements deposed by Mr Neal Bent, an industrial officer employed by the Independent Education Union of Australia (IEU).[50] The content of Exhibits A3 and A4 is limited to attaching the following reports:

Exhibit A3

· Australian Bureau of Statistics Report 4125.0 – Gender Indicators, Australia, Sep 2018;

· Australian Bureau of Statistics Report 4913.0 – Pregnancy and Employment Transitions, Australia, Nov 2017;

Exhibit A4

· Australian Bureau of Statistics 2019 Report Gender Indicators: Indicators to aid exploration of economic and social differences between women and men over time;

· Australian Bureau of Statistics Report – Changing female employment over time;

· Australian Bureau of Statistics Report – Data on students, staff, schools, rates and ratios for government and non-government schools for all Australian states and territories; and

· IEU NSW/ACT Branch Membership Breakdown by Gender.

The Applicants seek orders to allow continuity of service for those in the position of the Applicants by removing the word “another” or such other order “removing the discrimination.”[51]

The Respondent objected to the Commission determining question 3 on the basis that it was not within the scope of the dispute before the Commission. The Respondent submitted that the issue raised by Question 3 was never raised as part of Step 1 and was not included in the Commission’s “orders” which defined the scope of the dispute.

Does the Commission have jurisdiction to determine question 3?

Summary of the Respondent’s Submissions

The Respondent submitted that the dispute resolution procedure involves two steps. The Respondent submitted that Step 1 involved an exchange of correspondence, none of which contained any reference to s.195 of the FW Act.

The Respondent submitted that the only reference to discrimination was a “passing comment” in the IEU’s correspondence dated 15 December 2022, where it is alleged that the Applicants “have been treated less favourably due to their parental responsibilities.”[52]

The Respondent submitted that after the dispute was unable to be resolved under step 1, the IEU referred the dispute to the Commission. The Respondent submitted that while the Application refers to s.342 (1)(d) and s.351 of the FW Act, there is no reference to s.195.

The Respondent submitted that as the dispute evolved, s.195 did not feature in the dispute until the matter moved to arbitration and it was raised as part of the Applicants’ materials in chief.

The Respondent submitted that arbitration of the dispute is concerned with the proper construction of the terms of Annexures L and M, not their lawfulness, and the agreed questions were arrived at with a view to setting the parameters or scope of the dispute.[53]

Summary of the Applicants’ Submissions

The Applicants submitted that the question of whether the relevant provisions are discriminatory is clearly within the scope of the dispute and was squarely raised by the IEU under Step 1.

In support of this submission, the Applicants referred to the IEU’s correspondence dated 15 December 2022 which raises the issue of discrimination on the ground of parental responsibilities, and the Respondent’s correspondence dated 21 February 2023, which disputes that its decision is discriminatory or a breach of the Agreement,

The Applicants submitted that the issue of whether the terms are discriminatory is within the scope of the dispute under Step 1 and properly before the Commission under Step 2.

Consideration

It is well established that the functions and powers that may be exercised by the Commission in conducting a dispute resolution process are derived from the terms of the enterprise agreement.[54]

In “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Transdev Melbourne Pty Ltd[55], Deputy President Millhouse summarised the legal principles relevant to the Commission’s jurisdiction under s.739 as follows:

[20] The Commission may deal with a dispute if the dispute settlement procedure “requires or allows” it to do so. The terms of the dispute settlement procedure must be considered, understood in light of its industrial context and purpose. The scope of the dispute settlement procedure should not be narrowly construed as “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.

[21] In the assessment of the Commission’s power, there is a need to characterise the dispute and determine whether that characterisation has a nexus or sufficient nexus to the provisions of the Agreement. In doing so, the Commission is not confined to the terms of the dispute application. The entire factual background is relevant and may be ascertained from the submissions advanced by the parties on the question of jurisdiction. Further, an industrial dispute is not necessarily fixed and definite, and it may evolve during proceedings in the Commission.

[22] In dealing with a dispute under s 739 of the Act, the Commission must not exercise any powers limited by the Agreement’s dispute settlement term. Further, the Commission must not make a decision that is inconsistent with either the Act or the Agreement.

[References omitted]

In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2)[56], Justice Flick found that in a staged dispute resolution procedure, the earlier stages (or steps) are pre-conditions which must be (substantially) satisfied before the dispute can be referred to the Commission. Furthermore, His Honour stated that “[A]lthough the “dispute” to be dealt with by the Commission could be more confined than that the subject of attempted prior resolution, the “dispute” could not extend beyond the ambit of that previously sought to be resolved.”[57]

Clause 43.2 of the Agreement is immediately below the heading “Step 1” and states:

STEP 1

43.2 In the first instance the parties should attempt to resolve the matter at the workplace by discussions between the Employee or Employees concerned and the relevant supervisor, where appropriate. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner through discussions between the Employee or Employees concerned and senior management (which may include senior CEO/CSO staff) as appropriate.

