Mr Matthew Richardson v Ambulance Victoria
[2024] FWC 1313
•27 MAY 2024
| [2024] FWC 1313 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Matthew Richardson
v
Ambulance Victoria
(C2024/619)
| COMMISSIONER CONNOLLY | MELBOURNE, 27 MAY 2024 |
Alleged dispute about any matters arising under the enterprise agreement.
Background
On 2 January 2024, an application was lodged by Mr Matthew Richardson (the Applicant) under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the Dispute Resolution Procedure contained in clause 11 of the Ambulance Victoria Enterprise Agreement 2020 (the Agreement). The Applicant has at all times been represented by the Victorian Ambulance Union Incorporated (VAU). The Respondent in this matter is Ambulance Victoria (the Respondent), the Applicant’s employer who is covered by the Agreement.
Ambulance Victoria provides emergency and non-emergency ambulance services in the State of Victoria. Mr Richardson commenced employment with the Respondent as a Student Paramedic on 24 July 2006. At the end of 2012, he completed the training requirements and was deemed competent to perform the work of a Mobile Intensive Care Ambulance Paramedic (MICA Paramedic), commencing work in this role in March 2013. From June 2015, having completed 3 months training and meeting the requirements to be deemed a MICA Paramedic Single Responder, he was also eligible to perform Single Responder duties, signing a variation to his employment form on 18 June 2015, confirming his employment as a MICA Single Responder. The Applicant’s employment was governed by the Ambulance Victoria Enterprise Agreement 2015.
Up until 6 March 2023, Mr Richardson performed work as a MICA Paramedic and Single Responder for the Respondent. On 6 March 2023, he commenced a secondment as a Clinical Support Officer which concluded on 17 September 2023. At the conclusion of this secondment, he returned to his nominal position as a MICA Paramedic under the terms and conditions of this position as set out in the Ambulance Victoria Enterprise Agreement 2020.[1]
Mr Richardson continued in this role up until 20 September 2023, when he received a letter from Mr Michael Georgiou, Ambulance Victoria Regional Director Clinical Operations, advising him that the Respondent had received a complaint against him and had appointed an external law firm to investigate the complaint for the purposes of seeking legal advice in relation to the allegations. This correspondence also advised him that Ambulance Victoria had decided that it would be in everyone’s ‘best interest’ for Mr Richardson to undertake alternative duties while the investigation was being conducted. To this end, it advised him that from 21 September 2023, he would be required to undertake alternative duties as directed and set out a series of projects for the Applicant to be engaged in with the Operational Capability Team.
Mr Richardson has continued to be required by the Respondent to undertake “alternative duties” since this time. On 15 December 2023, his representative, the VAU, filed an initial application (‘the first application’ - C2023/7838) under s.739 alleging the Respondent was failing to meet the requirements of Part 8 – Performance and Disciplinary Procedure of the Agreement.
On 2 February 2024, this application (the second application) was filed under s.739 alleging that the Respondent was failing to comply with clause 28.1(k) of the Agreement by not assigning the Applicant his ‘principal duties’ or ‘skills’ as a full time MICA Paramedic, and instead placing him in alternative duties.
On 17 January 2024, the parties attended a conference before me to consider the first application. Subsequently, the parties undertook to engage in further discussions with regard to expediating the “legal investigation” into the allegations against the Applicant and the potential of returning him to more substantive duties, or otherwise restoring his income to a level comparable to that before 20 September 2023.
A further conference was held on 9 February 2024, and Mr Richardson was advised the legal investigation was being progressed as expeditiously as possible. He was also advised that despite genuine attempts, the Respondent was unable to allocate him to more substantial work other than the alternative duties he was currently required to do as it could not ensure that he would not have even incidental contact with the complainant, who was also an employee of the Respondent to whom they owed a paramount duty to provide a safe workplace.[2]
Consequently, the dispute has not been resolved and the Applicant has pressed for a determination of its second application. On 16 February 2024, directions were issued for the filing of material ahead of a Hearing on 5 March 2024. At the Applicant’s request, with the Respondent’s consent, an amendment to the application and directions were made on 23 February 2024 which clarified that the scope of the matter to the determined by the Commission extended to both clauses 28.1(k) and 28.1(l) of the Agreement.
A series of submissions were filed by both parties, accompanied by witness statements from the Applicant, Ms Fleur Behrens (Director Professional Standards & Behaviours) and Mr Michael Georgiou.
At the Hearing, Mr Matthew Coggin and Ms Maxine Lange of the VAU appeared for the Applicant. Mr Andrew Crocker of Counsel was granted permission to represent Ambulance Victoria. Both Mr Richardson and Mr Georgiou provided supplementary oral evidence under cross examination.
Dispute to be Determined
The Commission’s jurisdiction to arbitrate the dispute arises out of clause 11 of the Agreement which provides:
At 11.1, that: “…a dispute between the Employer and employees, or an individual grievance, about a matter arising under this Agreement or the NES must be dealt with in accordance with this clause.”
…
At 11.5, that: “If the dispute or grievance cannot be resolved by conciliation then either party may refer the dispute or grievance to the FWC for arbitration and the FWC is authorised to proceed to deal with the dispute or grievance by arbitration.”
…
At 11.5(c), that: “If a dispute or grievance is referred to the FWC for arbitration the FWC will have the power to arbitrate the dispute and exercise any of its powers pursuant to or incidental to sections 589, 590 and 595 of the Act, and make any order it considers appropriate…”
It is common ground that the requirements of clause 11 are satisfied. Further, the parties agree that the question to be determined by the Commission is as set out as follows:
“Whether the Respondent is complying with clauses 28.1(k) and/or 28.1(l) of the Ambulance Victoria Enterprise Agreement 2020 (the Agreement) by not assigning the Applicant to his principal duties or skill as a full-time Mobile Intensive Care Ambulance (MICA) Paramedic and/or a MICA Paramedic Single Responder, and instead placing him on alternative duties.”[3]
Applicant’s Submissions
The Applicant’s position is that Mr Richardson has met the requirements and is employed as a MICA Paramedic and MICA Paramedic Single Responder pursuant to the terms of the Agreement. On 20 September 2023, Mr Richardson was provided with a written direction that he was required to undertake alternative duties, which involved him working from home on a laptop reviewing and adding documents to the Ambulance Victoria learning hubs and resource libraries and MICA Cis Facilitator and Bridging Programs.
