Maritime Union of Australia, The v DP World Brisbane Pty Limited

[2013] FWC 5849

[2013] FWC 5849

FAIR WORK COMMISSION

DECISION

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

Maritime Union of Australia, The
v
DP World Brisbane Pty Limited
(C2012/4392)

COMMISSIONER BOOTH BRISBANE, 30 AUGUST 2013

Arbitration of a dispute under an enterprise agreement - absence management

[1] The Maritime Union of Australia (MUA) brought an application for arbitration of a dispute arising in the workplace about the application of the DP World Brisbane Enterprise Agreement 2011 (the 2011 Agreement) to do with the absence management plan (AMP) provisions of the Agreement. The Respondent is DP World Brisbane Pty Ltd (DP World).

The Dispute

[2] The 2011 Agreement replaced the DP World Brisbane Workplace Agreement 2008 (the 2008 Agreement), and the parties have been engaged in a number of disputes over implementation of the changes included in the 2011 Agreement.

[3] The parties have agreed that the issue in dispute is as follows:-

DP World Brisbane Enterprise Agreement 2011 (the Agreement) contains an Absence Management Policy in Appendix 1 at page 37. DP world Brisbane Pty Ltd monitors individual employee absence levels over a year.

There is a dispute between two parties to the Agreement as to the intended meaning of the phrase “year” used for the assessment of the number of absences an employee has had during the period.

Finding

[4] For the following reasons I find that the meaning of the year in Appendix 1 of the 2011 Agreement is a reference to the preceding 12 months, that is, a floating year and not the current financial year.

Agreed Statement of Facts

[5] An agreed statement of facts included the following background:-

In or around April 2011, Applicant (as an employee bargaining representative) and management teams representing the Respondent DP World Sydney Limited, DP World Adelaide Limited, DP World (Fremantle) Limited, DP World Melbourne Limited commenced negotiations for a proposed 2011 Agreement.

Negotiations were split into two parts, Part A addressing national issues and standards to apply to five ports nationally and Part B addressing local site issues.

Negotiations in relation to the proposed 2011 Agreement to replace the 2008 Agreement continued for Part A until late February 2012 and in relation to Part B around 23 March 2012. The nominal expiry date of the 2008 Agreement was 1 July 2011.

The inclusion of various policies, including absence management into the proposed Part A of the 2011 Agreement formed part of the MUA's log of claims. Various drafts of Part A of the Agreement were exchanged between the parties during the negotiation process.

On 4 April 2012, employees cast their votes on the approval of the proposed 2011 Agreement and a majority of them endorsed the 2011 Agreement.

Part A of the 2011 Agreement included Appendix 1 titled “Absence Management”. No comparable provisions had been included in the 2008 Agreement or previous workplace Agreements. The Enterprise Agreement was lodged with Fair Work Australia (FWA), as it was then known, and approved on 23 May 2012.

On the 28 May 2012, the Respondent sent a memorandum to its employees outlining the operation of the absence management arrangements under the 2011 Agreement, which would be implemented from 4 June 2012.

The Applicant contends that the words “the year” in Appendix 1 of the 2011 Agreement is a reference to a ‘financial year’.

The Respondent asserts that the words “the year” means the 12 month period prior to any particular absence, so that for each absence, the 12 month period prior to the date of that absence is reviewed to calculate the number of uncertified absences taken in the previous 12 month period (“the retrospective rolling year”).

The 2011 Agreement

[6] The parties agreed that the 2011 Agreement provisions relevant to this dispute are clause 16 and Appendix 1.

16.0 PERSONAL LEAVE

This clause shall be read in conjunction with clause 23 of the Stevedoring Award, and shall apply to the extent of any inconsistency.

16.1 Amount of Personal Leave

16.1.1 Yearly Amount

A Permanent Employee shall be entitled to 13 days' personal leave per year which shall consist of sick leave (up to 10 days per year) and carer's leave.

16.1.2 Accumulation of Personal Leave

In any year, unused personal leave accrues at the rate of 10 days less:

● the amount of sick leave taken from the current years' personal leave entitlement; and

● the amount of carer's leave taken, in excess of 3 days, from the current years' personal leave entitlement.

16.2 For the purpose of this clause "year" means the period between 1 July in one year and 30 June the following year.

16.3 The requisite evidentiary requirements and absence management process are outlined in Appendix 1.

…

16.7 Casual Employees (Supplementaries) are entitled to carer's leave in accordance with the Act and must comply with the evidentiary requirements set out in Appendix 1.

16.8 Compassionate leave

16.8.1 An Employee is entitled to 3 days' leave on each occasion of death of a member of the Employee's immediate family or household.

16.8.2 The Employee must give DP World notice of the intention to take such leave as soon as practicable after the death and give DP World satisfactory evidence of such death.

…

16.9 Cashing out of Personal Leave

16.9.1 An Employee may have their accrued personal leave cashed out in accordance with the following provisions:

(a) resigns their employment after 10 years, retires, is made redundant or dies;

(b) is accepted by their superannuation fund as totally or permanently disabled;

(c) the Employee (or in the case of death, the Employee's personal legal representative) will be paid an amount equivalent to the Employee's unused accumulated sick leave entitlement;

(d) payment for excess accrued personal leave where at 1 July of any year, an Employee has accumulated in excess of 28 days unused personal leave.

16.9.2 Any personal leave cashed out in accordance with 16.9.1 will be paid at clause 11.0 - Rates of Pay where a day of personal leave is 8 hours.

APPENDIX 1. ABSENCE MANAGEMENT

The Company understands that from time to time, Employees are unable to attend work due to illness or injury. In these circumstances, Employees have the right to access their sick leave entitlement provided for under the Agreement provided this is for genuine illness. Employees should be aware however of the impact unplanned absences have on the business and the Company’s ability to properly service its customers. For these reasons and to ensure sick leave is used for genuine illness or injury the Company requires Employees to provide the following evidence to substantiate their absences in any of the following circumstances:

(a) 5 days absence in the year may be uncertified;

(b) The 6th uncertified day of absence requires production of a statutory declaration;

(c) Any absence in excess of 6 uncertified days must be accompanied by a medical certificate;

(d) Sick leave absences for each day prior to or following a public holiday must be accompanied by a medical certificate;

(e) Employees who are subject to an Absence Management Plan (AMP) must provide a medical certificate for any absence.