There can be no doubt that the issue of whether the relevant provisions of the Agreement (or their impact) were discriminatory was raised in Step 1. The IEU’s correspondence relevantly stated:

Moreover, the Union is deeply concerned by the discriminatory implications of CEDP’s decision not to recognise their continous [sic] service. We believe that these members have been treated less favourably due to their parental responsiblities [sic], which is an attribute appertaining to their sex.

In light of the above concerns, the Union strongly urges CEDP to review these members’ leave entitlements with recognition for the continuity of service. We ask that their leave balances are corrected by no later than 10 January 2023.

Please be advised that if the issues remain unresolved, the Union reserves its rights to commence appropriate action in the Fair Work Commission and/or Australian Human Rights Commission without further notice.[58]

(Emphasis added)

The Respondent provided the following response:

CSPD does not consider this decision to be discriminatory or a breach of the Agreement. Therefore, should the IEU pursue any discrimination or dispute claim in any forum as threatened, this will be strenuously defended. Where appropriate, CSPD reserves its right to seek costs against the IEU.[59]

(Emphasis added)

It is clear from that exchange of correspondence that the issue of the proper construction of the relevant provisions and the alleged discriminatory implications was raised in accordance with Step 1 under the dispute resolution procedure.

In Qantas v ALAEA, Justice Flick stated:

“Notwithstanding a more generally expressed conclusion that the relevant clauses are to be construed with some degree of informality and flexibility, the submission advanced on behalf of Qantas and Jetstar that there needed to be some minimum content to these provisions is accepted. That minimum content, it is concluded, is that there needed to be an occasion on which those participating in the meetings had to know that there were opposing views being expressed and that those opposing views needed to be resolved. It is not necessary, with respect, for those participating in the meeting or discussion to know that they were participating in a meeting which formed part of a dispute resolution procedure. To fall within cl 6 of the Qantas Agreement or cl 20 of the Jetstar Agreement, there needed to be the raising by an employee or a group of employees of an “opposing view” to that of their employer and that view had to be raised at a meeting (however flexibly that term is to be construed) at which it was known or could reasonably be inferred that each of the “opposing” sides knew that there was a dispute in need of resolution.”[60]

(Emphasis added)

I accept that the Applicants did not specifically refer to s.195 in the Step 1 correspondence or the Application. However, in my view, the reference to “discriminatory implications” in the Step 1 correspondence was “minimum content” sufficient to characterise the dispute as one that has a discriminatory aspect to it.

I do not accept the Respondent’s submission that the IEU’s correspondence was no more than a “passing comment”. The Respondent was on notice of the discriminatory aspect to the dispute, that it was in need of resolution, and responded to it stating that any discrimination claim will be “strenuously defended”.

I accept the Applicants’ contention that the relevant provisions of the Annexures L and M are discriminatory terms within the meaning of s.195 reflects an evolution of the dispute, but it is not beyond the ambit of what was sought to be resolved under Step 1.

While the parties submitted agreed questions to be determined by arbitration (relevant to the construction point), that does not prevent the Applicants from seeking to have other aspects of the dispute determined through arbitration, subject to those aspects falling within the scope of the dispute, and that party satisfying any pre-conditions prior to the referral of the dispute to the Commission.[61]

Accordingly, and for the reasons set out above, I am satisfied that the Commission has jurisdiction to determine question 3.

Are the criteria for defining portability of employment entitlements in Annexures L and M discriminatory within the meaning of s.195 of the FW Act?

There is no suggestion that the criteria for defining portability of employment entitlements in Annexures L and M directly discriminates against the Applicants because of, or for reasons including, one or more of the other identified characteristics or attributes in s.195 of the FW Act. Rather, the Applicants contend that the relevant provisions in Annexures L and M indirectly discriminate against them as women with carer’s responsibilities for newborns.

Indirect discrimination is concerned with the impact or effect of uniform or facially neutral requirements. In Waters v Public Transport Corporation[62] (Waters), Dawson and Toohey JJ stated:

21. A distinction is often drawn between two forms of discrimination, namely “direct” or “disparate treatment” discrimination and “indirect” or “adverse impact” discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v. Duke Power Co. [1971] USSC 46; (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.[63]

The Respondent contends that s.195 of the FW Act does not encompass indirect discrimination.

Whether s.195 of the FW Act encompasses indirect discrimination is critical to the resolution of this aspect of the dispute. If s.195 does not encompass indirect discrimination, then Question 3 must be answered in the negative.

Summary of the Applicants’ Submissions

The Applicants submitted that the term ‘discriminates’ is not defined in the FW Act and that while there is some case law that the term only covers direct and not indirect discrimination[64], the weight of authority is in favour of the proposition that it includes indirect discrimination.[65]

The Applicants submitted that in Application by Commissioner for Public Employment[66] and Application by Australian Catholic University,[67] both of which concerned applications for approval of an enterprise agreement, the Commission adopted the approach in Waters in relation to indirect discrimination.[68]

The Applicants also cited the decision in Centennial Mining which concerned an application for a declaration that a term of an enterprise agreement was not unlawful. The term stated:

30.8 The amount of retrenchment payment due to an employee is not to be more than the employee would have received had the employee remained in employment with the Company until the age of sixty (60) years.

