Mr Andrew Collins v Bendigo Health Care Group
[2018] FWC 2027
•9 APRIL 2018
| [2018] FWC 2027 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Andrew Collins
v
Bendigo Health Care Group
(U2017/13707)
| Deputy President Anderson | ADELAIDE, 9 APRIL 2018 |
Application for an unfair dismissal remedy – senior executive employment – earnings above high income threshold – whether public sector enterprise agreement applied – application of sections 52 and 53 Fair Work Act 2009 – principles governing interpretation of agreements – exclusionary provision found to apply – application dismissed
On 21 December 2017 Mr Andrew Collins applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by the Bendigo Health Care Group (‘Bendigo Health’ or ‘the employer’). He claims to have been unfairly dismissed on 7 December 2017, with the dismissal taking effect that day.
Mr Collins’ application to the Commission was lodged within the statutorily required 21 days after his (alleged) dismissal took effect.
The employer is a regional health service operating a substantial business across multiple sites in central and western Victoria. It employs approximately 3,500 persons.
Mr Collins was employed as Chief Financial Officer for approximately twelve years on a series of fixed term employment contracts. His most recent contract was for five years from 10 October 2014.[1]
Mr Collins was a senior executive who headed up the Corporate Services Division of Bendigo Health. He reported to the Chief Executive Officer who in turn reported to the board of Directors.[2]
In response to Mr Collins application, the employer raises a jurisdictional matter. The employer says that the Commission has no jurisdiction to hear the substantive application as Mr Collins is not a person protected from unfair dismissal within the meaning of the FW Act. In particular, the employer says the sum of Mr Collins annual earnings exceeds the high income threshold under section 382(b)(iii), which was AUD $142,000 at the date of dismissal. It is an agreed fact that Mr Collins annual remuneration package was $269,194, well above the high income threshold.
In response, Mr Collins says that he is a person protected from unfair dismissal notwithstanding his earnings being in excess of the high income threshold because an enterprise agreement “applied” to him in relation to his employment within the meaning of section 382(b)(ii). The agreement which he contends applied to him is the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 (the Health Sector Agreement).
The application has not been subject to conciliation on account of the jurisdictional issue having been raised by the employer.
I issued directions in the matter on 2 February 2018 and conducted a hearing on 29 March. In advance of the hearing, on 19 March 2018 I issued a decision where (by consent) I granted permission for both Mr Collins and Bendigo Health to be legally represented on the ground that it would enable the jurisdictional matter to be dealt with more efficiently.[3]
At the conclusion of proceedings, I reserved my decision.
The Agreed Facts
Certain facts were agreed between the parties in advance of the hearing:[4]
“STATEMENT OF AGREED FACTS
(Filed pursuant to the Directions of Deputy President Anderson dated 2 February 2018)
1.The applicant commenced employment with the respondent in the position of Chief Financial Officer on 10 October 2005.
2.During the applicant's employment with the respondent, the parties entered into the following written contracts of employment:
a)contract of employment dated 22 May 2006 covering the period 10 October 2005 to 10 October 2008 (the first employment contract);
b)contract of employment dated 16 November 2011 covering the period 10 October 2011 to 9 October 2014 (the second employment contract); and
c)contract of employment dated 10 October 2014 covering the period 10 October 2014 to 9 October 2019 (the third employment contract).
3.The parties did not enter into a written contract of employment in respect of the period 11 October 2008 to 9 October 2011.
4.The applicant's duties and responsibilities as Chief Financial Officer are set out in position descriptions attached as Schedule A to the first employment contract and the second employment contract. No position description is attached to the third employment contract.
5.The respondent is covered by the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020.
6.By way of letter dated 7 December 2017, the respondent terminated the applicant's employment with immediate effect upon the payment of 4 months’ salary in lieu of notice.
7.At the time of the termination of his employment, the applicant's Total Remuneration Package was $269,194 comprising the following elements:
a)Base salary - $238,561;
b)Superannuation - $22,663;
c)Provision of motor vehicle - $7,969.”