In the cases where medical certificates must be provided as outlined, the certificates will only be accepted in the following circumstances:

(a) Prior to the day of the absence;

(b) On the day of the absence;

(c) On the next rostered shift immediately following the absence (provided certificate is not backdated).

In all these circumstances no backdated medical certificates will be accepted.

Employees in need of multiple consecutive days off will advise HR or Allocations of the period of absence as soon as practicable. Once an Employee has advised either HR or Allocations they are then not required to contact Microster for the remainder of the notified period of absence.

Except as outlined above regardless of the requirement to produce medical certificates or not, EVERY Employee has an obligation to contact Microster in accordance with the shift notification times prior to the commencement of their rostered shift otherwise this will be recorded as an FTR.

The applicable notification times are as currently agreed locally at each terminal.

For the purposes of managing absenteeism the Company will also monitor patterned behaviour, for example repeatedly calling in sick before or after an RDO or before or after a period of planned leave and DIL. In addition any poor absence record or where the Company suspects that sick leave is not being used for genuine illness or where such patterns detailed above occur, may also lead to the implementation of an Absence Management Plan (AMP) and/or disciplinary action.

Where an Employee fails to substantiate a sick leave absence with a medical certificate for any of the situations outlined in points (a) to (e) above or if the Employee does not comply with the shift notification times, the Employee's absence may be regarded as unauthorised and therefore in breach of Company policy. Note: Providing an Employee has an entitlement to sick leave it will be paid.

Carer's leave

Carer's leave will be applied for and granted in accordance with the provisions of the Agreement and, where applicable, the Stevedoring Award. Evidence to support a claim in the form of a medical certificate for the immediate family member requiring care is required for payment of the leave in accordance with the Agreement.

Absence Management Plan (AMP)

The Company will place an Employee on an AMP in the event that there are concerns with excessive absenteeism and/or patterns of absence.

(a) If an Employee is placed on an AMP between 1 July and 31 December the AMP will be effective for a period of six (6) months.

(b) If an Employee is placed on an AMP between 1 January and 30 June the AMP will be effective for a period of four (4) months.

In the event that there has been continued breaches and no noticeable improvement throughout the period of the AMP, it may be extended. The extension will be for a further 4 months.

[7] The Stevedoring Industry Award 2010 referred to in clause 16 provides for evidence of unplanned absences in clause 23.4:

23.4 Evidence requirements

a) The employee will, if required by the employer, establish by the production of a statutory declaration, that the employee was unable to work because of injury or personal illness.

b) In the case where the period of absence is extensive or where the employee failed to report for duty in circumstances where, in the employer’s opinion, a requirement for confirmation for the reason for the absence is justified, the employer may require the employee to produce a legally qualified medical practitioner’s certificate that the employee was unable, in the medical practitioner’s opinion, to attend for work through personal illness or injury.

[8] The Award provides that personal/carer’s leave is provided for in the National Employment Standards (NES), prescribed by Division 7 of Part 2.2 of the Fair Work Act 2009 (theAct). The NES prescribe the minimum standards, and industrial instruments may provide differently, subject to the Act. The minimum evidentiary requirements are found in s.107 of the Act:

107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

[9] There is no contention between the parties that:

a) the 2008 Agreement did not include absence management or evidentiary requirements, providing only for the quantum and payment arrangements for personal leave;

b) absence management and evidence were previously governed by the Respondent’s human resource policies; 1

c) DP World Brisbane is a separate company from other DP World entities operating at other ports;

d) each port had its own absence management policy prior to the 2011 Agreement;

e) inclusion of absence management in the 2011 Agreement was in MUA’s log of claims;

f) DP World initially resisted the inclusion, but compromised during negotiations;

g) absence management (along with some other matters) were negotiated nationally; and

h) Appendix 1 has the effect of amending the previous policy.

[10] It is also common ground that after commencement of the 2011 Agreement, certain named employees were placed on AMPs. From the oral evidence it appears they had all been removed from AMPs and no disciplinary action had been taken against them. It is unclear whether a dispute remains on foot in regard to those employees.

Applicant’s Evidence

[11] Statements and oral evidence were given by Trevor Munday, Deputy Secretary of the Queensland Branch of the MUA and Warren Smith, Assistant National Secretary of the MUA, and written and oral submissions were provided.

[12] The extensive documentary evidence exhibited to the witness statements included:

a) DP World’s Absence Management Policy (the Company Policy); 2

b) the MUA’s Final Offer of Settlement 15 December 2011, deposed to as being “a revised version … including DP World’s responses”;

c) DP World’s “Enterprise Agreement – Employee Update No. 6” dated 20 December 2011;

d) a series of draft agreements including:

i. “first draft” provided by DP World to MUA on 10 January 2012;

ii. the MUA’s marked up response attached to an email dated 19 January 2012;

iii. DP World’s further version of 30 January 2012;

iv. DP World’s draft as at 14 February 2012;

e) DPW EBA 2012 Report for Members, prepared by Mr Smith mid-February 2012;

f) DP World’s Brisbane Bulletin headed Absence Management;

g) Deed of Agreement between the parties, dated 30 August 2012 about redundancies.

[13] The Company Policy which was also exhibited by DP World’s witnesses provided in part:

… to ensure sick leave is used for genuine illness or injury, the Company requires all employees to provide a medical certificate to substantiate their absences in any of the following circumstances:

1. Sick leave absences of two (2) or more consecutive days;

2. Employees who have been specifically advised that they produce a medical certificate; and

3. Employees who are subjected to a formal absence management Plan.

…

To be clear, sick leave days separated by an RDO, unavailability, annual leave, or any other leave day will be treated as separate and distinct periods of absence.

Where an employee fails to substantiate a sick leave absence with a medical certificate any of the situations outlined in points 1 to 3 above or if the employee does not comply with the shift notification times, the employee absence may be regarded as unauthorised and therefore in breach of company policy. In these circumstances, the employee will also be subject to disciplinary action. This obligation forms an integral part of the Company's absence management program, which may result in employees facing disciplinary action for excessive absenteeism without medical evidence to substantiate their absences.