Buchanan J found that the effect of clause 30.8 was that from the age of 60 on, no retrenchment payment was available based on the employee’s age.[69] His Honour concluded that it is inescapable that the term is a discriminatory term and therefore an unlawful term.[70]

The Applicants submitted that the reasoning of Buchanan J in Centennial Mining was “justifiable to both direct and indirect discrimination” and therefore, indirect discrimination must be considered in the context of s.195.[71]

The Applicants referred to the decision of the Full Bench of the Commission in The Hon. Christian Porter MP, Attorney General and Minister for Industrial Relations v Metropolitan Fire and Emergency Services Board; United Firefighters’ Union of Australia[72] (Metropolitan Fire Appeal) in which the Full Bench observed, but did not determine, that s.195 does not encompass indirect discrimination.[73] The Applicants submitted that the obiter comments by the Full Bench are of no assistance as that case involved a pre-certification assessment before the enterprise agreement came into operation. The Applicants submitted that it was in that context that the Full Bench made its obiter comments.[74]

The Applicants submitted that if the function of s.195 was limited to pre-certification assessments of enterprise agreements, then it would not encompass indirect discrimination. The Applicants submitted that this was not the case and cited ss.218 and 253 of the FW Act in support that s.195 was also applicable to post-certification assessments.[75]

The Applicants submitted that while the criteria for defining portability of employment entitlements in Annexures L and M is facially neutral, it has a disproportionate effect on women because the vast majority of people who take a break in employment and return within six months are woman giving birth to and then caring for their newborns, and that the Commission should take judicial notice of the reports attached to the witness statements of Mr Bent.

The Applicants submitted that to provide continuity of service where employees are re-employed by a different employer, but not to those employees re-employed by the same employer is unreasonable.

The Applicants submitted that s.217A of the FW Act permits the Commission to vary the Agreement to remove the discriminatory wording.[76]

Summary of the Respondent’s Submissions

The Respondent disputes the Applicants’ contention that the weight of authority is in favour of the proposition that s.195 of the FW Act encompasses indirect discrimination.

The Respondent submitted that the Full Bench in Metropolitan Fire Appeal expressly rejected the contention that s.195 incorporates notions of indirect discrimination. The Respondent acknowledged that while the comments by the Full Bench were obiter, they were described as “‘helpful obiter” by Deputy President Easton in Construction, Forestry, Maritime, Mining and Energy Union v Svitzer Australia Pty Ltd T/A Svitzer Australia.[77]

The Respondent disputed that the Applicants’ characterisation of Centennial Mining, submitting that case concerned direct discrimination on the ground of age. The Respondent submitted that Klein and Taylor can also be distinguished on the basis that they were matters related to s.351 rather than s.195.

The Respondent submitted that the requirement in s.195 that the discrimination be “because of” the protected attributes is typical of language used in other statutes concerning direct discrimination.

The Respondent submitted that even if the Commission found that s.195 incorporated notions of indirect discrimination, there is insufficient evidence before the Commission to find that the terms of Annexures L and M indirectly discriminated against the Applicants. The Respondent submitted that there is no evidence of the composition of the workforce in terms of the attributes relied upon, or whether the condition was reasonable in the circumstances.

The Respondent submitted that the Commission does not have the power to vary an enterprise agreement under ss.739 or 217A, and if the finding is that the terms of Annexures L and M are discriminatory, then s.253 is triggered.[78]

The Respondent submitted that the appropriate mechanism to address facially neutral terms in enterprise agreements which have discriminatory effects upon employees is s.218, as identified by the Full Bench in Metropolitan Fire Appeal.[79]

Relevant Legislative Provisions

Section 195 of the FW Act provides as follows:

195 Meaning of discriminatory term

Discriminatory term

(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Certain terms are not discriminatory terms

(2) A term of an enterprise agreement does not discriminate against an employee:
(a)if the reason for the discrimination is the inherent requirements of the particular position concerned; or
(b)merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(i)in good faith; and
(ii)to avoid injury to the religious susceptibilities of adherents of that religion or creed; or

(c) if the term is a special measure to achieve equality—to the extent that action that may be taken because of the term is not unlawful under any anti‑discrimination law in force in a place where the action may occur.
(3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:
(a)all junior employees, or a class of junior employees; or

(b)all employees with a disability, or a class of employees with a disability; or

(c)all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

Special measures to achieve equality

(4) A term of an enterprise agreement is a special measure to achieve equality if:
(a) the term has the purpose of achieving substantive equality for employees or prospective employees who have a particular attribute or a particular kind of attribute (as the case may be) mentioned in subsection (1), or a particular combination of these; and
Note: For example, a term that has the purpose of achieving substantive equality for employees who are female and have a physical or mental disability.

(b) a reasonable person would consider that the term is necessary in order to achieve substantive equality.

(5) A term of an enterprise agreement is to be treated as having the purpose referred to in paragraph (4)(a) if it is:

(a) solely for that purpose; or
(b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(6) However, a term of an enterprise agreement ceases to be a special measure to achieve equality after substantive equality for the employees referred to in paragraph (4)(a) has been achieved.