It was also common ground that Mr Collins completed a period of employment of at least the minimum employment period (six months) for the purposes of section 382(a) of the FW Act and that his employment was not covered by a modern award (section 382(b)(i)).
Further, it was also an agreed fact that the Health Sector Agreement was an agreement in operation on the day Mr Collins’ dismissal took effect. It was an agreement which covered Bendigo Health by virtue of the entity being an employer named in Schedule A of the Agreement.[5]
The Legislative Provisions
Section 382 of the FW Act provides:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
Sections 52 and 53 of the FW Act are also relevant to determining whether an enterprise agreement applies to an employee.
“52 When an enterprise agreement applies to an employer, employee or employee organisation
When an enterprise agreement applies to an employee, employer or organisation
(1) An enterprise agreement applies to an employee, employer or employee organisation if:
(a) the agreement is in operation; and
(b) the agreement covers the employee, employer or organisation; and
(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.
Enterprise agreements apply to employees in relation to particular employment
(2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.”
“53 When an enterprise agreement covers an employer, employee or employee organisation
Employees and employers
(1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.
Employee organisations
(2) An enterprise agreement covers an employee organisation:
(a) for an enterprise agreement that is not a greenfields agreement—if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or
(b) for a greenfields agreement—if the agreement is made by the organisation.
Effect of provisions of this Act, FWC orders and court orders on coverage
(3) An enterprise agreement also covers an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement covers the employee, employer or organisation:
(a) a provision of this Act or of the Registered Organisations Act;
(b) an FWC order made under a provision of this Act;
(c) an order of a court.
(4) Despite subsections (1), (2) and (3), an enterprise agreement does not cover an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement does not cover the employee, employer or organisation:
(a) another provision of this Act;
(b) an FWC order made under another provision of this Act;
(c) an order of a court.
Enterprise agreements that have ceased to operate
(5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.
Enterprise agreements cover employees in relation to particular employment
(6) A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.”
The Health Sector Agreement
The Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020[6] was approved by the Commission on 8 December 2016 to operate from 15 December 2016. Its nominal expiry date is 30 September 2020.[7]
As noted, Bendigo Health is an employer covered by the Agreement.
The Agreement is divided into three sections: Section 1 ‘Common Terms’; Section 2 ‘Health and Allied Services Employees and Dental Assistants’; and Section 3 ‘Managers and Administrative Workers Terms and Conditions’.
Mr Collins submits that he is covered by the Agreement and in particular Section 3.
Clauses of the Agreement relevant to the determination of this matter are:
Part 1 Clause 5 Incidence & Coverage
Part 1 Clause 6 Definitions (sub-clause 6.4 ‘Employee’)
Part 3 Clause 2 Definitions (sub-clause 2.16 ‘Employee’; sub-lause 2.25 ‘Manager and Administrative Worker’)
Part 3 Schedule 3D Part 1 Clause 1 Application
Part 3 Schedule 3D Part 1 Clause 12 (‘Grade 10’)
By virtue of sub-clause 1.3 of Part 3 Schedule 3D Part 1 Clause 1 ‘Application’, an administrative instrument known as the Policy on Executive Remuneration for Public Entities in the Broader Public Sector administered by the Government Sector Executive Remuneration Panel is also relevant to the determination of this matter. That policy, together with an associated document entitled “Government Sector Executive Remuneration Panel (GSERP): Frequently Asked Questions” was admitted into evidence as AN5 and AN6 respectively.
It was not in contest at the hearing that the Government Sector Executive Remuneration Policy referred to in sub-clause 1.3 of Part 3 Schedule 3D Part 1 Clause 1 ‘Application’ of the Health Sector Agreement is the administrative instrument set out at AN5 and which, for the sake of convenience, I refer to as ‘the GSERP Policy’.
Consideration
The matter arising for decision can be simply stated: in respect to his employment as Chief Financial Officer of Bendigo Health, did the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 “apply” to Mr Collins within the meaning of section 382(b)(ii) of the FW Act?
If the answer to that question is ‘no’, then the Commission has no jurisdiction to determine the application as Mr Collins would not be a person protected from unfair dismissal given that his earnings exceeded the high income threshold. Conversely, if the answer to that question is ‘yes’, then the Commission has jurisdiction to determine the application.