For the purposes of managing absenteeism the Company will also monitor patterned behaviour, for example repeatedly calling in sick before or after an RDO or before or after a period of planned leave. Such patterns may lead to disciplinary action.

ABSENCE MANAGEMENT PLANS

Employees are currently subject to individualised Absence Management Programs (AMPs) must continue to comply with the conditions applicable to them under those programs.

Excessive absenteeism, (in particular single days absences) and/or patterns with absence will also be monitored over a rolling 12 month period, regardless of whether the absences are certified or not. In such circumstances where the Company deems the level of absenteeism to be excessive or there are any concerns with patterns of absences, where the company may suspect that sick leave is not being used for genuine illness, employees may be placed on an Absence Management Plan or be required to undertake an independent medical assessment to assess fitness to perform the inherent requirements of the Stevedoring role.

[14] Under the Company Policy, an employee on an AMP was subject to additional reporting and evidentiary requirements. Statutory declarations or certificates from non-medical practitioners (e.g. chemists) were not acceptable. AMPs would be in place for 12 months or "until such time as management is satisfied that there is a significant improvement in your level of unplanned absences".

[15] Mr Munday deposed that the application of the Company Policy was harsh and unfair on members, in part because of the possibility of arbitrary and subjective decisions about when and on what basis an employee would be placed on an AMP. He says the issue of the quantum of uncertified leave was discussed with DP World in late November 2011.

[16] Mr Munday under cross-examination reiterated that the primary issue discussed was the “quantum of uncertified leave to be allowed during one year”. There was also an exchange about the timing of leave:

One of the concerns was that they applied it in a subjective manner, depending on who it involved and the timing thereof.

So when you say “the timing thereof”, you mean there was too much discretion about how long the absence management plan would go for? --- No, it was in - what I was making mention of is if someone unfortunately fell ill on a weekend and had a requirement to get a medical certificate, the position of the company was that they had to go to the emergency ward in a public hospital to produce a medical certificate so they didn't go on an AMP and possibly get a warning letter. 3

[17] Similarly on the question of absence management being part of the MUA's log of claims Mr Munday responded:

The question of absence management became part of the union's log of claims? --- Absence - yes. The original claim, as I recall it, was about seeking interpretation of the Stevedoring Industry Award provision where an employee may be required… to produce evidence to support their claim for illness. 4

[18] Mr Smith’s evidence dealt with the negotiations for an absence management policy, the drafting of the 2011 Agreement and the provision of information to members.

[19] Mr Smith deposed that the MUA had concerns about the inconsistent application of the Company Policy. He accepted that abuse of sick leave was not a good position for either party. Further there was a commitment by the Union to negotiate terms that would “protect fundamental rights of workers who were genuinely sick and who had, in the past, been negatively impacted upon” by the Company policy.

[20] Mr Smith deposes:-

8 …The issue as to whether a financial year or a rolling year would apply when calculating absences was not a point of debate… 9 … I recall having a conversation with Andrew Adams from DPW in at least one meeting in which I explained the necessity for the AMP to operate on a financial year basis.

[21] The duration of an AMP, 6 months for a plan instituted in the first half of the financial year but 4 months for one instituted in the second half, was explained by Mr Smith as follows:

10. The position I put forward to DPW… was that the duration of the AMP should depend on which part of the financial year the employee was placed on an AMP. I recall explaining the practical reasons of this to DPW being that if an employee was placed on an AMP in the first 6 months of the financial year then they have a significant number of unexplained absences in the short period of time since 1 July. In that case, a 6 month AMP would properly reflect the employee's actions and would be consistent with the requirement for the employee to maintain a good sick leave record until the end of the financial year. However, if an employee was placed on AMP in the second half of the financial year, a four month AMP was appropriate reflecting that the employee had not taken excessive uncertified absences for the majority of the financial year and that there was a relatively short period of time until the end of the recording period, being the end of the financial year.

[22] Mr Smith deposed that DP World's original position was that all AMP's should be six months and rejected a financial year basis for calculating personal leave issues in the Agreement, but that by mid-February, DP World had conceded a number of points.

[23] Clause 9(a) of the MUA Final Offer document reads:

9. Personal leave

a. Evidentiary requirements 5 days without, 5 days with (2 of the certified days can be stat dec.) in financial year – DP World positioned 4 days uncertified, 2 days stat dec 7th day onwards med certs - all days of absence will be subject to consideration for patterns. MUA position days 8 – 10 medical certificate, no certificate day 8 onwards will be an automatic AMP. [underlining in original]

[24] The Employee Update, issued by DP World, reads in part as follows:

Policies

The Union are seeking to include a reference the following policies [sic] at a specified date in the Agreement: Drug and Alcohol, Safety, Workers Compensation, Disciplinary and Absence Management Plans. The Company’s position is that we have no concerns referring to or naming specific policies, however, the Company do not want the Policies referenced at a certain date as they are live documents and may be varied from time to time.

Personal Leave

The MUA have 4 claims under the category of Personal leave:

(1) Evidentiary requirements;

(2) Cash out of salary;

(3) Not taking sick leave before going on income protection; and

(4) 2 years unpaid personal leave whilst on income protection.

The MUA are claiming that employees have 5 days absence without evidence and 5 days with evidence. 2 of the 5 certified days can be via statutory declarations in a financial year. Should an employee not produce a medical certificate the employee would either be placed on an immediate Absence Management Plan (AMP) and/or will be issued a formal warning (and AMP).

DP World's position is that first 4 single days absence maybe uncertified, 2 days with the statutory declaration and from the 7th day onwards the employee must provide a medical certificate. All days of absence will be subject to consideration for patterns. Any breach of obligations will be placed on AMP for a minimum of 6 months. DP World's concern is based on the high levels of absenteeism in our business and the significant impact it has on our service delivery.

[25] The earlier draft agreements deal with absence management in Appendix 3. From the 14 February draft, absence management is in Appendix 1. None of these drafts refers to a financial year. The earlier drafts refer to “the first five days in the year” but by the 30 January draft, the wording is identical to the final document, namely “5 days absence in the year may be uncertified”. No draft explicitly refers to a financial year for the evidentiary provisions.

[26] Drafts before the 14 February version included a section headed “Selection criteria” incorporating verbatim a provision from the Company Policy:

For the purposes of upgrades under the selection criteria, all absences will be reviewed based on a 12 month rolling period from the date of advertised vacancy. Only certified absences will not count towards the upgrade process except in circumstances where the employee is subject to an AMP.