Section 194 of the FW Act relevantly provides as follows:

194 Meaning of unlawful term

A tern of an enterprise agreement is an unlawful term if it is:

(a) A discriminatory term;

Section 253 of the FW Act provides as follows:

253 Terms of an enterprise agreement that are of no effect

(1)    A term of an enterprise agreement has no effect to the extent that:
(a)    it is not a term about a permitted matter; or
(b)    it is an unlawful term; or

(c) it is a designated outworker term.

Note 1: A term of an enterprise agreement has no effect to the extent that it contravenes section 55 (see section 56).
Note 2: Certain terms of enterprise agreements relating to deductions, or requiring employees to spend or pay amounts, have no effect (see section 326).

(2) However, if an enterprise agreement includes a term that has no effect because of subsection (1), or section 56 or 326, the inclusion of the term does not prevent the agreement from being an enterprise agreement.

Section 153 of the FW Act provides as follows:

153 Terms that are discriminatory

Discriminatory terms must not be included

(1) A modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Certain terms are not discriminatory

(2) A term of a modern award does not discriminate against an employee:
(a)if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or

(b)merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(i)in good faith; and

(ii)to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:
(a)all junior employees, or a class of junior employees; or

(b)all employees with a disability, or a class of employees with a disability; or

(c)all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

Consideration

As stated above, whether s.195 of the FW Act encompasses indirect discrimination is critical to the resolution of this aspect of the dispute.

In the context of applications for approval of enterprise agreements, the Commission has accepted (or assumed) that s.195 encapsulates indirect discrimination[80], as well as finding that s.195 does not encompass indirect discrimination.[81]

In Application by Metropolitan Fire and Emergency Services Board[82] (Application by Metropolitan Fire), Deputy President Gostencnik was considering whether a number of terms relating to part-time employment were indirectly discriminatory in the context of an application for approval of an enterprise agreement. The Deputy President observed that while the meaning of “discriminates” in s.195 has not been the subject of judicial consideration, “discriminates” has been considered in other contexts, including ss.153 and 342 of the FW Act. The Deputy President stated that those authorities provide useful guidance on the meaning of the term in s.195, particularly noting the statutory construction principle that it is ordinarily considered a sound rule of construction that the same word appearing in different parts of a statute should be given the same meaning.[83]

One of the authorities which considered “discriminates” in the context of s.153 is the decision in Shop, Distributive and Allied Employees Association v National Retail Association and Another (No 2)[84] (National Retail Association (No 2)). In National Retail Association (No 2), Justice Tracey considered if provisions contained in the General Retail Award 2010 which allowed employers to employ school students on a casual basis for less than three hours were indirectly discriminatory. His Honour considered the operation of s.153(1) of the FW Act which provides that a modern award ‘must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’.

In considering whether s.153 incorporated notions of indirect discrimination, His Honour stated[85]:

52. The Act does not define the word “discriminate” or the words “discriminate against”. The ordinary and natural meaning of the word ‘discriminate’ connotes the making of distinctions: cf HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291 at 295. In the context of s 153(1) this involves the making of distinctions between employees whose employment is regulated by the Award.

53. It is next to be noted that not all discrimination is proscribed. What is proscribed is discrimination against an employee. That means the making of an adverse distinction between employees: cf Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462; (2010) 193 FCR 213 at [24] (per Ryan J). The adverse distinction must be drawn for one of the reasons, including age, which appear in the sub-section.

54. As can be seen, the proscribed reasons for adverse discrimination are those which are commonly dealt with in Federal and State anti-discrimination legislation. Typically, such legislation defines discrimination so that it covers both direct and indirect discrimination: see for example the Disability Discrimination Act 1992 (Cth) ss 4, 5 and 6; Sex Discrimination Act 1984 (Cth) ss 5, 6, 7 and 7B; Equal Opportunity Act 2010 (Vic) ss 8 and 9. The reason that this was considered necessary is, as Dawson and Toohey JJ pointed out in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 392-3, because the proscription of discrimination, without more, is not apt to pick up “facially neutral” discrimination which is otherwise known as indirect discrimination. Indirect discrimination, as defined in anti-discrimination legislation requires the imposition of a requirement or condition which does not, in terms, distinguish between people on prohibited grounds but which, in practice, adversely impacts on such people. It must be established that the requirement or condition is one with which a substantially higher proportion of persons who are not aggrieved by its operation are able to comply, that the requirement or condition is not reasonable and that the aggrieved person is not able to comply with it.

55. No attempt has been made in the Act to provide an extended definition of the term “discrimination”.

56. It would be highly unlikely that the Parliament intended that s 153(1) could be contravened by indirect discrimination. Awards typically contain many provisions that discriminate between employees. Wage rates, for example, are usually fixed by reference to criteria such as length of service and qualifications held. It is unlikely that Parliament intended that such provisions could be impugned on the ground that they indirectly discriminated on the grounds of age because younger employees as a group would not have had the length of service, or the time to obtain the requisite qualifications, in order to qualify for placement in the higher classifications which attract higher wages.