The determination of this question primarily concerns the construction of the relevant clauses of the Agreement. The proper construction is in dispute. This matter does not largely concern a contest over facts or statutory interpretation.
Effect of Statutory Provisions
The relevant provisions of the statute are clear in meaning and operation, at least for current purposes. It is well established that the purpose of section 382(b) of the FW Act is to exclude from protection against unfair dismissal a high income employee who is not covered by a modern award or who does not have an enterprise agreement that applies to that employee.[8]
I also accept the submission of Mr Collins,[9] which was largely not contested, that by virtue of section 53(1) of the FW Act the Agreement will “cover” Mr Collins if the agreement is expressed to cover him. If so, it will cover him with respect to his “particular employment”[10], being employment as Chief Financial Officer of Bendigo Health. If it “covers” him then (by virtue of section 52(1)(b) of the FW Act) the Agreement would “apply” to him for the purposes of section 382(b)(ii). In circumstances where the relevant definitions in the Agreement link coverage to its classification structure, as they do here, the Agreement will only cover Mr Collins if he falls within the classification structure and is not otherwise excluded from that structure by the terms of the Agreement. As noted by a full bench of this Commission in Linfox Australia Pty Ltd v Terrence Howell[11] this conclusion may not apply in all instances. However, having regard to the terms of the Health Sector Agreement (discussed below), I consider this to be the effect of the proper construction of the Agreement and the statute in this matter and draw that conclusion.
For the sake of completeness, I indicate that the operation of section 52(1)(c) does not disturb this conclusion. There is no other provision of the FW Act that provides or has the effect that the Health Sector Agreement does not apply to Mr Collins, nor was any submission made to this effect.
Role and Function of Mr Collins
This is not a matter where the role and functions of Mr Collins are in dispute or where employment activities undertaken need to be determined to assess whether their principal purpose fell within the scope of an enterprise agreement (or modern award). It is an agreed fact[12] that the duties and responsibilities performed by Mr Collins as Chief Financial Officer are set out in position descriptions attached as Schedule A to his first and second employment contracts, and that these were the duties he performed.
It was also acknowledged at the hearing by counsel for the employer that but for what the employer contends is an express exclusion applying to Mr Collins in sub-clause 1.3 of Part 3 Schedule 3D Part 1 Clause 1 ‘Application’ of the Agreement, his role and functions would be encompassed by the senior executive Grade 10 classification set out at clause 12 of Part 3 Schedule 3D Part 1. I consider this to be so, and make that finding.
Coverage of the Agreement
The Health Sector Agreement is expressed to cover “all employees”.[13] “Employee” for the purposes of the Agreement is a term defined in Section 1 sub-clause 6.4:
“Employee” means a person employed by an Employer listed in Schedule A of this Section 1 who is employed in any of the classifications set out in this Agreement, other than employees employed solely or predominantly in the provision of public mental health services.”
Mr Collins was employed by Bendigo Health. Bendigo Health is an employer listed in Schedule A of the Agreement. Mr Collins was not employed solely or predominately in the provision of public mental health services. These aspects of the definition are satisfied.
Was Mr Collins “employed in any of the classifications” set out in the Agreement?
Mr Collins submits that he was employed in the Grade 10 classification in Section 3 of the Agreement. To be so employed, he needs to be an employee covered by Section 3. Section 3 applies to “Managers and Administrative Workers”. This is a defined term in Section 3 sub-clause 2.25:
“Manager and Administrative Worker means an Employee classified in accordance with Part 1 of Schedule 3D or Part 2 of Schedule 3D of this Agreement.”
The meaning of “employee” for the purposes of this definition is set out in Section 3 sub-clause 2.16. It is expressed in almost identical terms to the definition of “employee” in Section 1 sub-clause 6.4. I am satisfied that Mr Collins was an employee for the purposes of Section 3.
The Grade 10 classification is a classification in “Part 1 of Schedule 3D”. I have noted that it is not contested that Mr Collins’ role and functions were encompassed by the senior executive Grade 10 classification.