[27] That section did not survive into the 14 February version and is not in the 2011 Agreement. No evidence was adduced about why this concession was made, except for Mr Smith noting that it came after a round of negotiations in February.

[28] Mr Smith’s Report for Members, under the heading "Personal Leave" reads:

This hotly debated matter ended with the following points agreed.

In each financial year, 5 sick days can be taken without certification days and 1 with a statutory declaration. Any further absence without certification in that year will require a doctor's certificate on the following basis.

● If a breach occurs in first six months of year, a certificate will be required for the following six months.

● If breach occurs in second six months of year, a certificate will be required for the following four months.

[29] On the state of the evidence about when a financial year came into the drafting, Mr Quinn noted in oral submissions:

Then in the next generation of the document on 19 January the MUA inserted the reference to financial year into the draft, the evidence being that was copied directly from the Stevedoring Industry Award and including the words "for the purpose of this clause". There's no direct evidence before the commission as to the purpose for relying on those particular words. There were multiple iterations on the documents after that date. The definition was included in the iteration of 14 February and from that date onwards those provisions remained... 5

[30] However, it seems MUA was unaware of the rolling year policy of DP World:

Further Mr Muscat gave evidence confirming that there was no other evidence identifying that there was a particular or a single absence management policy that was ever in the direct contemplation of the parties during the negotiations. Mr Muscat confirmed that across the multiple companies who were represented in the negotiations there were multiple different AMP policies, and there's no evidence before the commission that those different policies or the variations in those policies relevant to these issues were ever discussed in the negotiations such that those elements of the policies, or more specifically the elements of the policy in place in Brisbane, could be identified as the objective background facts known to all the parties to the negotiations. In fact Mr Smith confirmed that he was unaware at the time of the negotiations that there was such a policy in place in Brisbane when he was negotiating that arrangement on behalf of the MUA. 6

[31] Despite that lack of knowledge of the policy, Mr Quinn submitted:

The only thing that's consistent in the evidence provided to the commission is the consistent communication by the MUA to the respondent in the form of a demand for a financial year in relation to the monitoring of uncertified absences. 7

[32] The following exchange took place during Mr Smith’s cross-examination:

In the Port of Brisbane or Fisherman Island the practice of the company was to monitor absences over a rolling 12 month period? --- As far as I'm aware, that would seem to be the position I wasn't as familiar at the time with the operation of the specifics of the Brisbane policy but it seems clear from statements from the company that that's the way that they have performed.

...

Whether the company would monitor absences on a financial year or a rolling year basis was not a point of debate? --- It wasn't a point of debate. 8

Respondent’s Evidence

[33] Witness statements were provided by Mark Hulme, Director and General Manager DP World Brisbane and Gregory Muscat, Human Resources Manager at DP World Brisbane. Both gave oral evidence. Documents exhibited included:

● the Company Policy;

● the MUA log of claims; and

● Without prejudice DP World offer of Settlement 16 December 2011.

[34] Mr Hulme detailed the enterprise agreement negotiations, background to the Company Policy and negotiations concerning the Policy.

[35] He deposed that negotiation of enterprise agreements was split into two parts. Part A involved negotiation of workplace terms consistent across all DP World locations in Australia and Part B involved the negotiation of site-specific terms and conditions.

[36] He attended all national negotiation meetings apart from one attended by Mr Muscat.

[37] Mr Hulme deposed that the MUA wanted certainty on the criteria to be applied when DP World placed an employee on an AMP, particularly how long the employee was on the AMP and some certainty about removal from the AMP.

[38] Mr Hulme deposed that DP World resisted incorporating AMPs into the Agreement and sought to maintain discretion under the Company Policy. He added that sick leave was “a massive problem for our business”.

[39] He deposed:

“I do not recall any discussions at those meetings that the number of uncertified medical certificates [sic] would be on the basis of a ‘financial year’. In the past it has been the Respondent's practice, according to its internal policy, to require medical certificates for two or more consecutive days. The Respondent monitored uncertified personal leave absences of four or more in any rolling 12 month period. Uncertified absences are one, but not the only one, of the circumstances that may lead to DP World putting an AMP in place.

…

Throughout the negotiations of the 2011 Agreement, I do not recall any of the representatives negotiating whether the amount of uncertified absences would be in a specific year or financial year. It has been the practice of DP World that it would permit uncertified absences of less than two days, however, it would manage excessive uncertified absences over the preceding period of 12 months. 9

[40] Mr Hulme disagreed with the statement of Warren Smith that there was agreement that the AMP issues were about the financial year. On clause 9(a) of the MUA’s Final Offer document, Mr Hulme deposed:

I do not agree that the above marked response, which are asserted as being from Ms Blomfield, is tantamount to acceptance of the financial year limitation. DP World has not agreed [sic] to be limited to a financial year period.

[41] On the question of the varying periods of an AMP based on the part of the year Mr Hulme deposes:

The varying periods was a proposal by the MUA, which was eventually accepted by DP World as part of an overall compromise to conclude the agreement. The previous AMP policy provided for 12 months, DP World offered six months as part of the negotiations, which was DP World’s preference.

[42] Mr Hulme exhibited a “Without prejudice DP World offer of Settlement 16 December 2011” which states:

3. AMP

a. All days of absence will be subject to consideration for patterns

b. Medical certificate after the 6th day of absence

c. Any breach of obligations will be placed on an AMP for a minimum of 6 months.

[43] He deposes that at no stage was it agreed that certification of absences should be linked to the financial year. Further such a position would be a significant departure from existing practice and could not be accepted by DP World.

[44] As to the inclusion of the definition of the year in what ultimately became clause 16 of the 2011 agreement Mr Hulme deposes:

It was proposed that the definition of a "year" from the Stevedoring Industry Award 1999 be used for the purposes of the accrual and crediting of personal leave.

[45] On issues that were raised in terms of absence management he stated:

In regard to what element of the AMP? --- Certification, requirements of medical certificates, statutory declarations, that absences were a problem in our business. It covers most of the issues that I would have raised at various times. 10

[46] Mr Hulme was cross-examined in relation to the negotiations. He confirmed that there was no communication to DP World that the MUA were to drop the claim made in the 20 December document. He did not recall the MUA bringing up the financial year point again.