(Emphasis added)

Returning to the decision in Application by Metropolitan Fire, Deputy President Gostencnik considered that he was bound to follow and apply National Retail Association (No 2) with the consequence that ss.195 and 153 have the same meaning, which does not include indirect discrimination. The Deputy President stated:

[118] In considering whether to apply National Retail Association (No 2), it is to be observed that the Commission is an administrative tribunal and does not exercise the judicial power of the Commonwealth under s.71 of the Constitution. It lacks the power to make determinative findings of law, and its decisions are subject to scrutiny through judicial review by relevantly, the Federal Court of Australia. The decision-making powers of the Commission are drawn from, and cannot exceed, those contained in the Act. In performing its functions and powers, the Commission may interpret law, and in particular, provisions of the Act incidentally and as necessary in the course of a proceeding, but these interpretations are not a binding exposition as to the meaning of a particular provision nor are its interpretations binding on the parties as a declaration of rights and obligations. An interpretive decision of the Federal Court on the meaning of a particular provision of the Act which has a bearing on a proceeding or on the exercise of a particular function or power cannot simply be ignored.

[119] Ultimately, I agree with the contentions of the MFB and the UFU that I should follow and apply National Retail Association (No 2) with the consequence that “discriminates” in ss.195 and 153 of the Act has the same meaning, which does not include indirect discrimination. I do so for the reasons already identified above and for the reasons which follow.

[120] Absent the judgment in National Retail Association (No 2), for the reasons I shortly will discuss, I would come to a different view as to the meaning of “discriminates” in s.195 than Tracey J did in respect of that word in s.153. I am also mindful of the comments about judicial comity of the Full Court in Saeed v Minister for Immigration and Citizenship which were as follows:

“Contestable questions of statutory construction raise issues of particular difficulty. The course of events in relation to the provisions here under consideration is a sufficient illustration of the fact that firmly held views for both sides of an argument about a point of statutory construction may exist. French J, in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263; (2003) 133 FCR 190 (Nezovic) said (at [52]):

[52] ... Judicial comity does not merely advance mutual politeness between judges of the same or co-ordinate jurisdictions. It supports the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is “clearly wrong” is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction ...

(Emphasis added.)

In similar vein Weinberg J (with whom Allsop J agreed on this point) said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 (SZEEU) at [148]-[149]:

[148] The word “plainly” does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable.

[149] An example of plain error would be that discussed in Bristol Aeroplane, namely that the earlier judgment was given “per incuriam”. However, an earlier decision may be “plainly wrong”, within the meaning of that expression, for other reasons as well. It goes without saying that such a finding will not be lightly made. As Allsop J correctly observes, there is a need to be “convinced or persuaded” of the earlier Full Court’s error, and that can not be achieved in a case in which minds might reasonably differ as to the proper construction of a particular statutory provision.

(Emphasis added.)

In the same case Moore J (with whom Allsop J agreed also) said at [8]:

[8] However formulated, the duty of any later Full Court to follow an earlier Full Court is founded on public policy considerations and, in particular, the need for consistency in the application of federal laws in this Court, subject always to correction of any error by the High Court or the amendment of the law by Parliament.

There is generally little scope, at the same level in a court’s hierarchy (at least this Court’s hierarchy), for the adoption of personal views about an issue of statutory construction at the expense of considerations of comity...”

[121] There is even greater need to conform with this approach so far as an administrative tribunal is concerned. As an administrative tribunal the consideration is not one of judicial comity but rather whether I am bound to apply a judgment of the Federal Court. I consider that I am bound to apply National Retail Association (No 2) as it is on point, not plainly wrong, and has not been overruled. Although the judgment in National Retail Association (No 2) was concerned with a different provision of the Act, both provisions are concerned with the non-permissible discriminatory content in industrial instruments. In Klein, Gordon J did not conclude that National Retail Association (No 2) in its construction of s.153 of the Act was plainly wrong. Indeed, her Honour distinguished it as not binding her Honour in the construction of s.342. No one suggested that the provisions of ss.153 and 195 are materially different either in terms or in context so as to allow me to distinguish National Retail Association (No 2). Moreover, National Retail Association (No 2) has not been overruled.

[122] There can be little doubt that so far as the Commission is concerned, National Retail Association (No 2) in its interpretation of s.153 is currently a binding statement of the law as to the meaning of “discriminates” in that section. It follows that terms may be included in Modern Awards which indirectly discriminate. Whether such terms should be included will be determined by other considerations including the Modern Award’s objective. It is to be noted that ss.195 and 153 are related, not only because they concern the content of industrial instruments made or approved by the Commission, or because they are expressed in substantially the same language. The provisions are also related because they are capable of interacting in a very practical way. If different interpretations were to be adopted of the word “discriminates”, this may lead to an absurd result.