However, Bendigo Health contends that Mr Collins was not employed under the classification system in the Agreement because of the express exclusion in Section 3 sub-clause 1.3 of Schedule 3D Part 1. Under the heading “Application” this sub-clause provides as follows:
“1.3 This classification structure does not apply to positions that are covered by Government Sector Executive Remuneration Policy. Chief Executive Officer and Senior Executive classifications are included in the classification system to demonstrate potential career paths available within the Victorian public health sector.”
The interpretation and the effect of sub-clause 1.3 is a critical consideration in the determination of this matter.
Bendigo Health submits that Mr Collins was an employee covered by the GSERP Policy.
Mr Collins submits that he was not an employee covered by the GSERP Policy.
Thus, two issues arise for determination:
Was Mr Collins employed in a position covered by the GSERP Policy? and
Does sub-clause 1.3 have the effect that the Health Sector Agreement does not apply to an employee whose position is covered by the GSERP Policy?
Was Mr Collins employed in a position covered by the GSERP Policy?
The GSERP Policy provides as follows:[14]
“Introduction
1.1 The purpose of this policy is to set out better practice approaches and approval procedures for the determination of and accountability for executive remuneration in public entities in the Victorian public sector.
1.2. These processes will apply to all such organisations except where the employment of executives has been brought under the Public Administration Act 2004, or where the Premier has approved an exemption of a category or group from the policy.”
The Policy then provides for the establishment of remuneration committees, remuneration principles and sets out policies on executive remuneration in respect of those entities to which it applies.
The panel responsible for the GSERP Policy publishes a set of ‘Frequently Asked Questions’ that accompany the policy. Question 3 provides as follows:[15]
“3. Does the policy apply to all executive staff in an organisation?
The policy applies to:
·Chief Executive Officer's or equivalent role: and
·any person who has significant management responsibility, as determined by the CEO or equivalent role and receives a Total Remuneration Package (TRP) of $159,501 or more. This is based on the base of the Executive Officer classification in the Victorian Public Service.
The policy does not apply to:
·technical specialists who do not have a management function;
·people whose employment is regulated by an award or enterprise agreement; and
·people who do not have significant management responsibility as determined by the CEO or equivalent role.”
It was not contested that Bendigo Health is a public entity in the Victorian public sector within the meaning of clause 1.1 of the GSERP Policy. Nor was it suggested that the provisions of clause 1.2 of the GSERP Policy apply to executives employed by Bendigo Health.[16]
Although the content of question and answer 3 of the ‘Frequently Asked Questions’ is not formally an inclusion in the GSERP policy, it is published by those responsible for the policy to accompany the application of the policy.
There is nothing express in the GSERP Policy which specifically sets out which executives the policy applies or does not apply to. The policy variously refers in general terms to “executive remuneration”,[17] “executive movements”,[18] “executives”,[19] “senior executives”[20] and “chief executive remuneration”.[21] I am satisfied that Mr Collins, as a senior executive of Bendigo Health, was employed in a position that fell within the ambit of the GSERP Policy, even on its face. I note that question 3 of the Frequently Asked Questions is not inconsistent with this conclusion. I consider question 3 to be, at the very least, a relevant aide to the interpretation of the policy if not a supplement to the policy itself and thereby a component element of the policy.
It was not contested at the hearing that Mr Collins’ was a person with “significant management responsibility as determined by the CEO” within the meaning of the answer to question 3. I find that this was so and note that the organisational chart[22] evidences that fact. It was also not contested that Mr Collins’ total remuneration package exceeded $159,501, which was the remuneration sum expressed in the answer to question 3 and which applied at the time Mr Collins’ dismissal took effect.
It was not contended by Mr Collins that the “technical specialists” exclusion referred to in the answer to question 3 applied to him.
Nor do I consider that the exclusion of people “whose employment is regulated by an award or enterprise agreement” referred to in the answer to question 3 excludes Mr Collins from the GSERP Policy simply by virtue of Mr Collins claiming to be regulated by the Agreement. This exclusion can only assist Mr Collins if it is positively found that his employment is so regulated. His employment will not be so regulated if the Health Sector Agreement does not apply to him. That is the question to be determined by this decision. It is not a conclusion that can be reached by assertion or belief alone. To do so would be self-serving.