[47] Mr Hulme stated on the question of what was ultimately agreed as follows:-

… we would accept the insertion of the AMP into the enterprise agreement as it is contained in the 2011 Agreement, with what I guess negotiated position on the requirement for the production of medical certificates or statutory declarations

… What is contained in the enterprise agreement was the position that was the negotiated outcome. 11

[48] Mr Muscat deposed that some of the AMP criteria were amended and included in the 2011 Agreement. The revised Company Policy was implemented following release of the memorandum to employees after discussion with the local employer representative committee.

Submissions and the Relevant Law

[49] The MUA submitted that the principles of interpretation of industrial instruments are well settled. They pointed the Commission to a number of cases, including AWU (WA) v Cooperative Bulk Handling 12; Watson v ACT Department of Disability Housing and Community Services13(Watson); Codelfa Construction Pty Ltd v State Rail Authority of NSW14 (Codelfa) and Australasian Meat Industry Employees’ Union v Coles Supermarkets Australia Pty Ltd.15

[50] DP World cited numerous other authorities relevant to the principles of interpretation including Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd  16 and Manildra Flour Mills (Manufacturing) Pty Ltd V National Union of Workers 17 (both regarding interpretation of awards); Amcor Limited v Construction, Forestry, Mining and Energy Union18; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd19; Oceanic Coal Australia Pty Ltd v Parker20; Codelfa (above); City of Wanneroo v Holmes21.

[51] As Mr Quinn for MUA noted, the parties agree as to the principles of interpretation.

[52] A good summary of the case law is provided in Watson, cited above. In that case, Vice President Lawler comprehensively summarised the case law starting with general law of construction of contracts and its specific applicability to interpretation of enterprise. His Honour states:

[8] There are well established principles under the general law for the construction of contracts. Those principles are generally applicable in the construction of certified Agreements. For example, in Telstra Corporation Ltd v CEPU a Full Bench of the Commission was concerned with applications to vary a number of certified Agreements and, in the course of its decision, summarised the principles governing the resolution of ambiguity in a certified Agreement:

“[33] The judgment of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW established widely accepted principles for resolving ambiguity in contracts. In that case Mason J stated the rule thus:

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

[34] In BP Australia Pty Ltd v Nyran Pty Ltd, Nicholson J distilled, by reference to Codelfa, the following points of principle for resolving ambiguity in contracts:

● it is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity;

● if the contract has a plain meaning, evidence of surrounding circumstances will not be admissible to contradict the language of the contract;

● if the language of the contract is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances is admissible to assist in the interpretation of the contract;

● the concept of surrounding circumstances is to be understood to be a reference to the objective framework of facts. It will include:

● evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract;

● facts so notorious that knowledge of them is to be presumed;

● evidence of a matter in common contemplation and constituting a common assumption.

[35] After referring to the foregoing points of principle Nicholson J continued as follows:

‘From the evidence of that setting the parties' presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible.’ [footnotes omitted]

[53] Vice President Lawler also quoted at length from Short v FW Hercus Pty Ltd, relevantly as follows:

In Short v FW Hercus Pty Ltd Burchett J, with whom Drummond J agreed, considered whether inter alia, with whether it is legitimate, for the purpose of construing a clause of an award, to look at the history of the provision. After considering a number of authorities, Burchett J observed:

…

The fact is that words are frequently susceptible of more than one meaning. Paradoxically, ambiguity may be born of the reader's clarity of thought which perceives a potentiality for an alternative meaning. But in many cases only evidence of extrinsic facts can show that the potentiality has substance. The old case Macdonald v. Longbottom (1859) 1 El and El 977 (120 ER 1177), to which Mason J. referred, is an example, since there is nothing necessarily ambiguous in the expression "your wool" (indeed Erle J. At 986 described it as "most explicit") - only evidence that at the time the vendor had both wool of his own growing, and also wool which he had bought in from others, could raise an ambiguity, while at the same time solving it once the other party was shown to have known the facts.

While Short v FW Hercus Pty Ltd was concerned with the proper construction of a clause in an award, it is clear it is equally applicable to the construction of certified Agreements … 22

[54] In summary, the principles are:

a) determine if the clause in the enterprise agreement has a plain meaning and if so, apply that meaning;

b) if the language is ambiguous or susceptible of more than one meaning, evidence of the surrounding circumstances is admissible to assist in interpretation;

c) the surrounding circumstances are to be understood by reference to objective framework of facts including:

i. evidence of prior negotiations are far as they tend to establish subjective background facts known to both parties and the subject matter of the enterprise agreement.

ii. facts so notorious that knowledge of them is to be presumed;

d) evidence of a matter in common contemplation and constituting a common assumption; and

e) what is not admissible is statements and actions of the parties which reflect their actual intentions and expectations, as these relate to the terms the parties intended or hope to make and are superseded and merged in the agreement itself.

[55] Finally, as summarised by Vice President Lawler in Watson:

an industrial Agreement must always be construed in context: the context of particular provisions within the Agreement as a whole and the context in which the Agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the Agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity. 23

[56] MUA argues in written submissions that:

“… the mutual objective intention that can be identified was that a financial year would be applied to calculate absences for the purposes of absence management. This is evident from the documents which were exchanged between the parties and the verbal exchanges which took place at negotiation meetings.” 24

[57] The submissions then detail those documents and verbal exchanges.

[58] DP World rejects this approach, arguing that any mutual intent of such a matter would have been expressed in plain words such as reference to a "financial year". DP World argues that Appendix 1 stands alone and properly interpreted the 2011 Agreement does not evidence an “intention to change the existing monitoring period on behalf of DP World.” DP World argues that a financial year basis would result in unintended consequences, particularly as employees are credited personal leave in advance. DP World explicitly rejects any nexus between the definition in clause 16 and meaning of "the year" in Appendix 1.