The Applicant has been required to perform these and other ‘alternative duties’ since 21 September 2023 and has not been provided with his principal duties as a MICA Paramedic or the opportunity to work ‘on road’ as a practising paramedic since this time. It is the Applicant’s submission that the Respondent is required to provide Mr Richardson with the duties set out in clause 28.1(k) and/or (l) of the Agreement and in not doing so is failing to comply with its obligations under the Agreement.
Supporting this position, the Applicant submits the principles for interpretation of an enterprise agreement are well established, referring to the authorities of the Full Court of the Federal Court in Workpac Pty Ltd v Skene [2018] FCAFC 131 at [197] (Skene) and by the Full Bench of the Commission in Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited FWCFB 3005 at [114] (Berri). Citing the terms of clauses 28.1(k) and (l) of the Agreement, the Applicant submits that “the starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as whole and in context”. On this basis, they submit the ordinary meaning of the clauses provides:[4]
Clause 28.1(k):
a.“the requirements that an employee must meet to be employed within the MICA classification - that an employee is an Ambulance Paramedic and has completed a Graduate Diploma in Emergency Health (Intensive Care Paramedic) or equivalent;
b.the principal duties that must be assigned to the employees within the classification –assessment, treatment, care and transport of emergency and non-emergency patients in a pre-hospital setting;
c.the skills that MICA Paramedics are required to use while employed within the classification – advanced intensive care paramedic skills in accordance with AV approved CPG; and
d.the conditions under which a MICA Paramedic may perform alternative duties which do not necessarily involve the employee providing emergency and/or non-emergency patient care in a pre-hospital setting – by agreement where those duties utilise the skills and knowledge of a paramedic.”
Clause 28.1(l):
a.“the requirements that an employee must meet to be employed as MICA Single Responder – that they must be employed as a MICA Paramedic with a minimum two years’ experience (referencing clause 28.1(k)), have completed additional training to undertake single responder duties and have been appointed to undertake such duties; and
b.The duties of a MICA Single Responder – being MICA duties as a single responder (without a partner) in a non-stretcher vehicle.”
The Applicant’s position is that the clear meaning of these clauses set out the requirements and obligations on the Respondent and its employees in relation to MICA and/or MICA Single Responder classifications employed under the Agreement. It is their position the clauses impose clear and unambiguous obligations on both parties to the employment relationship and do not loosely define the roles.
Further, the Applicant submits there are key words within the ordinary meaning of the clauses that provide obligations on the Applicant to perform duties and for the Respondent to assign the Applicant those duties.
Firstly, these are the words “principal duties include” followed by a list of duties within the first paragraph of clause 28.1(k) that in their ordinary meaning signify that a MICA Paramedic and/or MICA Single Responder’s principal duties must contain or comprise those set out in clause 28.1(k).
Secondly, the second paragraph of clause 28.1(k) explicitly specifies a limited exception to when other duties may be performed, providing that a MICA Paramedic and/or MICA Single Responder:
“…may, by agreement, perform other duties that utilise the skills and knowledge of a paramedic but which do not necessarily involve the employee providing emergency and/or non-emergency patient care in a pre-hospital setting.”[5]
The Applicant submits that this analysis of the ordinary meaning of clauses 28.1(k) and 28.1(l), as required by the authorities in Skene and Berri make clear that a MICA Paramedic, including a MICA Single Responder, must be provided with the principal duties of that classification as specified by these clauses.
They acknowledge that the MICA Paramedic can be provided with alternative duties, provided this is done consistent with the terms of this clause, including with the agreement of the employee, or in reliance of some other clause in the Agreement. Mr Richardson has not agreed to perform alternative duties but has been directed to perform them by the Respondent. On this basis, the Applicant submits the Respondent is not complying with the terms of the Agreement because it is not assigning Mr Richardson his principal duties and the Applicant has not agreed to perform alternative duties.
Further, the Applicant submits that considering other provisions of the Agreement there are clear textual indicators that the Respondent must assign Mr Richardson the relevant principal duties contained in clause 28.1, or alternative duties, by agreement.
They maintain that Clause 28 in the context of the Agreement where specified defines the principal duties and requirements of employees working within each classification and that these classification definitions are interlinked with other clauses in the Agreement, including the pay rates for each classification in Appendix 3 and the Higher Duties provisions in Clause 31.19.
As to surrounding circumstances, it is the Applicant’s position that as there is no ambiguity to the Agreement in relation to Clauses 28.1(k) and/or (l), there is no need to consider the surrounding circumstances.[6]
Mr Richardson’s witness statement and oral evidence supports his position. In particular, he contends that the alternative duties he has been directed to perform since September 2023 have not been agreed to by him, and in fact, involve him largely performing mundane and administrative tasks not consistent with his principal duties or skills. Furthermore, that he feels that he is being not only deskilled but also financially disadvantaged by not being able to make himself available to work overtime and access additional earnings as a MICA Paramedic and/or Single Responder.[7]
In oral evidence, Mr Richardson identified the work he was required to perform as part of the ‘alternative duties’ assigned to him on 20 September was not work he would perform as a MICA Paramedic and further expressed concern that he would be unable to return to his Paramedic position without retraining requirements as he was being de-skilled.
The Applicant identifies two principal arguments advanced by the Respondent in their written submissions. Firstly, that the construction of the Agreement does not support the Applicant’s interpretation and, secondly, that the Respondent retains and has acted in accordance with its implied right to issue lawful and reasonable directions to Mr Richardson. The Applicant rejects these assertions.