I find that Mr Collins was “employed in a position covered by the GSERP Policy” within the meaning of sub-clause 1.3.
I make this finding on a consideration of the language of the GSERP policy and, to the extent necessary, question 3 of the Frequently Asked Questions. It has not been necessary to have regard to extrinsic material specific to the employment arrangements between Bendigo Health and Mr Collins. I note however that the evidence of those arrangements before me is consistent with this conclusion. Notice of Mr Collins’ remuneration review dated 5 December 2017 (two days prior to his dismissal) makes specific reference to “advice from the Government Sector Executive Remuneration Panel”.[23] Further, the evidence is that Mr Collins was one of nine executives employed by the employer whose remuneration was increased by the Board’s Governance and Remuneration Committee based upon increases approved by the GSERP.[24]
Does sub-clause 1.3 have the effect that the Health Sector Agreement does not apply to an employee whose position is covered by the GSERP Policy?
Bendigo Health submit that sub-clause 1.3, properly interpreted, operates as an exclusion from the classification structure for any position that is covered by the GSERP Policy. It says that as Mr Collins is an employee excluded from the classification then he is, by virtue of the definition of “Manager and Administrative Worker” and “Employee”, not covered by the Agreement and that the Agreement thereby does not apply to him.
Mr Collins submitted that even if the GSERP Policy applied to his position nonetheless sub-clause 1.3, properly interpreted, does not have the effect that the Agreement no longer covers his former employment.
For the following reasons, I consider Bendigo Health to be correct on this point.
Answering this question requires interpretation of Section 3 sub-clause 1.3 of Schedule 3D Part 1. In doing so, I apply principles recently expressed by a full bench in of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union v Berri Pty Ltd[25] (‘Berri’). These principles modified an earlier formulation in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd[26].
It is not necessary to set out the Berri principles in full. Suffice to say that whilst enterprise agreements are not statutes, the modes of construction developed by the general law assist in their interpretation. Construction begins with a consideration of the ordinary meaning of the relevant words having regard to context and purpose.[27] If the agreement has a plain meaning, evidence of surrounding circumstances cannot contradict the plain language of the agreement. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists or when interpreting ambiguous language or language that is susceptible of more than one meaning.
In short, the Commission’s task is to ascertain the objective meaning of the contested words, based upon the language and terms of the Agreement, when read as a whole, having regard to context and purpose.
In doing so, narrow or pedantic approaches to interpretation should be avoided having regard to the fact that the framers of industrial instruments are likely to have had, as said by Madgwick J in Kucks v CSR Limited, a practical bent of mind:[28]
“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.”
These principles have “even stronger application” to certified agreements than to awards.[29]
The natural and ordinary meaning of the words in sub-clause 1.3 of the Health Sector Agreement, when read in context, indicate a clear intention that the sub-clause operates as an exclusion provision. It is located in a Schedule dealing with the classification structure, in a sub-part titled “Application” and commences with the words “This classification structure does not apply…” Sub-clause 1.3 is not merely technical or procedural; it affects substantive rights with respect to those captured by its exclusion.
The exclusion from the classification structure created by sub-clause 1.3 operates “to positions that are covered by the Government Sector Executive Remuneration Policy”.
This interpretation of sub-clause 1.3 would be straightforward but for its second sentence which provides that the “Chief Executive Officer and Senior Executive classifications are included in the classification system to demonstrate potential career paths available within the Victorian public health sector.”
It is submitted by counsel for Mr Collins that this sentence has the effect of including Mr Collins in the classification system, and thereby the relevant definition of “Manager and Administrative Worker” and “Employee”.
I do not agree. This second sentence only has the effect that its language provides for. It is expressly limited to including such executive classifications in the classification system for the purpose of demonstrating potential career paths. It is a sentence that seeks to explain the reason why such classifications are included in Part 1 of Schedule 3D notwithstanding the exclusion of such “positions” provided for in the preceding sentence. It does not have the effect of re-including into the classification structure the positions that are expressly excluded by the first sentence for any substantive purpose other than for that specifically mentioned demonstration purpose. To conclude otherwise would be to fail to give effect to the full import of the first sentence and the self-evident intention that the sub-clause operate as an exclusionary provision.