[59] MUA's submissions in reply argue that Appendix 1 is a subsidiary element of matters provided for in clause 16. It points to the use of the definite article in the Appendix. The submissions in reply further argue:

… The applicant’s evidence identifies its intentions communicated to the respondent about the operation of the Agreement; silence from the respondent in response to such communication is central to objectively determining the mutual presumed intention. The evidence filed on behalf of the applicant demonstrating it that communicated its intentions concerning the meaning of "year", both in negotiations and drafting, and the inability of the respondent to identify any evidence of dispute over the approach provides the evidence sufficient to the Commission to determine the objective mutual intention contended for by applicant [sic]. 25

[60] In oral submissions DP World pointed out that the phrase “the year” may not be the key to absence management:

So the whole notion of whether the year is a calendar year, a financial year, a rolling 12 months, it ultimately doesn't matter. That can be demonstrated through what Mr Muscat said, which Mr Smith accepted in his cross-examination, was that there are a range of circumstances in which the company may initiate an absence management plan. Only one of those is where the evidence or certification requirements have not been satisfied by the employee.

…

As to the interpretation of the word "year" which the applicant takes, in our outline of submissions, at paragraph 1.8, we set out some specific reasons why we say that interpretation should be rejected, and I will go to those briefly. This is on page 3 of the respondent's outline of submissions, Commissioner. The first is that appendix 1 is a stand-alone part of the 2011 agreement and the words in the appendix are unambiguous. To the extent that the meaning of the word "year" is an issue which arises, its plain and ordinary meaning should be given and one should not import a definition used elsewhere where the word can be given a sensible and ordinary meaning. The word "year" is a period of 12 months. That's its essential meaning. So we say that it should simply be interpreted that way.

The second matter which we say tells against the applicant's interpretation of "year" is that the definition in clause 16.2 is clear and explicit when it says that it applies for the purpose of that clause only. We make that point at paragraph 1.8(b). It's not a concept, having been written that way, that can be applied more broadly in the agreement, including appendix 1. Thirdly, there is no evidence to support the assertion that the parties intended that the taking of uncertified absences would reset with a new financial year, and on the applicant's evidence its representatives considered amendments to clarify the operation of clause 16 but made no corresponding amendments to appendix 1. We refer there also to appendix 8 of Mr Smith's statement in which he says the idea of a financial year or a rolling financial year was not a point of debate; it didn't arise.

Fourthly, the applicant’s interpretation is at odds with the purpose, intent and wording of appendix 1, as well as the respondent's custom and practice. The interpretation seeks a departure from that custom and practice and seeks to very significantly limit the ability of the company to manage its absenteeism issues. That's not a restriction on its ability to manage the business that employer would likely take on. Let me say that that's a matter which can be given some attention. So they're some specific reasons why we say that the interpretation of the word "year", should it be necessary to consider it, is not to be done in a manner as urged upon the commission by the applicant. 26

[61] Mr Quinn for MUA argued that “to the extent that the definition has been located inside clause 16 or there may be some infelicity in expression” the principle to be applied is that in SDA v Woolworths where Madgwick J said:

“the search is for meaning intended by the framers of the document, bearing in mind that such framers were likely of a practical bent of mind; they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.

… and meanings which avoid inconvenience or injustice may reasonably be strained for.” 27

[62] MUA says there is no straining necessary to identify the meaning of “the year”. The definition in clause 16 should be read in light of the statement of Madjwick J: that is a function of drafting not a function of an intention to isolate it from the operation of Appendix 1.

[63] Mr Perry for DP World in oral submissions 28 resists the rival construction of “the year” for the following reasons:

a) Appendix 1 is a stand-alone part of the 2011 Agreement and in its context “the year” plainly means 12 months;

b) the definition of year in clause 16.2 is for the purpose of that clause alone and not for Appendix 1;

c) there is no evidence to support MUA’s assertion that the parties intended to “reset” uncertified absences with the new financial year and on MUA’s evidence its representatives considered amendments to clarify the operation of clause 16 but made no corresponding amendments to Appendix 1;

d) MUA’s interpretation is at odds with the purpose, intent and wording of Appendix 1 and DP World’s custom and practice and would limit DP World’s ability to address absenteeism issues.

[64] Mr Perry added:

this is a simple case which has been layered with unnecessary complexity. The fact is that the appendix to the enterprise agreement says that an absence management plan can be activated where DP World has a concern about excessive absenteeism and/or patterns of absence, full stop. That's it. That's what the agreement says. When DP World has that relevant concern it is entitled under appendix 1 to activate an absence management plan. In disposing of this matter the commission need go no further than that. It need not consider the vexed issue of what a year means in the context of medical certificates and a definition of "financial year" in the context of clause 16. Those matters simply don't arise and are a distraction, in our respectful submission, from the true interpretative task which is placed before the commission. 29

Consideration

[65] The Commission has been asked to arbitrate on the meaning of a phrase, “the year” for the purposes of certifying sick leave absences as it is incorporated in the 2011 Agreement: does it mean a financial year as pressed by MUA, or a floating 12 month period, the meaning urged by DP World?

[66] The inclusion of absence management in the 2011 Agreement was important for the MUA because of perceived inconsistencies and the possibility of capricious application of the policies that were previously in place to govern “unplanned absences”, specifically short absences from work because of illness. DP World initially resisted incorporating absence management into the Agreement, but yielded during negotiations, and the resulting Appendix 1 is a modification of the policy that existed previously.

[67] The evidence shows that negotiations focussed on:

a) the number of individual sick days that might be taken without certification;

b) the acceptability of an employee’s statutory declaration as adequate certification; and

c) the duration of AMPs imposed.

[68] The 2011 Agreement resolved these issues by:

a) allowing up to five individual days to be uncertified “in the year” where previously there had been no set number, but the evidence indicated a policy of investigating after 4 or more one-day absences;

b) accepting a statutory declaration by the employee for a sixth day whereas previously medical certificates only were accepted; and

c) accepting the split year as proposed by the MUA.

[69] The evidence points to the definition of “year” not being a matter of central concern for the negotiators. The MUA document of December 2011 made reference to a financial year, but nothing seems to have come from that document that resulted in clearly stated mutual understanding. The evidence tends to a conclusion that the financial year position of the MUA was not accepted by DP World at that time. The language of financial year in terms of medical evidence never again appeared in drafts, and I place little weight on the MUA’s own document of mid-February mentioning financial year, just as I place little weight on the opinion evidence of DP World to the contrary and on the parties various bargaining positions. I note that the final document is not accurately reflected in the opinion evidence of either party.