Regarding construction, the Applicant maintains that clauses 28.1(k) and (l) are substantive operational clauses which provide substantive rights and obligations on the parties, making reference to their place at Part 4 of the Agreement and failure to use definitional language such as “means” as used in the Agreements definitions clause, being clause 2. Secondly, accepting that it is impractical to exhaustively list all the duties to be performed by a MICA Paramedic, this does not mean the duties listed in clause 28.1(k) are inclusive and without limitation because the drafters of the Agreement have listed those “principal duties” that must be provided to employees in the classification. Thirdly, that the use of the word “may” is restrictive, not permissive, and specifies what the Respondent is permitted to assign the employee duties, other than principal duties, only if the employee agrees. Fourthly, that while clauses 28.1(k) and (l) cannot be read in a vacuum and need to be read in the overall context of the Agreement, they are not the only clauses in the Agreement by which the Respondent can provide the Applicant duties other than his principal duties, citing clauses 11.2, 37.1, 77.1 and 77.2.[8]
Regarding the Respondent’s implied right to issue a lawful and reasonable direction, the Applicant submits these submissions are not relevant as this is a dispute about the construction of clauses 28.1(k) and (l) of the Agreement, nothing else.
Furthermore, it is their position that the Respondent’s ability to issue a lawful and reasonable direction is restricted by the Agreement as the employer has agreed to be bound by its terms in the making of Agreement in accordance with the provisions of the Act. It is the Applicant’s position that if it is determined the Respondent is not assigning the Applicant his principal duties as required it follows that any direction to perform alternative duties is neither lawful nor reasonable because the Respondent is not complying with the Agreement.[9]
Respondent’s Submissions
The Respondent accepts the Applicant’s amended dispute application and recognises that the Commission’s power to arbitrate the dispute has been enlivened under clause 11 of the Agreement to the extent it relates to “matters under the Agreement or the NES”. Further, that the question to be determined is whether it is complying with clauses 28.1(k) and/or (l) of the Agreement by not assigning Mr Richardson his principal duties or skills as a full time MICA Paramedic, and instead placing him in alternative duties.
It is not disputed that Mr Richardson has met the requirements of the Agreement to be recognised and endorsed as a MICA Paramedic and a MICA Paramedic Single Responder. The Respondent accepts that Mr Richardson is currently employed in this role under a contract of employment (that has not been reduced to writing) and the terms of the Agreement.
The Respondent argues the Applicant’s position should be rejected and that the Commission should find it is complying with the terms of the Agreement on three principal grounds. First, that the terms of clauses 28.1(k) and 28.1(l) are not operative terms imposing any substantive obligations on the Respondent. Second, that any definitions provided for by clauses 28.1(k) and 28.1(l) are without limitation and use words of expansion which do not prohibit the assignment of alternative duties. Third, that the Respondent has an implied right in its contract of employment with the Applicant to issue lawful and reasonable directions which it has done in response to allegations of sexual harassment against the Applicant to ensure a safe place of work.
In support of its third argument, the Respondent submits that it is well accepted that an employer has a right to make decisions regarding the management of its business and to issue lawful and reasonable directions to its employees. Further, that provided an employer is not seeking to do something “unjust or unreasonable” the Commission should not interfere with that right.[10] In the present case, the Respondent’s evidence is that there are significant surrounding contextual circumstances that must be considered that support the Commission reaching this conclusion.
One of which is that Ambulance Victoria has undertaken a significant review and reform of workplace equality and its discrimination, victimisation, bullying and sexual harassment complaints’ management systems with the assistance of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). This has included the establishment of a new Professional Standards and Behaviours Department, of which Ms Behrens is the Director.
Ms Behrens’ evidence is that in early July 2023 she received a complaint which made a series of allegations against the Applicant, including that of sexual harassment. Considering the seriousness of these complaints and the complainants concern for their health and safety, particularly that they could encounter the Applicant in the workplace, Ms Behrens determined it was appropriate to investigate the complaint and, in the interim, suspend the Applicant from employment in accordance with Ambulance Victoria’s Suspension Policy.
Mr Michael Georgiou is the Regional Director Clinical Operations for the Respondent and gave evidence of the risks of the complainant and the Applicant coming into contact if they were both performing duties as a MICA Paramedic. Notwithstanding these risks, Mr Georgiou’s evidence is that the Respondent also considered the recommendations in the VEOHRC report concerning the negative impact on an employee’s mental health when suspended from work for the purposes of what are often lengthy investigations. On this basis, he submits that it was decided that rather than suspending Mr Richardson from work, it would be better if he was allocated to alternative duties while the investigation into the complaints against him were undertaken.
Between July and September 2023, the Respondent further considered its response to the complaint against the Applicant in consultation with the complainant’s solicitors. During this time, Ms Behrens and Mr Georgiou also worked to identify alternative duties for the Applicant to perform for the duration of the investigation.[11] On 20 September 2023, the Respondent wrote to the Applicant advising him of the investigation and that he was required to undertake identified alternative duties for the duration of the investigation.
Mr Georgiou’s evidence is that the alternative duties assigned were meaningful and essential to the Respondent and its service delivery. That they were suitable for the Applicant’s skills and experience and could only be appropriately undertaken by someone who has training and experience as a MICA Paramedic.[12]
It is in this context that the Respondent submits it has directed the Applicant not to perform duties as a MICA Paramedic or MICA Single Responder. They submit that the removal of the Applicant from the workplace in this context is unremarkable, and that it is common place when investigations are underway into serious allegations for employees to be suspended from work. Further, that the employer’s Suspension Policy expressly contemplates suspension from the workplace in the course of an investigation and that where an employer takes a bona fide view, that the continued performance of duty is inconsistent with its interests, it is entitled as a matter of contract to direct the employee not to perform work.[13]
On this basis, it is the Respondent’s position that its decision to direct Mr Richardson not to perform duties pursuant to clause 28.1(k) and/or (l) constitute an exercise of reasonable management prerogative to appropriately manage risk in its workplace and is not restricted by the terms of the Agreement, statute or other instrument.[14] Further and having regard to the above, that the meaning of these clauses cannot sensibly be construed to mean the Applicant has an unqualified right to be provided with his “principal duties” as a MICA Paramedic.