(Emphasis added)

The decision in Application by Metropolitan Fire was subject to a review pursuant to s.605 of the FW Act in Metropolitan Fire Appeal. Although the issue of indirect discrimination was resolved by undertakings and was a moot point, the Full Bench made the following obiter comments regarding s.195:

[68] Although it is not necessary for us to do so, we observe in any event that the Minister’s proposed construction of s 195 seems to us to suffer from at least three fundamental difficulties. First, s 195 serves the function of defining what constitutes a “discriminatory term” for the purpose of the approval requirement for agreements in s 186(4) concerning unlawful terms. It must be construed in that context. The Commission’s assessment as to whether s 186(4) is satisfied is necessarily undertaken at a time prior to the agreement under consideration taking effect. In respect of s 195, the assessment required is whether a particular term “discriminates” against an employee covered by the agreement for a proscribed reason. This task presents no particular difficulty in terms of the identification of directly discriminatory terms, since the text of such a term will disclose whether it discriminates or not.

[69] However, the position is different with respect to indirect discrimination, which is concerned with the impact or effect upon persons of facially neutral requirements. As stated by Dawson and Toohey JJ in Waters v Public Transport Corporation,”indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such ‘equal’ treatment is that the former is in fact treated less favourably than the latter”. Given that indirect discrimination is concerned with actual impacts and effects, it is not clear to us how it could be relevant to s 195, which exists for the purpose of an assessment which must be made before an agreement commences operation and has any effect on anybody. In this sense s 195 is entirely distinguishable from s 342 (the provision considered in Klein), which is concerned with “adverse action” – that is, actual conduct which has adversely affected a relevant person.

[70] Second, the Minister was unable to provide any sensible explanation as to how, in a practical sense, the assessment required to be made pursuant to s 186(4) in respect of discriminatory terms could be conducted if s 195 was construed to include indirect discrimination. Clearly, an examination of the text of the relevant agreement would not suffice, since it would be necessary to explore the impact of facially neutral terms upon employees covered by the agreement. This would appear to require the Commission, with respect to each operative term of the agreement, to conduct an inquiry as to the potential impact it might have on each employee that might be covered by the agreement once it came into operation. Such an inquiry would in most cases have to involve the Commission acting on its own initiative, since the overwhelming majority of enterprise agreement approval applications do not have a contradictor. Because the actual effects of terms would not be known (unless perhaps “rolled over” from a previous agreement), the Commission would need to speculate as to what effects might occur in the future. In order for this to occur, the Commission would presumably need to receive evidence as to the composition of the workforce in terms of the attributes listed in s 195(1) – that is, the racial composition, gender balance, sexual orientation, age distribution etcetera of the workforce. That could conceivably be done in the case of an employer with an established and stable workforce. However in the case of a start-up business with only a few employees that intends to expand, or a business with a high labour turnover, or a greenfields agreement where there is as yet no workforce at all, we cannot conceive how the task could practically be undertaken. The reasonableness exception which the Minister contends is incorporated into s 195 would require further inquiry as to whether any future discriminatory impact of a term of the agreement which might be hypothesised is justifiable having regard to the business operations and commercial interests of the employer.

[71] We consider it implausible that the legislature intended that the Commission undertake such a task pursuant to s 186(4). The Explanatory Memorandum for the Fair Work Bill 2009 stated an intention that the approval process for enterprise agreements be a “simple, point in time assessment”, and the Minister’s proposed construction of s 195 necessarily has consequences utterly at odds with this intention. We consider it more likely that s 218 of the FW Act constitutes the mechanism by which facially neutral terms in enterprise agreements which have actual discriminatory effects upon employees in their operation may be rectified.

[72] Third, the Minister’s contention that “discriminates” in s 195(1) includes indirect discrimination carries with it the proposition that a reasonableness exception is incorporated. However, no persuasive basis for this proposition was advanced. Section 195(2) and (3) set out in express terms the exceptions to the operation of s 195(1), and none of the prescribed exceptions operates as a general reasonableness exception. In this respect, s 195 is to be distinguished from s 351. Section 351(1) prohibits adverse action on identified proscribed grounds, but s 351(2)(a) provides that s 351(1) does not apply to action that is not unlawful under any anti-discrimination law that is applicable. This effectively incorporates the reasonableness exception for indirect discrimination invariably found in such legislation. The Minister’s contention that the word “discriminates” in s 351(1) by itself necessarily connotes indirect as well direct discrimination relies on passages in the High Court decisions in Street v Queensland Bar Association and Waters v Public Transport Corporation, but those passages do not demonstrate that the general concept of indirect discrimination necessarily carries with it a reasonableness exception absent legislative prescription to that effect.

In 4 yearly review of modern awards – Support Employment Services Award 2020[86], the Full Bench made the following obiter comments in relation to the proper construction of s.153:

[193] Although, for reasons stated below, s 153(1) is not determinative of the outcome of this matter, the text and context of s 153(1) and the authorities concerning or relevant to the provision indicate that it should be construed as follows. First, s 153(1) is concerned with award terms which discriminate against an employee on proscribed grounds, and its function is to prohibit the Commission from including such terms in a modern award. This indicates that the provision is concerned with potential award terms which textually or as a matter of legal effect discriminate in the proscribed way. It is not concerned with the conduct of any person nor the practical effects of facially or legally neutral terms in their operation (since such terms are not permitted to take operation). It is also not subject to any reasonableness exception. Therefore, s 153(1) does not appear to encompass the concept of indirect discrimination to which anti-discrimination statutes in other contexts have given effect.

In Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd[87](ABCC v McConnell) the Full Court of the Federal Court examined the meaning of “discriminate against” in s.45 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act). Like the FW Act, the BCII Act did not define “discriminate” or “discriminate against.” Katzmann J stated:

“Discrimination” in s 7 of the Equal Opportunity Act is defined to mean “direct or indirect discrimination on the basis of an attribute” and discrimination in contravention of certain provisions of the Act. This is the context in which the discussion in Waters took place. The reasoning in Waters is applicable to that context. There is no sound basis to import it into an analysis of discrimination in the different context of the BCII Act where there is no statutory definition.[88]

(Emphasis added).

Having regard to the authorities set out above, I agree with, and adopt, the reasoning of Deputy President Gostencnik in Application by Metropolitan Fire. As set out in that decision, ss.153 and 195 are not materially different either in their terms or context and National Retail Association (No 2) is on point, not plainly wrong, and has not been overruled.

In this respect, and for the same reasons set out by the Deputy President, I consider that I am bound to apply National Retail Association (No 2). This position is also consistent with the highly persuasive obiter comments made by differently constituted Full Benches of the Commission in Metropolitan Fire Appeal and 4 yearly review of modern awards – Support Employment Services Award 2020 in relation to ss.195 and 153 respectively.

I do not accept the Applicants’ submissions that cases concerning the approval of an enterprise agreement are of no assistance as they involve “pre-certification assessment”. As Tracey J said in National Retail Association (No 2), “the proscription of discrimination, without more, is not apt to pick up “facially neutral” discrimination.”

A similar view was expressed in ABCC v McConnell, albeit in the context of the BCII Act which did not define “discriminate against”. In the absence of a definition encompassing indirect discrimination, Justice Flick cautioned against seeking to transpose the considerable learning that has been accumulated in discrimination law, as it applies to human rights legislation, into the realm of industrial law.[89] Furthermore, Flick J held that the meaning of any particular phrase must be discerned by reference to the statute in which the phrase is employed.[90]In a separate judgment, Katzmann J held that there was no sound basis to import anti-discrimination law meanings into the interpretation of s.45 of the BCII Act.[91]

In relation to Centennial Mining, I do not accept the Applicants’ submission that the reasoning of Buchanan J was “justifiable to both direct and indirect discrimination.” In his conclusion, His Honour stated:

“So far as employees of the applicant are concerned, from the time they were permitted to continue working after 60 years of age a provision which subjected them to disadvantage by reference to attaining that age was directly discriminatory against them on the ground of their age within the meaning of s 195 of the FW Act.”[92]

(Emphasis added).

Lastly, and contrary to the submissions of the Applicants, the analysis of the authorities set out above reveals that the weight of authority is supports a conclusion that s.195 does not include indirect discrimination.

Conclusion

Section 195 is concerned with terms of enterprise agreements which textually or as a matter of legal effect discriminate against an employee because of, or for reasons including, one or more of the identified characteristics or attributes. It is not concerned with the effects of facially neutral terms in their operation.

As stated by the Full Bench in Metropolitan Fire Appeal, it is more likely that s.218 of the FW Act constitutes the mechanism by which facially neutral terms in enterprise agreements which have actual discriminatory effects upon employees in their operation may be rectified.[93]

Accordingly, the answer to the Applicants’ alternative question for arbitration is as follows:

3. Are the criteria for defining portability of employment entitlements found in Annexures L and M of the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020 discriminatory within the meaning of section 195 of the Fair Work Act 2009 (Cth)?

No.

COMMISSIONER

Appearances:

K. Edwards of counsel for the Applicants.
M Foran of counsel for the Respondent.

Hearing details:

2023.
Sydney:
25 July 2023.

Final Written Submissions:
Applicants: 4 August 2023
Respondent: 11 August 2023

[1] [2021] FWCA 173 at [4].

[2] Ibid; Clause 3.1(a) of the Agreement.

[3] See Clause 2.1 of the Agreement.

[4] See clause 2.1(a)(viii) of the Agreement.

[5] See Part 2-8 of the FW Act.

[6] Respondent’s Outline of Submissions at [21].

[7] SOAF at [13].

[8] Exhibit A1 at [6], Exhibit A7.

[9] SOAF at [13].

[10] Exhibit A1 at [6].

[11] SOAF at [14].

[12] Exhibit A8; Transcript at PN182.

[13] SOAF at [15].

[14] SOAF at [16]-[17].

[15] SOAF at [12], [18].

[16] SOAF at [20].

[17] SOAF at [21].

[18] SOAF at [21].

[19] SOAF at [22].

[20] Exhibit A6; Exhibit A8; Transcript at PN182.

[21] SOAF at [23]-[24].