[70] It may have been that after 20 December 2011 each party was operating under different assumptions that were not tested in the negotiations. Maybe the definitional issue was lost in the complexity of other issues. For whatever reason, I conclude that MUA seems to have assumed a financial year while DP World assumed a floating 12-month period.

[71] The relevant words in Appendix 1 are:

… DP World requires Employees to provide the following evidence to substantiate in any of the following circumstances: (a) 5 days absence in the year maybe uncertified…

[72] The very fact of this dispute, and the two possible meanings offered by the parties, speaks of the uncertainty of meaning. No doubt both parties would now prefer a more precise phrasing than “in the year”, such as “in any financial year” on the one side or “in any 12 month period” on the other. DP World made this point about drafting in its submissions, but that precision is absent from Appendix 1 itself.

[73] MUA urged resolution in its favour by looking at the term in the context of the document as a whole, suggesting that “the text of the agreement is clear”, namely, a fixed year, indicated by the use of the definite article, and logically a financial year given the context, and especially clause 16.2 and the division of AMP periods into two half financial years. It fortified its view by pointing to evidence of its bargaining position.

[74] DP World argues three points in response. First, it says that the term is not self-evidently a fixed year, and can equally mean a 12-month period, or any 12-month period. Even if it were a fixed year, it could be a calendar year or a financial year. Second, in oral submissions, DP World suggested that the proper context for the meaning includes the practice and usage of the past, pointing to a floating 12-month period, also fortified by evidence of its bargaining position. Third, DP World says the meaning of the term does not matter because AMPs can be instituted on criteria other than an excess of 5 uncertified absences whether in a fixed financial or a floating year.

[75] The Macquarie Dictionary offers several definitions of the noun “year” including:

1. a period of 365 or 366 days divided into 12 calendar months, based on the Gregorian calendar and now reckoned as beginning 1 January and ending 31 December (calendar year). 2. a period of approximately the same length and other calendars. 3. 12 calendar months reckoned from any point: he left on 15 May and he'll be away for a year … 9. a period out of every 12 months, devoted to a certain pursuit, activity, or the like: academic year.

[76] The term "financial year" is separately defined in that dictionary as:

any 12 monthly period at the end of which the government, company, etc., balances its accounts and determines its financial condition.

[77] Read on their own, it cannot be said these words of Appendix 1 self-evidently mean either posited interpretation: the term “the year” is clearly susceptible of more than one meaning. Applying the law as stated above, the meaning must then be found in the broader context, including:

● the entirety of the “stand-alone” Appendix 1 (urged by DP World as leading to a floating year meaning);

● the document as a whole (wherein MUA says meaning becomes certain as a financial year); and

● if those readings do not yield certainty, by reference to the objective framework of facts within which the Agreement was forged (over which the parties differ as to the resultant meaning).

[78] The reference to a financial year in clause 16.2 “for the purposes of this clause” is said by the MUA to be referable to Appendix 1 because of the content of clause 16.3. I do not think this is correct. Clause 16.3 operates as a cross reference. Importing the definition into the Appendix is not necessary to make sense of the Agreement, and does not flow from the words of the clause. Similarly, the use of a financial year for accrual, cash-out and length of AMP does not cast light on the term “the year” otherwise used in the Appendix. The clauses have their own distinct purposes, for which a financial year might make historical and managerial sense. The use of a financial year for accrual and cashing out purposes goes back to at least the Stevedoring Industry Award 1999 which provided a financial year basis in clause 24 in terms similar to those in clause 16 of the 2011 Agreement. From Mr Smith’s statement, those words were proposed for inclusion by the MUA.

[79] DP World argues that Appendix 1 should stand-alone, that the words in the context of the Appendix read as a whole are not ambiguous and do not require importation of the definition for other purposes in clause 16, and in any case that there is no “positive link between clause 16 and Appendix 1 to import the definition of the term “year” as intended solely for the purpose of clause 16.”

[80] The following words of Appendix 1 shed light on the intent of the parties:

For the purposes of managing absenteeism the Company will also monitor patterned behaviour, for example repeatedly calling in sick before or after an RDO or before or after a period of planned leave and DIL. In addition any poor absence record or where the Company suspects that sick leave is not being used for genuine illness or where such patterns detailed above occur, may also lead to the implementation of an Absence Management Plan (AMP) and/or disciplinary action.

Where an Employee fails to substantiate a sick leave absence with a medical certificate for any of the situations outlined in points (a) to (e) above or if the Employee does not comply with the shift notification times, the Employee's absence may be regarded as unauthorised and therefore in breach of Company policy. Note: Providing an Employee has an entitlement to sick leave it will be paid. …

The Company will place an Employee on an AMP in the event that there are concerns with excessive absenteeism and/or patterns of absence.

[81] It makes sense in light of these words for “the year” to be referrable to the immediately preceding 12 months rather than a financial year. Patterns of absence take place in a continuous way. The managerial imperative of managing excessive uncertified sick leave is disrupted if DP World cannot look back over the recent past uninterrupted by a financial year “clean slate”.

[82] On the other hand, the split year approach to AMPs, whereby a longer AMP is imposed in the first half of the financial year than one imposed on the second half, supports the contentions of the MUA that it was pursuing a financial year basis for certification. DP World’s evidence is that it accepted the split year “as part of an overall compromise to conclude the agreement”. The acceptance of the split year may introduce an inconsistent approach to absence management, but it does not necessarily follow that “the year” in Appendix 1 must mean financial year. DP World’s evidence explains it accepted the MUA position on reducing the length of AMPs imposed after 1 January as part of the bargaining and not because it accepted the entire “package” including a clean slate from 1 July each year.

[83] On balance, I consider that reading Appendix 1 as a whole indicates an intention for ”the year” to be the preceding 12 months, that is, a rolling year.

[84] Given the countervailing arguments of the MUA about clause 16, it is worth considering the objective facts around the making of the agreement to ascertain if they shed further light.

[85] The context of the disputed term is management of what DP World calls unplanned absences, most particularly the use and abuse of sick leave entitlements. Employees are entitled to 10 days sick leave annually, accruing annually in advance each 1 July. 30

[86] Sick leave, on the uncontested evidence of DP World, is a major concern for DP World with important implications for its business. An absence may require finding a substitute employee at short notice, or delay complete loading or unloading a vessel if a crew is short-staffed. Accordingly, DP World has a process to manage employee absences including requiring evidence of actual illness in specified circumstances, and imposition of additional managerial oversight through AMPs where there may have been misuse of the entitlement.