In reply, the Respondent identifies that for the Applicant’s construction to be correct:
“…the Commission must find that the common intention between the parties (viewed objectively) was that clauses 28.1(k) and (l) operate to extinguish the Respondent’s ability to direct a MICA Paramedic to not attend the workplace or perform alternative duties in any circumstance.”[15]
The Respondent does not assert there is any ambiguity within the meaning of the clauses and accepts that recourse to surrounding circumstances is not required to determine the meaning. However, they maintain that this does not obviate the need for the Commission, in construing the clauses, to have regard to the principle that it will not interfere with the right of an employer to manage its business unless it is seeking something unjust or unreasonable.
In support of this position, the Respondent refers the Commission to a number of authorities, including Lend Lease Project Management and Construction (Australia) v CFMEU[2015] FWCFB 1889 (27) [‘Lend Lease’]. Further, asserting that, as in the present case, where the terms of an Award or Agreement are not exhaustive of the contractual rights of an employee, the terms of the Agreement can be read harmoniously with that contractual entitlement and the terms of the Agreement do not have contractual force by reference to the decision in AIPA v Qantas [2014] FCA (32) among others.[16]
The Respondent submits that there is nothing before the Commission to demonstrate that clauses 28.1(k) or (l) (or any other clause in the Agreement) have contractual effect. That they have not been implied as a matter of fact, or as a custom or practice and that the clauses have no contractual operation.
On this basis, they argue that the terms of the Agreement are not in conflict with the Respondent’s entitlement to issue lawful and reasonable directions to its employee as a matter of contract. They submit that to construe the clauses otherwise would give rise to circumstances where the Respondent could not appropriately direct its employees, including to ensure the health and safety of employees or others, without being said to contravene the Agreement.[17]
In proceedings, the Respondent confirmed that its principal position is that an objective interpretation of the Agreement does not support the Applicant’s position and should fail on that basis. On the question of the obligation of the Commission to interpret the contested clauses in light of surrounding circumstances and management’s prerogative to issue lawful and reasonable direction, the Respondent submitted this is a question of weight in the balancing of the Commission’s decision.
Regarding construction, the Respondent’s position is that the Commission is required to identify the objective meaning of the Agreement by construing its words, having regard to their context, including the industrial purpose of the Agreement. They agree with the Applicant that the relevant principles for construction are well settled, included that the starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context.[18]
Applying these principles, the Respondent submits firstly, that clauses 28.1(k) and (l) are contained within Clause 28 ‘OPERATIONAL CLASSIFICATIONS – DEFINITIONS’ of the Agreement. As such, it is their position these clauses are clearly definitions and do “not enact substantive law” consistent with High Court decision in Kelly v R [2004] HCA 12; (2004) 218 CLR 216 (‘Kelly’), but rather explain in broad terms what a MICA Paramedic’s role is. Secondly, the clauses define the duties inclusively and without limitation, and that an exhaustive list of the duties to be performed by a MICA Paramedic would be impractical. Thirdly, that the use of the word “may” in the clause is permissive and not restrictive and does not prohibit the Respondent from directing a MICA Paramedic to perform duties beyond the scope of the definition in any circumstances. Fourthly, that a restrictive construction of the definition is inconsistent with the Agreement when read as a whole, citing provisions in the Agreement at clauses 11.2, 37.1, and 77.3 that provide the employer the right to direct employees, including a MICA Paramedic, to duties other than those set out in Clause 28.
Consideration
The principles of an Agreement interpretation were helpfully set out by the Full Bench in the matter of AMWU v Berri.[19] The parties have identified and it is not contested that these principles are well established, as identified by Deputy President Clancy in Clarke v Broadspectrum [2018] FWC 3638 and recently set out by the Full Bench in Fire Rescue Victoria v Rainer Kiessling [2024] FWCFB 19 at [17] as follows[20]:
“The principles applicable to construing an enterprise agreement may be briefly stated. The task of construing such an instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the instrument is made, or in which it operates may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances to determine whether there is any ambiguity in a provision of the instrument. The language of the instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.”
In AMWU v Berri Pty Ltd,[21] the Full Bench relevantly held:
“The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
…”
In the present matter, the Respondent’s position is that a further principle of ‘management prerogative’ and an employer’s contractual right within the contract of employment, that has not been extinguished, to issue lawful and reasonable directions must also be considered. In support of this position, the Respondent refers to the decision of the Full Bench in Lend Lease at [27] as follows:
“It may be accepted that the above principle is one which should be taken into account and given significant weight in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer.”
I accept that this is a relevant consideration in this matter and that as Deputy President Lawrence noted in the decision considered on appeal in Lend Lease:
“…there is a high bar for the Commission to intervene to overturn the decision of management in a case such as this.”[22]
However, I note that the Full Bench also observed at [27] in this decision that:
“However, to elevate the XPT Case principle into an immutable rule applicable to any employer decision is to overstate the effect of the principle.”
During the course of the Hearing, the Respondent has accepted that the question of managerial prerogative is one of weight in the balancing of the Commission’s decision.
In the present case, this question becomes relevant to my considerations in the event I am satisfied firstly, that the employer’s contractual right has not otherwise been extinguished. And secondly, that my interpretation of clauses 28.1(k) and (l) does not support the Respondent’s position that, objectively viewed, the plain meaning of these clauses do not prohibit Ambulance Victoria from allocating Mr Richardson to duties alternative to those of a MICA Paramedic or MICA Single Responder, without his agreement.
If this is the case, whether or not the terms of the Agreement itself in any way extinguishes or constrains the Respondent’s managerial prerogative becomes relevant. As the Respondent’s reference to the decision of VP Lawler in CFMEU v HWE Mining Pty Limited[2011] FWA 8288 at paragraph [10] identifies:[23]
“However, managerial prerogative in relation to employees (including the employer’s right to make and vary policies that employees are required to observe) is subject to legal constraints. It may be constrained by statute or the terms of an award. It may also be constrained by the terms of a contract of employment or a statutory agreement that the employer chooses to make. For example, an enterprise agreement might provide that all work must be carried out in accordance with a roster pattern specified in the agreement. In that example, unless the agreement also confers a right on the employer to vary the roster pattern, the employer has bound itself not to require employees to work a different roster pattern.”