It was further submitted by counsel for Mr Collins that even if the position held by Mr Collins was excluded by sub-clause 1.3, the effect of this exclusion was not to remove him from being employed in the classification or otherwise covered by the Agreement.
I do not agree. Sub-clause 1.3 provides that the classification structure does not apply to the relevant position. The relevant definitions in Section 3 Part A require the person to be “classified” in accordance with the Agreement (definition of Manager and Administrative Worker) and to “be employed in any of the classifications set out in this Agreement” (definition of Employee). In circumstances where these definitions govern the coverage and application of the Agreement, as I have concluded they do, it cannot be said that a person substantively excluded from the classification structure can still be said to be “covered” by the Agreement within the meaning of the FW Act.
For the sake of completeness, I also indicate that I consider no relevant consequence arising from the use of the phrase “classification structure” in the first sentence of sub-clause 1.3 and the phrase “classification system” in the second sentence. None was asserted by either counsel for Mr Collins or counsel for the employer. In both sentences the phrase refers to the contents of Schedule 3D which is entitled “Classification Structure”.
Conclusion
Mr Collins was employed in a position covered by the Government Sector Executive Remuneration Policy. As such, he was excluded from the classification structure in Schedule 3D of the Health Sector Agreement. In those circumstances, he did not meet the definition of “Manager and Administrative Worker” and “Employee” in Section 3 Part A or in Section 1 of the Agreement. His employment as Chief Financial Officer of Bendigo Health was therefore not covered by the Agreement.
Not being an employee covered by the Agreement within the meaning of section 53 of the FW Act, the enterprise agreement did not apply to him (section 52). As the enterprise agreement did not apply to him in relation to his employment and as the sum of his annual rate of earnings was above the high income threshold (and no modern award applied), he was not a person protected from unfair dismissal on the date his dismissal took effect.
Accordingly, the Commission has no jurisdiction to hear and determine his application. The application is dismissed. An order to this effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
J. Dabaco and E. Younan, with permission, for the Applicant
M. Rinaldi and R. Catanzariti, with permission, for Bendigo Health Care Group
Hearing details:
2018.
Melbourne and Adelaide; via video link:
29 March.
<PR601836>
[1] A1 Attachment 3; AN3
[2] AN4
[3] Decision 19 March 2018 [2018] FWC 1620
[4] Statement of Agreed Facts 27 March 2018
[5] Clause 5.1 and Schedule A (13)
[6] A1 Attachment 5
[7] Decision at [2016] FWCA 8834 per Cribb C, 8 December 2016
[8] Sam Technology Engineers Pty Ltd v Mr Andrew Bernadou[2018] FWCFB 1767 at [66]
[9] Applicants Submissions 16 March 2018 paragraph 13
[10] Section 53(6) FW Act; see also the High Court judgment in Aldi Foods Pty Ltd v Shop Distributive and Allied Employees Association [2017] HCA 53 at [30] - [31] per Kiefel CJ Bell, Keane, Nettle, Gordon and Edelman JJ
[11] Linfox Australia Pty Ltd v Terrence Howell[2018] FWCFB 464 at [46]
[12] Statement of Agreed Facts paragraph 4
[13] Clause 5.2
[14] AN5
[15] AN6
[16] Statement of Andrea Noonan paragraph 27
[17] For example GSERP Policy clauses 1.1, 4.5, 6.2
[18] For example GSERP Policy clause 2.2
[19] For example GSERP Policy clause 3.1
[20] For example GSERP Policy clause 4.1
[21] For example GSERP Policy clause 2.1
[22] AN4
[23] AN10
[24] Statement of Andrea Noonan paragraph 38 and AN9
[25] [2017] FWCFB 3005
[26] [2014] FWCFB 7447
[27] See also Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184: “ordinary or well-understood words are in general to be accorded their ordinary meaning”
[28] Ibid at 184
[29] Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at 32 citing Northrop J in Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212
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