[87] Entitlement to sick leave is an important industrial right, enshrined in the National Employment Standards. It needs to be both certain and non-discretionary. Accrued entitlement has value, and may even be cashed out.

[88] Entitlement and management are dealt with as separate topics in the Agreement.

[89] Use of entitlement and management considerations of potential misuse, previously matters of corporate policy, are dealt with in Appendix 1. Aspects of the previous Company Policy not incorporated into the 2011 Agreement, such as the time by which absence due to ill health must be notified, are still operative. Appendix 1 for example refers to applicable notification times “as currently agreed locally at each terminal”.

[90] An AMP is a tool for managing potential sick leave abuse. DP World is not obliged to place an employee on an AMP even if there are more than 5 uncertified sick days. There may be a rational explanation, acceptable to management. On the other hand, an employee might produce medical certificates for any absence for several reasons, including being mindful of the number of days counted under the Appendix or the protections from termination of employment afforded by s.352 of the Act and reg.3.01 of the Fair Work Regulations 2009.

[91] On the evidence before the Commission, DP World made concessions on important matters in order to reach agreement. Those included incorporation of policies into the Agreement, explicitly stating the number of uncertified absences that might be permitted and increasing them to 5 days; allowing a statutory declaration for the 6th day rather than requiring a medical certificate; reducing the period of an AMP from 12 months, and accepting the “split year” approach to the length of AMPs.

[92] Also clear from the evidence, the MUA sought a financial year period for certification. That has the advantage for its members that each 1 July they had a clean slate. There would be no “automatic trigger” until after 5 uncertified days each financial year.

[93] DP World on the other hand appeared firm in its resolve to be able to look back over the previous 12 month’s absences in a “floating year” in order to achieve its management objectives. On the uncontested evidence of DP World it was long-standing practice in Brisbane for an investigation to be triggered by a specified number of single-day absences.

[94] There is no reliable evidence before the Commission that DP World acceded to the MUA’s position. The management objective has been identified as a critical one. DP World appears to have maintained its “floating year” position in the negotiations at least after 20 December 2011. Further, the AMP provisions allow DP World to investigate patterns regardless of any 5 day trigger.

[95] There is no clear evidence that DP World agreed to shift from its previous, strongly-held view. Likewise, the evidence does not establish that the change sought by the MUA was the meaning adopted into the final Agreement. Such a major change should be apparent from the evidence, and it is not.

[96] Finally, the interpretation of Appendix 1 as a stand-alone provision within the 2011 Agreement makes more sense as a floating year than as a financial year, and I agree with DP World about the lack of a “positive link” that would import the definition in clause 16.2 into Appendix 1.

[97] The effect of the 5 uncertified days is not apparent on the face of the 2011 Agreement, but it is clear both parties assume that they operate as a trigger to investigate absences and possibly impose an AMP, even though AMPs might be imposed despite every absence being certified. The MUA’s concerns about possible unfairness and capriciousness are legitimate, especially if DP World takes the 5 days as triggering an automatic AMP rather than an investigation. The 2011 Agreement does not provide for any such outcome. Imposition of an AMP requires “concerns with excessive absenteeism and/or patterns of absence.” It is logical that DP World is the party who has “concerns”. It seems to me on the wording of Appendix 1 that 5 uncertified days absence cannot, on their own, substantiate imposition by DP World of an AMP. The trigger (if there is one) operates for a reasoned inquiry by an impartial mind, not automatic imposition of an AMP, with all that it means for an affected employee. The employee would appear to deserve a fair hearing in that inquiry.

[98] I find that the reference to “5 days absence in the year” in Appendix 1 of the 2011 Agreement is a reference to the preceding 12 months, that is, a floating year and not the current financial year.

COMMISSIONER

Appearances:

Mr D Quinn, Carne Reidy Herd Lawyers on behalf of The Maritime Union of Australia.

Mr D Perry, Minter Ellison on behalf of DP World.

Hearing details:

2013.

Brisbane :

23 July.

 1   The Stevedoring Industry Award 1999 also provided for aspects of this matter.

 2   Exhibit A1; also Exhibit R1 and R2.

 3   Transcript dated 23 July 2013 at PN97 and PN98.

 4   Transcript dated 23 July 2013 at PN99.

 5   Transcript dated 23 July 2013 at PN533.

 6   Transcript dated 23 July 2013 at PN538.

 7   Transcript dated 23 July 2013 at. PN540.

 8   Transcript dated 23 July 2013 at PN223 and PN232.

 9   Mr Hulme’s witness statement dated 4 July 2013 at paragraph 23 and 25.

 10   Transcript dated 23 July 2013 at PN374.

 11   Transcript dated 23 July 2013 atPN412 and PN413.

 12   [2010] FWAFB 4801

 13 (2008) 171 IR 392; [2008] AIRC 291

 14 [1982] HCA 24; (1982) 149 CLR 337 (11 May 1982)

 15 (1998) 80 IR 208

 16 [2013] FCA 638

 17 [2012] FCA 1010

 18 (2005) 222 CLR 241

 19 [2011] FCAFC 67

 20 [2010] FCA 1018

 21 (1989) 30 IR 362

 22 (1993) 40 FCR 511 at paragraphs 13 and 14.

 23   [2008] AIRC 291 at paragraph 15.

 24   Applicant’s submissions dated 19 June 2013 at paragraph 30.

 25   Applicant’s submissions in reply dated 10 July 2013 at paragraph 7.

 26   Transcript dated 23 July 2013 at PN560 and PN591 to PN593.

 27   Transcript dated 23 July 2013 at PN523.

 28   Transcript dated 23 July 2013 at PN591.

 29   Transcript dated 23 July 2013 at PN595.

 30 The basic entitlement for personal leave, including sick leave is in NES in ss.95-101 of the Act, under which personal leave accrues progressively throughout the year. The Stevedoring Industry Award 2010 in clause 23.1 provides “Personal/carer’s leave and compassionate leave are provided for in the NES.” Additional benefits are granted by both the Award and the 2011 Agreement.

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