There is no evidence or assertions in this matter that the terms of the Agreement have been incorporated into, or otherwise operate to extinguish the contract of employment. It is common ground that the Agreement is a certified agreement under the Fair Work Act 2009, and given force of law by that Act.
Whether the Agreement, in particular clauses 28.1(k) or (l), is exhaustive or otherwise restrict the contractual rights of the Respondent in respect of when it can require employees not attend the workplace or perform alternative duties can only be determined by interpreting the Agreement.
I have identified above the established authorities that are to be used by the Commission in this task and I have applied these principles to this matter in reasoning below.
The relevant clauses of the Agreement are as follows:
“28. OPERATIONAL CLASSIFICATIONS – DEFINITONS
28.1 Clinical Operations
……
(k)Mobile Intensive Care Ambulance (MICA) Paramedic is an Ambulance Paramedic that has successfully completed a Graduate Diploma in Emergency Health (Intensive Care Paramedic) or equivalent qualification. The principal duties include assessment, treatment, care and transport of emergency and/or non-emergency patients in pre-hospital setting. MICA Paramedics practice advance intensive care paramedic skills in accordance with AV approved Clinical Practice Guidelines.
An employee employed in the classification of Mobile Intensive Care Ambulance Paramedic may, by agreement, perform other duties that utilise the skills and knowledge of a paramedic but which do not necessarily involve the employee providing emergency and/or non-emergency patient care in a pre-hospital setting.
(l)Mobile Intensive Care Ambulance (MICA) Paramedic Single Responder is an employee with a minimum two years’ experience as a qualified MICA Paramedic, who has completed additional training required by the Employer in order to undertake single responding duties in a non-stretcher vehicle and is appointed by the Employer to undertake such duties.”[24]
There is no contest that the Applicant has met the requirement of both clauses 28.1(k) and 28.1(l) and that his substantive position of employment with the Respondent is one of a MICA Paramedic/MICA Paramedic Single Responder. The meaning of the key words in dispute between the parties in this matter in clause 28.1(k) are “principal duties include”, “may, by agreement” and the significance of the clauses place in the Agreement in Clause 28 titled “OPERATIONAL CLASSIFICATIONS – DEFINITIONS”. It is the meaning of these phrases that the parties are asking to be interpreted by the Commission in order to resolve the dispute.
The Oxford English Dictionary defines the word “definition” as “a statement of the exact meaning of a word, especially in a dictionary” and “an exact statement or description of the nature, scope, or meaning of something.” In the Cambridge English Dictionary, it is defined as “a statement that explains the meaning of a word or phrase”. In Kelly the High Court held the “function of a definition is not to enact substantive law’. On this basis, the Respondent submits the function of clause 28.1(k) is not to create an enforceable obligation on the Respondent to assign MICA Paramedic’s only those duties specified in the definition. The Applicant maintains clause 28.1(k) and (l) are not definition clauses.
There is no suggestion that an ambiguity exits within the terms at clause 28 or that they are susceptible to more than one meaning in the context of the Agreement. In considering whether ambiguity exists, I have also considered that there is no other reference or descriptors to classifications and associated duties of work to be performed by employees covered by the Agreement.
I have also observed that Clause 28 is found within Part 4 of the Agreement, being “Classification Structure, Wages and Related Matters”, indicating the purpose of its place in the Agreement is more operative than definitional.
Furthermore, Clause 28 is prefaced by Clause 26 – “WAGE RATE INCREASES”, which sets out base wage rate increases for “each operational classification covered by this Agreement”,[25] and Clause 27 – “OPERATIONAL CLASSIFICATION AND WAGE RATES”, which details some transitional, aggregated, and incremental wage increase and arrangements for eligible operational classifications covered by the Agreement. Further, Appendices 1, 2 and 3 all also rely on the provisions contained within Clause 28.
On this basis, I am satisfied that there is no ambiguity in the words “OPERATIONAL CLASSIFICATIONS – DEFINITIONS” and that they have their ‘plain and ordinary meaning’ to be interpreted consistent with the principles in Berri, having regard to the context and purpose. As the Agreement has a plain meaning, there is no requirement for me to consider evidence of the surrounding circumstances to contradict the plain language of the Agreement.
As indicated above, the significance of the title of Clause 28 is relevant to the functioning of a number of other clauses within the Agreement, including the determination of the base rate of pay for work being performed. The word ‘Operational’ is defined by the Cambridge English Dictionary as “(1) relating to a particular activity; (2) If a system is operational, it is working”. The Collins Dictionary defines it this way, “having to do with, or derived from the operation of a device, system, process etc”. At Clause 2.15 of the Agreement, Operational employee/s or staff are defined to “[mean] an employee employed in one or more of the operational classifications in Appendix 1 [of] this Agreement.”[26]
Clause 2.15 is found within “Part 1 – Application and Operation of the Agreement” under Clause 2 – “Definitions”. Clause 2 is clearly a definitions clause in the context and purpose of this Agreement. It consistently uses the definitional language of “means”, i.e. at clause 2.6 – “Agreement means”, at clause 2.11 – “FWC means” etc.
The definitional word “means” is not included in Clause 28, signifying that it is something more than a definitions clause. Considering the plain meaning of the words “OPERATIONAL CLASSIFICATIONS – DEFINITIONS” as set out above, I am satisfied that this is the case. In construing the meaning of these words consistent with the principles in Berri, as indicated above, I have also had regard to their place in the Agreement and the text of the Agreement as provided for in principle 1.
As to the common intention of the parties, viewed objectively and in light of the above – in particular the inclusion of a specific Definitions clause; the omission of the word “means” from clause 28’; and the inclusion of the words “Operational Classifications” before the word “Definitions”, it is my conclusion that a reasonable person would understand these words to describe the pre-requisites and operational work required to be performed by employees to be employed within the specified classification under the Agreement as is commonly the case. A review of the number of other classifications provided for in Clause 28 reinforce this conclusion. For example:
“(a) Clinical Transport Communications Officer (CTCO) is an employee that undertakes call taking and dispatch functions and also coordinates the allocation and distribution of non-emergency patient transport resources.