[22] SOAF at [19], [25].

[23] SOAF at [26]; Exhibit A5.

[24] Exhibit A5.

[25] SOAF at [27]; Exhibit A6.

[26] Exhibit A6.

[27] SOAF at [28]; Exhibit A7.

[28] Exhibit A7.

[29] SOAF at [29]; Exhibit A8.

[30] Exhibit A8.

[31] SOAF at [30]; Exhibit A9.

[32] Exhibit A9.

[33] Transcript at PN191-PN192.

[34] Citing Project Blue Sky v ABA [1998] HCA 28; R v Young [1999] NSWCCA 166 at [12].

[35] Citing Carroll v Secretary to the Department of Justice [2015] VSCA 156 at [22].

[36] [2018] FCAFC 131 (Workpac).

[37] Workpac at [197]; Transcript at PN218–PN224.

[38] Applicants’ Submissions at [30].

[39] Ibid at [31].

[40] Applicants’ Submissions at [33].

[41] See paragraph [53] above.

[42] 2017 FWCFB 3005 at [114].

[43] Workpac at [97].

[44] See Clause 4 of the Agreement.

[45] Macquarie Dictionary Online ( Ibid.

[47] See clause 3 of Annexure M of the Agreement.

[48] See paragraph [77] above.

[49] Applicants’ Submissions at [35].

[50] Exhibit A3 and Exhibit A4.

[51] Applicants’ Submissions at [41].

[52] Respondent’s Jurisdictional Objection Submissions at [6]; Transcript at PN68; Exhibit A8.

[53] Citing the decision in Odyssey Marine Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union[2020] FWC 3020 at [144].

[54] Construction Forestry Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16 at [31]-[34]; Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [30]-[31].

[55] [2021] FWC 978.

[56] [2020] FCA 951 (Qantas v ALAEA) at [53]-[56].

[57] Ibid at [103].

[58] Exhibit A8.

[59] Exhibit A9.

[60] Qantas v ALAEA at [70].

[61] Captain Anthony Lucas v Qantas Airways Ltd[2023] FWCFB 77 at [9]-[11].

[62] [1991] HCA 49.

[63] Ibid at [21].

[64] Citing Shop Distributive and Allied Employees’ Association v National Retail Association (No 2) [2012] FCA 480 as per Tracey J.

[65] Citing Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 136 (Centennial Mining); Australian Maritime Officers' Union v ASP Ship Management Pty Ltd [2020] FWCFB 1469 (AMOU v ASP) at [27]; Qantas Airways Limited [2013] FWCA 8454 at [7]; Application by Commissioner for Public Employment [2010] FWAA 9372; Application by Australian Catholic University [2011] FWA 3693 at [14]; University of Melbourne Enterprise Agreement 2013 [2014] FWCA 1133 at [51]- [54]; Klein v Metropolitan Fire and EmergencyServices Board [2012] FCA 402 (Klein) at [102]; and Taylor v Department of Health [2020] FCA 1364 (Taylor) at [22].

[66] [2010] FWAA 9372.

[67] [2011] FWA 3693.

[68] Transcript at PN233, PN237.

[69] Centennial Mining at [42].

[70] Ibid at [43].

[71] Transcript at PN268, PN282.

[72] [2019] FWCFB 6255.

[73] Metropolitan Fire Appeal at [68]-[72].

[74] Transcript at PN238-PN255.

[75] Transcript at PN255-PN260.

[76] Transcript at PN261-PN262.

[77] [2023] FWC 55 at [134].

[78] Transcript at PN330-PN338.

[79] Transcript at PN339.

[80] Application by Commissioner for Public Employment [2010] FWAA 9372; Application by Australian Catholic University [2011] FWA 3693 at [14]; Qantas Airways Limited [2013] FWCA 8454 at [7].

[81] University of Melbourne Enterprise Agreement 2013 [2014] FWCA 1133 at [51]- [54].

[82] [2019] FWC 106

[83] Ibid at [94].

[84] [2012] FCA 480.

[85] National Retail Association No 2 at [52]-[56].

[86] [2022] FWCFB 203.

[87] [2012] FCAFC 93.

[88] Ibid at [109].

[89] Ibid at [49]

[90] Ibid at [50].

[91] ABCC v McConnell at [109].

[92] Centennial Mining at [52].

[93] Metropolitan Fire Appeal at [71].

Printed by authority of the Commonwealth Government Printer

Exhibit No.	Description
A1	Witness Statement of Kimberley Pearn dated 14 June 2023
A2	Witness Statement of Katherine Zahrooni dated 14 June 2023
A3	Witness Statement of Neil Bent dated 14 June 2023
A4	Witness Statement of Neil Bent dated 17 July 2023
A5	Letter from Independent Education Union (IEU) to Respondent dated 30 August 2022
A6	Letter from IEU to Respondent dated 6 September 2022
A7	Letter from Catholic Employment Relations (CER) to IEU dated 8 November 2022
A8	Letter from IEU to CER dated 15 December 2022
A9	Letter from CER to IEU dated 21 February 2023.