…
(m) Paramedic Community Support Coordinator (PCSC) is an ALS or MICA Paramedic that in addition to the duties of an ALS or MICA Paramedic, is appointed to support the activities and effective functioning of an ACO branch/s and contribute to the health education/health promotional activities in defined locations.”[27]
Further, I have considered these provisions in light of principles 4 and 5 in Berri. The facts of this case are that this is an Agreement made under the Act between Ambulance Victoria and a majority of employees working in the positions set out within the terms of clause 28.1. Objectively viewed, I conclude, a reasonable person would also consider employees covered by this Agreement to understand the meaning and purpose of clause 28.1 of the Agreement they entered into describes the pre-requisites and operational work required to be performed by employees to be employed within the specified classification under the Agreement.
On this basis, contrary to the Respondent’s position, I am not satisfied that clause 28.1 is a definition and that, therefore, the authorities in Kelly and AA v Australian Federal Police[2020] FWC 71 [44] stand in this matter.
I now turn to the meaning of the words “principal duties include” and “may, by agreement”.
There is no contention that there is ambiguity in the words “principal duties include” and “may, by agreement” or that they are susceptible to more than one meaning in the context of the Agreement. In considering whether ambiguity exists, I have also considered their place within the Agreement, within a classification clause related to a MICA Paramedic, and I am satisfied there is no other clause within the Agreement that they are in potential conflict with. On this basis, I am satisfied that no ambiguity exists and that, in my view, the words have their ‘plain and ordinary meaning’ to be interpreted consistent with the principles in Berri.
The Cambridge English Dictionary defines principal to mean “first in order of importance” and duties as (1) “something you do because it is morally or legally right”; or (2) “something you do as part of your job or because of your position”. The Macquarie Dictionary defines principal as “first or highest in rank, importance, value etc” and duties as “that which one is bound to do by moral or legal obligation”. Include is defined in the Cambridge Dictionary as “to have something or someone as part of something larger or more general” and in the Collins Dictionary as “to have as contents or part of the contents”.
Read together and in context, the ordinary and plain meaning of the words “principal duties include” mean that an employee of Ambulance Victoria who has met the requirement of being a MICA Paramedic or MICA Paramedic Single Responder is to be allocated duties that include, in whole or in part, the duties specified in the clause. Relevantly:
“…assessment, treatment, care and transport of emergency and/or non-emergency patients in pre-hospital setting.”[28]
In submissions, the Respondent identified that the meaning of the word principal, does not exclude there being additional, secondary, or other duties also included within the duties to be performed of a MICA Paramedic or MICA Paramedic Single Responder. Further, that the above duties set out in the clause are ‘defined’ inclusively and without limitation as an exhaustive list of all the duties to be performed by a MICA Paramedic would be impractical.
I accept this proposition and it is not contested by the Applicant.
However, I do not accept that this means that Ambulance Victoria is at liberty to allocate additional, or secondary duties to its MICA Paramedics that do not include, in whole or in part, the principal duties identified in Clause 28.1(k). I have reached this conclusion based on the interpretation set out above of the plain meanings of the words “principal duties include” consistent with the principles in Berri.
I also observe that the words of clause 28.1(k) itself identify that the duties of MICA Paramedic shall be additional to those principal duties set out in the provision in the following sentence: “MICA Paramedics practice advance intensive care paramedic skills in accordance with AV approved Clinical Practice Guidelines”.[29]
Both Mr Richardson and Mr Georgiou gave evidence on the additional duties of a MICA Paramedic. It is also not disputed that prior to being directed to perform alternative duties on 20 September 2023, Mr Richardson’s work was inclusive of performing the principal duties of a MICA Paramedic set out in Clause 28.1(k). The material filed, including the current Clinical Practice Guidelines, clearly identify in detail the additional roles, responsibilities and duties required of a MICA Paramedic as contemplated by the reference to the guidelines in the operational classification of a MICA Paramedic set out in Clause 28.1(k).
‘May’ is defined by the Cambridge Dictionary as a word used to “ask or give permission” and ‘agreement’ as “the act of approving or accepting something”. In the Collins Dictionary the meaning of ‘may’ is defined as “to indicate that permission is requested by or granted to someone” and ‘agreement’ is defined as “the act or fact of agreeing”. As I have found no ambiguity, I have considered the plain and ordinary meaning of these words “may, by agreement” consistent with the principles of interpretation set out in Berri.
The Respondent assert that the meaning of the word “may” in this context is permissive and not restrictive and that it in no way prohibits Ambulance Victoria from directing a MICA Paramedic to perform duties beyond the scope provided in the Agreement in any circumstances. In support of this position, the Respondent identifies an analogy of a term which states an employee, may by agreement, take annual leave. They maintain that such a clause would not preclude an employer from directing the employee to annual leave in certain circumstances, provided they were not contrary to the applicable Award and the Act.
The Applicant asserts the contrary view, that the use of the word ‘may’ is restrictive.
Considering the plain meaning of the words ‘may, by agreement’, on balance, I am more persuaded by the Applicant’s assertion. In construing the meaning of these words consistent with the principles in Berri, as indicted above, I have also had regard to their place in the Agreement and the text of the Agreement as provided for in principle 1.
The words appear in a clause whose purpose I have to found is to set out any pre-qualification requirements and the operational work required to be performed by employees to receive the associated benefits of each classification under the Agreement.
I also observe that the word “may” also appears in Clause 28.1(h) and Clause 28.3(a) in similar terms, providing the circumstances where an Advance Life Support (ALS) Ambulance Paramedic and a Team Manager or Senior Team Manager, respectively, may also perform other duties, by agreement.
My review of the overwhelming majority of other clauses found within Clause 28, finds that they also follow a pattern of stating the title of the job classification being provided for by the term; setting out any pre-qualification requirements or criteria employees must meet to be considered within the classification; and then, setting out the duties, or principal duties, required of employees within the classification. By way of example:
“(f) Graduate Ambulance Paramedic (GAP) is an employee that has completed, or is undertaking, an AHPRA approved paramedicine program of [study] and is employed in the Graduate Ambulance Paramedic program.
(g) Basic Life Support (BLS) Ambulance Paramedic is an employee that has completed AHPRA approved paramedicine program of study. The principal duties include assessment, treatment, care and transport of emergency and/or non-emergency patients in a pre-hospital setting. BLS Paramedics practice BLS skills in accordance with Employer approved Clinical Practice Guidelines.”[30]
As to the common intention of the parties, viewed objectively and in light of the above – in particular, the recurring construction of operational classifications in clause 28 to include criteria; duties and/or principal duties; and exceptions where relevant, I consider that a reasonable person would understand these words to mean Ambulance Victoria requires the agreement of an employee engaged as a MICA Paramedic and/or a MICA Paramedic Single Responder before being able to allocate them to other duties not inclusive, in whole or in part, of the duties set out in clause 28.1(k) and/or (l).
As to the Respondent’s example regarding Annual Leave, I have observed that in constructing the Agreement the parties have envisaged a circumstance where Ambulance Victoria may require an employee to take annual leave, without their agreement, and have explicitly provided for this circumstance in the Annual Leave Clause found in Part 6 of the Agreement, at 55.6(c) as follows:
“(c) The Employer and employee will seek to reach agreement on the taking of annual leave at a mutually convenient time. In the absence of agreement, the employer may give at least 28 days’ notice of the taking of annual leave.”[31]
Furthermore, I observe the use of the word “may” in this clause is similarly restrictive, providing the employer the right in the absence of agreement to direct an employee to annual leave with at least 28 days’ notice.
Consequently, I am of the view that the plain meaning of these words “may, by agreement” place a clear condition on the employer that to comply with Clause 28.1(k) and (l), Ambulance Victoria requires the agreement of a MICA Paramedic or MICA Paramedic Single Responder to not allocate them the principal duties set out in this provision but allocate them alternative other duties by virtue of this clause.
I turn now to a reading of the dispute clauses and the language of the Agreement, having regard to its context and purpose, including when read as a whole, as required by the authority in Principle 1 of Berri. It is the Respondent’s position that a restrictive construction of the terms in dispute is inconsistent with the Agreement, when read as a whole. Citing clauses 11.2 (Resolution of Disputes and Grievances); 37.1 (Resource Allocation); and 77.3 (Training and Development) as examples of clauses within the Agreement that provide for a right for Ambulance Victoria to allocate duties to a MICA Paramedic or MICA Paramedic Single Responder other than those contained within the provisions of clauses 28.1(k) or (l), without their agreement.
I have considered each of these clauses in turn and do not see any inconsistency between the provisions contained therein and those provided for by Clause 28.1(k) and/or (l). Clause 11.2 provides the employer a right to require an employee to perform alternative duties in the context of a dispute or grievance where the Respondent has a concern it cannot maintain the status quo for health and safety reasons.
Clause 37.1 provides Ambulance Victoria with a right to require employees “...to perform all work they are competent to perform and accept the requirement for flexibility in relation to work arrangements and mobility between work locations to meet the Employer’s operational and service delivery requirements”.[32] Importantly however, Clause 37.2 provides employees with a right to raise a grievance about a transfer in work location where they believe the requirement is unreasonable having regard to their personal and family circumstances and the requirement for excessive travel to attend work.
Clause 77.3 sits within “Part 9 – Other Terms and Conditions” and Clause 77 is titled “TRAINING AND DEVELOPMENT”. It provides a right for the employer to direct “an employee to carry out such duties as are within the limits of the employee’s skill, competence, qualifications and training consistent with the classification structure of this Agreement, provided that such duties are not designed to promote deskilling”.[33]
I do not accept that any of the provisions in these clauses are inconsistent with the obligations I have found within the plain meaning of clauses 28.1(k) and (l), that Ambulance Victoria is required to allocate the duties set out in these clauses to a MICA Paramedic, in whole or in part, unless the employee otherwise agrees.
Rather, I consider that a reasonable person objectively viewing these terms of the Agreement in the context and as a whole, would consider these clauses to be a clear expression of the parties to the Agreement to the contrary. Specifically, that in acknowledgment of their commitments contained within clause 28 to outline the duties to be provided to employees within the specified classifications, the framers of the Agreement turned their mind to the very circumstances where the employer sought to retain the right to direct employees to perform alternative duties. As in these cases; in the event of a dispute or grievance where status quo created a risk to employee health and safety; where the operational requirements to the business necessitated this to be the case; and where the training and development of the employee required it.
Furthermore, it is my view that the employer also has other options available to it to require a MICA Paramedic to perform duties other than those principal duties set in clause 28.1(k), absent agreement. As identified above, this includes the Ambulance Victoria Suspension Policy which provides a right to suspend an employee from duty in the event of allegations significantly serious in the employer’s view to warrant suspension. Clause 74 – “DISCIPLINARY PROCESS” also provides a right for the employer to “transfer” an employee in event of serious misconduct at 74.6(f)(iv).
The present circumstances are not one where the Respondent has sought to direct the Applicant to perform duties other than his principal duties in reliance on any of the above. As set out in the background, the Respondent has sought to require the Applicant to perform alternative duties in consideration of the recommendations of the VEOHRC Report and the Applicant’s mental health. The has been coupled with the health and safety of another employee who has made a serious complaint of misconduct against the Applicant that the Respondent has determined to investigate for the purposes of seeking legal advice.
The Respondent asserts that to construe clauses 28.1(k) and/or (l) to mean Ambulance Victoria is required to allocate the principal duties set out these clauses to its MICA Paramedics or MICA Paramedic Single Responders would give rise to circumstances that the Respondent could not direct its employees, including to ensure the health and safety of its employees or others, without being said to be in contravention of the Agreement. I do not accept this to be the case.
As identified above, there a number of options available to Ambulance Victoria to direct Mr Richardson to perform alternative duties to those set in the clauses 28.1(k) or (l) under the Agreement. Clearly, the Respondent could have also acted in accordance with the Suspension Policy. It is apparent to me that the Respondent could further explore whether it could have provided Mr Richardson work that included part of his principal duties prescribed by Clause 28.1(k) or (l), in addition to secondary or other duties. The Respondent’s position, provided in submissions and the evidence of Ms Behrens and Mr Georgiou, is that it explored these options but ultimately determined it is not possible to ensure the complainant’s their health and safety in the eventuality that they may come across Mr Richardson should he be returned to “assessment, treatment, care and transport of emergency and/or non-emergency patients in pre-hospital setting”. Whether or not the Applicant may have been allocated to only assessment, only treatment, or only transport or some other combination of the principal duties, in whole or in part, specified in Clause 28.1(k) seems to not have been determined.
Another option open to the Respondent also appears to have been to allocate the Applicant to undertake training duties pursuant to clause 77.3, as identified above. Mr Richardson’s evidence is that the alternative duties he was allocated to “were largely administrative”, “could be conducted from home” and amounted to work designed to promote deskilling of his professional classification and standing as a MICA Paramedic. Mr Georgiou’s evidence rejects this assertion and in proceedings Mr Georgiou clarified that there was no risk to Mr Richardson being able to return to his MICA Paramedic position by being directed to undertake alternative duties for at least 12 months. I accept this evidence.
I also accept that it was established in submissions that the alternative duties Mr Richardson was allocated to also appear to fall within the scope of the duties of a Paramedic Educator as specified by the operational classification at clause 28.4(b) and/or a Clinical Support Officer as per 28.4(d). On this basis, there is no question in my mind that Mr Richardson was not being allocated to the principal duties as required by the operational classification in clause 28.1(k) and/or (l).
Finally, I turn to the Respondent’s assertions that the terms of the Agreement are not in conflict with Ambulance Victoria’s right to issue lawful and reasonable directions to Mr Richardson not to perform work as MICA Paramedic or MICA Paramedic Single Responder as provided by Clauses 28.1(k) and/or (l) of the Agreement.
I have considered these clauses and their meaning within the context and purpose of the Agreement consistent with the authorities in Berri. Construing these terms of the Agreement consistent with the authorities, I have found their meaning to be that Ambulance Victoria is required to provide Mr Richardson with the principal duties, in whole or in part, as provided by these clauses, unless Mr Richardson otherwise agrees.
It follows from this conclusion that the Respondent’s assertion of an overriding principle of management prerogative must now be balanced against a clear provision in the express terms to the Agreement to forgo this right. I adopt the approach taken by VP Lawler in CFMEU v HWE Mining Pty Limited at paragraph [10].
In considering the Respondent’s submissions, I accept that it is a “high bar” for the Commission to overturn a management decision. In the present case however, I have found that the Respondent has entered into an agreement with its employees under the Act. Applying the principles of agreement interpretation established in Berri, I have found that the terms of this Agreement include a commitment from the Respondent not to allocate the Applicant to duties not inclusive, in whole or in part, of the principal duties set out in Clause 28.1(k) or (l), without his agreement.
Consistent with these principles, I am satisfied that in making this commitment Ambulance Victoria should be bound by it. I accept Ambulance Victoria has been confronted with a challenging set of facts and sought to manage them without any ill intent towards the Applicant in the present circumstances. However, I am not satisfied these circumstances obviate the exhaustive commitments it has entered into under this Agreement. Ultimately that, on balance, its commitments should not be outweighed by any right of management prerogative to allocate duties to Mr Richardson not inclusive, in whole or in part, of those specified in clause 28.1(k) without his agreement because the Respondent has extinguished this prerogative in reaching the Agreement.
Conclusion
In conclusion, and by weighing the above considerations, the answer to the agreed question for determination in this dispute, outlined in paragraph [13] of this decision, is in the negative.
I am not satisfied that the Respondent is complying with clauses 28.1(k) and/or 28.1(l) of the Agreement by not assigning the Applicant to his principal duties or skills as a full-time MICA Paramedic and/or MICA Paramedic Single Responder, and instead placing him on alternative duties.
COMMISSIONER
Appearances:
Mr M Coggin and Ms M Lange on behalf of the Applicant.
Mr A Crocker on behalf of the Respondent.
Hearing details:
2024.
Melbourne.
March 5.
[1] See Witness Statement of Matthew Richardson Annexure ‘MR3’, Court Book page 21.
[2] See Witness Statement of Michael Georgiou at [38], Court Book page 1130.
[3] Amended Directions at [2], Court Book page 1308.
[4] Applicant’s Outline of Submissions at [19] to [22], Court Book pages 6 – 7.
[5] Applicant’s Outline of Submissions at [26], Court Book page 8.
[6] Ibid at [32], Court Book page 9.
[7] See Witness Statement of Matthew Richardson at [19] and [20], Court Book page 13.
[8] Applicant’s Submissions in Reply at [2]-[11], Court Book pages 1095 – 1098.
[9] Ibid at [12]-[13], Court Book pages 1098 – 1099.
[10] See Respondent’s Outline of Submissions at [35] and [36], Court Book page 1109.
[11] Ibid at [18], Court Book page 1104.
[12] Ibid at [19].
[13] Ibid at [39] and [40], Court Book pages 1110 – 1111.
[14] Ibid at [38].
[15] See Respondent’s Outline of Submissions in Reply at [14], Court Book page 1227.
[16] Ibid at [16]-[25], Court Book pages 1227 – 1230.
[17] Ibid.
[18] See Respondent's Outline of Submissions at [22]-[25], Court Book pages 1105 – 1106.
[19] [2017] FWCFB 3005 at [114].
[20] [2024] FWCFB 19 at [17].
[21] [2017] FWCFB 3005 at
[22] See Lend Lease[2015] FWCFB 1889 at [12].
[23] [2011] FWA 8288 at [10] cited at [12] in Applicants Submissions in Reply, DCB p. 1098-1099
[24] Ambulance Victoria Enterprise Agreement 2020 at Clause 28.1, Court Book pages 62 – 63.
[25] Ibid at page 30, Court Book page 54.
[26] Ibid at page 8, Court Book page 32.
[27] Ibid at pages 37 – 39, Court Book pages 61 – 63.
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Ibid at page 83, Court Book page 107.
[32] Ibid at page 55, Court Book page 80.
[33] Ibid at page 112, Court Book page 136.
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